JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL) The complainants who are husband and wife booked a residential flat with the OP in a project namely Esfera who the OP was to develop in Sector-37-C of Gurgaon. On allotment of a residential flat in the aforesaid project to them, they executed an agreement with the OP on 06.09.2013 incorporating their respective obligations in respect of the said allotment. As per Clause-9.3 of the agreement, the construction was to be completed within a period of 3 years unless there was delay or failure due to reasons mentioned in Clause-11.1, 11.2, 11.3 and Clause-41 of the agreement. The sale price of the apartment was agreed at Rs.61,97,625/-. The grievance of the complainants is that the possession was not offered to them and the construction was not completed despite the booking having been made by way back 08.09.2011 and the time period for delivery of the possession having expired on 06.03.2017. The complainants are, therefore, before this Commission seeking refund of the amount which they paid to the OP alongwith compensation etc. The complaint has been instituted through the authorised representative of the complainants Mr.Nitin Saxena who claims to be the President of an organisation namely All India Consumer Education Society (Regd.).
2. The consumer complaint is resisted by the OP on several grounds. It is, however, an admitted position that those grounds have been rejected by this Commission in a number of consumer complaints instituted against the OP, including C.C. No.3072/2017Yogesh Maan & Anr. Vs. M/s. Imperia Structures Ltd. decided on 29.07.2019. Such grievances therefore need not be resisted.
3. The decision of this Commission in Yogesh Maan & Anr. Vs. M/s. Imperia Structures Ltd. (Supra) to the extent it is relevant reads as under:
3. The Developer filed their Written Version, stating that thisinter alia, Commission does not have pecuniary/territorial jurisdiction to entertain the Complaint. The Complaint pertains to a commercial transaction and should be referred to an Arbitrator. Flat No. D-1604 in the project in question had been allotted to the Complainants as per terms and conditions of the Agreement executed between the parties and the consideration agreed to be paid by the Complainants to the Developer was Rs.74,31,275/- as per the construction linked plan. The construction of the project was to be completed within a period of three and half years from the date of execution of the agreement unless there was delay/failure due to reasons beyond the control of the Company, including Force Majeure events, compliance of new rules, regulations, orders or notifications made/issued by the Government or any other authorities with respect to construction at the project site. All other charges other than Basic Sale Price were informed to the Complainants at the time of submission of the application form and the charges towards Car Parking, PLC, Club Membership etc. form part of the consideration of the flat. The value of the flat has appreciated since the date of booking. The Complainants despite alleged delay in the project did not exercise the option to cancel the booking under Clause 11.4 of the Agreement and are taking the benefit of appreciation on cost of the flat. The delay in the completion of the project was on account of various orders passed by National Green Tribunal, De-monetization, delay in the approvals/sanctions, non-payment of dues by the allottees, contractual labour strikes, and delay in providing external development works by the government authorities etc.
9. The facts not in dispute are that the Complainants entered into a Builder Buyer Agreement with the Developer in the year 2013 and paid a sum of Rs.62,06,167/- out of the total sale consideration of Rs.73,31,275/-, but admittedly the subject apartment is still not completed though the stipulated period of 42 months from the date of execution of the agreement, entered into between the parties, for handing over possession of the apartment booked had expired long back.
10. The Developer in their Affidavit of evidence submitted that the Complainants are not consumers as the subject flat was purchased for commercial purpose. This Commission in FA No. 530 of 2015 (Sai Everest Developers & Anr. Vs. Harbans has laid down the principle of law that when the plea that the said flat hasSingh) been purchased for commercial purpose is raised by the Developer, the onus of proof shifts to the Developer to establish whether the Complainant has purchased the subject flat for trading/dealing in real estate. In the instant case there is no documentary evidence to establish that the Developer has discharged this onus. In the absence of any evidence to substantiate this contention, we are of the considered view that the Complainants are consumers as defined u/s 2(1)(d) of the Consumer Protection Act, 1986. We are also of the view that this Commission has the Territorial Jurisdiction to entertain this Complaint and the plea raised by the Developer regarding Arbitration has already been settled by the decision of a Larger Bench of this Commission in Consumer Complaint No. 701 of 2015, Aftab which has also been recentlySingh Vs. EMAR MGF Land Limited & Anr., affirmed by the Honble Apex Court. Further, in view of Larger Bench decision of this Commission in Ambrish Kumar Shukla Vs. Ferrous Infrastructure Pvt. Ltd. this Commission also has the pecuniary jurisdiction toI (2017) CPJ 1 (NC), entertain the Complaint.
11. It is pertinent to note that the Developer has not filed any evidence to support his contention that the delay occurred due to events. In factforce majeure demonetization, non-availability of water and contractual labour, delay in notifying approvals etc. cannot be construed to be events from any angle. force majeure
15. Keeping in view the admitted incomplete construction and considering the stipulation provided in Clause 11.4, this Complaint is partly allowed, directing the Developer to refund the amount deposited with simple interest @ 9% p.a. from the respective dates of deposits till the date of realization together with costs of 50,000/- to be paid to the Complainants.
4. It is also pointed out by the learned counsel for the OP that the complaint is not signed by the complainants though it is signed by the authorised representative. The said omission, in my view is supported by an affidavit and he has further filed an affidavit by way of evidence in support of the complaint.
5. The learned counsel for the OP submits that RERA has granted time for delivery till December, 2020 to the OP to complete the project and therefore, the complainants should wait till December, 2020 instead of seeking refund of the amount which they paid to the OP with compensation.
6. In my view, the irrespective of the time granted by RERA to the developer the complainants cannot be made to wait for a unreasonable for a long period for possession of the flat allotted to them. The possession ought to have been delivered to them by 06.03.2017 even if the time period for delivery of possession is completed from the date of agreement though submission of the complainants that the developer having delayed the execution for about two years, the time period for delivery of possession should be computed from the date of booking and not from the date of agreement. The complainants cannot be made to wait for one more year for delivery of possession, particularly when there is no guarantee that the OP will be in a position to deliver possession of the allotted flat to them even by December, 2020. A reference in this regard can be made to the decision of the Honble Supreme Court in Civil Appeal No. 12238 of 2018 Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan & Connected Matter decided on 02.04.2019 and the decision of the Honble Supreme Court in Civil Appeal No. 3182 of 2019 Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra decided on 25.03.2019. In the possession was offered to the complainant/appellant duringDevasis Rudra (supra), the pendency of the complaint before the State Commission and it was contended that the said builder having made substantial investment in terms of the agreement, a direction for refund was not warranted. In the Consumer Complaint filed in Devasis Rudra (supra), the complainant/appellant had prayed for possession of the house and in the alternative, for refund of the amount paid by him to the developer. In view of the said prayer made in the Consumer Complaint, it was argued on behalf of the builder that he should be made to accept possession of the allotted house and refund and not be allowed to him. The complainant, on the other hand, contended that at the time the Consumer Complaint was filed, he was ready and willing to accept the possession, but seven years having elapsed, he was not more willing to accept possession. Allowing the appeal, the Honble Supreme Court inter-alia held as under: It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years is beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund.
7. In the builder submitted beforePioneer Urban Land & Infrastructure Ltd. (supra), this Commission itself that since the construction of the apartment was complete and Occupancy Certificate had been obtained, the flat purchaser must be directed to accept the possession instead of directing refund of the amount deposited. In that case, there was a delay of about three years in offering possession and the flat purchaser had submitted that he was not interested in taking possession after delay of about three years. He also stated that he had taken an alternative property in Gurgaon. It was also submitted on behalf of the builder that this Commission had erred in granting interest at the rate of 10.7% per annum to the complainant when the agreement between the parties provided for payment of interest @ 6% per annum in case of delay in handing over possession. Rejecting all the contentions advanced by the builder, the Honble Supreme Court inter-alia held as under: 6.1. In the present case, admittedly the Appellant Builder obtained the Occupancy Certificate almost 2 years after the date stipulated in the Apartment Buyers Agreement. As a consequence, there was a failure to hand over possession of the flat to the Respondent Flat Purchaser within a reasonable period. The Occupancy Certificate was obtained after a delay of more than 2 years on 28.08.2018 during the pendency of the proceedings before the National Commission. In Lucknow Development Authority v. M.K Gupta.. Gupta,2 this Court held that when a person hires the services of a builder, or a contractor, for the construction of a house or a flat, and the same is for a consideration, it is a service as defined by Section 2 (o) of the Consumer Protection Act, 1986. The inordinate delay in handing over possession of the flat clearly amounts to deficiency of service. In Fortune Infrastructure & Anr. v. Trevor DLima & Ors.,3 this Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation. 6.2. The Respondent Flat Purchaser has made out a clear case of deficiency of service on the part of the Appellant Builder. The Respondent Flat Purchaser was justified in terminating the Apartment Buyers Agreement by filing the Consumer Complaint, and cannot be compelled to accept the possession whenever it is offered by the Builder. The Respondent Purchaser was legally entitled to seek refund of the money deposited by him along with appropriate compensation. 6.3. The National Commission in the Impugned Order dated 23.10.2018 held that the Clauses relied upon by the Builder were wholly one-sided, unfair and unreasonable, and could not be relied upon. The Law Commission of India in its 199th Report, addressed the issue of Unfair (Procedural & Substantive) Terms in Contract. The Law Commission inter-alia recommended that a legislation be enacted to counter such unfair terms in contracts. In the draft legislation provided in the Report, it was stated that : A contract or a term thereof is substantively unfair if such contract or the term thereof is in itself harsh, oppressive or unconscionable to one of the parties. 6.6. Section 2 (r) of the Consumer Protection Act, 1986 defines unfair trade practices in the following words : unfair trade practice means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice , and includes any of the practices enumerated therein. The provision is illustrative, and not exhaustive. 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 08.05.2012 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.
7. In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyers Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent Flat Purchaser. The Appellant Builder could not seek to bind the Respondent with such one-sided contractual terms. In Bangalore Development Authority v. Syndicate Bank, a Coordinate Bench of this Court held that when possession of the allotted plot/flat/house is not delivered within the specified time, the allottee is entitled to a refund of the amount paid, with reasonable Interest thereon from the date of payment till the date of refund.
8. The Authorised Representative of the complainants states on instructions that the complainants are pressing for refund of the principal amount paid by them to the OP alongwith the interest @ 9% as was awarded by this Commission in Yogesh Maan & Anr. Vs. M/s. Imperia Structures Ltd., filed through the very same authorised representative Mr. Nitin Saxena.
9. On the principle of parity and in view of the statement made by the Authorised Representative of the complainant, the consumer complaint is disposed of in terms of the following directions:
(i) The OP shall refund the entire principal amount of Rs.55,93,385/- to the complainants alongwith simple interest @ 9% from the date of each payment till the date of refund together with the cost of Rs.50,000/-.
(ii) If this direction is not complied within four weeks from the date of receipt of the copy of this order, the principal amount shall carry interest @ 12% p.a. ......................J
V.K. JAIN PRESIDING MEMBER
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