R.K. AGRAWAL, J., PRESIDENT The present Consumer Complaint has been filed under Section 21 of the Consumer Protection Act, 1986 (for short “the Act”) by Raghbir Singh (hereinafter referred to as the Complainant) against Opposite Party, M/s. BPTP Ltd. (hereinafter referred to as the “BPTP”), seeking refund of the amount deposited by him as the BPTP has failed to hand-over the possession of the residential floor booked by him in terms of the Flat Buyer Agreement. It has been averred in the Complaint that the BPTP has launched a Residential Group Housing Project in the name and style of “Amstoria” located at Sector 102, Gurgaon, Haryana. On 31.08.2011, the Complainant booked a Residential Floor in the said Project. Unit No. A-134-FF on First Floor admeasuring build up area of 1999 sq. ft. was allotted to the Complainant. The Floor Buyers Agreement (hereinafter referred to as the Agreement) was executed between the Parties on 14.03.2012. The total Sales Consideration of the Floor was ₹85,31,992/-. The Complainant had opted for Construction Linked Payment Plan and had deposited ₹78,64,819/- on different dates as per demand of the BPTP. As per Clause 5.1 of the Agreement, the possession of the Floor was to be delivered within a period of 24 months from the date of sanctioning of Building Plan or execution of the Agreement with a grace period of 180 days. In the instant case, the Agreement was executed on 14.03.2012 and allowing the grace period of 180 days, the BPTP was under an obligation to hand over the possession of the Floor latest by 13.09.2014.However, despite having received about 92% of the total Sale Consideration, the BPTP miserably failed to deliver the possession of the Floor within stipulated period. It is alleged by the Complainant that the BPTP had utilized his amount in other Projects; most of the clauses in the Agreement were one sided; Complainant was compelled to sign the Agreement which was totally in favour of the BPTP.Whenever the Complainant raised queries with the BPTP regarding the completion of the Project and exact date of handing over the possession, they neither provided any specific date for the delivery of the possession nor refunded the amount deposited by the Complainant. Consequently, the Complainant served a legal notice on BPTP on 29.07.2020 calling upon them to refund along with interest @ 18% and compensation and Costs of proceedings.However, the said notice was not responded to by the BPTP. Alleging deficiency in service and Unfair Trade Practice on the part of the BPTP, the Complainant has filed the present Consumer Complaint seeking a direction to the BPTP to refund the deposited amount with interest @ 18% p.a. and costs of complaint. The BPTP filed its Written Version admitting to the booking, Allotment, Receipt of amount of ₹78,64,819/- execution of the Agreement dated 14.03.2012 and to Clause 5.1 of the Agreement, wherein they has agreed to deliver the possession of the allotted Apartment within 24 months from the date of execution of the Agreement with six months grace period and this Clause was subject to force majeure conditions.
05. The BPTP has raised the preliminary objections that the Complainant is not a “Consumer” as defined under Section 2 (1) (d) of the Act and is speculative investors as he has invested in the present Project only to gain profits by resale of the Apartment booked by him. It is further stated that the Agreement contains Arbitration Clause and especially after the amendment in Section 8 of the Arbitration and Conciliation Act, 1996, the matter has to be referred to the Arbitrator. 06. On merits, it is also contended that at the time of signing of the Agreement, the Complainant was well aware of the terms and conditions thereof and he has duly agreed to them. The Complainant is not entitled to a reciprocal compensation for the delay in handing over the possession as alleged. In terms of Clause 6 of the Agreement, the Complainant is only entitled to payment of “delay charges” @₹10 or ₹20 or ₹30 per sq. ft. per month in case of delay in handing over the possession beyond the stipulated period of 24 month plus the grace period of 6 months due to reasons attributable to the BPTP. Through various email, the Complainant was informed about the status of the Project, however, the same have not been brought on record by him. The construction work is going on in full swing at site and the BPTP is making every endeavour to hand over the possession to the Complainant at the earliest. The possession of the Floor was to be delivered to the Complainant within 24 months from the date of execution of the Agreement subject to the Force Majeure Conditions as enumerated in Clause 14 of the Agreement. The Complainant has failed to disburse timely payment towards the Unit in question and thus the Complainant cannot demand any compensation on account of delay in handing over the Apartment. In terms of Clause 5.6 of the Agreement, the BPTP is entitled for extension of time for completion of the Project is the delay is on account of the reasons beyond their control. The BPTP had carried the entire detailing and designing of the proposed services to be laid in the licensed area and Service Plan Estimates were approved for most of the area about 86% of the gross area. Due to various factors such as non-fixation of levels of adjoining sector roads, NPR road and services to be laid in due course of time by HUDA, the plan for remaining Colony could not be finalized by the Department. Owing to the directions of the DTCP and State Environment Appraisal Committee, the community site was to be relocated which in turn required re-designing as well as re-planning of internal services etc. The Service Plan Estimates were also revised due to laying of underground HT Cables and covering of drain to keep the area smell free, pollution free and environmental friendly. The BPTP is diligently working upon the Project “Amstoria”. It has already completed the developmental works like external plaster, internal plaster, plumbing, electrical works, HVAC work, access road from Dwarka Expressway and landscaping works including parks and plantation work. 07. All other averments made in the Complaint have been specifically denied by the BPTP and prayed dismissal of the Complaint with exemplary costs. The Complainants filed his Rejoinder denying all the rival contentions raised by the BPTP in its Reply and reiterating the averments made in the Complaint. 08. We have heard the Learned Counsel for the parties at some length and also perused the material available on record as well as the evidence adduced by the parties. 09. The plea taken by Learned Counsel for the BPTP that the Complainant is not a ‘Consumer’ as he had booked the floor for investment purpose or earning gain, is completely unsustainable in the light of the judgment of this Commission in Kavita Ahuja vs. Shipra Estates I (2016) CPJ 31, in which the principle laid down is that the onus of establishing that the Complainant was dealing in real estate i.e. in the purchase and sale of plots/flats in his normal course of business to earn profits, shifts to the Opposite Party, which in the instant case they had failed to discharge by filing any documentary evidence to establish their case. Therefore, we are of the considered view that the Complainant is a ‘Consumer’ as defined under Section 2 (1)(d) of the Act. 10. With regard to the preliminary objection taken by the BPTP that due to existence of Arbitration Clause in the Agreement, this Commission has no jurisdiction to entertain the Complaint, the Hon'ble Supreme Court in M/S Emaar MGF Land Limited vs Aftab Singh - I (2019) CPJ 5 (SC), has laid down the law that the Arbitration Clause in the Agreement does not bar the jurisdiction of the Consumer Fora to entertain the Complaint. As such, the said ground does not hold any merits. 11. The brief facts of the case are that the Complainant has booked a residential Floor in the Project, namely, “Amstoria” launched by the BPTP at Sector 102, Gurgaon, Haryana on 31.08.2021. The Complainant was allotted Unit No. A-134-FF First Floor and the Floor Buyer Agreement was also executed between the parties on 14.03.2012. As per Clause 5.1 of the Agreement, the possession of the booked Floor was to be delivered to the Complainant within a period of 24 months plus six months extended period from the date of execution of the Agreement i.e. by September, 2014. The total Sale Consideration of the booked Floor was ₹85,31,992/- out of which the Complainant had paid a sum of ₹78,64,819/- i.e. about 92% of the total Sale Consideration to the BPTP. However, despite having been received such a hefty amount long back, the BPTP has miserably failed to comply with its commitment/promise to deliver the possession of the allotted Floor to the Complainant in terms of the Agreement. 12. It is vehemently argued on behalf of the BPTP that delay in completing the construction of the Project and handing over the possession of the booked Floor to the Complainant has occurred due to non-payment by the Complainant as per the demands raised and for force-majeure reasons which were not under their control. 13. So far as, the contention that the Complainant is a habitual defaulter in making payments and therefore there was delay in handing over possession of Unit, is concerned, we are of the considered view that the BPTP as per terms of the Agreement, was at liberty either to charge penal interest on delayed payment or cancel the allotment of the Complainant and refund the amount deposited by him. However, the BPTP has not cancelled the booking of the Complainant for default in making payment and refunded the deposited amount. Having not exercised the said option, the BPTP now cannot take excuse that there was delay in handing over possession due to non-payment by the Complainant. Moreover, the BPTP has charged higher rate of interest for delayed payments by the Complainant. 14. The defence taken by the learned Counsel appearing for the BPTP that the delay is attributable to force majeure events, and, therefore, no deficiency of service can be attributed to them, is totally unsustainable, as the BPTP could not substantiate by means of any documentary evidence that the Project was hit by force majeure events. Except for stating that there was delay in obtaining the Service Estimates approved from the Competent Authorities, sanctioning the plants due to incorporate changes from time to time, non-fixation of levels of adjoining sector roads, NPR Road by HUDA, revision of Service Estimate due to change in location of Community sites, which viewed from any angle, cannot be construed to be a “force majeure event”, the BPTP has not filed any material on record to prove that there were any force majeure events beyond their control. 15. The BPTP, as per terms of the Agreement, was required to hand over the possession of the booked Floor to the Complainant latest by September 2014. However the construction was not completed within the stipulated time. In response to the queries of the Complainant regarding the exact date of delivery of possession, the BPTP through its emails dated 02.11.2016 to 17.05.2019, has given a stereo type reply that “it is essential for us to once again convey that the Organization is committed to meet customer expectations. We are striving to get the work completed on a high priority. It means that even after lapse of a period of five years from the committed date of possession, they were not sure when they will be able to deliver the possession to the Complainant. The Complainant had invested his hard earned money with the BPTP but till today the possession has not been handed over to the Complainant which has scattered his dream to have his own house. The Complainant has lost his trust in the BPTP as still today the BPTP is unable to give an exact date of delivery of possession. Moreover, no material has been produced by the BPTP to prove that the completion of construction and offer of possession has been delayed on account of reasons beyond its control; there is no justification for the said delay. Keeping in view the judgment of this Commission in Emmar MGF Land Ltd. & Ors. vs. Amit Puri [II (2015) CPJ 568 NC], wherein it was laid down that after the promised date of delivery, it is the discretion of the Complainant whether he wants to accept the offer of possession, if any, or seek refund of the amounts paid with reasonable interest, it is held that it is well within the Complainant’s right to seek for refund of the principal amount with interest and compensation as construction is still not complete. We are of the opinion that the Complainant cannot be made to wait indefinitely for the delivery of possession and the act of the BPTP in relying on force majeure clause while retaining the amounts deposited by the Complainant, is not only an act of deficiency of service but also amounts to Unfair Trade Practice, especially in light of the view of the fact that the BPTP charges interest @ 18% p.a. for any delay in the payments made by the flat purchasers, but at the same time, offers compensation of ₹10/- OR ₹20/- OR ₹30/-per sq. ft. per month for the delayed possession. In our view such terms in Clauses are extremely unfair and one sided and fall within the definition of ‘Unfair Trade Practice’ as defined under Section 2(r) of the Act. 16. At this juncture, we find it a fit case to place reliance on the recent judgment of the Hon’ble Apex Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, II (2009) CPJ 34 (SC), wherein the Apex Court has observed as follows: “6.7. A terms of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the Agreement dated 08.05.2012 are ex-facie one sided, unfair and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder. 7. In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyer’s Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent-Flat Purchaser. The Appellant-Builder cannot seek to bind the Respondent with such one-sided contractual terms.” For all the aforenoted reasons, this judgments squarely applies to the facts and circumstances of this case. 17. We further place reliance on the judgment of the Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, II (2019) CPJ 29 SC, in which the Hon’ble Apex Court has observed as hereunder: “.....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 in 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 the circumstances, we are of the view that the orders passed by the SCDRC and by the NCDRC for refund of moneys were justified.” 18. In the case in hand also the Complainant cannot be made to wait indefinitely for possession of the allotted Unit, as the construction is yet to be completed. Therefore, we are of the considered view that the Complainant is entitled for refund of the principal amount with reasonable interest. 19. Now, we address ourselves to the percentage of interest that has to be awarded to meet the ends of justice. 20. In the light of the observations of the Hon’ble Supreme Court in a catena of judgments awarding interest keeping in view the current market situation and that the Banks have lowered the interest rates and considering the recent downtrend in the rates of interest and the erosion in the values of real estate in the market, we are of the opinion that the Complainant is entitled to the refund of the amount deposited by him with interest @ 9% p.a. from the respective dates of deposits till the date of realization. 21. Hence, the Complaint is partly allowed with a direction to the BPTPto refund the deposited amount along with interest @ 9% p.a. from the respective date of deposits till payment, within a period of eight weeks from the date of passing of this order. The Complainant shall also be entitled for a costs of ₹50,000/-. |
