Chandigarh

DF-I

CC/510/2020

Jagvijay Pratap Singh Gill - Complainant(s)

Versus

Sushma Buildtech Ltd. - Opp.Party(s)

R.P. Dangi

19 Jan 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

 

                    

Consumer Complaint No.	:	CC/510/2020
Date of Institution	:	04.11.2020
Date of Decision	:	19.1.2023

 

Jagvijay Pratap Singh Gill son of Sh. Amrik singh Gill, resident of H. No.2116, Victoria Crecent NW Calgary-T2M4E2, through his power of attorney, Sh. Navneet Singh Gill, R/o VPO Barwala, District Hisar, Haryana.  

… Complainant

V E R S U S

Sushma Buildtech Limited, Registered office at SCO 172-173, 1st floor, Sector 9-C, Madhya Marg, Chandigarh & Corporate office: Unit No. B-107, Business Complex, Elante Mall, 1st Floor, Industrial Area, Phase-I, Chandigarh, through its Manager/ Authorized Signatory/Office-in-Charge/Director Sales & Marketing.

 .  … Opposite Party

CORAM :	PAWANJIT SINGH	PRESIDENT
	SURJEET KAUR	MEMBER

                         

ARGUED BY		Sh. R.P. Dangi, Advocate for the complainant.
		Sh. Vishal Singal, Advocate for  Opposite Party.

Per surjeet kaur, Member

1.  The present consumer complaint has been filed under Section 35 of the  Consumer Protection Act 2019 by Sh. Jagvijay Pratap Singh Gill through his Power of Attorney  Navneet Singh Gill. Brief facts of the case are that the complainant booked apartment No. G-1503 admeasuring 1970 sq. ft. (super area), 15th Floor, Tower-G , in the project of the Opposite Party namely “Sushma Chandigarh Grande” on 24.8.2012 by paying earnest money of  Rs.7,92,762/-. Allotment letter Annexure C-4 was issued to the complainant. Apartment Buyer’s Agreement dated 29.12.2012 (Annexure C-5) was entered into between the Party. The total sale price of the Flat was Rs.76,90,000/- and possession of the same was to be handed over within 42 months from the date of execution of Agreement with a grace period of 6 months ended on 28th December 2016. The Complainant paid a total amount of Rs.67,38,474/- to the Opposite Party as is apparent from Annexure C-7.  It is stated that as per clause 14(d)  of the agreement in case of delay of handing over of possession, the Opposite Party were liable to pay Rs.5/- per sq. ft. of the super built-up area per months for entire period of delay in handing over the possession.  It is alleged that as per information available on the website of the Opposite Party the expected date for completion of the project is 26.7.2022 whereas as per Apartment Buyer’s Agreement the possession was to be handed over on 28.12.2016 but the project has not been completed till date. The Opposite Party has not obtained the occupation/completion certificate from the competent authority till date.  It is further stated that vide letter dated 26.6.2017 Annexure C-8 the Opposite Party intimated the complainant that the area of allotted Apartment is No. G-1503, Tower G, admeasuring 1885 Sq. ft. (supe area) instead of 1970 Sq. ft.. Thus the total cost comes to Rs.73,58,198/- . The complainant had already paid Rs.67,38,474/- against the basic price   of Rs.73,58,198/- i.e.  92% of the basic price within 2 years of the allotment till 19.8.2014.  It is alleged that when the complainant in December 2014 visited the project of the Opposite Party and found there was no development though the Opposite Party have taken 92% of sale price from the complainant, thus the complainant decided to hold the remaining payment till the completion of the project and intimated the same to the OPs but still the Opposite Party continued to demand payments alongwith interest without completing the project.  It is alleged that the Opposite Party vide email dated 16.7.2019 (Annexure C-9(colly) intimated the complainant regarding cancellation of the unit alongwith letter dated 15.7.2019 and press note dated 11.7.2019 and asked the complainant to take refund of Rs.48,33,720/- only out of total paid amount of Rs.67,38,474/-, which is arbitrary and illegal.   Thereafter the Opposite Party vide Annexure C-11 letter dated 4.9.2020 offered possession of the unit without obtaining occupation/completion certificate from the competent authority and demanded Rs.16,56,614/-i.e. more than the agreed amount. Since the offer made without obtaining occupation/completion certificate thus the same was invalid. Alleging the aforesaid acts deficiency in service and unfair trade practice on the part of the Opposite Party, this complaint has been filed.
2. The Opposite Party in its reply while admitting the factual matrix of the case stated that earlier Agreement dated 29.12.2012 agreed and accepted by  both the parties but on 27.7.2016 due to non payment of dues by the complainant allotment of apartment  of the complainant was terminated.   It is averred that the money received from complainant had been spent towards the construction of the flat and the unit was constructed and completed and Occupation/completion certificate for Tower wherein the flat of complainant is situated was granted for the project by the competent authority. However, due to labour problems and shortage of sand due to ban on mining by the authorities as well as demonetization, there was some delay, which was beyond the control of the Opposite Party and constituted force majeure and resulted in delay of project, however, later the development picked pace and the units/apartments were completed. It is averred that the Opposite Party is committed to adjust/remit the delayed possession penalty in terms of clause 14(d) of the Buyer’s Agreement but the allotment of the complainant’s unit had been terminated due to non payment by the complainant starting from year 2013 itself. It is alleged that the complainant is a willful defaulter and earlier also the allotment was terminated vide letter dated 8.7.2014 (Annexure R-10). A show cause notice dated 26.6.2017  was also served upon the complainant for cancellation of unit and again on 27.7.2017 and an intimation of cancellation letter was again sent on 11.1.2019 wherein an amount of Rs.19,04,754/- was also forfeited as per terms and conditions of the buyer’s agreement dated 29.12.2012. It is averred that the completion of the cancelled unit of the complainant was completed in 2019 and a copy of completion/occupation certificate dated 23.7.2019 is Annexure as Annexure R-13 alongwith copy of fire NOC as Annexure R-14. All other allegations made in the complaint has been denied being wrong.
3. Rejoinder was filed and averments made in the consumer complaint were reiterated
4. Contesting Party led evidence by way of affidavits and documents.
5. We have heard the learned counsel for the contesting Party and gone through the record of the case.
6.  It is evident from Annexure C-11 at page 81 of the paper book that the complainant paid Rs.67,38,474/- to the Opposite Party towards the major payment of the  apartment in question out of the total basic price of the same. The complainant who is a NRI has purchased the unit for his own use whenever he visits India. The grouse of the complainant is that despite paying hefty amount of his hard earned money the Opposite Party failed to handover the possession within stipulated period  of 48 months as per Apartment Buyer Agreement.
7. The stand taken by the Opposite Party is that the complainant failed to pay the remaining payment for the timely completion of the apartment in question. It is submitted that the delay in offering possession caused due to force majeure conditions which is beyond the control of the Opposite Party.  Further the allotment of apartment in question was terminated on 27.7.2016 due to non payment of dues by the complainant. The Opposite Party has also taken preliminary objection that this Commission no pecuniary jurisdiction to try this complaint.
8.  The preliminary objection raised by the Opposite Party that this Commission has no pecuniary jurisdiction, is not sustainable. A perusal of record shows that the complainant has filed this complaint in November 2020 when the pecuniary jurisdiction of this Commission was upto Rs.1.00 crore as per clause 34 of the Consumer Protection Act 2019. However the same was later on amended by the Government in the year 2021.  Hence, this plea of the Opposite Party has no merit and the same is rejected.  
9. After going through the record of the file, it is evident that the complainant paid a huge amount of Rs.67,38,474/- to the Opposite Party. As per Annexure C-4 the unit in question was allotted to the complainant on 28.8.2012 and Apartment Buyer’s Agreement Annexure C-5 was executed on 29.12.2012.  As per Buyer Agreement the possession of the unit in question was to be handed over within 42 months from the date of execution of agreement  plus six months grace period. Meaning thereby the possession was to be handed over handed over by 28th December 2016. As per Annexure R-8 at page 131 of reply of Opposite Party, it is apparent that the complainant made payment of Rs. Rs.67,38,474/- w.e.f.28.8.2012 till 4.9.2014 out of the total basic price of Rs. 76,90,000/-but complainant stopped further payment, when he found no construction initiated at the site, till completion of the project.   On the other hand the OPs in 2017 terminated the allotment of apartment in question due to default in payment arbitrarily by using the clauses of one sided agreement as per their convenience.  Clause 7.4(b) and 14(d) clearly shows that the Agreement was framed by the Opposite Party as per their convenience and they are always in dictating position. As per clause 7.4(b) if there is any delay or default in making of payment of installments by the buyer, then the buyer shall pay to the developer interest @24% per annum from the due date of payment of installments on monthly compound basis whereas as per clause 14(d) in case of delay in handing over of possession, the developer is only liable to pay holding charges @Rs.5/- per sq. ft. of the super built area per month for entire period of such delay. Thus,  we are of the opinion that the agreement is unilateral and arbitrary, favoring the opposite party and against the complainant, hence, the Complainant cannot be said to be bound by the unilateral clauses as enumerated above. The Hon’ble Supreme Court of India in Experion Developers Pvt. Ltd. Vs. sushma Ashok Shiroor in Civil Appeal No. 6044 of 2019 held as under:-

“10 having examined various decisions of this Court which considered similar clauses in Apartment buyer’s agreement and following the ratio laid down in pioneer case, the submissions made on behalf of developer has to be rejected. We hold that the Commission is correct in its approach in holding that the clauses of the agreement are one sided and that the consumer is not bound to accept the possession of the apartment and can seek refund of the amount deposited by her with interest.

10.   Further the Apex court in case title as pioneer Urban Land & Infrstructure Vs. Govind Raghvan II (2009) CPJ 34 (SC) held as follows.:-

“6.7 A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the agreement dated 8-5-2012 are ex facie one-sided, unfair and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the builder.”

11. Similarly in the present case also the clauses in the Apartment Buyer’s Agreement are one sided and the Opposite Party even after almost receiving 90% payment cancelled the allotment and later on offer made in 2019 that too with partial occupancy certificate.   The complainant after  making approximately 90% payment towards the  consideration of the unit in question stopped the remaining meager amount as the Opposite Party did not initiate any construction till 2014, which forced the complainant to stop the payment further. Even the Opposite Party failed to place on record any document which proves that it had initiated the constructions as per agreement and the same was intimated to the complainant time to time while demanding money. As per agreement it was a construction linked payment plan but the Opposite Party only received the payment and issued demand letter to the complainant but never shown on record any letter which could show the level of constructions made while receiving the payment from complainant.  Thus the Opposite Party itself is at fault and illegally retaining the hard earned money of complainant and earning profits on the huge money deposited by the complainant since last 5-6 years, which certainly caused huge mental agony and harassment to the complainant.  
12. The OPs took the shelter of force majeure circumstances in delay of offering possession. This plea of the Opposite Party is not tenable. In Imperia Structures Ltd. vs. Anil Patni and Ors. reported at AIR 2021 SC 70 the Hon'ble Supreme Court has held as under:

"10. Consumer Case No. 3011 of 2017 was allowed by the Commission by its judgment and order dated 12.09.2018. It was observed:

10. It is pertinent to note that the Developer has not filed any evidence to support his contention that the delay occurred due to force majeure events. In fact demonetization, non-availability of contractual labour, delay in notifying approvals cannot be construed to be force majeure events from any angle."

 

 

13.  In the instant case, there is no documentary evidence to support the contention of the Opposite Party that the ground raised by them can be construed as 'Force Majeure.' In the absence of any material on record to substantiate the plea of the Opposite Party that the delay was for reasons beyond their control, we hold that the Opposite Party cannot take shelter under the Force Majeure Clause. For the lapses of the Opposite Party, the Complainant cannot be made to suffer. Hence, it cannot be assumed that the actual cause of delay was such as has been stated by the Opposite Party.
14. Thus as discussed above the Opposite Party even after receiving huge money from the complainant failed to initiate the constructions in time which forced the complainant to stop the payment of remaining meager amount but the Opposite Party arbitrarily cancelled the allotment by resorting to  one sided clauses of the agreement. It is a common sense that a prudent person who had already deposited a huge amount of Rs.67,38,474/- out of the total price of Rs.76,90,000/-  of the unit, would never back out from payment of remaining meager amount without any reason.  The complainant only stopped the payment as the Opposite Party failed to initiate the construction within time. Thus the complainant could not have continued to pay blindly when it is in his knowledge that the Opposite Party is not in a position to handover the unit in question within stipulated period. This fact is clearly corroborated from the record that the Opposite Party only applied for occupancy certificate in the year 2019 i.e. after almost more than 2 and half year of actual date of handing over of possession. The Hon’ble Supreme Court of India in Civil Appeal No.3533-3534 of 2017 – Fortune Infrastructure vs. Trevor’D Lima, decided on 12.3.2018 has observed that a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of the amount paid by them, along with the compensation. Thus there is clear cut deficiency on the part of the Opposite Party and the complainant rightly sought refund of the amount paid by him.   
15. In view of the above discussion, the present consumer complaint succeeds and the same is accordingly allowed. OPs are directed as under:-

1. to refund deposited amount of Rs.67,38,474/- to the complainant with interest @ 9% per annum from the date of last deposit made till realization.   
2. to pay 1.00 lakh to the complainant as compensation for causing mental agony and harassment to him;
3. to pay 50,000/- to the complainant as costs of litigation.

16.      This order be complied with by the OPs within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above
17.      Certified copies of this order be sent to the Party free of charge. The file be consigned

			Sd/-
			[Pawanjit Singh]
			President
			Sd/-
			[Surjeet Kaur] Member
mp