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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Ram Surat Ram Maurya, Presiding Member
Prerna Banerjee and Anr. —Complainants
versus
Puri Construction Private Limited —Opp. Party
Consumer Case No.3328 of 2017
Decided on 7.2.2022
Consumer Protection Act, 1986 – S. 21(a)(i) – [Consumer Protection Act, 2019 – S.58(1)(a)(i)] – Services – Real Estate – Compliant has been field for alleged delay in handover possession of the apartment – Compliant restricted to only refund of amount – Apartment Buyer’s Agreement – Forfeiture of Earnest Money – Only signing of the Apartment Buyer’s Agreement by the complainants will not legalise all the terms of the agreement – Although in the agreement ‘earnest money’ has been defined as 15% of total sale consideration, but in view of the judgment of this Commission, ‘earnest money’ would not be more than 10% of the total sale consideration – Thus, Under Clause E of the Apartment Buyer’s Agreement, on cancellation of the agreement, the earnest money is liable to be forfeited. The builder already issued notice dated 18.11.2015 for cancellation of the allotment, due to default in payment of the instalments – Thus, the complainants accept the cancellation of the allotment, as such, it is appropriate that the builder shall return the money of the complainants after forfeiting earnest money to the extent of 10% on total cost of Rs.23723496/- – Therefore, The builder is directed to refund the entire money deposited by the complainants with interest @9% from the date of each deposit till the actual payment to the complainants, after deducting the amount of 10% of total cost as on 01.01.2016 – Complaint partly allowed. [Paras 9 to 11].
Result: Compliant partly allowed.
ORDER
Ram Surat Ram Maurya, Presiding Member.—Heard Mr. Shivam Sharma, Advocate, for the complainants and Mr. Pravin Bahadur, Advocate, for the opposite party.
2. Mrs. Prerna Banerjee and Ranjan Banerjee have filed above complaint for directing the opposite party (hereinafter referred to as the builder) (i) to withdraw the cancellation letter dated 18.11.2015, (ii) to handover possession of the apartment to the complainants, complete in all respect, in conformity of the Apartment Buyer’s Agreement, with all the facilities as per quality standard promised and execute conveyance deed, (iii) to adjust the amounts charged for parking and preferential location, towards the sale consideration of the apartment, (iv) to pay delayed compensation in the shape of interest @12% per annum from the date of promised possession till the date of handing over physical possession (v) to pay Rs.25/- lacs as the compensation for mental agony and physical harassment (vi) to pay Rs.5/- lacs as the cost of the litigation and (vii) any other relief, which is deemed fit and proper in the fact and circumstances of case.
At the time of arguments, the counsel for the complainants confined his arguments for refund of the entire money deposited by the complainants.
3. The facts, as stated in the complaint and emerged from the documents attached with it, are that the builder was a company and engaged in business of development and construction of residential and commercial buildings and selling its unit to the prospective buyers. The builder launched a project of group housing in the name of “Emerald Bay” at village Dhanwapur, Sectors-104, Gurgaon, Haryana. The representatives of the builder approached the complainants and impressed them by alluring and attractive promises. The complainants booked a flat on 28.01.2013 and gave a cheque of Rs.10/- lacs. The builder allotted Flat No. A3-1001, (super built up area 2450 sq.ft., basic sale price Rs.17762500/-) on 28.02.2013. Along with allotment letter, ‘Construction Linked Payment Plan’ was supplied, in which total cost of Rs.23723496/- was shown. The Apartment Buyer’s Agreement was executed on 09.10.2013. The complainants had deposited total Rs.4609680/- by that time. Although the terms of Apartment Buyer’s Agreement were arbitrary, but the complainants had no option except to sign it. The complainants deposited Rs.1000000/- on 28.01.2013, Rs.1600000/- on 12.04.2013, Rs.157376/- on 12.04.2013, Rs.500000/- on 07.05.2013, Rs.400201/- on 15.06.2013, Rs.442114/- on 15.06.2013, Rs.500000/- on 05.07.2013, Rs.10000/- on 24.07.2013, Rs.2375285/- on 15.11.2013, Rs.2389546/- on 07.11.2014 and Rs.2375488/- on 20.01.2015 (total Rs.11750010/-). The complainants, through letter dated 22.06.2015, made some queries from the builder and also pointed out that some of the clauses of Apartment Buyer’s Agreement were unfair. The complainants did not receive any reply of the letter dated 22.06.2015, therefore gave reminder dated 07.07.2015. Then the builder gave reply of some of the queries vide letter dated 30.07.2015. The complainant, vide letter dated 04.08.2015, sought for a meeting with the officers of the builder. The builder, vide email dated 06.08.2015 fixed 07.08.2015 for the meeting. During meeting no solution of the queries of the complainants was made. In respect of break up of ‘super area’, they were told that breakup of ‘super area’ would be shared through email but no information in this respect was given. The complainants then gave a legal notice dated 06.10.2015, raising their objections to the unfair, arbitrary and unlawful terms of the agreement. The builder, vide letter dated 18.11.2015, demanded entire outstanding dues within 30 days, failing which, allotment would be cancelled. The builder has illegally charged for car parking space and preferential location. Various terms of the agreement were unfair, arbitrary and opposed to public policy and void under Section 23 of Contract Act, 1872. The complainants filed
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