Chandigarh

StateCommission

CC/58/2023

KAMAL AGGARWAL - Complainant(s)

Versus

KANAKIA SPACES REALTY PRIVATE LIMITED - Opp.Party(s)

JATIN BANSAL

28 Dec 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

 

Complaint No.	:	58 of 2023
Date of Institution	:	14.07.2023
Date of Decision	:	28.12.2023

 

 

1.      KAMAL AGGARWAL, S/o Sh. Madan Lal, R/o H. No. 3115, Sector 38D, Chandigarh.

2.      CHARU AGGARWAL, W/o Sh. Kamal Aggarwal, R/o H. No. 3115, Sector 38D,Chandigarh.

...Complainants

VERSUS

1.      Kanakia Spaces Realty Private Limited, through its Authorized Signatory, Kanakia Future City, CTS No. 101, behind Dr. L. H. Hiranandani Hospital, Tirandaz, Powai, Mumbai, Maharashtra-400076.

2.      GURU PRERNA CORPORATION, through its Authorized Signatory, A/205, Western Edge II, Western Express Highway Behind Metro Mall, Borivali (East) Mumbai-400066.

3.      HIMANSHU BABUBHAI KANAKIA, Director, Kanakia Spaces Realty Private Limited, Kanakia Future City, CTS No. 101, behind Dr. L. H. Hiranandani Hospital, Tirandaz, Powai, Mumbai, Maharashtra-400076.

4.      ASHISH RASESH KANAKIA, Director, Kanakia Spaces Realty Private Limited, Kanakia Future City, CTS No. 101, behind Dr. L. H. Hiranandani Hospital, Tirandaz, Powai, Mumbai, Maharashtra- 400076.

5.      RASESH BABUBHAI KANAKIA, Director, Kanakia Spaces Realty Private Limited, Kanakia Future City, CTS No. 101, behind Dr. L. H. Hiranandani Hospital, Tirandaz, Powai, Mumbai, Maharashtra- 400076.

6.      VASANT ANANDJI PATEL, Partner, Guru Prerna Corporation, A/205, Western Edge II, Western Express Highway Behind Metro Mall, Borivali (East) Mumbai-400066.

7.      JAYANTI ARJUNBHAI PATEL, Partner, Guru Prerna Corporation, A/205, Western Edge II, Western Express Highway Behind Metro Mall, Borivali (East) Mumbai-400066.

8.      MANSUKHBHAI JAYANTIBHAI KOTHARI, Partner, Guru Prerna Corporation, A/205, Western Edge II, Western Express Highway Behind Metro Mall, Borivali (East) Mumbai-400066.

9.      CHETNA PATEL, Partner, Guru Prerna Corporation, A/205, Western Edge II, Western Express Highway Behind Metro Mall, Borivali (East) Mumbai-400066.

10.    MANSUKHBHAI ARJUNBHAI SUREJA, Partner, Guru Prerna Corporation, A/205, Western Edge II, Western Express Highway Behind Metro Mall, Borivali (East) Mumbai-400066.

…..Opposite Parties.

 

 

BEFORE:

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT MR.RAJESH K. ARYA, MEMBER

 

 

Argued by :-­

 

Sh. Jatin Bansal, Advocate for the complainants.    

Sh. Nitin Bhasin, Advocate for opposite parties No.1, 3, 4 & 5.

Opposite parties No.2, 6, 7, 8, 9 & 10 exparte vide order dated 28.08.2023.

 

PER  RAJESH  K. ARYA, MEMBER

Brief facts:-

                   The complainants were looking to purchase a flat/residential accommodation for their elder son who was planning to open a business in Mumbai. Kanakia Spaces Realty Private Limited i.e Opposite Party No.1 in partnership-cum-collaboration with Guru Prerna Corporation i.e Opposite Party No.2 purported to develop 'KANAKIA RAINFOREST' at Village Marol, Konkan, Andheri, Mumbai Suburban, Maharashtra.

2]                In the year 2014, the Opposite parties  approached the complainants projecting themselves to be a nation-wide reputed real estate developers and promoters and gave a mendacious presentation, with bundle of bogus, false-hearted promises and deceptive assurances that their project is one of its kind and best suitable for family residence with all the amenities. The complainants being enticed and allured wrongly deeming the opposite parties  as a scrupulous developer, and false assurances that the possession would be handed over within 24 months of the issuance of the booking, in the year of 2014 applied for the allotment of 1 BHK Unit having carpet area of 414 sq. ft. No.1404, 14^th Floor in Wing J, Kanakia Rainforest at fixed consideration of ₹1,09,49,380/- (excludes stamp duty, registration charges, service tax and other charges). The application of the complainants was duly accepted by the Opposite parties and accordingly, vide E-mail dated 21.07.2014, the Opposite parties sought the details of the complainant and provided the payment plan schedule towards the installments. Further vide Email dated 23.07.2014, the Opposite parties informed the Complainants that they have fixed ₹1,09,49,380/- (excludes stamp duty, registration charges, service tax and other charges) as the total sales consideration. The installments were linked with the stage of construction and development of the project and were duly paid in lieu of the opposite parties duly complying its obligations to complete and develop the entire project by the year 2016. The Complainants promptly started depositing the payments of the installments to the Opposite parties as per the given payment schedule. Despite assurance given that the receipts for the payments made would be couriered to the Complainants' address, the same were never received by the Complainants. The complainants neither received any initiation of Buyer's Agreement nor any Letter of Intent or Memorandum of Agreement, etc. from the Opposite parties. In absence of the above stated documents, the Complainants did not want to continue the payments further but were misled into making further deposits by the Opposite parties false and deceptive claims that failing the further subsequent payments of deposits, the Complainants would be penalized and its standard industry practice to execute the agreement on deposit of atleast 25% of total sales consideration.

3]                The Opposite parties issued a Letter of earmarking of area for the Flat dated 27.05.2015 to the complainants admitting receipt of ₹21,50,000/- which they have set off as earnest money and stated that Letter of Intent along with detailed terms and conditions shall be issued to the complainants shortly. Thereto, the complainant again persuaded the opposite parties for issuance of Letter of Intent, upon multiple request the Opposite parties sent an E-mail dated 17.06.2015 stating that they have couriered a copy of signed Letter of Intent for flat no.J 1404, Kanakia Rainforest at the permanent address of the complainants and the same shall be received in a day or two, however, the same was never received by the complainants. The Opposite parties were not even able to complete the process of excavation till May 2016 yet they brazenly continued to send demand letters to the complainants for the payments of the installments.

4]                The possession of the said flat was supposed to be offered by the Opposite parties in the year 2016, which was miserably delayed as by that time, only 2^nd slab was completed. The delay tactics and narrative of raising demand letters by the Opposite parties continued for the year 2017 also and they fraudulently concealed a material fact that the land on which the project was being developed was under litigation dispute and they made the complainants to deposit a total amount of ₹71,85,000/-, i.e. 65% of the total sale consideration yet no buyer's agreement was executed. Even after delay on the part of Opposite parties, the complainants continued making the payments which were raised illicitly against the said unit in the hopes that the Opposite parties would make good on their some of assurances and complete the project in time. Even after the complainants had complied with all the formalities and after making all the necessary payments, the Opposite Parties continued to delay the project and did not offer the possession of Flat No.J-1404 to the complainants. The Opposite Parties in a very conniving and scheming manner asked the Complainants vide email dated 09.07.2018 to execute and register an agreement for sale in accordance with the Real Estate (Regulation and Development) Act, 2016 and in the draft agreement, they mentioned the period of delivery of possession of unit in question as 4 years from the date of execution of the said Agreement. Therefore, the complainants did not enter into new agreement as the Opposite Parties unilaterally changed the essential terms and conditions of the already made agreement of Year 2014. The Opposite Parties continued demanding further deposits illicitly and the complainants still duly complied with all and continued paying the installments in the hope and aspiration that the possession of unit would be finally delivered to them and all their misery will eventually end. In the year 2020, the Opposite Parties falsified and misstated to the complainants that the development work of the project is near completion and under the cloak of handing over the possession, wrongfully enticing the complainants to make further deposits towards the total sales consideration of the unit. By the date 29.01.2020, the complainants had already paid ₹1,18,91,887/- to the Opposite Parties, which forms more than 95% of the total sales consideration.

5]                The residential unit, which was supposed to be delivered by the Opposite Parties in the year 2016, was finally offered to the complainants vide email dated 01.07.2020 i.e. after 4 years of the scheduled possession and 6 years of the booking and such an offer was mere a paper possession with demand of additional charges for common facilities like, IT Centre, Yoga area, clubs, parks etc. and on inquiries made by the complainants these facilities were nowhere to be found. The offer of possession on 01.07.2020 was made without obtaining the Completion Certificate and Occupancy Certificate as required by the law. The complainants could not wait in perpetuity for the possession of the aforesaid unit and had already waited for long duration in the hope that the Opposite Parties would deliver on their promises and assurances. Left with no other choice, they were constrained to withdraw from the Project on account of the Opposite Parties' failure to complete the project with all the amenities eligible for possession and accordingly, vide email dated 04.12.2020 requested the opposite parties to cancel the booking. It was assured by the Opposite Parties that the entire deposited amount would be refunded at the earliest without any deduction in whatsoever manner. However, after a gap of 6 months, the Opposite Parties initiated the partial refund of the deposited amount and deducted an amount of ₹22,19,650/- from ₹1,18,91,887/- on account of loss of sale, expense of brokerage with incentive payment against flat and interest on delay payment, falsely stating that the same were made as agreed by the complainants. Finally, being aggrieved by the illicit and arbitrary actions of the Opposite Parties, the complainants were constrained to issue a legal notice dated 01.08.2022 to the Opposite Parties asking for refund of the remaining amount alongwith interest. However, the Opposite Parties, on 06.09.2022, vide their reply to the legal notice, out rightly in very clandestine manner denied the claims of the complainants stating that they are not able to verify the particulars of the complainants and in absence of any cogent document, they denied the claims. The said  email  dated 06.09.2022 was duly replied by the complainants vide email dated 07.09.2022. The complainants tried reaching the Opposite Parties multiple times but to no avail.

 

Relief claimed:

6]                Alleging above acts of the opposite parties as deficiency in rendering service and unfair trade practice on their part, this complaint has been filed seeking following directions to the opposite parties:-

1. to set aside the unfair terms and conditions of letter dated 28.05.2015, Exhibit C-7 specifically clause 2 wherein exorbitant amount of ₹21,50,000/- has been classified as earnest money;
2. to refund ₹22,19,650/- alongwith interest @18% p.a.;
3. pay additional interest @18% p.a. on the total deposited amount of ₹1,18,91,887/- from the respective dates of deposits till its realization;
4. pay ₹5 Lakhs as compensation for mental harassment, and
5. pay ₹1 Lakh as costs of litigation.

7]                It may be stated here that the opposite parties No.2, 4, 6 to 10, when despite due service, did not appear before this Commission, they were proceeded against exparte vide order dated 28.08.2023. However, on 01.09.2023, Counsel for opposite parties No.1, 3 & 5 also put in appearance on behalf of opposite party No.4 by filing Vakalatnama and the Counsel was permitted to join the proceedings. Counsel adopted the reply filed by opposite parties No.1, 3 & 5 on behalf of opposite party No.4.

Reply of opposite parties No.1, 3 & 5 (adopted by opposite party No.4 also):-

1.                 Opposite parties in their joint written reply, while admitting factual matrix of the case with regard to sale and allotment of the unit in question to the complainants in the project in question; payments made by them as mentioned in the complaint etc. took various objections/pleas to the effect that the complainants being investors do not fall within the definition of consumer; that the complaint is time barred being filed beyond the period of limitation; that this Commission does not have the territorial jurisdiction to adjudicate the complaint as the project in question is situated in Mumbai in the State of Maharashtra whereas the complainant was residing in Punjab at the time of booking and is continually residing at the same place and they had recently made unregistered rent agreement at Chandigarh in order to fall under the jurisdiction clause but Aadhaar card justified the address of Patiala in the State of Punjab and that the project in question is governed by the provisions of Real Estate (Regulation and Development) Act, 2016 and as such, Real Estate Regulatory Authority  can look into the grievance of the complainants. However, on merits of the case, it has been stated that opposite parties No.1, 3, 4 & 5 made numerous calls and mailed to the complainants to come forward for registration of the agreement for sale but they never came forward. It has further been stated that opposite parties No.1, 3, 4 & 5 had emailed the complainants providing the details about payment schedule w.r.t the flat in question, as per which, the total sale consideration was ₹1,28,06,346 (which includes consideration amount of ₹1,09,49,380/- + Other charges as ₹8,64,000/- + Stamp duty & Registration charges as ₹10,92,346/-). It has further been stated that  as per the signed allotment letter sent to the complainants, the amount paid by the complainants i.e. ₹21,50,000/- was considered as earnest money and the balance amount of ₹87,99,380/- was payable against the flat, totaling ₹1,09,49,380/- (₹21,50,000/- + ₹87,99,380/-). It has further been stated that signed LOI was sent to the complainants at their Punjab address. It has further been stated that the complainants failed to deposit the due amount as delayed in payment as per the scheduled time. It has further been stated that even then opposite parties No.1, 3, 4 & 5 offered for possession but the complainants failed to take the possession. It has further been stated that vide email dated 04.12.2020, the complainants requested opposite parties No.1, 3, 4 & 5 that they do not wish to go ahead with the purchase of the flat due to financial constrains and accordingly, wanted to opt for cancellation. It has further been stated that the complainants accepted and signed the cancellation letter dated 18.01.2021 wherein they agreed to deduct 5% of the consideration amount towards administrative cost. It has further been stated that it was only after conformation from the complainants to deduct the said amount, amount of ₹22,19,650/- was deducted towards (loss of sale, brokerage with incentive payment against the said flat, interest on delay payment) and ₹96,72,237/- was refunded vide RTGS to the complainants. While denying the rest of the averments made in the complaint, opposite parties No.1, 3, 4 & 5 have prayed for dismissal of the complaint.
2.  
3.                 In the rejoinder filed, the complainants reiterated all the averments contained in the complaint and controverted those contained in written reply of contesting opposite parties.  
4.               The parties led evidence, in support of their case and also filed written arguments.
5.               We have heard the Counsel for the parties and have gone through the evidence and record of this case, including the written arguments, very carefully.
6.               First of all we deal with the preliminary objections raised by the contesting opposite parties as under:-

Whether the complainants are consumer or not?

1.               First coming to the objection taken by opposite parties No.1, 3, 4 & 5 to the effect that the complainants do not fall within the definition of ‘consumer’, it is significant to mention here that the opposite parties have failed to place on record any cogent and convincing evidence in support of this objection. To prove the objection that the unit in question has been purchased by the complainants to indulge in ‘purchase and sale of units’ i.e. for earning profits, the onus lays upon the opposite parties but they failed to do so. Thus, because in the present case, the opposite parties failed to discharge their onus, therefore, we hold that the complainants definitely fall under the definition of consumer as defined under the Act. Our this view is supported by the observations made by the Hon’ble National Commission in Kavit Ahuja vs. Shipra Estates, I (2016) CPJ 31. As such, objection taken in this regard stands rejected.

Whether the complaint is time barred being filed beyond the period of limitation?

14]              The answer to this objection raised by opposite parties No.1, 3, 4 & 5 is in the negative. Certainly, as per the provisions of Section 69 of Consumer protection Act, 2019, the complaint is to be filed within a period of two years from the date on which the cause of action has arisen. It is coming out of record that vide email dated 04.12.2020, Exhibit C-15, the complainants requested the opposite parties to cancel the flat in question and also raised no objection for selling the said flat by the opposite parties. Further bare perusal of email dated 30.12.2020, Exhibit C-16, transpires that the complainants received refund of ₹5 Lakhs on 29.12.2020 in the account of Charu Aggarwal in respect of cancellation of the flat in question as per telephonic conversation and asked the opposite parties to tell the mode of refund of balance payment. Subsequently on receiving refund of ₹96,72,237/- out of the amount paid by the complainants, the complainants vide email dated 23.05.2021, Annexure C-17, requested the opposite parties to clear the balance amount and also put forth their grievance of not receiving any response to earlier communications. Another similar email dated 08.06.2021, Exhibit C-18, was sent by the complainants to the opposite parties, which was replied to by the opposite parties only on 29.06.2021, Exhibit C-19, whereby they explained the deduction of ₹22,19,650/- to the complainants. In the instant case, the cause of action is a continuing one, firstly on account of the fact that the possession was not offered by the stipulated period i.e. Year 2016 and continued till December 2020, when the complainants sought refund of their amount and secondly, the cause of action arose to the complainants on 29.06.2021, when the opposite parties sent email justifying their deduction, which the complainants have challenged by way of filing the present complaint. Therefore, the cause of auction being continuing one, the present complaint having been filed on 14.07.2023 is within limitation and the objection raised stands rejected.  

Whether this Commission has the territorial jurisdiction to adjudicate the present complaint?

15]            This objection has been raised on the ground that the complainant was residing in Punjab at the time of booking and is continually residing at the same place and they have recently made unregistered rent agreement at Chandigarh in order to fall under the jurisdiction clause. We have gone through the original Rent Agreement dated 09.05.2023, which the Counsel for the complainants placed on record during the course of arguments. Perusal of the same transpires that the same is executed at Chandigarh on 09.05.2023 and has been attested as identified by Notary Public, Chandigarh. It is also witnessed by two witnesses namely Sahil Sharma and Navdeep Singh. It has been executed between Richa Aggarwal D/o Rakesh Kumar Aggarwal R/o H.No.3115, Sector 38D, Chandigarh and Sh. Kamal Aggarwal, complainant No.1 vide which, the complainants have taken First Floor of the said house on rent from Richa Aggarwal. In the complaint, same address i.e. H.No.3115, Sector 38D, Chandigarh has been mentioned. Therefore, saying at this stage by the opposite parties that the rent agreement has been executed only for the purpose to bring the dispute within the territorial jurisdiction of this Commission is an afterthought. Section 47(4)(d) of Consumer Protection Act, 2019 stipulated that a complaint shall be instituted in a State Commission within the limits of whose jurisdiction the complainant resides or personally works for gain. Since, the complainants have been residing at Chandigarh on rented accommodation since May 2023, therefore, the objection raised by opposite parties No,1 3, 4 & 5 stands rejected. 

Observations/findings of this Commission.

1.               It is clear case of admitted deficiency in rendering service and unfair trade practice on the part of opposite parties as out of the total amount of ₹1,18,91,887/- paid by the complainants, the opposite parties have already refunded an amount of ₹96,72,237/- to the complainants without giving any interest thereupon, before filing of the present complaint before this Commission and the dispute remains qua the non-refund of remaining amount of ₹22,19,650/-, which the opposite parties have deducted on account of loss of sale, brokerage with incentive payment against flat and interest on delay payment, as per email dated 29.06.2021, Exhibit C-19 and claim of interest by the complainants on the entire amount of ₹1,18,91,887/-.
2.               First addressing the grievance of the complainants with regard to deduction of ₹22,19,650/- by the opposite parties out of the total amount of ₹1,18,91,887/- on account of loss of sale, brokerage with incentive payment against flat and interest on delay payment, it may be stated here that the deduction done by the opposite parties is totally illegal, wrong and arbitrary for the reasons to be recorded hereinafter. It is coming out of the record that vide email dated 21.07.2014, Annexure C-2, the opposite parties demanded copy of pan card and residence proof of the complainants and intimated them the payment schedule, according to which, the payments to be made were stage linked, starting from initial token up-to the time of notice of possession. Subsequently, the opposite parties blocked the flat in question for the complainants subject to approval of plans of the proposed building for the lumpsum consideration of ₹1,09,49,380/- alongwith all taxes as applicable from time to time and also acknowledged the receipt of ₹21,50,000/-as interest free earnest money and the  complainants were required to pay the remaining amount of ₹87,99,380/- as per the payment schedule. In Para 6 of this email, it was stated that in case of substantial delay in sanctioning of plans or including any unforeseen circumstances, beyond their control, the opposite parts had the full right to cancel the earmarking of the said unit and in that eventuality, the full amount paid by the complainants would be refunded alongwith interest @12% p.a. from the date of this earmarking as full and final settlement. Further, as per email dated 02.05.2016, Exhibit C-10, which is pre intimation of the demand schedule, the tentative date for completion of excavation of the Wing J, wherein the unit of the complainants was blocked, was 09.05.2016. Despite the fact that the period of excavation had already gone and there was no development at the site, the opposite parties, in the month of July 2018 i.e. after more than two years vide letter dated 06.07.2018, sent through their email dated 09.07.2018, Exhibit C-11, asked the complainants to come forward for execution and registration of agreement for sale immediately. Admittedly, the unit in question, which was supposed to be delivered by the Opposite Parties in the year 2016, was finally offered to the complainants vide email dated 01.07.2020, Exhibit C-13, i.e. after 4 years of the scheduled possession and six years of the booking and the same was mere a paper possession for want of common facilities like, Business Centre, Yoga area, clubs, parks etc. at the site. It is the case of the complainants that vide the intended sale agreement, the opposite parties unilaterally extended the time period of possession by further four years, which also amounted to unilateral novation of contract against the law as the terms and conditions of possession were mutually agreed at the time of booking. It may be stated here that incorporating or introducing new terms and conditions in the agreement subsequently amounted to unfair trade practice on the part of the opposite parties and an unfair contract, which cannot be permitted in any case. It is well settled law that a court can strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between the parties who are not equal in bargaining power. The consideration or object of an agreement is unlawful inter-alia if it is of such a nature that, if permitted, it would defeat the provisions of any law or if the court regards it as immoral or opposed to public policy. If the object of some terms and conditions of agreement is unlawful, the same are deemed to be void. Our this view is supported by the judgment passed by the Hon'ble Supreme court in the case of Central Inland Water Transport Corporation Ltd. & Anr. Vs. Brojo Nath Ganguly & Ors. (1986) 3 SCC 156 wherein it has been clearly held that the courts can strike down the terms of a contract. The Hon'ble Court has held that "......this principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between the parties who are not equal in bargaining power...." The draft legislation provided by the Law Commission of India in its 199th Report which addresses the issue of 'Unfair  (Procedural & Substantive) Terms in Contract' has stated  that "A contract or a term thereof is substantively unfair if such contract or the term thereof is in itself harsh, oppressive or unconscionable to one of the parties."  The above view has been reiterated by the Hon'ble Supreme Court in Pioneer Urban Land and Infrastructure Ltd. vs. Gouvindan Raghavan Civil Appeal No.12238/2018 wherein in paragraph nos. 3.8, 6.3, 6.6 & 6.7, it has been clearly held that if the terms of contract are harsh, oppressive and unconscionable to one of the parties, such a contract cannot be relied upon and Courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. Further, perusal of letter dated 27.05.2015, Exhibit C-7, transpires that in the said letter, the date of completion of development of the project was not specified and nothing therein has been mentioned qua compensating the complainants in case of delay in delivery of physical possession of the unit in question. However, while admitting the receipt of ₹21,50,000/-, the opposite parties, unilaterally and arbitrarily without issuance of any letter of intent or execution of buyer’s agreement, set off the said amount as earnest money, which was totally unfair on the part of the opposite parties as the terms of the said letter are one sided as in the said letter, the earmarking was subject to approval of plans from the concerned authorities and it was further stated that the detailed letter of the proposed sale of the said flat shall be issued in the format of standard letter of intent alongwith the detailed terms and conditions in due course. Thus, the opposite parties violated the provisions of Section 18(1) of the Real Estates (Regulation and Development) Act, 2016, which, inter-alia, reads that “If the promoter fails to complete or is unable to give possession of an apartment, plot or building,— (a) in accordance with the terms of the agreement for sale or, as the case may be, duly completed by the date specified therein; or (b) due to discontinuance of his business as a developer on account of suspension or revocation of the registration under this Act or for any other reason, he shall be liable on demand to the allottees, in case the allottee wishes to withdraw from the project, without prejudice to any other remedy available, to return the amount received by him in respect of that apartment, plot, building, as the case may be, with interest at such rate as may be prescribed in this behalf including compensation in the manner as provided under this Act: Provided that where an allottee does not intend to withdraw from the project, he shall be paid, by the promoter, interest for every month of delay, till the handing over of the possession, at such rate as may be prescribed.”
3.               In the instant case, firstly, the opposite parties were under the obligation to handover the possession by 2016 after obtaining completion and occupation certificate which they have failed to do and secondly, even after taking more than 95% of the total sale consideration, deliberately did not execute any agreement in order to safeguard themselves from the violation of applicable statutory rules and regulations. The delay of more than 8 years in handing over the possession was solely attributable to the deficiencies on the part of the opposite parties. The alleged offer of possession vide email dated 01.07.2020, Annexure C-13, was made after delay of four years of the scheduled possession and six years of the booking and such delayed offer of possession after expiry of the due date, could not be imposed unilaterally by the opposite parties on the complainants. Thus, in the absence of any development at the site and completion and occupation certificate, the complainants rightly sought cancellation of the unit and sought refund. It is entirely up to the buyer if he wishes to take possession of the unit or seek refund with appropriate compensation. This view of ours is supported by the judgment of Hon’ble Supreme Court in Newtech Promoters and Developers Pvt. Ltd. Vs. State of U.P. & Ors. Etc., Civil Appeal No.6745-6749 of 2021 decided on 11.11.2021, wherein it has been held that if the promoter fails to give possession of the unit within the time stipulated, the allottee holds an unconditional absolute right to refund on demand. Accordingly, the complainants attained unconditional absolute right of refund alongwith interest and the opposite parties could not deduct any amount on any account. In a very clandestine manner, in order to dupe the complainants, the opposite parties have deducted ₹22,19,650/- but they have failed to adduce any documentary evidence qua any loss suffered by them as pleaded. Rather, the complainants were put to huge financial loss and immense harassment and mental agony as their hard earned money was utilized by the opposite parties for the period from 2014 and the complainants remained without possession till 04.12.2020, on which date, they requested the opposite parties to cancel the allotment and an amount of ₹22,19,650/- has been arbitrarily and illegally deducted by the opposite parties, which they are liable to refund alongwith interest. Our view is supported by the judgment of Hon’ble Supreme Court in case titled Satish Batra Vs. Sudhir Rawal, (2013) 1 SCC 345 wherein, it has been held that “no deduction can be processed by the promoter/builder on account of refund sought by any allottee due to inordinate delay in delivery of possession of the unit”. Further in view of law laid down by Hon’ble Apex Court in M/s Fortune Infrastructure (Now known as M/s Hicon Infrastructures ) & anr. Vs. Trevor D’Lima & Ors., (2018) 5 SCC 442, the onus was on the opposite parties to show their best efforts and bona fides in discharging the obligation, in which, they have miserably failed and the complainants could not be made to wait indefinitely for the possession of the flat allotted to them and they are entitled to seek the refund amount alongwith compensation. Therefore, the opposite parties were not entitled to deduct/forfeit any amount out of the total amount paid by the complainants in the absence of valid offer of possession within reasonable time period.
4.               Now coming to the claim of the complainants with regard to interest on the amount of ₹96,72,237/-, already refunded by the opposite parties during the period 28.12.2020 to 14.05.2021, through RTGS, as per detail given in letter dated 29.06.221, Exhibit C-19, it may be stated here that once it is held that the possession offered was incomplete and only a paper possession and without occupation and completion certificate and beyond the stipulated period of handing over the same, the opposite parties are very much liable to pay interest on the aforesaid amount of ₹96,72,237/- from the respective dates of its deposit till the dates of their refund to the complainants.
5.               In our opinion, interest @9% p.a., if granted to the complainants, from the respective dates of deposits of the amount(s), keeping in view the law laid down by the Hon’ble Supreme Court of India in Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, Civil Appeal No.6044 of 2019, decided on 7.4.2022, would meet the ends of justice.

 

Relief granted by this Commission:-

21]              For the reasons recorded above, this complaint is partly accepted with costs and the opposite parties, jointly and severally, are held liable and directed as under:-

1. To refund an amount of ₹22,19,650/- to the complainants alongwith interest @9% p.a. from the respective dates of its deposit till actual realization within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount shall carry interest @12% p.a. from the date of default i.e. after expiry of 30 days’ period till this entire accumulated amount is paid to the complainants.
2. To pay to the complainants, interest @9% p.a. on the amount of ₹96,72,237/- [already refunded to the complainants], from the respective dates of its deposit till the date(s) of its refund as given in letter 29.06.2021, Exhibit C-19, within a period of 30 days from the date of receipt of a certified copy of this order, failing which, thereafter they shall be liable to pay penalty @Rs.500/- per day, over and above the said payment of interest, from the date of default i.e. after expiry of 30 days’ period till realization.
3. To pay to the complainants, compensation to the tune of ₹1,00,000/- for causing them mental agony and harassment and also for deficiency in providing service and adoption of unfair trade practice and cost of litigation to the tune of ₹35,000/- within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amounts shall carry interest @9% p.a. from the date of default i.e. after expiry of 30 days’ period till realization.

22]              Certified copies of this order be sent to the parties free of charge.

 

23]              File be consigned to Record Room after completion.

Pronounced.

28.12.2023

 

[RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

 (RAJESH K. ARYA)

MEMBER

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