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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Deepa Sharma, Presiding Member and Subhash Chandra, Member
Satish Chandra – Complainant
versus
Lotus Green Developers
Pvt. Ltd. and Anr. – Opp. Parties
Consumer Case No.279 of 2017
Decided on 26.4.2022
Consumer Protection Act, 1986 – S. 21(a)(i) – [Consumer Protection Act, 2019 – S.58(1)(a)(i)] – Service – Real Estate – Allotment of Flat / Delay in handing over possession – Inordinate Delay – Refund of Amount - Compliant has filed requesting for cancellation of the booking of the flat and sought refund with interest on the money already deposited along with damages - The flat purchasers cannot be made to wait for inordinate period of time hoping to get possession and that refund of amounts deposited is a valid redressal. As on date, the OPs have also not offered the possession of the flat in question to the complainant. It is evident, by OPs own assertion in its written submission, that even if reckoned from the date of the Builder Buyer’s Agreement, (which is itself in dispute having not been signed), the date by which flat was to be offered to the complainant should be 14.09.2019, that there is deficiency in service as on date – Thus, except a bald statement that the complainant is a defaulter, the OPs have not provided any evidence of action taken by them prior to the date on which the consumer applied for the refund such as any notice for payment with interest or cancellation of the allotment of the flat in support of their claim that the complainant is a defaulter – Therefore, opposite party shall refund the entire amount of Rs.67,20,743/- to the Complainant with 9% simple interest from the date of respective deposits till date of payment - The Opposite Party shall also pay Rs.50,000/- as litigation costs to the complainant – Appeal allowed. [Paras 11, 12]
Result: Petition allowed.
ORDER
Subhash Chandra, Member.—This is a complaint filed under section 21 (a) (i) of the Consumer Protection Act, 1986, alleging deficiency of service and unfair trade practice by the opposite parties viz., M/s Lotus Green Developers Pvt. Ltd., and Three C Properties Pvt., Ltd.
2. The brief facts of the case are that the complainant had booked a flat in ‘Lotus Isle’ project of the opposite parties at Commercial Plot number H – 10, Sector 98, Noida, Uttar Pradesh, India on 21.02.2014. The complainant was allotted flat no. 1102, Tower 2 of the Project ‘Lotus Isle’ by the opposite party at a total sale consideration of Rs.2,16,97,475/. The complainant has submitted that he has paid Rs.67,20,743/- between February 2014 and January 2016 on various dates to the OP. As he has found the pace of the construction of the project of the OPs to be tardy and very unsatisfactory, he made enquiries with the relevant authorities in Noida through RTI application dated 23.07.2016 and was informed vide reply of the said authority on 08.09.2016 that no application for permission for the project had been filed by Lotus Green Developer Private Limited in respect of the project ‘Lotus Isle’ in sector 98, Noida. It is also alleged by him that approvals under section 4 of the UP Apartments Act, 2010 and relevant rules thereunder require such a permission. Despite several requests made by the complainant, the OPs did not execute any Apartment Buyer Agreement with the complainant. He, thereafter, served notice on the OPs on 21.06.2016 requesting for cancellation of the booking of the flat and sought refund with interest on the money already deposited along with damages. The complainant is before this Commission with the following prayers:
(a) The opposite parties be directed to refund Rs.67,20,743/- along with interest @ 18% per annum (Rs.21,82,157/- till December 2016) total comes to Rs.89,02,900/- and further interest @ 18% till the actual payment to the complainant;
(b) That the opposite parties be directed to pay Rs.15 lakh as compensation for mental agony and harassment caused by the opposite parties to the complainant;
(c) That the opposite parties be directed to pay Rs.1.00 lakh as cost of litigation and other expenses to the complainant; and
(d) Any other relief which Hon’ble Commission feels fit and proper in the interest of justice may kindly be awarded in favour of the complainant against the opposite parties.
3. The OPs in their joint reply as group of companies have contested the claim of the complainant on the grounds of pecuniary jurisdiction of this Commission to entertain the present complaint. It has also been submitted that the complainant failed to execute the Apartment Buyers Agreement which was sent to him on 15.09.2015 wherein as per clause 23 of the delivery schedule of 42 months from the date of execution of the said agreement with period of six months grace which has been stipulated with reasonable extension of time in the event of any default or negligence attributable to the applicant. The OPs have contended that the complainant is a defaulter and has failed to execute the agreement despite reminders dated 18.10.2016 and 16.03.2017. According to the OPs even if the date of agreement is reckoned from 15.09.2019, i.e., the date they claim to have sent the said Apartment Buyer’s Agreement to the complainant, the OPs have time to construct and develop and offer the possession of the allotted unit till 14.09.2019. It is also submitted that the construction of the project is in full swing. An amount of Rs.47,21,702.50 is stated to be outstanding from the complainant as on 12.05.2017 and therefore, the present complaint is not maintainable as it is not a case of deficiency in service but rather one of default in payment. According to the OPs, the complainant is at best entitled to refund of the amount paid till date less 10% of the total consideration to be deducted as earnest money and other expenses such as outstanding interest
Valid Redressal - The flat purchasers cannot be made to wait for inordinate period of time hoping to get possession and that refund of amounts deposited is a valid redressal.
Deficiencies in service and unfair trade practices exist where payment was accepted without agreement execution and without timely possession provision.
Consumers cannot be denied protections based on unsubstantiated claims of commercial purpose in property transactions.
Arbitration Clause - An arbitration clause in the Agreement does not bar the jurisdiction of the consumer fora to entertain the complaint.
Right to claim refund - the complainant in the present circumstances have a legitimate right to claim refund alongwith fair delay compensation/interest from the OP.
Right to Compensation - The right of the consumer to be compensated for inordinate delay in the offer of possession of a residential apartment booked by them due to inordinate delays by builders when....
Delays in possession of real estate mandate full refund to consumers under the Consumer Protection Act.
Default by Contractors - Complainant cannot be made to suffer on account of default by contractors engaged by OP.
Delay in delivery of possession constitutes unfair trade practice under the Consumer Protection Act.
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