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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
R.K. Agrawal, President and M. Shreesha, Member
Prem Lata Arora —Complainant
versus
Today Homes & Infrastructure Private Limited —Opp. Party
Consumer Case No.2426 of 2017
Decided on 10.5.2019
For the Complainant:Mr. Prince Arora, Advocate
For the Opp. Party:Mr. Sumesh Dhawahn and Ms. Ankita Bajpai, Advocates
IMPORTANT POINT
Onus is on the developer to establish that the consumer purchased the flat to indulge in ‘purchase and sale of flats’.—Para 12
Headnote:Consumer Protection Act, 1986 – Section 21(a)(i) – Real Estate (Regulations and Development) Act, 2016 – Section 79 – Flat – Allotment of – Total sale consideration was Rs.70,97,800 – Complainant paid a sum of Rs.68,87,099 – Developer has failed to deliver the possession to the Complainant in time – As per agreement after the expiry of prescribed and grace period the Developer would pay her compensation @ Rs. 5/- per sq – Considerable delay of 11 months – Contractual obligations failed – As per Clause 8 of the Agreement, interest rate @ 18% p.a. was liable to be charged in case of any delay in payment of any amount from the Allottees – Agreement having arbitration clause – Onus is on the Opposite Party to establish that the Complainant purchased the same to indulge in ‘purchase and sale of flats’ – Opposite Party has not filed any material on record to prove that there were any Force Majure Events beyond their control – Complainant cannot be made to wait indefinitely for possession – Complainant is entitled for refund of the principal amount with interest – Held that, Complaint is allowed in part directing the Opposite Party to refund the principal amount with interest @ 12% p.a. from the respective dates of deposit till the date of realization together with costs of Rs.25,000/- to the Complainant. [Paras 2, 4, 6, 12, 18 and 19]
Result: Complaint allowed.
M. Shreesha, Member—This Complaint has been filed under Section 21 (a) (i) of the Consumer Protection Act, 1986 (in short “the Act”) against M/s Today Homes & Infrastructure Pvt. Ltd. (hereinafter referred to as “the Developer”), seeking the following reliefs:—
a. As the Respondent have failed to comply with and honour the commitments and legal responsibility of handing over the possession of Apartment to the Complainant despite admittedly pocketing 95% of the total agreed sale consideration, it is an unfair trade practice, as held by the Hon’ble Supreme Court and this Hon’ble Commission. The Respondent be directed to refund the entire amount paid to them i.e. Rs.68,87,099/- along with interest @ 18% per annum (approx.. Rs.62,50,327 calculated as on 17th Aug, 2017) from date of each payment made by the Complainant to the Respondent.
b. Compensation of Rs.15 Lacs be awarded to the complainant for the inordinate delay in possession and for causing the undue mental agony, harassment, embracement caused at the hands of the builder/ Respondent.
c. Compensation of Rs. 3 Lacs be awarded to the Complainant towards the litigation and commutation cost.
d. Refund of Service Tax paid upto to July 2012 by the Complainant to the Respondent be granted along with 6% interest p.a. any enhancement in service tax rates post the original date of possession of borne by the Respondent himself.
e. Such other/further order as may be deemed fit and proper in the facts and circumstances of this case may also awarded in favour of the Complainant to uphold the rule of law.
2. Briefly stated the facts of the case, as stated in the Complaint, are that the Complainant, who is the second allottee of the unit, entered into a Buyer Agreement with the Developer on 19.09.2011 in the project titled as “Canary Greens” situated in Sector 73, Gurgaon, Haryana-122 001 for the unit bearing No. 02, having super area of 1640 sq. ft. in the 5th floor of Tower T 7. The total sale consideration was Rs.70,97,800/- out of which the Complainant paid a sum of Rs.68,87,099/-, which amounts to 95% of the total sale consideration, to the Developer. It is stated that as per clause 21 of the Buyer’s Agreement, the Complainant was assured that the possession of the Apartment would be delivered within 36 months from the date of signing of the Agreement with a grace period of six months.
3. It is pleaded that despite having paid 95% of the total sale consideration on time and making several requests, the Developer has failed to deliver the possession to the Complainant till the date of filing of the present Complaint. It is pleaded that as per clause 21 of the Buyer’s Agreement, it was agreed by the Developer that in case the Developer is not able to hand over the possession to the Complainant after the expiry of prescribed and grace period the Developer would pay her compensation @ Rs.5/-per sq. ft. per month of the super area for the period of delay. However, as per clause 8, of the Buyer’s Agreement, if any amount falls due from the buyers the Developer would charge interest @ 18% p.a. on the said amount. That the Complainant is suffering from tremendous financial losses due to the conduct of the Developer in not delivering the possession within the promised time.
4. It is averred that the Buyers Agreement was executed after the considerable delay of 11 months on 19.09.2011 from 18.10.2010, when the booking was made by paying Rs.5,90,400/- as is evidenced from the Statement of Account (Ex CW-1/3); that the Developer was unduly delaying the execution of the Agreement, the Complainant cannot be penalized for that by increasing the dates for handing over of possession and therefore the time for physical possession be counted from the date of booking and not from the date of execution of the agreement, which was executed belatedly. The terms of the Agreement is one sided and she was compelled to execute the Agreement as in the event of his refusal to execute the Agreement the boo
