ORDER
1. The present batch of Consumer Complaints has been filed under Section 21(a)(i) of the Consumer Protection Act, 1986 (for short "the Act") by the Complainants against the Opposite Parties (hereinafter referred to as the "Developer") for refunding of amount deposited by them as the Developer failed to handover the possession of the Flats booked by them in the Project launched by the Developer under the name and style of "The Corridors ", within stipulated period as promised.
2. Since the facts and question of law involved in these Complaints are similar except for minor variations in the dates and events and Flat numbers, these Complaints are being disposed of by this Common Order. However, for the sake of convenience, Consumer Complaint No. 1666 of 2018 is treated as the lead case and the facts enumerated hereinafter have been taken from Consumer Complaint No. 1666 of 2018.
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3. According to the Complainant, the facts of the case are that in response to the Applications invited by the Opposite Party Developer for allotment of Flats in their upcoming Project, "The Corridors" (hereinafter referred to as the 'Project') located at Golf Course Extension Road, Sector-67-A, Tehsil & District Gurgaon, Haryana, the Complainant had booked a 2 BHK Residential Flat on 13.03.2013 for a total Sales Consideration of ₹1,46,09,986/- in the said Project by paying the amount of ₹16,50,000/- towards initial payment/earnest money. The Complainant was allotted Unit No. CD-C8-06-603 having tentative super area of 1483.79 sq. ft. vide Allotment Offer Letter dated 7.8.2013. Thereafter, on 11.07.2014, an Apartment Buyer's Agreement (hereinafter referred to as the "Agreement") was executed between the parties and as per Clause 13.3. Of the Agreement, the possession of the allotted Unit was to be handed over to the Complainant within a period of 42 months from the date of approval of the Building Plans with an additional 180 days as "Grace Period".
Clause 13.3 of the Agreement reads as under:-
"Subject to Force Majeure, as defined herein and further subject to the allottee having complied with all its obligations under the terms and conditions of this Agreement and not having defaulted under any provision(s) of this Agreement including but not limited to the timely payment of all dues and charges including the total Sale Consideration, registration charges, stamp duty and other charges and also subject to the Allottee having complied with all formalities or documentation as prescribed by the Company, the Company proposes to offer the possession of the said Apartment to the Allottee within a period of 42 (Forty Two) months from the date of approval of the Building Plans and/or fulfillment of the preconditions imposed thereunder ("Commitment period"). The Allottee further agrees and understands that the Company shall additionally be entitled to a period of 180 days ("Grace period"), after the expiry of the said Commitment Period to allow for unforeseen delays beyond the reasonable control of the Company."
4. The Complainant made payment of ₹1,33,18,586/- on different dates upto the date of filing of the Complaint as per demand of the Developer, despite that the Developer could not complete the construction work at the Project within stipulated period and failed to deliver the possession of the Unit to the Complainant on the committed date, i.e. 22.01.2017. It is alleged that the Developer had launched the Project before grant of Building Plan Approval and started collection of the Booking amount. It is further alleged that the Developer at the time of booking engulfed the Project with a 90 meter motorable access road approaching to the Project and assured that a link road of 90 meter wide, flanked by an 18 meter wide green belt, further flanked by a 24 meter wide service road as an approach to the Project as also shown in site-plan at page no.38 & 39 of the Agreement and in terms of FORM LC-V issued by the Directorate of Town & Country Planning Haryana in reference to Housing License No.05/2013 granted, in which conditions in regard to license had been specified and as per clause no.2 sub clause (d) says "That the licensee shall construct the 12/18/24 meter wide service road forming part of the site area at his cost and the entire area under road shall be transferred free of cost to the Government".
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Further, the Complainant also strongly objected to the Revised Building Plan which would lead to scrapping of Residential Tower "D" resulting in construction of more Commercial Towers in the existing Project to earn more profit. The Complainant has lost trust in the Developer and alleging deficiency in service and Unfair Trade Practice on the part of the Developer, has filed the present Complaint with following prayer:-
"(a) Direct the Opposite Parties to pay/refund to the Complainant a sum of ₹1,33,18,586/- (Rupees One Crore Thirty Three Lacs Eighteen Thousand Five Hundred Eighty Six only), which had been paid by the Complainant against Unit/Flat No. CD-C8-06- 603 in the Project "The Corridors" at Golf Course Extension Road at Sector-67-A in the revenue estate of Village Dhumsapur and Maidwas, Tehsil & District Gurgaon, Haryana along-with interest @ 20% per annum from the date of receiving respective payments from the complainants, till its realization;
(b) Award the cost and litigation expenses & Compensation for harassment & mental agony to the tune of ₹5,00,000/- (Rupees Five lacs only) to the Complainant ;
(c) Pass such other further order as this Hon'ble Commission may deem fit and proper in the interest of justice and in favour of the Complaint."
5. Upon notice, the Complaint was resisted by the Opposite Parties by filing Written Statement. In the Written Statement, the Opposite Parties took the Preliminary Objections that the Complainant is not a 'Consumer' as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986 as the Complainant has invested in the Apartment for commercial gain and to earn profits. The Complainant is only a speculative investor and had initially had booked 2 Flats in the Project but later on after paying the initial booking amount, cancelled one booking. At present, the Complainant is residing at Silver Oaks Apartment in Gurgaon and thus there was no requirement for him to initially booked two Flats for residential purpose. Vide her email dated 23.09.2014, the Complainant had admitted that she is an Investor and had invested the money in the property of the Opposite Parties on earlier occasion also but because there was no buyer in the marking and she was suffering from paucity of funds she requested for cancellation of one booking. It is further submitted that the Complainant is a wilful defaulter in making the payment of the instalments at time and the Developer had to time and again send several reminders to the Complainant for payment of the Instalments. If the Buyer himself delays the payment, he cannot claim compensation for delayed possession. The Complaint is also bad for non-joinder of necessary party. The Complainant has obtained a loan amounting to ₹37,50,000/- for the purpose of purchasing the Apartment in the Project from HDFC Bank and a Fourpartite Agreement was signed on 14.11.2014 amongst the Complainant, Opposite Parties No. 2 to 5 and HDFC Bank. However, the Bank has not been arrayed as Opposite Party in the Memo of Parties. It is further contended that the Complainant is bound by the terms and conditions of the Booking Application Form as well as the Agreement. As per Clause 43 of Schedule-I of the Booking Application, the Developer has proposed to hand over possession of the booked Flat to the Complainant within a period of 42 months from the date of approval of Building Plans and/or fulfilment of the pre-
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conditions imposed thereunder. It was also agreed between the parties that a grace period of 6 months would be provided to the Opposite Parties, for any unforeseen delay. The same stipulation was also incorporated in Clause 13.3 of the Agreement dated 07.11.2014. In the present case, the Building Plan Approval was granted on 23.07.2013 subject to certain pre-conditions which were required to be satisfied and the last of the pre-condition, i.e. Fire Safety Scheme Approval was granted only on 27.11.2014. Therefore, in terms of the Clause 13.3 of the Agreement and Clause 43 of the Booking Application, the proposed time for handing over of possession to the Complainant is to be computed from 27.11.2014. As such, the period of 48 months from 27.11.2014 including the 6 months grace period, will expire only on 27.11.2018. The present Complaint filed on 17.07.2018 is ex-facie completely pre-mature and there is no question of any delay in delivery of possession or a claim of compensation thereof. It is pleaded that under Clause 13.4 of the Agreement, it has been agreed between the parties that subject to Clause 13.3 of the Agreement and Clause 43 of the Booking Application, if the Opposite Parties fail to offer possession, then they shall pay compensation @ ₹7.50 per Sq. Ft. p.m. and the Complainant is entitled for the said compensation only after 27.11.2018. Further, in case of delay beyond 12 months after the expiry of Grace Period, the Allottee will be entitled to opt for termination of the Agreement and the Opposite Parties will refund the actual paid up instalment, adjusting the interest on delayed payment and delayed compensation. The issues in the present Complaint relate to the interpretation and implementation of the terms of the Application Form and Agreement which can only be decided in a Civil Court or by Arbitration.
6. With regard to delay in completion of the Project, it is submitted that the Developer is constructing the Project in phases and has already completed the construction of the first phase as well as applied for grant of occupancy certificate for the same. No cause of action has ever accrued in favour of the Complainant as the actual time of delivery of the possession of the Flat in question is yet to arrive in the month of November, 2018 and the Complaint is liable to dismissed as pre-mature. The contractual relationship on the basis of which the prayers of the present complaint are sought only exists between the Complainant and the Opposite Party No.1, Ireo Grace Realtech Pvt. Ltd. The Opposite Party Nos. 2 to 5 are only confirming parties and they have to be delated from the array of parties as they are not subsidiary companies of the Opposite Party No.1. The application for grant of Occupation Certificate has already been applied for vide Application dated 21.07.2017 with respect to approximately 700 apartments in Cluster A, B and C. With respect to the tower where the apartment/flat of the Complainant is situated, the construction is complete and only finishing works are being carried out. The Opposite Party has deposited External Development Charges and Internal Development Charges to the Government Authorities and development of the 90 meter HUDA sector road is the responsibility of the Haryana Government and Statutory Authorities. The Developer has constructed 60 feet road to the Project and the Group Housing Project is accessible from adjoining Residential and Commercial Colonies. Further, as per Clause 10 of the Agreement, the Opposite Party Builder is fully entitled to revised the Building Plan. All other allegations made by the Complainants in the Complaint have been denied by the
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Opposite Party.
7. We have heard Mr. Deepak Kumar Khushalani, learned Counsel for the Complainants, Mr. Aarush Bhatia, learned Counsel for the Opposite Parties and have gone through the Complaint, Written Statement, material available on record and evidence adduced by the parties.
8. The contention of the learned Counsel for the Opposite Party Developer that the Complainant is not a 'Consumer' as the Complainant has booked the Flat for earning profits is completely unsustainable in the light of the judgement of this Commission in Kavita Ahuja vs. Shipra Estates I (2016) CPJ 31, in which the principle laid down is that the onus of establishing that the Complainant was dealing in real estate i.e. in the purchase and sale of plots/flats in his normal course of business to earn profits, shifts to the Opposite Party, which in the instant case they had failed to discharge by filing any documentary evidence to establish their case. Therefore we are of the considered view that the Complainant is a 'Consumer' as defined under Section 2 (1)(d) of the Act.
9. Regarding the issue to refer the matter to the Arbitrator only, the Hon'ble Supreme Court in M/S Emaar MGF Land Limited vs. Aftab Singh - I (2019) CPJ 5 (SC), has laid down the law that an Arbitration clause in the Agreement does not bar the jurisdiction of the Consumer Fora to entertain the Complaint. Hence, the said objection is answered in negative.
10. All other contentions raised by the Opposite Party Developer in respect of the Project 'The Corridors' have been dealt with by this Commission in the cases, i.e., CC No.3873/ 2017 entitled "Abhishek Khanna & Ors. Vs. Ireo Grace Realtech Pvt. Ltd.", CC No.1382 / 2018 entitled "Promila Kashyap vs. Ireo Grace Realtech Pvt. Ltd.", CC No. 525/2017 entitled "Ritu Hasija & Anr. Vs. Ireo Grace Realtech Pvt. Ltd." and CC No.696 / 2017 entitled "Amit Arora vs. Ireo Grace Realtech Pvt. Ltd." etc.. The Opposite Party Developer filed Civil Appeals against these Orders before the Hon'ble Supreme Court. The Hon'ble Supreme Court dealt with all the contentions raised by the Opposite Party Developer and disposed off the Appeals vide their Judgment dated 11.01.2021 in the case "Ireo Grace Realtech Pvt. Ltd. vs. Abhishek Khanna & Ors." [Civil Appeal No. 5785 / 2019 & other connected Appeals]. The Hon'ble Supreme Court had held that 27.11.2018 would be the relevant date for offer of possession by observing as under:-
" On 27.11.2014, the Director, Haryana Fire Service granted approval to the Fire Fighting Scheme subject to the conditions mentioned therein. The computation of the period for handing over possession would be computed from this date. The Commitment Period of 42 months plus the Grace Period of 6 months from 27.11.2014, would be 27.11.2018, as being the relevant date for offer of possession."
11. Hon'ble Supreme Court also held that the Agreement is one-sided and the Opposite Party Developer cannot compel the Apartment Buyer to be bound by the one-sided contractual terms contained in the Apartment Buyer's Agreement by observing as under :-
"We are of the view that the incorporation of such one-sided and unreasonable clauses in the Apartment Buyer's Agreement constitutes an unfair trade practice under Section 2(1)(r) of the Consumer Protection Act. Even under the 1986 Act, the powers of the consumer fora were in no manner constrained to declare a contractual term as unfair or one-sided as an incident of the power to discontinue unfair or restrictive trade practices. An"unfair contract has been defined under the 2019 Act, and powers have been conferred on the State Consumer Fora and the National Commission to declare contractual terms which are unfair, as null and void. This is a statutory recognition of a power which was implicit under the 1986 Act.
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In view of the above, we hold that the Developer cannot compel the apartment buyers to be bound by the one-sided contractual terms contained in the Apartment Buyer's Agreement"
12. Hon'ble Supreme Court on the issue "Whether the Apartment Buyers are entitled to terminate the Agreement, or refund of the amount deposited with Delay Compensation" held as under:-
"In the present case, the allottees before this Court in the present batch of appeals, can be categorised into two categories:-
i) Apartment Buyers whose allotments fall in Phase 1 of the project comprised in Towers A6 to A10, B1 to B4, and C3 to C7, where the Developer has been granted occupation certificate, and offer of possession has been made, are enlisted in Chart A;
ii) Apartment Buyers whose allotments fall in Phase 2 of the project, where the allotments are in Towers A1 to A5, B5 to B8, C8 to C11, where the Occupation Certificate has not been granted so far, are set out in Chart B below.
………..
Chart A allottees (i) We are of the view that allottees at Serial Nos. 1 and 2 in Chart A are obligated to take possession of the apartments, since the construction was completed, and possession offered on 28.06.2019, after the issuance of Occupation Certificate on 31.05.2019. The Developer is however obligated to pay Delay Compensation for the period of delay which has occurred from 27.11.2018 till the date of offer of possession was made to the allottees. ……..
Chart B allottees
(i) In so far as the allottees in Chart B are concerned, they have paid part consideration, in most cases up to the 4th instalment till 2017, when they found that there was no progress being made in respect of the Towers in which the apartments had been allotted to them. It is an admitted position that Occupation Certificate for Towers A1, A2, A3, B7, C9 and C11, in which the allotments have been made for this category has not been issued by the Municipal Corporation The apartments have not been ready for allotment even as on 30.06.2020, as per the date fixed before the RERA Authority.
(ii) The allottees submitted that they were facing great hardship since they had obtained loans from Banks for purchasing these apartments, and were paying high rates of interest. In 2017, when they realised that there was no construction activity in progress, they were constrained to file consumer complaints before the National Commission, and then discontinued payment of further instalments.
(iii) The Developer made an alternate offer of allotment of apartments in Phase 1 of the project. The allottees are however not bound to accept the same because of the inordinate delay in completing the construction of the Towers where units were allotted to them. The Occupation Certificate is not available even as on date, which clearly amounts to deficiency of service. The allottees cannot be made to wait indefinitely for possession of the apartments allotted to them, nor can they be bound to take the apartments in Phase 1 of the project. The
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allottees have submitted that they have taken loans, and are paying high rates of interest to the tune of 7.9% etc. to the Banks.
Consequently, we hold that the allottees in Chart B are entitled to refund of the entire amount deposited by them.
(iv) In so far as award of compensation by payment of Interest is concerned, clause 13.4 of the Apartment Buyer's Agreement provides that the Developer shall be liable to pay the allottee compensation calculated @ ₹ 7.5 per sq. ft. of the Super Area for every month of delay, after the end of the Grace Period. The compensation will be payable only for a period of 12 months.
The Apartment Buyers in their Complaint filed before the National Commission made a prayer for refund of the amount deposited alongwith Interest @ 20% p.a. compounding quarterly till its realisation. The Apartment Buyers, in their submissions have stated that they have obtained home loans on which Interest @ 7.90% p.a. is being paid, even as on date. We have considered the rival submissions made by both the parties. The Delay Compensation specified in the Apartment Buyer's Agreement of ₹ 7.5 per sq. ft. which translates to 0.9% to 1% p.a. on the amount deposited by the Apartment Buyer cannot be accepted as being adequate compensation for the delay in the construction of the project. At the same time, we cannot accept the claim of the Apartment Buyers for payment of compound interest @ 20% p.a., which has no nexus with the commercial realities of the prevailing market.
We have also taken into consideration that in Subodh Pawar v. IREO Grace, this Court recorded the statement of the Counsel for the Developer that the amount would be refunded with Interest @ 10% p.a. A similar order was passed in the case of IREO v. Surendra Arora. However, the Order in these cases were passed prior to the out-break of the pandemic. We are cognizant of the prevailing market conditions as a result of Covid-19 Pandemic, which have greatly impacted the construction industry.
In these circumstances, it is necessary to balance the competing interest of both parties. We think it would be in the interests of justice and fairplay that the amounts deposited by the Apartment Buyers is refunded with Interest @ 9% S.I. per annum from 27.11.2018 till the date of payment of the entire amount.
The refund will be paid within a period of three months from the date of this judgment. If there is any further delay, the Developer will be liable to pay default interest @ 12% S.I. p.a. (v) The Developer shall not deduct the Earnest Money of 20% from the principal amount, or any other amount as mentioned in Clause 21.3 of the Agreement, on account of the various defaults committed by the Developer, including the delay of over 7 months in obtaining the Fire NOC."
13. For the sake of convenience, we are categorizing the Complainants in these three Consumer Complaints into "Chart A & Chart B Category". "Chart A" belongs to Phase I of the Project comprised with Towers A6 to A 10, B1 to B4 and C3 to C7 where the Opposite Parties have been granted Occupation Certificate and offer of possession has been made and
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"Chart B" relates to the Towers where no Occupation Certificate has been granted to the Opposite Parties:-
CHART A
(List of Apartment where Occupation Certificate Obtained)
| Sl. No. |
Cause Title and Consumer Complaint No. |
Apartment / Tower No. |
Amount Paid |
| 1. |
onsumer Complaint No. 287 / 2019 eetika Kalra vs. M/s. Ireo Grace ealtech (P) Ltd. |
503/A-9 |
1,65,71,906 |
| 2. |
onsumer Complaint No. 67/2020 mbrish Chaudhry Vs. /s. Ireo Grace Realtech (P) Ltd. |
604/B-2 |
1,95,46,734 |
"CHART B' (List of Apartments where no Occupation Certificate Obtained)
| Sl. No. |
Cause Title and Consumer Complaint No. |
Apartment / Tower No. |
Amount Paid |
| 1. |
onsumer Complaint No.1666/2018 earl Khan vs. M/s. Ireo Grace ealtech (P) Ltd. & Ors. |
603/C-8 |
1,33,18,586/- |
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14. Respectfully following the ratio of the Judgment of the Hon'ble Supreme Court in the case of "Abhishek Khanna. (supra)", we direct the Complainants/Allottees enlisted in Chart A to take possession of the Apartment after making payment of outstanding dues, since the construction was completed and possession was offer after issuance of Occupation Certificate on 31.05.2019. The Developer shall, however, pay delay compensation in the form of simple interest @9% p.a. on the deposited amount for the period of delay which has occurred from 27.11.2018 till the date of offer of possession was made to the Complainants/Allottees.
15. The Developer is directed to refund the entire amount deposited by the Complainant/Allottee enlisted in Chart B, along with interest @9% S.I. p.a. within three months from the date of this Order failing which the Developer shall be liable for payment of default interest @12% S.I p.a. till the payment is made. The Opposite Party Developer shall not deduct the Earnest money of 20% from the principal amount, or any other amount as mentioned in Clause 21.3 of the Agreement, on account of the various defaults committed by the Developer, including the delay of over 7 months in obtaining the Fire NOC.
16. The Consumer Complaints are disposed of in above terms, with no order as to Costs.
......................J
R.K. AGRAWAL
PRESIDENT
......................
BINOY KUMAR
MEMBER
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