APPEARED AT THE TIME OF ARGUMENTS

IN CC No. 107, 108, 110 of 2015

For the Complainants           :        Mr. A.P.S. Ahluwalia, Sr. Advocate

                                                       Assisted by Mr. S.S. Ahluwalia        

For the Opposite Party          :        Mr. Prabhakar Tiwari, Advocate

IN CC/1252/2017

For the Complainant              :       Mr. Rahul Jain, Advocate

                                                        With Mr. Kunwar Pal, Advocate

                                                         And Mr. Rajesh Mehra

                                                         (Complainant No.1 in person)

For the Opposite Party            :        Mr. Prabhakar Tiwari, Advocate      

ORDER

C.VISWANATH

1. Four Consumer Complaints i.e. C.C. NO. 107 of 2015, C.C. No. 108 of 2015, C.C. No. 110 of 2015 and C.C. No. 1252 of 2015 have been filed by different Complainants against the same Opposite Party. Since, the cases are similar in nature, C.C. No. 107 of 2015 is taken as the lead case.

    

2. In the Complaint Case, it was stated that on 11.02.2008, the Complainants entered into Flat Buyer Agreement with the Opposite Party and were allotted T15-703 in Parsvnath Privilege Project for a total consideration of Rs.61,21,500/-. The Complainants made an initial payment of Rs.9,63,655/- towards the basic price on the date of signing of the Agreement and the remaining balance was to be paid at the time of possession. On 31.10.2008, the Complainants entered into a Loan Agreement with ICICI Bank for making the balance payment of Rs.51,25,000/- in order to purchase the said property from the Opposite Party. The Loan was taken for a period of 20 years on an EMI of Rs.54,800/- with a floating rate of interest between 10% to 13.5% p.a.. It was further stated in the Agreement that the Opposite Party would reimburse a part of the Equitable Monthly Installment (EMI) payable by the Complainants to the ICICI Bank. As per Clause 3 of the Agreement, it was agreed by the Opposite Party that it would reimburse the differential amount between the EMI calculated on 20 years loan basis upto 85% of price of the purchased flat calculated at the current floating rate of interest and the one calculated at the special rate of interest i.e. 2.99% (i.e. @555/- per lakh per month loan amount) till offer of possession of the Flat to the Complainants. It is pertinent to mention here that the Complainants received Rs.13,40,138/- for the period 10.03.2008 to 11.03.2013 interms of the said Agreement. The Complainants however, did not receive any payment as per terms of clause 3 of the Agreement, whereas the actual amount to be paid by the Opposite Party was Rs.25,24,446/- upto 31.12.2014 as contribution to EMIs in terms of Agreement dated 11.02.2008. It was submitted that despite repeated requests, the Complainants did not get the possession of the Flat T15-703. It was alleged that the Opposite Party had only constructed the superstructure of T-15-703 and are not ready to construct the entire Flat in terms of the Flat Buyer Agreement and handover the possession to the Complainants. The date of possession promised by the Opposite Party was within 36 months from the date of commencement of construction as specified in Clause 10 (a) of the Flat Buyer Agreement. It was stated that several years have passed thereafter, causing inordinate delay and loss to the Complainants, as their hard earned money had been invested. Clause 10(c) of the Flat Buyer Agreement clearly stipulates that in case of delay in construction of the Flat beyond the stipulated period of 36 months, subject to force majeure and other circumstances, the developer shall pay to the Buyer, compensation @Rs.53.82/- per sq. meter or @ Rs.5/- per sq. ft. of the super area of the Flat per month for the period of delay. However, no compensation for delay in delivery of possession has been paid so far to the Complainants. When Complainant No.1 visited the construction site, he didn’t see any significant development of the project. The Complainants tried to contact the Opposite Party, but invain. The Opposite Party refused to take calls from the Complainants and kept on evading. Thereafter, it came to the notice of the Complainants that the Opposite Party played a similar fraud with others who invested in the Opposite Party Project. On 10.06.2010, the Complainants received a letter from the Opposite Party stating that the construction of the project would be completed by March 2012 and that the Complainants would be duly compensated for delay by way of penalty as per clause 10(c) of the Flat Buyer Agreement, but still the construction of the Flat was not completed. Hence, the Complaint was filed.

    

3. Alleging deficiency on the part of Opposite Party, Complainantsfiled Complaint before this Commission under Section 21 of the Consumer Protection Act, 1986, praying relief as under:-

4. Direct the Opposite Party to forthwith pay/refund the Complainants Rs.54,31,075/- duly received by the Opposite Party from the Complainants along with interest @24% per annum from the date of making of the payments till the pendency of the Complaint towards the Flat, which comes to Rs.89,06,963/-.

5. A sum of Rs.35,46,827/- towards interest paid EMI paid by the Complainants to ICICI Bank for making the payment to the Opposite Party from 10.03.2008 till date of decision of this Commission, on account of delay in construction and delay in granting possession letter in accordance with clause 10(c) of the Flat Buyer Agreement.

6. A Compensation of Rs.20,00,000/- as punitive damages on account of deficiency in service, causing immense loss, mental agony, harassment, tension, torture and inconvenience caused to the Complainants, causing complete dislocation and disruption of the plans of the Complainants by the Opposite Party.

7. Cost of the Proceedings.

8. Any other and/or further relief(s) may also be granted in favour of the Complainants and against the Opposite Party.

    

9. The Complaint was contested by the Opposite Party by filing Written Statement in which it was stated that amounts/reliefs as sought by the Complainants in the Complaint were inflated and highly exaggerated and not borne out by material placed on record. It was further contended that the relief sought was Rs.54,31,075/-,the value of the goods or services claimed by the Complainant alongwith compensation of Rs.20,00,000/-. Hence, the Complaint lacked pecuniary jurisdiction of this Hon’ble Commission under section 21(a) (i) of the Consumer Protection Act, 1986. The Opposite Party submitted that the Complaint was liable to be dismissed in limine for non-joinder of necessary parties as Complainants failed to implead the ICICI Bank as a party to the proceedings, without whom no effective order could be passed by this Commission. In this regard, it was further submitted that the Opposite Party issued a mortgage letter dated 31.01.2008 to ICICI Bank with respect to mortgage of the property allotted to the Complainants and therefore the ICICI Bank under the Loan Agreement and the letter of mortgage had sufficient interest in the property as well on the investment of the Complainants with the Opposite Party. The Complaint was liable to be rejected on account of delay in approaching this Commission. The Complainants were contradicting their own submissions by claiming that the possession of the Property ought to have been received in 36 months form the date of commencement of constrcution while on the other hand, the Complainants claimed in the para 23 of the Complaint that the cause of action first arose after expiry of 36 months from the date of commencement of construction and possession had not been handed over for the last 7 years. Specific terms were enumerated in the Flat Buyer Agreement qua the refund of money and the Parties were bound by the terms in the Flat Buyer Agreement. Refund of money @24% interest per annum was contrary to terms of the Flat Buyer Agreement. There was no provision in the Flat Buyer Agreement for payment @24% interest per annum by the Opposite Party. Even otherwise, once interest was claimed in the nature of compensation, further amounts could not be claimed as compensation. It was clearly stated that the delay in construction of project was due to recession in the real estate sector and the Opposite Party had duly communicated to the Complainants informing the status of the project and also reiterated its stand to honour the terms and conditions of the Flat Buyer Agreement in case of any delay, notwithstanding the difficulties faced by the Opposite Party so as to safeguard the interests of the Complainants. Admittedly, the project was under way and not abandoned by the Opposite Party and the money deposited by the Complainants had been utilized in construction activities and withdrawal from the project would cause unsustainable harm to other Consumers as well. The Complainants availed a housing loan facility for making payments towards the Flat booked by them and entered into a Tripartite Agreement with the Bank and the Opposite Party with respect to the said loan. Thus, the Bank had the first lien over the property. The Complainants could not establish any deficiency in service or consumer dispute as contemplated under the Consumer Protection Act, 1986 against the Opposite Party. The Opposite Party is a customer oriented organization and always believed in maintaining good and cordial relationship with its customers. The Opposite Party with the purpose of sharing the burden of the EMI’s being paid by the Complainants, facilitated the Complainants by paying part of the EMI’s to the Complainants. An Agreement dated 11.02.2008 was signed between the Complainants and the Opposite Party for reimbursement of EMI’S in terms of clause 3 of the Agreement as well as clause 6. The basis of reimbursement of EMI’s as contained in the Agreementwas reproduced as under:

   “Clause 3- That in consideration of the customer making payment of major portion of the price of the Flat as aforesaid, PDL agrees to reimburse to the Customer the amount of the differential between the EMI calculated on 20 years loan basis upto 85% of price of the Flat calculated at the current floating rate on interest and the one calculated at the special rate of interest i.e. 2.99%, (i.e. @Rs.555/- per lakh per month of the loan amount) till offer of possession of the Flat to the Customer”.

   “Clause 5- that PDL shall make reimbursement of the differential between the EMI on 20 years loan on quarterly basis on  production of satisfactory proof of payment of EMIs by the customer to the Bank. The customer explicitly agrees that he/she shall bear the entire EMI in full from the date of offer of possession and PDL shall not reimburse any portion of the EMI from the date of offer of possession for any reason, whatsoever. Penalty for delay, if any, in offering possession beyond the committed period shall not be applicable during the period for which differential amount of EMI is reimbursed by PDL to the customer.”

   As per the Agreement, Rs.31,166/- per month was payable by the Opposite Party to the Complainants till possession. The Opposite Party also reiterated that they had been paying the said sum regularly, except for few months and the said non-payment occurred due to certain financial constraints in the Company. The Opposite Party was ready and willing to pay the balance amount of the EMI’s as per the Agreement, subject to the Complainants filing proof of payment receipt. As per the terms of the Agreement, it had also been agreed between the Complainants and the Opposite Party that on cancellation of the booking of the Complainants, the Opposite Party would be entitled for refund of the amount equivalent to the EMI’s reimbursed. Thus, it was submitted that the Complaint had been filed without any legally justifiable cause of action and liable to be dismissed with exemplary costs. The Opposite Party further relied on following judgements: 

10. Bharathi Knitting Vs. DHL Courier World Wide Express Courier reported at (1996)4 SCC 704 in which the Hon’ble Supreme Court held that the terms and conditions agreed to between the parties are binding and such terms of the agreement couldn’t have been described as one sided.

11. DLF Universal Vs. Ekta Seth reported at (2008) 7 SCC 585, in which the Hon’ble Supreme Court held that no delay would accrue upon the Appellant due to delay in handing the possession. Having not exercised the specific right to cancel the agreement, no grievance can be made by the Complainants on account of delay in handing over possession.

12. M/s Unikol Bottlers Ltd. Vs. M/s Dhillion Kool Drinks and Anr. reported at (1994) 28 DRJ 483, in which Hon’ble Delhi High Court has laid down principles in relation to a commercial contract between the parties. In Para 31, itheld that when a plea of duress/coercion and unequal bargaining power is raised, the question of “free will” arises. In such cases, it is significant to consider the following factors:

13. Did the Plaintiff protest before or soon after the agreement?

14. Did the Plaintiff take any steps to avoid the contract?

15. Did the Plaintiff have any alternative course of action or remedy?

16. If so, did the Plaintiff pursue or attempt to pursue the same?

    Did the Plaintiff convey benefit of independent advise?   

     

17. Heard the Learned Counsels of the Complainants as well as the Opposite Party. Also carefully perused the record.

     

18. The Complainants have relied on judgement passed by the National Commission in “Aditya Laroia Vs. Parsvnath Developers Ltd.”, “Puneet Malhotra, Nitin Bhatia. Sunil Joshan and Anr.” and “Amit Arora &. Vs. Unitech Ltd. and others where this Commission had granted 18% interest, with the amount to be refunded. The Complainants have also quoted many judgements in which different rates of interest has been granted in various judgements and orders.

     

19. The facts in this case are similar to the case ofAditya Laroia Vs. Parsvnath Developers Ltd. covered in CC No. 263 of 2015, wherein this Commission has disposed of the Complaint with a direction to the Opposite Party to refund the entire amount received by it from the Complainant along with compensation in the form of simple interest @18% per annum from the date of each paymenttill the date on which the said refund along with compensation in the form of interest is paid.

     

20. In “Parsvnath Developers Ltd. Versus Aditya Laroia” Civil Appeal no. 12815 of 2016, the Hon’ble Supreme Court held that the parties have arrived at a settlement. Taking note of the submission made, the appeal was disposed by holding that the judgement passed by the National Consumer Disputes Redressal Commission in C.C. No. 263 of 2015, was deemed to have been satisfied and no further execution shall be levied. Counsel for the Opposite Party undertook to provide a copy of the settlement that was reached between the parties within a week, with an advance copy to the Complainants.He, however, has not done so.

     

21. In view of above stated facts and judgements relied, we come to the conclusion that since the Opposite Party could not complete the project in which the residential Flats were booked by the Complainants, either within the agreed time of 36 months or even within a reasonable time thereafter, and even today the projects are nowhere near completion, there is a continuing cause of action and the Complainants are entirely justified in seeking refund of the amount which they had paid to the Opposite Party alongwith interest.

     

22. In the Complaint it was stated that the Complainant took loan from the ICICI Bank at a floating rate of interest varying between 10% to 13.5%. p.a. Taking this into the consideration, it would be just, fair and reasonable to allow the Complaint with a direction to the Opposite Party to refund the entire amount paid by the Complainant with simple interest @12% per annum.

     

For the reasons stated as above, as the Consumer Complaint No.107 of 2015 is taken as lead case, all the four Complaints i.e. C.C. No. 107 of 2015, C.C. No. 108 of 2015, C.C. No. 110 of 2015 and C.C. No. 1252 of 2015 are disposed of with a direction to the Opposite Party to refund the amount which each of the Complainants paid them along with simple interest @12% per annum from the date of payment till the date of refund. The Opposite Party shall also pay Rs.25,000/- as cost of litigation to the Complainants in each case. Payments shall be made by the Opposite Party within 3 months from the date of this order.