Back
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
R.K. Agrawal, President and Dr. S.M. Kantikar, Member
Chanda Manghani and Anr. – Complainants
versus
M/s. Raheja Developers Limited – Opp. Party
Consumer Case No.756 of 2020
Decided on 21.1.2022
(A) Consumer Protection Act, 1986 – Section 21(a)(i)[Consumer Protection Act, 2019 – Section 58(1)(a)(i)] – Real Estate – Compliant filed for alleged delay in delivery of possession of apartments – Plea raised by Opposite Party that Complainant is not a consumer – onus of establishing that the Complainant was dealing in real estate i.e. in the purchase and sale of plots/ flats in his normal course of business to earn profits, shifts to the Opposite Party, which in the instant case they had failed to discharge by filing any documentary evidence to establish their case – Therefore, the Complainant is a ‘Consumer’ as defined under Section 2 (1)(d) of the Act. [Para 10].
(B) Consumer Protection Act, 1986 – S. 21(a)(i)[Consumer Protection Act, 2019 – S.58(1)(a)(i)] – Real Estate – Builder Buyer Agreement, as per Clause 3.7 in case of delay, the Purchaser was liable to pay interest @18%, whereas as per Clause 4.2, in case of delay in possession, the OP Developer is liable to pay meager compensation in the form of Rs. 7/- per sq. ft – Whether terms of such agreement are one sided / unfair – terms of the Agreement are wholly one-sided and unfair. Therefore, the Complainant cannot be made bound to the terms of the Agreement, which is one-sided and unfair. [Para 12]
Held: Hon’ble Apex Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, II (2019) CPJ 34 (SC), wherein the Apex Court has observed as follows:
“6.7. A terms of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the Agreement dated 08.05.2012 are ex-facie one sided, unfair and unreasonable. The 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 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder.
7. In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyer’s Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent-Flat Purchaser. The Appellant-Builder cannot seek to bind the Respondent with such one-sided contractual terms.”
(C) Consumer Protection Act, 1986 – Section 21(a)(i)[Consumer Protection Act, 2019 – S.58(1)(a)(i)] – Real Estate – Plea raised by OP that delay caused due to failure on part of State Authorities – it is the duty and responsibility of the Opposite Party Developer to follow-up with the State Authorities for providing infrastructure facilities like road, water, electricity and sector roads. The Complainant cannot be made victim for the same. [Para 14].
(D) Consumer Protection Act, 1986 – S.21(a)(i)[Consumer Protection Act, 2019 – S.58(1)(a)(i)] – Real Estate – Alleged delay in delivery of possession, refund of amount sought – Complainants cannot be made to wait indefinitely for possession of the Apartment, as the Apartment is not ready for possession – The Opposite Party Developer is duty bound to hand over a physical possession of the Apartment after obtaining Occupancy Certificate to the Complainant – Therefore, Complainants are entitled for refund of the principal amount along with damages and compensation in the form of reasonable interest which we quantify @9% p.a. from the date of respective date of deposit till the date of actual refund. Consequently, the Opposite Party Developer is directed to refund to the Complainants Rs.82,06,538/- (Rupees Eighty Two Lakhs Six Thousand Five Hundred Thirty Eight only) alongwith interest @9% p.a. from the respective dates of deposit till the date of actual refund within 6 weeks from the date of passing of this Order – Compliant allowed. [Paras 16 to 19]
Result: Complaint allowed.
ORDER
The present Consumer Complaint has been filed under Section 21(A)(i) of the Consumer Protection Act, 1986 (for short “the Act”) by Chanda Manghani and Rahul Manghani (hereinafter referred to as the Complainants) against Opposite Party, M/s. Raheja Developers Ltd. (hereinafter referred to as the Developer), seeking refund of the amount paid towards purchase of Flat alongwith interest as the Opposite Party Developer failed to hand-over the possession of the Flat booked by them in the Project launched by the Developer in the name and style of “Raheja Revanta” located at Sector 78, Gurugram, Haryana.
2. Brief facts as narrated in the Complaint are that the Opposite Party Developer launched a Residential Housing Project in the name and style of “Raheja’s Revanta” located at Sector 78, Gurugram, Haryana. The Complainants booked a residential Apartment for their personal use in the said Project by paying a sum of Rs.6,81,315/- to the OP Developer on 15.03.2012. Unit No. A-181, at 18th Floor was allotted to the Complainant for a total sale consideration of Rs.92,49,623/-. Agreement to Sell (hereinafter referred to as the Agreement) was executed between the Parties on 11.05.2012. It was averred by the Complainant that the terms of the Agreement were one-sided and more beneficial to the Opposite Party Developer as according to Clause 3.7 in case of delay, the Purchaser was liable to pay interest @18%, whereas as per Clause 4.2, in case of delay in possession, the OP Developer was liable to pay meager compensation in the form of Rs.7/- per sq. ft. As the Complainants have already deposited huge amount with the Opposite Party Developer they have to sign the unilateral Agreement. As per Clause 4.2 of the Agreement, the possession of the Apartment was to be delivered within 48 months from the date of execution of the Agreement, by 11.05.2016. The Complainant had opted for Construction Linked Payment Plan and had deposited Rs.82,06,538/- on different dates as per demand of the Opposite Party Developer. Despite that the Opposite Party Developer miserably failed to deliver the possession of the Flat within stipulated period. Whenever the Complainant raised queries with the Opposite Party Developer regarding handing over the possession, the Developer neither provided any specific date for the delivery of the possession nor refunded the amount deposited by the Complainants. They have lost trust on the Opposite Party Developer and are no longer interested in having possession of the Apartment. Alleging deficiency in service and Unfair Trade Practice on the part of the Opposite Party Developer, the Complainants has filed the present Consumer Complaint with the following prayer:
a) allow the present complaint;
b) Direct the Opposite Party to refund the entire amount paid by the Complainants i.e. Rs.82,06,538/- (Rupees Eighty two Lakhs Six Thousand Five Hundred and Thirty Eight Only) along with 18% simple interest as compensation from the date of payment until realization; and
c) Direct the Opposite Party to make the payment for the sum of Rs.60,000/- (Rupees Sixty Thousand Only) per month from the date of booking unit refund as compensation for the loss suffered by the complainants on their rental accommodation during this time; and
d) Opposite Party may be further directed to compensate the Complainants to the tune of Rs.10,00,000/- (Rupees Ten Lakhs) for mental harassment and unfair trade practices.
e) Opposite Party may also be directed to pay the cost of the Complainants to the tune of Rs.1,00,000/- (Rupees One Lac Only) as litigation expenses;
f) Pass such other or further order/orders as maybe deemed fit and proper on the facts and in the circumstances of this case.
3. The Complaint was resisted by the Opposite Party Developer by filing its Written Statement in which the Opposite Party Developer stated the Complainants have already a property in Delhi and have booked the Apartment in question, for investment as such they do
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
