AMIT ARORA & ANR. v. VATIKA LIMITED

having Super Area of 2265 sq. ft. It is stated by the Complainants that the terms of the allotment were simply dictated to them and they had no option except to sign the Allotment Letter under duress. The Complainants made all the payments from time to time as demanded by the Opposite Party Developer. It is averred that after a long persuasion, the Builder Buyer Agreement (hereinafter to be referred to as the

"Agreement") was executed on 28.05.2015 that is nearly about one and half year from the date of booking of the Apartment which itself amounts to Unfair Trade Practice. As per Clause 13 of the Agreement, the construction of the Project was to be completed by the Developer within 48 months from the date of execution of the Agreement, meaning thereby that the possession should have been handed over to the Complainant on or before May, 2019. However, the Opposite Party Developer, despite their various assurances, has miserably failed to complete the construction of the Project within the stipulated time and hand over the possession of the Apartment booked by the Complainants. According to the Complainants, they have paid a sum of ₹65,44,231/- till 06.04.2017 out of the total Sale Consideration of ₹1,49,73,915/-. The Complainants had lost faith in the Developer as considering the construction status of the Project shown on their official website there is bleak chances of getting the possession in the near future. It is stated that despite repeated visits to the office of the Developer and other representations, yet the Opposite Party Developer is not in a position to give an exact date of completion of the Project. Hence, alleging deficiency in service and Unfair Trade Practice on the part of the Opposite Party Developer, the Complainants have filed the present Complaint seeking following reliefs:-

"a) Direct the Opposite Party for an immediate 100% refund of the total amount paid by the Complainant(s) along with a penal interest @ 18% per annum from the date of receipt each payment made:.

b) Direct the Opposite Party to pay compensation of ₹5,00,000/- (Rupees Five Lakhs Only) to the Complainant(s) for the mental agony, harassment, discomfort and undue hardships caused to the Complainant(s) as a result of the above acts and omissions on the part of the Opposite Party;

c) Direct the Opposite Party to pay a sum of ₹1,00,000/- (Rupees One Lakh Only) to the Complainant(s) towards litigation costs

d) Any other and further relief in favour of the Complainant(s) as the Hon'ble Commission may deem fit and proper in the fact and circumstances of the case."

3.

Upon notice, the Opposite Party Developer has contested the Complaint and filed its Written Version, inter-alia, raising preliminary objections that; the Complaint is not maintainable before this Commission for want of Pecuniary Jurisdiction since the total Sale Consideration paid by the Complainants is only ₹65,44,231/- which is less than the Pecuniary Jurisdiction of this Commission under both pre and post

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enactment of the Consumer Protection Act, 2019; this Commission has no Territorial Jurisdiction to entertain the present Complaint since as per Clause 46 of the Agreement, only the Court of Gurgaon have the jurisdiction to adjudicate upon the any dispute between the parties, the Complainants are Non-Resident Indians who are residing in United Arab Emirates and they had made the multiple booking for the purpose of investment and earning gain; the Competent Authority to adjudicate upon the dispute is Haryana Real Estate Regulatory Authority; the Complainants are chronic defaulter in payment of installments and several letters were sent to the Complainants on 09.1.2014, 14,04.2014, 03.05.2014 and 05.04.2017 for clearing the outstanding dues; the Hon'ble Apex Court has held that a defaulter is not entitled for any kind of relief under the provisions of the Act; after completion of the allotment process, on multiple occasions the Opposite Party approached the Complainants for execution of the Agreement, however, for the reasons best known to them they avoided to sign the same and consequently, the Agreement was sent to them on 23.06.2015;. On merits, it is pleaded that the delay, if any, in completion of the Project was on account of (i) initiation of the GAIL Corridor which passes through the Project, resulting in realignment of the entire layout; (b) non-removal or shifting of the defunct High-Tension lines passing through the lands resulting in inevitable change in the layout plans and (iii) non-acquisition of sector roads by HUDA to enable accessibility to the various corners of the Project. It is contended that since the hurdles faced by the Opposite Party Developer were beyond their control, no fault can be found qua them and as per Clause 16 of the Agreement they were entitle to alter or vary terms and conditions of the Agreement and suspend the scheme for such period. Besides, the Developer also suffered from demobilization of the labour working on the Project. Vide Communication dated 12.08.2020, the Complainants were informed that owing to the Covid 19 pandemic and due to loss of labour, the construction work will be resumed only in October, 2020. It is also submitted that since in the last few years, the real estate investments have not given the expected returns and there is a general reduction in prices since 2014, the Complainants have sought for refund of the deposited amounts; the Complainants never made any representation for cancellation of the allotment and refund of the amount to the Developer. Finally, it is submitted that the Developer has made the best attempts to complete the Project but there are certain reasons which amount to force majeure and are beyond the control of the Developer. The Developer is doing everything within its realm to complete the Project in question.

4.

We have heard the learned Counsel for the Parties and perused the material available on record.

5.

Learned Counsel appearing for the Complainants submitted that the present case is squarely covered by the decisions rendered by this Commission in the cases of Yash Pal Sabharwal & Ors. Vs. Vatika Ltd. - Consumer Complaint No. 1874 of 2018 - decided on 22.01.2020 and Amit Gupta v. Vatika Limited - Consumer Complaint No.425 of 2018 decided on 30.10.2019 which relates to the same Project, i.e. "Tranquil Heights". In the aforesaid cases, this Hon'ble Commission rejecting almost the similar

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contentions of the Opposite Party Developer has ordered refund of the deposited amount with interest @9% p.a.

We find that the defence taken by the Developer in the present Complaint is more or less similar to that taken in the aforesaid Consumer Complaints. While dealing with the similar reasons taken by the Developer for delay in handing over the possession of the allotted Apartments in the afore referred Complaints, this Bench has observed as under:-

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"4. Coming to the Preliminary Objections, it is admitted by the Opposite Party in the Written Statement that vide e-mail dated 26.04.2018 they had informed that the possession/completion of the Project was expected by 2022. But they submitted that the year had been inadvertently mentioned as 2022 instead of 2019. If this was the case, the Opposite Party should rectify the mistake and inform the Complainants that the possession will be given by 2019 but it failed to do so. It proves that it is an afterthought. Even today, in the year 2020, they are not in a position to handover the possession of the Unit. Seeing the overall position and conduct of the Opposite Party it is held that the Complaint is not pre-matured and Complaint has been filed within time. Further, the plea of the Opposite Party that the Complainants had booked the Unit for the purpose of investment and not for their own use, is not supported by any documentary evidence and, therefore, it cannot be said that the Complainant is not a consumer under Section 2 (1)(d) of the Consumer Protection Act, 1986. In so far as, the plea regarding forfeiture of Earnest Money is concerned, such one-sided clauses which are only in favour of the Builder, in the Builder Buyer Agreements are termed as 'Unfair Trade Practice' by the Hon'ble Supreme Court in

"Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan (2019) 5 SCC 725" 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."

5. On merits, the booking and the allotment made to the Complainants have neither been disputed nor has the Opposite Party disputed the payment received from the Complainants. We 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 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

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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."

Similarly, in the case of Amit Kansal Vs. M/s. Vatika Limited- Consumer Case No.1244 of 2015 - decided on 23.10.2017 which relates to the same project i.e. "Vatika Tranquil Heights", Sector 82, Gurgaon, while dealing with the defence taken by the Opposite Party Builder, the Coordinate Bench of this Commission has held as under:-

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"8. The first issue which needs consideration pertains to the pecuniary jurisdiction of the National Commission to entertain the instant consumer complaint. Section 21 (a) of the Consumer Protection Act, 1986 deals with the pecuniary jurisdiction of the National Commission and it provides that National Commission shall have jurisdiction to entertain the complaints where the value of goods or services and compensation, if any, exceeds ₹1.00 crore. Now, the question is what is the value of service offered by the opposite party to the complainant. In this regard, it is pertinent to mention that Larger Bench of this Commission in the matter of Ambrish Kumar Shukla and Ors. Vs. Ferrous Infrastructure Pvt. Ltd. in Consumer Case No. 97 of 2016 vide its order dated 07.10.2016 has observed as under:

" It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it's the value of the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum. The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing the deficiencies in the goods purchased or the services to be rendered to the consumer. Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction. If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds ₹ 1.00 crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint. For instance if a person purchases a machine for more than ₹1.00 crore, a manufacturing defect is found in the machine and the cost of removing the said defect is ₹10.00 lacs, it is the aggregate of the sale consideration paid by the consumer for the machine and compensation, if any, claimed in the complaint which would determine the pecuniary jurisdiction of the Consumer Forum. Similarly, if for instance, a house is sold for more than ₹1.00 crore, certain defects are found in the house, and the cost of removing those defects is ₹5.00 lacs, the complaint would have to be filed before this Commission, the value of the services itself being more than ₹1.00 crore."

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9. In view of the above, it is clear that for the purpose of pecuniary jurisdiction, the value of services hired or availed plus compensation shall be the value for the purpose of pecuniary jurisdiction. Admittedly, the subject apartment was allotted to the complainant in consideration of ₹1,50,50,925/- to be paid as per the payment schedule. Thus, it is clear that value of the services promised by the opposite party was more than ₹1.00 crore. Therefore, in our considered view, this Commission has jurisdiction to entertain the complaint.

Recently, in the case of Renu Singh vs. Experion Developers Private Limited" and other connected matters" - Consumer Complaint No. 1703 of 2018 - decided on 26.10.2021, a Bench of five Members of this Commission while examining the correctness of the law laid down in .Ambrish Kumar Shukla's case (Suupra) has held as under:-

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" A Bench of this Commission referred the following issues relating to pecuniary jurisdiction under the Consumer Protection Act 1986 (in short the Act) for consideration by a larger Bench, in First Appeal No. 166 of 2016 and other connected appeals, vide order dated 11.08.2016:-

(i) In a situation, where the possession of the housing unit has already been delivered to the complainant and may be sale deed etc. also executed, but some deficiencies are pointed out in the construction/ development of the property, whether the pecuniary jurisdiction is to be determined, taking the value of such property as a whole, or the extent of deficiency alleged, is to be considered for the purposes of determining pecuniary jurisdiction.

(ii) Whether the interest claimed on such value by way of compensation or otherwise, is to be taken into account for determining the pecuniary jurisdiction of a particular consumer forum.

(iii) Whether "the value of the goods or services and compensation, if any, claimed" is to be taken as per original value of such goods, or service at the time of purchase of such goods, or hiring or availing of such service, or such value is to be taken at the time of filing the claim, in question.

(iv) In complaints, proposed to be filed under Section 12 (1) (c) of the Act with permission of Consumer Forum, whether the pecuniary jurisdiction is to be determined, taking the value of goods or service for individual consumer, or the aggregate value of the properties of all consumers getting together to file the consumer complaint is to be taken into consideration. In view of the aforesaid discussions, our answers are as follows:-

(i) The Full Bench of this Commission in Ambrish Kumar Shukla & 21 Ors. Vs. Ferrous Infrastructure Pvt. Ltd., I (2017) CPJ 1 (NC) lays down the law correctly on the issue relating to pecuniary jurisdiction.

(ii) What should be the value of goods or services where the refund of paid money has been sought?

Answer:- Sale consideration, which was agreed between the parties for buying the goods or

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hiring or availing the services is relevant for determination of pecuniary jurisdiction in cases of refund also.

(iii) What should be the period for which the interest should be taken as compensation for adding to the value of goods or services for the purpose of availing the pecuniary jurisdiction of the consumer forum?

Answer:- For the purposes of determination of pecuniary jurisdiction, the rate of interest or period of interest as claim in the complaint alone has to be examined. However, the claim has to be proved in accordance with law and the relief is always subject to law of limitation and rule of estoppel and acquiescence. In view of power of condonation of delay as provided under Section 24-A (2) of the Act, the limit of two years for calculation of interest cannot be fixed either for the purposes of pecuniary jurisdiction or for granting the relief.

10. In light of the above discussion, we reject the contention of the Learned Counsel for the Developer that this Commission has no jurisdiction to entertain the present Complaint.

11. The contention of the Learned Counsel for the Opposite Party Developer that the Complainant is not a 'Consumer' and that he has booked the subject Apartment 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.

12. In so far as, the plea that the Haryana Real Estate Regulatory Authority is appropriate Authority to adjudicate upon the dispute is concerned, in the case of "M/s Imperia Structures Ltd. v. Anil Patni and Anr." (2020) 10 SCC 783, the Hon'ble Supreme Court has 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.

13. We also do not find any substance in the submission of the Learned Counsel for the Developer that due to default on the part of the Complainant in timely making payment of the installments, there was delay in completion of the Project. If there was default of the part of the Complainant in making the payments on due time, the Developer in terms of the Agreement was at liberty to either cancel his booking and refund the amount or to charge the interest on delayed payment. Having not exercising the option to cancel the booking and to charge the interest on the delayed payment, the Developer cannot take shelter under this pretext for delay in the Project.

14. Now adverting to the merits of the case, it is submitted by the Learned Counsel for the Opposite Party Developer that as the delay in completing the Project was due to the reasons beyond their control, the prayer by the Complainants for refund of the deposited amount is not tenable. The defence taken by the Opposite Party Developer for the delay in completion of the

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Project is (i) initiation of the Gail Corridor which passes through the Project, resulting in realignment of the entire layout (ii) Non-removal or shifting of the defunct High-Tension lines passing through the lands resulting in inevitable change in the layout plans; (iii) non- acquisition of sector roads by HUDA to enable accessibility to the various corners of the project (iv) non-availability of labour due to Covid 19. However, no cogent material has been adduced by the Developer to establish that the completion of construction and offer of possession has been delayed on account of reasons beyond their control. Except for stating that there was change in the layout plan on account of initiation of Gail Corridor and non-removal of shifting of High Tension Lines, no documentary evidence has been led by the Developer in support of their defence as to what steps were taken to get over these hurdles and even no correspondence with the competent authority to find out the solution has been placed on record. Even, in our view, these reasons cannot be viewed from any angle as "Force Majeure Event". Further, with regard to shortage of labour due to Covid 19, as per Clause 13 of the Agreement, the possession of the Unit was to be offered, complete in all respect, to the Complainants within a period of 48 months from the execution of the Agreement dated 28.05.2015 meaning thereby the possession was supposed to be handed over to the Complainants latest by May 2019 and period of Covid 19 has started from March 2019. As such, this ground of the delay also does not hold any water. Vide email dated 12.08.2020, the Opposite Party Developer has informed to the Complainants that with regard to your query of delay in possession and refund, we are to inform that due to labour shortage at the site and covid pandemic, construction work is hold. We are expected to resume the construction work by October 2020 in Trainquil Heights. Hence, by this email, it is crystal clear that even by August 2020, the construction work at the site was not complete.

15. In the case of Emmar MGF Land Ltd. & Ors. vs. Amit Puri - [II (2015) CPJ 568 (NC)], this Commission has held that after the promised date of delivery, it is the discretion of the Complainant whether to accept the offer of possession, if any, or to seek refund of the amounts paid by him with some reasonable compensation and it is well within his right to seek for refund of the principal amount with interest and compensation.

16. Further, in the case of Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra - II (2019) CPJ 29 SC, the Hon'ble Apex Court has observed 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 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."

17. In the instant case also, the Complainants cannot be made to wait indefinitely for possession of their Apartment and the Complainants are entitled for refund of the principal

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amount with reasonable interest Accordingly, keeping in view the ratio laid down by the Hon'ble Supreme Court in DLF Homes Panchkula Pvt. Ltd Vs. D.S. Dhanda - II (2019) CPJ 117 (SC), that compensation under multiple heads cannot be awarded, we are of the considered view that simple interest in the form of compensation @ 9% p.a. would meet the ends of justice together with costs of ₹50,000/-.

18. In view of the aforesaid discussion, we partly allow the Complaint with a direction to the Opposite Party Developer to refund the entire principle amount along with interest @9% p.a. from the respective date of deposit till payment, within a period of six weeks from the date of passing of this Order failing which the amount shall carry interest @12% p.a. for the said period. The Complainants are also entitled for costs of ₹50,000/-.

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

R.K. AGRAWAL

PRESIDENT

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DR. S.M. KANTIKAR

MEMBER

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BINOY KUMAR

MEMBER

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