Judicial Analysis Court Copy Headnote Facts Arguments Court observation

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
C. Viswanath, Presiding Member and Ram Surat Ram Maurya, Member
Sanjay Kumar Singh and Anr. —Complainants
versus
M/s. Ramprastha Promoters and
Developers Pvt. Ltd. and Anr. —Opp. Parties
Consumer Case No.2643 of 2017
Decided on 1.7.2022

Advocates:
Counsel for the Parties:
For the Complainants:Mr. Somesh Kr. Dubey, Advocate
For the Opp. Parties:Mr. Nakul Mohta, Advocate

IMPORTANT POINTS
(1) Contract - A term of a contract, will not be final and binding if it is shown that the consent to the said term was not really voluntary, if the person giving consent had no other choice.
(2) Nominal Compensation - Payment of a nominal compensation such as Rs.5/- per square feet of the super area has become the order of the day in contracts designed by big builders and a person seeking to buy an apartment is left with no option but to sign on the dotted lines, since the rejection of such a term by him would mean cancellation of the allotment.
(3) Compensation - No reasonable person would volunteer to accept compensation constituting about 2-3% of his investment in case of delay on the part of the builder, when he is made to pay compound interest @18% p.a. for delay on his part in making payment.
(4) Indefinite Delay - The construction of the apartment booked by the Complainant is getting indefinitely delayed and the Complainant cannot be compelled to wait indefinitely for taking possession of the flat.
(5) Financial Loss - The Complainants would be entitled only to compensation commensurate with financial loss actually suffered by them on account of the delay on the part of the OP in handing over the possession of the apartments, apart from compensation.
(6) Interest - They cannot make a windfall gain over and above the actual loss suffered by them. It would be reasonable, just and fair to refund the amount paid by the Complainants and compensation in the form of interest @9% p.a.

Headnote:
(A) Consumer Protection Act, 1986 –S.21(1)(a)(i)[Consumer Protection Act, 2019 – S.58(1)(a)(i)] – Services – Real Estate – Allotment of Flat – Delayed Possession - Compliant has been filed for the alleged delay in possession of Flats – Builder Buyer Agreement – One sided terms – It is an undisputed proposition of law that ordinarily the parties are bound by the terms and conditions of the contract voluntarily agreed by them and it is not for a Consumer Forum to revise the said terms – Thus, a term of a contract, will not be final and binding if it is shown that the consent to the said term was not really voluntary, if the person giving consent had no other choice. Payment of a nominal compensation such as Rs. 5/- per square feet of the super area has become the order of the day in contracts designed by big builders and a person seeking to buy an apartment is left with no option but to sign on the dotted lines, since the rejection of such a term by him would mean cancellation of the allotment - No reasonable person would volunteer to accept compensation constituting about 2-3% of his investment in case of delay on the part of the builder, when he is made to pay compound interest @ 18% p.a. for delay on his part in making payment. It can hardly be disputed that a term of this nature is wholly one sided, unfair and unreasonable. [Para 16]
(B) Consumer Protection Act, 1986 – S.21(1)(a)(i)[Consumer Protection Act, 2019 – S.58(1)(a)(i)] – Services – Real Estate – Allotment of Flat – Entitlement to Interest – Delayed Possession – Financial Loss – Indefinite delay cannot be permitted – Compliant has been filed for the alleged delay in possession of Flats - The Opposite Party builder failed to fulfil its contractual obligation of delivering the possession of the flat to the Complainants within the time stipulated in the agreement, or within a reasonable time thereafter – The construction of the apartment booked by the Complainant is getting indefinitely delayed and the Complainant cannot be compelled to wait indefinitely for taking possession of the flat – The Complainants would be entitled only to compensation commensurate with financial loss actually suffered by them on account of the delay on the part of the OP in handing over the possession of the apartments, apart from compensation. They cannot make a windfall gain over and above the actual loss suffered by them. It would be reasonable, just and fair to refund the amount paid by the Complainants and compensation in the form of interest @9% p.a – Therefore, direct the Opposite Party to refund the amount of Rs.37,50,044/- paid by the Complainants alongwith compensation in the form of simple rate of interest @9% p.a. with effect from the respective date of each payment, till the date of refund with compensation within a period of 03 months. The rate of interest shall be enhanced to 12% p.a. if the amount directed is not paid within the above mentioned period. The Opposite Party shall also pay Rs. 25,000/- towards cost of litigation to the Complainants. The Consumer Complaint stands disposed of. [Para 17 to 19]
Result: Compliant disposed off.

ORDER

The case of the Complainants is that in May, 2014 they booked Flat No.E-901 admeasuring super area of 1695 sq.ft. alongwith two car parking spaces with the Opposite Party in the project, namely, Primera located in Sector 37D, Dwarka Expressway, Gurugram for a total consideration of Rs.1,25,00,148/- as per Apartment Buyer Agreement dated 30.08.2014. In Clause 15 of the said form, the Complainants, vaguely mentions possession to be delivered within 54 months from the date of approval of the building plan by the office of DGTCP. However, the special subvention plan promised that the possession was to be delivered on or before 30.09.2017. The Complainants paid a total amount of Rs.37,50,044/-. The Complainant made several calls and sent emails to ascertain the stage of work as well as the approval of the building plan by DTCP, but in vain. Since there was no response from the Opposite Party and due to urgent financial requirements, the Complainants, vide email dated 03.11.2015, requested for cancellation of the said unit. On 23.02.2016, the Opposite Party assured that refund cheque was ready and only minor formalities were still pending. The offer of the Opposite Party to change the allotment of flat from Tower-E to Tower-A was found not viable and therefore, rejected by the Complainants. Finding no other alternative, Complaint was filed in this Commission with the following prayer:—

“(a) allow the present Consumer Complaint; and

(b) direct the Opposite Parties/Respondents to refund the amount of Rs.37,50,044/- (Rupees Thirty Seven Lakhs Fifty Thousand and Forty Four) to the complainants received by the Respondent on the pretext of consideration in respect of allotment of Flat No.E-901 having building up area of 1695 sq.ft. situated at Block-E of Primera, Ramprastha City, Sector-37D, Dwarka Expressway, Gurugram (Haryana) under subvention scheme; and

(c) direct the Opposite Parties/Respondents to pay interest @ 18% p.a. on the amount deposited by the Complainants with the Respondent from the date of deposit till date of refund; and

(d) direct the Opposite Party/Respondent to compensate a sum of Rs.10,00,000/- (Rupees Ten lakhs) to the Complainants in lieu of mental agony and harassment suffered by the Complainants due to deficiency in service rendered and unfair trade practice adopted by the Respondent; and

(e) award an amount of Rs.One lakh only towards cost of litigation; and pass such other and further order or orders as this Hon’ble Commission may deem fit and proper in the facts and circumstances of the case.”

2. The Complaint was resisted by the Opposite Party on the ground that the Commission does not have pecuniary jurisdiction to the decide the matter. In the present case, the Complainants have invoked the jurisdiction of this Commission on the basis of total sale consideration of the flat which is untenable and the dispute is only with regard to the amount paid by the Complainants which is Rs.37,50,044.

3. As per Clause 37 of the Agreement, the Complaint has to be referred initially to conciliation and if not resolved, be finally settled in arbitration under the provisions of the Arbitration and Conciliation Act, 1996. On this ground alone, the Complaint was not maintainable. The Complaint involves disputed questions of facts which cannot be decided in a summary proceedings under the Consumer Protection Act and the same is liable to be relegated to the Civil Court.

4. As regards the merits of the case, the Opposite Party contended that the allotment was made to the Complainant of Flat No. 901 on 9th floor, having area of 1695 sq.mtr. alongwith two parking spaces in Block E for a total consideration of Rs.1,25,00,148/-. The Parties agreed on the terms of the allotment letter and signed a Comprehensive Agreement on 30.08.2014 i.e. the Apartment Buyer Agreement. An advance of Rs.3,00,000/- was paid by the Complainants at the time of provisional allotment of the apartment. As per Clause 15 A of the Apartment Buyer A

Click Here to Read the rest of this document