JUSTICE SUDIP AHLUWALIA, MEMBER

2. The brief facts leading up to the present Complaint are that on 10.12.2007, the Complainants had initially booked a residential Flat No. 12A01 in Tower No.T18 measuring 1855 sq.ft. in the Project known as “Parsvnath Privilege” to be developed and constructed by the Opposite Party on Plot No.11, Sector-Pi (Chorosia Estate), Greater Noida.  On 6.3.2008, a Flat Buyer’s Agreement was entered between the parties.  According to Clause 10 (a) of the said Agreement, construction of the Flat was to be completed within a period of 36 months from the date of commencement of construction i.e. by March, 2011 and construction of Tower T-18 was commenced in the year 2008.  But the construction was not completed even after more than 10 years from the date of booking of the Flat.  The Complainants had opted for the Time Linked Payment Plan and between the year 2007 and 2008 they had made payments of Rs. 56,28,430/- out of the total cost of Rs. 59,99,070/- with a hope to get the Flat  within the stipulated time.  They had repeatedly enquired about the delay in completing the construction but no satisfactory reason was given  by the Opposite Party.  In December, 2008, the Opposite Party proposed to the Complainant to shift their Flat from Tower T-18–12A01 to Tower T-4-602 with a promise to give possession ‘soon’ which proposal was accepted by the Complainants. Since the construction of the Tower in which the Flat of the Complainants was booked was not complete, the Opposite Party again suggested the Complainants to shift the Flat from one Tower to another.  The Complainants vide letter dated 12.11.2011 to the Opposite Party requested them to shift the Flat once again to Tower T-18.  Accordingly, it was shifted to Flat No. T-18 -402.  It is averred that many of the Clauses of the Agreement are one-sided and they were compelled to sign the Agreement with its unfair and unreasonable Clauses as they were threatened with cancellation of allotment and forfeiture of the Ernest money.  As no progress was seen on the construction site, vide Email dated 21.11.2015, the Complainants demanded refund of the amount paid by them alongwith interest.  But, the Opposite Party offered offer of fit-outs to the Complainants in the year 2017, without obtaining the Occupation Certificate.  It is also stated in the Complaint that during September, 2019 when the Complainants visited the construction site, the Project was at a standstill. It is further averred that they had invested their money for residential purpose.  The Opposite Party indulged in unfair trade practice by offering merely Rs. 5/- per sq. ft. per month as penalty for the delay in handing over possession while they charge 24% interest for delay in payments by the buyers.   Being aggrieved with all these conditions, the Complainants demanded refund of the amount paid by them alongwith interest and other damages from the Opposite Party, which demand was never responded to.  Hence, this Consumer Complaint. 

3. The Opposite Party has filed its Written Version to resist the Complaint and denied the material contents of the same by contending that the Complainants are seeking refund with exorbitant interest; That the Complainants are not ‘Consumers’ under the Consumer Protection Act, 1986 as they had invested money for financial gains; That in view of the terms of the Agreement between the parties, the Complainants cannot claim more than the compensation stipulated in the Agreement; That the delay in construction occurred due to recession in the Real Estate Sector; That the construction activity was hampered due to reasons beyond the control of the Opposite Party; That the Complainants have failed to establish any deficiency of service or consumer dispute attributable to the Opposite Party and have made bald allegations without any proof; That the present case requires elaborate evidence which cannot be adjudicated upon in the summary procedure  of this Commission, and so the Complaint is liable to be dismissed; That contents of Clause 10(a) of the Flat Buyer Agreement clearly stipulate that time is not the essence of the contract and even if the period of 36 months plus the grace period of six months having expired, the Agreement having a relaxation clause “likely” attracts the doctrine that  “time is not the essence of the contract”; That the Clauses of the Agreement are not one¬-sided and Complainants were not compelled to sign that Agreement; That the Opposite Party is not liable to the refund of Rs. 1,68,36,633/-; That the Complaint is not maintainable; and there is no negligence on the part of the Opposite Party so as to entitle the Complainants to claim any amount. Consequently, the Complaint is liable to be dismissed with exemplary costs.

4. Rejoinder has been filed on behalf of the Complainants.  The Complainants at the outset have denied the material contents of Reply filed by the Opposite Party, and reiterated the contents of the Complaint.  It is stated that the Opposite Party charges interest @24% for delay in payments by the buyers, so in case of any default on the part of Opposite Party it should be made to pay the same rate of interest.  It is also stated that this Commission in some similar cases has granted interest @ 18% p.a. from the date of payment till the amounts are refunded.    The Opposite Party in its own reply has admitted that the delay has been attributed to economic slowdown and the Complainants were assured several times about handing over the possession of the Flat by March, 2012.  It is further stated that the Opposite Party cannot escape its liability merely by mentioning a compensation Clause in the Agreement after  keeping the Project at a standstill for years, and there is a gross deficiency in service by the Opposite Party.  As such, they are entitled to the reliefs prayed for in the Complaint.

5. Affidavits in Evidence have been filed on behalf of the Parties. 

6. Heard the Ld. Counsel for the parties. Perused the material available on record.

7. The Ld. Counsel for the Complainant has referred to the decision of this Commission in CC No. 232 of 2014 against the same Opposite Party.

8. It is an admitted case that the Complainants booked the Flat in question with the Opposite Party which was to be developed by it within 36 months from the date of commencement of the construction, on receipt of all the requisite approvals from the concerned Authorities, and that the Opposite Party failed to complete the construction within the stipulated time. 

9. The Opposite Party has failed to make out or establish that the delay in completion of the construction is due to Force Majeure conditions or for reasons beyond its control.  The terms of the Agreement between the parties do not justify the delay as the Opposite Party was duty bound to complete the construction and the plea of ‘recession in the market’ is not a valid justification for such inordinate delay.  The Complainants cannot be made to suffer for omissions on the part of the Opposite Party and its objection that the delay was due to Force Majeure conditions also does not hold in view of the decision of this Commission in “Sivarama Sarma Jonnalagadda & Anr.  Vs. M/s. Maruthi Corporation Limited & Anr., CC No. 379 of 2013, decided on 21.09.2021”.  

10. Undoubtedly, the Opposite Party could not complete the Project in which the Flat in question was booked by the Complainants, either within the agreed time of 36 months or even within a reasonable time thereafter.  The Opposite Party had admittedly taken money from the Complainants who are thus ‘Consumers’ within the meaning of Sectgion 2(1)(d) of the Consumer Protection Act,1986.  The Complainants are entirely justified in seeking refund of the amount paid to the Opposite Party in view of the decision of the Hon’ble Supreme Court in “C.A No.3182 of 2019 dated 25.03.2019, Kolkata West International City Pvt. Ltd. Versus Devasis Rudra”, in  which it was observed inter alia -

“…..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 is 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 SCDRC and by the NCDRC for refund of moneys were justified…….”.

 

11. For the aforesaid reasons, the Complaint is allowed and the Complainants are held entitled to seek refund of the total amount paid by them to the Opposite Party alongwith interest @ 9% p.a. from the respective date of each deposit till payment, within two months from the date of passing of this Order.   In  the  event of non-compliance  of  this Order within the time granted, the  outstanding  amount  to  be  paid  shall attract a penal interest of 12% p.a.

12. In addition, an amount of Rs. 50,000/- is awarded to the Complainants towards litigation costs.

13. Pending application(s), if any, also stand disposed off as having been rendered infructuous.