R.K. AGRAWAL,  J. PRESIDENT

1.       This Consumer Complaint, under Section 21(a) (i) of the Consumer Protection Act, 1986 (for short “the Act”), has been filed by the Complainants against M/s. Raheja Developers Ltd. (hereinafter referred to as “the Developer”), seeking the following reliefs:-

(a)     To refund of the amount of ₹1,28,72,141/- deposited by the Complainant with the Opposite Party along with compoundable interest @ 18% p.a.;

(b)     To pay a sum of ₹30,00,000/- towards damages for harassment, mental agony and loss suffered by the Complainant on account of illegal offer of possession, payment of rent, interest on bank loan etc. 

(c)     To pay an amount of ₹1,10,000/- as costs for litigation;

(d)     To pay rent paid by the Complainant from 2011 till date as per rent agreement;

2.       The brief facts as set out in the Complaint are that in the year 2011, the Complainants booked an Independent Floor in a project called “Vedanta” to be developed by the Opposite Party Developer in Sector 108, Gurgaon, by paying an amount of ₹11,01,317/-  on 27.06.2011 and ₹16,51,976/- on 27.08.2011.  The total sale consideration of the Floor was ₹1,23,75,550/- which was to be paid as per Construction Link Plan. On 08.05.2012, the Developer issued an Allotment letter allotting Apartment No. IF 12-01 admeasuring 2175 Sq. Fts. Super Area to the Complainants and subsequently, Flat Buyers Agreement was also entered between the parties on the same date.

3.       It is averred in the Compliant that as per Clause 4.2 of the Flat Buyer Agreement dated 8^th May, 2012, the Developer was under an obligation to handover the physical possession of the Apartment in question, complete in all respects, within 36 months (3 years) from the date of execution of Flat Buyers Agreement with a further grace period of six months for reasons beyond their control.

4.       Upon offer of possession being made by the Developer, the Complainants visited the Project Site and found that everything was incomplete and provisional and even the basic amenities like water, electricity and other promised facilities such as Club, Swimming Pool etc. were not provided. There was no connectivity by road also. The matter was taken up with the Developer but in vain.  Complainants alleged that the offer of possession made by the Developer was mala fide and illegal. It is stated that the entire amount as per Flat Buyer Agreement was paid with an additional demand totalling to ₹1,28,72,141/-.

5.       It is stated in the Complaint that the Developer played a fraud with the Complainants as it was not disclosed at the time of booking of the Floor that the Plans were not sanctioned for Independent Floors. As per letter of sanction for the Independent Floors issued to the Developer in the year 2012 and obtained by the Complainants under the RTI Act, the Developer was not allowed to make booking prior to the issue of sanction letter but the Builder violated this condition as the Complainant has booked the Floor before sanctioning of the Plan in 2011. The Condition  No. xxi of the sanction letter issued by the Director General Town and Country Planning, Haryana stipulated that “the Developer shall not give the advertisement for booking/sale of Flats and shall not book Flat till the date upto which objection can be filed by existing allottees or till the objections received, if any, by the office STP, Gurgaon. This sanction will be void abnitio, if any of the conditions mentioned above, are not complied with”.  However, the Developer has violated this condition as the booking was made even prior to issuance of letter dated 22.03.2012.  It is also alleged that the Complainants were not shown the format of Buyer/Builder Agreement at the time of booking of the Floor and they were forced to sign the same in 2012 on dotted lines which were unreasonable and unjustified.

6.       The Complainants made the repeated requests to the Developer to share the NOCs issued to them from Director, Fire Services, Haryana and Director, Environment, Haryana (SEIAA) and more pertinently, the Completion Certificate but the same were shown to them intentionally. However, on pressing hard, the Developer sent the NOC issued from Fire Department to the Complainant but the same was also expired. The other fire safety arrangements were also not satisfactory.  It is stated in the Complaint that the neighbouring building known as IF Type “B” is not fit for occupation and is a potential danger to all the residents of the Project. The Occupation Certificate for the said building has been issued on the basis of NOC (fire) meant for other building like Block A, B & IF Type A. The IF Type “A” and IF Type “B” are also without environment NOC from SEIAA. The safety norms for the buildings have been violated by the Developer as there are various lapses and shortcoming regarding the fire safety. The offering of possession without legal mandatory NOCs from the Fire Department and SEIAA is violation of Licence conditions and is an offence committed by the Developer.

7.       As averred in the Complaint, the Developer is demanding extra amount on the ground that the Super Area of the Independent Floor has increased in the final Super Area Audit. The Complainants are apprehending that the Carpet Area of the Independent Floor is much less that what was claimed by the Developer and the Super Area has been artificially loaded for making unjustifiable profits. Till date, the Complainants are unaware what else have been included in the Super Area and what  is the Carpet Area of the Independent Floor allotted to them.  It is further stated that the Developer has once again sent a letter dated 28.04.2017 to the Complainants offering possession upon payment of all dues including holding charges from November, 2014 though the possession offered in 2014 was illegal and without valid NOCs/clearances.  This apart, the escalation charges have been demanded by the Developer without giving any justification; the electricity installation charges demanded by the Developer are also exorbitant and arbitrary; the Complainants are paying high rate of interest on EMIs for the amount raised from the different personal and Financial Institutions; Complainants have taken a home loan of ₹50,00,000/- from the HDFC Bank for a period of 30 years and monthly instalment of ₹51,353/- is being paid to the Bank; the Complainants have been cheated by the Developer and have lost their faith in the credibility of the Developer.  The delay in completion of work and offer of illegal possession without necessary clearances from Fire and Environment Departments by the Developer, tantamount to deficiency in service and unfair trade practice which has resulted into huge financial loss to the Complainants. Thus, being aggrieved, Complainants have filed this Consumer Complaint praying the aforesaid reliefs.

08.     Upon notice, the Complaint has been resisted by the Opposite Party, Developer, by filing its Written Statement. While denying the allegations made by the Complainants in the Complaint, it is pleaded inter-alia that the Project was launched after complying with applicable laws including obtaining Environment clearance; it was one of the first Projects to get the Occupancy Certificate on Dwarka Expressway side in November 2014 despite the dispute regarding land acquisition before the Hon’ble Punjab and Haryana High Court; Section 7 of the Haryana Development and Regulations of Urban Areas Act, 1975 permits, amongst the other, to make an advertisement, agree to transfer plots/flats in a Colony, receive any amount in respect thereof after obtaining a licence under section 3. The Clause No.4.3 of the Agreement contemplates that “ the said project falls within the New Master Plan, Gurgaon and the site of the Project may not have the infrastructure in place as on the date of booking or at handing over of possession as the same has to be provided by the Government and, therefore, the Allottee shall not claim any compensation for delay/non-provision of infrastructure facilities; in terms of Clause 4.2 of the Agreement, the Developer was to complete the construction of the building/apartment within thirty six months from the date of execution of the Agreement and after providing necessary infrastructure in the sector by the Government failing which the Developer was to pay compensation @ ₹7/- per sq. ft. of the Super Area per month for the entire period of such delay; all the allottees including Complainants, were informed about the status of construction by emails or regular quarterly news letters; the construction of the complex was ready, but the external and infrastructural services were not in place and still the allottees were given option to take possession; the Developer has made all efforts to provide the infrastructure facilities around the Project; the water was provided from HUDA through tankers at reasonable cost, electricity at government rates and sewerage treatment of the entire waste water by recycling etc; majority of the Allottees are residing in the premises; the demand of escalation charges was made in terms of Clause 3.9 of the agreement and Clause 13 of the Application form and demand towards increase in Super Area was made in terms of clause 3.10 of the Agreement; possibility of delay in handing over possession was clearly indicated to the Complainants and the tentative time was not essence of the contract; after obtaining the Occupancy Certificate, the offer of possession was made to the Complainant of the unit by paying outstanding amount;

09.     In its written statement, the Developer has also raised certain preliminary and jurisdictional objections.  It is contended that; as per law settled by the apex court in Bharti Knitting Co. Vs. DHL World Wide Courier – (1996) 4 SCC 704, the terms of the agreement are binding between the parties; dispute arising in respect of an agreement to sell a plot not relates to rendering of any service as held by the Apex Court in Bangalore Development Authority Vs. Syndicate Bank – (2007) 6 SCC 711; till the completion of construction and execution of the conveyance deed, the allottee has only a right to purchase as per agreement to sell;  as detailed evidence is required for adjudication of the claim raised in the Complaint, the matter has to be referred to a Civil Court; the Complainant is barred by limitation as allegations have been made with respect to agreed terms and conditions of the Agreement which was executed in the year 2012; the documents such as Fire Safety approval, Environment Clearance and Completion Certificate before taking possession, are ready and can be inspected by the Complainants;  all the approvals from various Authorities were obtained after following the procedure under law and no manipulation was made by the Developer;

10.     All other averments made in the Complaint have been specifically denied by the Developer and prayed dismissal of the Complaint with exemplary costs. The Complainant filed his Rejoinder denying all the rival contentions raised by the Opposite Party in its Reply and reiterating the averments made in the Complaint.  

11.     We have heard Mr. Rakesh Sood, General Power of Attorney of the Complainant and the Learned Counsel appearing for the Developer at length as well as perused the material placed on record and the Written Arguments filed by them.

12.     In brief, it is an admitted fact that the Complainants paid an amount of ₹11,01,317/- on 27.06.2011 at the time of booking the Floor/Apartment and thereafter ₹16,51,976/- on 27.08.2011. A total sum of ₹1,28,72,141/- has been paid to the Developer for Apartment No. IF 12-01 admeasuring 2175 Sq. Fts. Super Area, Sector 108, Gurgaon. The Flat Buyer Agreement was executed on 08.05.2012.  As per Clause 4.2 of the Agreement, the possession of the Apartment was to be delivered in 36 months i.e. by 07.05.2015. Further, though the offer of possession was made in the year 2014 but no infrastructure facilities like water, electricity etc. and promised amenities such as club, swimming pool etc. were provided. The Developer has also booked the apartment in question before sanctioning of the plans and all the “NOCs” regarding fire and environment safety were obtained by manipulations. Hence, they have sought refund of the deposited amount with interest.

13.     It is contended by the General Power of Attorney of the Complainant that the Developer did not disclose at the time of booking that plans were yet to be sanctioned and as such the Developer was not allowed to book the flat in the year 2011; Complainants were forced to sign the one sided Flat Buyer Agreement in the year 2012 on dotted lines; after obtaining the information under RTI Act, it was revealed that various irregularities were committed by the Developer for making unjustifiable profits; though the offer of possession was made to the Complainants four years back but it is an undisputed fact that the Developer has applied for issuance of Completion Certificate only on 03.04.2018 as per the information collected under the RTI Act;. the Developer has failed to produce any documentary evidence pertaining to obtaining Completion Certificate from the Authorities till date and neither has produced the environment clearance from SEIAA, Haryana as demanded by them when Complaint was admitted; the Developer offered possession of 68 units, Type “A” 56 units in 2014 and Type “B” 12 units in 2016, instead of 22 Villas/independent Floors allowed by MOEF and as such the Developer was required to seek fresh permission from Environment Department if they were to increase Units.  No Environment clearance was granted in respect of Independent Floors and the records were changed without the approval of the Competent Authority to issue Corrigendum in 2016. The Occupation Certificate is illegal for all intent and purposes and since construction of Independent Floors is illegal, the Complainants do not want to be part of this illegality. The offer of possession was made in 2014 without any legal Occupation Certificate.  Another building of Independent Floors, IF Type “B” in the vicinity of independent Floors Type “A” in Project Vedanta is without NOC from the Department apart from clearance from SEIAA which is a serious threat to the life and property of the Allottees of Vedanta project. It is further pleaded that the Complainants cannot be forced to take possession of an illegality constructed Flat. The Developer has not only constructed additional Units but also added additional Built Up Area without approval of the concerned Authorities like SEIAA, Haryana in several buildings of the Project. The irregularities committed by the Developer are beyond rectification and the Complainants do not want to be involved in any unnecessary litigation. The Developer has committed a perjury claiming that it has been issued Completion Certificate.  An application under RTI Act 2005 was made before the office of DGTCP, Haryana to share Completion Certificate of “Project Vedanta”  in relation to Independent Floors “Type A” and “Type B”. The reply of the SPIO, DGTCP Haryana Office was that no Completion Certificate was applied for and accordingly, I.A.No.2687/2018 was filed before this Commission to take an appropriate action against the Developer. Since, the Developer is charging interest @ 18% compoundable monthly for default in payment by the Complainants and Complainants are paying both EMIs and Rent, the Developer is also liable to pay interest @ 18% on the refund of the amount due to fault or deficiency in their part. The Complainants have lost faith in the Developer and veracity of the Project due to irregularities committed with impunity and seek for refund of the deposited amount.  

14.     As against this, Learned Counsel appearing for the Developer submitted that the prayer for refund is not tenable as admittedly the possession offered on 22.11.2014 was within the agreed time as per the Flat Buyer Agreement and even the Complainants were also ready to accept the possession as recorded in the orders dated 07.11.2017 and 31.07.2018 passed by this Commission subject to providing of copies of approvals like Fire, Environment and Occupation Certificate;  this Hon’ble Commission has no jurisdiction to entertain the present Complaint in view of provisions contained in the Real Estate (Regulation and Development) Act, 2016; Forum Hopping cannot be allowed as the Complainants have already sought remedy with regard to their grievance about validity of the approvals in connection with Environment, Fire and Occupation Certificate by filing a complaint before DTCP, Haryana and since no action has been taken in the said complaint against the Developer, there is no violation of environment norms; as the allegations of fraud and forgery have been made in the Complaint against the Developer, the subject dispute cannot be adjudicated in summary proceedings before the Consumer Fora and the parties are to be relegated to a Civil Court; although the Complainants initially made the respective Authorities as Party Respondent to the present Complaint but later on they were deleted by him from the array of parties and as such in their absence the veracity of the approvals cannot be tested; Section 46 of the Haryana Fire Safety Act, 2009 bars the jurisdiction of this Hon’ble Commission with respect to matters relating to approvals of fire safety, however, it is pleaded that approval from Fire Department was obtained on 18.12.2014 and the said approval was renewed on 15.09.2015; the current approval was received on 22.06.19 which is valid upto 20.06.2019.  So far as Occupation Certificate is concerned, it is vehemently argued by the Learned Counsel for the Developer that the same was granted under Rule 47(1) of Punjab Schedule Roads and Controlled Area Restrictive of Unregulated Development Rules, 1965 and if the Complainants were having any grievance against the legality of the Occupation Certificate, they were required to file an application before the Commissioner and Secretary to Government, Haryana under Section 10 of the said Act which exercise was not opted by them.  The environment clearance is granted by the State Environment Impact Assessment Authority (SEIAA) and any complaint pertaining to Environment clearance has to be reported to the said Authority.   As the Complainants have already approached to the said Authority they are barred to raise the same grievance before this Hon’ble Commission.  Further, the Environment clearance is granted on the basis of area and not on the basis of number of units to be constructed on the said area and under Notification dated 14.09.2009, there is no requirement for obtaining Environment approvals in case there is any variation in the area within the category in which approval has been granted. On the issue of constructing 68 Villas being in addition to the alleged approved Villas, it is submitted by the Learned Counsel for the Developer that the Environment Authority is not the proper authority for granting permission for number of Villas to be constructed on the approved FAR and on the approved built up area. The approval for Environment clearance was granted by Authority on 07.07.2009 which was extended for seven years.  This Hon’ble Commission cannot look into the merits of any of approvals once the said approval has been granted by the Authority of Competent Jurisdiction. Lastly, it is submitted that Section 14(1)(d) specifically provides that compensation can only be granted, in a case where there is a proof of loss caused on account of negligence.  In the absence of any such specific loss on account of negligence and material in support thereof, no order can be made for compensation or direction for making any payment.

15.     The contention of the Learned Counsel appearing for the Developer that this Commission has no jurisdiction to entertain the present Complaint in view of the provisions contained in RERA and that the Haryana Fire Safety Act, 2009 as well as the Punjab Schedule Roads and Controlled Area Restrictive of Unregulated Development Rules, 1965 bars the jurisdiction of this Commission to test the authenticity of the various approvals relating to fire and environment clearance, the Hon’ble Supreme Court and this Commission in catena of judgments have held that the provisions of the Consumer Protection Act, 1986 are in addition to and not in derogation of the provisions of any other law for the time being in force, giving an additional forum for redressal of their grievances. Recently, the Hon’ble Supreme Court in Pioneer Urban Land and Infrastructure Ltd. & Anr. Vs. Union of India & Ors. -  2019 SCC Online SC 1005, has held that remedies given to the allottees of the flats/apartments are concurrent and such allottees are in a position to avail of remedies under the Consumer Protection Act, RERA, as well as trigger the provisions of the Insolvency and Bankruptcy Code, 2016.

16.    Now adverting to the merits of the case, the Complainants booked the Apartment No. IF 12-01 admeasuring 2175 Sq. Ft. Super Area in the year 2011. The total sale consideration of the Apartment was ₹1,23,75,550/- however an amount of ₹1,28,72,141/- has been paid by the Complainant to the Developer. In terms of Clause 4.2 of the Flat Buyer Agreement dated 08.05.2012, the physical possession of the Apartment in question was to be delivered within 36 months i.e. by 07.05.2012.  Though the offer of possession was made to the Complainants in the year 2014 but there were no basic amenities like water, electricity, connectivity with the road etc. It is also stated by the Complainants that as promised the facilities like Club, Swimming Pool etc. were not provided by the Developer and as such the Complainants refused to accept the possession of the Apartment.  On the basis of information obtained under RTI Act, 2005, it has been stated by the Complainants that various irregularities have been committed by the Developer pertaining to approvals for sanction Plan, Fire Safety and Environment Clearance. 

17.     On 07.11.2017, when the Complaint was listed for admission hearing, the Attorney of the Complainants, on instruction, submitted that if the copies of the Occupancy Certificate, Clearance from Fire Department and Environmental Clearance Certificate are made available to them, they are ready to take the possession of the allotted unit.  However, I.A. No. 17892 of 2017 was filed by the Complainants stating that the Occupancy Certificate has already been obtained by the OP but they are not ready to take possession unless the Completion Certificate for the Project is obtained. Notice was issued to the Developer on the said application. Vide order, dated 31.07.2018, the said application was allowed in the presence of Counsel for the Developer and the statement of the Attorney of the Complainants was recorded to the effect that the Complainants are not ready and willing to take possession without copies of clearance from Fire Department, Environmental Clearance and Legal Completion Certificate. No offer for possession was made by the counsel for the Developer at that time which reveals that a legal Completion Certificate was not obtained by the Developer till 31.07.2018. Further, under RTI Act, 2005, the Complainants requested the SPIO, Directorate of Town and Country Planning Haryana to share Completion Certificate in respect of Project Raheja Vedaanta Floor, Sector 108, Gurugaon.  Vide his letter dated 22.11.2017, the SPIO replied that the Completion Certificate was not applied by the Developer. It shows that even on the said date the construction of the Project was not complete. It is stated by the Complainant that as per information obtained under RTI Act, 2005, the Developer has not applied for the Completion Certificate till 03.04.2018. No material has been produced by the Developer to prove that the construction of the Project was complete till the year 2018. 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 view that the Complainants cannot be made to wait indefinitely for the delivery of possession when he has already paid the entire consideration.  The act of the Developer of enjoying the hard earned money of the Complainants, 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 they charge interest @ 18% p.a. for any delay in the payments made by the flat purchasers, but at the same time, offers compensation of ₹7/- per sq. ft.  per month of the super area for the period of delay, which approximately amounts to only 1.5% per annum. We are of the view that 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.

18.     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.”

19.     For all the aforenoted reasons, this judgment squarely applies to the facts and circumstances of this case.

20.     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.”

21.     In the instant case also the Complainants cannot be made to wait indefinitely as the possession of the unit has not been handed over so far. Therefore, we are of the considered view that the Complainants are entitled for refund of the principal amount with reasonable interest.

22.     Now, we address ourselves to what should be the rate of compensation that has to be awarded to meet the ends of justice.

23.     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, as also the Complainants have taken loan from the Bank, we are of the opinion that the Complainants are entitled to the refund of the amount deposited by them with compensation @ 12% p.a. from the respective dates of deposits till the date of realization. It is relevant to note that this compensation @ 12% p.a. is being awarded to meet the ends of justice specially keeping in view the fact that the Complainants have taken housing loans and paying EMIs with higher rate of interest; the Developer charge interest @ 18% p.a. on delayed payments; the loss of opportunity of the Complainant for not having been able to enjoy the fruit of owning a ‘Home’ and finally taking into consideration the principal of restitutio in integrum which specifies that the aggrieved person should necessarily be compensated for the financial loss suffered due to the event and get that sum of money which would put him/her in the same position as he would have been if he/she had not sustained the wrong. Hence, we are of the view that awarding compensation @ 12% p.a. is not only reasonable but also justified.

24.     Therefore, the Complaint is allowed in part directing the Developer to refund the principal amount with compensation @ 12% p.a.  from the respective dates of deposit till the date of realization together with costs of ₹25,000/- to be paid to the Complainant. Time for compliance, four weeks from the date of receipt of a copy of this order, failing which the amount shall attract compensation @ 14% p.a., for the same period.