This complaint has been filed by the complainants, Pratibha Bhalla and another against the opposite party, Vatika Ltd. The brief facts of the case are that complainants booked a 4 BHK flat in OP Housing Project namely “Sovereign INXT” at Sector-82, Gurgaon, Haryana. The total consideration of the flat was Rs.2,57,00,050/- apart from the other charges. Flat No. B-302 was allotted to the complainants and Builder Buyer Agreement was executed on 11.6.2013. As per one of the clauses of the agreement, within 4 years 6 months possession of the flat was to be delivered from the date of execution. It was alleged that these terms were different from the terms of the application form. On 6.6.2016, OP agreed to provide an alternative flat in the project “INXT” for a total sale consideration of Rs.1,13,00,000/- and the same was accepted by the complainants. They were allotted unit No.21 at H-11 Street which was to be delivered by 15.1.2017 and copy of the Builder Buyer Agreement was dispatched at the postal address of the complainants. It was found by the complainant that in the Builder Buyer Agreement there was no provision of servant room. After some correspondence etc. , OP finally admitted that there was no provision of servant room in the flat allotted to the complainants. Accordingly, the complainant, filed the present complaint for refund of the amount of Rs.64,32,087.87 paid by the complainants to the OP. 2. The OP resisted the complaint by filing the written statement and stated that as the complainants were not ready to wait till the completion of the booked flat as per the Builder Buyer Agreement, the OP gave them various choices of the flats which could be handed over much earlier. The complainants agreed to take Flat No. 21 at H-11 for a consideration of Rs.1,13,00,000/-. There was no requirement of the complainants for a servant room, however on the pretext of the non-availability of servant room, the complainants are seeking refund. The refund can only be allowed as per the conditions of the Builder Buyer Agreement. on these grounds, it was requested to dismiss the complaint. 3. Both sides adduced their evidence by way of affidavits. 4. Heard the learned counsel for the parties and perused the record. 5. Learned counsel for the complainants stated that though the original Flat No. 302, INXT, Sector-82, Gurgaon, a builder buyer agreement was executed on 11.6.2013, but when complainants found that there was no progress in construction in respect of the flat till 2015, the OP gave 2-3 options and the complainants accepted their offer for Unit No.21 at H-11 at a cost of Rs.1,13,00,000/- . In the application for the original flat, it is clearly mentioned that booking was for “4 BHK + SR” and the period of completion of the construction and for handing over the possession was mentioned as 36 months. However, when the builder buyer agreement was executed, there was a mention of 4 years 6 months for completion of the project and for handing over the said flat. As the complainants were residing at Singapore at that time and wanted to move to India urgently, the OP agreed to provide other Flat No.21 at H-11 at a lower price of Rs.1,13,00,000/-. However, when the builder buyer agreement for the second unit was sent to the complainants, it was realized that there was no servant room in the said flat whereas that was the requirement of the complainants. The complainants informed to the representative of the OP vide e-mail dated 12.12.2016 accordingly. After lot of protracted correspondence with the representative of the OP it was finally clarified by the OP that there was no provision of servant room in the second unit i.e. Flat No.21 at H-11 allotted to the complainants. The learned counsel argued that it would be clear form the first booking which was for (4 BHK + SR), that the complainants required a servant room. Even though, the flat was changed and another Flat No.21 at H-11 was allotted to the complainants at a different price, the requirement of the complainants about servant room remained the same, whereas the OP clarified that there was no provision of servant room in the said flat. Then, there was no point in pursuing with the purchase of the said flat because it would not have served the purpose of the complainants and therefore, the complainants want to withdraw from the project by seeking the refund. 6. It was further argued by the learned counsel for the complainants that the OP has taken an objection that this Commission does not have the pecuniary jurisdiction to decide the present complaint. Learned counsel mentioned that the larger Bench of this Commission in Ambrish Kumar Shukla & Ors. vs. Ferrous Infrastructure Pvt. Ltd., Consumer Complaint No.97 of 2016 decided on 7.10.2016 has held that the total consideration alongwith compensation demanded shall decide the pecuniary jurisdiction of a consumer forum. The total consideration for the original flat was Rs.2,57,00,050/- and even for the second allotted flat it was Rs.1,13,00,000/-. Clearly the consideration in the present case is more than Rs.1 crore and therefore, this Commission will have the jurisdiction to decide the present complaint. Even if only the amount paid by the complainants of Rs.64,32,087.87 is taken into consideration, the refund alongwith 18% p.a. interest on this amount will definitely cross Rs.1 crore and therefore, even in this situation also, this Commission will have the jurisdiction to decide the complaint. 7. It was further pointed out by the learned counsel that the OP has taken objection that e-mails cannot be relied upon as evidence. OP has not said that these e-mails have not been sent by their employees. E-mail is an accepted channel of communication these days and they are recognized all over the world and therefore, there is no substance in the objection of the OP. 8. Learned counsel for the complainants further argued that even if the period is calculated from the signing of the first Builder Buyer Agreement in July, 2013, the possession would have become due by early 2018. However, there is no offer of possession from the OP. Even the OP was not ready to deliver the second allotted flat in time promised by the OP and therefore, the complainants have full right to demand refund of the amount paid to the OP and particularly, when the main requirement of the complainants of servant room is not being met in the flat allotted. 9. On the other hand, learned counsel for the OP stated that the present complaint is not maintainable before this Commission. The complainants have demanded 18% p.a. interest on the amount paid whereas this Commission has been ordering 8-10% p.a. interest on the deposited amount in its recent judgments. If the relief sought is calculated at this interest rate, the total refund falls short of Rs.1 crore and therefore, this Commission does not have the pecuniary jurisdiction to decide the present complaint. 10. It was further argued by learned counsel for the OP that e-mails cannot be relied upon as evidence and this point has been raised in para -23 of the written statement filed by the OP. 11. The complaint has been filed prematurely as the builder buyer agreement was signed with the complainants in July, 2013 and the possession was due only by April, 2018 and the complaint has been filed on 3rd March, 2017. The claim of refund would become due only after the date of due possession expired and therefore the complaint has been prematurely filed and needs to be dismissed on this count alone as not being maintainable. 12. The complainants have defaulted in payment and have paid only 25% of the original cost of the flat. On the request of the complainants, the OP facilitated the allotment of another flat for a lesser price, however, the complainants have even refused that unit on the pretext that flat is not having a servant room. It is very obvious that the second unit allotted to the complainants is only 3 BHK flat and for roughly less than half the price of the original booked flat. Obviously, this flat will not have a servant room. The complainants themselves have chosen this flat out of various options given by the OP to the complainants. Now the complainants cannot deny the acceptance of this flat and cannot ask for refund and that too on a flimsy ground that this flat is not having servant room. In fact, the complainants had sent all his requirement by e-mail dated 6.12.2016 but there is no mention of requirement of servant room in this e-mail. It was stated by the learned counsel that in the application form for the second allotted unit, it only mentions 3 BHK and there is no mention of servant room in this application. It was clarified that the servant room was only available in the flat of ground floor and no servant room was available on the first and above floors. Thus, the complainants very well knew that the second allotted unit will not have a servant room and still they opted for the same. Now, the complainants cannot take a stand that they want refund because the allotted unit does not have a servant room. 13. Learned counsel for the OP objected to the complainants being consumers and stated that the complainants invested in the hope of increase in price. However, the real estate sector being in depression, the prices are even falling and therefore, the complainants have decided to get the refund. The allotted unit to the complainants is lying vacant and is ready for possession. In fact, the OP is spending money to maintain this flat and OP should be allowed to get compensation from the complainants in this regard. It was further stated by the learned counsel that if the money is to be refunded, it should be refunded as per conditions of the builder buyer agreement mutually agreed between the parties wherein the OP is entitled to deduction of earnest money @ 10% of the total consideration of the property. 14. I have given a thoughtful consideration to the arguments advanced by both the parties and have examined the record. 15. So far as the pecuniary jurisdiction is concerned, the larger Bench of this Commission in Ambrish Kumar Shukla & Ors. vs. Ferrous Infrastructure Pvt. Ltd. (supra) has given observation that the total consideration alongwith compensation demanded shall be considered for deciding the pecuniary jurisdiction by a consumer forum. Even if a view is taken that in cases of refund, the value of goods or service is the amount of refund, then also interest @ 18% per annum is to be considered for deciding the pecuniary jurisdiction as per the judgment of this Commission in Gaurav Aneja & anr. Vs. Supertech Limited, II (2018) CPJ 365 (NC) wherein this Commission has observed that :- “3. In such cases, neither this Commission nor the Hon’ble Supreme Court has awarded compensation in the form of interest at a rate higher than 18% per annum. Therefore, a claim for a higher interest would be an exaggerated and inflated claim without any legal basis and cannot be taken into consideration for the purpose of determining the pecuniary jurisdiction in terms of Section 21 of the Consumer Protection Act. If compensation in the form of interest @ 18% per annum is awarded, it will cover the losses of all kind, including the financial loss and distress and mental agony caused to the flat buyer, since the financial loss would not be more than 10-11% per annum, considering the rates of interest prevailing during the relevant period.” 16. Therefore, for considering the pecuniary jurisdiction, the interest @ 18% p.a. on the amount of refund needs to be considered though the Commission may pass the final order at a different rate of interest. From this consideration, this Commission has the pecuniary jurisdiction to decide the present complaint. 17. It is true that the original booking was made for “4 BHK + SR”, however, if the complainants agreed for the second unit being Flat No.21 at H-11 , they have agreed after considering various options given by the OP. The complainants have raised a dispute regarding the servant room whereas the complainants have not shown any letter written to the OP that the provision of servant room was essential requirement for them. Obviously, the second allotment was for 3BHK flat at a much lower cost of Rs.1,13,00,000/-, whereas the original booking was for Rs.2,57,00,050/-. It was obvious that the second allotted unit will not be as big as the first one and even may not have the provision of servant room. Thus, assertion of the complainants that they are forced to ask for refund because the second allotted flat does not have the servant room is just a ploy to justify their demand for refund. However, on the other hand, it is also true that in the original application the period of construction was mentioned as only 36 months, whereas in the builder buyer agreement executed in June, 2013, the same period has been extended for four years and six months. In this regard, the argument of the learned counsel for the OP that the builder buyer agreement shall prevail because it is a contract and has been signed by both the parties, cannot be accepted because the complainants made the payments as per the provisions given in the application form. Obviously, after making payment of roughly Rs.64 lakhs, the complainants becomes a weak party in signing the builder buyer agreement and OP has an upper hand. Thus, clearly this is an unfair trade practice followed by the OP. Even if we go by the first builder buyer agreement, the due date of possession has already expired. Thus, the argument of the learned counsel for the OP that the complaint is premature is not now valid and the case needs to be decided on merits. Apart from the unfair trade practice followed by the OP in mentioning different periods of construction and handing over possession in the application form and in the builder buyer agreement, the OP has not been able to issue the possession letter for either of the units so far. Thus, clearly there is a delay in handing over the possession as well and therefore, the complainants are entitled for refund. 18. As both the parties have agreed for the second unit No. 21 at H-11 for consideration of Rs.1,13,00,000/- and if the complainants are seeking refund prematurely even without waiting for the period of construction being over, the OP would be entitled to take the earnest money as per the builder buyer agreement. Though no builder buyer agreement has been signed for the second unit, but it is an accepted fact that both the parties agreed for this unit and therefore, the earnest money shall apply to the cost of second unit, namely, No. 21 at H-11 which is costing Rs.1,13,00,000/-. As per the builder buyer agreement, only 10% is to be deducted as earnest money and therefore, the OP would be entitled to deduct Rs.11,30,000/-. from the amount of Rs.64,32,088/- required to be refunded. Therefore the OP will be liable to pay Rs.53,02,088/- alongwith interest @ 10% p.a. from the date of deposit till actual payment. The interest is being allowed due to the fact that the money remained with the OP and as per the judgment of Hon’ble Supreme Court in Alok Shanker Pandey Vs. Union of India & Ors., II (2007) CPJ 3 (SC), the complainant would be entitled to get interest. The observation of the Hon’ble Supreme court in this judgment is mentioned below: “9. It may be mentioned that there is misconception about interest. Interest is not a penalty or punishment at all, but it is the normal accretion on capital. For example if A had to pay B a certain amount, say 10 years ago, but he offers that amount to him today, then he has pocketed the interest on the principal amount. Had A paid that amount to B 10 years ago, B would have invested that amount somewhere and earned interest thereon, but instead of that A has kept that amount with himself and earned interest on it for this period. Hence equity demands that A should not only pay back the principal amount but also the interest thereon to B.” 19. Based on the above discussion, the complaint is partly allowed and the OP is directed to refund an amount of Rs.53,02,088/- to the complainants alongwith interest @ 10% p.a. from the date of respective deposits till the actual payment. Time granted for compliance of this order is 60 days from the date of service/receipt of order by the OP. |
