R.K. AGRAWAL, J., PRESIDENT

1. The present batch of Consumer Complaints has been filed under Section 21(a)(i) of the Consumer Protection Act, 1986 (for short “the Act”) by the Complainants, against the Opposite Party, M/s. Ireo Grace Realtech Private Ltd. (hereinafter referred to as the ‘Developer’) for refunding of money as the Opposite Party Developer failed to hand-over the possession of the Flats booked by them in the Project launched by the Developer in the name and style of “The Corridor ”, within stipulated period. 

    

2. Since the facts and question of law involved in these Complaints are similar except for minor variations in the dates and events and flat numbers, these Complaints are being disposed of by this common Order. However, for the sake of convenience, Consumer Complaint No. 2236 of 2016 is treated as the lead case and the facts enumerated hereinafter are taken from Consumer Complaint No. 2236 of 2016. 

    

3. According to the Complainant, the facts of the case are that in response to the Applications invited by the Opposite Party Developer for allotment of flats in their upcoming Project, “The Corridors” (hereinafter referred to as the ‘Project’) located at Golf Course Extension Road, Sector-67-A, Tehsil & District Gurgaon, Haryana, the Complainant booked a residential flat in the Project by paying a sum of ₹14 lakh towards booking amount.The Complainant was allotted Unit No. CD-C6-09-901 having super area of 1483.28 sq. ft. on 16.03.2013.Apartment Buyer’s Agreement (hereinafter referred as the Agreement) was sent by the Opposite Party Developer for getting the signatures of the Complainant.It is the say of the Complainant that the Apartment was originally booked @ ₹8750/- per sq. ft. but in the Agreement, the rate of booking was mentioned as ₹9200/- per sq. ft.The Agreement was one-sided and upon resistance, the Complainant was threatened by the Developer that the Unit shall be cancelled and whole money paid shall also be forfeited and the Complainant was forced to sign upon the dotted lines on the Agreement.Agreement was executed between the Parties on 03.04.2014.As per Clause 13.3. of the Agreement, the possession of the Unit was to be handed over within a period of 42 months from the date of approval of the building plans.Clause 13.3 of the Agreement reads as under:

“Subject to Force Majeure, as defined herein and further subject to the allottee having complied with all its obligations under the terms and conditions of this Agreement and not having defaulted under any provision(s) of this Agreement including but not limited to the  timely payment of all dues and charges including the total Sale Consideration, registration charges, stamp duty and other charges and also subject to the Allottee having complied with all formalities or documentation as prescribed by the Company, the Company proposes to offer the possession of the said Apartment to the Allottee within a period of 42 (Forty Two) months from the date of approval of the Building Plans and/or fulfillment of the preconditions imposed thereunder (“Commitment period”).  The Allottee further agrees and understands that the Company shall additionally be entitled to a period of 180 days (“Grace period”), after the expiry of the said Commitment Period to allow for unforeseen delays beyond the reasonable control of the Company.”

1. The Complainant made payment of ₹1,55,17,716/- (Rupees One Crore Fifty Five Lacs Seventeen Thousand Seven Hundred Sixteen only) on different dates upto the date of filing of the Complaint as per demand of the Opposite Party Developer, despite that the Opposite Party Developer could not complete the construction work at the Project within stipulated period and failed to deliver the possession of the Unit.The Complainant had lost trust in the Opposite Party Developer.Alleging deficiency in service and Unfair Trade Practice on the part of the Opposite Party Developer, the Complainant has filed the present Complaint with following prayer:-

   “A.    Direct the Opposite Party to pay the Complainant a sum of ₹1,55,17,716/- (₹ One Crore Fifty Five Lacs Seventeen Thousand Seven Hundred Sixteen only), which had been paid by the Complainant to the Opposite Party against the Unit No. CD-C-6-09-901 in Group Housing Colony Located at Golf Course Extension Road, Sector-67-A in the revenue estate of Village Dhumsapur and Maidwas, Tehsil & District Gurgaon, Haryana known by the Project Name as “ THE CORRIDORS along-with interest @ 20% per annum compounding quarterly till realization;

    

   B.      Award the cost and litigation expenses & Compensation for harassment & mental agony to the tune of ₹50,0000/- (₹ Five lacs only) to the Complainant ;

    

   C.      Pass such other further order as this Hon’ble Commission may deem fit and proper in the interest of justice.”

    

2. Upon notice, the Complaint was resisted by the Opposite Party Developer by filing Written Statement.In the Written Statement the Opposite Party Developer took preliminary objection that the Complainant is not a ‘Consumer’ as defined under Section 2(1)(d) of the Consumer Protection Act, 1986 as the Complainant has invested in the Apartment for commercial gain and to earn profits.The Complainant, alongwith his wife, has also made another booking in a different Project, i.e., Skyon of the Opposite Party Developer.It was also stated that there is Arbitration Clause in the Agreement and, therefore, the Complaint is not maintainable before this Commission.The Complainant is bound by the terms of the Apartment Buyers’ Agreement and as per Agreement, the Basic Sale Price is ₹9200/- per sq. ft.  It was also stated that the 90 Meter HUDA Road is part of the Gurgaon-Manesar Master Plan 2031 and the Haryana Government Sectoral Plan dated 9.11.2012 and it would be developed by the State Government and not by the Opposite Party Developer.  As per Clause 13.3 of the Agreement, the Developer was proposed to handover the possession of the Apartment within 42 months (Commitment Period) from the date of approval of building plans and / or fulfilment of the preconditions imposed thereunder within a grace period of 180 days. Building approval was granted on 23.07.2013 and the last pre-condition, i.e., Fire Safety Scheme Approval was granted only on 27.11.2014, therefore, in terms of the Clause 13.3 of the Agreement, the proposed time for handing over the possession has to be computed from 27.11.2014 and 48 months from 27.11.2014 (including the 6 months grace period), would expire only on 27.11.2018.  The present Complaint is pre-mature as it has been filed in the year 2016, before committed date of possession, i.e., 27.11.2018.  It was also stated that the Complainant has sought refund of amount alongwith interest @20% p.a. as also a sum of ₹5,00,000/- towards litigation expenses and compensation which is not tenable.  It was stated that delay is due to obtaining statutory approvals from the State Government and there was no deficiency in service or Unfair Trade Practice on their part.  It was prayed that the Complaint be dismissed. 

    

3. Ms. Rahella Khan, learned Counsel for the Complainants submitted that the Opposite Party Developer cannot surpass to obtain mandatory licenses and necessary approvals from the concerned authorities before start of construction.The building plans were approved on 23.07.2013 and the Developer was required to hand over the possession of the apartments within a period of 42 months from the date of approval which expired on 22.01.2017, if the Grace Period of 6 months under Clause 13.3 was added, the Developer was required to give possession by 22.07.2017.But seeing the pace of construction at site, there was no possibility to hand over the possession of the Apartment within stipulated period.She further submitted that the Opposite Party Developer has failed to produce any cogent evidence in support of their contention that the Complainant is not a ‘Consumer’ as the Complainant has booked Apartment for commercial gain and to earn profits.As far as the plea regarding booking of second Apartment in the project ‘Skyon’ developed by Opposite Party Developer is concerned, she submitted that the Apartment in ‘Skyon’ had been booked by the Complainant for his own use and the present one for Complainant’s old aged retired father and other family members.  In support of her contention she relied upon an order passed by this Commission in Kavita Ahuja vs. Shipra Estates Ltd. I (2016) CPJ 31.  She further submitted that the Complainant has lost faith in the Opposite Party Developer and prayed that their Complaint be allowed and the Opposite Party Developer be directed to refund their deposited amount alongwith interest.  In support of her case, she placed reliance on the decisions rendered by a coordinate bench of this Commission in the cases “CC No.3873 / 2017 entitled “Abhishek Khanna & Ors. Vs. Ireo Grace Realtech Pvt. Ltd.” CC No.1382 / 2018 entitled “Promila Kashyap vs. Ireo Grace Realtech Pvt. Ltd.”, CC No. 525 / 2017 entitled “Ritu Hasija & Anr. Vs. Ireo Grace Realtech Pvt. Ltd.” and CC No.696 / 2017 entitled “Amit Arora vs. Ireo Grace Realtech Pvt. Ltd.”

    

4. Mr. Sameer Chaudhary, learned Counsel appearing on behalf of the Opposite Party Developer submitted that this Commission has dealt with the issues relating to the same Project ‘The Corridor’ in Orders dated 28.03.2019 and 27.03.2019 in ‘CC No. 3873 / 2017, “Abhishek Khanna & Ors. Vs. Ireo Grace Realtech Pvt. Ltd.” and “CC No.696 / 2017 entitled “Amit Arora vs. Ireo Grace Realtech Pvt. Ltd.” respectively.They have challenged the said Orders before the Hon’ble Supreme Court by filing Civil Appeal Diary No. 23235 / 2019 and 34491 / 2019 and the Hon’ble Supreme Court has stayed the operation of the Impugned Orders passed by this Commission.

    

5. We have heard Ms. Rahella Khan, learned Counsel for the Complainant, Mr. Sameer Chaudhary, learned Counsel for the Opposite Party Developer and gone through the Complaint, Written Statement and material available on record.

    

6. Several Consumer Complaints were filed against Opposite Party Developer, i.e., M/s. Ireo Grace Realtech Pvt. Ltd. by the Allottees of ‘The Corridor’ Project.Vide Order dated 02.04.2019, the Consumer Complaints were divided into three categories, one category comprising of the Complaints where there are multiple defaults but no cancellations, second category where the allotments have been cancelled and third category where there are more than one bookings by the same Allottees.For ready reference, Order dated 02.04.2019 is reproduced below:-

   “It is pointed out by the learned counsel for the parties that the issues are not identical in all these complaints since in some of them the allotments have been cancelled, in some of them the allottees have made more than one booking, in some others, there are multiple defaults in payment of installments.

    

   The matters are therefore divided into three categories, one category comprising of the complaints, where there are multiple defaults but no cancellations, second category where the allotments have been cancelled and third category where there are more than one bookings by the same allottee.  The matters where there are multiple defaults will be taken up first, followed by the matters in which the allotments have been cancelled.  The case in which there is more than one booking by the same allottee will be taken after the matters relating to the first two categories have been heard.”

    

7. The present batch of Consumer Complaints relates to the category where more than one bookings have been made by the same Allottees. All other issues were identical in all the aforesaid Consumer Complaints except the issue of more than one booking by the same Allottee.

    

8. The contention of the Learned Counsel for the Opposite Party Developer that the Complainant is not a ‘Consumer’ as the Complainant has booked more than one Apartments for earning profits is completely unsustainable in the light of the judgement 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.

    

9. Regarding the issue of ‘Arbitration Clause’, 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 an Arbitration clause in the Agreement does not bar the jurisdiction of the Consumer Fora to entertain the Complaint. Hence, the objection raised by the Learned Counsel for the Opposite Party that the clause of Arbitration bars this Commission from entertaining the Complaint is unsustainable.

    

10. All other contentions raised by the Opposite Party Developer in respect of the Project ‘The Corridor’ have been dealt with by this Commission in the cases, i.e., CC No.3873 / 2017 entitled “Abhishek Khanna & Ors. Vs. Ireo Grace Realtech Pvt. Ltd.” CC No.1382 / 2018 entitled “Promila Kashyap vs. Ireo Grace Realtech Pvt. Ltd.”, CC No. 525 / 2017 entitled “Ritu Hasija & Anr. Vs. Ireo Grace Realtech Pvt. Ltd.” and CC No.696 / 2017 entitled “Amit Arora vs. Ireo Grace Realtech Pvt. Ltd.”.The Opposite Party Developer filed Civil Appeals against these Orders before the Hon’ble Supreme Court.The Hon’ble Supreme Court dealt with all the contentions raised by the Opposite Party Developer and disposed off the Appeals vide their Judgment dated 11.01.2021 in the case “Ireo Grace Realtech Pvt. Ltd. vs. Abhishek Khanna & Ors.” [Civil Appeal No. 5785 / 2019 & other connected Appeals].The Hon’ble Supreme Court had held that 27.11.2018 would be the relevant date for offer of possession by observing as under:-

    “On 27.11.2014, the Director, Haryana Fire Service granted approval to the Fire Fighting Scheme subject to the conditions mentioned therein. The computation of the period for handing over possession would be computed from this date. The Commitment Period of 42 months plus the Grace Period of 6 months from 27.11.2014, would be 27.11.2018, as being the relevant date for offer of possession.”

     

11. Hon’ble Supreme Court also held that the Agreement is one-sided and the Opposite Party Developer cannot compel the Apartment Buyer to be bound by the one-sided contractual terms contained in the Apartment Buyer’s Agreement by observing as under :-

    “We are of the view that the incorporation of such one-sided and unreasonable clauses in the Apartment Buyer‘s Agreement constitutes an unfair trade practice under Section 2(1)(r) of the Consumer Protection Act. Even under the 1986 Act, the powers of the consumer fora were in no manner constrained to declare a contractual term as unfair or one-sided as an incident of the power to discontinue unfair or restrictive trade practices. An ―unfair contract‖ has been defined under the 2019 Act, and powers have been conferred on the State Consumer Fora and the National Commission to declare contractual terms which are unfair, as null and void. This is a statutory recognition of a power which was implicit under the 1986 Act.

     

    In view of the above, we hold that the Developer cannot compel the apartment buyers to be bound by the one-sided contractual terms contained in the Apartment Buyer‘s Agreement”

     

12. Hon’ble Supreme Court on the issue “Whether the Apartment Buyers are entitled to terminate the Agreement, or refund of the amount deposited with Delay Compensation” held as under:-

    “In the present case, the allottees before this Court in the present batch of appeals, can be categorised into two categories:-

     

    i) Apartment Buyers whose allotments fall in Phase 1 of the project comprised in Towers A6 to A10, B1 to B4, and C3 to C7, where the Developer has been granted occupation certificate, and offer of possession has been made, are enlisted in Chart A;

     

    ii) Apartment Buyers whose allotments fall in Phase 2 of the project, where the allotments are in Towers A1 to A5, B5 to B8, C8 to C11, where the Occupation Certificate has not been granted so far, are set out in Chart B below.

     

    ………..
     

    Chart A allottees (i) We are of the view that allottees at Serial Nos. 1 and 2 in Chart A are obligated to take possession of the apartments, since the construction was completed, and possession offered on 28.06.2019, after the issuance of Occupation Certificate on 31.05.2019. The Developer is however obligated to pay Delay Compensation for the period of delay which has occurred from 27.11.2018 till the date of offer of possession was made to the allottees.

    ……..

     

    Chart B allottees

     

    (i) Insofar as the allottees in Chart B are concerned, they have paid part consideration, in most cases up to the 4th instalment till 2017, when they found that there was no progress being made in respect of the Towers in which the apartments had been allotted to them. It is an admitted position that Occupation Certificate for Towers A1, A2, A3, B7, C9 and C11, in which the allotments have been made for this category has not been issued by the Municipal Corporation

     

    The apartments have not been ready for allotment even as on 30.06.2020, as per the date fixed before the RERA Authority.

     

    (ii) The allottees submitted that they were facing great hardship since they had obtained loans from Banks for purchasing these apartments, and were paying high rates of interest. In 2017, when they realised that there was no construction activity in progress, they were constrained to file consumer complaints before the National Commission, and then discontinued payment of further instalments.

     

    (iii) The Developer made an alternate offer of allotment of apartments in Phase 1 of the project. The allottees are however not bound to accept the same because of the inordinate delay in completing the construction of the Towers where units were allotted to them. The Occupation Certificate is not available even as on date, which clearly amounts to deficiency of service. The allottees cannot be made to wait indefinitely for possession of the apartments allotted to them, nor can they be bound to take the apartments in Phase 1 of the project. The allottees have submitted that they have taken loans, and are paying high rates of interest to the tune of 7.9% etc. to the Banks.

     

    Consequently, we hold that the allottees in Chart B are entitled to refund of the entire amount deposited by them.

     

    (iv) In so far as award of compensation by payment of Interest is concerned, clause 13.4 of the Apartment Buyer‘s Agreement provides that the Developer shall be liable to pay the allottee compensation calculated @ ₹ 7.5 per sq. ft. of the Super Area for every month of delay, after the end of the Grace Period. The compensation will be payable only for a period of 12 months.

     

    The Apartment Buyers in their Complaint filed before the National Commission made a prayer for refund of the amount deposited alongwith Interest @ 20% p.a. compounding quarterly till its realisation. The Apartment Buyers, in their submissions have stated that they have obtained home loans on which Interest @ 7.90% p.a. is being paid, even as on date. We have considered the rival submissions made by both the parties. The Delay Compensation specified in the Apartment Buyer‘s Agreement of ₹ 7.5 per sq. ft. which translates to 0.9% to 1% p.a. on the amount deposited by the Apartment Buyer cannot be accepted as being adequate compensation for the delay in the construction of the project. At the same time, we cannot accept the claim of the Apartment Buyers for payment of compound interest @ 20% p.a., which has no nexus with the commercial realities of the prevailing market.

     

    We have also taken into consideration that in Subodh Pawar v. IREO Grace, this Court recorded the statement of the Counsel for the Developer that the amount would be refunded with Interest @ 10% p.a. A similar order was passed in the case of IREO v. Surendra Arora. However, the Order in these cases were passed prior to the out-break of the pandemic.

     

    We are cognizant of the prevailing market conditions as a result of Covid–19 Pandemic, which have greatly impacted the construction industry.

     

    In these circumstances, it is necessary to balance the competing interest of both parties. We think it would be in the interests of justice and fairplay that the amounts deposited by the Apartment Buyers is refunded with Interest @ 9% S.I. per annum from 27.11.2018 till the date of payment of the entire amount.

     

    The refund will be paid within a period of three months from the date of this judgment. If there is any further delay, the Developer will be liable to pay default interest @ 12% S.I. p.a. (v) The Developer shall not deduct the Earnest Money of 20% from the principal amount, or any other amount as mentioned in Clause 21.3 of the Agreement, on account of the various defaults committed by the Developer, including the delay of over 7 months in obtaining the Fire NOC.”

     

13. In the present Complaint Cases, Apartment Buyers whose allotments fall in Phase 1 of the Project comprised in Towers A6 to A10, B1 to B4 and C3 to C7, where the Opposite Party Developer has been granted Occupation Certificate (O.C.), and offer of possession has been made, are enlisted in following Chart A:

    Chart A

    (List of Apartment where Occupation Certificate Obtained)

          Apartment Buyers’ whose allotments fall in Phase 2 of the Project comprised in Towers A1 to A5, B5 to B8 and C8 to C11, where the Occupation Certificate (O.C.) has not been granted so far, are enlisted in following Chart B:

Chart B

(List of Apartments where No O. C. Available Even as on Date)

1. Respectfully following the ratio of the Judgment of the Hon’ble Supreme Court in the case of “IREO Grace Realtech Pvt. Ltd. (supra)”, we direct the Complainants/Allottees enlisted in Chart A to take possession of the Apartments after making payment of outstanding dues, since the construction was completed and possession offered on 28.06.2019, after issuance of Occupation Certificate on 31.05.2019.The Developer shall however, pay Delay Compensation in the form of simple interest @9% p.a. on the deposited amount for the period of delay which has occurred from 27.11.2018 till the date of offer of possession was made to the Complainants/Allottees.

    

2. The Opposite Party Developer is directed to refund the entire amount deposited by the Complainants/Allottees enlisted in Chart B, alongwith interest @9% S.I. p.a. within 3 months from the date of this Order failing which the Developer shall be liable for payment of default interest @12% S.I. p.a. till the payment is made.The Opposite Party Developer shall not deduct the Earnest Money of 20% from the principal amount, or any other amount as mentioned in Clause 21.3 of the Agreement, on account of the various defaults committed by the Developer, including the delay of over 7 months in obtaining the Fire NOC.

    

3. The Consumer Complaints are disposed off in above terms, with no order as to Costs.