Hon'ble Mr. Kamal De, Presiding Member
Order No. : 16
Date : 15.06.2022
Complainant’s case in short is that OP IQ City Infrastructure Private Limited is a company incorporated under the provision of the Companies Act, 1956. The Complainant made an application before OP1 through OP 2 vide application form serial No. IQ03388 dated 06.01.2014 along with sum of Rs. 1,51,254/- by cheque being No. 195721 dated 06.01.2014 for allotment of a flat along with car parking. On 11.01.2014 an allotment letter was issued by OP 1 to the complainant where OP 1 agreed to sell a flat bearing No. 1B on the first floor at the block MYRTLE DELL 6, measuring super built up area of 1022 sq. ft. along with car parking space in the said multi-storied building/housing complex at a total price of Rs. 30,25,073/-.
OP 1 vide allotment letter informed that the construction would be completed in or about 30.06.2014. The complainant also availed a loan from OP 3 SBI, Digwadih Branch to the limit of Rs. 1590215/-. Complainant paid a total amount of Rs. 21,18,151/- within July 2015 as per payment schedule vide different cheques on different dates.
It is alleged that the OP 1 and 2 did not take any effective step to complete the construction job of the flat and car parking space and till date of filing the complaint the construction of the flat and car parking has not been completed.
The necessity of purchasing the flat with car parking space of the complainant has been exhausted and frustrated due to delay of delivery of possession by the OP 1 and 2 amounting to deficiency in service and unfair trade practice.
It is also stated that the complainant has been suffering great mental pain, agony and harassment.
It is also stated that due to inordinate delay in delivery of possession of the flat with car parking space, the complainants are no more is necessity to take possession of the flat and has prayed for refund of Rs. 21,18,115/- along with interest @ 18% per annum on and from 29.07.2015 (the date of latest payment) apart from Rs. 5,00,000/- as compensation. The complainant alleged unfair trade practice, deficiency in service against the OPs.
Hence this case.
OPs 1 and 2 have contested the case in filing written version contending, inter alia, that the complaint is not maintainable either in law or in fact.
It is also alleged that the complainants are not a consumer as defined under C.P. Act 1986.
It is stated that there was a delay in approval by Asansol Durgapur Development Authority in the plan and sanction thereof in terms of the MOU (Memorandum of Understanding). There has also been further delay of considerable period in granting necessary permission and approval by the concerned authority and as such way were beyond the control of answering OPs.
The OP had also started construction of Link Road from Durgapur City to the project area.
The OP had to settle the claims, litigation initiated falsely by the different parties while carrying out the development of the project.
It is alleged that the complainant claim, for completion of the flat in question by 30th June, 2014 is contrary to the expressed terms of the standard terms and condition applicable to allottees of similar units in the said project. In terms of the STC, the Apartment Zone was agreed to be constructed in a phased manner and the date of completion of the particular phase in which the allotted unit is situated was to be mentioned in the respective allotment letter executed between the OPs 1 and 2 and the concerned allottee.
It is also stated that the expected time line of completion was not a mandatory by which the construction was promised to be completed.
Time for handing over possession was never the essence of the agreement between the parties.
The complainants have admitted the fact that they have made payment till 28.07.2015 and the complainant made payment of instalment even after 30th June, 2014 and it clearly goes to show that the said date was not the definite date of completion.
It is alleged that the purpose of the instant complaint is to harass the answering OPs. The complainant has not also terminated the said agreement.
It is also alleged that the complainant has approached the Ld. Commission with unclean hands.
It is also alleged that there is an arbitration clause contending in the agreement and accordingly the complainants could not have any occasion to file the instant complaint.
The OPs 1 and 2 have denied all the allegation levelled against them and has prayed for dismissal of the case.
OP 3 also contested the case by filing written version stating that the case is not maintainable in the eyes of law against it and the same is required to be dismissed against the OP3.
It is stated that any relief, if any can be decided against OPs 1 and 2 and the complaint case should be dismissed against OP 3.
Points for decisions
- Whether the present case is maintainable in its present form and prayer?
- Whether Ops 1 and 2 are deficient in rendering service to the complainant?
- Whether Ops have committed unfair trade practice?
- Whether the complainant is entitled to get the relief as prayed for?
Issue No. 1
Ld. Lawyers appearing on behalf of the respected sides have not advanced any argument on the point of maintainability of the case. We have perused the pleadings of the parties and other documents on record. The present complaint is filed U/s. 12 of C.P. Act 1986 by allottee/complainant against Ops being Mani Square Limited and its authorised signatory having been allotted a flat being No. 1 B on the first floor at the Block MYRTLE DELL 6 measuring super built up area of 1022 sq. Ft. in the project proposed to be developed by the Ops 1 and 2.
Alleging deficiency-in-service and unfair trade practice, the complainant is before the Commission seeking refund of amount paid towards purchase of the schedule flat along with interest and cost.
In the instant case the subject units are residential dwelling units and the project is a residential housing project. The complainant is, therefore, “consumer” within the meaning of Section 2 (1) (d) of the Act 1986.
Arbitration Clause in the agreement does not bar the jurisdiction of the consumer fora to entertain the complaint.
Construction of flat which was to be constructed by the Ops on the scheduled plot numbers/site was not fully completed on the date of filing the case.
The issue regarding the arbitration clause in the agreement and the amendment in section 5 and 8 of the Arbitration and Conciliation Act (Amendment Act 2015) has been decided by the Hon’ble National Commission against the developer in Aftab Singh VS Emaar M.G.F. Land Limited - CC No. 701/2015.
The moot question arises for consideration as to whether in view of the arbitration clause a consumer forum at the behest of the developer is bound to refer the dispute to arbitral tribunal in spite of pendency of a consumer dispute.
In fact this question came up for consideration before the Hon’ble National Commission for consideration and opinion – ‘whether the consumer fora constituted under the Consumer Protection Act, 1986 are bound to refer the dispute raised in the complaint once an application U/S 8 of the Arbitration and Conciliation Act 1996 is filed by the OP seeking reference of the dispute to an arbitral proceeding in terms of valid arbitration agreement, despite the provision of Sec. 3 of the Consumer Protection Act 1986’. In answering the question, the Hon’ble National Commission after following views taken by the Hon’ble Supreme Court in a cartena of judgement and in particular “National Seeds Corporation Limited VS Madhusudan Reddy Case 2012 (2) SCC 506 has concluded consumer forum constituted under the Consumer Protection Act 1986 are not bound to refer the dispute raised in the complaint on an application filed U/S. 8 of Arbitration and conciliation Act 1996 seeking reference of the dispute to an arbitral tribunal in terms of the valid clause in the agreement entered into between the parties. The Decision of the Hon’ble Apex Court clearly indicates that the decision in the case on Rosedale Developer’s Case (Supra) was considered. In the decisions reported in 2010 (6) SCALE 294 (Om Prakash Shiny vs. DCM and Ors.) (2011) 13 SCALE 584 (Nivediate Sharma Vs. Shellular Operators Association of India and Ors.), the Hon’ble Apex Court has held that remedy available to an aggrieved person U/S. 21 of the Act is an effective alternative remedy. In view of the proposition laid down by the Hon’ble Supreme court in Rosedale Developer’s Case (Supra), the consumer fora is not bound to make a reference to the arbitral tribunal.
Existence of arbitration clause in agreement will not be a bar to the entertainment of a complaint by a consumer relating to deficiency in service and in this regard, we are fortified by the ruling reported in 2000 CTJ 321 Supreme Court (Skypark Careers Limited VS Tata Chemical Limited).
We are also fortified by the decision of the Supreme Court of India in review petition (C) Nos. 2629 – 2630 of 2018 (M/S. Emmar MGF Land Limited vs Aftab Singh).
Moreover, we also find that this Commission has both territorial and pecuniary jurisdiction to try the case.
This issue is thus decided in favour of the complainant.
Issue Nos. 2, 3 and 4
All these issues are taken up together for brevity and convenience of discussion.
Admittedly Ops could not complete the flat in question in or about 30th June, 2014.
As per documents on record the complainants had paid total amount of Rs. 21,18,151/- to the OP No. 1 but OP could not complete construction job and schedule flat and car parking space till the date of the filing of the case.
OP has stated that there was a delay in approval by Asansol Durgapur Development Authority in the plan and sanction thereof. Moreover, there has been considerable delay in getting necessary permission and approval from the concerned authority and as such the delay was beyond the control of the answering Ops.
It is also stated that OP had to construct Link Road from Durgapur City to the Project area OP had also to settle claims litigations initiated by different parties while carrying out the development of the project. But we are afraid, OP cannot take shelter of the “Force Majeure” clause. The reasons cited by the Ops for the delay of the project appear to be delayed tactics veiled as “Force Majeure” conditions and seem to be an attempt to wriggle out of its contractual obligations.
Time here is essence of contract. The expected date of delivery of possession of the schedule flat along with car parking space was in or about 30.06.2014. Admittedly Ops could not complete the schedule flat or hand over the delivery of the same along with parking space within the schedule time.
It is stated in the allotment letter “please note that construction of the said unit is expected to be completed in or about 30th June 2014”.
Hon’ble Supreme Court in the case of Irco Grace Realtech Private Ltd. VS. Abishek Khanna and Ors. (2021) 3 SCC 241 has held that such Apartment Buyers’ Agreement is one sided and the OP developer cannot compel the apartment buyer to be bound by the one sided Buyer’s Agreement.
In Bangalore Development Authority VS Syndicate Bank [2007 (6) SC 711] Hon’ble Supreme Court has held that when possession of the allotted flat/plot/house is not delivered within the specified time, the allottee is entitled to refund of the amount paid with reasonable interest thereon from date of payment till the date of return. Complainant cannot be made to wait indefinitely for the delivery of the possession and act of the OP in relying on force majeure clause while retaining amounts deposited by the complainant is not only the act of the deficiency in service but also unfair trade practice 2021 (4) CPR 320 (NC).
Failure to hand over possession within the time stipulated amounts to deficiency of service. Buyer cannot be made to wait for possession for unlimited period. Non-fulfilment of its overall responsibilities of project planning, execution and completion cannot be and are no grounds for condoning or overlooking delay in completion and failure to offer possession within the agreed and assured period.
Omnibus plea of force majeure as articulated cannot be successfully contended and argued for anything and everything related to builder Co’s failure to fulfil its responsibilities. In case of inordinate delay in offer of possession, the buyer is entitled to refund of money.
These issues are thus decided in favour of the complainant and as against the Ops 1 and 2.
[Books referred to by the parties : -
2019 (5) SCC 725, 2019 (4) C.P.J. 202 : Complainant
(2006) 5 SCC 340, (2005) 12 SCC 764, (2017) SCC 8779 and SCC (1797) 2 SCC, (1996) 4 SCC 127, (1973) SCC 87, AIR 1873 Cal 55 : Opposite Parties].
Hence,
ORDERED
That the instant Case being No. RBR/CC/20/2020 be and the same is allowed on contest. Ops 1 and 2 are directed to refund the entire amount of Rs. 21,18,151/- deposited by the complainant along with simple interest of 10% per annum with effect from respective date of each payment till the date of refund apart from litigation cost of Rs. 25,000/-.
Payments in terms of this order shall be made within two months from today failing which Ops 1 and 2 shall be liable to pay interest @ 12 per annum after the expiry of two months till compliance.
No adverse order as against OP 3.
Let a copy of this judgement be handed over to the parties free of cost.
