2021 SCeJ 1087 (NCDRC)
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
Before: Justice R.K. Agrawal,President, Dr.S.M. Kantikar,Member
DR. MRIDULA RAJBANSHI & ANR. – Complainant,
Versus
UMANG REALTECH (P) LTD. – Opposite party.
Consumer Case No. 1779 OF 2018
29.07.2021
consumer protection act, 1986 – CPA S. 2(1)(g), CPA S. 2(1)(o), CPA S. 2(1)(r)
builder – Allotment of flat – Complainants cannot be made to wait indefinitely for the delivery of possession and the act of the Opposite Party in relying on Force Majeure clause while retaining the amounts deposited by the Complainants, is not only an act of Deficiency of Service but also of Unfair Trade Practice – Direct the Builder Co. to refund the entire principal amount received along with compensation in the form of simple interest @ 9% p.a. from the date of deposit till the actual date of payment together with costs of Rs.50,000/- within a period of four weeks from today, failing which the amount shall carry interest @ 12% p.a. till its realization. #2021 SCeJ 1087 (NCDRC)
Builder – Allotment of flat – Force majeure – Contention of the Opposite Party is that the project was delayed due to global recession in the real estate sector and many Allottees defaulted in making payments and cancelled their bookings – In our view, it is not a “Force Majeure Event” – The Opposite Party failed to place any material on record to prove that the reasons were beyond their control – Ground taken up by the Builder Co. is totally untenable. #2021 SCeJ 1087 (NCDRC)
For the Complainants : Mr. Brij Bhushan Gupta, Sr. advocate, with Mr. Udai Khanna, Advocate Mr. Arnav Gambhir, Advocate For the Opposite Party : Mr. Vijay K. Singh, Advocate for IRP of Opposite Party No. 1
ORDER
PER DR. S. M. KANTIKAR, MEMBER
1. The present Consumer Complaint has been filed by Dr. (Mrs.) Mridula Rajbanshi and Ms. Suvriti Rajbanshi (hereinafter collectively referred to as the “Complainants”) under Section 21 (a) (i) of the Consumer Protection Act, 1986 (hereinafter referred to as the “Act”) against UMANG Realtech Pvt. Ltd. (hereinafter referred to as the “Opposite Party/Builder Co.”) for failure to hand over possession of their booked apartment by the stipulated date as agreed in the Apartment Buyers' Agreement.
2. Brief facts are that on 25.03.2006, the Complainants had booked a 3-BHK residential apartment admeasuring approximately 1653 sq. ft. with UMANG Realtech Pvt. Ltd. (Opposite Party) in its upcoming residential complex ‘WINTER HILLS DWARKA, New Delhi'. The total sale consideration for the said apartment was Rs.91,50,218/-. However, the total basic sale price of Rs.79,44,316/- was mentioned in the Apartment Buyers' Agreement executed on 28.06.2012 between the parties. The additional charges applicable were not included. As per Clause 8.1 of the said Agreement, the Opposite Party promised to deliver the possession of the residential apartment to the Complainants by 31.03.2014 plus grace period of 6 months, from the date of execution of the Agreement. The Complainants made payments on several occasions to the Opposite Party as agreed and paid a total amount of Rs.90,97,515/- by 10.07.2014. Vide letter dated 28.10.2017, the Opposite Party requested the Complainants for payment of certain alleged dues in the form of holding charges, interest and other charges without enclosing any Account Statement or Ledger Accounts in that regard. It was alleged that despite repeated requests by the Complainants vide letters dated 03.11.2017 and 22.03.2018 to the Opposite Party, no details of the Account Statement for calculating the outstanding dues were provided. The Complainants came to know that the alleged outstanding dues of Rs.5,27,530/- and Rs.6,59,133/- were imposed without any basis after the lapse of due date for delivery of possession. However, vide letters dated 20.03.2018, 27.04.2018 and 24.05.2018, the Opposite Party arbitrarily raised demand for additional payments from the Complainants. It is alleged by the Complainants that despite payment of substantial amount as agreed between the Parties, the Opposite Party failed to deliver the possession of the Apartment within the stipulated period which resulted in extreme mental distress, pain and agony to the Complainants as they had to live in rented premises. Being aggrieved, the Complainants filed the present Consumer Complaint alleging Unfair Trade Practice and Deficiency in Service by the Opposite Party and prayed for directions to the Opposite Party to pay a sum of Rs.2,61,09,587.47 along with pendente lite and future interest @ 18% p.a.
3. The Opposite Party, in its Written Version, submitted that the Occupancy Certificate of the project was obtained on 16.10.2017 and subsequent thereto possession was offered to the Complainants vide final Demand Letter dated 28.10.2017. The delay in handing over possession was due to the challenges faced by the real estate industry which was beyond the control of the Opposite Party. As per Clause 8.1 and 8.2 of the Apartment Buyers' Agreement, the Builder Co. was entitled to reasonable extension of time. It was further submitted that the Opposite Party sent various reminders to the Complainants for payment of outstanding dues, but the Complainants failed to make timely payment and therefore, they were also liable to pay interest of Rs.31,316/- as per the terms and conditions of Apartment Buyers' Agreement. The relief sought by the Complainants was highly exaggerated and the rate of interest of 18% was contrary to Clause 8.6 of the Apartment Buyers' Agreement.
4. After completion of pleadings, we have heard the arguments and perused the material on record.
5. The learned Counsel for the Complainants vehemently argued and reiterated the facts. He placed reliance on the following judgments of the Hon'ble Supreme Court and this Commission:
- Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. vs. DLF Southern Homes Pvt. Ltd. (2020) 16 SCC 512
- DLF Homes Panchkula Pvt. Ltd. & Anr. vs. Sudesh Goyal (Civil Appeal Nos. 4942-4945 of 2019)
- DLF Homes Panchkula Pvt. Ltd. vs. D.S. Dhanda 2019 SCC OnLine SC 689
- Pioneer Urban Land & Infrastructure Ltd. vs. Govindan Raghavan and Ors. (Civil Appeal Nos. 12238 of 2018 and 1677 of 2019)
- Sarabjit Singh Monga and Ors. vs. Ramprastha Promoters and Developers Pvt. Ltd. and Ors. (CC No. 1199 / 2018 decided on 01.11.2019)
- Satish Kumar Pandey and Ors. vs. Unitech Ltd. (CC No. 427-502 / 2014 decided on 08.06.2015)
- Sangeeta Arora vs. DLF Universal Ltd. (RP No. 2286 / 2012 decided on 28.05.2013)
6. The learned Counsel for the Opposite Party submitted that the delay was attributable to Force Majeure and reasons beyond the control of the Seller and therefore no deficiency of service can be attributed to them.
7. The point that falls for our consideration is whether there was any deficiency of service from the Builder Co. and if so, how much the Complainants are entitled for compensation.
8. We note, admittedly the Complainants have paid Rs.90,97,515/- out of the total sale consideration of Rs.91,50,218/- for their flat and executed the Apartment Buyers' Agreement on 28.06.2012. The promised time for delivery of possession of the flat was 31.03.2014 but the Opposite Party offered possession of the apartment on 28.10.2017, i.e., after a delay of 3 years and also failed to pay any amount for the said delay.
9. We would like to refer to the Clause 8.1 of the Agreement which is reproduced below for ready reference:-
“The Company, subject to force majeure, undertakes to complete the construction work of the Residential Complex and will apply for the completion certificate by 31st March 2014, subject to a grace period of 6 (six) months, and as and when the completion certificate is received, possession of the said apartment to the Buyer shall be offered.”
It is apparent as per the terms of Clause 8.1 of the Agreement, the possession of the Apartment was to be delivered by 31st March 2014, plus the grace period of six months up to September, 2014. However, the Opposite Party offered possession of the apartment vide final demand letter dated 28.10.2017 (Annexure C-11) i.e. 3 years beyond the date agreed between the Parties. The Occupancy Certificate was also obtained on 16.10.2017, thus causing a delay of 3 years.
10. We find that force majeure ground taken up by the Builder Co. is totally untenable. The contention of the Opposite Party is that the project was delayed due to global recession in the real estate sector and many Allottees defaulted in making payments and cancelled their bookings. In our view, it is not a “Force Majeure Event”. The Opposite Party failed to place any material on record to prove that the reasons were beyond their control.
11. It is pertinent to note that this Commission in the case of Emmar MGF Land Ltd. & Ors. vs. Amit Puri [II (2015) CPJ 568 NC], held that “after the promised date of delivery, it is the discretion of the Complainants whether he/she wants to accept the offer of possession, if any, or seek refund of the amounts paid with reasonable interest.”
12. The Hon'ble Supreme Court in Marvel Omega Builders (P) Ltd. v. Shrihari Gokhale, (2020) 16 SCC 226 had observed that:
“11. Even assuming that the villa is now ready for occupation (as asserted by the appellants), the delay of almost five years is a crucial factor and the bargain cannot now be imposed upon the respondents. The respondents were, therefore, justified in seeking refund of the amounts that they had deposited with reasonable interest on said deposited amount. The findings rendered by the Commission cannot therefore be said to be incorrect or unreasonable on any count.”
13. In the instant case, the Complainants sought for refund of the principal amount paid by them to the Builder Co. alongwith interest and compensation. In view of the observations of the Hon'ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. vs. Govindan Raghavan (2019) 5 SCC 725, 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 in relying on Force Majeure clause while retaining the amounts deposited by the Complainants, is not only an act of Deficiency in Service but also of Unfair Trade Practice.
14. In the light of the above discussion, we find, both, Deficiency in Service within the meaning of section 2(1)(g) & (o), and Unfair Trade Practice within the meaning of section 2(1)(r), to be well and truly evident on the part of the Opposite Party. In remedy, it would be just and equitable to direct the Builder Co. to pay compensation to the Complainants. Accordingly, in view of the recent decisions of the Hon'ble Supreme Court in DLF Homes Panchkula Pvt. Ltd. vs. D.S. Dhanda, 2019 SCC OnLine SC 689 and Kolkata West International Pvt. Ltd. Vs. Deva Asis Rudra, 2019 SCC OnLine SC 438, the Opposite Party is directed to refund the entire principal amount received from the Complainants along with compensation in the form of simple interest @ 9% p.a. from the date of deposit till the actual date of payment together with costs of Rs.50,000/-. The aforesaid direction shall be complied with within a period of four weeks from today, failing which the amount shall carry interest @ 12% p.a. till its realization.
SS
