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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
R.K. Agrawal, President, Dr. S.M. Kantikar, Member and Binoy Kumar, Member
Rakesh Kumar Bohre and Anr. – Complainants
versus
Vatika Limited – Opp. Party
Consumer Case No.880 of 2017
Decided on 15.2.2022
(A) Consumer Protection Act, 1986 – S.21 [Consumer Protection Act, 2019 – S.58] – Services – Real Estate – Complaint has been filed seeking refund of amount paid to the Builder towards purchase of the Residential Unit alongwith interest and compensation – whether the complainants are entitled to refund of the amount paid by them to the OP or the OP is entitled to forfeit the Earnest Money as per the terms and conditions of the proposed buyers’ agreement, which they had sent to the complainants – The terms and conditions conveyed to the complainants were wholly one-sided and the parties are not evenly placed even in the matter of payment of interest in a case of default by one of the parties to the agreement. Even the basis of the calculation of super built up area was not provided to them nor were they given any clarity on additional tax – Therefore, such wholly one-sided agreements were termed as unfair. [Para 8].
(B) Consumer Protection Act, 1986 – S.21 [Consumer Protection Act, 2019 – S.58] – Services – Real Estate – Builder Buyer Agreement – Expression of Interest form signed by Complainant – Whether OP Builder is justified to forfeit amount – As far as the plea of the OP Builder that they are entitled to forfeit the amount in terms of the Expression of Interest form signed by the Complainants is concerned, National Commission is of the view that, the terms and conditions mentioned in the Expression of Interest and find that the terms and conditions are wholly one-sided and are only in favour of the Builder and cannot be binding upon the Complainants – The Opposite Party Builder shall refund the entire deposited amount of Rs.37,04,043.50ps. (Thirty Seven Lakhs Four Thousand Forty three and paisa fifty only) to the Complainants along with compensation in the form of simple interest on that amount @ 9% per annum with effect from the respective date of deposit till the date of refund – The Opposite Party shall also pay a sum of Rs.25,000/- as cost of the litigation to the Complainant, Compliant partly allowed. [Paras 8 to 9]
Result: Complaint partly allowed.
ORDER
The present Consumer Complaint has been filed under Section 21 of the Consumer Protection Act, 1986 (for short “the Act”) by Rakesh Kumar Bhore and Varsha Bohre (hereinafter referred to as the Complainants) against Opposite Party Builder, Vatika Limited, (hereinafter referred to as ‘the OP Builder’) seeking refund of the amount paid by them to the Builder towards purchase of the Residential Unit alongwith interest and compensation.
2. The facts as narrated in the Complaint are that the Complainants applied for allotment of a flat in the proposed Group Housing Residential Scheme in the name and style of ‘Tranquil Heights – Vatika India Next’ located at Sector 82 A, Gurgaon (hereinafter referred to as the Project), to be developed by the OP Builder in Nov. 2013 by signing a Expression of Interest Form and paying a sum of Rs.6 lakh towards booking amount to the OP Builder. As per website of the OP Builder, the Possession of the Flat was scheduled to be delivered in December 2017. At the time of booking, the Representative of the OP Builder informed that necessary approvals had been obtained from the Competent Authorities and allotment letter would be issued shortly. It was assured by them that the Possession would be delivered by the end of 2017. Flat No. 1201 in Tower A allotted to the Complainants vide Allotment letter dated 24.09.2014. The Complainant deposited a sum of Rs.37,04,043.50/- on different dates as per demand of the OP Builder. The OP Developer raised an illegal demand of Rs.5,92,367/- on account of increase in area and PLC. For meeting the demand, the Complainants requested OP Builder to execute Builder Buyer Agreement because in the absence of which House Loan could not be granted by the Banks. After several requests and follow-up with the OP Builder, a Builder Buyer Agreement (hereinafter referred to as the Agreement) was sent to the Complainants for signatures in July 2015. On finding several clauses of the Agreement, totally unfair, one-sided, unjust and illegal, the Complainant raised objection with the OP Builder to remove the said clauses vide email dated 12.07.2015 but the OP Builder rejected his request and conveyed that the clauses in the Agreement are standard and as per the Company Policy and the same cannot be changed or amended. Despite several requests, the OP Builder never shared approvals of the Project from the competent authorities but threatened that if they proceed with the cancellation of the Unit, they will deduct the amounts under the heads of Earnest Money, Service Tax, Brokerage (if any) and other charges. The Complainants issued legal notice upon the OP Builder to refund the deposited amount of Rs.37,04,043.50ps. alongwith interest @24% and Rs.5,00,000/- towards mental agony, stress etc. But the OP Builder did not refund the amount. Being aggrieved the Complainants filed consumer complaint before the Haryana State Consumer Disputes Redressal Commission on 12.01.2016. The Complainant relying upon the Order dated 07.10.2016 passed by this Commission in ‘CC 97 / 2016 Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Limited’ withdrew the Complaint from the State Commission and filed the present Consumer Complaint before this Commission seeking following reliefs:-
(a) The Complaint may kindly be allowed with costs;
(b) the Opposite Party may be directed to refund Rs.37,04,043.50ps., deposited by Complainants alongwith interest @24% interest;
(c) The opposite party may be directed to pay for damages amounting to Rs.5,00,000/- alongwith 24% interest, which the Complainants have suffered on account of mental agony, stress, embarrassment and humiliation apart from financial loss due t the illegal and unlawful acts done by the Opposite party and;
(d) the opposite party may be directed to compensate the complainants for depriving them of the pleasure and comfort of staying in their own house during all this period.
(e) pass any other order as the Hon’ble Commission deems fit, in the
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