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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
R.K. Agrawal, President, Dr. S.M. Kantikar, Member and Binoy Kumar, Member
Amit Arora and Anr. – Complainants
versus
Vatika Limited – Opp. Party
Consumer Case No.710 of 2020
Decided on 16.2.2022
(A) Consumer Protection Act, 1986 – S.21 [Consumer Protection Act, 2019 – S.58] – Services – Real Estate – Allotment of Plots – Complaint filed seeking alleged delay in handing over possession of flats – Refund of amount sought – Complainants cannot be made to wait indefinitely for possession of their Apartment and the Complainants are entitled for refund of the principal amount with reasonable interest, allow the Complaint with a direction to the Opposite Party Developer to refund the entire principle amount along with interest @9% p.a. from the respective date of deposit till payment, within a period of six weeks from the date of passing of this Order failing which the amount shall carry interest @12% p.a. for the said period – Hence, the Complainants are also entitled for costs of Rs.50,000/-. [Paras 17, 18].
(B) Consumer Protection Act, 1986 – S.21 [Consumer Protection Act, 2019 – S.58] – Services – Real Estate – Allotment of Plots – Defence taken by Developer completion of construction and offer of possession has been delayed on account of reasons beyond their control due to change in the layout plan on account of initiation of Gail Corridor and non-removal of shifting of High Tension Lines – Whether can be termed as a Force Majeure Clause – No documentary evidence has been led by the Developer in support of their defence as to what steps were taken to get over these hurdles and even no correspondence with the competent authority to find out the solution has been placed on record – Therefore, these reasons cannot be viewed from any angle as “Force Majeure Event”.
Held: Further, with regard to shortage of labour due to Covid 19, as per Clause 13 of the Agreement, the possession of the Unit was to be offered, complete in all respect, to the Complainants within a period of 48 months from the execution of the Agreement dated 28.05.2015 meaning thereby the possession was supposed to be handed over to the Complainants latest by May 2019 and period of Covid 19 has started from March 2019. As such, this ground of the delay also does not hold any water. Vide email dated 12.08.2020, the Opposite Party Developer has informed to the Complainants that with regard to your query of delay in possession and refund, we are to inform that due to labour shortage at the site and covid pandemic, construction work is hold. [Para 16].
Result: Complaint allowed.
ORDER
The present Consumer Complaint has been filed under Section 21 of the Consumer Protection Act, 1986 (for short “the Act”) by the Complainants, Shri Amit Arora and Mrs. Kavita Arora against Opposite Party, M/s. Vatika Ltd. (hereinafter to be referred to as ‘the Developer’) seeking refund of the amount paid by them to the Developer towards purchase of the Residential Apartment along with interest and compensation as the Developer has failed to hand over the possession of the booked Apartment in terms of the Agreement executed between the parties.
2. The facts as narrated in the Complaint are that the Complainants had booked a Residential Apartment to meet their residential requirement in the Project, namely “Tranquil Heights”, (hereinafter to be referred to as the “Project”) proposed to be developed by the Opposite Party Developer at Sector – 82 A, Gurgaon, Haryana, by paying a booking amount of Rs.8,00,000 on 6.11.2013. The total Sale Consideration of the Apartment was Rs.1,49,73,915/- which was to be paid in terms of Construction Linked Plan. Vide Allotment Letter, dated 20.11.2014, the Complainants were allotted Unit No.3803, on the 38th Floor, in Tower No. E having Super Area of 2265 sq. ft. It is stated by the Complainants that the terms of the allotment were simply dictated to them and they had no option except to sign the Allotment Letter under duress. The Complainants made all the payments from time to time as demanded by the Opposite Party Developer. It is averred that after a long persuasion, the Builder Buyer Agreement (hereinafter to be referred to as the “Agreement”) was executed on 28.05.2015 that is nearly about one and half year from the date of booking of the Apartment which itself amounts to Unfair Trade Practice. As per Clause 13 of the Agreement, the construction of the Project was to be completed by the Developer within 48 months from the date of execution of the Agreement, meaning thereby that the possession should have been handed over to the Complainant on or before May, 2019. However, the Opposite Party Developer, despite their various assurances, has miserably failed to complete the construction of the Project within the stipulated time and hand over the possession of the Apartment booked by the Complainants. According to the Complainants, they have paid a sum of Rs.65,44,231/- till 06.04.2017 out of the total Sale Consideration of Rs.1,49,73,915/-. The Complainants had lost faith in the Developer as considering the construction status of the Project shown on their official website there is bleak chances of getting the possession in the near future. It is stated that despite repeated visits to the office of the Developer and other representations, yet the Opposite Party Developer is not in a position to give an exact date of completion of the Project. Hence, alleging deficiency in service and Unfair Trade Practice on the part of the Opposite Party Developer, the Complainants have filed the present Complaint seeking following reliefs:-
“(a) Direct the Opposite Party for an immediate 100% refund of the total amount paid by the Complainant(s) along with a penal interest @ 18% per annum from the date of receipt each payment made;
(b) Direct the Opposite Party to pay compensation of Rs.5,00,000/- (Rupees Five Lakhs Only) to the Complainant(s) for the mental agony, harassment, discomfort and undue hardships caused to the Complainant(s) as a result of the above acts and omissions on the part of the Opposite Party;
(c) Direct the Opposite Party to pay a sum of Rs.1,00,000/- (Rupees One Lakh Only) to the Complainant(s) towards litigation costs
(d) Any other and further relief in favour of the Complainant(s) as the Hon’ble Commission may deem fit and proper in the fact and circumstances of the case.”
3. Upon notice, the Opposite Party Developer has contested the Complaint and filed its Written Version, inter-alia, raising preliminary objections that; the Complaint is not maintainable before this Commiss
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