Before the District Consumer Dispute Redressal Commission [Central District] - VIII,      5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi

                                      Complaint Case No.-08/23.12.2020/2021

Kuldeep Kumar

Resident of -E-32 Kalkaji,

New Delhi -110024                                                                         …Complainant

                                                                        Versus

Jaguar Infrastructures Private Limited

561-562, Double Storey, New Rajender Nagar,

 New Delhi -110060                                                                        ...Opposite Party

                                                                                    Date of filing:            23.12.2020

                                                                                    Date of Order:           06.02.2024

Coram:

Shri Inder Jeet Singh, President

Ms. Shahina, Member -Female

                                                       ORDER

Inder Jeet Singh , President

1.1  (Introduction to case of  complaint) – In this complaint, there are grievances of deficiency of services and of unfair trade practice against OP and the complainant seeks 100% refund of the amount deposited with OP in respect of purchase of a residential apartment.  The complainant was allotted  flat no. B-205 second floor, Tower-B,  one BHK, admeasuring 610 sq. feet (hereinafter referred the apartment or residential flat) by OP in its project Aryan Apartment, Sector-73 NOIDA. The complainant paid amounts from time to time, the total amount paid is Rs.8,18,762/- as demanded by OP, vide letter dated 18.07.2013 out of total consideration amount of Rs.19,99,740/-. The apartment was booked on 07.06.2013 and  builder buyer agreement was entered into in Nov./Dec.2013 but OP failed to deliver the possession within agreed period of 42 months from  11.6.2013 being the date of  application of booking. There was typographical error in agreement, it was taken back by the OP to replace with corrected agreement, it was not done despite requests/notice in writing. The possession ought to have been delivered  in May 2017 but it was not delivered nor there is likelihood of possession in the near future because of incomplete  construction of project. That is why, the complaint was filed seeking refund of 100% paid amount along with interest at the rate of 18% pa from the date of receipt of each payment besides compensation of Rs. 2,00,000/- in lieu of mental agony, harassment, discomfort and undue hardship to the complainant and cost of litigation of Rs. 50,000/-,  besides other appropriate relief.

1.2. The OP was served on 25.1.2021 with the notice of complainant but OP was not appearing despite adjournments, then it was proceeded ex-parte and case was posted to complainant's evidence.

2.1. (Detail of case of complainant) –The complainant was impressed by assurances given in the advertisement and he booked an apartment in the Aryan  Project of OP,                                    for  his residence and family. He  paid his hard earned money in purchase of a unit in that projected by paying booking amount of Rs.21,000/- on 07.06.2013 (which includes parking and club membership) ; builder buyer agreement dated Nov./Dec.2013 was executed and as per clause no. 9.1 of the agreement, the possession was to be delivered within 42 months from the date of booking application. The complainant in order to have timely possession of the apartment, he was paying timely payments as and when demanded by the OP vide letter dated 18.07.2013.   The OP had collected  from complainant substantial amount of  Rs.8,18,762 against receipts , which is almost 50% of agreed sale amount, that too within the time payment schedule  but OP has not delivered the possession of the apartment to the complainant as per agreement nor till date of legal notice or otherwise.

2.2. The complainant paid his hard earned money to the OP but the conduct of OP displays gross deficiency and unsatisfactory services. Moreover, it reflects its mala-fide, wrongful and deceitful intention to evade accountability and responsibility. The complainant has been traumatized for such acts and deeds of the OP since there were frequent efforts, visits, inquires, trauma of mental pressure, agony faced by the complainant while exploring the status of project and date of delivery of possession.

2.3. There were highly stretched promises, a flowery picture and assurances given by OP, when the unit was booked in June, 2013, the complainant also paid the initial amount and total amount stand paid is Rs.8,18,762/- and OP had also given assurances but OP  failed to complete the construction of the project within stipulated period, consequently OP  failed to even offer the possession of apartment, even  much delay from the stipulated time. The OP also failed to provide any reasonable justification for such delay. Moreover, the complainant  came to know that project is still incomplete, the site was also visited in October 2020, photographs were also taken, the project is incomplete and work is stalked and for want of progress in the project, the  possession of the unit in the near future is highly unlikely.  The very purpose of purchasing the flat has been completely frustrated.

2.4. When the complainant was pursuing the OP by visiting, making telephone calls and inquiring about the status of project and possession of the flat, the complainant was being assured that possession will be delivered soon, whereas he was kept in dark. As per payment plan, the complainant was to pay 50% of the amount + PLC, the remaining amount plus other charges were payable at the time of completion of project.   However, OP raised the demand over and above the payment schedule, which was completely arbitrary.

2.5. The complainant seeks refund of total amount paid with interest and other relief claimed. The complainant also refers reasons from the precedents/ case law (however, it will be referred subsequently at appropriate stage, since reliance is also placed on them in the final arguments). The builder buyer agreement was carrying typographical errors and it was taken back for appropriate correction by OP but it was not released despite written letter/notice dated 28.07.2020.

            The complaint is accompanied with copy of booking application dated 7.6.2013, payment receipts,  copies of letter dated 18.07.2013, 2.8.2013,21.9.2013, 20.7.2020 recent photographs of site of project to show its incomplete status and copy legal notice dated 17.08.2020 seeking refund of paid amount.      

3.  (Evidence of complainant)- The complainant led his evidence by detailed affidavit by referring all documentary record filed with the complaint. The affidavit is also on the lines of complaint and documents.

4.  (Final hearing)- The complainant also filed written arguments. Shri Amitesh Giroti, Advocate for complainant also made oral submissions. The written arguments are on the lines of case of complainant already detailed in paragraph 2 above. The complainant refers and derives reasons  in support of complaint from the following cases-

(a) Fortune Infrastructure and another Vs Trevor D'Lima and anr (without citation)-held that a person cannot be made to wait infinite for possession of the flat allotted to him, the complainant is entitled for refund of amount along with compensation.

(b) Emar MGF Land Ltd and anr Vs Amkit Puri-II 2015 CPJ 568 NC – held that after promise date of delivery, it is in the discretion of the complainant whether he wants to accept the offer of possession, if any, or seek refund of the amount paid with reasonable interest.

(c) Pioneer Urban Land & Infrastructure Ltd. vs Govindan Raghavan Civil Appeal No. 12238/2018 held that: “a term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder…the incorporation of such one-side clauses in an agreement constitutes an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder.”

(d) Kolkata West International City Pvt Ltd Vs Devasis Rudra [Civil Appeal No.3182/2019 in SLP© 195/201 dod 25.3.2019] - the terms of agreement in respect of interest rate was held one sided that when thise is default by buyer the interest rate was 18% but on default by builder, saving bank rate of interest prescribed by SBI was mentioned.

(e) Lucknow Development Authority vs. M.K. Gupta [1994 SSC (1) 243] held that when a person hires the services of a builder, or a contractor, for construction and the same is for a consideration, it is a “service” as defined by Section 2(1)(o) of the Consumer Protection Act, 1986.

(f) Vishal Malik and anr Vs Pioneer Urban Land & Infrastructure Ltd. Civil Appeal No. 1238/2017 dod 29.3.2019) when the amount was collected by developer from the buyer of flat but the flat is not delivered, the amount paid by the buyer of flat to the builder/developer is to be treated as deposits with the builder.

5.1 (Findings)- The  contentions of complainant are considered, keeping in view the material/evidence on record, the case law was presented, besides other cases/precedents to the situation and the statutory provisions of the Consumer Protection Act, 2019

5.2. At glance, there is proved record that the complainant had booked the flat and he   was allotted the subject flat against payments,  about 50% of agreed amount was also paid to OP as per payment plan from time to time. There was builder-buyer agreement dated Nov./Dec.2013 and complainant has also proved letter dated 20.07.2020 that original builder buyer agreement was returned to the OP to replaced with correct agreement but OP failed to do so.. The total sale price of the flat is Rs. 19,99,740/- and the complainant had paid total amount of Rs.8,18,762/- as per documentary record proved.

5.3 The correspondence proved by the complainant coupled with narration in his evidence, it stand established that the OP never offered possession of the flat to the complainant nor any record that the project was complete to be delivered to the complainant.

5.4  To say, the complainant has succeeded to prove that he  had paid demanded amount of Rs.8,18,762/- in terms of  payment plan  but OP failed to complete the project or to offer the possession of the flat within stipulated period nor to deliver it to the complainant subsequently. The complainant never asked for cancellation of his booking, rather prior to filing of the complaint, he  had been making inquiry to ascertain status of the project and of flat to be delivered from OP, it was not responded by the OP.  Then finally wrote legal notice through counsel for refund of amount. The documentary record inclusive of photographs of October 2020 is also showing the status of incomplete project  vis a vis exhibiting that it is not expecting to be completed recently. This complaint was filed in 2021 and this is February 2024, there is no iota of fact brought on record if the possession was offered even after filing of complaint. This is deficiency of services on the part of OP, reliance is also placed on the following -

(i) Wg. Cdr. Arifur Rahman Kan and Aleya Sultana vs DLF Southern Homes Pvt. Ltd., 2020 SCC Online SC 667 decided on 24.08.2020, has held that “ A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to service.”

(ii) Marvel Omega Builders Pvt Ltd and anr Vs Shrihari Gokhale and anr 2019 SCC Online SC 1991, considering the feature of case, it was held that even assuming that Villa is ready for possessions, as contended by the appellants, the delay of almost five years is a crucial factor and bargain cannot be imposed upon the respondents; the respondents were held justified for refund of the amount deposited along with reasonable interest theron.

(iii) Meerut Development Authority Vs Muksh Kumar Gupta IV 2012 CPJ 12 - it was held that failure to deliver possession of the flat constitute recurrent/continuing cause of action.

Thus, the present complainant is held entitled for refund of entire paid amount of Rs.8,18,762/-.

5.5  Now interest component is being taken. The complainant has claimed interest at the rate of  18%pa. The complainant has referred clause 9.4 as unfair clause, which covenant that in the eventuality, the builder abandons the project or builder terminate the agreement because of want of delivery of possession within stipulated period of 42 months or extended period, then interest at the rate of 6% a will be payable.  However, there is no proof of any record suggesting that the builder had abandoned the project or  terminated the agreement. Thus, clause no.9.4 is not applicable to the situation. However, there is occasion to go through the following cases on the point of interest:-

(i) Puri Constructions Pvt Ltd  and anr Vs Harish Chawla [CA No.4472-5/2019 dod 7.5.2020] held that having regard to the market conditions, the interest at the rate of 12%pa was on higher side and interest payable at the rate of 8%pa was directed.

(ii) M/s Chintels India Pvt Ltd Vs Vikas Jain Civil Appeal No.4855/2022. The interest of 7.5%pa from the respected date of deposit till the date of payment was directed instead of simple interest at the rate of 9%pa.

Hence, interest at the rate of 8%pa is determined payable on deposited amount from the last date of deposit of 18.09.2013 (payment receipts proved are Annexure C-4/pages 32-39)  till the realisation of amount.

5.6   The complainant has claimed compensation of Rs. 2,00,000/- and litigation cost of Rs. 50,000/-. Since the complainant had suffered trauma of inconvenience, harassment, mental agony, therefore, in lieu thereof damages of Rs.25,000/- is determined in favour of complainant against the OP in the situation of this case.  The complainant had asked for refund of amount by advance legal notice, prior to filing the complaint but OP failed to comply or respond, then complainant was filed, therefore,  costs of Rs. 15,000/- is determined and allowed in favour of complainant and against OP. 

6.  Thus, the complaint is allowed in favour of complainant and against the OP while directing the OP to pay an amount of Rs.8,18,762/- along with interest at the rate of 8% pa from the last date of deposit from 18.09.2013 till the realisation of amount besides damages of Rs.25,000/- and costs of Rs. 15,000/- payable within 45 days from the date of order.  In case the amount is not paid by the OP within 45 days from the date of this order, then the interest rate will be 9% pa on amount of Rs.8,18,762/- (instead of rate of 8%pa).  

7. Announced on this 6th day of February 2024 [माघ 17, साका 1945].  Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances besides upload on the website of this Commission.

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