DR.INDER JIT SINGH, MEMBER

1. The present Consumer Complaint (CC) has been filed by the Complainants against Opposite Parties (OPs) as detailed above, inter alia praying for directions to the OPs to:-

1. to provide flat as per Annexure II of the buyers agreement and vastu as desired by complainants which physically exists, in case of failure, to refund the whole amount of ₹52,12,632/- along with interest at the rate of 18% per annum.

2. refund the excess amount of VAT Rs.1,46,636 along with interest at the rate of 18% per annum.

3. pay interest at the rate of 18% per annum on the total amount       Rs.1,16,19,048/- from the date of filing the complaint.

2. Notice was issued to the OPs.  Parties filed Written Statement/Reply, Rejoinder, Evidence by way of an Affidavit and Written Arguments/Synopsis etc. as per details given in the Table at Annexure-A.  The details of the flats allotted to the Complainant(s)/other relevant details, based on pleadings of the parties and other records of the case are also given in the Table at Annexure- A.

3. It is averred/stated in the Complaint that: -

1. On 6th March 2010, the complainants booked a flat in the project of the OPs Indiabulls Centrum Park, Sector 103, Gurugram, Haryana and were allotted a flat number H-052 at 5th floor as per Annexure-II of the buyers agreement vide allotment letter dated 09.10.2010. Subsequently a flat buyers’ agreement (FBA) was executed on 26th June 2010. The complainants had paid full amount of ₹52,12,636/- to the OPs as full and final payment of the price on 26th June 2015.

2. When the complainants went to take the position of the flat, the complainants were shocked to see that the OPs have changed the flat number H-052 which was shown to them earlier on the commencement of the construction as per original specifications of Annexure-II of the Agreement. The flat as per the agreement exists at the same location and with same vastu as desired by the complainants. The OPs are not giving the possession of the flat as per Annexure-II of the agreement, which amounts of breach of agreement, deficiency of service, dishonesty and also inducing the complainants to take possession of changed flat which is not as per an Annexure-II of the agreement.

3. The OPs have increased the area of the flat from 1385 square feet to 1449 square feet without the consent of the complainants.

4. The promised/requisite facilities like club-house, electricity supply of Haryana Vidyut Prasaran Nigam, water supply of drinking water from public health department, road infrastructure to connect the highway etc. are not available.

4. The OP-1 in their written statement/reply stated that:

1. OP-1 is not a party to the application form or flat buyers agreement, no documents or agreement have been executed between the complainants and OP-1, there is no legal relationship or privity of contract between the complainants and OP-1. The complaint is bad for mis-joinder of parties as OP-1 is neither the correct nor necessary party to the present complaint.

2. Complainants do not qualify to be consumers, no consideration has been paid by the complainants to OP-1 for availing any services and there is no deficiency in service/quality  by OP-1. OP-1 never received any moneys from the present complainants nor has it issued any receipts to the complainants.  OP-1 is not part of the project, it has never issued any emails, it has not played any role in its construction, no promises, assurances were given by OP-1 to the complainants with respect to the present project.

5. The OP-2 in their written statement/reply stated that: -

1. in pursuance to flat buyers agreement dated 26 June 2010, OP-2 issued an allotment letter dated 9th October 2010,  for a flat measuring 1385 square feet to the complainants in Indiabulls Centrum Park.

2. the complainants  failed to make timely payments and also failed to discharge his obligations under the agreement. OP-2 issued several reminders as well as demand letters on various dates.

3. OP-2 issue demand letter cum offer of handing possession letter dated 11th June 2015, with the due date of 2nd July 2015. However even after several follow ups the complainants failed to proceed with the registration and physical handover of the said unit.

4. OP-2 is not a party to the application form or flat buyers agreement, there is no document or agreement that has been executed between the complainants and the OP-2, there is no legal relationship or privity of contract between the complainants and OP-2, there is no contract between OP-2 and complainants and no alleged cause of action qua OP-2 has arisen.
5. The complainants do not qualify to be the consumers, no consideration has been paid by the complainants to OP-2 for availing any services and there is no deficiency in service qua OP-2, it is not a party to the contract for reservation of flat in question, thus OP-2 cannot be held liable for any alleged deficiency or unfair trade practice committed against complainants by the opposite party.

6. The complaint suffers from several technical defects, complainants are investors with the sole motive of reaping financial benefits out of sale of the property in question complainants are guilty of committing delays in payments, Complainants are speculative investors.

7. As per agreement, OP-2 was bound to complete the construction of the flat in question within a period of 3 years, with 6 months grace period from the date of execution of the agreement, delay caused by OP-2 has led the complainants to seek refund of the amount deposited. For any delay, OP-2 is to pay a penalty of sum of ₹5/-per square feet per month for the period of the delay. As per agreement OP-2 reserves the right of final reallocation of the flat during the course of construction.

8. As per agreement the obligations of the parties are to be settled amicably by mutual discussion, failing which, the same are to be settled through arbitration, hence the dispute in question needs to be referred to arbitration.

9. The present complaint is barred by limitation, OP-2 offered the possession to the complainants on 11th June 2015, complainants failed to proceed with their pre-registration activity and later filed the complaint on 9th may 2018. The cause of action, if any, for the complainants to approach this Commission had arisen on the said date itself, the complainants ought to have approached this Commission within a maximum of 2 years from the said date.

6.  Complainants in their rejoinder stated that: -

1. The complainants made timely payments and never failed to discharge their obligations, the reminders mentioned are only the intimation letters indicating the stages of constructions completed, the main letter regarding offer of possession is dated 24th June 2015. The complainants could not take the possession and proceed for registration because the OPs were not giving possession of the flat as per Annexure-II of the agreement (with L shaped balcony) with the master bedroom, the complainants made various correspondences with OPs in this regard. The complainants are not investors and are genuine buyers and actual end users of the flat for residence of their family. The complainants have made full and final payment of ₹52,12,632/- for the price of the flat.

2. The complainants are willing to take possession of the flat as per flat buyers agreement and Annexure-II of the said agreement and have been requesting the OPs for the last 3 years to provide the same.

3. The complaint is not barred by limitation, the OPs sent the final letter dated 2nd January 2018 denying to admit the claim of the complainants, hence the applicable date from which the limitation period starts is 2nd January 2018. The cause of action has arisen on 9th November 2017 and 2nd January 2018 on final refusal by the OPs to admit this claim of the complainants.

7. Heard learned counsels of both sides.  Contentions/pleas of the parties, on various issues raised in the Complaint, based on their Complaint/Reply, Rejoinder, Evidence, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

8.  It was argued by the OPs that they had duly received the occupation certificate (OC) on 21st April 2015, which was well within the stipulated time period as per flat buyers agreement and hence complainants can raise no grievance regarding delay in offering possession of the property in question.

9. Complainants on the other hand argued that as per provisions of the agreement if the developer is not in a position to give possession of the unit, the buyer shall have no claim of any kind whatsoever against the developer except to the refund of the amount paid with simple interest at the rate of 9% per annum till the date of refund, The flat was chosen as per vastu consideration of the buyer, actual flat as per the agreement and unit plans provided at the time of registration indicates that H Tower Unit Plan exists but has not been offered for possession whereas the flat physically exists and no prior approval/information was given to the complainants for the change of flat layout, flat increase area and position of the flat and change of vastu of the flat. During the course of construction and before handing over the possession the representative of the OPs showed the same unit as shown in the unit plan.

10.  The objection that the Complaint is barred by limitation is not accepted. It was held by the Hon’ble Supreme Court in Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 that failure to deliver possession of the flat constitutes a recurring cause of action. The OPs have failed to deliver the possession of the unit to the complainants till date as was promised in the agreement, i.e. one with L-shaped balcony, which the complainants perceives to have vastu feature, and is still willing to take possession of such unit if offered and for which he has been making repeated requests/correspondence with the OPs. Therefore, the cause of action is continuing. The contention that complainants are not consumers as they are investors with the sole motive of reaping financial benefits and are the speculative investors is also rejected as no such evidence has been adduced by the OPs in this regard. It has been observed by this Commission in various cases. (Kavita Ahuja Vs. Shipra Estates Ltd., CC 137 of 2010, decided on 12.02.2015, Santosh Jafari Vs. M/s Unitech Ltd., CC 429 of 2014, and connected cases decided on 08.06.2015, Aloke Anand Vs. M/s Ireo Pvt. Ltd. & Ors., CC No. 1277 of 2017 decided on 01.11.2021, that purchase of a house can only be for a ‘commercial purpose’ if the purchaser is engaged in the business of purchasing and selling houses or plots on a regular basis, solely with a view to make profit  by way of sale of such houses, if the house is purchased purely as an investment and the purchaser is not undertaking the trading of houses on regular basis, then it would be difficult to say that he had purchased it for commercial purpose.  The plea of OPs that delay was due to force majeure circumstances is not valid as even after a gap of more than 9 years from the committed date given in the ABA, possession of flat has not been given.  There is no documentary evidence to support the contention of the Opposite Parties that the reasons pleaded by them, can be construed as ‘Force Majeure. The contention of the OPs that the parties are bound by the agreement is also not acceptable. Plea of the OPs for Arbitration as per conditions in the Agreement is also not accepted. It was held by Hon’ble Supreme Court in Imperia Structures Ltd. Vs. Anil Patni & Anr. (2020) 10 SCC 783, the remedies under the Consumer Protection Act are in addition to the remedies available under special statue. A perusal of the application form shows that it is issued by Selene Construction Ltd. (OP-2), which is shown as subsidiary of Indiabulls Real Estate Ltd. (OP-1). Further, allotment letter dated 9th October 2010 shows that it is signed by the authorised signatory of Selene Constructions Ltd. (OP-2) and it is on the letterhead of Indiabulls. The flat buyers agreement is signed between Selene Construction Ltd. i.e. OP-2 and the complainants, but in their written statement, OP-2, mindlessly copying the contentions of OP-1, states that OP-2 is not a party to the application form or flat buyers agreement, no document or agreement has been executed between the complainants and OP-2, there is no legal relationship or privity of contract between the complainants and OP-2, there is no contract between OP-2 and complainants and no cause of action qua OP-2 has arisen in favour of complainants, complaint is bad for mis-joinder of parties as OP-2 is neither a correct nor necessary party to the present complaint and hence the complaint is bad for mis-joinder  of parties, complainants do not qualify to be consumers  qua  OP-2 in the light of fact that no consideration has been paid by the complainants to OP-2 for availing any services. It is to be noted that the written statement has been filed through one Mr. Sushil Singh, both in case of OP-1 and OP-2.

11. The main dispute in the present case is that the complainants allege is that they have not been provided the promised flat, which according to them was with a L-shaped balcony with the master bedroom with vastu features as per the approved layout plan attached as Annexure-II of the flat buyers agreement. They contended during the oral hearing that although the OP has kept the same unit number that is H-052, they have actually been allotted the opposite side unit which does not have L-shaped balcony and vastu features as promised in the agreement. Hence their demand is that either OP gives them the promised unit with L-shaped balcony having the desired vastu features or in the alternative refund his total amount. It is  admitted by the OP that the unit offered to the complainants does not have L-shaped balcony. Perhaps due to some reduction in area due to a smaller balcony, a refund of ₹70,000/-  was also offered. In their written statement or the evidence, the OPs have not categorically stated or responded to the allegation of the complainants that they have not been given the promised unit with L-shaped balcony with the master bedroom having vastu features.

12. We find that failure on the part of the OPs to deliver the promised unit which as per Annexure-II layout plan of the flat buyers agreement has a L-shaped balcony, which the complainants perceived as a preferred location in view of its vastu features, is a deficiency in service on the part of OPs. As the OPs are not in a position to offer the unit as promised with a L-shaped balcony and having the vastu features as per complainants’ understanding, the complainants herein have a legitimate right to seek refund of the money deposited by them along with interest.

13. As regards refund of excess charged VAT, a perusal of letter dated 13.02.2017 as the OP addressed to complainants (Annexure P-11) shows the OP has collected ‘contingency deposits’ towards VAT liability from the allottees, stating that if actual amount of VAT assessed by the department is less than this, OP would refund the money and if it is more, OP shall ask for additional deposits, further it stated ‘contingency deposit for VAT’ has been revised from 4.5% of the value to 1% of the ‘Agreement Value’ and that the excess amount would be refunded to the complainants after adjusting the liability.  The working of excess credit to the account is stated to be attached with this letter, but not made part of the record.  Hence, it is clear that if any amount has been collected by the OP from the complainants towards this item, in case of refund of the principal amount towards flat cost paid by the complainants, they are also entitled to refund of amount paid under this head alongwith interest w.e.f. the date of receipt till the date of refund.

14. For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, the Consumer Complaint is allowed/disposed off with the following directions/reliefs: -

(i) The OPs shall refund the entire principal amount of Rs.52,12,632/- (Rupees fifty two lakh twelve thousand six hundred thirty two only) to the complainants, alongwith compensation in the form of simple interest @ 9% per annum from the date of each payment till the date of refund.  The principal amount refundable mentioned in this para is subject to verification of actual amount paid by the complainants based on receipts etc.

(ii) Refund excess amount collected towards contingency fund for VAT liability (if not included in the principal amount of Rs.52,12,632/- mentioned under para (i) above) alongwith interest @9%  p.a. from the date of receipt till the date of refund.

(iii) The OP(s) shall pay a sum of Rs.50,000/- as cost of litigation to the           complainants.                 

          (iv) The liability of the OP(s) shall be joint as well as several.

(v) The payment in terms of this order shall be paid within three months from today.

(vi) In case the complainants have taken loan from Bank(s)/other financial institution(s) and the same/any portion of the same is still outstanding, the refund amount will be first utilized for repaying the outstanding amount of such loans and balance will be retained by the complainants.The complainants would submit the requisite documents from the concerned bank(s)/financial institution(s) to the OP(s) four weeks from receipt of this order to enable them to issue refund cheques/drafts accordingly.

15. The pending IAs, in the Consumer Complaint, if any, also stand disposed off.