PER MR SUBHASH CHANDRA, MEMBER The present consumer complaint has been filed under section 21 of the Consumer Protection Act, 1986 by the Complainants against the Opposite Party, M/s Ansal Properties and Infrastructure Ltd., New Delhi in respect of Opposite Party’s project Fernhill in Sector 91, Gurgaon, Haryana. 2. The facts leading to the present complaint are that the complainants, in response to the promotional advertisements of the Opposite Party, booked a Villa measuring 5030 sq ft., (Number 0705 – GH – 002) in a township being developed by the Opposite Party in Fernhill, Sector 91, Gurgaon, Haryana by paying Rs.16,87,565/- on 02.12.2011. An allotment letter was issued for the villa to the Complainant on 02.12.2011 by the Opposite Party for a total sale consideration of Rs.1,68,75,650/-. The project was promised to be completed within four years plus six months grace period, i.e., by 10.11.2018. The Complainants paid Rs.71,67,611.94 between 22.11.2011 and 07.08.2014. The Opposite Party executed the Buyer’s Agreement on 10.05.2014. It is submitted by the Complainants that the Opposite Party did not commence construction on site till September 2016. In the meanwhile, claiming that construction has commenced, the Opposite Party continued to collect further deposits. Due to the repeated efforts of the Complainants to exit from the project in view of the continued delay in executing the project and to get a refund of the money deposited with the Opposite Party, on 22.09.2016, the Opposite Party agreed to refund the amount deposited by the Complainants along with 8% interest in instalments in acceptance of the fact that the project had not been satisfactorily concluded. Subsequently, in February and March 2017, two cheques of Rs.10 lakh each were paid by the Opposite Party to the Complainant. Thereafter, the settlement was not complied with. According to the Complainants, by agreeing to refund the instalments deposited by the Complainants with interest, the fact of deficiency on OP’s part is admitted. The Complainant is before this Commission with the prayer that the Opposite Party be directed: - To refund the entire amount paid by the Complainants along with penal interest at the highest possible rate as this Hon’ble Commission may deem fit, in the facts and circumstances, in the interest of justice (compounded quarterly), keeping in view the fact that the rate of interest mentioned in clause 4.5 and 4.6 of the Agreement (Annexure C- 1) as fixed by the OP itself is @ 24% compounded quarterly/ per annum for making claim against the Complainants;
- Further, the OP may also be directed to pay Rs.3.00 lakh towards compensation for physical and mental harassment and agony suffered by senior citizen and old complainants with multiple medical problems;
- Towards cost of litigation of Rs.1.00 lakh and fee paid;
- Beside any other cost/ compensation etc., which this Hon’ble Commission may deem fit in the facts and circumstances;
- The complainants joint allottees be permitted accordingly to pursue the complaint.
3. The Opposite Party has contested the claim of the Complainants on the grounds that the Complainant ceased to be a consumer as the allotment of the villa in the project was cancelled and therefore this complaint is not maintainable. Also, as the flat Buyer’s Agreement was between the Complainant and M/s Samyak Project Private Ltd., who is not impleaded as a party to these proceedings by the Complainant, the complaint is liable to be dismissed. It is also contended that the complaint is barred by pecuniary jurisdiction as the settlement agreement was for Rs.71,67,611.94. It is further contended by the OP that the project was not promised to be completed by the Opposite Party within four years or that there was any time bound schedule for the same. The OP was in a joint venture with M/s Samyak Projects Pvt., Ltd., who was to commence the construction. The allotment was cancelled at the request of the complainant even though the promised date of possession is 10.01.2018. 4. From the records it is seen that Complainant filed affidavit in evidence and written submissions. We have heard the Learned Counsel for the parties and carefully perused the records. 5. Learned counsel for the Complainant argued that the OP had not disclosed in 2011 while booking the flat, that M/s Samyak Projects Pvt. Ltd., was a joint venture partner. OP had projected itself as the sole promoter, and accepted over 42% of the cost of the villa in five instalments. This contention of the Opposite Party is an unfair trade practice. OP’s failure to commence construction of the villa or complete the project amounts to deficiency in service and an unfair trade practice. The settlement agreement between the parties is an acceptance of the same. The same has been violated by the OP and is therefore, not valid on date. 6. On behalf of the OP it is argued that the complainants have no cause of action as they entered into a settlement agreement and as such they are no more consumers. 7. From the documents on record and arguments of both the parties, it is evident that the Complainant had booked a villa in the township promoted by the Opposite Party in 2011 for sale consideration of Rs.1,68,75,650/- of which Rs.71,67,611.94 was paid in instalments to the Opposite Party between 2011 to 2014. Opposite Party has admitted that the project has not been executed within the promised time frame of four years and accordingly it entered into an agreement with the complainants to refund the amount collected with interest. It is also a fact that Opposite Party has defaulted on this after two payments. 8. The averment of the Opposite Party that it had only ‘endeavoured’ to complete the project in four years does not appear sustainable. Its agreement to refund the deposits made by the Complainant with interest is an admission of the liability on account of the delay in executing the project and handing over possession to the Complainant. It is a settled proposition of law, as held by the Hon’ble Supreme Court in NBCC (India) Limited vs Shri Ram Trivedi – Civil Appeal no. 274 of 2020 that: “The expression ‘endeavour’ meant that the appellant would make an earnest effort to hand over possession by that date. Even if the expression does not mean an absolute commitment to hand over possession on or before a specified date, this expression has to be read in the context of the entirety of the clause. To construe the expression as leaving the date for handing over possession indefinite and at the absolute discretion of the developer would leave the purchaser at the mercy of the builder. Clause 20 must be construed to require the builder to make all reasonable efforts to comply with the duty to hand over possession by the stipulated date”. Therefore, the contention of the OP that the project was not time bound cannot be accepted. 9. It is also a settled position of law that a purchaser cannot be expected to wait inordinately for the project to be completed and for possession to be handed over. The Hon’ble Supreme Court in Civil Appeal No. 3182 of 2019 Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra decided on 25.03.2019, has held that: It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years is beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund. In Pioneer Urban land and Infrastructure Ltd., vs Govindan Raghavan and connected matter in CA no. 12238 of 2018 decided on 02.04.2019, also, the Hon’ble Supreme Court had held that: “the flat purchasers cannot be made to wait for inordinate period of time hoping to seek possession and that refund of amounts deposited is a valid redressal”. The OP’s contention that the Complainant is premature in seeking relief is not acceptable. 10. The contention of the Opposite Party that the complaint is barred by the pecuniary jurisdiction of this Commission is not valid as the sale consideration of the villa in question is Rs 1,68,75,650/-. In Ambarish Kumar Shukla and Ors., vs Ferrous Infrastructure Pvt., Ltd., this Commission has held that pecuniary jurisdiction should be construed considering the total value of goods and services in addition to the amount of compensation claimed. The Complainants have claimed refund of Rs.71,67,611.94 deposited with interest, compensation, litigation costs etc., which exceeds Rs.1 crore. The averment of the Opposite Party is therefore liable to be rejected. 11. The contention of the Opposite Party that the Complainants are not ‘consumers’ having entered into a settlement with the Opposite Party is not valid as the Opposite Party has defaulted in not paying the compensation as agreed. Moreover, it is an admission of deficiency in service on part of the Opposite Party. Finally, the averment of the Opposite Party that as it was in a joint venture with M/s Samyak Projects Pvt., Ltd., and the Complainants had not made this entity a party to the present proceedings, is not acceptable. Any arrangement that the OP had with this or any other entity was an operational arrangement in order to implement the project which was, in fact, promoted and publicised in its own name by the OP. 11. It is, therefore, evident that the OP has failed to execute the project as was promised by it and he is in default of the Buyer’s Agreement dated 10.05.2014, wherein vide clause 5.1 a commitment date of 48 months plus six months, i.e., 10.11.2019 to hand over possession of the villa was agreed upon. There is no completion certificate available with the OP even on date nor has any offer of possession been made. Deficiency in service and unfair trade practice on the part of the Opposite Party are therefore writ large. 12. For the afore-mentioned reasons, we find merit in the contentions of the Complainants and allow the complaint with the following directions: (i) OP shall repay the entire amount of Rs.71,67,611.94 deposited by the Complainant with simple interest @ 9% from the respective dates of respective deposits till the date of repayment within six months of receipt of this order; (ii) OP shall pay Rs.50,000/- to complainant towards litigation costs along with the refund as above; (iii) In the event of non-compliance of this order, the amounts to be paid shall attract penal interest of 12%. |
