PER MR SUBHASH CHANDRA, MEMBER

1.     This is a complaint under section 12 of the Consumer Protection Act, 1986 on grounds of deficiency in service and unfair trade practice resulting in delay in handing over possession of the residential unit booked by the complainant in a project promoted and developed by the opposite parties seeking refund of the amount deposited along with penal interest and other compensation.

2.     The brief facts of the case are that the complainant’s husband and son had jointly booked an independent residential floor on 03.09.2011 in a project being developed by the Opposite Party viz., “Raheja Developers Ltd called ‘Atharva’, Sector 109, Gurgaon, Haryana for a sale consideration of Rs 1,00,19,880/-. A sum of Rs 10,27,789/- was paid as the booking amount and vide an allotment letter dated 08.11.2011 the opposite party allotted unit number IF 6-05, 4^th Floor admeasuring 1920 sq ft in the said project at a basic rate of Rs 4680/- per sq ft. A Flat Buyer’s Agreement (‘FBA’, in short) was entered into on the same date. As per clause 4.2 of the FBA the opposite party undertook to deliver possession of the unit within 24 months with a 6 month grace for unforeseen circumstances failing which compensation of Rs 7.00 per sq ft was to be paid till completion. As per this undertaking, the stipulated date for offering possession was 08.05.2014. As the original allottee was diagnosed with cancer, the allotment of the unit was transferred by him to his wife, the complainant herein, with due approvals of the opposite party on 24.05.2018. As on 09.02.2019, an amount of Rs 1,01,39,197/- had been deposited through instalments with the opposite party in respect of this unit. As no offer of possession was made by the opposite party till January 2019, the complainant decided to terminate the agreement. She has sought refund of the amount paid with other reliefs and is before us with the following prayer:

1. Admit the present complaint and issue notice thereof to the opposite party; and
2. Allowing the complaint and directing the respondents to refund the entire payment made to the opposite party, i.e., Rs.1,01,39,197/- along with 15% per annum  from the date of deposit of the amounts till the date of its realization by the complainant from the opposite party; and / or
3. Directing the opposite party to pay compensation for mental agony and harassment amounting to Rs.10,00,000/- as opposite party are reaping the fruits of the hard earn money of the complainant; and
4. Directing the opposite party to pay Rs.1,00,000/- towards the cost of litigation; and
5. Pass any other order/ direction in the peculiar circumstances of the present complaint.

3.      The complainant has averred that there was deficiency in service and unfair trade practice by the opposite party in not adhering to the committed date of handing over possession and imposing entirely one sided conditions in the FBA that are in favour of the opposite party which the complainant as a consumer was unable to contest and was compelled to accept as considerable amounts had been deposited with the opposite party by then. It is alleged that the opposite parties failed to meet the planned milestones, and that time was of the essence in the FBA as a date of handing over possession was stipulated against which the payments were made in instalments without default. Refund of the deposited amount with interest has been sought as the unit was booked for her own residential requirement and in view of the pecuniary and legal jurisdiction of this Commission as per judgement of the Hon’ble Supreme Court in Emaar MGF Vs Aftab Singh – I (2019) CPJ 5 (SC). The complainant has also relied upon Prateek Kumar Jain Vs Raheja Developers Pvt. Ltd., in CC 2318 of 2017 dated 31.01.2020 which allowed a similar prayer with 10% interest.

4.     The opposite party has contested the complaint in his Reply. It has opposed the complaint through preliminary objections and on merits, stating that this Commission lacks jurisdiction in the matter as the complaint seeks to amend/modify the terms of the contract between the parties which is beyond the purview of Section 14 of the Consumer Protection Act, 1986 in the light of Hon’ble Supreme Court’s judgement in Bharati Knitting Co., Vs DHL World Wide Express Courier Division of Airfreight Ltd., (1996) 4 SCC 704; the complainant is not a ‘consumer’ within the meaning of Section 2 (1) (d) of the Act as she has booked the flat only to speculate in real estate; the issues are contractual in nature and can be tried only in an appropriate civil court and not in this Commission. It is contended that the complainant was without jurisdiction before the National Commission in light of the judgement of the Hon’ble Supreme Court in K Sagar Vs Bal Reddy (2008) 7 SCC 166 and Morgan Plantation Pvt. Ltd., vs Ambience Pvt. Ltd., (NCDRC) in CC no. 307 of 2012.

5.      On merits, the complainant denies the averments of the complainant and contends that the commitment of a date for offering possession in clause 4.2 was contingent upon the receipt of the commencement certificate. Deficiency in service is denied as time was not of the essence in the contract since opposite party had agreed only to endeavour to complete construction. Delay was caused due to delays in the clearances by Haryana Urban Development Authority and the Directorate of Town and Country Planning, Haryana (DTCP). Without prejudice, the opposite party states that in view of findings in several cases Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan & Connected Matter, DS Dhanda, Prateek Infra, NexGen Infracon, interest of 15% claimed is exorbitant and only interest @ 9% is admissible.

6.     Complainant filed his evidence by way of affidavit. Parties filed written synopsis of arguments. We have heard the learned counsel for the complainant and perused the records. The reply filed by the opposite parties was considered as his final arguments.

7.      The admitted facts are that the original allottees of the residential unit were permitted to transfer the allotment of the residential unit in question to the complainant by the opposite party. A period of 30 months including a 6 month grace had been committed in the FBA for completing construction and handing over possession. Payments in instalments amounting to Rs 1,01,39,197/- were accepted by the opposite party without dispute. No occupation certificate has been produced even on date and no offer of possession has been made.

8.     Learned counsel for the complainant has contended that in view of the inordinate delay in handing over the possession there is deficiency in service. The offer of a paltry compensation of Rs.7/- per sq ft for the delay is an unfair trade practice based upon the one sided FBA. She has waited for possession since 08.05.2014.

9.      The accepted position of law as per Pioneer Urban land and Infrastructure Ltd (supra) and Devasis Rudra (supra) have also not been assailed by the opposite party.

10.    The contentions of the opposite party regarding jurisdiction cannot be accepted. It has been held by the Hon’ble Apex Court in M/S Emaar MGF land Ltd. Vs. Aftab Singh I (2019) CPJ 5 (SC) that in a case of a complaint under the CP Act, 1986 the civil remedies before a civil court or through arbitration will not apply. The opposite party has also not been able to substantiate its averment that the complainant is not a ‘consumer’, the onus of which is squarely upon him in terms of Kavita Ahuja Vs. Shipra Estate Ltd. & Jai Krishna Estate developers Pvt. Ltd. & Ors. I (2016) CPJ 31 (NC). The arguments that there was no commitment of a time for possession and therefore, deficiency in service and misrepresentation constituting an unfair trade practice do not hold water as these issues stand settled in Pioneer Urban Land Infrastructure Ltd., vs Govindan Raghavan (supra) and in the case of Kolkata West International City Pvt. Ltd., vs Devasis Rudra. In view of this settled position, the opposite party cannot deny the complainants their right to a full refund or to be kept waiting indefinitely.

11.   The Hon’ble Apex Court reiterated the consumer’s right to seek refund in view of inordinate delay on the part of the opposite party in Pioneer Urban land and Infrastructure Ltd., vs Govindan Raghavan in Civil Appeal no. 12238 of 2018. It also reaffirmed that “It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession” in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, Civil Appeal No. 3182 of 2019 decided on 25.03.2019. Even on date there is no offer of possession based on an occupancy certificate.                          

12.   In the light of the above, we find merit in the complaint and allow the same with the following directions:

(a)    Opposite Party shall repay the full amount deposited by the complainant along with simple interest @ 9% p.a. thereon from the respective dates of deposit till the date of payment;

(b)    Opposite party shall pay litigation costs of Rs.50,000/- to the complainant;

(c)    Order to be complied within 6 weeks of the receipt of the certified copy of the order;

(d)    Opposite party shall be liable to pay a penal interest of 12% simple interest p.a. in case of default.

13.   The complaint stands disposed off in terms of the directions.