ORDER
R.K. AGRAWAL, J., PRESIDENT
The present Consumer Complaint has been filed under Section 21 of the Consumer Protection Act, 1986 (for short "the Act") by Suresh Chand Aggarwal and his wife (hereinafter referred to as the Complainants) against Opposite Party, M/s. Ansal Crown Infrabuild Pvt. Ltd. (hereinafter referred to as the Developer), seeking refund of the amount paid towards purchase of Flat alongwith interest as the Opposite Party Developer failed to hand-over the possession of the Flat booked by them in the Project launched by the Developer in the name and style of "Ansal Crown Heights" located at Sector 80, Faridabad, Haryana.
1.
It has been averred in the Complaint that the Opposite Party Developer launched a Residential Group Housing Project in the name and style of "Ansal Crown Heights"
located at Sector 80, Faridabad, Haryana. The Complainants booked a residential flat for their personal use in the said Project. Flat No. 502, Tower No. 1 having super area 2606 sq. ft. was allotted to the Complainant for a total sale consideration of ₹82,55,808/-.
2.
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Flat Buyers Agreement (hereinafter referred to as the Agreement) was executed between the Parties on 12.10.2012. As per Clause 4 of the Agreement, the possession of the flat was to be delivered within 36 months from the date of execution of the Agreement. The Complainant had opted for Construction Linked Payment Plan and had deposited ₹86,74,611/- on different 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 Complainant 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 no 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) Allow the present complaint;
b) Direct the Opposite party to refund the entire amount paid by the Complainants towards the consideration of the Unit along with interest @ 18% p.a. from the date of payment made by the Complainant;
c) Pass an order thereby directing the Opposite Party to pay of sum of Rs.5,00,000 (Rupees Five Lakhs only) on account of mental agony and harassment to the Complainant caused due to failure to handover the possession of the apartment to the Complainant;
d) Pass an order thereby directing the Opposite Party to pay of sum of Rs.75,000,00 ( Rupees Seventy Five Thousand only) to the Complainant towards cost of the present proceedings and litigation expenses;
e) Pass such other or further/orders as may be deemed fit and proper on the facts and in the circumstances of this case."
The Complaint was resisted by the Opposite Party Developer by filing its Written 3.
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Statement in which the Opposite Party Developer stated that the terms of the Agreement are binding on both the Complainant and the Opposite Party and therefore, this does not give any rise to any cause of action entitling the Complainant to file the purported Complaint. It was also 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; the Construction work was affected on account of the contractor appointed by the OP 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 intervening period, majority of the buyers defaulted in making payments in terms of their agreement and a sum of ₹50.00 crores is outstanding from the flat buyers to the OP, leading to a financial crunch. 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.
4.
The contention of the learned Counsel for the Opposite Party Developer that the Complainant is bound by the terms of the Agreement and it did not give any rise to any cause of action to Complainant to file the present Complaint, we have gone through the various clauses of the Agreement. Clause 4 and 3b of the Agreement reads as under:-
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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."
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 3.b.viii(c), in case of late payment, the Complainant/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 Complainant 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:
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"7. 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, though it is alleged that there was delay on the part of the DTCP in renewing the licence, the written version does not explain on which date the licence was renewed. In any case, since the Developer knew well in advance the expiry date of licence, they ought to have completed all the formalities and 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.
7.
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 Complainant. 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 Complainant/Allottee is not at all concerned with the delay on the part of the private contractor appointed by the Developer.
8.
As far as the alleged delay on the part of other flat buyers in making payment is concerned, again a person who has not defaulted in performance of his contractual obligation cannot be penalized for the default on the part of the other Flat buyers. If other 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. We do not find any force in the defence taken by the Opposite party Developer for the inordinate delay in completion of the Project.
9.
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It is not in dispute that the Complainants were allotted the Flat in the year 2012 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 Complainant 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 Complainant'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 Complainant 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 Complainant, is not only an act of Deficiency of Service but also amounts to Unfair Trade Practice.
10.
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 :
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11.
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 ₹86,74,611/- (Rupees Eighty Six Lakhs Seventy Four Thousand Six Hundred Eleven only) to the Complainant 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, keeping in view the facts and circumstances of the case, there shall be no order as to costs.
12.
The Consumer Complaint is allowed in above terms. The pending applications, if any, also stand disposed off.
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R.K. AGRAWAL
PRESIDENT
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DR. S.M. KANTIKAR
MEMBER
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