1. The present Consumer Complaint has been filed under Section 21(A)(i) of the Consumer Protection Act, 1986 (for short “the Act”) by Chanda Manghani and Rahul Manghani (hereinafter referred to as the Complainants) against Opposite Party, M/s. Raheja Developers Ltd. (hereinafter referred to as the Developer), seeking refund of the amount paid towards purchase of Flat alongwith interest as the Opposite Party Developer failed to hand-over the possession of the Flat booked by them in the Project launched by the Developer in the name and style of “Raheja Revanta” located at Sector 78, Gurugram, Haryana.  

 

2. Brief facts as narrated in the Complaint are that the Opposite Party Developer launched a Residential Housing Project in the name and style of “Raheja’s Revanta” located at Sector 78, Gurugram, Haryana.  The Complainants booked a residential Apartment for their personal use in the said Project by paying a sum of ₹6,81,315/- to the OP Developer on 15.03.2012.  Unit No. A-181, at 18th Floor was allotted to the Complainant for a total sale consideration of ₹92,49,623/-.  Agreement to Sell (hereinafter referred to as the Agreement) was executed between the Parties on 11.05.2012.  It was averred by the Complainant that the terms of the Agreement were one-sided and more beneficial to the Opposite Party Developer as according to Clause 3.7 in case of delay, the Purchaser was liable to pay interest @18%, whereas as per Clause 4.2, in case of delay in possession, the OP Developer was liable to pay meager compensation in the form of ₹7/- per sq. ft.  As the Complainants have already deposited huge amount with the Opposite Party Developer they have to sign the unilateral Agreement.  As per Clause 4.2 of the Agreement, the possession of the Apartment was to be delivered within 48 months from the date of execution of the Agreement, by 11.05.2016.  The Complainant had opted for Construction Linked Payment Plan and had deposited ₹82,06,538/- on different dates as per demand of the Opposite Party Developer.  Despite that the Opposite Party Developer miserably failed to deliver the possession of the Flat within stipulated period.  Whenever the Complainant raised queries with the Opposite Party Developer regarding handing over the possession, the Developer neither provided any specific date for the delivery of the possession nor refunded the amount deposited by the Complainants.  They have lost trust on the Opposite Party Developer and are no longer interested in having possession of the Apartment.  Alleging deficiency in service and Unfair Trade Practice on the part of the Opposite Party Developer, the Complainants has filed the present Consumer Complaint with the following prayer:  

a) allow the present complaint;

 

b) Direct the Opposite Party to refund the entire amount paid by the Complainants i.e. Rs.82,06,538/- (Rupees Eighty two Lakhs Six Thousand Five Hundred and Thirty Eight Only) along with 18% simple interest as compensation from the date of payment until realization; and

 

c) Direct the Opposite Party to make the payment for the sum of Rs.60,000/- (Rupees Sixty Thousand Only) per month from the date of booking unit refund as compensation for the loss suffered by the complainants on their rental accommodation during this time; and 

 

d) Opposite Party may be further directed to compensate the Complainants to the tune of Rs.10,00,000/- (Rupees Ten Lakhs) for mental harassment and unfair trade practices.

 

e) Opposite Party may also be directed to pay the cost of the Complainants to the tune of Rs.1,00,000/- (Rupees One Lac Only) as litigation expenses;

 

f) Pass such other or further order/orders as maybe deemed fit and proper on the facts and in the circumstances of this case.

 

3. The Complaint was resisted by the Opposite Party Developer by filing its Written Statement in which the Opposite Party Developer stated the Complainants have already a property in Delhi and have booked the Apartment in question, for investment as such they do not fall under the definition of ‘Consumer’ as defined under section 2(1)(d)(ii) of the Act, therefore, the Complaint is not maintainable. 

4. It was further stated that the terms of the Agreement are binding on both the Complainant and the Opposite Party.  As per term 4.2 of the Agreement they offered delay compensation @7/- per sq. ft. but the Complainant did not accept the offer and filed the present Complaint in order to earn more profit.  It was also stated that the relief claimed by the Complainant is beyond the scope of the terms of the Agreement.  In support of his contentions, he relied upon judgments passed by the Hon’ble Supreme Court in ‘Bhunaneshwar Development Authority vs. Susanta Kumar Mishra (2009) 4 SCC 684, United India Insurance Co. Ltd. vs. Harchand Rai chandan Lal (2004) 8 SCC 644 and Bharathi Knitting Co. v. DHL Worldwide Express Courier (1996) 4 SCC 704.  

5. It was further stated that the Complainants have defaulted in making the payments after 2018, therefore, they cannot insist that the Developer perform its obligations in the manner that the contract originally contemplated.

6. It was also stated that the construction of the structure in which the Complainant’s Apartment is located is completed and as per RERA, Haryana the completion date of the Project is June, 2022.  

7. It was further stated that the delay in Project is due to force majeure conditions for which the OP Developer cannot be made to suffer as the Government Agencies miserably failed to provide essential basic infrastructure facilities such as Roads, Sewage line, Water and Electricity Supply in the sector where the Project is located, which resulted delay in Project.  It was also submitted that they have deposited the requisite External Development Charges to the Government Agencies despite that the concerned authorities did not develop necessary infrastructure facilities like 60 meter sector roads including 24 meter wide road connectivity.  

8. It was also submitted that the delay in construction is due to the reasons which were beyond the control of the Developer, therefore, there is no Deficiency in Service or Unfair Trade Practice on their part.  It was prayed that the Consumer Complaint be dismissed.

9. We have heard Mr. Pawan Kumar Ray, learned Counsel for the Complainants, Mr. Gaurav Mitra, learned Counsel appearing on behalf of the Opposite Party Developer and have given a thoughtful consideration to the various pleas raised by the learned Counsel for the Parties. 

10. The contention of the Learned Counsel for the Opposite Party Developer that the Complainants are not ‘Consumer’ and that they have booked the subject Apartment 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. 

11. The contention of the learned Counsel for the Opposite Party Developer that the Complainants are bound by the terms of the Agreement and it did not give any rise to any cause of action to Complainant to file the present Complaint, we have gone through the various clauses of the Agreement.  Clause 3.7 and 4.2 and  of the Agreement read as under:-

“3.7 If there is delay or default in making payment of the instalments by the purchaser, then the Purchaser shall pay to the Seller interest which shall be charged @18% per annum from the due date of payment of instalment on monthly compound basis.....

 

4.2 ……. If the Seller fails to complete the construction of the said building/Unit within Thirty Six (36) Forty Eight (48) months plus aforesaid grace period of Six (6) months for the date of execution of the Agreement to Sell and after providing of necessary infrastructure in the sector by the Government or for any reason other than the reasons stated above, then the seller shall be liable to pay to the Purchaser compensation @ Rs.7/- sp. Ft. of the super area per months for the entire period of such delay which is proportionate to the rental income for the similar property in the area or average rental of equivalent sized unit in the vicinity, whichever is higher.”

 

12. A bare perusal of above Clauses makes it clear that as per Clause 3.7 in case of delay, the Purchaser was liable to pay interest @18%, whereas as per Clause 4.2, in case of delay in possession, the OP Developer is liable to pay meager compensation in the form of ₹7/- per sq. ft.  This shows that the terms of the Agreement are wholly one-sided and unfair. Therefore, the Complainant cannot be made bound to the terms of the Agreement, which is one-sided and unfair in the light of the recent Judgment of the Hon’ble Apex Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, II (2019) 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.”

 

13. So far as the contention of the learned Counsel for the OP Developer that the Complainant defaulted in making payment in the year 2018 is concerned, we find that Complainant booked the Apartment in the year 2012 and had already deposited ₹82,06,538/- against the total sale consideration of ₹92,49,623/-.  If the Complainant defaulted in making payment in the year 2018, the Opposite Party Developer could cancel the allotment and refund the amount but the Opposite Party Developer neither cancelled the allotment nor refunded the amount.  Therefore, we see no force in this contention and the same is rejected.  

14. As far as the contention of the learned Counsel for the Opposite Party Developer that the Project is delayed due to failure on the part of the State Authorities in providing infrastructure facilities like road, water, electricity and sector roads is concerned, we observe that it is the duty and responsibility of the Opposite Party Developer to follow-up with the State Authorities for providing infrastructure facilities like road, water, electricity and sector roads.  The Complainant cannot be made victim for the same.  Therefore, we see no merit in the contention and the same is rejected.

15. The learned Counsel for the Opposite Party Developer submitted that the construction of the structure in which the Complainant’s Apartment is located is completed.  Mere completion of structure cannot be said that the Apartment is ready for valid possession.  The Opposite Party Developer is duty bound to hand over a physical possession of the Apartment after obtaining Occupancy Certificate to the Complainant.  The Hon’ble Supreme Court in its recent Judgment dated 11.01.2022 in Civil Appeal No. 4000 of 2019 entitled ‘Samruddhi Co-operative Housing Society Ltd. vs. Mumbai Mahalaxmi Construction Pvt. Ltd.’ has held that ‘…The failure of the respondent to obtain the occupation certificate is a deficiency in service for which the respondent is liable.’

16. It is not in dispute that the Complainants were allotted the Apartment in the year 2012 and till date Apartment is not ready for possession.   Keeping in view the Judgment passed by 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 Complainants’ right to seek for refund of the principal amount with interest and compensation as Apartment is still not ready for possession. 

 

17. The Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, II (2019) CPJ 29 SC, has held that the Complainant cannot be made to wait indefinitely for the delivery of possession, by observing 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 instant case also the Complainants cannot be made to wait indefinitely for possession of the Apartment, as the Apartment is not ready for possession. Therefore, we are of the considered view that the Complainants are entitled for refund of the principal amount along with damages and compensation in the form of reasonable interest which we quantify @9% p.a. from the date of respective date of deposit till the date of actual refund.  Consequently, the Opposite Party Developer is directed to refund to the Complainants ₹82,06,538/- (Rupees Eighty Two Lakhs Six Thousand Five Hundred Thirty Eight only) alongwith interest @9% p.a. from the respective dates of deposit till the date of actual refund within 6 weeks from the date of passing of this Order.   

 

19. The Consumer Complaint is allowed in above terms.  The pending applications, if any, also stand disposed off.