Date of Complaint Filed:15.02.2022
Date of Reservation :13.06.2023
Date of Order :30.06.2023
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,
CHENNAI (SOUTH), CHENNAI-3.
PRESENT: TMT. B. JIJAA, M.L., : PRESIDENT
THIRU. T.R. SIVAKUMHAR, B.A., B.L., : MEMBER I
THIRU. S. NANDAGOPALAN., B.Sc., MBA., : MEMBER II
CONSUMER COMPLAINT No.34/2022
FRIDAY, THE 30th DAY OF JUNE 2023
1. Shyam Raghunathan,
S/o. S. Raghunathan,
F-2, Yamuna Apartments,
Block-1, First Floor,
No.1, Ganga Street,
Pushpa Colony,
Saligramam,
Chennai - 600 093.
2. R. Charumathi,
W/o. S. Raghunathan,
F-2, Yamuna Apartments,
Block-1, First Floor,
No. 1, Ganga Street,
Pushpa Colony,
Saligramam,
Chennai -600 093. .. Complainants.
-Vs-
1.Shriram Properties Limited,
Rep. by its Managing Director,
Regd. Office at Lakshmi Neela,
Rite Choice Chamber,
New No, 9, Bazullah Road,
T. Nagar,
Chennai - 600 017.
2.Cyber City Mangadu Projects Pvt. Ltd.,
Rep. by its Managing Director,
Cyber City, Green Hills Road,
Near Hi-Tech City,
MMTS, IDL Road, KPHB,
Hyderabad- 500 072,
Telungana.
3. Anugraha Real Value Services (Chennai) Pvt. Ltd.,
Rep. by its Managing Director,
Regd. Office at No. 91/92,
Kodambakkam High Road,
Nungambakkam,
Chennai -600 034. .. Opposite parties.
* * * * * * *
Counsel for the Complainants : M/s. P.Wesley Isaac, Adv.,
Counsel for Opposite parties 1 to 3 : M/s. AravindRaaj & Deepika
Murali, Advs.,
On perusal of records and upon hearing the oral arguments of the counsel for Complainant and Counsel for Opposite Parties this Commission delivered the following:
ORDER
Pronounced by the President Tmt. B. Jijaa, M.L.,
(i) The Complainant has filed this complaint as against the Opposite Parties under section 35 of the Consumer Protection Act, 2019 and prays to direct the opposite parties to pay a sum of Rs.25,00,000/- together with interest at the rate of 12% per annum to the complainants for deficiency in service, unfair trade practice adopted by the opposite parties caused mental agony, to the complainants from the date of this complaint till the date of payment; with costs of the legal expenses to the complainants.
I. The averments of Complaint in brief are as follows:-
1. The Complainants submit that the 3rd Opposite Party is the Owner of the landed property measuring an extent of 3 acres and 48.17 cents comprised in Survey Nos.379 (part) and Survey No. 380 (Part)of Mangadu 'B' Village, Pallavaram Taluk (formerly Sriperumbudur Taluk), Kancheepuram District. The 2nd Opposite Party is the Promoter of the project and the Power Agent of the 3rd Opposite Party. The Opposite Parties 2 and 3 have jointly formulated a scheme for development of the above said property and obtained approval for the development from CMDA vide PP No.C/PP/MSB/53 (S1 to S69)2017 in Lr. No.C3(Sy4665/2017, dated 09.12.2017 (Master Plan).
2. The Complainants submit that the Power of Attorney of the 2nd Opposite Party from and out of the above described property have formulated a scheme for developing the property for the purpose of building a Residential Project comprising of 2 blocks, having 2 Basements, Ground Floor + 19 Floors with multiple amenities and facilities.
3. The Complainants submit that the Opposite Parties 2 and 3 have obtained requisite sanction for the development of the project pursuant to the Master Plan vide Building Permission issued by the Executive Officer, Mangadu Town Panchayat, vide its Order No.BL No.138/2017-18 dated 10.01.2018.
4. The Complainants submit that the Opposite Parties 2 and 3 have registered the project with the Real Estate Regulatory Authority (RERA) at Chennai on 19.02.2018 under Regn. No. TN/01/Building/0056/2018. The Complainants submit that the Opposite Parties 2 and 3 named the Project as "Shriram Divine City" and the said project was branded and marketed by the 1st Opposite Party on behalf of the Opposite Parties 2 and 3.
5. The Complainants submit that they had booked a Residential
Apartment bearing No.0309 in the 3rd Floor in 4-B, Block of Divine
City Phase 1 Project having 129 sq.ft., of undivided share in the land
with the flat having carpet area of 414 sq.ft., and super built up area of
519 sq.ft. with all common amenities and facilities along with 1 No.
reserved two-wheeler parking space. In this regard, the complainants
had paid an amount of Rs.50,000/- towards application money vide Cheque No. 000254 dated 09.09.2018 drawn on HDFC Bank and the receipt of which was acknowledged by the 2nd Opposite Party vide Collection Receipt No. 20180911001 dated 11.09.2018.
6. The complainants submit that they have entered an Agreement for Sale dated 01.10.2018 for the sale of the undivided share in the land of 129 sq.ft., wherein a sum of Rs.1,00,000/- was to be paid towards advance and the balance amount of Rs.41,900/- was to paid on various dates on achievements of each milestone as mentioned the said Agreement for Sale.
7. The Complainants submit that they have entered into a Construction Agreement dated 01.10.2018 with the 2nd Opposite Party for the construction of the flat, wherein the Complainants had paid Rs.1,42,919/- toward booking advance and the balance amount of Rs.20,64,417/- was paid on various dates on achievements of each milestone as mentioned in the said Agreement.
8. The Complainants submit that the 1st Opposite Party had vide Demand Letter dated 26.09.2018 demanded an amount of Rs.2,22,069/- towards the first instalment and the same was paid by the Complainants on 21.10.2018, the receipt of which was acknowledged by the 2nd Opposite Party vide Collection Receipt No.20181025003, dated 25.10.2018.
9. The Complainants submit that the 1st Opposite Party had again
vide Demand Letter dated 25.10.2018 demanded an amount of Rs.1,83,071 .84/- towards second installment and the same was paid by the Complainants on 06.12.2018, the receipt of which was acknowledged by the 2nd Opposite Party vide Collection Receipt No.20181210001 dated 10.12.2018. The complainants further submit that they have till the date of this complaint paid a total amount of Rs.4,55,141/- to the 2nd Opposite Party.
10. The Complainants submit that in recent days many builders by advertising their Residential Projects, get customers, take advance money from them after a lapse of few months/years, they abandon the project and return the money with meager rate of interest to the a customers, who booked their dream home hoping to get in 2 to 3 years. The builders by stating one reason or the other, without commencing the project, abandon the project and return the money without completing the contractual obligations they promised to their customers, The builders do this with a view to increase their selling rate and gain huge profit. The similar acts have been done by the opposite parties herein. The acts of the opposite parties giving wide publicity, receiving advance money in lakhs, promising to complete the construction in 3 years, without completing construction after 2,5 years the returned the amount received with interest which is lesser than Bank interest received on Fixed Deposits. In the present case the1st Opposite Party has got good name in the public, who has undertaken the marketing of the flats to be constructed by the Opposite Parties 2 and 3. In this case they returned the money paid by the Complainants with interest and they have planned to commence the project after few months i.e., after going for Public issue by the 1st Opposite Party and sell the flats at a higher price over and above Rs.3,798/- per sq,ft., which was the price quoted to the Complainants herein. Rise in Real Estate price withstanding all economic crises has made affordable housing a distance reality. The said act of the
Opposite Parties is nothing but unfair trade practice, which is punishable under the law. Hence this Complaint.
11. The Complainants submit that in the present case, the Opposite Parties proposed to construct 272 Units in 4B Tower in Blok 4 and they have collected money from around 68 customers in the year 2018 itself. From the 2018 till date they have not constructed beyond the foundation level. As per the Agreement, the project should get completed within 3 years and the Units should be handed over. Without carrying on any construction work, they utilized the money given by the customers for their other projects and now they have taken the decision to abandon the construction of 4B Tower.
The non-construction of Tower beyond basement is nothing but deficiency
in service in the part of the Opposite Parties.
12. The Complainants reliably understands that the Opposite Parties are planning to construct Tower 4B after 6 months from this date and to sell the Units at a price more than Rs.5,000/- per sq.ft. Therefore, the act of the Opposite Parties is clearly a violation of the contractual obligations originally promised and amount to unfair trade practice. The inordinate delay of 2 years 6 months in announcing the abandonment of the Tower is not acceptable and amounts to deficiency on the part of the Opposite Parties and attracts Unfair Trade Practice. Since the Complainants have not cancelled the
Agreement, the Opposite Parties is bound to inform the Complainants
about any construction in Tower 4B and sell one Unit in 3rd Floor at the rate already agreed with the Complainants without saddling any monetary liability in whatever name that may be.
13. The complainants submit that while on one hand the Opposite Parties have unilaterally terminated the Agreement for Sale and Construction Agreement, they have while returning the advance paid to the Complainants, have deducted TDS under Section 194-JB of the Income Tax Act, 1961 on certain amount that they fictitiously claim to be towards Professional Services' rendered by the Complainants. The Complainants have preferred a separate complaint to the Income Tax Department in this regard. This clearly shows that the intention of the Opposite Parties to commit a fraud on the Complainants.
14. The Complainants submit that they never intended to cancel their booking with the Opposite Parties. On the contrary, the Opposite Parties unilaterally cancelled the Agreement for Sale and the Construction Agreement entered with them. The unilateral cancellation is not accepted by the Complainants herein. Since the Complainants informed the delay in commencing the construction and completing the Unit 309 in 4B Block to the Directors of the 1st Opposite Party, they had no other option except to cancel the agreement unilaterally and repaid the amount with meager interest and
saved their face before their board by sending a predated cancellation letter enclosing a DD dated subsequent to the date of the letter. The said act of the Opposite Parties would amounts to Unfair Trade Practice and done with a view to make huge profit by adopting Unfair Trade Practices.
15. The Complainants submit that the communications dated 31.12.2020 and 05.02.2021 would speak for itself about the Unfair Trade Practice done by the Opposite Parties. The Opposite Parties 1 and 2 have colluded together and done this without getting concurrence from the 3rd Opposite Party who is the absolute owner of the land. The Opposite Parties 1 and 2 without purchasing the land from the 3rd Opposite Party, they found out a scheme to enrich themselves and deprive the state exchequer by not registering a Sale
Deed in their favour. It is evident from the said communication that
only the Opposite Parties 1 and 2 are involved and the 3rd Opposite
Party is kept in dark. The said act of the Opposite Parties 1 and 2 is
clear act of Unfair Trade Practice. Since the opposite parties had used
the advance money paid by the complainants for their commercial
purposes, the complainants are entitled to get the compensation
amount with interest at the rate of 18% per annum.
II. The written version filed by the opposite parties 1 & 2 separately. But the contention of the written version is one and same. The Brief of the written version is as follows:
16. The 2nd Opposite Party herein, is a dynamic result-oriented company with expertise in construction, project management, engineering, marketing and customer relationship management. The Opposite Parties herein are jointly engaged in the business of developing a residential project referred to as "Divine City Apartments Phase 1st consisting of Tower 4A, 4B (508 Units) and 5A, 5B (312Units). Particularly, out of the two Blocks in Tower No. 4, Block No. 4A comprised totally of 236 Units and Block No. 4B comprised totally of 272 Units.
17. The Complainant had originally booked a Residential Apartment bearing No.309 on the 3rd Floor in Block 4B for base price of Rs.3798/- PSF of the above referred Phase and Project. The Complainants signed an Offer Entitlement letter on 09.09.2018 for a Consideration Value of Rs.23,02,214/- The corresponding Booking Application Form and Cost Sheet in the name of one Mr. S. Raghunathan [Father and Husband of the Complainants herein] dated 09.10.2018 was also issued to the Complainants, elucidating the Terms & Conditions and payment schedule. Pursuant to the same, an amount of Rs.50,000/- towards booking was paid by the complainants vide cheque dated 09.09.2018 bearing No.000254 and the corresponding Receipt No. 20180911001 on 11.09.2018 for the said amount was issued by the 2nd Opposite Party. An allotment letter duly signed by the 2nd Opposite Party was also issued on 01.10.2018.
18. The Complainants had also entered into Construction Agreement and Sale Agreement both dated 21.11.2018, in respect of the above booking. In furtherance to the payment schedule, the Complainants had made a payment of sum of Rs.2,22,069/- on 24.10.2018 for which Receipt No. 20181024003 on 24.10.2018 had been issued by the 2nd Opposite Party to the 1st Complainant herein. Subsequently, a payment of further sum of Rs.1,83,072/- on 10.12.2018 was made for which Receipt No. 20181210001 had been issued, The Complainants had paid a total sum of a Rs.4,55,141/-
19. It is submitted that the bookings opted for by customers in Block 4B were not as promising as the 2nd Opposite Party had hoped it would be. Since the afore mentioned Project was to be carried out in phases, the Opposite Parties, while taking into account the profitability and viable practicality, were constrained to defer development of Block 4B until a significant number of Units had been booked. Accordingly, the Complainants herein were duly informed of the reality of the Project and their booking, as early as 12.10.2019. Alternatively, to ensure that the customers who had already booked residential Units in block 4B, such as the Complainants herein, were not put in a detrimental position, similar Units were offered in Block 4A or were offered refund of their booking amounts with interest, as per the provisions of the RERA Act, keeping in line with the commercial vision of the 2nd Opposite Party herein.
20. Initially, during the meeting held on 12.10.2019, the Complainants had indicated that they would be agreeable with swapping for a Unit in Block 4A. Alternatively, the 1st Opposite Party had also offered the availability of 3 Units in Block 4A (4A-G-12 4A-112, 4A-510), furnished requisite price details of the same, while also offering an additional discount of Rs.50,000/-, in order to compensate the Complainants for the change in trajectory of the Project vide e-mail dated 20.12.2019. However, the same was later unagreeable to the complainants as they were inflexible in accepting the available Unit in Block 4A and insisted on retaining their Unit in Block 4B. Despite the unreasonable and rigid demands of the Complainants herein, the Opposite Parties herein had communicated to the Complainants herein the slim possibility of a deferred beginning in the development of the Block 4B, in which case they would get to retain their original Unit as booked. The 1st Opposite Parties strenuously ensured that the Complainants herein had reasonable options to choose from to suit their needs and make an informed decision.
21. However, in the beginning of the year 2020, the first wave of the COVID-19 pandemic hit the real estate industry the hardest. The consequential recession brought the bookings and allotments to an indefinite standstill and so did the construction due to the prolonged lockdown and practical difficulties in mobilizing manpower. Therefore, the Opposite Parties herein were constrained to further defer proceeding with the proposed development of Block 4B since sufficient bookings for the said Block 4B had still not reached. Therefore, it was decided to develop only one block instead of the proposed two, so that the customers who had booked the residential Units would still be able to take delivery of their flats instead of waiting indefinitely. Due to COVID pandemic, prolonged lockdown, the force majeure circumstances and supervening impossibilities, the Opposite Parties herein were constrained to indefinitely defer the proposal to develop Block 4B in Tower No. 4. It is pertinent to note that the construction of the Block 4B in Tower No. 4 has not commenced even today.
22. It is to be noted that originally 67 customers had booked for the construction in Block 4B against proposed construction of a total 272 Units and all 67 were given the option of either swapping tor available units in Block 4A or accepting refund of booking and various fees paid along with interest. Out of 67 customers, 27customers had opted for alternate booking in Block 4A and 40 customers had sought for refund of their bookings. Hence, it is submitted that all the customers had been fully satisfied with our proposed course of correction given the recessionary trends and slowdown in the industry.
23. It is submitted that throughout 2020, several meetings and discussions were held between the Complainants and 1st opposite party, yet not resulting in all the unreasonable demands put forth by the complainants being met with. Moreover, considering the fact that the Complainants were the only customers still insisting on retaining their booking in Block CB, as all other customers had either opted for swap in Blocks or accepted refund with interest, and considering the force majeure conditions resulting in a stalemate of mutually favourable solution to the problem at hand, the 1st and 2nd opposite parties were well within their rights as per Contracts to terminate the Agreement to sale and construction Agreement as they are co-terminus.
24. It is submitted that the 1st and 2nd Opposite Parties were well within their contractual rights, in facts and in law, in terminating the contract which was binding on both the Complainants and the Opposite Parties. As per clause 7(a) of the Construction Agreement, dated 21.11.2018, it has been agreed that in the event it becomes impossible for the Opposite Parties herein to implement the Project due to Force Majeure conditions, then the allotment shall stand terminated and the Opposite Parties are bound to refund the entire amount received by the Opposite Parties from the date of allotment within 90 days from the date of determination of impossibility of performance.
25. It is also pertinent to note that according to the Clause 23 of the Terms & Conditions annexed to the Application Form signed by the Complainants here indated 09.09.2018, acceptance of the refund amount is the sole remedy available to the Complainants in case of termination of the agreement. The date of determination of impossibility of performance is 31.12.2020, when the notice of termination was sent to the Complainants herein. The cheque for refund of payment made by the Complainants along with interest was also duly issued by the 1st and 2nd Opposite Parties herein dated 02.01.2021, well within 90 day's time limit, also acknowledged as received by the Complainants dated 06.012021. Therefore, the obligations of the Opposite Parties herein have been duly discharged. The break-up of refund of advance amount paid by the Complainants along with the interest on such amounts as on 05.01.2021,@ 9.3% (SBI ROI+MCLR (7.3% + 2% )] is reproduced herewith:
Payment
Schedule-
Milestone
| Payment
Date | Amount
Paid in
Rs.
| GST | Interest Calculated Amount | No.of Days from payment date | Interest on total Amount | Total Refund with Interest |
Booking Amount | 11.09.2018 | 50,000 | 5,357 | 44,643 | 847 | 10,791 | 60,791 |
Before Agreement signing | 24.10.2018 | 2,22,069 | 23,793 | 1,98,276 | 804 | 45,492 | 2,67,561 |
Commencement of piling | 10.12.2018 | 1,83,072 | 19,615 | 1,63,457 | 757 | 35,311 | 2,18,383 |
Total | | 4,55,141 | 48,765 | 4,06,376 | | 91,594 | 5,46,735 |
26. The present Complaint filed is an attempt to tarnish the reputation of the 2nd Opposite Party and to extort monies from it. It is also submitted that. The Complainants herein have not established a reasonable cause for demanding a compensation of Rs.25,00,000/, especially considering the fact that the whole of the amount paid by the Complainants has already been refunded by complying with necessary laws. Hence, this Complaint ought to be dismissed in limine as against the 2nd Opposite Party in the absence of any substantial evidence of legitimate grievance against it.
For the reasons Stated above it is prayed that this Hon'ble Commission maybe pleased to dismiss the complaint; order the Complainant to cover the litigation costs of the 2nd Opposite party; pass any other further orders and thus render justice.
III. The Written version filed by the 3rd opposite party is as follows
27. The 3rd Opposite Party is a land holding entity and the opposite parties herein are jointly engaged in the business of developing a residential project referred to as "Divine City Apartments Phase 1".
28. The 3rd Opposite Party merely being the land owning entity, possession and title of which has now been transferred to the 2nd opposite Party, did not partake in the day-to-day activities of the construction of the residential project known as "Divine City Apartments Phase 1". The 3rd Opposite Party's responsibilities and obligations qua the Agreement for Sale and Construction Agreement is limited and restricted merely to the sale of the property to the 1st and the 2nd Opposite Parties. Therefore, the 3rd Opposite Party submits that the bald allegation of the Complainants as to the alleged collusion by the 3rd Opposite Party with the 1st and the 2nd Opposite Parties herein is baseless, vexatious and is unfounded in facts. The entire Complaint is devoid of the true facts and does not fall within the ambit of consumer protection itself.
29. The 3rd Opposite Party herein would like to submit and adopt the submissions made by the 1st and the 2ne Opposite Parties herein. The present Complaint filed is an attempt to tarnish the reputation of the 3rd Opposite Party and to extortmonies from it. Hence, this Complaint ought to be dismissed in limine as against the 3rd Opposite Party in the absence of any substantial evidence of a legitimate grievance against it.
Hence prayed to dismiss the complaint.
III. The complainant has filed his proof affidavit, in support of his claim in the complaint and has filed 11 documents which are marked as Ex.A1 to A11. The opposite parties 1 & 2 have submitted their proof affidavit, Ex.B1 to B3 documents were marked on their side. The 3rd opposite party had submitted his proof affidavit and Ex.B4 & B5 documents were marked on his side. Both side written argument filed.
Points for Consideration:-
1.Whether there is any deficiency in service on thepart of the Opposite Parties?
2.Whether the Complainant is entitled for the reliefs sought for?
3. To what other relief, the Complainant is entitled to?
POINT NO. 1 :-
30. The undisputed facts are that the 3rd opposite party is the owner of the property situated in Pallavaram Taluk, Kancheepuram District at measuring 2.3 acres and 48.17 cents. He has assigned the 2nd opposite party, the promoter for a scheme development for the purpose of building a residential project namely “Sriram Divine City” comprising Two Blocks Tower 4 A and Tower B. It is also not disputed that the complainant originally booked a residential apartment bearing number 309 on the 3rd floor in Tower 4 B. It is also not disputed the consideration a sum of Rs.4,55,141/- paid out of the total consideration of Rs.24,35,424/-. The dispute arose when the opposite party where not in a position to construct Tower 4 B as promised and returned the amount to the complainant with interest.
31. The contention of the complainant is that he had booked a residential apartment bearing NO.309 in the 3rd floor of 4B, block of Divine City Phase.I project having 129 sq.feet of undivided share in the land with plot having carpet area of 440 sq.feet and super built up area of 519 sq.feet with all common amenities and facilities along with one number reserved two wheeler parking space. The complainant had paid token amount of Rs.4,55,141/- as seen from Ex.A5 to A7. The opposite party has undertaken the marketing of flats and proposed to construct 272 units in 4B Tower in Block IV and have collected the money from 68 customers in the year 2018 itself. From the year 2018 till date they have not constructed beyond the foundation level. As per the agreement the project should get completed within 3 years and units should be handed over to the customer. Without carrying any construction work have utilized the money given by the customer for other project and had taken the decision to abandon construction of 4 B Tower. The opposite party had returned the money paid by the complainant with interest and had planned the commence the project after few months and sell the plot at a higher price over and above Rs.3798/- per sq.feet which was quoted by the complainant. The complainant submitted that the opposite party had planning to construct Tower 4 B after 6 months and sell the unit at a price more than Rs.5000/- per sq,ft. The opposite party have unilaterally terminated the agreement and construction agreement after a period of 2 years 6 months and returned the advance paid by the complainant by deducting TDS under section 194 JB of the income Tax Act, 1951 towards professional services rendered by the complainant, which act amounts to unfair trade practice.
32. The opposite parties admitted the fact that the complainant was given an allotment letter dated 9.9.2018, Ex.B3 & B4, for a residential apartments, bearing No.309 on the 3rd floor in Tower 4 B. Subsequently the construction agreement and sale agreement both dated 1.10.2018, was entered into by the party in respect of the above booking. Further submitted that a sum of Rs.4,55,141/- was paid by the complainant towards their allotted unit out of the total consideration of Rs.24,35,424/-. It was contended that the booking opted for by customers in Tower 4 B where not promising as the opposite party hoped for. The opposite party were constrained to defer development of block 4 B until significant number of units have been booked. Accordingly, the complainant was duly informed the reality of the project and their booking as early as 12.10.2019, which was few months prior to the handset of Covid 19 pandemic. The complainant as an alternative were offered similar units in Block 4 A or were offered refund of their booking amount with interest as per the provision of the RERA Act. However the complainant were not agreeable and insisted of retaining the unit in Block 4B which was yet to be commenced.
33. As per Ex.A8, the opposite party had issued a letter dated 31.12.2020, intimating that they are unable to proceed the construction of Tower 4 B of the project including the apartment belonging to the complainant, alleging economic slowdown and crisis in real estate market and there are no booking other than the booking of the complainant in Tower 4 B, the opposite parties were constrained to cancel the booking of the proposed apartment, by terminating the agreement for sale and construction agreement. The opposite parties had issued a demand draft for Rs.5,39,865/- to the complainant on 2.1.2021, which was encashed by the complainant.
34. As regards the contention of the opposite parties that the complainant which governed by RERA Act 2016, and that the dispute arising out of the agreement had to be settled through the adjudicating officer appointed as per RERA Act 2016, is not sustainable as the provision under the Consumer Protection Act 2019, is only an additional remedy and hence the present complaint is maintainable before this Commission. The opposite parties relied upon the judgement of Hon’ble Supreme Court in IREO Grace Real Tech private limited –vs Abishekkanna, (2021) 3 SCC 241, wherein it was held that
“ 51…we cannot accept the claim of the apartment buyers for payment of compound interest at the rate of 24% per annum with has no nexus to the commercial reality of the prevailing market …
35. We are cognizant of the prevailing market condition as a result of Covid 19 Pandemic which have greatly impacted the construction industry, In these circumstances, it is necessary to balance the completing the interest of both parties. We think it would be in interest of justice and fairplay that the amounts deposited by the apartment buyers is refunded with interest @ 9% SI p.a from 27.11.2018 till the date of payment of entire amount”
36. Further relied upon the judgement of the Hon’ble Supreme Court in NBCC (India) Limited -Vs- Shri Ram Trivedi, (2021) 5 SCC 273, where the Apex Court held that there was no justification in granting compensation for the loss or rent when the NCDRC had awarded interest for the delayed handing over of possession and directed to pay simple interest @ 7% from the stipulated date till the date of handing over of possession.
37. Also relied upon the judgment of the Hon’ble Supreme Court in B.B.Patel and others -Vs– TLF Universal limited, (2022) 6 SCC 742, where the Apex Court while discussing unfair trade practice had observed that the Commission has to find out whether the buyers are misled or they are informed in advance that there is likelihood of delay in delivering the possession of constructed building.
38. On discussions made above and in the given facts and circumstances of the case, and upon considering the judgments referred above this Commission is of the considered view that the complainant had paid a total sum of Rs.4,55,141/- out of the sale consideration of Rs.24,35,424/- to the Opposite Parties and as per the Construction Agreement, Ex.A-4 the Opposite Parties had agreed to complete the construction of the apartment on or before 30.09.2021 and after the booking of the flat by the Complainant there was a widespread of COVID-19 pandemic, the Opposite Parties were unable to proceed with the construction of apartments in Block 4B of the project and had expressed their inability to the Complainant explaining the Force Majeure event which was beyond their control and offered an apartment in Tower 4A, which the Complainant had refused constraining the Opposite Party to terminate the Agreement with the Complainant vide letter dated 31.12.2020, Ex.A-8 by refund, of the amounts to the Complainant and the Complainant having accepted a sum of Rs.5,39,865/- from the opposite party towards refund of the amounts paid by the complainant is estopped from claiming compensation alleging deficiency in service and unfair trade practice, as the opposite party agreeing their inability to continue the project has refunded the amount to the complainant with interest at the rate of 9.3% per annum, which is reasonable. Moreover the complainant had also refused to accept the alternative option of swapping an apartment in Tower 4A instead of Tower 4B. The complainant has failed to prove that the opposite party had committed deficiency in service. Accordingly, Point No.1 is answered.
POINT NOs: 2 and 3:
39. As discussed and decided in Points No 1 to 3, that the opposite parties have not committed any deficiency in service, the complainant is not entitled for the reliefs claimed in the complaint or for any other relief from the opposite parties. Accordingly this points are answered.
In the result, this complaint is dismissed. No costs.
Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 30th of June 2023.
S. NANDAGOPALAN T.R. SIVAKUMHAR B.JIJAA
MEMBER II MEMBER I PRESIDENT
List of documents filed on the side of the Complainant:-
Ex.A1 | 11.09.2018 | Xerox copy of Collection receipt (towards application money) issued by the 2nd opposite party. |
Ex.A2 | 26.09.2018
| Xerox copy of Demand Letter of the 2 Opposite Party to the complainants. |
Ex.A3 | 01.10.2018 | Xerox copy of Agreement for sale deed |
Ex.A4 | 01.10.2018 | Xerox copy of construction Agreement issued by the opposite party |
Ex.A5 | 25.10.2018 | Xerox copy of collection receipt issued by the 2nd opposite party. |
Ex.A6 | 25.10.2018 | Xerox copy of second demand letter of the 2nd opposite party to the complainants. |
Ex.A7 | 10.12.2018 | Xerox copy of second collection receipt issued by the 2nd opposite party. |
Ex.A8 | 31.12.2020 | Xerox copy of cancellation of booking Unit by the 2nd opposite party. |
Ex.A9 | 07.01.2021 | Xerox copy of complainant’s letter to the opposite parties. |
Ex.A10 | 05.02.2021 | Xerox copy of reply of the opposite parties to the complainant. |
Ex.A11 | 01.09.2021 | Xerox copy of representation of the complainant in respect of wrongful credit of TDS to Income Tax Department by complaint. |
List of documents filed on the side of the 1st & 2nd Opposite Parties :-
Ex.B1 | 09.09.2018 | Xerox copy of offer Entitlement letter for Shriram Divine City Independence offer. |
Ex.B2 | 09.09.2018 | Xerox copy of Application for allotment along with terms and conditions. |
Ex.B3 | 24.06.2021 10.11.2021 | Xerox copy of certificate under section 203 of the Income Tax Act, 1961 for tax deducted at source incorrectly u/s 194JB bearing reference OOEQDJA Rectified certificate under section 203 of the Income Tax Act, 1961 for tax deducted at source incorrectly u/s 194A bearing reference OOEQDJA |
List of documents filed on the side of the 3rd Opposite Party :-
Ex.B4 | 27.11.2017 | Xerox copy of power of attorney bearing Doc.No.16820/2017 executed between the 3rd opposite party and the 2nd opposite party. |
Ex.B5 | 10.12.2018 | Xerox copy of Additional General Power of Attorney bearing Doc. No.18524/2018 executed between the 3rd opposite party and the 2nd opposite party |
S. NANDAGOPALAN T.R. SIVAKUMHAR B.JIJAA
MEMBER II MEMBER I PRESIDENT
