letter would be issued shortly. It was assured by them that the Possession would be delivered by the end of 2017. Flat No. 1201 in Tower A allotted to the Complainants vide Allotment letter dated 24.09.2014. The Complainant deposited a sum of ₹37,04,043.50/- on different dates as per demand of the OP Builder. The OP Developer raised an illegal demand of ₹5,92,367/- on account of increase in area and PLC. For meeting the demand, the Complainants requested OP Builder to execute Builder Buyer Agreement because in the absence of which House Loan could not be granted by the Banks. After several requests and follow-up with the OP Builder, a Builder Buyer Agreement (hereinafter referred to as the Agreement) was sent to the Complainants for signatures in July 2015. On finding several clauses of the Agreement, totally unfair, one-sided, unjust and illegal, the Complainant raised objection with the OP Builder to remove the said clauses vide email dated 12.07.2015 but the OP Builder rejected his request and conveyed that the clauses in the Agreement are standard and as per the Company Policy and the same cannot be changed or amended. Despite several requests, the OP Builder never shared approvals of the Project from the competent authorities but threatened that if they proceed with the cancellation of the Unit, they will deduct the amounts under the heads of Earnest Money, Service Tax, Brokerage (if any) and other charges. The Complainants issued legal notice upon the OP Builder to refund the deposited amount of ₹37,04,043.50ps. alongwith interest @24% and ₹5,00,000/- towards mental agony, stress etc. But the OP Builder did not refund the amount. Being aggrieved the Complainants filed consumer complaint before the Haryana State Consumer Disputes Redressal Commission on 12.01.2016. The Complainant relying upon the Order dated 07.10.2016 passed by this Commission in 'CC 97 / 2016 Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Limited' withdrew the Complaint from the State Commission and filed the present Consumer Complaint before this Commission seeking following reliefs:-

The Complaint may kindly be allowed with costs;a.

b) the Opposite Party may be directed to refund ₹37,04,043.50ps., deposited by Complainants alongwith interest @24% interest;

c) The opposite party may be directed to pay for damages amounting to ₹5,00,000/- alongwith 24% interest, which the Complainants have suffered on account of mental agony, stress, embarrassment and humiliation apart from financial loss due t the illegal and unlawful acts done by the Opposite party and;

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d) the opposite party may be directed to compensate the complainants for depriving them of the pleasure and comfort of staying in their own house during all this period.

e) pass any other order as the Hon'ble Commission deems fit, in the interest of justice."

The Opposite Party Builder resisted the Complaint and filed its Written Version in which all the allegations made by the Complainants were denied. It has been stated that the Complaints are based in foreign country and they are merely investor and had booked the subject Apartment for speculation and thus do not fall within the definition of

"Consumer" as defined in the Act. It was also stated that after paying 30% of the cost of the Apartment, the Complainants did not make any further payment. The Builder Buyer Agreement was sent for signature but the Complainants did not sign the same even after repeated reminders. They had obtained Licence No. 22 / 2011 from the DTCP on 24.03.2011. The construction had commenced since September 2015. The complainant failed to make further payment and started to wriggle out of the contractual liabilities; alleging that the clauses of the Agreement are illegal and did not execute the Agreement. It was further submitted that in terms of Express of Interest signed by the Complainant, in case of cancellation, the OP Builder is entitled to forfeit the earnest money (10% of the BSP & PLC) alongwith amounts of non-refundable nature, i.e., service tax on installment & earnest money, VAT, brokerage paid by the OP etc. and the Complainants are entitled for refund of ₹14,46,711/-. It was further stated that there is no deficiency in service on their part and prayed that the Consumer Complaint be dismissed.

3.

We have heard Mr. Gurmandeep S. Sullar, learned Counsel appearing on behalf of the Complainants, Mr. S.K. Sahni, learned Counsel appearing on behalf of the OP Builder, perused the material available on record and given a thoughtful consideration to the various pleas raised by them.

4.

In support of his case, learned Counsel appearing for the Complainants has placed reliance on the decisions rendered by this Commission in the cases of "Amit Kansal vs. M/s. Vatika Limited [CC No. 1244 of 2015 dated 23.10.2017] and "Amit Gupta & Anr. Vs. Vatika Ltd". [CC No. 425 of 2018 dated 30.10.2019]"

5.

The contention of the Learned Counsel for the Opposite Party that the Complainants are not 'Consumer' and that they had booked the subject flat for earning profits is completely unsustainable in the light of the judgement of this Commission in Kavita Ahuja vs.

6.

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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 Complainants fall under the definition of 'Consumer' as defined under Section 2 (1)(d) of the Act. The present case is squarely covered by the Order dated 30.10.2019 passed by this Commission in the case "Amit Gupta & Anr. Vs. Vatika Ltd". [CC No. 425 of 2018

dated 30.10.2019], in which the defence taken by the OP Builder has been dealt and rejected. The decision in the case of "Amit Gupta (supra)", to the extent it is relevant, is extracted as under :

7. The next question which arises for consideration is as to whether the complainants are entitled to refund of the amount paid by them to the OP or the OP is entitled to forfeit the Earnest Money as per the terms and conditions of the proposed buyers' agreement, which they had sent to the complainants.

•

•

8. On a perusal of the terms and conditions to which the complainants had objected, I find that that the objections raised by them cannot be said to be devoid of any substance. The terms and conditions conveyed to the complainants were wholly one-sided and the parties are not evenly placed even in the matter of payment of interest in a case of default by one of the parties to the agreement. Even the basis of the calculation of super built up area was not provided to them nor were they given any clarity on additional tax. Such wholly one-sided agreements were termed as unfair and were not approved by the Hon'ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan (2019) 5 SCC 725, which to the extent it is relevant reads as under:

•

7.

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.

In Central Inland Water Transport Corporation Limited and Ors. v. Brojo Nath Ganguly and Ors.,4 this Court held that :

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"89. … Our judges are bound by their oath to 'uphold the Constitution and the laws'. The Constitution was enacted to secure to all the citizens of this country social and economic justice. Article 14 of the Constitution guarantees to all persons equality before the law and equal protection of the laws. This principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction. …

… These cases can neither be enumerated nor fully illustrated. The court must judge each case on its own facts and circumstances."

(emphasis supplied)

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." Moreover, in this case the license issued by DTCP having expired, the complainants could not be expected to continue making further payments, without restoration of the said license.

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9. It is an admitted position that despite the complainants having not made any further payment to the OP after April, 2015, the allotment was never cancelled on account of non-payment of the further installments. During the course of hearing, I asked the learned counsel for the OP as to what is the present status of the project in which allotment, subject matter of this complaint was made to the complainants. The learned counsel submits that he has no updation on the current status of the project. The learned counsel for the complainants however submits that the license which DTCP had issued to the OP is lying expired since March, 2019 and the project is far from complete. This is also submitted by the learned counsel for the complainants that in January, 2018, the construction was complete at best to the extent of 40% as would be evident from the demand raised by the OP vide letter dated 11.1.2018 when the said demand is examined in the light of the payment already made by the complainants by that time and the payment schedule agreed between the parties. Be that as it may, since the terms and conditions contained in the format of the flat buyers' agreement, were not incorporated in the application / express of interest submitted by the complainants nor were the same contained in the letter of allotment issued to them, the OP in my opinion, could not have insisted upon retaining the said terms and conditions and if those terms and conditions were not acceptable to the complainants, the OP ought to have refunded the entire amount paid to the by the OP. Since the OP had also utilized the money received from the complainants they already ought to have paid suitable interest on that amount.

10. The learned counsel for the complainant also relied upon the decision of this Commission dated 23.10.2017 in which pertain to the allotment made in this very project namely 'Tranquil Heights'. In Amit Kansal (supra), the terms of the builder buyer agreement sent to the complainants for signatures were not acceptable to him and therefore, he sought some changes in the agreement to which the builder did not agree. He stopped making further payment and approached this Commission by way of a consumer complaint, seeking refund of the amount paid by him to the builder with interest etc. The complaint was resisted by the OP inter-alia on the ground that the complainant was a speculator who wanted to make quick gains and he was duty-bound to sign the standard builder buyer agreement sent to him by the OP for signatures. Rejecting the contentions advanced by the OP and allowing the consumer complaint, this Commission directed refund of the entire amount which the said complainant had paid to the OP, along with interest on that amount @ 9% per annum."

As far as the plea of the OP Builder that they are entitled to forfeit the amount in terms of the Expression of Interest form signed by the Complainants is concerned, we have perused the terms and conditions mentioned in the Expression of Interest and find that the terms and conditions are wholly one-sided and are only in favour of the Builder and cannot be binding upon the Complainants in view of the principle laid down by the Hon'ble Supreme Court in "Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan (2019) 5 SCC 725".

8.

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For the reasons stated hereinabove, the present Complaint is partly allowed in following terms:-

9.

10.

(i) The Opposite Party Builder shall refund the entire deposited amount of ₹37,04,043.50ps. (Thirty Seven Lakhs Four Thousand Forty three and paisa fifty only) to the Complainants along with compensation in the form of simple interest on that amount @ 9% per annum with effect from the respective date of deposit till the date of refund.

9.

(ii) The Opposite Party shall also pay a sum of ₹25,000/- as cost of the litigation to the Complainant.

(iii) The payment in terms of this order shall be paid within three months from today.

10.

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

R.K. AGRAWAL

PRESIDENT

......................

DR. S.M. KANTIKAR

MEMBER

......................

BINOY KUMAR

MEMBER

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