Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor MaharanaPratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No.-86/02.11.2020
C1. MsRekhaGarg wife of ShriSubhashGarg
C2.ShriSubhashGarg son of ShriRadheyLal
bothresi. of House no.1976. GaliNeelaWali,
Bazar Sita Ram, Delhi -110006
[email- subhashgarg.advocate@gmail.com.] …Complainants
Versus
OP1. M/s Supertech Township Projects Ltd.
(through is director Sh R K Arora, or other A/R)
Regd. Off.- 1114 Hemkunt Chambers, 11th floor
89 Nehru Place, New Delhi - 110019
[headoffice@supertechlimited.com.]
[www.supertechlimited.com.]
OP2. Sh R K Arora, M.D./ A/R of
M/s Supertech Township Projects Ltd.
1114 Hemkunt Chambers, 11th floor
89 Nehru Place, New Delhi - 110019
[headoffice@supertechlimited.com.]
[www.supertechlimited.com.] ...Opposite Parties
Date of filing:02.11.2020
Date of Order: 28.05.2024
Coram:
ShriInderJeet Singh, President
Ms. Rashmi, Member -Female
ORDER
InderJeetSingh , President
The case is listed today for Order (item no.)
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 OP1/ Supertech Township Project and its Director/AR Shri R K Arora/OP2 and the complainants seek refund of the amount deposited in respect of purchase of a residential flat no.B1B/306 TS-5, Sector22-D, at Yamuna Expressway, GB Nagar, UP (at third floor, Type 2BHK+2TOI, 810 sq. feet. area) allotted by OP in its project " Golf Village" (hereinafter referred the flat or residential flat). The complainants paid amounts from time to time, the total amount paid is Rs.17,36,499/-. The flat was booked on 26.03.2014, agreement cum allotment letter was executed and issued on 10.02.2015 but OPs failed to deliver the possession within agreed period of January 2017 in terms of clause 26 of agreement and there is no likelihood of possession of flat in the near future too. That is why, the complaint was filed on 02.11.2020 seeking refund of paid amount of Rs.17,36,499/-, interest of Rs.15,34,996 at the rate of 18% pa till date on paid amount, penalty of Rs.,1,74, 150/- on account of delay andcompensation of Rs. 5,00,000/- in lieu of mental agony, harassment, and torture to the complainants and cost of litigation of Rs. 25,000/- besides other appropriate relief.
1.2.The OP1 has opposed the complaint vehemently firstly there is no territorial jurisdiction with the present District Commission, there is no cause of action in favour of the complainants and against the OPs as the complainants failed to adhere to the payment schedule, besides there were multiple extraneous factors which were beyond the control of OP1, which result into delay to complete the construction of the project (likeland dispute by farmers, enhancement of compensation on land acquired, stay of constructions activities in the NCT area by the authorities/Ministry/Tribunal/Court, farmers agitation etc. from time to time, being not under the control of OP and force majeure clause).
The complainants are not consumers as the unit was purchased by them for investment purposes,to sell it and earn profits but for want of fulfilling the obligations under the agreement and to wriggle out from those obligations, the complaint was filed. There is no deficiency of services or unfair trade practice on the part of OP, therefore, the complainants are not entitled for any of the reliefs sought. The OP2 has been joined un-necessarily.
2.1. (Case of complainant)–The complainants purchased the subjectflat/unit in the Golf Village Project of OPs for total cost of Rs.27,86720/- under construction linked payment plan. They paid their hard earned money in purchase of a unit in that project by paying initial amount of Rs. 3,00,000/- on 21.03.2014. The OPsexecuted/issued agreement-cum-allotment letter dated 10.02.2015 in favour of complainants after booking of residential flat/unit (i.e. unit no. .B1B/306 TS-5, Sector22-D, at third floor, Type 2BHK+2TOI, 810 sq. feet area Yamuna Expressway, GB Nagar, UP ). It was assured by the OPs that full construction work will be completed by December 2016 and booked unit/apartment shall be delivered physically by Jan 2017 as per clause no.26 of the agreement. The OPs failed to honour their commitment as they even did not raise complete superstructure of the tower in the Project by committed date of Jan 2017 and despite their failure in doing so, OPs arbitrarily made a demandof Rs.5,84,160/-vide letter dated 30.06.2017 from the complainants, which was strongly objected by the complainants because of poor performance and want of fulfilling their commitment to complete the construction of the apartments. However, the staff/officer/ member of OPs including its Vice-President Shri Sanjay Arora gave positive assurance and commitment that the project will be completed soon and the possession of the flat shall be delivered by end of June, 2018 that too without fail besides the OPs will compensate by paying penalty amount for delayed period in terms of agreement dated 10.02.2015; thence complainants made payment of Rs.5,84,160/- against receipt. The OPs had collected substantialamount of Rs.17,36,499/- by 27.10.2017 against receipts and account statement issued by the OPs, however, the OPs have not delivered the possession of the flat to the complainants till date.
2.2.It has transpired that OPs have been keeping the complainants in dark since beginning and they made misrepresentation, and also defrauded the complainants by extract of money by giving false promise and assurances with mala-fide of not to fulfill the same, they induced the complainants to make payment even on 27.10.2017. This conduct of OPs display fraud and mischief, gross deficiency and unsatisfactory services.The complainants have been traumatized to suffer financial losses, harassment for such acts and deeds of the OPs.
2.3. There were highly stretched promises and assurances given by OPs, when the unit was booked, the complainants also paid the amount and total amount stand paid is Rs.17,36,499/- and OPs had also given assurances but they failed to complete the construction of the project within stipulated period, consequently they failed to offer the possession of flat, even after much delay from the stipulated time. The OPs also failed to provide any reasonable justification for such delay. Moreover, the complainantsapproached OPs time and again to know about the progress and status of project as well as its completion, but OPs did not disclose the correct facts and they continue to give false assurance that the construction would be complete very soon and thereafter delivery of flat would be made. Now there has been period of three years elapsed from the date of last payment of 27.10.2017 but the construction in the project is still incomplete and as per information gathered, the OPs have put the project 'on hold' for the reasons best known to them, they are not interested to proceed to complete the project. Even the superstructure of the tower in question is left incomplete and there seems no possibility of the delivery of possession of the apartment in near future. The complainant has sent legal notice dated 28.09.2020 seeking refund of principal amount paid, interest, penalty and compensation, however, reply sent deny the claim but OPs admitted the total payment received by them, date of delivery of possession of Jan 2017 and in fact claim is not disputed.
2.4. The principal amount payable by OPs is Rs.17,36,499/-. Since in allotment letter dated 10.02.2015, it provides that OPs would charge interest of 24%pa against complainant in the eventuality of delay payment, on equal treatment the OPs are also liable to pay interest for their fault, but complainants claims interest of 18%pa, which comes to Rs.15,34,996/- till 30.9.2020 (complete detail is furnished in paragraph 10 of the complaint regarding amount paid on four occasionsviz 21.03.2014, 10.09.2014, 27.02.2015 and 2.10.2017). Moreover, there is penalty clause no.2 in the agreement cum allotment letter, which stipulates @ Rs.5/-per sq.feet per month from Jan 2017, it comes to Rs.1,74,150/- till September 2020 (as mentioned in paragraph 11 of the complaint). The total amount comes to Rs.34,45,645/- as detailed in paragraph 12 of the complaint. In addition, the complainants seek compensation of Rs.5 lakhs, costs of litigation of Rs.25,000/- and other relief.
2.5. The complaint is under signatures of both the complainants. The complainantno.2 is attorney of his wife/complainant no.1.The complaint is accompanied with copies of - account statement along with payment detail, allotment letter dated 10.02.2015, legal notice dt 28.09.2017 with postal receipt, reply dated 17.10.2020 of legal notice, ID proof of complainants and SPA by complainant no.1 in favour of complainant no.2.
3.1 (Case of OP1)- The OP1 files detail written statement under different headings - preliminary submissions, preliminary objects and reply on merits. The OP1 does not dispute that complainants booked the residential unit in their project, OP1 allotted the flat/unit, the booking amount and further payments received vis-à-vis the possession was not delivered to the complainants but it was beyond the control of OP because of force majeure. However, OP1 denies other 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 of their defaults in payment. The complainants are not consumers and they are misleading the present Commission since the residential unit was booked with intention to earn speculative gains from secondary market by selling the unit.The complainants are not bona-fide buyers.
3.2.The OP with an aim to provide world class facility came up with a 100 acre township project in the name of Golf Village, allotted and leased to OP by Yamuna Expressway Industrial Development Authority (briefly YEIDA). The complainants booked a flat/unit bearing no. R0021B10306 (precisely B1/306) under special payment plan against total cost of Rs.27,86,720/- excluding applicable taxes and possession charges payable at the time of possession in the said project [that too after through search in the region and satisfying themselves as the price, location, high end amenities, facilities]. Moreover, the complainants before applying for the flat in the project, they have thoroughly weighted various options in the properties available in NOIDA and Greater NOIDA.
3.3. The complainants agreed to make payment of Rs.5,57,344/- within 30 days from booking, but they did not do it, there was delayed payment. The complainants themselves agreed with the terms and conditions of allotment letter dated 10.02.2015, about date of handing over possession, payment schedule, obligation of OP for delay in handover the possession of unit, force majeure circumstances, delay, penalty etc. The complainants agreed, then signed and executed the terms and conditions without any demure and objections.
3.5.The complainants were very well aware, at the time of booking, that the project is part of a large township and there might occur some delay in delivery of the possession of the said unit because of circumstances beyond the control of OP. This delay in delivery of unit was foreseeable at the time of booking and also at the time of entering into allotment agreement. The parties have voluntarily agreed for adequacy of damages and compensatory cost, which covers the total damages that may cause due to delay in possession. Otherwise, a major infrastructure work is of township is almost completed and OP is at the state of offering possession of most of the plots and villas to the appropriate allottees and civil construction work of the tower in question/B1 is in progress.
3.6. However the delay in construction of tower/flat in question occurred due to various force majeure circumstances, which were beyond the control of OP, although OP has taken all possible steps to mitigate the delay in possession caused to force majeure.
The delay had happened since there was challenged to acquisition of land of all most of the villages under the area of Noida, Greater Noida and Yamuna Express Authority on the ground of wrongly invoking section 17 of the Land Acquisition Land 1894, in Gajraj&ors Vs. State of UP & Ors. WC No. 37443/2011 and the Hon’ble High Court by order dated 21.10.2011 directed enhancement of the compensation of land by 64.07 %, which affected the land acquired in the all district of GautamBudh Nagar. There were approx. 700 writ petitions before Hon’ble Allahabad High Court in the year 2010-11 as the land acquired for YEIDA of State of UP through various notifications and there were interim/stay orders in those proceedings. Moreover, there were continuous worsening of law and order situations vide GO dated 03.09.2013, a committee was constituted and as per letter dated of 29.08.2014 by the said committee under the chairmanship of Hon’ble Minister of State of UP, a mechanism was advised for additional compensation in the form of ‘no litigation incentive’ to the farmers in lieu of withdrawing from the litigation, as litigation was seriously halting and hampering the development activities. The paragraph 10 of the written statement further enumerates those circumstances, besides a letter dated 09.07.2015 was written by YEIDA especially directing to stop construction work over the plot besides another letter dated 15.01.2018 of stay order over the Khasra numbers falling under the project of the OP. Further, there were chronic defaults in the payment on the part of buyers including the complainants, which result into severe resource crunch, the progress of work was got slow and delay in handing over the possession.
The written statement further enumerates that there were major disruption in the construction activity at the site due to strike by the farmer, the construction work was stopped for about 2-3 months (November to January) every year due to rising year of pollution in and around Delhi-NCR in pursuance of directions by Hon’ble Supreme Court of India and Hon’ble NGT besides other directives by Ministry of Environment and Forests and Pollution Control Board. The written statement also gives details of 74 days [i.e. 16 days + 09 days +10 days +39 days =74 days ), when the construction work was stopped from 23.11.2016 till 09.12.2019. The sites staff, contractors, construction labour and machinery involved in the construction work became idle and it takes about one to two months to restart and gear up the work. All these circumstances were beyond the control of OP and construction was delayed. In addition, many allottees including the complainant, made default of timely payment to OP, which led to the cascading affect, resulting in delay in completion of the work and consequently the handling of the possession.
3.7. In the construction contract, time for delivery is never essence of the contract, otherwise as per clause 26 of the agreement provides penalty of Rs. 5 sq. ft per month in the eventuality of delay in handing of the possession (other than reason of force majeure and lack of timely payment by the allottees) and the amount repayable by the OP after lapse of grace period of six months. As per section 39 (1) (d) of the Consumer Protection Act 2019, the amount of compensation would be payable in the eventuality there is loss or injury suffered by the consumer due to negligence but it is not so in the present complaint as there is no negligence on the part of OP. No case of claim of damages is manifesting. Further, the parties are governed by the covenant of contract and the same are binding on them, therefore, when the parties are agreed to the extent of compensation in the agreement, it is not permissible to give more than what is agreed in the contract, being on the lines of sections 73/74 of Indian Contract Act. The complaint is gross misuse of the provisions of the Consumer Protection Act, since this benevolent legislation is meant for bona-fide consumers and not for others. The complainants came without clean hand and the complaint is liable to be dismissed and complainants are not entitled for the relief claimed. There are no merits in the complaint.
3.8 The written statement is accompanied with copies - of Board Resolution, letter dated 29.08.2014 of constitution of committee, its report and implementation, letters written to YEIDA, police and administration, letter dated 09.07.2015 of YEIDA, letter dated 15.01.2018, NGT order, supreme court, EPCA press notes etc.
3.9 (Case of OP2) - The OP2 was also served on 28.11.2020, which recorded in detail in proceedings dated 23.03.2022, however, OP2 failed to appear and file the written statement.
4. (Replication of complainants) – The complainants filed their detailed rejoinder, in the form of telegraphic messages with case law under various head to oppose the allegations of written statement. Briefly they deny the allegation of written statement but reaffirm the complaint as correct, while deriving reasons from certain case law to fortify their plea.The complainants have made the payment as per payment plan and there was no default by them, the OPs are misrepresenting such facts vis-à-vis undisputed statement of payment are matter of record. The complainants were not disclosed at the time of booking of unit or payments by the OP in respect of various other proceedings or litigation, if any, existing but in fact the OPs assured to the complainants that the project will be completed in time and possession of the unit will be delivered very soon. Moreover, at the time of making demand of payment, the complainants have also specifically inquired about performance in the progress of project and expected delivery of possession, it was again reiterated it will be delivered very soon. The force majeure clause being invoked is not existingat all since the agreement/allotment letter between the complainants and the OPs but the OPs are trying to derive benefit under the pretext of previous circumstances, which were never told to the complainants nor they had conceded. There is valid cause of action against the OPs as well as there is no factor of force majeure in favour of OP. There is deficiency of services on the part of OPs as well as admission of their failure to complete the project in-time, want of offer of the possession of the flat/unit as well as it was not delivered to the complainants. The complaint is valid. The defence being taken by the OPs is not applicable, the project was not completed by the OP and possession was neither offered nor delivered to complainants till date. The complaint is correct. The case law referred will be mentioned appropriately at later phase of this Order.
5.1.(Evidence)-The complainant no. 2 Sh. SubhashGarg[for himself and also as an attorney of complainant no.1] filed his detailed affidavit of evidence, for them, coupled with all documentary record filed with the complaint.
5.2.The OP1 also led its evidence by filing detailed affidavit of ShriArvind Kumar, Authorised Representative of OP1;affidavit is replica of the written statement with the support of all documentary record filed with the written statement.
5.3. There is no evidence of OP2 for want of filing written statement.
6.1 (Final hearing)- The complainants and the OP1 filed their written arguments. The arguments are blend of pleading and evidence with the support of decided cases..
6.2.Both the parties were given opportunity to make oral submissions.ShriSubhashGarg, complainant no.2 (being practicing Advocate)for complainants and ShriSuresh Chandra. Advocate for OPs made their oral submissions. On the one side the complainants maintain that they have proved the complaint, they are entitled for the relief claimed. On the other-side, theOP1 claims there are no merits in the complaint, it is liable to be dismissed.
6.3.1. In order to fortify the case and circumstances in favour of the complainants, they derive their reasoning from the following cases-
(i) Experion Developers Pvt. Ltd. VsSushma Ashok ShiroorSCC OnLine SC 416 - (SC)
Dod 07.04. 2022 - the decision of Commission was up held that the developer has to refund an amount of Rs. 2,06,41,379 with interest @ 9% p.a. to the Consumer for its failure to deliver possession within the time stipulated as per the apartment buyer agreement.
(ii) NBCC (India) Limited V/s.Shri Ram Trivedi;(2021) 5 SCC 273:dod 8.3.2021 - the terms of agreement between buyer and seller were one-sided and the same constitutes unfair trade practice - Agreement fastening liability on purchaser to pay simple interest @ 12% p.a. if he failed to pay installments on time, whereas if seller failed to handover possession in time, then he would have to pay compensation @Rs 2 per square foot per month for period of delay. Held- such condition is one-sided and constitutes unfair trade practiceA term of a contract will not be final and binding if it is shown that flat purchasers had no option but to sign on dotted line, on a contract framed by builder.
Force Majeure Event - What isdispute between developer and contractor over termination and a boundary wall dispute with neighbouring landowners - Held, will not constitute force majeure events, as appellant, being an experienced developer, must be conscious of routine delays caused by business exigencies.
Delayof Purchaser, if any, in paying installment, developer itself was not in a position to hand over possession of the dwelling unit by the end of December 2014 (stipulated date for delivery of possession) -Hence, the requirement of paying the penultimate installment in September 2014 must be looked at from that perspective - Plea of developer - rejected.
(iii) Ireo Grace Realtech Pvt. Ltd V/S AbhishekKhanna and otrs - (2021) 3 SCC 241 :dod 11.1.2021 - Directions, declaration and relief that may be granted by Consumer Forums - Power of Consumer Fora to award compensation in case of, over and above power to declare practice or contractual term as unfair and to discontinue the same. as an incident of power to direct removal of deficiency in service
Powers of Consumer Fora -are in no manner constrained to declare a contractual term as unfair or one-sided as an incident of power to discontinue unfair or restrictive trade practices ;State Consumer Fora and National Commission to declare contractual terms which are unfair, as null and void - This is a statutory recognition of a power which is implicit under the CPA.1986
Deficiency of service - Failure of developer to comply with contractual obligation to provide flats within contractually stipulated period, held, would amount to a deficiency of service
Inordinate Delay - In completing construction and making offer of possession - Relief that may be granted is compensation for delay where possession had been given - and interest over and above amounts stipulated in apartment buyers' agreement.
Delay Compensation - 9% p.a. interest allowed:Specified clause in apartment buyers' agreement cannot be accepted as being adequate compensation for delay in construction of project amounts deposited by buyers directed to be refunded with simple interest @ 9% p.a.
Default Interest - @ 12% P.A - amount be refunded along with interest @ 9% p.a. within 4 weeks; in case of failure to refund within 4 weeks- developer to pay default interest @ 12% p.a. till the payment is made.
(iv) Wg. Cdr. ArifurRahmanKan 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.”
(v) Ajai Kumar &ors... Vs. Supertech Ltd.2019 NCDRC -dod22.04.2019- There wasbooking of residential flat in "UP COUNTY" Sec. 17-A YamnaExpressway Indl. Dev. Area - "YEIDA", the amount already paid was Rs.1,00,42,955/ butconstruction was not completed-
Delay in delivery- the possession was not offered, then refund of entire amount was allowed with interest @ 10% for delayed possession + cost of litigation of Rs.25000/-
(vi).Chandan Gupta. Vs.Supertech Ltd. 2019 SCC Online NCDRC 790-dod 01.05.2019 There was booking of residential flat in " ORB TOWERS" Sec. 74, Noida, the amount already paid was Rs. 1,08, 16,881/-nut the construction was not completed-Delay in delivery and possession not offered; then refund was allowed with interest @ 10% for delayed possession + cost of litigation of Rs.25000/-
(vii). Aruna Nanda. Vs.Supertech LtdCompl No. 06/2014, State Commission Delhi -
dod:24.01.2017- There was booking of residential. flat in " ECO VILLAGE" Gr.NoidaExtn, the amount already paid was Rs.39,52,812/-Construction not completed, delay in delivery and possession was not offered in time- Then refund was allowed of Rs. 40, 98,766/- (Rs.39,52,812/-+ 1,45,954) [ SCC Online NCDRC 1254 -Supertech Ltd. Vs. Aruna NandaAppeal dismissed with costs on 13.07.2017
by NCDRC)
(viii). AnkurGoyal. Vs.Rise Project Pvt.Ltd.2020 SCC Online NCDRC 465-dod 14.10.2020 - Booking of residential flat in "Rise Sky Bunglows" at Faridabad, the amount already paid was Rs.2,81,96,455/- but construction was not completed-Delay in delivery- possession not offered in time- then refund was allowed, If loan was taken, then actual amount paid to financial intuition was also allowed10% p.a. interest from the date of deposit till paymentCost of litigation of Rs.25,000/-
(ix). Rakesh Mehta. Vs.Emaar MGF Land Ltd.2017 SCC Online NCDRC 1617- There was booking of residential flat in Sec. 105 and amount paid was Rs. 96,28,565/- but delay in delivery, the possession was not offered. Then refund was allowed withinterest @ 9% for delayed possession + cost of litigation of Rs.25000/-
(x). Mr.Beatty Tony Vs. Prestige Estate Projects - 2014 SCC Online NCDRC 747Booking of residential flat in Shantineketan and possession was to be delivery within 39 months by 01.10.2008 and in case of delay then to pay 7% p.a. interest. However, possession was offered on 23.12.2011 after delay of over 32 months;
The Grounds claimed by OP for delay were, strike of sand suppliers;, flooding at the side due to heavy rains;acute shortage of skilled labour;truck strikes on 3 occasion., claimed- "Force Majeure" & alsoclaimed - Complainant himself to be a defaulter. Complaint was allowed by District Forum by holding deficiency in service. But that decision reversed by State Commission. However, NCDRC- again reversed the order of State Commission and appeal was allowed by restoring the order of District Forum. Also held that there was no "Force Majeure", OPwas directed to pay 7% pa interest for the delayed period..
6.3.2 TheOP1opposed all the contentions of complainants that the OP was prevented by the situations, which were beyond its control and as per terms of agreement, they fall under force majeure clauses. Further, it issettled law that compensation cannot be awardedmore than agreed in terms of agreement unless there exists substantial or exceptional reasons to do so Moreover, if loss and injury is suffered by the complainant , it should be correlated with negligence of OP but there is no such negligence pleaded or proved. In order to shield, the OP1take support from the following decided cases-
(a) GamathinaygamPillai vs. PalaniswamiNadarinAIR 1967 SC 868, held that option to avoid the contract has to be gathered from the intentions of the parties at the time of the contract and if expressed in writing must be in a language which is unmistakable, it may also inferred from the property agreed to be sold, conduct of the parties and the surrounding circumstances at of before the contract and if the contract relates to sale of immovable property, it would normally be presumed that time was not of the essence of the contract. Mere incorporation in the written agreement of a clause imposing penalty in case of default does not by itself evidence to make time as the essence of the contract.
(b) Hind Construction Contractors Vs. State of Maharashtra (1979) 2 SCC 70, the (para 7, 8 and 9) held that question as to whether the time is the essence of the contract is to gathered from the intention of the parties. Even where the parties have expressly provided that the time is the essence of the contract, such stipulations need to be read along with other provisions and if the contract provides for contingencies or payment of fine/penalty for delay, would be construed as rendering ineffective the express provision relating to the time being of the essence of contract. [The OP1 emphasizes that in this complaint there are two remedy agreed between the parties in case of delay and inability to give possession in time. One is compensation of Rs. 5/- ps.ft. of flat area per month and another is alternate flat. In terms of the specifically agreed condition, the remedy for seeking refund has been made limited by the parties].
(c) Bharti Knitting Company Vs. DHL WorldwideExpress courier (1996) 4 SCC 704 (para 6) held that when a person signs a document which contain contractual terms, normally parties are bound by such contract; it is for the party to establish exception in a suit when a party to a contract disputes the binding nature of the signed document, it is for him to prove the terms in the contract or circumstances in which he came to sign the document need to be established. In the present case the parties are bound by the terms of the Agreement, which are equitable and has been provided for reasonable compensation for delay. The OP is also ready to another flat in the same project of same specification as provided under the Agreement.
(d)MaulaBux v. Union of India(1969) 2 SCC 554 (para no. 4, 5) held that a claimant have to lead evidence to prove the actual loss or damage resulting from the breach, if the adjudicating authority were of the view that in the given facts and circumstances, compensation can be calculated in accordance with the settled rules. However, if the adjudicating authority were of the view that in the facts and circumstances in question, it will be impossible for the Court to assess the compensation, then the Courts may take into consideration the sum named by the parties "if it be regarded as a genuine pre-estimate ... but not if the sum named is in the nature of a penalty".
(e) KailashNath Associates vs. DDA and Anr (2015) 4 SCC 136, (para 43) held that where a sum is named in a contract as liquidated damage, payable by way of damages, the party complaining a breach can receive as reasonable compensation such liquidated amount only if it is a genuine pre-estimate of damage fixed by the parties. Reasonable compensation will be fixed on well-known principle applicable to the law of contract which are to be found inter alia in section 73 of the Contract Act.
(f) Fortune Infrastructure and Another vs. TrvorD'lima and Other (2018) 5 SCC 442, the principle for quantification of damage for breach of contract in case of real estate sector by taking into consideration expected gains from the price escalation of flat/house.
Its para 11 refers Johnson vs. Agnew wherein it was expressed that the general principle for the assessment of damage is compensatory i.e. that the innocent party is to placed, so far money can do so, in the same position as if the contract has been performed. In para 12 it was held that the aforesaid proposition remains to hold the field and has been applied consistently.
7.1 (Findings)- The rival contentions of both the sides are considered, keeping in view the material/evidence on record, the decision/case law presented and the statutory provisions of the Consumer Protection Act 2019.
7.2.At glance, there is no dispute that the complainants had booked the flat and they were allotted the subject flat against payments from time to time. The agreement cum allotment dated 10.02.2015 is also not disputed and the total sale price of the flat is Rs. 27,86,20/- and the complainants had paid total amount of Rs. 17,36.499/- out of agreed consideration amount.However, the disputes are in respect of other law point, facts and features. All of them are being taken one by one.
8.1.[whether, or not, this Commission lacks territorial Jurisdiction?]- This issue pertains to the territorial jurisdiction of the present District Commission. Para 20 of the complaint mentions invoke of sec.34 of the Act, it is like a legal paragraph on the point ofjurisdiction of the Commission. The complainants also highlight in the replication that they are residing in the area falling in Central District of Delhi and OP1 has office in Nehru Place, therefore, the Commission at Delhi that too of Central District has jurisdiction.
But, the OP1 has reservations that OP1 is working for gain in NOIDA, UP, the unit was also booked in the office of OP at GautamBudh Nagar, UP, the payments were also made and its receipts were also issued at NOIDA, UP, therefore, the Commission at Delhi lacks territorial jurisdiction.
8.2.To answer it needs to look at the facts and provisions of law. The plea of OP1 is based on sub-clauses of (b) and (c)of section 34 of the Consumer Protection Act,. 2019 but the complainants have invoked jurisdiction under sub-clauses of (d) of section 34 of the Consumer Protection Act,. 2019,on the basis of their residential address covered which is within the area of Central District, Delhi and this DCDR Commission of Central District is competent to entertain and decision the complaint. Thus, the territorial jurisdiction of this Commission is not ousted.It is held that this District Commission has territorial jurisdiction to adjudicate this complaint and issues involved. Accordingly, this objection of OP is disposed off.[It is not out of context to mention that clause (d) of section 34 of the Act 2019 is introduced first time for the purposes of jurisdiction, this was not existing in the repealed Act, 1986].
9.1. [Whether or not complainantsare consumers?]-According to complainants, they booked the residential flatfor themselves and not only they paid the booking amount but also further payments as and when due or called for by the OP. Further, the OP had taken objection in the written statement as if the unit was for commercial or re-sale purposes but the OP failed to prove it, vis-à-vis the unit was booked for residential purposes for own use by the complainants and not for commercial purposes. The complainants are consumers; theyare covered by the Act 2019.
Whereas, the OP has strong reservations that complainants have booked unit and invested the money in the flat for earning profits by re-sale and not as end users. Since, it is booked for commercial purposes, they are not consumers within the scope of the Act, 2019.
9.2. The rival contentions are clear, they are to be read with the pleadings and evidence of the parties. The flat booked and allotted is in the residential project, which is an undisputed fact. By taking into account, the totality of documentary record, there was no specific column either in the booking form or in the allotment letter or in the agreement that the complainants booked the unit for commercial purposes. This plea has been taken by the OP1 in the written statement, therefore, the onus was on the OP to establish clearly that the unit was booked exclusively for commercial purposes to make gain out of transaction of that flat. It is undisputed fact that OP2 is a practicing Advocate for the last about 40 years. Neither the complainants are in the business of trading in real estate nor the OPcould establish that the complainants are in the business of real estate. As appearing, the OP is making assumptions of its own and baldly asserted in the written statement. The OP was required to establish how it came to conclusion that flat was booked for re-sale purposes for gains and not as for end users. In addition, there is no whisper of any fact or record that OP could draw that inference. Therefore, by taking into account, the facts, features and circumstances proved, it is held that OP could not establish that the flat was booked for commercial or trading purposes by the complainants. This objection of OP is disposed off against the OP.
Moreover, it stand established that the relationship of the OP and the complainants are of developer/builder and of buyer of the flat, which comes within the purview of consumer and there is existence of consumer disputes, therefore, it is also held that complainants are 'consumers' within the definition prescribed under the Act 2019.
10.1 [whether or not project was ready or is there force majeure situation?]-The complainants and the OP have juxtaposition stand as the complainants contend that as per agreement-cum-allotment dated 10.02.2015, the possession was to be delivered by January 2017, duly highlight in bold in the agreement for the purposes of emphasis. The OP failed to honourthis material commitments and the terms and conditions of contract, despite the complainants made all payments as per schedule of payment, if and when so demanded. The OPs failed to complete the project and even the complainants had visited and requested OPs to disclose the thencurrent position of the project, it was falsely assured that project would be completed and possession will be delivered very soon. It was not completed even after lapse of three years from last demand and payment of 27.10.2017. However, as per information surfaced to complainants, it revealed that the project was not only incomplete but its completion was also not expected in the near future, since OPs put the project 'on hold' and that is why as a last resort the complaint was filed in November 2020 after serving legal notice. The OPs 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 are number of other cases filed against the present OP, which have been decided by the Hon’ble National Commission (the cases have already mentioned in paragraph 6.3.1 above).The OP is taking the stand as if there is force majeure, however, the same has been put in a vague manner and as a camouflage besides they were of period much prior to executed agreement-cum-allotment letter and receiving of booking amount. In fact, OPs were supposed to disclose every such previous litigation or cases, however, it was not disclosed in any manner vis a vis the OPs ought not have made promise for completion of project or to call/receive amounts from the complainants. There is mala-fide of the OPs. The residential flat was booked in 26.03.2014 and the agreement was of 10.02.2015 but the project was not completed even in 2020, which was much after the period of January 2017 mentioned in agreement. The plea of force majeure is not tenable.
On the other side, the OP1contends that the period for handing over the possession Jan 2017 but it was subject to other clauses in the agreement, especially clause no. 26, the circumstances were beyond the control of OP(which have been referred in detail in3.6 above). The situation of law and order, stay orders by the courts/Tribunal and other directives of the Authority were reasons for delay, however, it was not in the control of OPs. The OPs were serious and also interested to complete the project and to deliver the possession to the complainants and other at the earliest. The OP has not violated any of the terms and conditions of the agreement. There is no cause of action in favour of complainants and against the OPs to make liable the OPs on any count.
10.2. On plan reading of the rival contentions, it is undisputed that the OPs could not deliver the possession of the flat to the complainants up-to January 2017 and the present complaint was filed on 02.11.2020 that too after seeking status of the project from the OP by the complainants by visiting personally or otherwise. The possession could not be delivered since project was not complete and in deliverable state. But the OP1 has reservation on the basis of force majeure that those situations and circumstances were beyond its control to make the project complete. This delay cannot be attributed to the OP1.
However, the records is abundantly clear that the OP1 has narrated somecircumstances , which were prior to subject agreement with the complainantsbut 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 haltedvis a vis when it was relaxed, then to what extent further construction was carried. The OPs have made general averments vis a vis another stand was taken by the OP in the reply to legal notice that due to financial crunch the development was not taken as if had the financial conditions were sound, the project would be completed?
Moreover, the record proved by the parties, do not depict that the OP1 had informed thecomplainants at the time of booking or execution of agreement or at the time of calling/receiving the payment from time to time, about previous agitations of farmers, litigation or orders, which is being emphasized first time with detail in the written statement besides general reference was also given in the reply dated 17.10.2020 to the legal notice dated 28.09.2020. Further, when OPs felt it irrelevant to disclose about such circumstances to the complainants at that time of booking of unit, allotment of letter and recepit of payment, then OPs cannot assert them relevant at material when time/date arrived for handing over of possession nor OPs can derive benefit at later stage.
The OP1 has mentioned the details total delay of 74 days, from time to time, happened from November 2016 to Dec.2019. The OP1 would not earn excuse for those 74 days during three years period that it was prevented for carrying the project forward and to complete the same within time.The complainants cannot be imposed by OPs the previous situation not mentioned and consented for by the complainants. The agreement was executed with assurances by OPs that possession will be handed over by Jan 2017 subject to prospective force majeure. 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 OP1vis a vis the complainants cannot wait for infinite period. The complaint was filed on 02.11.2020, this contention of the OP1 stand is disposed off against the OPs.
11.1. [whether or not complainant is defaulter to pay amount?]- This is another limb of rival contentions and both the sides are striking hard to each other. According to complainants the total amount agreed was Rs.27,86,720/- and the complainants had paid amount of Rs.17,36,499/- from time to time or when it was demanded by the OP, it was constructions linked plan. Since, the project remained incomplete and possession was not offered nor handed over till the filing of complaint, the complainants had no option but to seek return of the amount. They are not defaulters since the statement of account and receipts issued show their regular payments without default.
Whereas, according to OP, it was constructions linked plan but complainants had not adhered to time frame of payment schedule agreed. There are many allotteedefaulters including the complainants in tendering the timely payment and they want to wriggle out of the contractual obligations.
11.2. It needs to look at the record to determine this controversy.Firstly receipt of amount of Rs.17,36,499/- by OP1 from the complainants is not disputed. The statement of payment (Annexure-A, issued byOP1 ) proved by complainant is also not disputed by OP1. The payment plan in the allotment letter depicts payment plan construction linked plan, there are two columns the left column shows stage of construction and correspondingly the right column shows amount payable. At glance,first part payment is time based on booking and then within 30 days and thence subsequently it is construction linked payment plan.
However, the OP1 could not establish, what was the stage of the construction and correspondingly that particular phase, what amount was not paid or partly paid by complainant. The complainants had sent legal notice and it was replied by the OP1, with certain constraints of financial conditions of OP1, with option to the complainants to explore solution, however, there is no iota of fact that complainants were defaulters of any amount. There is also no proof of any correspondence or demand letter that complainants were asked to pay a particular amount on a specified date but it was not paid. Therefore, the OP1 could not prove its case but complainants have proved that payments were made in time as demanded. It is held that complainants are not defaulter. The OP1 could not complete the project nor even OP offered the possession of the residential flat to the complainants. Thisanswers the contentions of both the sides.This issue is decided against the OPs.
12.1.In view of the aforementioned discussions and conclusions, it stands establish that the complainant has succeeded to prove the complaint and that they have paid the amount of Rs. 17,34,499/- but OPs failed to prove its defence and also its case to complete the project or to offer the possession of the flat within stipulated period or to deliver it to the complainants. The complainants,prior to filing of the complaint, have visited OPsto ascertain status of the project and the flat from OPs, it was assured to deliver the possession soon but it was not delivered. Then finally complainants also served legal noticefor refund of paid amount and other amounts. Since, there is deficiency of services on the part of OPs besides unfair trade practice, the complainants are entitled for refund of entire paid amount of Rs. 17.36,499/-.
12.2 The complainants claim interest amount of Rs.15,34,996/- by restricting to interest at the rate of 18%pa on the amount paid to OP, it is opposed by the OP vehemently that for want of any deliberate delay, no interest is payable. It needs to refer the reasoning in the following cases -
(a) Vishal Malik and anr Vs Pioneer Urban Land & Infrastructure Ltd. (Civil Appeal No. 1238/2017 dod 29.3.2019) when the amount was collected by developer from the buyer of flat but the flat is not delivered, the amount paid by the buyer of flat to the builder/developer is to be treated as deposits with the builder.
(b) Marvel Omega Builders Pvt Ltd and anrVsShrihariGokhale 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.
(c) Ajai Kumar &ors.Vs. Supertech Ltd.2019 NCDRC -and Chandan Gupta.Vs.Supertech Ltd. (supra) simple interest at the rate of 10% pa.
Thus interest at the rate of 10% pa in this situation is determined being reasonable rate, which will be payable to complainants by OP1 from the dates of each deposit/payment till realisation of amounts.
12.3. The complainants also demand penalty amount of Rs.5 per square feet per month, however, this request is declined firstly by virtue of conclusion of paragraph 12.2 above; secondly the allotment letter was unilateral standard agreement and its clause determines that this penalty will be till possession is offered or actually possession is delivered, whichever is earlier,this occasion has not occurred and thirdly claim for the same delay under different headings would not acceptable. The complainants’ request for amount of Rs.1,74,645/-, as claimed, is declined.
12.4 The complainants have claimed compensation of Rs. 5,00,000/- lakhs and litigation cost of Rs.25,000/-, however, the component of compensation is included in the rate of interest allowed, therefore, no separate compensation is determined. The costs as claimed is determined, and allowed, of Rs. 25,000/- in favour of complainants and against the OP1.
12.5. The OP2 is Managing Director/A.R of OP1, however, he is personally impleaded but he represents the company, therefore, when OP1/ being company incorporated is already a party, it does not require orders against OP2. Thus, complaint against OP2 is dismissed.
13.Thus, the complaint is allowed in favour of complainants and against the OP1 while directing the OP1 to pay an amount of Rs. 17,36,499/-. [.i.e. Rs.3,00,000/- deposited on 21.03.2014; Rs.2,76,170/- deposited on 10.09.2014; Rs.5,76,169/- deposited on 27.02.2015 and Rs.5,84,160/- deposited on 27.10.2017) along with interest at the rate of 10% pa from the date of each deposit till realization of the amount besides costs of Rs. 25,000/- to be payable within 45 days from the date of this Order. In case the amount is not paid by the OP1 within 45 days from the date of this order, then the interest rate will be 12% pa (instead of rate of 10%pa).
The OP1 may deposit the amount in the name of complainants in the form of valid instrument with the Registry of this Commission.
9. Announced on this28th day of May, 2024 [ज्येष्ठ7 ,साका1946]..Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances besides upload on the website of this Commission.
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