1.      Heard Mr. S. Surender, Advocate, for the complainant and Mr. Siddharth Banthia, Advocate, for opposite party-1.

2.      Above complaint has been filed, for directing opposite party-1 to (i) refund Rs.7446104/- (i.e. the loan amount) with interest @18% per annum from the date of disbursement till the actual payment to the complainant, (ii) refund Rs.2411026/- with interest @18% per annum, from the date of deposit till the date of payment, (iii) pay Rs.55226/- per month with interest @18% per annum, as Pre-EMI paid by the complainant to opposite party-2, (iv) pay Rs.500000/- as compensation for mental agony and harassment, (v) pay Rs.2/- lacs, as the costs of litigation; and (vi) any other relief which is deemed fit and proper in the facts and circumstances of the case.

3.      The complainant stated that M/s. Raheja Developers Limited (opposite party-1) (the builder) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing projects and selling its units to the prospective buyers. ICICI Bank Limited (opposite party-2) was a banking company and used to provide financial assistance to the public. The builder launched a group housing project in the name of “Raheja Revanta” at village Shikohpur, Sector-78, Gurgaon, in the year 2014 and made wide publicity of the rosy pictures of the project. Allured with the representations of the builder and believing on it, the complainant booked a 1BHK flat on 25.11.2014 and deposited booking amount. The builder allotted Apartment No. C-273, super built area 1197.83 sq.ft., basic sale price of Rs.9188554/- @ of Rs.7671/- per sq.ft. and executed an Agreement to Sell dated 13.01.2015 in favour of the complainant. The builder also executed a Memorandum of Understanding dated 13.01.2015 (MOU). Under Clause-8 of the MOU, the builder promised to deliver possession within 33 months to 36 months from the date of booking; Failing which, the complainant would be entitled to cancel booking and claim compensation @ Rs.1400/- per sq.ft. along with refund of total amount deposited; If the builder fails to refund the amount along with compensation within 60 days, the builder would be liable to pay interest @18% per annum on the deposit of the complainant. Payment plan was “Construction Linked Payment Plan”, under which total payment had to be made in 13 instalments. Last instalment of 5% of sale consideration and other charges had to be paid on receipt of “Occupancy Certificate”. The builder also introduced Subvention and Guaranteed buy-back scheme and under clause-8 of it, the builder undertook to pay Pre-EMI on the loan to the bank till the offer of possession. The complainant availed loan of Rs.7994000/- from ICICI Bank Limited, which was sanctioned on 31.12.2015. The complainant deposited Rs.952266/- on 25.11.2014, Rs.737106/- on 12.01.2015, Rs.9523/- on 28.01.2015, Rs.7542/- on 28.01.2015, Rs.943398/- on 04.03.2015, Rs.51193/- on 27.06.2015, Rs.9530/- on 27.06.2015, Rs.4277/- on 29.12.2015, Rs.4795/- on 16.02.2016, Rs.4794/- on 08.04.2016, Rs.4790/- on 10.06.2016 and Rs.4850/- on 23.08.2016 with the builder. ICICI bank Limited disbursed Rs.5119203/- on 01.04.2015, Rs.423351/- on 25.11.2015, Rs.474618/- on 25.01.2016, Rs.474619/- on 08.04.2016, Rs.61996/- on 06.06.2016, Rs.412214/- on 06.06.2016 and Rs.480103/- on 04.08.2016 to the builder from the loan account of the complainant. The builder realised total Rs.10180168/- from the complainant till 23.08.2016. Due to unforeseen contingencies, the complainant, vide email dated 11.04.2017, cancelled the allotment and asked the builder to buy-back the flat. The builder, vide email dated 11.04.2017, replied that his request to buy-back would be processed as per terms and conditions. The complainant, vide email dated 29.04.2017, made a query as whether he would be require to inform ICICI Bank Limited. The builder, vide email dated 01.05.2017, informed the complainant that his request for buy-back would be considered within 60 days after expiry of 36 months from the allotment. The complainant handed over a written application dated 28.08.2017, for cancellation of his allotment and refund entire amount deposited by him along with compensation as per MOU. Thereafter, a meeting was held on 16.09.2017 with the complainant and employees of the builder, in which, they informed that refund would be delayed as the builder was facing financial problem. The complainant again handed over a written application dated 13.12.2017, for cancellation of his allotment and refund of entire amount deposited by him along with compensation as per MOU. Then, a meeting was held with the complainant and employees of the builder and thereafter, the builder gave an email dated 19.12.2017, mentioning that total Rs.4243330/- would be refunded and two post-dated cheques of Rs.20/- lacs and Rs.10/- lacs each would be given on 15.01.2017 and 15.03.2018, respectively and balance amount and bank liability would be closed by 30.06.2018. The complainant, vide email dated 20.12.2017, sought for clarification on certain issues, which was replied vide email dated 26.12.2017. The builder gave a cheque of Rs.20/- lacs on 21.02.2018, which was en-cashed on 01.03.2018. The builder, vide email dated 08.03.2018, asked the complainant to supply the loan account number of ICICI bank Limited for depositing EMI, which was supplied vide email dated 09.03.2018. But the EMI was not deposited. ICICI Bank Limited started realization of EMI of Rs.55000/- from the complainant w.e.f. 01.04.2018. The builder gave Rs.55846/- to the complainant towards EMI of April, 2008 on 23.05.2018. The complainant, vide email dated 11.05.2018, asked the builder to settle the matter within 7 days but they did not give any heed to it. Then this complaint was filed on 04.06.2018, alleging deficiency in service.

4.      The builder filed its written reply on 12.09.2018 and contested the case. The material facts relating to the project, allotment of the flat, execution of agreement to sell & MOU and deposits made by the complainant, including amount disbursed by ICICI Bank Limited from the loan account of the complainant, have not been disputed. The builder stated that sale consideration was tentative and final sale consideration had to be determined as per agreement, after completion of the construction. The fact that the complainant booked the flat under Subvention and Guaranteed buy-back scheme, shows that the complainant was an investor and not booked the flat for personal use. The builder is not liable for the loan taken by the complainant from ICICI Bank Limited or paying its Pre-EMI. Due date for exercising right to cancel allotment as per MOU did not expire on 29.04.2017 and the request was pre-mature. It has been denied that in the meeting dated 16.09.2017, any assurance was given. Email dated 19.12.2017 has not been disputed. However, it has been stated that due to unforeseen financial problem PDC of Rs.20/- lacs was handed over on 21.02.2018. Preliminary objection that the complaint was not maintainable was raised. Enforcement of clauses of MOU is not a consumer dispute. The complainant was not a consumer rather an investor under Subvention and Guaranteed buy-back scheme. The reliefs sought in the complaint are less than Rs.one crore. The builder has not committed any deficiency in service.  

5.      ICICI Bank Limited filed its written reply on 21.06.2019. in which, it has been stated that loan of Rs.7994000/- was sanctioned to the complainant on 30.03.2015 out of which Rs.7446104/- was disbursed. Statement of the Account of the complainant as on 30.05.2019, shown that EMI was regularly being paid.        

6.      The complainant has filed Rejoinder Reply to the reply of the builder, Affidavit of Evidence of Animesh Gupta and documentary evidence. The builder has filed Affidavit of Evidence of Rajesh Kumar Singh. Both the parties have filed their short synopsis.

7.      Relying upon the judgments of this Commission in RP/3829 & 2829-A/2007 Prithviraj Naryanrao Chavan Vs. Nation Seeds Corporation Ltd. (decided on 03.01.2012), CC/237/2012 Jayantilal Trikambhai Vs. Abhinav Gold International Marketing Pvt. Ltd. (decided on 19.09.2012), CC/369/2015 Rishi Malhotra Versus Blue Coast Infrastructure Development Pvt. Ltd. (decided on 08.02.2017), CC/246/2013 Mrs. Priti Arora Vs. M/s. ARN Infrastructure India Pvt. Ltd. (decided on 06.04.2017) and CC/402/2015 Grand Venezia Buyers Association Vs. Grand Venezia Commercial Towers Ltd. (decided on 06.10.2017), the counsel for the builder submitted that the complainant was an investor under Subvention and Guaranteed buy-back scheme and not a consumer and the complaint is not maintainable.

8.      I have considered the arguments of the parties and examined the record. The judgments in Prithviraj Naryanrao Chavan’s case and  Jayantilal Trikambhai relate to purely commercial transaction and had no relation with ‘service’ as defined under Section-2(1)(o) of the Consumer Protection Act, 1986, as such, are not relevant for this case. The judgments in Rishi Malhotra’,s case, Mrs. Priti Arora’s case and  Grand Venezia Buyers Association’s case relate to commercial building and shall be deemed to have been overruled by Supreme Court in Sunil Kohli Vs. Purearth Infrastructure Ltd., (2020) 12 SCC 235. The judgements in Rishi Malhotra’,s case, Mrs. Priti Arora’s cases have been distinguished by this Commission in FA/1940/2019 Sanjay Sharma Vs. Eminent Infradevelopers Pvt. Ltd. (decided on 12.03.2020) on the ground that these judgments relate to commercial building and not residential building. In the present case, the complainant booked residential flat in group housing project “Raheja Revanta” of the builder. ‘Housing construction’ is included in ‘service’ as defined under Section-2(1)(o) of the Consumer Protection Act, 1986. The complainant availed the service of the builder and is a consumer. Subvention and Guaranteed buy-back scheme is a short of guarantee for timely possession. It is an attractive incentive of the builder for booking the flat in the project. It will not override the main object of availing service of ‘housing construction’. Similarly the objection in respect of pecuniary jurisdiction have also no merit as the complainant has paid Rs.10180168/-, which is sought to be refunded with agreed interest. As such, preliminary objections have no merit.

9.      The facts relating to the project, booking of the flat by the complainant on 20.11.2014, allotment of the flat, execution of agreement to sell & MOU dated 13.01.2015 and deposits of Rs.10180168/- up to 23.08.2016 by the complainant, including the amount disbursed by ICICI Bank Limited from the loan account of the complainant, have not been disputed. The builder, vide email dated 01.05.2017, informed the complainant that his request for cancellation of the booking and payment would be processed within 60 days after expiry of 36 months from the date of booking. In pursuance of the application dated 28.08.2017, the builder vide email dated 19.12.2017, agreed to refund the amount deposited by the complainant. Although, the builder, in written reply, has stated that he had no concern with the loan taken by the complainant from ICICI Bank Limited but email dated 19.12.2017, was silent in respect of the amount paid by ICICI Bank Limited. The builder has not refunded the amount to the complainant as deposited by him directly and through ICICI Bank Limited (except Rs.20/- lacs on 01.03.2018 and Rs.55846/- on 23.05.2018) in terms of MOU. Therefore, there was deficiency in service on the part of builder. 

10.    Under clause-8 of MOU dated 13.01.2015, the builder has agreed to pay interest @18% per annum for the period of delay, in case payment is delayed beyond 60 days of the expiry of 36 months from the date of booking. 60 days period expired on 28.02.2018 but full amount of the complainant has not been refunded as such the builder is liable to pay interest @9% per annum from the date of respective deposit till 28.02.2018 and @18% per annum thereafter.

ORDER

In view of aforesaid discussions, the complaint is partly allowed. Opposite party-1 is directed to refund entire amount deposited by the complainant including the loan amount advanced by ICICI Bank Limited, after adjusting Rs.20/- lacs as paid on 01.03.2018 and Rs.55846/- as paid on 23.05.2018, with interest @9% per annum from the date of respective deposit till 28.02.2018 and @18% per annum thereafter till the date of actual payment, within two months from the date of this judgment. It shall be open to opposite party-1 to satisfy entire loan amount of ICICI Bank Limited first and refund balance amount to the complainant.