Chandigarh

StateCommission

CC/1/2021

Balraj Singh Mejie - Complainant(s)

Versus

Raheja Developers Ltd. - Opp.Party(s)

Himanshu Raj, Anshu Chaudhary & Sapna Randhawa Adv.

21 Feb 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	01 of 2021
Date of Institution	:	18.12.2020
Date of Decision	:	21.02.2022

 

Balraj Singh Mejie S/o Sh.Hardarshan Singh Mejie, R/o H.No.3153, Sector 21-D, Chandigarh-160022.

…… Complainant

V e r s u s

1. Raheja Developers Ltd. through its Managing Directors.

Registered office:- W4D, 204/5, Keshav Kunj, Cariappa Marg, Sainik Farms, New Delhi-110080.

2. ICICI Bank, through its Managing Directors

Present Address:- Landmark, Race Course Circle, Vadodara-390007, Gujrat.

…..Opposite parties

============================================================

 

Complaint case No.	:	02 of 2021
Date of Institution	:	18.12.2020
Date of Decision	:	21.02.2022

 

Manjit Kaur Mejie W/o Sh. Balraj Singh Mejie, R/o H.No.3153, Sector 21-D, Chandigarh-160022.

…… Complainant

V e r s u s

1. Raheja Developers Ltd. through its Managing Directors.

Registered office:- W4D, 204/5, Keshav Kunj, Cariappa Marg, Sainik Farms, New Delhi-110080.

2. ICICI Bank, through its Managing Directors

Present Address:- Landmark, Race Course Circle, Vadodara-390007, Gujrat.

…..Opposite parties

============================================================

 

BEFORE:              JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                             MRS.PADMA PANDEY, MEMBER

                             MR. RAJESH K. ARYA, MEMBER.

 

Present through Video Conferencing (In both complaints):-

       Sh.Himanshu Raj, Advocate for the complainants         (physically).

       Sh.Kamal Dhaiya, Advocate for opposite party no.1.

       Er.Sandeep Suri,  Advocate for opposite party no.2.

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

         

                   By this order, we propose to dispose of the aforesaid two consumer complaints. Since, the issues involved in these complaints, except minor variations, here and there, of law and facts are the same, therefore, we are of the opinion that the same can be disposed of, by passing a consolidated order.

2.           The aforesaid complaints have been filed by the respective complainants, seeking refund of the amount paid by them, alongwith guaranteed premium; interest; compensation etc., as they are aggrieved of delay and laches; deficiency in providing service, negligence and adoption of unfair trade practice on the part of opposite party no.1-Raheja Developers Limited (in short the developer). It has been alleged by the complainants in both the complaints that the developer was not serious in completing the development and construction at the project site, as a result whereof, they sought refund of the amount paid alongwith guaranteed premium compensation opted under buyback offer available to them under Memorandum of Understanding signed with the developer, yet, it failed to do so. Details with regard to the project in dispute; units booked by the complainants; payments made by them etc. of these complaints are given below:-

CC No.	01 of 2021	02 of 2021
Project	Raheja’s Revanta, Sector 78, Shikohpur, Gurgaon	Raheja’s Revanta, Sector 78, Shikohpur, Gurgaon
Unit booked on	23.07.2014	23.07.2014
Allotment made on	20.09.2014 (C-3)	20.09.2014 (C-3)
Unit No.	C-022, 2nd Floor, Tower No.C	C-012, 1st  Floor, Tower No.C
Area of the unit	2225.90 square feet	2225.90 square feet
Total cost	2,07,62,658.00	2,11,26,841.00
Amount paid	2,13,25,900.00	2,00,89,129.00
Agreement to sell	20.09.2014 (C-4)	20.09.2014 (C-4)
Tripartite agreement dated	27.08.2014 (C-2)	27.08.2014 (C-2)
Payment plan	Subvention	Subvention
Due date of possession	19.03.2019 (as per clause 4.2 of the agreement i.e. 48 + 6 months grace period total 54 months)	19.03.2019 (as per clause 4.2 of the agreement i.e. 48 + 6 months grace period total 54 months)
Possession offered or not	Not offered	Not offered
Delay in years	More than 2 ½ years from the committed date	More than 2 ½ years from the committed date
Allottee	Original allottee	Original allottee

         

3.           It has been pleaded that in the Memorandum of Understanding dated 25.11.2015 (in CC No.01 of 2021), Annexure C-5 and 25.11.2015 (in CC No.02 of 2021), Annexure C-5, it was agreed to between the complainants and the developer that on availing buyback offer by the complainants, against their respective units, within a time frame of 33 months to 36 months, from the date of bookings, the developer shall pay guaranteed premium compensation @Rs.1400/- per square of the area of the units alongwith refund of the principal amount paid by the complainants, the developer shall refund the same (principal amount + guaranteed premium compensation) within a period of 60 days from the date  of receipt of such request. It was further agreed by the developer that failure to refund the principal amount + guaranteed premium compensation,  after 60 days referred to above, shall entail interest @18% p.a. for the period of delay, on the entire accumulated amount. It has been averred that despite the fact that the complainants have raised their claim of buyback, on time, yet,  neither the developer paid the principal as well as guaranteed premium compensation nor interest @18% p.a. referred to above. It has been averred that not only as above, though under the subvention plan opted by the complainants, the developer was liable to pay EMIs etc. to opposite party no.2 (in short the ICICI Bank), yet, some EMIs alongwith miscellaneous charges, were auto debited from the account of the complainants. Numbers of emails written in the matter, to the opposite parties did not yield any result. It has been stated that the developer and ICICI Bank are hand-in-gloves with each and duped the complainants. Hence these complaints.
4.           In the replies filed by the developer, in both the complaints, numerous similar grounds, inter alia, were taken as under:-
   1. that the complainants have concealed material facts from this Commission;
   2. that since complaints in respect of the units in question have also been filed by the complainants before the Haryana, RERA and are pending adjudication, as such, these consumer complaints on the same cause of action, cannot run parallel and are not maintainable before this Commission;
   3. that this Commission did not vest with territorial and pecuniary jurisdiction to entertain these complaints;
   4. that the complainants did not fall within the definition of ‘consumer’, as  they are speculators;
   5. that the complainants were defaulters in making payment towards price of their respective units;
   6. that delay, if any, in completing the development  and construction work took place, as the State Government failed to complete the external infrastructure work like roads, water, sewerage connected to the project in question and the matter in this regard was also taken up with the Government Authorities;
   7. that the developer is making sincere efforts to complete the project;
   8. that the ICICI Bank was not a party to the Memorandum of Understandings (MOUs);
   9. that it was clearly brought to the notice of the complainants that since under the provisions of RERA, the amount equal to 70% paid by the buyers including the complainants was deposited in the escrow account, as such, the developer is unable to honour the commitments made vide MOUs regarding refund of the amounts paid alongwith guaranteed premium compensation and interest; and
   10. that the complainants were also informed that matter with regard to extension of subvention scheme was also taken up by the developer with ICICI Bank.  

 

5.           On merits, booking of the respective units; execution of tripartite and buyer agreements; payments made by the complainants against their respective units; and that neither possession of the said units has been delivered nor amount paid has been refunded nor guaranteed premium compensation/interest has been paid to the complainants, have not been disputed by the developer.  Prayer has been made to dismiss the complaints with heavy cost.
6.           When, after appearance, despite availing number of opportunities, reply and evidence by way of affidavit was not filed by the ICICI Bank-opposite party no.2, left with no alternative, their defence was struck of by this Commission, vide order dated 23.08.2021. However, later on Counsel for opposite party no.2, sent copy of the loan account statement of the complainants, through email, which was taken on record and copy thereof was also supplied to other parties.
7.           The contesting parties led evidence in support of their cases.
8.           We have heard the contesting parties and have gone through the evidence and record of both the cases, including the written arguments, very carefully.
9.           First, we would like to deal with the objection to the effect that the complainants did not fall within the definition of ‘consumer’. It may be stated here that the objection raised is not supported by any documentary evidence and as such the onus shifts to the developer, to establish that the complainants, in these complaints, have purchased the respective units in question to indulge in ‘purchase and sale of units/flats’ as was held by the Hon’ble National  Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since they failed to discharge their onus, hence we hold that the complainants are consumers. The mere fact that the complainants are residing in a house at Chandigarh or that he and his wife have purchased separate units in the project in question is not a ground to shove them out of the purview of the consumer, unless until it is proved that they are investors and have purchased the respective units for sale in open market, to earn huge profits. As such, objection taken in this regard stands rejected. 
10.           Now we will deal with the objection regarding territorial jurisdiction of this Commission; it may be stated here that since the complainants are admittedly residing at  House no.3153, Sector 21-D, Chandigarh, as such, both these complaint are maintainable before this Commission, at Chandigarh, in view of provisions of Section 47 (4) (d) of Consumer Protection Act, 2019 (in short the Act, 2019) which says that a complaint  is maintainable  before the State Commission, within the limits of whose jurisdiction, the complainant(s) resides or personally works for gain. In this view of the matter, objection taken by the developer stands rejected.

                   To defeat the claim of the complainants, Counsel for the developer placed reliance on condition no.15.1 of the respective buyer’s agreement to say that only the courts at Gurgaon and Punjab and Haryana High Court, at Chandigarh, have jurisdiction to entertain these complaints. We have considered this contention but it carries no weight. It is an undisputed fact that this Commission at Chandigarh has jurisdiction to entertain and decide these complaints in view of the provisions of Section 47 (4) (d) above. Therefore, the above said condition contained in the agreements does not bar the jurisdiction of this Commission.  The above fact alone cannot suffice to oust the territorial jurisdiction of this Commission to adjudicate upon the complaint, in view of the specific provisions of  the CPA 2019 provisions of which have been discussed above. To emphasize, the clause/conditioin relating to jurisdiction of courts in the agreement between the parties, cannot by itself over-ride the statutory right of the complainants, conferred by the above-mentioned provisions of the CPA 2019 and in the failure to adopt the same, will defeat the purpose and object of the Act, 2019, under which these consumer complaints have been filed by the complainants. Our this view is supported by the observations made by the Hon’ble National Commission in the case of Neha Singhal Vs. Unitech Limited and Abhishek Singhal vs. Unitech Limited, II (2011) CPJ 88 (NC), relevant part whereof is reproduced hereunder:-

" 3. ….In a similar case (FA No. 425 of 2010 Munish Sahgal vs DLF Home Developers Limited), the State Commission had taken the same view. The above-mentioned appeal was allowed by this Commission, vide order dated 9th February 2011, based on the decision dated 11th April 2002 of a 3 Member Bench of this Commission in FA No. 142 of 2001 (Smt Shanti vs M/s. Ansal Housing and Construction Ltd.) The only point of some relevance in this case is that the housing property in question is located in NOIDA, Gautam Buddha Nagar, Uttar Pradesh. However, that fact alone cannot suffice to oust the territorial jurisdiction of the (Delhi) State Commission to adjudicate upon the complaint, in view of the specific provisions of section 11 (2) (b) of the Consumer Protection Act, 1986 (the Act). To emphasise, the clause relating to jurisdiction of courts in the agreement between the parties cannot by itself over-ride the statutory right of the appellant/ complainant conferred by the above-mentioned provision of the Act that would defeat the purpose and object of the Act. This view is also in accord with the provisions of section 28 of the Indian Contract Act, 1872 (as amended with effect from 8th January 1997).

                   Further, in Ethiopian Airlines Vs Ganesh Narain Saboo, IV (2011) CPJ 43 (SC)=VII (2011) SLT 371,  the principle  of law laid down was  that the restriction of jurisdiction to a particular Court need not be given any importance in the facts and circumstances of the case.  

                   In  Cosmos Infra Engineering  India  Ltd. Vs Sameer Saksena & another I (2013) CPJ31 (NC) and  Radiant Infosystem Pvt. Ltd. & Others Vs D. Adhilakshmi & Anr I (2013) CPJ 169 (NC) the  agreements were executed, between the parties, incorporating therein, a condition, excluding the jurisdiction of any other Court/Forum,  in case of dispute, arising under the same, and limiting the jurisdiction of the Courts/Forums at Delhi and Hyderabad.  The Hon’ble National Commission in the aforesaid cases held that such a condition incorporated in the agreements, executed between the parties, excluding the jurisdiction of a particular Court/Forum and limiting the jurisdiction of a particular Court/Forum, could not be given any importance and the complaint could be filed, at a place, where a part of cause of action arose, according to Sections of the Consumer Protection Act. As such, in this view of the matter, objection raised by the developer in this regard stands rejected.

11.           Now, we will like to deal with the objection raised by the developer that for want of pecuniary jurisdiction, it is not open to this Commission to entertain and adjudicate these complaints; it may be stated here that these complaints have been filed under the provisions of CPA 2019. At the time of filing of these complaints, the provisions of Section 47 (1) (a) (i) of CPA 2019 would be applicable which say that the State Commission shall have jurisdiction to entertain the complaints where the value of the goods or services paid as consideration exceeds rupees one crore but does not exceed rupees ten crore.  As such, in the present cases, since against total value of the respective units, in question, the complainants have paid Rs.2,13,25,900/- in CC No.01 of 2021 and Rs.2,00,89,129/- in CC No.02 of 2021, to the developer, which exceeds rupees one crore but does not exceed rupees ten crore, respectively, as such, this Commission has pecuniary Jurisdiction to entertain and decide these complaints. Objection taken by the developer in this regard stands rejected.
12.           There is no dispute with regard to the fact that the complainants had booked the units, in question, in the project in question, against which substantial amounts, referred to in the chart above, have been  received by the developer. It is also not in dispute that possession of the units booked by the complainants, in both the complaints, has not been delivered to them by the promised dates i.e. latest by 19.03.2019 (as per clause 4.2 of the agreement i.e. 48 + 6 months grace period total 54 months) or even by the dates when these complaints were filed or thereafter. This fact has also not been disputed by the developer, in the written replies filed in these complaints. However, in the written replies filed, neither firm commitment to hand over possession of the units has still been made by the Company nor any cogent and convincing reason has been given, as to why possession of the respective units has been delayed. However, it has been casually stated that the developer is making sincere efforts and that the development and construction work is near completion. It may be stated here that it is settled law that onus to prove the stage and status of construction and development work at the project site, is on the builder/developer. It was so said by the Hon’ble National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. It is very strange that in the present cases, not even an iota of evidence has been placed on record by the developer to prove as to at what stage, construction and development work has reached at the project site. In case, the development/construction activities are being undertaken and are about to complete at the project site, then it was for the developer, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development/construction activities, are being undertaken and almost complete at the site or not, but it failed to do so. Thus, it is a proven fact that even as on today development and construction work at the project site is not complete. Furthermore, there is nothing on record to show that the developer suffered any force majeure circumstances, on account of which, construction and development work at the project site could not be completed.
13.           However, in order to buttress the case of the developer, Counsel for the developer while placing reliance on RTI information-Annexures W-1 to W-12 contended with vehemence that delay in completion of the project took place on account of non-performance by the Government Departments. While placing reliance on Annexures W-1 to W-12, following allegations have been leveled by the developer against the Government Authorities:-

 

“……….D- Delay due to non-performance by Govt. Agencies: The specific factors for delay which were beyond the control of the respondent are:

 

(1) Delay in acquisition of land for development of roads and infrastructure.

 

(2) Delay by government in construction of the Dwarka Expressway and allied roads.

 

(3) Oversupply of the residential units in the NCR region, operated to non-completion of project within stipulated period.

 

(4) The Government agencies have failed miserably to provide essential basic infrastructure facilities despite collecting the charges for same purposes from various Builders and Real Estate Companies by HSVP and HUDA.

 

(5) The opposite party faced cost escalations due to default of the concerned government agencies. The fixtures, apparatus, equipment, gadget and devices installed in the project/units gets detroit and diminishes the value and effectiveness of such items, also their warranty will lapse without its usage.

 

E- State Government Agencies are contributory to delay:

 

(1) The respondent no.1 filed RTI Application for seeking information about the status of basic services such as Road, sewerage, Water and electricity. The copy of such RTI Application dated 22.05.2018 is annexed herewith as Annexure W-2. Thereafter, the respondent no.1 received the reply of such application from HSVP where it is clearly stated that no external infrastructure facilities were laid down by the concerned Govt. Agency/Department. The copies of replies for the RTI Application dated 15.06.2018, 02.07.2018 and 11.07.2018 are annexed herewith and marked as Annexure W-3 (Colly).

(2) Recently the Hon'ble Competition Commission of India, (hereinafter referred as "CCI") has held in its order dated 01.08.2018 that Government Authorities i.e. Directorate of Town and Country Planning, Haryana and Haryana Urban Development Authority (HUDA) whose name is rechristened as Haryana Shehri Vikas Pradhikaran (HSVP) has not developed and laid down the essential basic infrastructure i.e. External Development Work despite collecting the charges for same purposes from various Builders and Real Estate Companies. Due to such apathy and discriminatory practices and standards adopted by such govt. agencies, majority of the builders, including but not limited to the answering respondent, was not able to develop the project within stipulated time period. Furthermore, it has been observed that HSVP and DGTCP may initiate external development works and for that purpose may start acquisition of land for lying of roads, electricity etc. The copy of order of CCI is annexed herewith and marked as Annexure W-4.

 

(3) It is pertinent to mention that without basic external infrastructure facilities such as hygienic water, roads, sewerage, allottees will suffer more if they take the possession of the apartment. The government agencies have failed miserably to provide essential basic infrastructure facilities, due to which answering respondents has been struck in situation, where delay in completing and handing over the project is causing force majeure where default/delay of possession the terms of agreement becomes unintentional, qua delay in offer of possession. Rather the respondents including developer are forced to bear the brunt of non-performance by the concerned Government Department. It is pain to customers but we too have to suffer by cost escalations. It is pertinent to mention that due to default of the concerned government agencies, the fixtures, apparatus, equipment, gadget and devices installed in the project/units gets detroit and diminishes the value and effectiveness of such items, also their warranty will lapse without its usage.

 

(4) Two High Tension(HT) cables lines that were passing through the project site were required to be removed and relocate the overhead HT wires to underground and hence the opposite party no.1 submitted building plan to DTCP, Haryana for approval, which was approved by the DTCP, Haryana. The revised and approved Zoning plan of the area falling under HT Lines is annexed herewith as Annexure W-5. The respondent requested to M/s KEI Industries Ltd for shifting of the 66 KV S/C Gurgaon to Manesar Line from overhead to underground Revanta Project Gurgaon vide letter dated 01.10.2013 which is annexed herewith as Annexure W-6. The HVPNL took more than one year in giving the approvals and commissioning of shifting of both the 66KV HT Lines. Thereafter, HVPNL, Gurgaon issued the performance certificate for the same to the Opposite party dated 14.06.2017 which is Annexure W-7.

 

(7) That Opposite Party got the overhead wires shifted underground at its own cost and only after adopting all necessary processes and procedures and handed over the same to the HVPNL and the same was brought to the notice of District Town Planner vide letter dated 28.10.2014 requesting to apprise DGTCP, Haryana for the same. The copy of said letter is annexed herewith as Annexure W-8.

 

(8) During such time when all such procedure and process were taking place, concurrently some amendments took place in Haryana Fire Safety Act, 2009 due to which it was further technically advised and mandated to have additional service floors/fire refuge area in the high rise tower as additional safety norms, to which the Opposite party no.1 complied in letters and spirit.

 

 (9) After revision of zoning plan, the respondent applied for revision of Building plan incorporating all the advised changes vide application dated 14.01.2016 to DTCP, Haryana with as per initiated committed project layout and design only, pursuant to which the DTCP, Haryana was pleased to revise the Building plan in conformity with revised Zoning Plan. The copy of such Approved & Revised Building Plan 24.04.2017 are annexed herewith as Annexure W-9.

 

(10) It is humbly submitted that the respondent is a law abiding person and is making all the efforts to complete said Project within shortest time period. The Complainant's unit falls in Surya Tower which is expected to complete by end of 2020 post which is expected and subject to good developing infrastructure such as sector road and laying providing basic external infrastructure such as water, sewer, electricity etc. as per terms of the application and agreement to sell executed. The handover formalities shall be initiated possession shall be offered once the basic infrastructure facilities will be provided by the State Government. It is further submitted that the said Project is on full swing but due to exceptional circumstances the respondent is forced to delay timing of possession of the said unit awaiting infrastructure. The copy of HUDA Service lay plans is annexed herewith and marked as Annexure W-10 (colly).

 

E- External development work not provided by concerned authorities despite payment of substantial amount: Despite payment of huge amount of Rs. 40.75 Cr. Against EDC and 5.76 Cr. Against IDC, the external development works have not been provided by the concerned authorities. The respondent sent another request letter dated 18.06.2019 to the DTCP to provide and lay the basic services to enable the respondent to deliver the possession to the allottees at the earliest possible time. The copy of letter dated 18th June 2019 is annexed herewith as Annexure W-11.

 

F- Another request for provision of EDC/IDC to CEO, Gurugram Metropolitan Development Authority: The respondent sent another letter dated 30.12.2019 to the CEO, Gurugram Metropolitan Development Authority requesting them to provide basic infrastructure services on priority after acquisition of planned/sector roads. The copy of said letter is Annexure W-12………...”

 

          We have considered the contention raised by Counsel for the developer and found that the same does not carry any weight. Firstly the RTI information aforesaid, pertains to the year 2018 i.e. more than 3 years back. In the documents referred to above, it has been found that approval for removal of high tension wires passing through the project land was not taken by the developer, before launching the said project; HVPNL Gurgaon issued performance certificate for commissioning of shifting of 66KV HT Lines only on 14.06.2017; revision of building plans were submitted to the DTCP, Haryana, vide application dated 14.01.2016, which was approved only on 24.04.2017; acquisition of land for development of roads and infrastructure had not been done by the Government Authorities concerned. Thus, when it was in the knowledge of the developer that the aforesaid permissions/approvals with regard to layout plans, shifting of high tension wires passing the project land, etc. was still not given by the Government Authorities and also even the land for development of roads and infrastructure had not been acquired, then it has not been clarified by the developer, as to why it was in  a hurry to launch and sell the units/plots in the project in question. The consumers cannot be made to wait for completion of work, arising out from the defects of the developer/builder. Furthermore, we did not find any clause in the respective buyers’ agreements, which says that possession of the respective units will be delivered to the complainants after construction of external infrastructure by the HUDA/Govt. Department.  Furthermore, there is nothing on record that after 2018, any progress with regard to development and construction activities,  in the project site or external infrastructure have been carried out by the developer or by the State Government. Under above circumstances, we are of the considered view that the complainants cannot be made to wait for an indefinite period at the whims and fancies of the developer/builder.

14.           Now the question which needs to be decided is with regard to the relief to be awarded to the complainants. It is coming out from the record that during the period intervening, the complainants in both these complaints have also entered in Memorandum of Understanding (MOU) dated 25.11.2015 (C-5) respectively,  wherein, against condition no.8 it was agreed to between the parties that the complainants can opt for surrender of their respective units, under buy-back option within a time-frame of 33 months to 36 months from the date of booking, at a guaranteed premium compensation of Rs.1400/- per square feet, and in such a case, the developer shall refund the amount paid alongwith the said  guaranteed premium compensation, within a period of 60 days, failing which, it (developer) was liable to pay interest @18% p.a. on the entire amount i.e. principal paid plus (+) guaranteed premium till realization.  It was further agreed to by the developer that it shall also be liable to pay to the Bank all installments/ Pre possession EMIs, Interest to the bank directly and keep the complainants fully indemnified in that regard. Relevant part of  condition no.8 of the said MOUs is reproduced hereunder:-

 

“……3. It is hereby agreed by the parties that the Purchaser/investor within a time frame of 33 months to 36 months from the date of booking, shall be entitled to call upon the Developer in writing, to cancel the aforesaid booking at a guaranteed premium compensation of Rs.1400/- per square feet and in such a case the Developer/its nominee shall cancel the said booking within 60 days of expiry of 36 months from the date of booking. It is hereby clarified that the Developer shall over and above the guaranteed premium compensation amount shall also be liable for refund of the entire amount paid by the Purchaser along with service tax so recovered from the Purchaser till date by the Developer. The Purchaser will execute the necessary documents to surrender/cancel the allotted units upon receipt of payment. The Purchaser shall execute such necessary deeds, documents in favour of Developer for the surrender of the said Apartment by the Purchaser to Developer and the payment of guaranteed premium compensation shall be subject to applicable tax laws. In case of delay in making the payment by the Developer to the Purchaser beyond 60 days, the Developer shall be liable to pay Interest @ 18% per annum for the period of delay on the total price payable to the Purchaser. It is hereby clarified that till the time the price is fully paid by the Developer to the Purchaser, the Developer shall also be liable to pay to the Bank all installments/ Pre possession EMIs, Interest to the bank directly and keep the Purchaser fully Indemnified in this regard……”

 

It is also coming out from the record that the complainants in both the complaints opted for the said option of buy-back available to them under condition no.8 of the respective MOUs, by way of writing emails dated 12.04.2017 (in CC No.01 of 2021 and 02 of 2021). The developer vide emails dated 13.04.2017, in both these complaints acknowledged receipt of request for buyback and informed that the cases of the complainants shall be processed as per terms and conditions of the agreement and that no other documents were required at their end. However, there is nothing on record that thereafter, the developer made payment to the complainants, under the buyback scheme, as a result whereof, the complainants wrote letter dated 30.06.2017, Annexure C-6  (in CC No.01 of 2021 and 02 of 2021) in the matter but to no avail.  When the developer did not make payments, the complainants wrote number of emails for the period from June 2017 to April 2018.

                   However, thereafter, vide respective emails dated 07.04.2018, Annexure C-8, (in CC No.01 of 2021 and 02 of 2021), the developer showed his inability to honour the buyback proposal on the ground that after registration of the project under RERA, 70% of the amount received from the complainants, in each complaint, stood deposited in the escrow account. In this manner, despite the fact that a clear-cut commitment was made by the developer vide condition no.8 of the MOUs, extracted above, and also the complainants in both the complaints have timely opted for buyback against their respective units, the developer failed to honour the same, which act amounts to deficiency in providing service, negligence and adoption of  unfair trade practice. In this manner, the complainants, in both the complaints, were left in lurch.

15.           Thus, from the peculiar circumstances of this case, it has been proved that the developer made false representations, which were materially incorrect and were made in such a way that the complainants, to whom it was made, were entitled to rely upon it and they may act in reliance on it. The complainants are thereby involved in a disadvantageous contracts with the developer and suffered financial loss, mental agony and physical harassment. Representations/statements made at that time were believed to be true. All the facts established that from the very inception there was intent to induce the complainants to enter into the contracts by way of signing agreements/MOUs, referred to above, and also intent to deceive them, which act amounts to grave deficiency in providing service, negligence and adoption of unfair trade practice on the part of the developer.
16.           As far as plea taken to the effect that since two complaints in respect of the units in question are still pending before the Haryana, RERA, as such, these consumer complaints are not maintainable, it may be stated here that Counsel for the complainants, in both these complaints, has fairly  stated that the said complaints have been withdrawn from Haryana, HUDA and as such, there is no other complaint pending before any Court/Tribunal, in respect of the units in question. In this view of the matter, objection taken in this regard stands rejected.
17.           As far as objection taken to the effect that the complainants, were defaulters in making payment towards price of the respective units, it may be stated here that we do not find merit in this regard, especially, in the face of candid admission of the developer/builder that even as on the date of filing the written replies, it is not able to deliver possession of the units, in the project in question, as the external development and infrastructure is not ready. Thus, on this ground too, the developer cannot wriggle out of its liability, by saying that delay took place on account of the reason that the complainants defaulted in making payment, in view of principle of law laid down by the Hon’ble Supreme Court of India in Haryana Urban Development Authority Vs. Mrs. Raj Mehta, Appeal (Civil) 5882 of 2002, decided on 24.09.2004, wherein it was held that if the builder is at fault in not delivering possession of the units/plots by the stipulated date, it cannot expect the allottee(s) to go on paying installments to it. Similar view had also been taken by the Hon’ble National Commission, in Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), wherein it was held that when development work was not carried out at the site, the payment of further installments was rightly stopped by the purchaser. Objection taken in this regard stands rejected.
18.           The developer also cannot wriggle out of the situation, by taking a plea that since the project in question was registered under RERA and also 70% of the amount was to be deposited in the escrow account, as such, it is very difficult for it to refund the huge amount to the complainants; especially in the face of the commitments made by it vide MOUs referred to above. Once, the request of the complainants for buyback was accepted by the developer, as such, thereafter, it was required of it to refund the amount paid as per terms and conditions of the MOUs and was not required to deposit the amount paid by the complainants in the escrow account. As such, plea taken in this regard, stands rejected. 
19.           For the reasons recorded above, these complaints are partly accepted, with costs, as under:-

 

In consumer complaint bearing No.01 of 2021 the developer/ opposite party no.1 is directed as under:-

1. To refund the entire amount of Rs.2,13,25,900/- paid by the complainant alongwith the amount of guaranteed premium compensation @Rs.1400/- per square feet of the area of unit alongwith interest @18% p.a. from 22.09.2017 (60 days from completion of 36 months from the date of booking of unit) without deducting any TDS, within a period of 30 days, from the date of receipt of a certified copy of this order and failure to do so shall entail additional compensation of Rs.1000/- per day, till realization.

                   It is made clear that in case any amount stood refunded to the complainant out of the aforesaid amount of Rs.2,13,25,900/- and guaranteed premium compensation, the same shall be deducted accordingly, by the developer.

2. To refund the amount to the complainant, if any, which stood auto debited from his account by opposite party no.2-ICICI Bank, towards equated monthly installments alongwith taxes/miscellaneous charges, on the loan amount, alongwith interest @12% p.a. from the respective dates of deductions till realization, as it was the legal obligation of the developer to pay the said EMIs, as agreed to, under the tripartite agreement and also MOU aforesaid, which fact has not been disputed by the developer.

                   It is also made clear that the developer-opposite party no.1 shall repay the entire pending/future EMIs alongwith taxes/miscellaneous charges, of the loan amount, to opposite party no.2-ICICI Bank, alongwith up-to-date interest on the loan account and keep the complainant fully indemnified in this regard, till the time refund of the aforesaid amount is made to the complainant.

3. To pay compensation for causing mental agony and physical harassment; deficiency in providing service and adoption of unfair trade practice and also cost of litigation, in lumpsum, to the tune of Rs.1,50,000/- to the complainant within a period of 30 days from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.1,50,000/-, shall carry interest @9% p.a. from the date of passing of this order, till realization.

In consumer complaint bearing No.02 of 2021 the developer/opposite party no.1 is directed as under:-

1. To refund the entire amount of Rs.2,00,89,129/- paid by the complainant alongwith the amount of guaranteed premium compensation @Rs.1400/- per square feet of the area of unit alongwith interest @18% p.a. from 22.09.2017 (60 days from completion of 36 months from the date of booking of unit) without deducting any TDS, within a period of 30 days, from the date of receipt of a certified copy of this order and failure to do so shall entail additional compensation of Rs.1000/- per day, till realization.

              It is made clear that in case any amount stood refunded to the complainant out of the aforesaid amount of Rs.2,00,89,129/- and guaranteed premium compensation, the same shall be deducted accordingly, by the developer.

2. To refund the amount to the complainant, if any, which stood auto debited from her  account by opposite party no.2-ICICI Bank, towards equated monthly installments alongwith taxes/miscellaneous charges, on the loan amount, alongwith interest @12% p.a. from the respective dates of deductions till realization, as it was the legal obligation of the developer to pay the said EMIs, as agreed to, under the tripartite agreement and also MOU aforesaid, which fact has not been disputed by the developer.

              It is also made clear that the developer-opposite party no.1 shall repay the entire pending/future EMIs alongwith taxes/miscellaneous charges, of the loan amount, to opposite party no.2-ICICI Bank, alongwith up-to-date interest on the loan account and keep the complainant fully indemnified in this regard, till the time refund of the aforesaid amount is made to the complainant.

3. To pay compensation for causing mental agony and physical harassment; deficiency in providing service and adoption of unfair trade practice and also cost of litigation, in lumpsum, to the tune of Rs.1,50,000/- to the complainant within a period of 30 days from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.1,50,000/-, shall carry interest @9% p.a. from the date of passing of this order, till realization.

20.           Complaint against opposite party no.2-ICICI Bank, in both the cases, is dismissed with no order as to cost, with the direction not to auto-deduct/demand any EMIs/interest/miscellaneous charges from the account of both the complainants, in respect of the housing loan released in favour of respective units, under subvention scheme.
21.           However, it is made clear that the first charge of the amount  of pending housing loan/principal amount, payable by the complainants, in each complaint, towards the respective units shall rest with the ICICI bank(s)/financial institution(s) concerned
22.           Certified Copies of this order be sent to the parties, free of charge and one copy thereof be placed in the connected case file, referred to above.
23.           The files be consigned to Record Room, after completion.

Pronounced

21.02.2022

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

(PADMA PANDEY)

          MEMBER

 

 

Sd/-

 (RAJESH K. ARYA)

MEMBER

Rg