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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
R.K. Agrawal, President, Dr. S.M. Kantikar, Member and Binoy Kumar, Member
Mohammad Faizan Iqbal —Complainant
versus
Emaar MGF Land Limited —Opp. Party
Consumer Case No.664 of 2020
Decided on 4.2.2022
(A) Consumer Protection Act, 1986 – S.12(1)(a) [Consumer Protection Act, 2019 – S.35(1)(a)] – Services – Real Estate – Complaint has been filed seeking refund of the amount paid towards purchase of Flat alongwith interest and costs as the Opposite Party Developer failed to deliver the Possession of the Flat within stipulated period – Flat Buyer Agreement – As per Clause 16(a) of the Flat Buyer Agreement, in case of delay the Opposite Party Developer is liable to pay Rs. 7.5/- per sq. ft. of the super built up area of the flat per month for the period of delay in offering of possession, whereas in terms of Clause 13.1 in case of late payment, the Complainant/Buyer is liable to pay interest @24% p.a., whether clause of Flat Buyer Agreement can be said to be one sided and unfair – In the facts of present case, 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 6].
(B) Consumer Protection Act, 1986 – Section 12(1)(a) [Consumer Protection Act, 2019 – S.35(1)(a)] – Services – Real Estate – Flat Buyer Agreement – Flat Buyer Agreement – Earnest money clause – One Sided and Unfair – Whether Complainant bound by it – Earnest Money Clause in the Agreement being wholly one-sided and unjustified constitutes an unfair trade practice and therefore, is not binding upon the Complainant – OP Developer failed to deliver the possession within stipulated time and there was inordinate delay of more than 2 years in offering the Possession. The Complainant was compelled to make a request of refund of the amount. The Opposite Party Developer cannot take advantage of their own wrong as they were not in a position to deliver the possession within stipulated period. [Para 9].
(C) Consumer Protection Act, 1986 – S.12(1)(a) [Consumer Protection Act, 2019 – S.35(1)(a)] – Services – Real Estate – Complaint has been filed seeking refund of the amount paid towards purchase of Flat alongwith interest and costs as the Opposite Party Developer failed to deliver the Possession of the Flat within stipulated period – The Complainant cannot be made to wait indefinitely and he has sought refund of the amount paid by him to the Opposite Party Developer on account of the delay in offering possession of the allotted Unit to him – Complainant is entitled for refund of the entire deposited amount along with damages and compensation – Opposite Party Developer is directed to refund to the Complainant Rs.1,46,39,295/- (Rupees One Crore Forty Six Lacs Thirty Nine Thousand Two Hundred and Ninety Five only) alongwith interest @9% p.a. from the respective dates of deposit till the date of offer of possession, i.e., 25.10.2019 – Compliant allowed. [Paras 13 to 15].
Result: Complaint allowed.
ORDER
The present Consumer Complaint has been filed under Section 12(1)(a) of the Consumer Protection Act, 1986 (for short “the Act”) by Mohammad Faizan Iqbal (hereinafter referred to as the Complainant) against Opposite Party, M/s. Emaar MGF Land Limited (hereinafter referred to as the OP Developer), seeking refund of the amount paid towards purchase of Flat alongwith interest and costs as the Opposite Party Developer failed to deliver the Possession of the Flat within stipulated period, which was booked by him in the Project launched by the Developer in the name and style of “Imperial Garden” located at Sector-102, Gurgaon, Haryana.
2. It has been averred in the Complaint that the Opposite Party Developer launched a Residential Project in the name and style of “Imperial Garden” located at Sector-102, Gurgaon, Haryana (hereinafter referred to as the Project). The Complainant booked a Unit for residential purpose of his parents in the said Project for a total sale consideration of Rs.1,52,29,960/-. Unit No. IG-07-0101 at 1st Floor, Tower No. 7 having super area of approx. 2000 sq. ft. was allotted to the Complainant vide letter dated 27.02.2013 by the OP Developer. Builder Buyer Agreement (hereinafter referred to as the Agreement) was executed between the Parties on 16.05.2013. Although the said Agreement had contained various one-sided and arbitrary clauses yet the Complainant had to sign the Agreement under the threat of forfeiture of huge amount as he had already deposited Rs.17,04,677/- before execution of the Agreement. As per Clause 14(a) of the Agreement, the delivery of the possession was to be offered within 42 months with a grace period of 3 months from the date of the start of the construction. It is averred by the Complainant that in terms of the Agreement, the expected date of delivery of possession of the Unit/Apartment was 11.08.2017 as the construction at the Project site started in 11.11.2013. The Complainant had deposited Rs.1,46,39,295/- on different dates upto October 2019, 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. It is also averred that through various E-mails and telephonic conversations, the Complainant raised query for actual date of possession, the OP Developer without assigning any reason for the delay, kept postponing the delivery date of the said Project on one pretext or the other. Seeing the conduct of the OP Developer, the Complainant, vide letter dated 12.10.2018 sought refund of the entire amount from the Opposite Party, but in vain. On the website of the Opposite Party no specific update with respect to Tower-7 has been provided. The Opposite Party Developer offered possession of the Unit vide letter 25.10.2019. It is averred that when the Complainant requested the Opposite Party Developer to inspect the Unit, the same was refused. The Complainant has lost trust on the Opposite Party Developer and is no longer interested in having possession of the Flat. Alleging deficiency in service and Unfair Trade Practice on the part of the Opposite Party Developer, the Complainant has filed the present Consumer Complaint with the following prayer:
“(i) Direct the Opposite Party for an immediate 100% refund of the total amount of Rs.1,46,39,295/- (Rupees One Crore Thirty Nine Lacs Two Hundred Ninety Five only) paid by the Complainant, along with a penal interest of 18% per annum from the date of the receipt of the payment made to the Opposite party;
(ii) Direct the Opposite Party to pay compensation of Rs.5,00,000/- (Rupees Five Lakhs Only) to the Complainant for mental agony, harassment, discomfort and undue hardships caused to the Complainant as a result of the above acts and omissions on the on the part of the Opposite Party;
(iii) Direct the Opposite Party to pay a sum of Rs.1,00,000/- (Rupees One Lakh Only) to the Complainant in the Project ‘Imperial Gardens’ towards lit
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