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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
R.K. Agrawal, President and Dr. S.M. Kantikar, Member
Apoorv Bansal – Complainant
versus
M/s. Vatika Ltd. – Opp. Party
Consumer Case No.1119 of 2018
Decided on 28.1.2022
(A) Consumer Protection Act, 1986 – S.21(b)[Consumer Protection Act, 2019 – S.58(1)(b)] – Real Estate – Alleged delay in handing over possession of flat – refund of amount deposited by the Complainant towards Apartment – Complainant in the present case cannot be made to wait indefinitely for possession of the Apartment. The Opposite Party Builder is enjoying the benefits of hard-earning money deposited with it by the Complainant. Therefore, the Complainant is entitled for refund of the principal amount with reasonable interest and compensation – therefore, Compliant is allowed, Opposite Party Builder is directed to refund the entire deposited amount to the Complainant alongwith compensation in the form of simple interest @ 9% p.a with effect from the date of each payment, till the date of refund. The Opposite Party Builder shall also be liable to pay a sum of Rs.50,000/- as costs of litigation to the Complainant. [Para 9].
(B) Consumer Protection Act, 1986 – S.21(b)[Consumer Protection Act, 2019
S.58(1)(b)] – Real Estate – Alleged delay in handing over possession of flat – Complaint filed seeking refund of the amount deposited by the Complainant along with reasonable compensation – consideration of Rs. Rs.1,73,02,0955/- to be paid as per the payment schedule to the Developer – preliminary objection taken as to pecuniary jurisdiction of National Commission over the present dispute – In the present case, the Total Sale Consideration (as per Account Statement issued by OP Developer as on 09.12.2016) was Rs.1,73,02,0955/- with the Opposite Party Developer. If even a part of the compensation claimed by the Complainant is also added to the said sale consideration, the aggregate would be much above Rs.1 Crore. Therefore, it would be difficult to say that this Commission does not possess the requisite pecuniary jurisdiction – Thus, it is clear that value of the services promised by the opposite party was more than Rs.1.00 crore. Therefore, National Commission has jurisdiction to entertain the complaint. [Para 9].
(C) Consumer Protection Act, 1986 – S.21(b)[Consumer Protection Act, 2019 – S.58(1)(b)] – Real Estate – Plea taken by opposite party as to maintainability of Complaint on the ground that complainant is not a consumer as he had booked the subject flat with intention to sell the same on profit in secondary market – opposite party was required to lead evidence to show that complainant had booked the subject flat with intention to sell the same on profit. No evidence whatsoever to substantiate this plea has been led. [Para 10].
(D) Consumer Protection Act, 1986 – S.21(b)[Consumer Protection Act, 2019 – S.58(1)(b)] – Real Estate – Builder buyer Agreement – terms of agreement fully loaded in favour of the opposite party – validity of such agreement – if can be termed as arbitrary – complainant was justified in seeking refund of his money with interest since the terms and conditions of the builder-buyer agreement sent to him for signatures were not acceptable to him, therefore, he sought changes but opposite party declined to make changes in the agreement. [Para 13].
Held: Thus, it is amply clear on record that opposite party called upon the complainant to sign the builder buyer agreement after having received huge amount against the agreed consideration amount. It is pertinent to note that undisputedly, the copy of the builder buyer agreement was sent for signatures of the complainant vide letter dated 16.07.2015.
(E) Consumer Protection Act, 1986 – S.21(b)[Consumer Protection Act, 2019 – S.58(1)(b)] – Real Estate – Builder buyer Agreement – condition imposed by opposite party that failure of the complainant to return the same with signatures within 30 days would entitle the builder to terminate the booking and refund the money paid after deductions – Whether can be termed as unfair trade practice – Mere fact that opposite party after having received huge amount from the complainant has forwarded the builder buyer agreement for signatures with a threat that failure of the complainant to return the same with signatures within 30 days would entitle the builder to terminate the booking and refund the money paid after deductions, is clear proof of undue coercion exerted by the builder on the complainant, which amounts to unfair trade practice. [Para 8].
Result: Complaint Allowed.
ORDER
1. The present amended Consumer Complaint has been filed under Section 21 of the Consumer Protection Act, 1986 (for short “the Act”) by the Complainant, Shri Apoorv Bansal against Opposite Party Builder, M/s. Vatika Ltd. (hereinafter referred to as ‘the Builder’) seeking refund of the amount paid by him to the Builders towards purchase of the Residential Unit alongwith interest and compensation.
2. The facts as narrated in the Complaint are that the Complainant had booked a Residential Apartment in the Project, namely “Tranquil Heights – Vatika India Next”, Sector 82A, Gurgaon to be developed by the Opposite Party Builder, by paying a booking amount of Rs.8 lakh on 2.11.2013. The total Sale Consideration of the Apartment was Rs.1,36,25,625/- (Rupees One Crore Thirty Six Lakh Twenty Five Thousand Six Hundred and Twenty Five only) which was to be paid in terms of Construction Linked Plan. Vide Allotment Letter, dated 29.09.2014, the Complainant was allotted Unit No. E-703 located on 7th Floor in Tower No. E having Super Area of 2290 sq. ft. It is alleged by the Complainant that the terms of the allotment were simply dictated to him and he had no option except to sign the Allotment letter under duress. Further, in the Allotment Letter, no date for handing over the possession of the allotted Unit was mentioned and it was orally affirmed by the Builder that the possession of the subject Apartment would be handed over within three years from the date of booking i.e., by November, 2016.
The Complainant made all the payments from time to time as demanded by the Opposite Party Builder. It is averred that after a long communication, the Opposite Party Builder finally sent the Builder Buyer Agreement to the Complainant for execution Vide Letter dated 23.06.2015, whereby the total sale consideration of the allotted Unit was stated to be Rs.1,65,73,875/- (Rupees One Crore Sixty Five Lacs Seventy Three Thousand Eight Hundred and Seventy Five Only). As per Clause 13 of the Agreement, the construction of the Building/Apartment was to be completed by the Builder within 48 months from the date of execution of the Builder Buyer Agreement, meaning thereby that the possession should have been handed over to the Complainant on or before 22.05.2019. Since, some of the terms and conditions of the Builder Buyer Agreements were one sided and totally in favour of the Opposite Party Builder, the Complainant refused to sign the same and requested the Builder either to change the disputed terms and conditions of the Builder Buyer Agreement or refund the amount deposited by him. However, no Builder Buyer Agreement was executed between the Complainant and the Opposite Party Builder. While the Complainant was awaiting the amended/fresh Builder Buyer Agreement, he came to know that the Tower E where he was allotted the Residential Unit, was not approved by the Competent Authorities and only Towers A and B were approved that too in October 2015. However, the Opposite Party Builder started raising demands from November 2013. Vide e-mail dated 09.11.2015, the Complainant requested the Opposite Party Builder to refund the deposited amount with interest @ 18% p.a. In response, vide email dated 10.11.2015, the Opposite Party Builder informed the Complainant that his request for cancellation of the booking could not be acceded to. Again, vide email dated 11.03.2017, the Complainant pointing out shortcoming on the part of Opposite Party Builder, requested them to refund the deposited amount. In reply, vide email dated 16.03.2017, the Opposite Party Builder informed the Complainant that in case of cancellation of the booking, they would be entitled to make deductions out of the deposited amount, as per the terms and conditions of the Builder Buyer Agreement which the Complainant protested vide email dated 03.07.2017 and again requested the Builder to refund t
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