NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
R.K. Agrawal, President and Dr. S.M. Kantikar, Member
Sivarama Sarma Jonnalagadda and Ors. – Complainants
versus
M/s. Maruthi Corporation Limited and Ors. – Opp. Parties
Consumer Case No.379 of 2013 and Consumer Case No.411 of 2019
Decided on 21.9.2021

IMPORTANT POINTS
1) Complainant cannot be made to wait indefinitely for the delivery of possession and the act of the Opp. Party in relying on force majeure clause while retaining amounts deposited by the Complainant, is not only an act of deficiency of service but also amounts to unfair trade practice.
2) Incorporation of one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2(r) of the Consumer Protection Act, 1986.

Headnote:

Consumer Protection Act, 1986 – Section 21 [Section 58 – Consumer Protection Act, 2019] – Complaint before NCDRC – Complainants allege that the Opposite Parties have miserably failed to develop the above mentioned Township, inspite of receiving huge sums from Complainants - Due to gross deficiency in service and unfair trade practices of Opp. Parties, Complainants have thus filed the consumer complaint - Arbitration clause in the Agreement does not bar the jurisdiction of the Consumer Fora to entertain the Complaint Construction of 2 Villas which were to be constructed by the Opp. Parties on Plot Nos. 129 and 130 have not yet been fully completed - Complainant cannot be made to wait indefinitely for the delivery of possession and the act of the Opp. Party in relying on force majeure clause while retaining amounts deposited by the Complainant, is not only an act of deficiency of service but also amounts to unfair trade practice - 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 - Apartment Buyer’s Agreement were wholly one-sided and unfair to the Flat Purchaser.

Held: The Complainants allege that the Opposite Parties have miserably failed to develop the above mentioned Township, inspite of receiving huge sums from Complainants. Complainants have relied on photographs taken on 13.08.2011 wherein it is illustrated that no development activity has been carried out by the Opposite Parties. In view of the gross deficiency in service as committed by the Opposite Parties, the Complainants, via legal Notice dated 17.08.2013, demanded refund of entire monies paid along with interest @24% p.a. The Opposite Parties vide letter dated 01.10.2013, replied to the said legal Notice, further raising demand of Rs.6,00,10,004/- (Rupees Six Crores Ten Thousand and Four Only) on account of dues and interest. In view of the gross deficiency in service and unfair trade practices of the Opposite Parties, the Complainants have thus filed the present Consumer Complaint with the following prayer:

Ms. Vaishnavi, Learned counsel for the Complainants, with respect to maintainability of the Complaints, has argued that in view of the decision rendered by the Hon’ble Supreme Court in M/s. Emaar MGF Land Limited vs. Aftab Singh, (2019) CPJ 5 (SC), stating that an Arbitration clause in the Agreement does not bar the jurisdiction of the Consumer Fora to entertain the Complaint, thus this Commission has the jurisdiction to decide the present Complaints. She has further argued that the Opposite Parties, in spite of receiving huge sums as sale considerations, have miserably failed to develop the Township with amenities, as promised. That the photographs, annexed as Annexure C-5 (Colly), illustrate the true picture of the incomplete Project as on 13.11.2010, wherein the Construction Site can been seen as a deteriorated Site and a deserted land with no running Construction activity of any kind. The Complainants allege to have been cheated, fooled and taken for a ride and consequentially, with no other option left, the Complainants are before this Commission praying for refund of the monies paid along with interest and damages.

Having given our thoughtful consideration to the various pleas raised by the learned Counsel for the Parties, we find that the Construction of the two Villas which were to be constructed by the Opposite Parties on Plot Nos. 129 and 130 have not yet been fully completed. The Complainants have paid a total sum of Rs.3,33,60,000/- (Rupees Three Crores Thirty Three Lakhs Sixty Thousand) as per the statement of Ledger Account filed by the Complainants (Annexure C-3).The fact regarding non-completion of Villa also stand admitted by the Opposite Parties but reasons which have been given for not completing the construction are not satisfactory and cannot be a ground for non-completion of construction for such a long period.

Keeping in view the Judgment passed by 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 wants to accept the offer of possession, if any, or seek refund of the amounts paid with reasonable interest, it is held that it is well within the Complainant’s right to seek for refund of the principal amount with interest and compensation as construction is still not complete. We are of the view that the Complainant cannot be made to wait indefinitely for the delivery of possession and the act of the Opposite Party in relying on force majure clause while retaining the amounts deposited by the Complainant, is not only an act of deficiency of service but also amounts to unfair trade practice. 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 (2019) CPJ 34 (SC) (Paras 4, 5, 14, 16, 17 & 18)

Result: All Consumer Complaints allowed.