1.      Heard Mr. Shivam Sharma, Advocate, for the complainants and Mr. Pravin Bahadur, Advocate, for the opposite party.

2.      Mrs. Prerna Banerjee and Ranjan Banerjee have filed above complaint for directing the opposite party (hereinafter referred to as the builder) (i) to withdraw the cancellation letter dated 18.11.2015, (ii) to handover possession of the apartment to the complainants, complete in all respect, in conformity of the Apartment Buyer’s Agreement, with all the facilities as per quality standard promised and execute conveyance deed, (iii) to adjust the amounts charged for parking and preferential location, towards the sale consideration of the apartment, (iv) to pay delayed compensation in the shape of interest @12% per annum from the date of promised possession till the date of handing over physical possession (v) to pay Rs.25/- lacs as the compensation for mental agony and physical harassment (vi) to pay Rs.5/- lacs as the cost of the litigation and (vii) any other relief, which is deemed fit and proper in the fact and circumstances of case.

 At the time of arguments, the counsel for the complainants confined his arguments for refund of the entire money deposited by the complainants.

3.      The facts, as stated in the complaint and emerged from the documents attached with it, are that the builder was a company and engaged in business of development and construction of residential and commercial buildings and selling its unit to the prospective buyers. The builder launched a project of group housing in the name of “Emerald Bay” at village Dhanwapur, Sectors-104, Gurgaon, Haryana. The representatives of the builder approached the complainants and impressed them by alluring and attractive promises. The complainants booked a flat on 28.01.2013 and gave a cheque of Rs.10/- lacs. The builder allotted Flat No. A3-1001, (super built up area 2450 sq.ft., basic sale price Rs.17762500/-) on 28.02.2013. Along with allotment letter, ‘Construction Linked Payment Plan’ was supplied, in which total cost of Rs.23723496/- was shown. The Apartment Buyer’s Agreement was executed on 09.10.2013. The complainants had deposited total Rs.4609680/- by that time. Although the terms of Apartment Buyer’s Agreement were arbitrary, but the complainants had no option except to sign it. The complainants deposited Rs.1000000/- on 28.01.2013, Rs.1600000/- on 12.04.2013, Rs.157376/- on 12.04.2013, Rs.500000/- on 07.05.2013, Rs.400201/- on 15.06.2013, Rs.442114/- on 15.06.2013, Rs.500000/- on 05.07.2013, Rs.10000/- on 24.07.2013, Rs.2375285/- on 15.11.2013, Rs.2389546/- on 07.11.2014 and Rs.2375488/- on 20.01.2015 (total Rs.11750010/-). The complainants, through letter dated 22.06.2015, made some queries from the builder and also pointed out that some of the clauses of Apartment Buyer’s Agreement were unfair. The complainants did not receive any reply of the letter dated 22.06.2015, therefore gave reminder dated 07.07.2015. Then the builder gave reply of some of the queries vide letter dated 30.07.2015. The complainant, vide letter dated 04.08.2015, sought for a meeting with the officers of the builder. The builder, vide email dated 06.08.2015 fixed 07.08.2015 for the meeting. During meeting no solution of the queries of the complainants was made. In respect of break up of ‘super area’, they were told that breakup of ‘super area’ would be shared through email but no information in this respect was given. The complainants then gave a legal notice dated 06.10.2015, raising their objections to the unfair, arbitrary and unlawful terms of the agreement. The builder, vide letter dated 18.11.2015, demanded entire outstanding dues within 30 days, failing which, allotment would be cancelled. The builder has illegally charged for car parking space and preferential location. Various terms of the agreement were unfair, arbitrary and opposed to public policy and void under Section 23 of Contract Act, 1872. The complainants filed Consumer Complaint No.1482 of 2015, which was dismissed as withdrawn by order dated 13.01.2016, with liberty to seek relief before appropriate forum. The complainant then filed an application under Section 9 of Arbitration and Conciliation Act, 1996, before District Judge, Gurgaon, which is still pending. The complainants through letter dated 12.05.2016, requested for conciliation in terms of clause-57 of the agreement. The complainants through letter dated 28.11.2016, requested for arbitration in terms of the agreement. But no reply of these letters was given. Then this complaint was filed on 14.11.2017, complaining unfair trade practice. 

4.      The builder filed its written reply on 26.04.2018 and contested the case. It has been stated that the grievance of the complainants regarding onerous buyers agreement, PLC charges and car parking charges as well as committing unfair trade practice has been levelled, but no cause of action regarding delivery of possession of the flat for which complaint was filed, has been disclosed in the complaint. This complaint a classical example of abuse of process of law inasmuch as the complainants have intentionally supressed the material facts that initially the complainants booked two units (Flat No.A2/903 & Flat No.A3-1001) in the project ‘Emerald Bay’. Booking of two flats itself shows that flat were booked for commercial purpose, but as the real estate industry started facing the depressed marketing sentiments and there being no premium in the secondary market, initially the complainants requested to cancel the booking of unit A2-903 where there had been huge outstanding dues upon them. On humanitarian grounds, as the complainants were facing financial constraints, the builder cancelled the booking of Flat No.A2/903 and refunded the amount of said booking, after deducing nominal charges. The earlier complainants have approached this Commission in Consumer Complaint No.1482 of 2015 on similar relief, but this complaint was got dismissed as withdrawn by the order dated 13.01.2016 with liberty to pursue for appropriate relief before appropriate forum.  Thereafter the complainants filed an application under Section 9 of Arbitration and Conciliation Act, 1996 before District Judge, Gurgaon, which is still pending. Thereafter, the complainants issued a letter dated 12.05.2016 through their counsel invoking conciliation in terms of clause 57 of the Apartment Buyer’s Agreement. The complainants thereafter issued a letter dated 18.11.2016 through their counsel invoking Arbitration clause in terms of Apartment Buyer’s Agreement.  Due to concealment of material facts as well as pursuing alternative remedy under the law, this complaint is not maintainable. The complainants are a speculative investor and not a consumer within the meaning of Consumer Protection Act, 1986.  Booking of two apartments by the complainants shows that these apartments were booked for commercial purpose. The Complainants have stopped payment of the instalment after 23.01.2015, therefore, huge amount of instalment is due upon them. Without making timely payment of the instalment, the relief for possession cannot be granted to the complainants. The payment plan has been delivered to the complainants along with application form and it was well within the knowledge of the complainants. At the time of cancellation of first unit, the complainants agreed for timely payment of the instalment of present unit, but the complainants again defaulted in payment of instalment of the present unit.  The complainants have falsely alleged that the builder has committed unfair trade practice although no unfair trade practice has been committed by the builder. The Apartment Buyer’s Agreement was sent to the complainants and after going through all the terms and conditions and being satisfied as well as after taking legal advice they accepted and signed the Apartment Buyer’s Agreement. If they had any confusion in respect of any terms and conditions of the Apartment Buyer’s Agreement, the complainants would have clarified it before signing. Now, it is not open for the complainants to allege that Apartment Buyer’s Agreement contains arbitrary terms as well as the terms opposed to public policy. The complainants have not disclosed any cause of action for filing this complaint. The complaint is liable to be dismissed on this ground alone. So far as the relief for possession is concerned, it is premature inasmuch as the time as mentioned in the Apartment Buyer’s Agreement has still not expired. Total sale consideration of the flat has been mentioned in the payment plan attached with the application form. It has been denied that the builder or any of their agent/officer ever approached the complainants or convinced them for booking the apartment in the project. The complainants booked two apartments in the project on their own volition. The complainants are educated persons and after going through all the contents of Apartment Buyers Agreement they have accepted it and signed it. After expiry of 3-4 years, the complainants began to raise the issue that the Apartment Buyer’s Agreement contains arbitrary clause. The demand notices were issued time to time as per payment plan supplied to the complainants along with application form. It is incorrect to say that the demand notice was illegal. The complainants have committed default in payment of instalment. Despite extension of time on their requests they have failed to deposit the money dues against the instalments. In order to cover up the default committed by the complainants, they issued letters raising frivolous queries, which were duly replied vide letters dated 30.07.2015 and 06.08.2015. Building plan was duly sanctioned and the builder had Development License No.68 of 2012 in their favour which was shown to the complainants at the time of booking of the flat, but again query in this respect was again made. The judgement of Hon’ble Supreme Court in Nahalchand Laloochand Pvt. Ltd. Vs. Panchali Cooperate Housing society Limited (2010) 9 SCC 536 related to the provisions of Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963   and has no application in the present case. Inasmuch as in the present case, car parking space is not a part of common area. So far as preferential location charges are concerned, it was very much communicated to the complainants along with the application form which contained the payment schedule and it was in the knowledge of the complainants from the very beginning. The final determination of ‘super area’ can only be done after finalisation of the construction and at the time of obtaining ‘Occupation Certificate’ as clearly mentioned in the application form. The query raised by the complainants was mala fide as they were not in position to give the outstanding dues of the instalment. It has been specifically denied that behaviour of the officials was rude and intimidating at the time of meeting with complainants. All the issues were fully discussed and clarified except the super area which could only be determined at the time of application for Occupation Certificate.  The complainants have illegally raised issue in respect of title of the land although the Directorate of Town and Country Planning, Haryana at the time of granting development license has diligently investigated the title and after being satisfied, the license was granted. As the complainants have stopped payment of the instalment after 23.01.2015, as such cancellation notice was issued by the builder on 18.11.2015.  So far as delay in the project is concerned, the demonetisation in the country has raised a financial problem in real estate industry.  There was specific order of National Green Tribunal for stopping all construction activities in whole National Capital Levels when pollution levels were alarming. Due to which the labourer went back to their home place and took 3 to 4 months in returning therefore, the construction was delayed. 

5.      The complainants filed rejoinder reply on 15.05.2019, in which material facts stated in the complaint have been reiterated.  It has been denied that the complainants had booked the flats for any commercial purpose. It has been stated that the complainants had booked two apartments for the purpose of their two children.  However, as the cost of the apartments was very high, as such, the complainants wanted to cancel both the apartments, but on persuasion of the builder only one apartment was cancelled and other was retained.  It has been denied that the complainants were living in their own house. It has been stated that the complainants were living in a rented accommodation and the apartment was booked for their own purpose. Ranjan Banerjee (complainant-2) lost his job and unemployed for past two years, therefore, the financial condition of the complainant had become worst. The proceeding under Section 9 of the Arbitration and Conciliation Act, 1996 is a different proceeding. Pendency of the proceeding under Section 9 does not bar for filing this complaint. By the time when the Apartment Buyer’s Agreement was given to the complainants, the complainants had already deposited Rs.4609680/- as such they were not in position to bargain, therefore, it was signed inasmuch as the refusal to sign, may result forfeiture of their money. The various clauses of the agreement show that it has taken care for  protecting all the interest of the builder at any rate, therefore, it was  arbitrary.   The complainants have already paid Rs.11814998/- still a demand of Rs.4223755/- has been made.  The complainants sought for some clarification vide letter dated 22.06.2015. Instead of clarifying the ambiguity, the complainants received letter dated 18.11.2015 written by the builder demanding Rs.4223755/- within 30 days, failing which the allotment of the complainants would be cancelled, which was unfair trade practice. Although the complainants have demanded for referring the dispute to the arbitration by the letter dated 26.11.2016, but the matter was not referred to arbitration till today.

6.      The complainants filed Affidavit of Evidence of Ranjan Banerjee and an affidavit of Admission and Denial of documentary evidence.  The builder filed Affidavit of Evidence of Ashok Singh Rawat.  Both the parties have filed various documentary evidence and their written submissions. As stated above, at the time of arguments, the counsel for the complainants orally prayed for refund of money instead of the relief claimed in the complaint.  The counsel for the builder then filed additional written synopsis on 17.12.2021.

7.      I have considered the arguments of counsel for the parties and examined the record.  So far as the preliminary issues raised by the builder regarding concealment of booking of flat No.A2/903, is concerned, admittedly this booking was cancelled by the builder on 09.10.2013 i.e. much before filing of this complaint. For the purpose of deciding the controversies in this complaint, it was neither necessary nor appropriate fact, which was liable to be disclosed.  Thus, on this ground the complaint cannot be dismissed.

8.      So far as filing of previous complaint is concerned, it was dismissed as withdrawn with liberty to seek appropriate relief before appropriate forum by order dated 13.01.2016. Order II Rule 2 and Order XXIII Civil Procedure Code, 1908 have not been applied to the proceeding under the Consumer Protection Act, 1986 as such filing of other complaint is not barred in any of provision under the Consumer Protection Act, 1986. The scope of the proceedings under Section 9 of the Arbitration and Conciliation Act, 1996 is limited and on the basis of the pendency of this application, it cannot be said that the present complaint is not maintainable. The builder has not adduced any evidence that the complainants were in business of buying and selling of the properties as such the preliminary objections raised by the builder relating to maintainability of the complaint has no force.

9.      Relief No.1 in the complaint is for grant of possession of the flat in dispute complete in all respects in conformity with the Apartment Buyer’s Agreement. The builder, in his written reply, has contested the complaint and took a ground that as the complainants had stopped payment of instalment after 23.01.2015 and huge amount of instalment were due against them. The builder had also issued notice dated 18.11.2015 to the complainants to deposit of the instalments due within 30 days, failing which, the allotment would be cancelled. In view of the aforesaid facts, the counsel for the complainants realised that relief of possession could not be granted and prayed for refund of the money. This Commission in Consumer Case No.438 of 2019, Ramesh Malhotra & Ors. Vs. EMAAR MGF Land Ltd. & Anr., decided on 29.06.2020 permitted such a prayer. Otherwise also, it is well settled that the court can mould the relief appropriately in the facts and circumstances of the case. In such circumstances, this complaint is being considered only in respect of refund of the money deposited by the complainants.

10.    It has been stated that at the time when Apartment Buyer’s Agreement was sent to the complainants, they had already deposited about Rs.4609680/-. In view of clause contained in allotment letter, their money was liable to be forfeited as such they had no option except to sign Apartment Buyer’s Agreement.  In such circumstances, only signing of the Apartment Buyer’s Agreement by the complainants will not legalise all the terms of the agreement. Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 (6) SCALE 462 and Pioneer Urban Land & Infrastructure Ltd. Vs. Govind Raghavan, (2019) 5 SCC 725, held the similar terms in the Apartment Buyer’s Agreement as one side and arbitrary as such it is not binding of the complainants.

11.    In Ramesh Malhotra’s case (supra), this Commission has permitted for forfeiture of earnest money not exceeding 10% in the case of refund of the money. Although in the agreement ‘earnest money’ has been defined as 15% of total sale consideration, but in view of the judgment of this Commission, I also accept ‘earnest money’ would not be more than 10% of the total sale consideration. Under Clause E of the Apartment Buyer’s Agreement, on cancellation of the agreement, the earnest money is liable to be forfeited. The builder already issued notice dated 18.11.2015 for cancellation of the allotment, due to default in payment of the instalments. Now the complainants accept the cancellation of the allotment, as such, it is appropriate that the builder shall return the money of the complainants after forfeiting earnest money to the extent of 10% on total cost of Rs.23723496/. 

ORDER

          In the result, the complaint is partly allowed.  The builder is directed to refund the entire money deposited by the complainants with interest @9% from the date of each deposit till the actual payment to the complainants, after deducting the amount of 10% of total cost as on 01.01.2016, within period of two months from the date of this judgment.