Delhi

StateCommission

CC/989/2016

MRS. ANURAG AGARWAL & ANR. - Complainant(s)

Versus

SUPERTECH LTD. - Opp.Party(s)

RAJESH PATHAK

18 Jun 2020

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments : 18.06.2020

Date of Decision : 22.06.2020

Complaint No.989/2016

In the matter of :-

 

1. Mrs. Anurag Agarwal,

W/o Mr. Sandeep P. Aggarwal,

G-48, 3^rd Floor,

East of Kailash,

New Delhi-110065.

 

2. Mr. Sandeep Prakash Agarwal,

S/o Late Sh. S.P. Aggarwal,

G-48, 3^rd Floor,

East of Kailash,

New Delhi-110065.                                                  …........Complainants

 

Versus

Supertech Limited,

1114, 11^th Floor,

Hemkunt Chambers,

89, Nehru Place,

New Delhi-110019.                                       …............ Opp. Party

                                                              

CORAM

Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                        Yes/No

2.      To be referred to the reporter or not?                                                                                                     Yes/No

 

Sh. O.P. Gupta, Member (Judicial)

Judgement

1. Both the complainants are wife and husband.  Their case is that they made enquiry in the real estate market so as to book residential house/flat of reputed developer. In April, 2012 they came in contact with Mr. Vikas Wadhwa, Asstt. of OP, they purchased flat No.B-3/1706 at Supertech Up Country under construction by OP at plot No.TS-1 in Sector-17, Yamuna Expressway, Noida-201303 having super area of 900 sq.ft. for a sum of Rs.30,79,267.26 under construction linked plan. The OP is having registered office at 1114, 11^th floor, Hemkunt Chamber, 89, Nehru Place, New Delhi-110019.  They were assured that the project had all amenities of high standard and in future  the same would be a elite place to live, considering its close proximity to 5.14 km long Formula 1 Race Track and being next to the proposed Night Safari. OP further represented that they have obtained all necessary licenses from the concerned authorities for development of the project and they would deliver possession by February, 2015.  They paid Rs.3 lacs towards booking amount through cheque dated 06.04.2012, 10.04.2012 and 26.04.2012.  OP sent email on 28.04.2012 containing the updated booking form to verify the details like name spellings, address, email ID, total cost etc. copy of which and booking form are annexure C-1 and C-2.  OP demanded Rs.7,927/- towards balance of the booking amount which was paid vide cheque dated 28.05.2012.  On 21.05.2012 an agreement styled as Allotment Letter was executed between the parties. The said agreement was one sided and heavily tilted in favour of the OP.  Since the complainants have already paid the substantial amount, they had no option but to sign on the dotted lines.  The complainant signed allotment letter dated 21.05.2012 under duress and not voluntarily.

 

2. As per clause 19 of the allotment letter the possession of the flat would be handed over by February, 2015 with further grace period of six months.  In case of delay in delivery of possession, the OP would compensate purchaser @Rs.5/- per sq.ft. every month. The irony of the allotment letter is that even for a delay of few days in making payment of demands, the OP has been given an entitlement to charge interest @Rs.2/- per month as per clause 1.

 

3. As per payment demand letter dated 01.05.2015, complainants paid Rs.27,29,935/- as on 30.04.2015.  The OP demanded additional sum of Rs.1,83,833/- payable by 16.05.2015.  Complainants paid the said amount on 15.05.2015 against receipt.  Thus, the complainants have paid Rs.29,13,768/- which is equivalent to 94.6% of the total consideration.

 

4. Despite receiving regular payments, vide letter dated 27.07.2012 OP cancelled the allotment alleging that complainants have failed to own the commitment and make the payment despite being given sufficient time.  The complainants duly replied the same vide letter dated 08.08.2012.  After receiving reply, OP realised its mistake and tendered apology through email, copy of email is annexure C-8. OP again sent cancellation letter dated 18.07.2013 alleging defaults in payment of demand without informing status of construction. The same was duly replied by the complainants.

 

5. Despite having received approximately 90% of the total cost in May, 2015 there was no sign of handing over of possession of flat.  The complainants started making enquiries from OP by visiting their office in June, October and December, 2015 and February, April and June, 2016.  They also telephonically enquired from customer care department of the OP. The construction process is at standstill, possession is nowhere in sight and the complainants are not able to enjoy any benefit from the said booked flat.  The OP has defaulted miserably in delivering the possession of the flat in time and has adopted all sorts of unfair trade practices. The complainants are entitled for damages @24% per annum which is the rate being charged by OP for delay in payment by purchaser. Hence this complaint for directing the OP to handover actual physical possession of the flat within specified period after obtaining completion certificate from the concerned authorities with further directions to the OP to pay damages @24% per annum on the entire amount w.e.f. February, 2015 till date of handing over of possession. They have also requested for compensation of Rs.10 lacs for causing harassment, mental agony and sufferings. Cost of litigation has also been sought.

 

6. OP filed WS raising preliminary objections that this Commission has no territorial jurisdiction to entertain and decide the complaint as property in question is situated in Gautam Budh Nagar, UP at Yamuna Expressway.  The complainants are not consumer but apparently investors. They booked the property for investment/resale/commercial purpose for getting higher return of investment by reselling it in the open market. When the anticipated appreciation did not take place, the complainants filed the present complaint with a view to wriggle out of the contract. The right and obligations have been agreed upon  by terms and conditions stipulated in agreement dated 21.05.2012.  The complainants have ample time to read the terms.  They could have refused to enter into the bargain before signing the agreement if the terms did not suit him. There is arbitration clause in the agreement.  When there is a special remedy, provisions of Consumer Protection Act cannot be  invoked as per decision of Hon’ble Supreme Court in General Manager, Telecom Vs. M Krishnan & Anr. in Civil Appeal 7687 of 2004.  It also referred to decision of Hon’ble Supreme Court in Prashant Kumar Shahi Vs. Ghaziabad Development Authority (2000) SCC page-102 where it was held that having failed to perform his part of the contract, appellant cannot be permitted to urge that he is not liable to pay the balance amount alongwith interest as respondent have failed to deliver the possession as per terms of the brochure.

 

7. Once the unit of the complainants was restored, the complainants again started defaulting in making the payment. At the best compensation can be awarded in accordance with the terms and conditions in the allotment letter-cum-agreement. Clause 19 of the allotment letter provided that OP agreed to compensate @Rs.5/- per sq.ft. of super area per month for delay in handing over of possession.  The delay in giving possession is attributable to writ petitions which were filed in Hon’ble Allahabad High Court.  After decision of high court in Radhyshyam Vs. State of UP (2011) SCC 533 vide which notification dated 12.03.2008 and 30.06.2008 for the acquisition of the land was quashed, farmers challenged acquisition of land which had later on been allotted to various developers for the development of Housing Complex. There was unrest amongst farmers of entire Noida, they started doing “dharna” in  front of the projects of the various builders and halted the construction work. The said writ petitions were decided by full bench of Allahabad High Court on 21.10.2011.  Due to protest and agitation of farmers, the labour had left to their native villages, resulting in acute shortage of labour in entire Noida, Greater Noida Region. Some of the farmers, challenged the order of High Court of Allahabad by way of Civil Appeal No.4506/11 titled as Savitri Devi Vs. State of UP.   The same was decided on 14.05.2015 and order of High Court of Allahabad was upheld.

 

8. On merits the OP repeated the same defence. It prayed for dismissal of the complaint.

 

9. The complainant has filed rejoinder and affidavit of complainant-1 in evidence.

 

10. OP filed affidavit of Sh. Arvind Kumar, AR.

 

11. Both parties have filed written arguments.

 

12. I have gone through the material on record and heard the oral arguments advanced by counsel for complainant. The plea of the OP that complainants are trying to wriggle out of contract is apparently untenable.  The reason being that complainants are still seeking possession of the flat. In the present scenario the purchasers are mostly preferring refund.  But in the case in hand the complainants are still praying for handing over of possession.

 

13. The objection of the territorial jurisdiction is not sound because firstly the OP’s registered office is in New Delhi.  The same is sufficient for conferring territorial jurisdiction on this Commission as per decision of National Commission in RP-3263/11 titled as Housing Board Haryana Vs. Inderjit Garg decided on 29.02.2012.  To the same effect is the decision of National Commission in FA-1728/16 titled as Rohit Srivastava Vs. Paramount Villas Pvt. Ltd. decided on 05.07.2017.  Not only this FA-337/16 titled as Pratap Chander Sinha Vs. Kindle Developers Pvt. Ltd. 2017 SCC Online 1252 NCDRC has also taken the same view.

 

14. Apart from that counsel for complainant drew my attention towards clause 50 of the agreement at page-33 of the bunch of complaint.  The same provides that courts at Delhi alone shall have the jurisdiction for adjudication of all matters arising in connection with this allotment.  Thus objection of the OP regarding territorial jurisdiction is overruled.

 

15.  Yet another objection of the OP about arbitration clause.  The same is not tenable in view of decision of National Commission in CC No. 701 of 2015 decided on 13.07.2017 titled as Aftab Singh Versus  Emaar MGF Land Limited & Anr., The same has been confirmed by Hon’ble Supreme Court  in 1(2019) CPJ  5SC.

 

16. Now remains the plea of force majeure.  OP is relying upon the factors like protest by farmers regarding acquisition of land, return of labour to their villages due to said protest. They are not covered by force majeure as per decision of National Commission in DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda and Ors. I (2019) CPJ 218, National Commission has held that stoppage of construction activities due to reasons such as delay in getting statutory approvals, shortage of labour, ban on constructions by court order, litigation apropos acquisition of land etc., cannot be construed to mean ‘force majeure’.

 

17. The plea that complainants are not consumer, they are investors and they booked the flat for resale is the word of any merits.  The burden of proving the same is on OP.  the OP has not mentioned particulars of any flat booked by the complainants in recent past or sale thereof.  This objection is liable to be rejected as per decision of National Commission in Kavita Ahuja Vs. Shipra Estates I (2016) CPJ 31.

 

18. The contention of the complainants that terms and conditions of the agreement are one sided amounts to unfair trade practice deserves to be accepted in view of decision of Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, 2019 SCC Online SC 458.

 

19. In Suman Nandi Vs. Unitech Ltd. CC-277/13 decided by National Commission on 17.12.2015 it was held that paying compensation of Rs.5/- per sq.ft.comes to 1.5% approximately per annum which is unfair particularly when compared with the rate of interest chargeable by OP @24% per annum. To the same effect there is another judgement of Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan 2019 SCC Online SC 458. The argument is quite germane.

 

20. Counsel for complainant urged that it is the case of high handedness by OP.  The OP started declining handing over of possession on one pretext or other. Initially it sent cancellation letter dated 27.07.2012 which is annexure C-6 and placed at page-37 of bunch of complaint. The same is based upon failure of complainants to make the payment.  The same is highly unjustified as complainants have already paid all the amount.  So the OP had apologised vide mail copy of which as annexure C-8 at page-40 of the complaint.  The OP stated that unit in question was active. Again within a short span, OP again sent cancellation letter copy of which is annexure C-9 at page-41 of bunch of complaint. The complainant again replied to the same vide reply dated 01.08.2013 which is at page-42.

 

21. Counsel for complainant finally referred to final demand notice/offer of possession dated 03.10.2019 showing  outstanding balance of Rs.16,23,474/-.  There is no justification for the same.

 

22. To sum up the complaint is allowed and OP is directed to handover the possession of the flat No.B-3/1706 at Supertech Up Country after obtaining completion certificate from the concerned authority after complainants pay the balance price out of price initially agreed.  OP is also directed to pay interest @9% per annum from 01.03.2015 which was assured date of possession till date of actual handing over the possession.  This is in consonance with the decision of National Commission in CC-949/16 titled as Prabha Chandran Vs. Parsvnath Developers decided on 14.07.2017.  The OP will also pay Rs.50,000/- as cost of litigation.

 

23. Copy of this order be sent to both the parties free of cost.

 

24.     File be consigned to Record Room.

(O.P. Gupta)

Member (Judicial)

Bench-2