Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No.-72/14.07.2021
C1. Rahul Vij son of Shri Ashok Kumar
Resident of House no.H-309, New Rajinder Nagar,
New Delhi-110060
C2. Ms Nimisha wife of Shri Rahul Vij
Resident of House no.H-309, New Rajinder Nagar,
New Delhi-110060. … Complainants
Versus
OP1- Ramprastha Promoters and Developers Pvt Ltd.
through its Directors,
Regd. Office - 114, Sector -14, Gurugram,
Haryana -122002
OP2- Bluebell Proptech Pvt Ltd.
through its Directors,
Regd. Address- C1, C-Block Market,
Vasant Vihar, New Delhi-110057. ...Opposite Party
Date of filing: 14.07.2021
Date of Order: 10.01.2024
Coram:
Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
ORDER
Inder Jeet Singh , President
1.1. (Introduction to case of parties) – In this complaint there are grievances of deficiency of services and of unfair trade practice by the complainant no. 1 & 2 against OPs. The complainants seek refund of their deposited amount in respect of purchase of a residential unit/apartment no. 1802 18th floor, Block-E super area 1750 sq. fts. allotted by OP1 (hereinafter referred the apartment or residential apartment or Unit) in its Residential Housing Project SKYZ, Sector 37-D, Gurgaon Harayana (hereinafter referred the Project or SKYZ Project). The complainants paid total amount of Rs.74,38,498/-; which is 90% of total consideration amount. The apartment was booked on 11.09.2011 against booking amount of Rs.12,39,750, Unit was also allotted; apartment buyer agreement dated 20.11.2011 was also executed. The complainants availed loan from HDFC Bank, who sanctioned it for Rs.66,11,998/- . There is tripartite agreement dated 10.10.2011. The OPs failed to deliver the possession within agreed period of 31.8.2014 in the agreement but later-on OP1 unilaterally extended the period to November 2017 and then to 31.3.2021. That is why, the complaint was filed on 14.07.2021 seeking refund of 100% paid amount along with interest at the rate of 18% pa from the date of receipt of each payment besides compensation of Rs. 25,00,000/- in lieu of mental agony, harassment, discomfort and undue hardship caused to the complainants and cost of litigation of Rs. 1,00,000/- besides other appropriate relief.
1.2. The OP1 has opposed the complaint vehemently on many objections being from the point of jurisdiction of District Commission to many other facets, which were stated to be beyond the control of OP1. There is no jurisdiction with the present District Commission as matter pertains to the Real Estate (Regulation and Development) Act 2016, there is no cause of action in favour of the complainants and against the OP1 . The multiple extraneous factors were beyond the control of OP1, which result into delay in completion of the construction of the project, for which de-majeure clause applies besides other directions of Government. The complainants are not consumers as the unit was purchased for investment purposes and for want of fulfilling the obligations under the agreement but to wriggle out from those obligations, the complaint was filed. There is no deficiency of services or unfair trade practice on the part of OP1, therefore, the complainants are not entitled for any of the reliefs sought.
1.3. The parties have mentioned case law in the pleadings and arguments, however, the case law will be mentioned while referring the arguments of parties to appreciate their contentions.
1.4. The OP2 was served. OP2 is stated to be engaged in the development of real estate in Delhi NCR for the last one decade. The OP2 and OP1 have entered into a joint development agreement and revenue generated is to be shared by them. OP2 had also caused appearance through the counsel, but subsequently no reply by the OP2. Thus, pleadings and evidence are of the complainants and OP1.
2.1. (Case of complainants) –The complainants were impressed by assurances given in the advertisement of Residential Housing Project SKYZ, located at Ramprastha City Sector 37-D, Gurgaon Harayana, that it is first podium level, air-conditioned 3BHK condominiums offered in the Ramprastha City. The complainants booked a residential unit for them and for their family against booking amount of Rs.12,39,750/-.They were allotted apartment no. 1802, 18th floor, Block-E, having super area 1750 sq. fts. Apartment buyer agreement dated 24.09.2011 was executed and as per clause no. 15(a) of the agreement, the possession was to be delivered by 31.8.2014. Moreover, OPs lured the complainants, that OPs would help the complainants to have finance for Unit from the Bank and pre-EMI would be paid by the OPs till 31.8.2014, being date of delivery of possession. This apartment buyer agreement dated 24.9.2011 was executed amongst the complainants, the OP1 and the OP2, wherein it was also assured by the OPs for payment of pre-EMIs. HDFC Bank also sanctioned loan of Rs.66,11,998/- for the said Unit, for which tripartite agreement dated 10.10.2011 was entered amongst the complainants, the OP1 and the HDFC Bank. However, the OPs failed comply covenant to pay pre-EMI, thus the complainants were constrained to pay pre-EMIs and EMIs to the lender Bank that too without delivering of possession of the unit by OPs.
As per payment schedule in the Annexure-II to the agreement, that in addition to payment of booking amount of Rs.12,39,750/-, the complainants further paid amount of Rs.61,98,748/- on start of the construction of the Unit. The remaining 10% was to paid on receipt of occupation certificate and invoicing for possession. The complainants have paid till date amount of Rs. 74,38,498/-. which is 90% of total consideration amount of the Unit. This clearly shows that the complainants have paid timely payments to OP(s); thus a substantial amount was collected by the OPs, however, the OP1 has not delivered the possession of the apartment to the complainants on agreed date but subsequently unilaterally extended the dates. The complainants have been making attempts to seek confirmed date of possession by writing email 12.1.2016 but OPs extended date of possession to November 2017, without disclosing reasons. Whereas, as per the then status of construction, made available on web-site, only the basic structure of project was complete. Moreover, the latest construction status in Tower-E was not being reflected in the web-site. As per construction update dated 10.10.2019, the possession of has been further extended unilaterally upto 31.12.2021,
2.2. The complainants paid substantial amount of 90% of agreed amount to the OPs but the conduct of OPs display gross deficiency and unsatisfactory services. Moreover, it reflects its mala-fide, fraudulent, deceitful intention from the very beginning. That is why the complaint.
2.4. The complaint is accompanied with detail available on the website about OPs, allotment letter dated 11.09.2011, copy of apartment buyer agreement dated 24.09.2011, tripartite agreement dated 10.10.2011, loan sanctioned letter dated 20.10.2011, payment receipt dated 11.9.2011, loan statement of account issued by HDFC Bank of disbursement of amount, emails and uploaded copies of construction status shown at web-site, etc.
3.1 (Case of OP1)- The OP1 denies all the allegations of the complaint of deficiency of services or of unfair trade practice with request to dismiss the complaint as complainant has suppressed the material facts from the complaint. The complainants are not consumer and they are misleading the present Commission since the residential unit was booked for commercial gains.
3.2. The OP1 opposed the complaint by narrating circumstances under various heads, some of them are also overlapping. Briefly, (i) the complaint is barred by limitation (ii) the complainants are not the consumer as defined in Consumer Protection Act 2019 (iii) there was no fault of OP1 since the date of possession was extended till 31.12.2023 in terms of agreement and time was not essence of such agreement, the clause of possession is to be read with other terms and conditions of agreement, apart from there were certain circumstances either in the form of directions by the court or shortage of supply of construction material, which were beyond of control of OP1 (iv) the Commission lacks the jurisdiction on the subject matter since the project stand registered under RERA and the jurisdiction lies with HA-RERA in terms of Section 79 of the RERA; (v) the component of compensation or interest are governed under RERA but this Commissions lacks jurisdiction; (vi) the complaint is bad for non-joinder of HDFC bank and mis-joinder of OP2; (vii) the OP1 has received major financial assistance from the government under SWAMIH funds scheme. Despite those constrains and other situations to be beyond the control of OP1, OP1 was making endevour to complete the project.
3.3 The allottees of the unit have not availed any services under the apartment buyer agreement for a group housing society, thus they are not complainant. The allottees of the unit have agreed to be governed by Haryana Apartment Act 1983. Further, the complainants took the unit for commercial purposes and they failed to disclose about detail of ownership of their residential property within NCT region, they came before the Commission without clean hands. The terms and conditions of the agreement are to be read together especially clause 15(a) is to be read with clause 31, which mentions about force majeure circumstances. Similarly, the time is not essence for the purposes of possession but it is to be read with a complete agreement, which put certain riders inclusive of circumstances detailed in clause 15(b) of the agreement. Clause 17(a) stipulate that allottee will be compensated with Rs. 5/per sq ft per month of super area. Therefore, the things cannot be travelled beyond those stipulations. The clause 15(b)(i) of the agreement also provides reasonable extension of time in case possession is delayed and there are circumstances which were beyond the control of OP1. Paragraph-11 of reply enumerates that there were various problems faced by the project like road blocks, hindrances in certain approvals from the authorities, active implementation of scheme like NREGA and JNNURM, water shortage, certain orders in respect of NCR regions inclusive of on the point of water and sewage treatment plant, very limited quantity of water was made available to the extent of 10% to 15% of actual required quantity besides other heavy shortage of supply of construction material.
3.4 The OP1 got the project registered under RERA and certificate dated 17.10.2017 was issued, which was valid upto 31.03.2019 and it was further extended till 31.12.2023, consequently the date of possession stand extended. On the eve of registration under RERA the jurisdiction of the Commission is barred by virtue of Section 79 of the Act 2016. Consequently, the other circumstances either of dispute or its adjudication on any point of compensation or interest are governed by the Act 2016, for which this Commission lacks jurisdiction. Otherwise, the interest being claimed at the rate of 18% is not tenable under the law and equity. Section 74 of Indian Contract Act for penalty on breach of contract has no applicability.
The complainant had received financial assistance from the government under SWAMIH funds scheme, there is also press release information dated 07.11.2019, whereby funds have been approved by the Union Cabinet for 1600 stalled projects across the country and OP1 has applied for the funds under the scheme to complete the project, which is very close to completion. There is bona-fide on the part of OP1 to make the project complete despite facing all the constraints. Since HDFC Bank has not been impleaded a party to the complaint despite there is loan agreement, therefore, the complaint is bad for non-joinder of HDFC Bank. The complaint deserves dismissal.
3.5 The written statement is accompanied with press release dated .11.2019 and bank statement to show disbursement of amount in Jan 202.
4. (Replication of complainants) – The complainants filed their detailed rejoinder dated 25.07.2022 and they reaffirmed the complaint as correct. Moreover, replication also gives response with reasons to the allegations of written statement with the support of case law, that none of the objections are sustainable and the plea taken by the OP1 are without substance. Since the replication is also in the form of arguments to the plea of OP1, therefore, the same will be dealt appropriately; they are not repeated here for the sake of brevity.
5.1. (Evidence)-The complainant no. 1 Sh. Rahul Vij led his evidence by detailed affidavit coupled with all documentary record filed with the complaint. The complainant no. 2 filed her brief affidavit of evidence referring and adopting the contents of affidavit of complainant no.1 as evidence of complainant no. 2.
5.2. The OP1 led evidence by filing detailed affidavit of Shri Ankur Setia, Authorised Representative of OP1, it is on the lines of written statement with documentary record.
5.3 There was no appearance of OP2 or pleading, or evidence on its behalf.
6.1 (Final hearing)- At this stage, the parties were also given opportunity for arguments, then Shri Shubam Chopra, Advocate for complainants made oral submissions but no oral contentions on behalf of OP1, therefore, the contentions mentioned in the pleading, evidence and written arguments of OP1 will also be considered.
6.2 The complainants refer the case law, which are-
(i) Pioneer Urban Land & Infrastructure Ltd. vs Geetu Gitwani Verma Civil Appeal No. 1677/2019 and Pioneer Urban Land & Infrastructure Ltd. vs Govindan Raghvan Civil Appeal No. 12238/2018 held that a term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder…the incorporation of such one-side clauses in an agreement constitutes an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder.
(ii) Mohit Sharma Vs Ramprastha Sharma Promoters Developers Pvt Ltd. CC no.2284/2017 dod 1.5.2019- It was held that the complaint was allowed with interest at the rate of 12%pa keeping in view that flat purchaser had took the loan at interest 10.75% pa (Ld. Counsel for complainant in the present case also request that there is similar circumstances as to the case of Mohit Sharma).
(iii) Amit Nag and anr vs Ramprastha Promoters and Developers Pvt Ltd. [CC no.3131/201 dod 1.11.2019 (the complainant refers this case that it was decided in favour of complainant and against OPs by Hon’ble National Commission in respect of same project SKYZ and subsequently it was also upheld by the Hon’ble Supreme Court).
(iv) Fortune Infrastructure and another Vs Trevor D'Lima and anr (without citation)-held that a person cannot be made to wait infinite for possession of the flat allotted to him, the amount was refunded along with compensation.
(v) Emar MGF Land Ltd and anr Vs Amkit Puri-II 2015 CPJ 568 NC – held that after promise date of delivery, it is in the discretion of the complainant whether he wants to accept the offer of possession, if any, or seek refund of the amount paid with reasonable interest.
(vi) Marvel Omega Builders Pvt Ltd and anr Vs Shrihari Gokhale and anr 2019 SCC Online SC 1991, considering the feature of case, it was held that even assuming that Villa is ready for possessions, as contended by the appellants, the delay of almost five years is a crucial factor and bargain cannot be imposed upon the respondents; the respondents were held justified for refund of the amount deposited along with reasonable interest thereon.
(vii) Meerut Development Authority Vs Muksh Kumar Gupta IV 2012 CPJ 12 - it was held that failure to deliver possession of the flat constitute recurrent/continuing cause of action.
(viii) M/s Imperia Structure Ltd Vs Anil Patni anr. [Civil Appeal no. 3581-3590 dod 2.11.2020, SC] held that there is nothing in RERA, which bars initiating of the proceedings under the Consumer Protection Act and discretion has been given to the allottee whether to seek the relief/proceedings under the Consumer Protection Act or to file application under RERA.
(ix) Ajay Nagpal Vs Today Homes and infrastructure Pvt Ltd [CC no.164/201]- The RERA does not bar jurisdiction the Consumer Fora.
(x) Lucknow Development Authority vs. M.K. Gupta [1994 SSC (1) 243] held that when a person hires the services of a builder, or a contractor, for construction and the same is for a consideration, it is a “service” as defined by Section 2(1)(o) of the Consumer Protection Act, 1986.
(xi) Sanjay Rastogi Vs BPTP Limited and anr [CC no,.3580/2017 dod 18.6.2020], held that onus was upon the OP to prove that flat in question was booked by the complainant for the commercial purposes but OP had measurably failed to discharge it.
(xii) Kavita Ahuja Vs Shipra Estate Ltd and Jai Krishna Estate Developers Ltd [CC no.137/2010 dod 12.2.2015]. (the complainants rely upon this case since finding pertaining to Sanjay Rastogi case (supra) were also observed in this case).
(xiii) STUV Awasiya Grahak Kalyaan Association and other Vs Super-tech Ltd [CC no.2335/201 dod 16.4.2019]. There was an order restraining OP from extracting ground water for the construction purposes, it was held that it is for the OP to arrange water for construction purposes from the alternate sources, the flat buyers cannot be made to suffer on account of such restrain order.
(xiv) Jivitesh Nayal and anr Vs M/s Emaar Mgf Land Limited and anr [without citation] while discussing the provisions of section 74 of Indian Contract Act 1872, the compensation stipulated clause of 15(a) of builder-buyer agreement and other circumstances, refund of the amount with interest was held neither exaggerated nor fanciful.
(xv) Wg. Cdr. Arifur Rahman Kan and Aleya Sultana vs DLF Southern Homes Pvt. Ltd., 2020 SCC Online SC 667 decided on 24.08.2020, has held that “ A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to service.”
(xvi) Sanjay Rastogi vs BPTP Limited and Anr. (CC no. 3580/ 2017 dod 18.06.2020 which has also been upheld by the Hon’ble Supreme Court in BPTP Limited vs Sanjay Rastogi (Civil Appeal no. 1001/2021) as observed that “(13)… OP has argued that the complainant is not a consumer and so cannot be a complainant under the Act. As to why he is not a consumer, the only reason advanced is a bald averment that he stays in Oman and is an investor. Beyond this, nothing of any substance or evidentiary value has been put forth to support this contention. This objection of the OP is therefore rejected for two reasons. One, the complainant has clarified in the very first para of this plaint that he is not buying the unit for any commercial purpose. It is for the OP to prove otherwise. Two, commercial purpose requires that the complainant be shown to be in the business of buying and selling flats. No attempt has been made to prove this”
The complainant further refers Vikas Sharoff & anr Vs Ramprashtha Developers Pvt Ltd and Bluebell Proptech Pvt Ltd. [CC no.718/2020 dod 8.2.2022 being common judgment for six other cases CC-719/2020 to CC-25/2020] that the same were decided against OPs, pertaining to the same project SKYZ and those complaints were allowed for refund of amount against OPs by the Hon’ble National Commission, after determining similar objections raised by OP1 in those cases vis a vis nothing survives in favour of the OPs
6.3. The OP1 also refers the following cases and its reasons in support of its contentions, they are -
(a) Banglore Development Authority Vs Syndicate Bank 200 6 SCC 711 – held that in the contract involving construction, time is not essence of contract unless so specified.
(b) N Srinivasan Vs Kuttukaran Machine Tools Ltd 2009 5 SCC 182, held in the contract of sale of immovable property, normally time is not essence of the contract. In order to find out whether time was essence of the contract, it is better to refer to terms and conditions of the contract itself.
(c) Pioneer Urban Land & Infrastructure Ltd. Vs UOI [WP (civil ) no.43/2019 (the OP refers an extract from the judgment in paragraph 1.2 of the reply that the provisions of Insolvency and Bankruptcy Code, the Real Estate (Regulation and Development) Act were dealt in contract of home buyers and thereafter the same were considered in terms of utility for home buyer, besides agreement for sale will no longer be one sided contract of adhesion.
(d) Puri Constructions Pvt Ltd and anr Vs Harish Chawla [CA No.4472-5/2019 dod 7.5.2020] held that having regard to the market conditions, the interest at the rate of 12%pa was on higher side and interest payable at the rate of 8%pa was directed.
(e) M/s Chintels India Pvt Ltd Vs Vikas Jain Civil Appeal No.4855/2022. The interest of 7.5%pa from the respected date of deposit till the date of payment was directed instead of simple interest at the rate of 9%pa.
(f) NBCC (India) Ltd Vs Ram Trivedi (Civil Appeal) No. 4855/2022- simple interest at the rate of 7%pa was allowed in place of 10% pa as directions of National Commission.
(g) Bharathi Knitting Company Vs DHL Worldwide Express Courier Division of Airfreight Ltd AIR 1996 SC 2508- held that liability of a party should be limited to the extent as undertaken in the contract between the parties, the courts cannot rewrite the contract for the parties and the stipulations in the contract have to be adhered to and cannot be deviated.
(h) Secretary Bhubaneswer Development Authority Vs Susanta Kumar Mishra [V(2009) SLT 242]. The parties are bound by the unchallenged terms of contract.
(i) PUDA (Chief Administrator) Vs Mrs Shabnam Virk II 2006 CPJ I SC- the allottee would be bound the terms and conditions contained in the allotment letter agreed by him.
7.1 (Findings)- The rival contentions of both the sides are considered, keeping in view the material/evidence on record, the case law was presented, the statutory provisions of the Consumer Protection Act 2019 and the Real Estate (Regulation and Development) Act 2016.
7.2. At glance, there is no dispute that the complainants had booked the apartment and they were allotted the subject unit for which they had first paid booking amount, followed by further payment. The apartment buyer agreement dated 24.9.2011 was executed amongst the complainants/buyers/allottees and the OPs/developers is also not disputed besides loan/tripartite agreement between the complainants, the HDFC Bank, and OP1, as complainants took bank loan to finance the unit. The complainants had paid total amount of Rs. 74,38,498/- to OPs is another undisputed fact. However, there are other many disputes on law point and facts. All of them are being taken one by one.
8.1.1 The OP1 has taken a serious objection that the District Consumer Commission lacks the jurisdiction on the subject matter since the project is registered under RERA. But according to complainants, there is no bar to file or continue consumer complaints under the Consumer protection Law. Both the complainants and the OP1 have relied upon the reasons of case law, which have already been mentioned in para-6 above.
8.1.2 The controversy is, whether or not the jurisdiction of District Consumer Commission is barred by the Real Estate (Regulation & Development) Act 2016? There is Section 79 of the Act 2016, it bars jurisdiction of Civil Court, when the matter is within the jurisdiction of Authority or Adjudicating Officer or Appellant Tribunal under the Act 2016. There is another Section 71 of the Act 2016, which is about power to adjudicate by the Adjudicating Officer with further provision that in case complaint is pending for compensation before the Consumer Commission, it may be withdrawn with the permission of that Commission to get it adjudicating through Adjudicating Officer under the Act 2016.
However, the Consumer Commission is not a Civil Court, section 79 of the Act, 2016 does not extend to Consumer Commission. There is no bar mentioned on the jurisdiction of Consumer Commission. Moreover, there is Section 100 of the Consumer Protection Act 2019, that the provision of this Act are in addition to other law in force [inclusive of the Real Estate (R&D) Act 2016] and not in interrogation of other law in force. Therefore, by reading these statutory provisions along with the case law presented on behalf of complainants, it is held that this District Consumer Commission has jurisdiction on the subject matter to adjudicate the dispute.
8.2.1 The OP1 has also taken objection that the complaint is barred by period of limitation since as per complaint the cause of action has arisen on 24.09.2014 plus 120 days, therefore, the complaint filed on 14.7.2021 is barred by law of limitation. However, the complainants have reservations, that since there is default in delivering the possession, the cause of action will continue. The complaint is not barred by time.
8.2.2. The answer of this rival plea is in the record. The complainant has proved emails dated 12.01.2016 & 28.02.2017 showing that OP1 had unilaterally extended date of possession firstly to November 2017 and then to March, 2018 in respect of Tower-E, wherein Unit of complainants was located. Then, for want of delivery of possession, the OP1 wrote an email dated 12.03.2019 to the complainant no.1 that the status of construction activities have been uploaded on the website, then complainant no. 1 responded by email dated 13.03.2019 that earlier as per last conversation, the deadline was of 2019 and then it was 2020. The complainant also wrote email dated 15.3.2020 that he has been repaying loan by EMIs to Bank and let they be informed when the flat/unit will be ready. By taking into account the chronology as well as the email of OP1, it is clearly reflecting that the project was not complete when emailed dated 12.03.2019 was written by OP1 and also when complainant no.1 wrote another email dated 15.3.2020 to confirm ready of unit for delivery . Moreover, as per later construction on the website of OP1, the date of possession was extended till 31.03.2021. Thereafter, the complaint dated 14.07.2021 was filed. The complaint is within the period of limitation of two year since possession was not delivered as per date mentioned in the agreement or subsequently period was extended from time to time.
It is not out of context to mention that the OP1 is taking inconsistent stand for is own convenience and shield like for the purposes of possession, it is taking shelter of the provisions of Real Estate (R & D) Act 2016 that on the eve of extension of registration certificate, the date of possession stand extended but for the purposes of limitation period, the period is being computed from date 24.09.2004 plus 120 days, the same is not acceptable. With this observation this issue is also disposed off.
9.1. Whether or not complainants are consumers? - According to complainants, they booked the residential unit and not only they paid the booking amount but also further payments, which is 90% of agreed amount. But the OP1 had taken objection that unit was by the complainants for commercial purposes However, the OP1 failed to prove its plea vis-à-vis the unit is residential in nature, it was booked for residential purposes by complainants for them and for their family, being maintained throughout in the pleading and evidence. There is no contrary evidence by the OP1 to rebut evidence of complainants. The complainants are consumers, they are covered within the definition of consumer under the Act 2019. The Onus was on the OP1 to prove that unit was taken for commercial purposes and not for residential purposes. The complainants also take support from case law relied upon by them.
Whereas, the OP1 has objections that the complainants have invested the money, they could not account for their residential requirements since they are already occupying and having residential property to live in. It clearly establishes that the unit was booked by them for commercial purposes.
9.2. This rival contentions are clear, they are to be read with the pleadings and the evidence of the parties. The apartment booked and allotted is in the residential project, which is an undisputed fact. By taking into account the documentary record, either in the apartment-buyer agreement or loan agreement or other allied record including email, there is nothing showing that the complainants booked the unit for commercial purposes. This plea has been taken by the OP1 in its written statement, thus onus was on the OP1 to establish that the unit was booked for commercial purposes for making gain out of transaction of that apartment. Neither the complainants are in the business of trading the residential units to have their avocation nor the OP1 could establish that the complainants are in the business of real estate. As appearing, the OP1 of its own is referring word 'investment purposes', however, word 'investment' is not defined in the apartment-buyer agreement, therefore, its ordinary dictionary meaning is to be taken, which means ' act of putting in or into'; which may be 'money or efforts or time'. But the complainants have clearly mentioned that the unit booked was for their residence and their family.
Therefore, by taking into account, the circumstances of this case as well as the ratio of case law relied upon, it is held that OP1 could not establish that the apartment was booked for commercial purposes by the complainants. This objection of OP1 is disposed off against the OPs.
It is settled law that the relationship of the OPs and the complainants are of developer and of buyer of the apartment, which comes within the purview of consumer law and there is existence of consumer disputes, therefore, it is also held that complainants are consumers within the definition prescribed under the Act 2019. They are competent to file the complaint.
10.1 Whether complaint is bad for mis-joinder of OP2 and non-joinder of HDFC Bank? This objection is by the OP1 throughout in the pleading till the final arguments filed. According to OP1, the complainants ought not to implead the OP2 in the complaint as it is not a necessary party, the OP2 is just a financer to the project SKYZ and in order to secure and recover its funding, it has executed joint development agreement dated 29.11.2011 with OP1 and it is also mentioned in the apartment buyers agreement dated 24.09.2011. Similarly, the HDFC Bank, which had granted loan to the complainants ought to have been impleaded but complainants failed to do so despite it was a necessary party. The complaint is bad for mis-joinder and non-joinder of necessary party.
However, the complainants have reservations that OP2 is a necessary party as per agreement entered between the parties, that is why it was arrayed as OP2 vis-à-vis there are no grievances of the complainants against HDFC Bank and that is why the Bank was not impleaded in the complaint. The complaint is a valid complaint.
10.2. The rival plea on this score is self-explanatory and its answer is in the record itself. There is apartment buyer agreement dated 24.09.2011 and it was executed by and amongst the complainants, the OP1 and the OP2. Moreover, the OP1 and the OP2 have also been referred as “Developers” in the recital of the agreement. When OP2 is also developer of the project along with OP1, therefore, it is a necessary party to the complaint. It has been impleaded properly. The complaint does not suffer from mis-joinder of OP2.
So far, HDFC Bank is concerned, it is lender/Banker of complainants/borrowers for loan advanced but the grievances in complaint are against the developers and not against their banker, therefore, HDFC Bank is not a necessary party nor any relief is sought against it. The complaint does not suffer for non-joinder of HDFC Bank.
Thus, the contentions of the parties on this issue is also dispose off.
11.1. [whether or not project was ready or date of possession stand extended or is there force majeure situation etc ] - The complainants and the OP1 have juxtaposition stand against each other as the complainants contend that as per apartment-buyers agreement 24.9.2011, the possession was to be delivered 31.8.2914. The OPs failed to honour the commitments and the terms and conditions of contract, despite the complainant paid 90% of total consideration as per schedule of payment. The OPs failed to complete the project and even the complainants had written to confirm the status of project, it was not responded by them vis a vis date was extended unilaterally. However, by browsing the website, it revealed that the project was incomplete besides extension of date of possession. The OPs also could not prove that project was ready to offer possession or to deliver it to the complainants.
Even the project has not been materialized and there were number of other cases filed against the present OPs in respect of same Project SKYZ, which have been decided by the Hon’ble National Commission (the complainant refers the cases already mentioned in paragraph 6 above). The OP1 is taking the stand as if there is force majeure, however, the same has been put in a vague manner and as a camouflage, as no concrete and specific periods are mentioned vis-à-vis the residential apartment was booked in 2011 and the agreement was of 24.09.2011 but the project/apartment was not completed to deliver even till filing of complaint in 2021, which was much after the agreed date of 31.8.2014. The plea of pandemic Covid-19 being taken at the stage of final argument is also not at the avail of OP1, which is much beyond the agreed period in August 2014. .
On the other side, the OP1's case is that period for handing over the possession mentioned in the agreement but it was subject to other clauses in the agreement, consequently the date stand extended automatically. Many situations, factors and circumstances described were beyond the control of OP1. The OP1 had applied for its registration on 31.07.2017 and got registered its project under RERA vide its registration no.320 valid upto 31.3.2019, the registration was also renewed and extended upto 31.12.2023, consequently date of possession stand extended till 31.12.2023. There was pandemic wave Covid-19 affecting the project. Therefore, the OP1 has not violated any of the terms and conditions of the agreement. Moreover, the OP1 had applied for finance under SWAMIH Funds Scheme, the funds will be available to make the project complete, which could not be completed because of certain constraints including finance. Therefore, the complaint is without cause of action, without merits and even prior to date of possession.
11.2. On plan reading of the rival contentions, it is undisputed that the OP1 failed to deliver the possession of the apartment to the complainants within specific date of 31.8.2014, but the OP1 has reservation on the basis of force majeure that certain facts and circumstances occurred were beyond its control to make the project complete or this delay cannot be attributed to the OP1.
However, the records is abundantly clear that the OP1 has narrated certain circumstances but without proof thereof that in a particular span of time the project was at a particular stage and because of those reasons the project was halted. Had the project been not completed for those specific reasons, the OP1 was required to establish those facts and circumstances specifically to prove that it was prevented for carrying the project forward and to complete the same within time. Since, the OP1 failed to prove the exceptions of force majeure clauses, therefore, the terms and conditions of agreement being relied upon by the OP1 cannot be invoked in favour of OPs. The pandemic Covid 19 had happened from March 2020 but OPs are trying to intermingled with the earlier period, the OPs cannot derive any benefit since date of possession was 31.8.2014 and complainants had written emails while seeking information about the status of project and residential apartment from the OPs.
11.3 The OP1 is also taking plea of funds under the SWAMIH funds scheme to show its bonafide. However, there are contradictory and inconsistent plea of the OP1, which is manifesting from the facts and features of the case. Firstly, the apartment buyer agreement is of 24.09.2011 but OP1 got itself registered on 31.07.2017 under RERA since the Real Estate (R&D) Act was enacted in 2016 and notified subsequently. The period for possession was 31.08.2014 as per clause 15(a) of the agreement although it is subject to other covenants. Further, on the one side OP1 is taking the plea that there were certain orders by the authorities or by the Courts or there were other constraints of force majeure. Simultaneously, OP1 is also taking the plea that its registration under RERA was valid upto 31.03.2019 and it was extended upto 31.12.2023 and date of possession is deemed to be extended till 31.12.2023. Whereas, as per Section 4 of Act 2016, an application for registration is to be moved for registration of the project and as per Section 4 (2)(l)(C), certain self undertaking about the project or its completion is to be made, the OP1 would have done so but it is not extension of the time by the Act 2016 itself. The OP1 is interpreting its own undertaking by giving it colour that date of possession has been extended under RERA.
In fact, the circumstances are establishing that the project or the unit was not complete in time and that is why its possession could not have been delivered to the complainants. Moreover, when the Consumer Commission has jurisdiction to adjudicate the consumer disputes, therefore, the provisions of Act 2016 or Rules there-under need not to be imported for the purposes of compensation or interest component, although the same may be considered for harmonious construction while deciding the disputes between the parties but subject to specific situation of a case being each case is a unique in itself. These contentions are also disposed off against the OP.
Further, all the objections raised by OP1 in the present case were also subject matter in Vikas Shiroff & Anr. Vs. Ramprastha Promotors & Developers Pvt. Ltd. & Anr. (supra), those were also decided against OPs therein (who are also OPs herein) either on the point of applicability of Act 2016 or mis-joinder of OP2 or interest or compensation component, etc. However, the findings on merits of this case have also been given in this Final Order as per facts and features of this case.
12. It is crystal clear that complainant has deposited the booking amount and then further payments, which were 90% of the agreed amount in the agreement. The OPs failed to deliver the possession of unit within the stipulated period mentioned in the apartment buyer agreement or subsequently in the further unilaterally extended period. The OPs could not establish that there were such situations or other circumstances which prevented the OPs to complete the project. Thus, there is deficiency of services on the part of OPs to deliver the possession of apartment/unit to the complainants. In case the registration under RERA was extended till 31.12.2023, it would not construe that date for possession is deemed to be extended nor it would supersede the date mentioned in the apartment buyer agreement.
13.1 In view of the aforementioned discussions and conclusions, it stands establish that the complainant has succeeded to prove that they have paid the amount of Rs. 74,38,498/- but OPs failed to complete the project or to offer the possession of the apartment within stipulated agreed period nor delivered it to the complainants. The complainants never asked for cancellation of their booking, rather prior to filing of the complaint, they have written email to ascertain confirmed status of deliverable Unit from OPs but Unit was not complete to be delivered as per the construction status being shown on website. Since, there is deficiency of services on the part of OPs, the complainants are entitled for refund of entire amount of Rs. 74,38,498/- being asked for.
13.2. The complainants had claimed interest at the rate of 18%pa, it is opposed by the OP1 vehemently, while referring certain case law. However, in the tripartite/ loan agreement, the OP1 is also a party and the complainants were sanctioned loan on interest at the rate of 10.75% pa, this feature is also to be considered while determining the rate of interest to be allowed vis a vis the rate of Rs.5/-per sq. feet. per month for delayed period for possession. Since possession of unit was never offered or delivered to the complainants as well as in Mohit Sharma case (supra) the Hon’ble National Commission determined simple interest at the rate of 12% pa; . accordingly, the rate of interest of 12% pa is determined, it will be reasonable interest for the features of this case and interest will be payable from the date of complaint till realization of amount of Rs. 74,38,498/-.
13.3 The complainant has claimed compensation of Rs. 25,00,000/- and litigation cost of Rs. 1,00,000/-. Since, the complainants had applied for unit in September 2011 but they were not delivered the possession of unit, they were even kept in dark about the status of project and from confirming the date of delivery of possession of unit, thus they faced uncertainty and other trauma or agony, despite 90% amount was already paid that too after availing bank loan on interest, therefore, in lieu of that harassment, trauma etc., they are held entitled for compensation of Rs.25,000/- against OPs. The costs of Rs. 12,500/- is also determined in favour of complainants and against the OPs.
14. Thus, the complaint is allowed in favour of complainants and against the OPs while directing the OP1 and OP2 to pay jointly and/or severally an amount of Rs. 74,38,498/- along with interest at the rate of 12% pa from the date of complaint till realization of the amount besides compensation of Rs. 25,000/- and costs of Rs.12,500/- payable within 45 days from the date of this Order. In case the amount is not paid by the OPs within 45 days from the date of this order, then the interest rate will be 14% pa on amount of Rs. 74,38,498/- (instead of rate of 12%pa).
15. Announced on this 10th day of January, 2024 [पौष 20, साका 1945]..
16. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances besides to upload on the website of this Commission.
[Inder Jeet Singh]
President
[ijs-8]
[Shahina]
Member (Female)
Item No.-9
10.01.2024
CC. No.-72/2021
Present: Sh. Ayush Kasana, Proxy Counsel for Sh. Aditya Parolia, Advocate for complainant.
None for OP1 today.
None for OP2.
By separate reasoned order announced today (authored by President of this Commission). Complaint is allowed as concluded in the final order in favour of complainants and against both OP1 & OP2. The file be consigned to record room after proper pagination. The complainants will collect free copy of final order from the Registry and copy need not to be sent by post to the complainants. However, it will be sent by post to the OP1 & OP2.
[ Shahina] [Inder Jeet Singh]
Member (Female) President
