District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No.400/2020.
Date of Institution: 23.10.2020.
Date of Order: 28.02.2022.
Sumit Kumar Age 38 years son of Mr. S.K.Aggarwal, resident of flat No. 902, Tower B2, KLJ Greens, Block-a, Sector-77, Faridabad.
. …….Complainant……..
Versus
1. M/s. BPTP Limited, Registered office OT-14, 3rd floor, Next Door Parklands, Sector-76, Faridabad, Haryana – 121004 through Managing Director.
2. M/s. Countrywide Promoters Private Limited, Registered office M-11, Middle Circle Connaught Circus, New Delhi DL – 110001 through Managing Director.
…Opposite parties……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
Sujata Pruthi …………………………Member.
PRESENT: Sh. Rahul Rathore , counsel for the complainant.
Sh. Jai Shankar, AR on behalf of opposite parties Nos.1 & 2.
Consumer Complaint No.400/2020.
ORDER:
There are 10 complaints filed by the consumers against the BPTP
bearing No. CC/393/2020, CC/394/2020, CC/395/2020, CC/396/2020 CC/397/2020, CC/398/2020, CC/399/2020, CC/400/2020, CC/401/2020 & CC/402/2020 with the prayer: deliver the possession of the apartment alongwith registered conveyance and Occupancy Certificate to the complainant alongwith compensation for delayed possession with penalty under Clause 5.3. of Flat Buyer’s Agreement, the rate of compensation is fixed @ 5/- per sq. ft. per month,
2. The facts in brief of the Complaint are that lured by the glamorous representations contained in the brochure issued by the OP, Complainant booked a unit on construction linked plan for residential use by him and his family and was allotted unit no. P 9-10-SF in the project ‘Park Elite Floors, Faridabad’ developed by the OP. The Complainant has duly paid all demands raised by the OP totaling to Rs. 19,87,028/- except for the final demand raised with illegal offer of possession and that despite receipt of nearly total cost of the unit, the OP has delayed possession of the unit. As per clause 4.1 of the Agreement dated 26.07.2010 (FBA), OP ought to have completed the construction of unit within 24 months from the date of sanction of building plan, which was later amended to change the start of timelines from the later of (i) completion of payment of 35% of the BSP along with 20% EDC & IDC or (ii) execution of FBA i.e. by 26.07.2010. The clause provides for further extension of 180 days after the said timelines, only for obtaining Occupation Certificate. As per amended FBA, the criteria of execution of FBA was fulfilled on 26.07.2010 and the completion of 35% of the BSP along with 20% EDC & IDC was fulfilled on 03.09.2010 and hence, the later of 2 dates i.e. 26.07.2010 constitutes the starting point of the timelines. Hence OP ought to have completed the Unit and obtained the Occupation Certificate within 24 months + 180 days i.e. latest by 24.08.2012. However, till date, despite a lapse of around 8 years, the OP has failed to obtain
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Occupation Certificate. This is a gross deficiency of service and unfair trade practice. Complainant has been chasing OP for possession but without avail. Around 8 years after the expiry of the promised time for completion, OP issued a letter of offer of possession dated 09.07.2020 (OOP). However, the said demand is premature because OP has not obtained the Occupancy Certificate. Furthermore, the OP did not adjust a single paisa as compensation for the delay of around 8 years and raised a large number of additional demands under various heads including increased super-area, escalation, and electricity connection, club charges, which are totally without justification, illegal and unwarranted. The complainant sent emails protesting the OOP but OP ignored these emails. It was submitted that the Complainant is entitled to a direction to OP to deliver legal possession of the Unit with Occupancy Certificate and is further entitled to compensation for delay in delivery of possession at a fair rate. Though under clause 4.3 of FBA, the rate of compensation is fixed @Rs.5/- per sq. ft. per month, the law is settled that the allottee suffering a long delay is entitled to a fair compensation. OP is liable to register conveyance in favour of Complainant at the same rate of stamp duty and registration as was applicable at the time of the unit ought to have been delivered as per agreed schedule in FBA and compensate Complainant for increase in such charges if any. In Brochure, the OP presented a glamourous, luxurious project, representing the organized green landscaped areas, Kids Park, jogging and walking track, sitting areas, adequate street lighting and open area lighting but none of these amenities have been developed by OP till today. OP represented that the Parklands Township has its own schools, hospitals, local shopping centers and fully developed roads, street lighting, sewerage system, water connection, drainage, children’s parks and 24*7 security system but none of these amenities are developed. Even the extremely basic amenities like roads are not developed. The internal sewerage system is still not connected to the external sewerage system for reasons not known to Complainant. Under “Annexure B Specifications of floor” attached with FBA, the OP
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was to provide a recreational club and under Clause 1.5 ( e ) of the FBA,Complainant was required to pay Club Membership Charges of Rs.50,000/-. The imposition of Club Membership Charges is illegal and unjustified because OP has not constructed any Club till today. Hence, all recoveries made by the OP against club charges of Rs.50,000/- are liable to be refunded with interest and the charge under this head contained in the offer of possession is liable to be cancelled. The OOP raises additional demand for alleged increase in super built up area from the original 876 sq. ft. to 1039 sq. ft., an increase of about 19% over the original area. Clause 1.2 of the FBA recorded tentative super built up area as 876 sq. ft. and that under clause 1.4 of the FBA not only was it envisaged that super built up area could be increased but also empowered OP to charge higher rate of 2425 sq. ft. for the excess Super Built Up Area, clause 1.15 of FBA stated that super built up area of the unit shall be determined after completion of construction of the said colonyand clause 1.15(i) of the FBA provided that in case of increase in Super Built Up Area greater than 15% the Complainant was entitled to refund if he was unwilling to accept the increase. OP never shared the break up and calculation of super built up area and that OP has recovered monies from Complainant since 23.05.2009, OP has claimed an increase in area in 09.07.2020 after having recovered nearly the entire price from the Complainant and having made the Complainant wait for completion for 8 years after the expiry of the promised time period of completion. Absolutely no intimation was given to the Complainants about any increase in super built up area, before or after such alleged increase, at any point of time before the OOP. OP is deliberately withholding relevant information which constitutes a deficiency of service under section 2(11)(2) of the Consumer Protection Act 2019. Further, in the Statement of Account cum invoice attached with the OOP as Annexure “A”, OP has demanded a sum of Rs 34,100/- under the head “cost escalation”. Cost escalation of Rs. 61.33 per sq. ft. has been multiplied by the Super Built Up Area to arrive at the total escalation. However, Super Built Up Area includes
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open spaces, lobbies, balconies, staircases etc. on which it is not correct to load the full escalation. At the most, escalation can be claimed on the internal areas of the Unit only and the demand is accordingly liable to be reduced. Further, in the Statement of Account cum invoice attached with the OOP as Annexure “A”, OP has demanded a sum of Rs 34,100/- under the head “Electricity Connection Charges”. The Complainant has not got any justification from the OP and hence reserved his rights to raise further grounds to challenge the said demand. In this background, the Complainant has prayed for directions to the OPs to-
- deliver possession of the apartment along with registered conveyance and Occupation Certificate to the Complainant along with compensation for delay calculated @18% PA on amounts paid by the Complainant. In addition, if monies have been charged for construction before sanction of building plan, the OP is also liable to pay interest @ 18% PA on the monies prematurely recovered.
- In the event stamp duty and registration charges at the time of registration of conveyance are higher than the rate applicable on the promised date of possession, OP should compensate the excess amounts that Complainant will have to pay for stamp duty and registration
- to revoke and cancel demand under the head “Club Membership Charges” and refund the amount already recovered earlier with interest @18% pa.
- revoke and cancel the additional demands under the various heads including BSP, EDC & IDC etc. arising from the alleged increase in super built up area from 876 sq. ft. to 1039 sq. ft.
- revoke and cancel the additional demand of Rs. 53,725/- under the head “Cost Escalation” to the extent that the escalation is applied to areas external to the Unit
- revoke and cancel the additional demand of Rs. 34,100/- under the head “Electricity Connection Charges”
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- To pay a sum of Rs.10,00,000/- to compensate the Complainant for non-provision of promised amenities.
- To pay a sum of Rs.10,00,000/- by way of mental harassment and suffering and unfair trade practices.
- to pay a sum of Rs.50,000/- as litigation expenses.
- Such other relief that this Hon’ble Commission may deem appropriate in the interest of justice.
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On merits, it was pleaded that the Complainants after having conducting due diligence and out of their own volition approached the OP No.1 through their broker and applied for a booking of a residential floor in the project namely ‘Park Elite Floors’ situated at Faridabad. Further, the Complainants on their own will invested a sum of Rs. 2,00,000/- towards booking amount and submitted Application for Allotment (Booking Application) on account of agreeing and accepting to abide by terms and conditions of Booking Application. The OP No.1 vide letter dated 24.12.2009 confirmed to the Complainants about allotment of unit no. P9-10-SF/ Area (tentative) 876 sq. ft. (81.38 sq. mtrs.) through Draw of Lots held on 11.12.2009. Thereafter, the Complainant voluntarily executed Floor Buyer’s Agreement (‘FBA’)
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dated 26.07.2010. Thereafter, on 31.08.2010 ‘Addendum to FBA dated 26.07.2010’ was also executed between the Complainant and the OP No.1, whereby the Complainant voluntarily agreed and accepted to be bound and abide by the terms and conditions contained herein in addition to the FBA. The said Addendum is a part and parcel of the FBA. All the representations made by the OP No.1 including basic sale price and other charges payable, tentative timelines for possession and penalty payable by the OP No.1 in case of delay in offering possession were duly documented in the terms and conditions of the Booking Form which were reiterated in the FBA. OPs vide demand letter dated 15.07.2011 informed Complainants that on measuring the dimensions of the unit in question the Super Built Area stood revised from 876 sq. ft. (81.38 sq. mtrs.) to 1,039 sq. ft. (96.53 sq. mtrs.). The Complainant neither approached OP No. 1 personally nor wrote any letters or emails with respect to the said increase in the year 2011 and continued with his booking/ allotment peacefully without any demur or protest. Thereafter, the OP completed the construction of the unit in dispute and, issued Offer of Possession (‘OOP’) dated 09.07.2020 for unit no. P9-10-FF with final super built up area 1,039 sq. ft. (the same area which was informed via demand letter dated 15.07.2011). It was further stated that OP No. 1 has already applied for issuance of requisite approvals before the concerned authorities/ departments. It was also submitted that the OP has already offered possession of the unit and thus already fulfilled prayer (i) of the Complaint.
On the aspect of delay, it was submitted that while determining tentative time for delivery of possession of the Unit as per the Agreement, the delay in construction was beyond the control of OP No.1. It is well settled law that “force majeure” indicates events which are beyond the control of human being and prevents other party from performing its contractual obligations. In the facts of the case, OP No.1 is entitled to claim exception under the shelter force majeure events in as much as it was due to the delay in decisions taken by government agencies that OP No.1 was
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incapacitated in completing construction within time. It was further submitted that the Complainant was very well aware about the fact that timely payment of each instalment as per opted payment plan is the essence of this booking/allotment transaction. However, the Complainant has been a chronic defaulter in making timely payment of the instalments, as a result of the same from the Complainant and other allottees the timeline for handing physical possession stood diluted. It was further submitted that the Complainants have referred to incomplete clauses and importing incorrect meaning to the various incorporated clause/s of the duly executed FBA dated 26.07.2010 and addendum to FBA dated 31.08.2010 with the sole intent to misrepresent the clause/s qua proposed timelines. As per the terms and conditions of the FBA, the OP No.1 proposed to offer the physical possession of the unit within a period of 24 months from the date of execution of the FBA OR on completion of payment of 35% of the Basic Sale Price along with 20% of EDC and IDC by the Purchaser(s), whichever is later with a further grace period of 6 months, subject to adherence to the other material terms and conditions of the FBA. The remedy in case of delay in offering possession of the unit was also agreed to between the parties as also extension of time for offering possession of the floors. Clauses 4.1, 4.3, 4.5 and 13 (force majeure) were reproduced.
It was also submitted that upon entering the transaction with the OP No.1, the Complainants became 1/3rd owner of the plot which is worth Rs.70 Lacs approx., the Complainants are yet to make payment of remaining total sale consideration for the unit in question. It is further submitted that OP No.1 has already issued OOP to the Complainants and that the timelines for possession were subject to force majeure circumstances and for reasons beyond the control of the OP No.1, the tentative timelines stood diluted. In this context, it was stated that in terms of Notification dated 16.03.2010 of Self Certification Scheme issued by the Town and Country Planning Department, Government of Haryana, OP No. 1 applied for approval of building plans under the Self Certification Scheme. Although, no objection was received from the Department,
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however, to ensure that there are no problems later, the OPs also applied for approval of building plans under the regular scheme. In few cases, approval under the regular scheme was received from the Department, but neither approval nor non approval of the Department was received against the Application under Self Certification Scheme, thus, OP No. 1 continued the Internal Development Works and simultaneously raised construction on the plots which was in consonance with the prevailing Building Bye laws considering plans to be deemed approved. However, there was no clarity in the policy of self-certification to the effect whether the same is applicable to individual plot owners only and excludes the developers / colonizers or whether the same is applicable to the developers/ colonizers as well. Subsequently, the Department vide public notice dated 08.01.2014 granted time of 90 days to submit requests for regularization of construction. Accordingly the OPs submitted approval under the said notice. The Department however still had the ambiguity as to whether the policy of self-certification applies to individual plot owners or developers/ colonizers and due to such ambiguities in various policies, construction of the project was delayed time and again. Thereafter, the Department vide its order dated 08.07.2015 finally clarified that self-certification policy shall also apply to cases of approval of building plans submitted by colonizer / developer but did not formally released all the plan submitted by the OPs time to time in various building plan approval schemes. The OP kept the allottees including the Complainants updated and well informed about the construction status through emails and letters. In the meanwhile, OP continued with internal development works. In this manner, reason for delay was put forward by the OP. It was also stated that the construction of flat was complete and the OP No.1 has already issued offer of possession letter dated 09.07.2020 to the Complainants. It was submitted that OP No.1 has already applied for requisite approvals before concerned departments/authorities and, are continuously putting efforts in obtaining the same at the earliest. It was also submitted that the Complainants never raised any objection and/or protested against the agreed rate of compensation for delay
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under Clause 4.3 of the FBA. It was submitted that vide , no amount towards stamp duty, registration charges or other incidental charges were agreed between the parties. However, the Complainants had agreed to bear the said charges for execution and registration of the Conveyance Deed with respect to unit as and when demanded by the OP No.1. It was also submitted that OP No.1 is committed to provide operational amenities and facilities in terms of the FBA. It was further submitted that OP No.1 has provided interim club with other associates facilities which were not agreed at the time of booking. With respect to increase in super built up area, it was submitted that the Complainant acknowledged and accepted the fact the area is tentative in nature and is subject to change in future and that vide demand letter 15.07.2011, the Complainants was for the first time communicated that the area stands revised from 876 sq. ft. to 1,039 sq. ft., which was accepted by the Complainants on account of continuing with the allotment and making payments. It was vehemently denied that the increase in Super Built Up Area was communicated to the Complainants for the first time vide offer of possession letter dated 09.07.2020. It was submitted that the said increase was communicated vide letter dated 15.07.2011. With respect to cost escalation, it was submitted that the parties had agreed and acknowledged that the sale consideration of the allotted unit comprises of the cost of construction amongst other components i.e., cost of material, labour and project management cost, thereby the actual cost of the allotted unit may experience escalation and may thus vary which is subject to ascertainment and finalization at the final stage i.e., offering of possession. OP No.1 along with OOP letter dated 09.07.2020 provided detailed explanation along with methodology with regard to calculation and demand towards Cost Escalation specifically vide ‘ANNEXURE-G’. The demand towards cost escalation has been charged by the OP No.1 only till the year 2011.Similarly, demand raised towards Electricity Connection Charges was also payable in terms of the agreement.
4. The parties led evidence in support of their respective versions.
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5. We have heard the learned counsel for the parties and have gone through the record on the file.
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To establish his case, the Complainant has led in his evidence Ex. CW1/A-Affidavit of Sumit Kumar, Ex. C1 (referred to as Annexure-1)-Copy of Brochure, Ex. C 2 (referred to as Annexure-2)-Copy of FBA, Ex. C 3 (referred to as Annexure-3)-
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Copy of demand notice dated 24.02.2010, Ex. C 4 (referred to as Annexure-4)-Copy of offer of possession letter dated 09.07.2020, Ex. C 5 (referred to as Annexure-5)-Copy of emails dated 04.08.2020 and 09.09.2020, Ex. C 6 (referred to as Annexure-6)-Copy of Statement of Account dated 21.05.2020, Ex. C 7 (referred to as Annexure- 7)- Notification issued by Government of India Ministry of Water Resources dated 26.12.2000.
On the other hand, AR of the Opposite Parties strongly agitated and opposed the case of the Complainant. As per the evidence of the Opposite Parties, EX. RW1/A-Affidavit of Jay Shankar, Authorized Representative of the Opposite Parties, Ex. R/1(Colly)-resolutions, Ex. R 1- Application for Allotment by sale of a residential independent floor at Parklands, Faridabad, Ex. R 2- Allotment Letter dated 24.12.2009, Ex. R3 (Colly)-FBA dated 26.07.2010 and Addendum to FBA dated 31.08.2010, Ex. R 4 (Colly)- Affidavit and Undertaking dated 22.07.2010, Ex. R 5- demand letter dated 15.07.2011, Ex. R/2(Colly)- snaps of Club in T Block and F Block, Ex. R6- OOP dated 09.07.2020.
7. In this case, it was argued by the counsel for the Complainant that though, offer of possession have been issued, however, there is no OC and therefore the offer of possession is totally invalid, illegal and premature. It was further argued that the main grievance of the Complainant is that there is delay in completion and delivery of flat, and therefore they seek relief of possession with OC and registered conveyance and delay compensation at adequate rates, reversal of club membership charges. The Complainant also challenged the additional demands raised by OP in the final demand on the pretext of increased area, escalation, and electricity connection. It was further argued that in terms of Floor Buyers Agreement dated 26.07.2010 executed between the Complainants and the
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OP, timelines for possession were completion of payment of (35%BSP+20%EDC/IDC) or execution of agreement (whichever is later) and hence, there is a huge delay of around 10 years and the delay is continuing because there is no OC or possession yet. Even the illegal premature offer of possession was issued after 6-8 years delay but since there is no OC or possession, the delay continues to run till OC is obtained and a valid offer of possession is issued. The possession clause in FBA specifies delay penalty of only Rs. 5 psf pm which translates to only 2-3% PA SI. In contrast OP charges @ 18% PA compounded for delay in payment. Judgments passed by Hon’ble Supreme Court were referred to the effect that adequate delay compensation ought to be given and not mere meagre rate specified in the FBA. It was also argued that none of the facilities like shopping centres, schools, community centre, health club etc., as advertised have been constructed and that the OP in the reply admits that only an interim club is provided and the facilities would be constructed in future. Instead of providing club over an area of 2 acres land, they have converted one of the vacant units into a temporary club. It was further argued that the OPs plea of force majeure were untenable. In passing reference was made to other issues like Super Built Up Area increase, cost escalation, Electricity connection charges which were demanded in the offer of possession demand while specifically pointing out that the demand for alleged increase in Super Built Up Area was raised for the first time in Offer of possession and that no intimation was given earlier and no breakup or justification was provided.
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the construction of the unit allotted to the Complainants was completed, the OP vide letter dated 09.07.2020 offered possession thereof to the Complainants along with clarifications towards each demand raised by OP No. 1 however, they did not came forward to make payment and take possession. It was further submitted that all the representations made by the OP No.1 including tentative timelines for possession and penalty payable by the OP No.1 in case of delay in offering possession were duly documented in the terms and conditions of the Booking Form which were reiterated in the FBA. Later on, they also executed Addendum to FBA on 31.08.2010, which is a part and parcel of the FBA The Complainants on account of thorough reading and understanding of the clauses and/or recitals of the FBA and addendum thereto agreed and accepted to abide by the same and, affixed their signature as token of acceptance without raising any demur or protest. The Complainants did not at any stage raise any issue/s and/or grievances towards any of the incorporated terms and conditions of FBA. It was specifically pointed out that the Complainants had willingly agreed and accepted the penalty clause of Rs. 5 per sq. ft. per month at the stage of booking itself. The same clause was reiterated at the stage of agreement and hence, there was no force or coercion by the OPs on the Complainants. It was also pointed out that the independent floors were low cost floors in the range of 25 to 30 lacs where the purchaser was also given the incentive of timely payment in the form of timely payment discount (TPD) if the instalment was paid in time and hence the final cost of the unit was further reduced if payments were made in time. Considering the total value of these units, penalty @ Rs. 5 per sq. ft. was appropriate. With respect to Super Built Up Area increase, it was pointed out that the Complainants were intimated about the said increase vide letter dated 15.07.2011 whereby the Complainants were given the option of making payment of the demand on account of increased Super Built Up Area in one go and avail timely payment discount or to make payment in 4 equal interest free monthly instalments. The Complainants never raised any query regarding the same and in acceptance of the said
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increased super built up area, the Complainants voluntarily opted to make payment in instalments, though the payments were delayed. However, in the Complaint, it has been falsely alleged that the said Super Built Up Area increase was informed for the first time at the stage of offering possession. It was also pointed out that vide clause 1.15 (i) of the FBA, the Complainant was given the option to seek refund with 6% interest if the increase was more than 15% and the same was not acceptable to them. However, the Complainants neither raise any such concern when the increase was intimated to them. With respect to cost escalation, it was submitted that the demand was raised in terms of Clause 20.18 of the FBA and that the explanation had already been provided by the OP vide ANNEXURE–G to the Offer of possession letter dated 09.07.2020 wherein it was it was clearly explained that cost escalation upto 10% has been absorbed by OP and further that the cost escalation only till the commitment period has been charged from the Complainants. With respect to Electricity Connection Charges, it was pointed out that vide Clause 10.5 of the FBA, it was clearly agreed between the parties that Electric connection charges are not included in the price of the floor and will be charged separately and accordingly the demand was raised. With respect to Club charges, it was submitted that vide Clause 1.5 (e) of the duly executed FBA, Complainants had agree to pay a sum of Rs.50,000/- towards Club and that presently, 2interim clubs, one in Block-T and Block-F in the Township Parklands are already operational and functional, which are being utilized by the allottees on daily basis.
On the specific query put to the AR of the OP as to whether Occupation Certificate had been issued by the Government for the unit in question, it was submitted that although the OP had applied for grant of Occupation Certificate but the same has not been received yet and further, he could not commit as to by when the Occupation Certificate would be received. He further referred to Clause 20.19 of the FBA to state that since the OP has not been able to deliver the unit with OC, the only
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option available is to cancel allotment and refund the amount received from the Complainant.
9. It is pertinent to point out that during the course of arguments, the AR on behalf of the OPs, made a statement on 30.11.2021 and15.02.2022 that the OP is willing to refund the amount paid by the Complainant.
10. On perusal of the records, it has come to our notice that the Complainants did not file any rejoinder to the Written Statement filed by the OPs although, in the evidence, reference has been made to rejoinder and copy of a notification dated 26.12.2000 issued by Government of India has been filed. On perusal of the said notification, it is apparent that the said notification pertains to Gurgaon and hence is not relevant for the Project in Faridabad. Even otherwise, nothing has been argued by the Complainant based on this notification.
11. Before delving into the merits of the case, we deem it appropriate to adjudicate the preliminary objections raised on behalf of the Opposite Parties.
WHETHER THE COMPLAINANT HAS NOT APPROACHED THIS COMMISSION WITH CLEAN HANDS?
12. It was argued that the Complainant had misrepresented before this Hon’ble Commission that the increase in super built up area of the unit in question from 876 sq. ft. to 1039 sq. ft. was intimated to the Complainants for the first time while offering possession of the Unit vide offer of possession dated 09.07.2020 while the truth is that the said intimation was given vide letter dated 15.07.2011 and that agreeing and accepting the same, the Complainants made payment of the said demand in instalments from the options of making payment of the demand on account of increased Super Built Up Area in one go and avail timely payment discount or to make
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payment in 4 equal interest free monthly instalments. The final super built up area communicated to the Complainants vide offer letter dated 09.07.2020 is also 1039 sq. ft. and thus, there is no variation from the super built up area communicated in the year 2011 and accepted by the Complainants.
13. It is settled position in law that if an applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the Court, then such an act would disentitle him from any relief.
14. In S.P Chengalvaraya Naidu vs Jagannath, 1994 SCC (1) 1, the Hon'ble Supreme Court, while dealing with a case where a release deed was suppressed, came down heavily upon such tactics of litigants. It observed that the non- mentioning and non-production of the release deed amounted to "playing fraud upon the court" and concluded that:
"6. ...A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party."
15. In Dalip Singh vs. State of Uttar Pradesh and others (2010) 2 SCC 114, the Hon'ble Supreme Court considered the question whether relief should be denied who did not state correct facts in the application filed before the prescribed authority and who did not approach the High Court with clean hands, observed that while exercising discretionary and equitable jurisdiction, the facts and circumstances of the case should be seen in their entirety to find out if there is miscarriage of justice. If the appellant has not come forward with clean hands, has not candidly disclosed all the facts that he is aware of and he intends to delay the
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proceedings, then the Court will non-suit him on the ground of contumacious conduct.
16. In MohammaedSoyab v/s UOI, (Review Petition No. 85 of 2016 decided on 25.05.2017), the Hon’ble Himachal Pradesh High Court held as follows-
“32.1 Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead the Courts, initiated proceedings without full disclosure of facts and came to the courts with 'unclean hands'. Courts have held that such litigants are neither entitled to be heard on the merits of the case nor entitled to any relief.
32.4. Quests for personal gains have become so intense that those involved in litigation do not hesitate to take shelter of falsehood and misrepresent and suppress facts in the court proceedings. Materialism, opportunism and malicious intent have over-shadowed the old ethos of litigative values for small gains.
32.5. A litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands is not entitled to any relief, interim or final.
32.6. The Court must ensure that its process is not abused and in order to prevent abuse of the process the court, it would be justified even in insisting on furnishing of security and in cases of serious abuse, the Court would be duty bound to impose heavy costs.
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37. The person seeking equity must do equity. It is not just the clean hands, but also clean mind, clean heart and clean objective that are the equifundamentals of judicious litigation. The legal maxim jure naturae aequumestneminem cum alteriusdetrimento et injuria fierilocupletiorem, which means that it is a law of nature that one should not be enriched by the loss or injury to another, is the percept for Courts. Wide jurisdiction of the court should not become a source of abuse of the process of law by the disgruntled litigant. Careful exercise is also necessary to ensure that the litigation is genuine, not motivated by extraneous considerations and imposes an obligation upon the litigant to disclose the true facts and approach the court with clean hands.
38. No litigant can play 'hide and seek with the courts or adopt 'pick and choose'. True facts ought to be disclosed as the Court knows law, but not facts. One, who does not come with candid facts and clean breast cannot hold a writ of the court with soiled hands. Suppression or concealment of material facts is impermissible to a litigant or even as a technique of advocacy. In such cases, the Court is duty bound to discharge rule nisi and such applicant is required to be dealt with for contempt of court for abusing the process of the court. [K.D. Sharma v. Steel Authority of India Ltd. &Ors., 2008 12 SCC 481].
17. It is apparent that the Complainant attempted at misleading this Commission by pleading that the Super Built Up Area increase was communicated to them for the first time in the year 2020 while not only the said intimation had been done in the year 2011 but in acceptance thereof, the Complainants had also paid the demand raised then. Even after receiving the Written Statement where this issue was specifically dealt with, the Complainants still argued that they were informed about this increase only at the stage of offer of possession. Thus, it is
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apparent that the Complainants made a false statement on oath. Hence, on this ground alone, the Complaint is liable to be dismissed with exemplary costs. However, taking a lenient view, we are not dismissing the Complaint.
WHETHER COMPLAINANTS FALL IN THE CATEGORY OF ‘CONSUMER’ UNDER THE CONSUMER PROTECTION ACT, 2019
18. The Opposite Parties have contended that the complainants are not Consumer as defined under the Consumer Protection Act, 2019 as the flat was purchased for investment i.e. for commercial purpose.
19. It is imperative to refer to the dicta of the Hon’ble National Commission in CC-1122/2018 titled Narinder Kumar Bairwal and Ors vs Ramprastha Promoters and Developers Pvt. Ltd. and Ors. Decided on 01.11.2019, wherein, the Hon’ble National Commission has held as under:
“19 The contention of the Learned Counsel that the said Flats were purchased for commercial purpose is not supported by any documentary evidence as the onus shifts to the Opposite Parties to establish that the Complainant have purchased the same to indulge in ‘purchase and sale of flats’ as was held by this Commission in Kavit Ahuja vs Shipra Estate I (2016) CPJ 31. The Opposite Parties failed to discharge their onus and we hence that the Complainant the ‘Consumer’ as defined under Section 2 (1) (d) of the Act.”
20. From the aforesaid decision of the Hon’ble National Commission, it flows that it is for the Opposite Party to prove that the unit purchased was for commercial purpose, by way of some documentary proof and a mere bald statement is not sufficient to raise adverse inference against the complainants.
Consumer Complaint No.400/2020.
21. In the present case, the Opposite Party has merely made a statement that the complainants have purchased the unit for commercial purpose and on perusal of the record before us, we fail to find any material which shows that the complainants are engaged in the business of purchasing and selling houses and/or plots on a regular basis, solely with a view to make profit by sale of such flats. Mere allegation, that the purchase of the property is for commercial purpose, cannot be the ground to reject the present consumer complaint. Consequently, the objection raised on behalf of the Opposite Parties in answered in the negative.
WHETHER THE COMPLAINANTS HAVE CAUSE OF ACTION TO APPROACH THIS COMMISSION?
22. The next issue to be adjudicated is whether the complainants have cause of action to approach this commission. It is imperative to refer to Section 69 of the Consumer Protection Act, 2019 wherein it is provided as under:-
“69. Limitation period.-
- The District Commission, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
- Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainants satisfies the District Commission, the State Commission or the National Commission, as the cases may be, that he had sufficient cause for not filing the complaint as this such period:
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Provided that no such complaint shall be entertained unless the National Commission, the State Commission or District Commission, as the case may be, records its reasons for condoning such delay.”
23. Analysis of Section 69 of the Consumer Protection Act, 2019 leads us to the conclusion that this Commission is empowered to admit a complaint if it is filed within a period of 2 years from the date on which cause of action has arisen. We further deem it appropriate to refer to Mehnga Singh Khera and Ors. Vs Unitech Ltd. as reported in I (2020) CPJ 93 (NC), wherein the Hon’ble National Commission has held as under:
“It is a settled legal proposition that failure to give possession of flat is continuous wrong and constitutes a recurrent cause of action and as long as the possession is not delivered to the buyers, they have every cause, grievance and right to approach the consumer courts.”
24. Returning to the facts of the present case, it is clear that the possession of the unit in question is still not handed over by the opposite party to the complainants with Occupation Certificate. Applying the above law, it is clear that the complainants have recurrent cause of the action to approach this commission till the possession of the unit is not handed over to them.
Deficiency of service
25. Having discussed the preliminary objections raised on behalf of the Opposite party, the next issued which arises is whether the Opposite Party is actually deficient is providing its services to the complainants or not. The expression Deficiency of Service has been dealt with by the Hon’ble Apex Court in Arifur Rahman Khan and Ors. vs. DLF Southern Homes Pvt. Ltd. and Ors. reported in 2020 (3) RCR (Civil) 544, wherein it has been discussed as follows:
Consumer Complaint No.400/2020.
“23…………The expression deficiency of services is defined in Section 2 (1) of the CP Act 1986 as:
(g) “deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
24.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 the service. The expression service in Section 2 (1) (o) means a service of any description which is made available to potential users including the provision of facilities in connection with (among other things) housing construction. Under Section 14(1) (e), the jurisdiction of the consumer forum extends to directing the opposite party inter alia to remove the deficiency in the service in question intrinsic to the jurisdiction which has been conferred to direct the removal of a deficiency in service is the provision of compensation as a measure of restitution to a flay buyer for the delay which has been occasioned by the developer beyond the period within which possession was to be handed over to the purchaser. Flat purchasers suffer agony has harassment, as a result of the default of the developer. Flat purchasers make legitimate assessments in regard to the future course of their lives based on the flat which has been purchased being available for use and occupation.
Consumer Complaint No.400/2020.
These legitimate expectation are belied when the developers as in the present case in guilty of a delay of years in the fulfilment of a contractual obligation.
26. At this stage, we deem it appropriate to refer to clause 4.1 of the FBA dated 26.07.2010 entered into by both the contesting parties. Clause 4.1 of the FBA, reflects that the Opposite Party was bound to deliver the possession of the said unit within 24 months from the date of completion of payment of 35% of the BSP along with 20% EDC & IDC or execution of FBA, whichever is later with 6 months grace period. It has been admitted by the Complainant that it was on 03.09.2010 that payment of 35% of the BSP along with 20% EDC & IDC was completed. In view thereof, possession should have been given to the Complainant by 03.03.2013 while it was offered on 09.07.2020 without Occupation Certificate, which is not within the stipulated period as provided by the FBA dated 26.07.2010.
27. We deem it appropriate to refer to Aashish Oberai vs Emaar MGF Land Limited reported in I (2017) CPJ 17 (NC), wherein the Hon’ble National Commission has held as under:
“I am in agreement with the learned senior counsel for the complainants that consideration the default on the part of the opposite party in performing its contractual obligation, the complainant cannot be compelled to accept the offer of possession at the belated stage and therefore, is entitled to refund the entire amount paid by him along with reasonable compensation, in the form of interest.”
28. Relying on the above settled law, we hold that the Opposite party is deficient in providing its services to the complainants as the Opposite party had given false assurance to the complainants with respect to the time for delivery of
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possession of the said Unit and kept the hard earned money of the complainants for about 10 years. Moreover, the Opposite Party failed to handover the possession of the said unit to the complainants within the stipulated time period and therefore, now the complainants are not bound to take the possession of the said unit after the stipulated period.
29. At this juncture, it is also pertinent to note that the concerns of the Complainants that OP had represented to the Complainants that there would be organized green landscaped areas, kids park, jogging and walking track, sitting areas, adequate street lighting and open area lighting and further that the Parklands Township has its own schools, hospitals, local shopping centers and fully developed roads, street lighting, sewerage system, water connection, drainage, children’s parks and 24*7 security system but none of these amenities are developed and even the extremely basic amenities like roads are not developed yet, it is apparent that the delay in the Project is beyond reasonable time and rather is abnormal and unexpected which frustrates the contract as it causes fundamental breach. Further, the OP is still not able to confirm as to by when Occupation Certificate for the Unit in question be received.
30. Now we have to decide whether refund can be awarded in the present case as the complainants had prayed for possession of the unit. On this point, we deem it appropriate to refer to Parsvnath Exotica Resident Association vs Parasvnath Developers Ltd. &Ors. reported in IV (2016) CPJ 328 (NC), wherein the Hon’ble National Commission has held as under:-
“Though, in Consumer Complaint No.45 of 2015, the main prayer made by the complainants is to direct delivery of the possession of the flats to the allottees complete in all respects, coupled with execution of the file deed in their favour, when this matter came up for hearing on 27.4.2016, the learned
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Counsel for the complainant stated in instructions, that since the building plans for construction of towers No. A-D have already lapsed and the revised plans have not been sanctioned as yet, the said allottees are not interested in waiting any longer for delivery of the possession of the flats and want to take refund, along with appropriate compensation for the financial loss suffered as well as the harassment and mental agony caused to them. The learned counsel for the opposite party submitted in this regards that no prayer for refund has been made in Consumer Complaint No. 45 of 2015. In our opinion, even in the absence of any specific prayer, it is always open to this Commission to grant a relief which is justified and warranted in the facts and circumstances of the case.”
31. Relying on the above settled law, it is clear that his commission, even in absence of specific prayer, can grant a relief which is justified and warranted in the facts and circumstances of the case. On perusal of record before us, we find that the Opposite Party failed to hand over the possession of the said unit even after receiving payment except the last instalment due on possession. In these circumstances, it appears that the Opposite is not in a position to handover the unit in question to the complainants together with the promised amenities. Therefore, as per the facts and circumstances of the present case, we are of the view that it is justified to refund the amount already paid by the complainants.
32. Having discussed the liability of the Opposite Party, the only question left to adjudicate is as to how the complainants are to be compensated for the deficient acts of the Opposite Party. It is imperative to refer to the recent pronouncements of the Hon’ble Supreme Court in terms of “Interest” which is being allowed on the refunded amount. In Arifur Rahman Khan and Ors (supra) which has also been referred by and relied upon by the Complainants, the Hon’ble Apex court has allowed an interest @6%p.a. on the amount received by the
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Opposite Party, payable within one month and in case of default to any within the stipulated period, an interest @9% p.a. was payable on the said amount. We must not lose sight of the fact that equities must be balanced as was held by the Hon’ble High court of Himachal Pradesh while deciding the case of “MohammaedSoyab vs UOI” in Review Petition No. 85 of 2016 dated 25.05.2017 wherein the Hon’ble High Court held as follows-
“While adjudicating, the court must keep the following principles in view i.e.
- It is bounded duty and obligation of the court to neutralize any unjust enrichment and undeserved gain made by any party by invoking the jurisdiction of Hon’ble Court.
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7. Litigation should not be permitted to turn in to a fruit full industry so that unscrupulous litigants are encouraged to invoke the jurisdiction of the court.”
33. There are lot of settled cases in which the prayer of the consumer was different and the Commission/Court decided in the different way. After hearing both of the parties and evidence led by the parties, the counsel for the opposite parties stated at Bar during the course of arguments due to Covid-19 and strict laws laid down by RERA, it is hard to survive for the builder/developer. In these 10 cases/complaints, there is no occupation certificate received by the opposite parties till yet and they can not assured the date for the issuance of occupation certificate. The A.R of the opposite parties has suffered a separate statement that “We are ready to refund the deposited amount to the complainant as per Flat Buyer’s Agreement Clause 6.4.”
34. We have heard the parties & appraised the material on record carefully & now the Commission is of the opinion that due to any reason
Consumer Complaint No.400/2020.
whatsoever the whole or part of the project in question is abandoned or the completion of the project is delayed due to any reasons, the responsibility and liability of the opposite parties/seller will be to refund to the complainant/purchaser(s) the total amount as may be received by the seller.
35. Hence, In the interest of justice, these all 10 complaints are disposed off with the direction to opposite parties to refund the entire money paid by the Complainants along with interest @ 6% p.a. from the date of each deposit respectively till the date of payment within 60 days of the receipt of this order.
36. In case the order is not complied with within the next 60 days from the date of receipt of the copy of the order, the rate of interest will increase from 6% to 9% p.a. for the period beyond that till the date of realization of the payment. Opposite parties are also directed to pay Rs.3300/- as compensation for mental tension and agony and also to pay Rs.2200/- as litigation expenses to the complainants. Compliance of this order be made within 60 days from the date of receipt of the copy of this order. Copy of this order be sent to the parties concerned free of costs. File be consigned to the record room.
Announced on: 28.02.2022. (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
( Sujata Pruthi)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
