Avnish Kumar Complainant(S) v. Sare Gurugram Private Limited Opp. Party(S).

MRS. M. SHREESHA, MEMBER This Complaint is filed under Section 21 (a) (i) of the Consumer Protection Act, 1986 (in short

the Act) against M/s. M/s. Sare Gurugram Private Limited (hereinafter referred to as the Developer), seeking the following reliefs: Direct the Opposite Party for an immediate 100% refund of the total amount of INR. 1,00,27,018/- (Rupees One Crore Twenty Seven Thousand and Eighteen only) paid by the Complainant, along with a penal interest of 18% per annum from the date of receipt of the payments by the Opposite Party; Direct the Opposite Party to pay compensation of Rs.5,00,000/- (Rupees Five Lakhs Only) to the Complainant for mental agony, harassment, discomfort and undue hardships caused to the Complainant as a result of the above acts and omissions on the part of the Opposite Party; Direct the Opposite Party to pay a sum of Rs.1,00,000/- (Rupees One Lakh Only) to the Complainant as a whole, towards litigation costs;

4. That any other and further relief in favour of the Complainant (s) as the Honble Commission may deem fit and proper in the fact and circumstances of the case.

2. The brief facts as set out in the Complaint are that the representatives of the Developer approached the Complainant and persuaded him to book a flat in their project Crescent ParC at Village Wazirpur and Mewka, in Sector-92, Gurgaon, by promising various amenities like: green area, clean environment, shopping arcade, school, club house, medical facilities, ample water supply, basement/open parking, 24 hour security, power backup and landscaped greens, club swimming pools, dining lounge, banquet hall, lawn, cafeteria, gym, squash court, library, restrobar, lawn tennis court, amphitheater etc. It was also assured that after the completion of construction, possession would be delivered within 36 months. Lured by these assurances and promises made, the Complainant has booked a Flat for residential purpose on 19.07.2012 by paying a booking amount of 8,72,933/-. The Developer issued the Provisional Allotment Letter dated 03.08.2012 to the Complainant, whereby the Complainant was allotted Flat No. P051003,

10 Floor, Tower No. P05, the Petioles Block admeasuring 2226 sq. ft.th

3. The Flat Buyers Agreement was executed between the Developer and the Complainant on 19.09.2012 and as per Clause 3.3 of the Agreement, the possession of the unit was to be delivered within 36 months from the date of commencement of construction with an additional period of 6 months as grace period. The basic price of the unit as per the Payment Plan of the Agreement was 99,84,540/-, including car parking charges, EDC/IDC, Club membership, FFC Power backup, EEC and PLC but excluding taxes. The Complainant averred that some of the clauses are totally unreasonable and one sided and arbitrary. It is pleaded that as per Clause 3.3 of the Flat Buyers Agreement, in case the Developer was not able to hand over the possession to the Complainant within the stipulated period, the Developer was liable to pay compensation, at the rate of 5/-per sq. ft. for the period of delay, but, as per clause 2.3 of the Flat Buyers Agreement, if there was any delay in payment of any amount due to the Allottees, the Developer would charge interest @ 18% p.a.

4. It is averred that the Complainant made all the payments s as and when demanded by the Developer and by 14.07.2017 the Complainant had paid an amount of 1,00,27,018/-. It is pleaded that the Complainant has availed a loan from ICICI Bank on 24.11.2012 to make the payments of the demands made by the Developer. Later the Home Loan was transferred to State Bank of India and the Complainant is paying regular EMIs for the same.

5. It is averred that the construction of the project was started on 29.10.2012 as can be seen from the Account Statement dated 28.02.2018, therefore, the possession of the Agreement was to be offered by 29.04.2016, including the grace period. It is further averred that despite having paid substantial amounts by the Complainant the Developer failed to deliver the possession of the Flat on time i.e. by 29.04.2016 and the Complainant had to live in a rented accommodation as he had booked the subject flat for residential purpose of his family.

6. It is averred that the Developer has miserably failed to comply with the contractual obligations of handing over possession of the subject Flat, and did not complete the construction work, which amounts to deficiency of service on the part of the Developer and as the Complainant has suffered a lot of mental agony and financial strain at the hands of the Developer, he is entitled to be adequately compensated.

7. It is pleaded that as per clause 2.3 of the Agreement the Developer was liable to charge interest @ 18% p.a. in case of any delay in payment of demands. Therefore applying the same parity, the Developer is also liable to pay the same interest rate i.e. 18% p.a. on the amount deposited. Hence, the Complainant approached this Commission seeking the aforenoted reliefs.

8. The Developer filed its reply admitting to the booking of a Flat, the Allotment Letter and the execution of the Flat Buyers Agreements dated 19.09.2012. It is averred that as per Clause 3.3 of the Flat Buyers Agreements, possession is to be handed over within 36 months from the date of commencement of construction with an extension of 6 months. It is admitted that the construction began in October, 2012. It is averred that in terms of Clause 22.2 of the Flat Buyers Agreement this Commission has no jurisdiction to entertain the instant Complaint as the said clause specifies that the courts at Gurgaon and the High Court of Punjab and Haryana at Chandigarh alone shall have jurisdiction in all matters arising out of the Flat Buyers Agreement dated 19.09.2012; that the Complainant is not a Consumer as defined under Section 2 (1) (d) of the Act as he has not booked the subject Flat for self use or for use of his family but for commercial/ resale purpose with a view to reap benefits from the appreciation. It is denied that the Complainant is residing in a rented accommodation. It is averred that the Complainant has a permanent residence at Vikaspuri, New Delhi and he has filed a fabricated Rent Agreement. It is further stated that the Complainant has signed the Agreement after fully analyzing the terms of the Agreement and both the parties are bound by the terms and now cannot demand refund of the amount paid with interest and compensation. All the other averments made in the Complaint were denied and the Developer seeks dismissal of the Complaint with costs.

9. The Complainant filed his Affidavit by way of Evidence and marked Exhibit CW1/1 ( copy of the detail about the Opposite Party), CW1/2 (Copy of the Allotment Letter), CW1/3 (Copy of the Flat Buyers Agreement), CW1/4 (Copies of the Rent Agreements dated 08.03.2016 and 06.11.2017), CW1/5 (Copy of the payment schedule dated 13.04.2018 issued by ICICI Bank), CW1/6 (Copy of the Statement of Account issued by the State Bank of India) and CW1/7 (Copy of the Account Statement Cum Tax Invoice) on his behalf.

10. The Developer filed its Affidavit by way of Evidence and marked Annexure - OP/1 (copy of the Application Form), Annexure - OP/2 (copy of the Allotment Letter), Annexure - OP/3 (copy of the Flat Buyers Agreement), Annexure - OP/4 (Copies of the reminders dated 21.11.2012 and 03.12.2012 issued by the Developer), Annexure - OP/5 (copy of the order dated 31.07.2012 passed by the Punjab & Haryana High Court), Annexure - OP/6 (copy of the judgement dated 27.02.2012 passed by the Honble Supreme Court), Annexure - OP/7 (copy of the Occupation Certificate issued for Tower Nos. T1 to T5) and Annexure - OP/8 and 9 (copy of the Application Form for issuance for Occupancy Certificate) on their behalf.

11. Heard counsel for both sides at length.

12. The facts not in dispute are that the Complainant paid an amount of 1,00,27,018/- towards allotted Flat No. P051003, 10 Floor, Tower No. P05, the Petioles Block admeasuring 2226 sq.th ft., in the Project Crescent ParC at Village Wazirpur and Mewka, in Sector-92, Gurgaon; that the Complainant obtained a Home Loan; that as per Clause 3.3 the possession was to be offered within 36 months from the date of commencement of construction plus six months grace period and that the construction was started in October 2012. Clause 3.3 of the Agreement reads as follows:

The Company shall endeavor to offer possession of the Said Flat within a period of thirty six (36) months from the date of commencement of construction and subject to timely payment by the Allottee towards the basic sale price and other charges, as The time frame for possession provideddemanded in terms of this Agreement. hereinabove is tentative and shall be subject to force majeure and timely and prompt payment of all installments and completion of formalities required and the timely receipt of all approvals from the concerned authorities. The Company shall be entitled to six (6) months additional period in the event there is a delay in handing over possession. However, in case of delay beyond a period of six (6) months and such delay is attributable to the Company, the Company shall be liable to pay compensation @ Rs. 5.00/ (Rs. Five) per sq. ft. per month of the Super Area of the Said Flat for the period of further delay.

13. The contention of the learned Counsel for the Developer that the Complainant is not a Consumer as he has purchased the said unit for commercial purpose is not substantiated by any documentary evidence and is completely unsustainable in the light of the judgement of this Commission in wherein this Commission Kavita Ahuja vs. Shipra Estates I (2016) CPJ 31 (NC), has laid down the principle that the onus of establishing that the Complainant was dealing in real estate is on the Opposite Parties, which in the instant case they have failed to discharge or file any documentary evidence to establish that the Complainant is an Investor and not a Consumer, therefore we are of the considered view that the Complainant is a Consumer as defined under Section 2 (1)(d) of the Act.

14. Learned Counsel appearing for the Developer vehemently argued that Clause 3.3 specifies that the delivery of possession is subject to and that there were severalforce majeure conditions reasons and circumstances beyond the control of the Developer such as interim orders of the Honble Punjab and Haryana High Court, whereby ground water extraction was banned in Gurgaon and there was shortage of construction material and labour. All these aforenoted reasons do not fall within the ambit of reasons beyond their control and cannot be construed to be any substantial reason and definitely not a force majeure condition.

15. Learned Counsel for the Developer at the time of final hearing informed the Bench that the Developer has applied for an Occupation Certificate on 18.01.2019 and in all likelihood the possession of the unit would be handed over in a short period of time after obtaining the Occupation Certificate. Even in their Written Version there is no specific date given for the handing over of possession of the subject flats. Taking into consideration the fact that the time for completion of construction ended in April, 2016 and that the Developer admitted in the Written Version that the construction started in October, 2012, and further that the Developer is unable to give any specified date by which time they can handover the legal possession with the Occupation Certificate, we are of the view that the decision of the Honble Supreme Court in Kolkata West wherein the Honble International City Pvt. Ltd. Vs. Devasis Rudra, II (2019) CPJ 29 (SC), Apex Court has laid down that the flat purchaser cannot be made to wait indefinitely for delivery of possession, squarely applies to the facts of this case.

16. The contention of the learned Counsel for Developer that as per Clause 22.2 of the Flat Buyers Agreement this Commission has no jurisdiction to entertain the instant Complaint is untenable as this Commission has the jurisdiction to entertain the Complaint as the amount involved exceeds one crore. Section 3 of the Act specifies that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.

17. We find force in the contention of the learned Counsel for the Complainants that some of the Clauses of the Flat Buyers Agreement are one-sided and arbitrary. It is seen from the record that Clause 3.3 of the Agreement refers to the compensation to be paid by the Developer at 5/- per sq. ft. per month on the super area for any delay in offering possession of the Flat. These charges are further to be paid only the stipulated period of 36 months plus grace period has lapsed.after Learned Counsel for the Complainant argued that this meagre sum of 5/- per sq. ft. for every month of delay amounts to approximately 1.3% rate of interest per annum, whereas the Developer as per Clause 2.3 is charging interest @ 18% p.a. on any amounts delayed but due and payable by the purchasers. At this juncture, we find it a fit case to place reliance on the principle laid down by the Honble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan , wherein the Honble Apex Court had examined such Clauses Raghavan, II (2009) CPJ 34 (SC) present in the Builder Buyer Agreements and has observed that such one-sided Clauses amount to unfair trade practice. Having regard to the the facts and circumstances of the case we have no hesitation to hold that Clause 2.3 and 3.3 of the subject Flat Buyers Agreement falls within the definition of unfair trade practice as defined under Section 2 (r) of the Act.

18. Keeping in view the aforenoted reasons, we are of the considered opinion that there is deficiency of service on behalf of the Developer and the Complainant is entitled for refund of the amount paid with interest @ 12% p.a. and costs of 25,000/-. It is relevant to note that this interest @ 12% p.a. is being awarded to meet the ends of justice specially keeping in view the submission of the learned Counsel appearing for the Complainant that the Complainant has obtained a housing loan and is paying EMIs with interest @ 10.5% to 10.75% to ICICI Bank and thereafter @ 8.5% to SBI; the Complainant has to live in a rented accommodation due to failure of delivery of possession within the stipulated time; the loss of opportunity of the Complainant as had the Complainant invested the same amount of money elsewhere or if he had purchased the house in another project, he would have had a better opportunity of exercising his options and could fulfil his dream of owning a house and finally taking into consideration the principal of restitutio in which specifies that the aggrieved person should necessarily be compensated for theintegrum financial loss suffered due to the event and get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong. Hence, we are of the view that awarding interest @ 12% p.a. is not only reasonable but also justified. It is pertinent to mention that no additional amounts are being awarded under the head of Compensation as this interest rate @ 12% p.a. is being awarded by way of damages and compensation. We rely on the recent judgement of the Honble Supreme Court in DLF Homes Panchkula Pvt. Ltd Vs. D.S. , wherein it is observed that when interest is awarded by way of Dhanda , II (2019) CPJ 117 (SC) damages awarding additional compensation is unjustified.

19. In the result, this Complaint is allowed in part directing the Developer to refund the principal amount with interest @ 12% p.a. from the respective dates of deposit till the date of realisation together with costs of 25,000/-. This amount is directed to be paid within four weeks from the date of receipt of a copy of this order, failing which, the amount shall attract interest @ 14% p.a. for the same period. ......................J R.K. AGRAWAL PRESIDENT ...................... M. SHREESHA MEMBER