DR. INDER JIT SINGH, MEMBER

1. These two Consumer Complaints (CC) have been filed by the same Complainant against Opposite Parties as detailed above, inter alia praying for: -

1. To direct the opposite parties to refund the total amount of Rs. 83,79,508/- to the Complainant being Rs.48,71,807/- paid by the complainant as principal amount and Rs. 35,07,701/-(approx.) being interest @ 18% per annum w.e.f. the date of payment till the date of filing the instant complaint.

2. To direct opposite parties to pay interest @ 18% per annum on the aforesaid amount to the complainant being pendent lite and future interest.

3. To direct opposite parties to pay compensation of Rs. 15,00,000/- to the complainant for mental agony, harassment, discomfort and undue hardships caused o the complainant as a result of the deficiencies in services and above acts and omissions on the part of the opposite parties.

4. To direct opposite parties to pay a sum of Rs.1,00,000/- towards litigation costs.

2. Since the facts and question of law involved and the reliefs prayed for in these complaints are similar/identical and by the same Complainant and against the same Opposite Parties except for minor variations in the dates, events and flat numbers etc., which are summarized in the Table in para 7 below, these complaints are being disposed off by this common order. However, for the sake of convenience, Consumer Complaint (CC) no 2752 of 2018 is treated as the lead case and facts enumerated herein under are taken from CC 2752/2018.
3. It is averred/stated in the Complaint that: -

1. The Complainant is a single parent residing at Haryana with her parents and her minor son. OP-1 is a company registered under the Companies Act,1956 having its registered office at H-41, Udyog Nagar, Main Rohtak Road, New Delhi-110041 and is the project developer of the project in question. OP-2 is also a company registered under the Companies Act,1956 having its registered office at H-41, Udyog Nagar, Main Rohtak Road, New Delhi-110041 and is the license owning Company. OP-2 is the lawful owner and actual possession of the land on which the OP-1 was to develop and construct the project. Thus, both the OPs are owners of the said land on which the said project were to be constructed. OPs approached the Complainant to purchase residential apartments in the project being developed by OP-1 in the name and style “GREENBURG” which was being developed and constructed in Sector-86, Gurgaon, Haryana.

2. It is averred that the Apartment Buyers Agreement( ABA) dated 19/11/2014 was entered into and executed between the Complainant on one side as the purchaser and the OPs on other side. Complainant was allotted an apartment being Apartment in Tower-D bearing No.702 in the said project called as “GREENBERG”.

3. It is further averred that the committed date of possession as per ABA was 31/12/2016 i.e. 39 months from the date of construction  (01/10/2013).

4. Complainant duly paid Rs. 48,71,807/- being 30 % of the BSP, EDC/IDC, PLC, IFMS, Car Park, Club Charges plus service tax) as per the payment plan of the opposite parties.

5. Since the project was delayed and there was no scope or likelihood of the opposite parties delivering the possession even in the year 2017, the Complainant requested to refund the entire payment made so far with interest. However, the officials of the opposite parties advised and suggested the Complainant to opt out of the project, only then the entire payment made by the Complainant would be refunded. OP-1 misguided the Complainant to address a communication by email stating personal reasons and to show her desire to surrender the subject apartment so that entire payment made by her so far can be refunded as special case in order to avoid and prevent other consumers and flat buyers to opt out taking the example of Complainant’s case.The Complainant was made to understand that in the event of her citing personal reasons, the refund of money cannot be taken as a precedent by other apartment buyers and accordingly the Complainant addressed an email dated 26/12/2016 stating personal reasons as suggested by official of  OP-1, Mr Pramod Aggarwal, also the mail was dictated by one Mr. Gurjeet, the sales head of OP-1.

6. OP-1 in response to the said mail dated 26/12/2016, despite having promised to refund the entire amount with interest stated that they would deduct 15% of the basic sale price and other non-refundable charges including brokerage, service tax etc to which the Complainant was not satisfied and kept meeting the officials of OP-1, for not refunding the entire amount. Thus, the Complainant vide letter dated 17/01/2018 addressed to OP-1 intimated that she is no more interested in taking the belated possession of the apartment due to severe delay of OPs and sought refund of her entire amount paid so far along with interest, however no response was sent by OPs to the above mail.

7. OPs vide its communication dated 31/07/2018, after the Complainant sought for refund of entire amount to which OP-1 agreed, offered the possession of the subject apartment and that too to handover the possession by 30/08/2018.

8. It is averred that as per the status report of construction of Tower-D wherein the subject apartment is located the OPs itself admit that project was not completed, apparently the construction was not completed even in June 2018, further letter dated 30/08/2018 by OPs exposed the falsity of purported construction wherein the date of possession was further postponed to 29.09.2018.

9. In the draft document sent by OP-1 to Complainant, they have incorporated the deduction of Rs.13,50,000/- as a lump sum payment from the already paid amount of Rs.48,71,806/- tendered by the Complainant way back in the year 2014. It is also averred that OPs intended to illegally deduct the earnest money( which is 15% of the basic sale price) and other non refundable charges including brokerage, service tax etc which would approximately arrive at Rs.24 lakhs.

10. From above mentioned acts and omissions it is apparent that the OPs are indulged in unfair trade practice.

4. The OP-1 in their written statement/reply stated that: -

1. The building plan of the project was approved by DTCP on 29/02/2012 whereafter construction of the project started in full swing. OP-1 despite all odds, challenges, adverse circumstances, negative market sentiments, NGT injunctions, completed entire project and has also issued possession letters to the allottees including Complainant. Fire department, Haryana also issued provisional NOC to OP-2 on 19/07/2017 in respect of the various towers of the said project. OP-2 applied for the occupation certificate in January 2017 whereupon the said occupation certificate was issued by DTCP in favour of OP-2 on 27/07/2017 thereby authorizing OP-2 to allow allottees to occupy booked residential apartments after fulfilling certain requirements thereunder.

2. As per NOC dated 19/07/2017 issued by Director, Fire Services(Haryana), a condition was imposed for providing double staircase within one year from the date of approval of Hon’ble CM, the company was left with no other option but to construct additional second staircase in various towers of the above referred group housing project “Greenberg” including the civil work to this extent only. OP-2 already applied for electricity connection on 30/12/2016 and the meter has been installed on 20/08/2018 by DHBVN.

3. OPs could have issued the electricity through DG Sets but due to specific condition in the Occupation Certificate, the OPs could not have charged the tariff for DG Set electricity more than that of DHBVN tariff and the same would have caused a lot of loss to the OPs, hence the possession was not offered earlier.

4. It is further averred that total 14 towers have been built by OP-1 and in total 738 apartments have been constructed by OP-1 and out of which only 117 apartments have been booked and despite that OP-1 has completed construction of all the apartments as per sanctioned building plan.

5. Time was never the essence of contract as per ABA dated 19/11/2014.

6. This Commission does not have jurisdiction to entertain the present complaint as the Complainant is not a consumer in the present case and OPs have not rendered any service to the Complainant.

5. Complainant in his rejoinder, while reiterating the facts of the complaint denied each and every averments made by OPs in their written statement.

6. An IA No.13392/2019 dated 20/08/2019 was filed seeking stay of arbitration proceedings before the Arbitrator appointed by the OPs. During the arguments it was informed that the said arbitration proceedings have since been dismissed.

7. Evidence by way of an Affidavit was filed by the complainant and OP(s) broadly on the lines of averments made in their respective complaint/reply. Written Synopsis was also filed by the Complainant and OPs. The details of the flats allotted to the Complainant other relevant details of the case are given in the Table below:-

8. Heard counsels of both sides.

9. The contention that complainant is not a consumer as she has purchased the unit for commercial purpose is not valid as no such evidence has been adduced by the OPs in this regard. The plea of OPs that delay was due to force majeure circumstances is not valid as OPs have not been able to deliver the possession by the  committed date as per ABA. There is no documentary evidence to support the contention of the Opposite Parties that the reasons pleaded by them, can be construed as ‘Force Majeure’. The Complainant was within her rights to demand refund and actions of OPs in insisting on forfeiture/deduction of earnest money etc is not correct. OPs have admitted that Fire NOC was conditional and it required works in terms of double stair case. Fact of delay in providing regular electricity connection and non provision of electricity through DG sets on account of financial reasons have also been admitted by the OP.

10. In the instant case, there is a delay in handing over the possession of flat by the OPs. The complainants cannot be made to wait for an indefinite time and suffer financially. Hence, the complainant in the present circumstances have a legitimate right to claim refund alongwith fair delay compensation/interest from the OPs.

11. For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, the Consumer Complaint is allowed/disposed off with the following directions/reliefs: -

CONSUMER COMPLAINT NO.  2752   OF 2018

1. The OP(s) shall refund the entire principal amount of Rs. Rs.48,71,807/- (Rupees Forty eight lakhs seventy one thousand eight hundred seven only) to the complainant, alongwith compensation in the form of simple interest @ 9% per annum from the date of each payment till the date of refund. The principal amount refundable mentioned in this para is subject to verification of actual amount paid by the complainant based on receipts etc.

2. The OP(s) shall pay a sum of Rs.25,000/- as cost of litigation to the    complainant. 

3. The liability of the OPs shall be joint as well as several.

4. The payment in terms of this order shall be paid within three months from today.

5.  In case the complainant has taken loan from Bank(s)/other financial institution(s) and the same/any portion of the same is still outstanding, the refund amount will be first utilized for repaying the outstanding amount of such loans and balance will be retained by the complainant.  The complainant would submit the requisite documents from the concerned bank(s)/financial institution(s) to the OP(s) within four weeks from receipt of this order to enable them to issue refund cheques/drafts accordingly.

CONSUMER COMPLAINT NO.  2753  OF 2018

1. The OP(s) shall refund the entire principal amount of Rs.32,67,889/- (Rupees Thirty two lakhs sixty seven thousand eight hundred eighty nine only) to the complainant, alongwith compensation in the form of simple interest @ 9% per annum from the date of each payment till the date of refund.  The principal amount refundable mentioned in this para is subject to verification of actual amount paid by the complainant based on receipts etc.

2. The OP(s) shall pay a sum of Rs.25,000/- as cost of litigation to the    complainant. 

3. The liability of the OPs shall be joint as well as several.

4. The payment in terms of this order shall be paid within three months from today.

5. In case the complainant has taken loan from Bank(s)/other financial institution(s) and the same/any portion of the same is still outstanding, the refund amount will be first utilized for repaying the outstanding amount of such loans and balance will be retained by the complainant.  The complainant would submit the requisite documents from the concerned bank(s)/financial institution(s) to the OP(s) within four weeks from receipt of this order to enable them to issue refund cheques/drafts accordingly.

12. The pending IAs, in any of the Consumer Complaints, if any, also stand disposed off.