NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
R.K. Agrawal, President and Dr. S.M. Kantikar, Member
Ram Vilas Sharma and Ors. – Complainants
versus
M/s. Gold Souk Infrastructures Private Limited and Anr. – Opp. Parties
Consumer Case No.421 of 2018
Decided on 4.3.2021

IMPORTANT POINT
“Complainants cannot be made to wait for indefinitely for delivery of possession of flats booked, therefore, held entitled for refund of amount deposited.”

Headnote:

Consumer Protection Act, 1986 – Sections 12(1)(c) and 21 : [Consumer Protection Act, 2019 – Sections 35 and 58] – Builder-Buyer Agreements – Delay in delivery of possession of apartments – Claim for amount deposited – Scope – Allegedly, opposite parties had not handed over possession of apartments to complainants – Since common prayers for refund of amounts deposited by purchasers of flats, shows common interest as well as common grievance, claim action is maintainable – Despite having 30% to 70% of total sale consideration received, developer neither completed construction nor offered possession – There is no construction at all at the site in question – Deficiency in service found on part of opposite party – Therefore, opposite parties directed to refund the amount deposited to complainants with compensation in term of simple interest @ 8% – Further direction issued.

Held: So far as, the defence taken by the Opposite Parties that the Complaint is pre-matured and not maintainable as Class Action is concerned, vide order, dated 15.05.2018, while deciding I.A No. 3274 of 2018 filed by the Complainants u/s 12(1) (c) of the Act

In brief, it is the case of the Complainants that despite having received 30% to 70% of the total sale consideration from them, as extracted in the above table and executing the Apartment Buyer Agreement in 2014/2015, with the promise to deliver the possession in June, 2019, till date the Opposite Parties Developer did not complete the construction nor offered possession. Even the Developers have failed to start the construction at the site and there is no possibility of handing over the possession of the Apartments in the near future, therefore, they are entitled for relief claimed in the prayer clause of the Complaint with interest and compensation.

Before adverting to the reliefs claimed by the Complainants in the Complaint.

It would be seen that in terms of Clause 10.1 of the Agreement, the possession of the Apartments to the Complainants was proposed to be delivered within 48 months from the date of execution of the Apartment Buyer’s Agreement. Even if, the benefit of the grace period of six months is given to the Developer, the possession of the apartments, complete in all respects, therefore, ought to have been delivered to the Complainants by June, 2019 as most the Complainants executed the Agreements in 2014/2015. However, the construction has not been completed till today by the Developer. As observed in the afore-extracted Order dated 15.05.2018, the work of excavation of 5 towers with 24 storeys each was standstill. Even, in the Minutes of the 96th Meeting of the State Environment Impact Assessment Authority held on 22nd September, 2016 by its Chairman.

Some of the Complainants had sent the various emails to the Developers to report the status of the Project and inform the exact date of delivery of the completion of the Project and handing over the possession. But the Developer has failed to give any exact date of handing over the possession of the Apartments, complete in all respects. A bare perusal of the photographs filed by the Complainants also reveals that there is no construction at all at the site in question. Besides, no specific plea has been taken by the Developers in their Written Statements that the delay has occurred in completion of Project due to default on the part of the Complainants in making the payment of instalments and granting approval/permission by the Statutory/Government Agencies. Further, no material has been adduced by the Developers to establish that the completion of construction and offer of possession has been delayed on account of Force Majeure or reasons beyond their control. The plea taken by the Opposite Party No.2 that the Complainants had initially invested their money with them and later on the investment was transferred to the Opposite Party No.1 and hence, they are not liable to pay any compensation to them for delay in Project, does not hold any water for the reason that the Opposite Party No.2 cannot escape from their liability towards the Complainant and they can pursue their remedy against the Opposite Party No.1 for any legitimate claim. Under these circumstances, there is no justification for the delay in completing the construction and handing over the possession. We find it a fit case to place reliance on the judgment of this Commission in Emmar MGF Land Ltd. & Ors. vs. Amit Puri - [II (2015) CPJ 568 NC], wherein it was laid down that after the promised date of delivery it is the discretion of the Complainant whether he/she wants to accept the offer of possession, if any, or seek refund of the amounts paid with reasonable interest. We are of the view that the Complainants in this case also cannot be made to wait indefinitely for the delivery of Possession and the act of the Developers to retain the amounts deposited by the Complainants, is not only an act of Deficiency of Service but also of Unfair Trade Practice, especially in light of the view and the fact that the Developers charge interest @ 18% p.a. for any delay in the payments made by the Apartment Buyers and Clause 10.11 of the Agreement stipulates that compensation would be paid at Rs.5/- per sq. ft. per month of the super area for the period of delay beyond June 2019. Such terms in Clauses are extremely unfair and one-sided and fall within the definition of ‘Unfair Trade Practice’ as defined under Section 2(r) of the Act.

At this juncture, we find it a fit case to place reliance on the recent judgment of the Hon’ble Apex Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan,- II (2009) CPJ 34 (SC), wherein the Apex Court.

Further, the principles of law laid down by the Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra - II (2019) CPJ 29 (SC), will also be applicable in the present case.

Now, the question which arises for our consideration is how much interest/compensation is to be paid to the Complainants on the amount deposited by them with the Developers. The Hon’ble Supreme Court in the case of DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda – II (2019) CPJ 117 (SC) .

Accordingly, keeping in view the ratio laid down by the Hon’ble Supreme Court in DLF Homes’s case (supra) that compensation under multiple heads cannot be awarded, we are of the considered view that simple interest in the form of compensation @ 8% p.a. would meet the ends of justice together with costs of Rs.50,000/- to each of the Complainants.

In the result, this Complaint filed under Section 12(1)(c) of the Act i.e., for the benefit of all Consumers/Complainants is allowed in part directing the Opposite Parties Developers to refund the deposited amount to the Complainants with compensation in the form of simple interest @ 8% p.a. from the respective dates of deposit till the payment is made together with costs of Rs.50,000/- to each of the Complainants. This amount is directed to be paid within four weeks from the date of receipt of a copy of this order, failing which, the amount shall attract interest @ 10% p.a. for the same period. (Paras 8 to 17)

Result: Complaint Allowed Partly.