DEEPAK VERMA & ANR. v. ANSAL CROWN INFRABUILD PVT. LTD.

dates as per demand of the Opposite Party Developer. Despite that the Opposite Party Developer miserably failed to deliver the possession of the Flat within stipulated period. Whenever the Complainants raised queries with the Opposite Party Developer regarding handing over the possession, the Developer neither provided any specific date for the delivery of the possession nor refunded the amount deposited by the Complainants. They have lost trust on the Opposite Party Developer and are no longer interested in having possession of the Flat. Alleging deficiency in service and Unfair Trade Practice on the part of the Opposite Party Developer, the Complainants has filed the present Consumer Complaint with the following prayer:

a) Grant a sum of Rs.1,24,35,523/- (principal amount of Rs.58,48,984/- along with compensation in the form of interest amounting to Rs.65,86,539/- at the rate of 18 % per annum as calculated upto 30.04.2019, along with pendent lite and future interest at the same rate or such higher rate of interest which this Hon'ble Commission may deem fit in the interest of justice, from the date of making payments till the date of actual realization of the payment;

b) Grant cost of litigation to the Complainants;

c) Any other order, relief or direction which this Hon'ble Commission may deem fit and proper under the circumstances of the case may kindly be passed in favour of the Complainants and against the Opposite Party."

The Complaint was resisted by the Opposite Party Developer by filing its Written Statement in which the Opposite Party Developer took preliminary objection that the Complaint is not maintainable as the terms of the Agreement are binding on both the Complainants and the Opposite Party and therefore, this does not give any rise to any cause of action entitling the Complainants to file the purported Complaint; the Project is registered under RERA, 2016 and therefore, in terms of RERA, this Commission is barred from entertaining the present Complaint and since t was stated that stated that the delay in completion of Project occurred due to delay on the part of the Directorate of Town & Country Planning Haryana in renewing the license of the Opposite Party and the Construction work was affected on account of the contractor appointed by the Developer having not completed the construction in time and thereafter having created hindrance in completion of the Project by another contractor. It is also alleged that out of ten towers, construction work is going on in eight towers and 95% work is completed in four towers whereas 70% work is complete in remaining towers. It is also alleged that during the

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intervening period, majority of the buyers defaulted in making payments in terms of their Agreement and a sum of ₹30 crores (Approx.) is outstanding from the flat buyers to the Developer, leading to a financial crunch. It is also alleged that as per the agreement between the parties, in the event of delay in construction, compensation quantified at Rs.5/- per sq.ft. per month for the period of delay was payable to the flat buyers, provided the delay can be attributed to the builder and no claim by way of damages or compensation is payable if the delay is on account of reasons beyond the control of the promoter. It was also submitted that the delay in construction is due to the reasons which were beyond the control of the Developer, therefore, there is no Deficiency in Service or Unfair Trade Practice on their part.They prayed that the Consumer Complaint be dismissed.

We have heard Mr. Saurabh Jain, learned Counsel for the Complainants, Mr. Rohit Gupta, learned Counsel appearing on behalf of the Opposite Party Developer and have given a thoughtful consideration to the various pleas raised by the learned Counsel for the Parties.

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The contention of the learned Counsel for the Opposite Party Developer that the Complainants is bound by the terms of the Agreement and it did not give any rise to any cause of action to Complainants to file the present Complaint, we have gone through the various clauses of the Agreement.Clause 4 and3 (b) viii c of the Agreement reads as under:-

"4. …….In case of delay in construction of the said Unit attributable to delay on the part of intending Developer/Seller, the Intending Developer / Seller would pay a penalty to the Unit Buyers @Rs.5/- per sq. ft. per month for the period of delay and likewise it would be applicable vice-versa…...

3(b)viii (c) In exceptional circumstances, the Owner/Promoter may, in its sole discretion condone the delay in payment, by charging interest at minimum rate of 24% per annum. In the event of the Owner/Promoter waiving the right of forfeiture and accepting interest/other compensation on that account, no right whatsoever would accrue to any other defaulting Flat Buyer."

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A bare perusal of above Clauses makes it clear that as per Clause 4 of the Flat Buyer Agreement, in case of delay the Opposite Party Developer is liable to pay ₹5/- per sq. ft. per month for the period of delay in offering of possession, whereas in

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terms of Clause 3(b)(viii)c, in case of late payment, the Complainants/Buyer is liable to pay interest @24% p.a. This shows that the terms of the Agreement are wholly one-sided and unfair. Therefore, the Complainants cannot be made bound to the terms of the Agreement, which is one-sided and unfair in the light of the recent Judgment of the Hon'ble Apex Court in

Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, II (2019) CPJ 34 (SC), wherein the Apex Court has observed as follows:

"6.7. A terms 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 Buyer's Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent-Flat Purchaser. The Appellant-Builder cannot seek to bind the Respondent with such one-sided contractual terms."

So far as the plea that the Project is registered under RERA, 2016 and therefore, in terms of RERA, this Commission is barred from entertaining the present Complaint is concerned, we place reliance upon a recent Judgment delivered by Hon'ble Supreme Court in "M/s Imperia Structures Ltd. v. Anil Patni and Anr." (2020) 10 SCC 783 wherein it has been held that the remedies under the Consumer Protection Act were in addition to the remedies available under special statutes. The absence of a bar under Section 79 of the RERA Act to the initiation of proceedings before a fora which is not a civil court, read with Section 88 of the RERA Act makes the position clear. Section 18 of the RERA Act specifies that the remedies are " without prejudice to any other remedy available. In M/s. Imperia Structures Ltd. (supra), Hon'ble Supreme Court observed as under:

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"31. Proviso to Section 71(1) of the RERA Act entitles a complainant who had initiated proceedings under the CP Act before the RERA Act came into force, to withdraw the proceedings under the CP Act with the permission of the Forum or Commission and file an appropriate application before the adjudicating officer under the RERA Act. The proviso thus gives a right or an option to the complainant concerned but does not statutorily force him to withdraw such complaint nor do the provisions of the RERA Act create any mechanism for transfer of such pending proceedings to authorities under the RERA Act. As against that the mandate in Section 12(4) of the CP Act to the contrary is quite significant.

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32. Again, insofar as cases where such proceedings under the CP Act are initiated after the provisions of the RERA Act came into force, there is nothing in the RERA Act which bars such initiation. The absence of bar under Section 79 to the initiation of proceedings before a fora which cannot be called a civil court and express saving under Section 88 of the RERA Act, make the position quite clear. Further, Section 18 itself specifies that the remedy under the said section is "without prejudice to any other remedy available". Thus, the parliamentary intent is clear that a choice or discretion is given to the allottee whether he wishes to initiate appropriate proceedings under the CP Act or file an application under the RERA Act.

So far as the pecuniary jurisdiction is concerned, in terms of Section 21 of the Consumer Protection Act, this Commission possesses the requisite pecuniary jurisdiction where the value of the goods or services as the case may be and the compensation claimed exceeds Rs.1 Crore. As held by a three Members Bench of this Commission in CC No.97 of 2016 Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd., decided on 07.10.2016, the value of the services in such a case would mean the sale amount agreed to be paid by the flat buyer to the developer, which has been held to lay down the law correctly on the issue relating to pecuniary jurisdiction and the sale consideration which was agreed between the Parties for buying the goods or hiring or availing the services is relevant for determination of pecuniary jurisdiction in cases of refund also by a larger Bench of 5 Members of this Commission in "CC No. 1703 of 2018, Renu Singh vs. Experion Developers Private Limited" and other connected matters" decided on 26.10.2021. In the present case, the agreed sale consideration was Rs.56,49,765/-. If even a part of the compensation claimed by the complainants is added to the said sale consideration, the aggregate would be much above Rs.1 Crore. Therefore, it would be difficult to say that this Commission does not possess the requisite pecuniary jurisdiction.

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As far as the plea that the Complainants is habitual defaulter in making payments and as such the present Complaint is not maintainable, is concerned, we observe that there was remedy available with the Developer either to charge penal interest on delayed payment or cancel the allotment of the Complainants and refund the amount deposited by the Complainants but it neither cancelled the allotment nor refunded the amount deposited by the Complainants.Now, at this stage the Developer cannot take this plea, which is an afterthought.

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So far as the plea of delay on the part of the Directorate of Town & Country Planning Haryana in renewing the license of the Developer is concerned, the Developer knew well in advance the expiry date of licence, they ought to have completed all the formalities and

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had applied for its renewal well in time. It was Developer's duty and responsibility and the Complainants cannot be penalized for that. Therefore, the alleged delay in the renewal of the licence does not justify the delay in completion of the construction. As far as the delay on account of the contractor appointed by the Opposite Party Developer having not completed the construction in time is concerned, that would hardly be relevant from the point of view of the Complainants. If the contractor appointed by the Opposite Party Developer had delayed the construction, they can take such action as may be open to it in law against the said contractor including the recovery of damages from him but, the Complainants/Allottee is not at all concerned with the delay on the part of the private contractor appointed by the Developer.

As far as the alleged delay on the part of other flat buyers in making payment is concerned, If flat buyers were in default, it was for the Opposite Party Developer to take such action as was open to it in terms of the Contract it had executed with them including cancellation of their allotments and sale of the flats allotted to such defaulting buyers in the market and to arrange finance from alternative sources in the meanwhile.

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In view of aforesaid discussions, we do not find any force in the defence taken by the Opposite party Developer for the inordinate delay in completion of the Project.

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It is not in dispute that the Complainants were allotted the Flat in the year 2011 and till date construction of the Flat is not completed.Keeping in view the Judgment passed by this Commission in Emmar MGF Land Ltd. & Ors. vs. Amit Puri [II (2015) CPJ 568 NC], wherein it was laid down that after the promised date of delivery, it is the discretion of the Complainants whether he wants to accept the offer of possession, if any, or seek refund of the amounts paid with reasonable interest, it is held that it is well within the Complainants's right to seek for refund of the principal amount with interest and compensation as construction is still not complete. We are of the view that the Complainants cannot be made to wait indefinitely for the delivery of possession and the act of the Opposite Party Developer in retaining the amounts deposited by the Complainants, is not only an act of Deficiency of Service but also amounts to Unfair Trade Practice.

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We find it a fit case to place reliance on the judgment of the Hon'ble Supreme Court in

Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, II (2019) CPJ 29 SC, in which the Hon'ble Apex Court has observed as hereunder :

".....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

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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 in 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.

In the circumstances, we are of the view that the orders passed by the SCDRC and by the NCDRC for refund of moneys were justified."

In the instant case also the Complainants cannot be made to wait indefinitely for possession of the flat, as the construction is not completed. Therefore, we are of the considered view that the Complainants are entitled for refund of the principal amount with reasonable interest, which we quantify @9% p.a. from the date of respective date of deposit till the date of actual refund.Consequently, the Opposite Party Developer is directed to refund ₹58,48,984/- (Rupees Fifty Eight Lakhs Forty Eight Thousand Nine Hundred and Eighty Four only) to the Complainants alongwith interest @9% p.a. from the date of respective date of deposit till the date of actual refund within 6 weeks from the date of passing of this Order. However, in the facts and circumstances of the case, there shall be no order as to costs.

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The Consumer Complaint is allowed in above terms.The pending applications, if any, also stand disposed off.

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......................J

R.K. AGRAWAL

PRESIDENT

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DR. S.M. KANTIKAR

MEMBER

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