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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
V.K. Jain, Presiding Member
Karan Singal —Complainant
versus
IREO Victory Valley
Pvt. Ltd. and Ors. —Opp. Parties
Consumer Case No.1265 of 2016
Decided on 7.5.2019
Counsel for the Parties:
For the Complainant:Mr. Bhavya Goyal, Advocate
For the Opp. Parties:Mr. P. Vinay Kumar, Advocate
IMPORTANT POINT
Builder can not seek to bind the flat purchaser with one-sided contractual terms.—Para 7
Headnote:
Consumer Protection Act, 1986—Sections 12—Haryana Fire Service Act, 2009—Section 15 and Haryana Real Estate (Regulation And Development) Rules 2017—Rule 15—Residential flat—Allotment of—Possession of the allotted flat having not been offered to the complainant despite he having paid Rs.2.38 Crores to the OP—Provisional NOC should be issued within 60 days of submission of the application—Delay of more than three years even in obtaining the Occupancy Certificate since—Construction completed and during pendency of complaint and offer for possession given—Offer not accepted by complainant—Builder can not seek to bind the flat purchaser with one-sided contractual terms—Directions issued—Held that, OP shall refund the entire principal amount of Rs.2.38 Crores to the complainant alongwith compensation in the form of simple interest @ 10.7% per annum from the date of each payment till the date of refund with cost of Rs. 25,000/-. [Paras 3, 4, 5, 7, 8 and 9]
Result: Complaint disposed of.
ORDER (ORAL)
V.K. Jain, Presiding Member—The complainant booked a residential flat with the OP in a project namely ‘Ireo Victory Valley’, which the OPs were to develop in Gurgaon. Flat No.C-2304 in the said project having been allotted, they executed an Apartment Buyers Agreement with the OPs on 15.05.2013. Clause 13.3 of the Agreement refers to the possession, and reads as under:—
13.3 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 being in default of any provisions of this Agreement including but not limited to the timely payment of all dues and charges including the total Sale Consideration, 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 36 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 (One Hundred and Eighty) days (“Grace Period”), after expiry of the said Commitment Period to allow for unforeseen delays beyond the reasonable control of the Company.
2. The possession of the allotted flat having not been offered to the complainant despite he having paid Rs.2.38 Crores to the OP, he approached this Commission by way of this Consumer Complaint seeking refund of the amount paid by him to the OPs with compensation etc.
3. The complaint has been resisted by the OP which has admitted the allotment made to the complainant as well as the payment received from him. Execution of the Buyers Agreement is also admitted. This is also the case of the OPs that the Occupancy Certificate in respect of the Tower in which the flat allotted to the complainant is located has since been obtained by them on 28.09.2017 and thereafter, possession has been offered to him on 14.12.2017 during pendency of the complaint.
The complaint is stated to have been resisted on the grounds which this Commission has already rejected in Consumer Complaint No.2110 of 2016 Shamshul Hoda Khan Vs. M/s Ireo Victory Valley Pvt. Ltd. & Anr. decided on 17.01.2019. The decision of this Commission in Shamshul Hoda Khan (supra), to the extent it is relevant, reads as under:—
6. It is an admitted position that the requisite sanction for construction of the buildings was granted on 29.11.2010 by Directorate of Town and Country Planning, Haryana. Condition No.3 of the sanction, reads as under:—
“On receipt of the above request the Commissioner, Municipal Corporation, Gurgaon after satisfying himself that the entire fire protection measures proposed for the above buildings are as per NBC and other Fire Safety Bye Laws, and would issue a NOC from the Fire Safety and means of escape/access point of view. This clearance/NOC from the File Authority shall be submitted in this office alongwith a set of plans duly signed by the Commissioner, Municipal Corporation, Gurgaon within a period of 90 days from the date of issuance of sanction of building plans. Further, it is also made clear that no permission for occupancy of the building shall be issued by Commissioner, Municipal Corporation, Gurgaon unless he is satisfied that adequate fire-fighting measures have been installed by you and suitable external fire-fighting infrastructure has been created at Gurgaon, by Municipal Corporation, Gurgaon before grant of occupation certificate by the Director General.”
7. A similar condition imposed in the approval of the building plans recently came up for consideration of this Commission in CC/189/2017 Pradeep Kumar Gupta Vs. Ireo Grace Realtech Pvt. Ltd. & other connected matters decided on 10.1.2019, and the following was the view taken by this Commission in this regard
