Judicial Analysis Court Copy Headnote Facts Arguments Court observation

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
R.K. Agrawal, President and Dr. S.M. Kantikar, Member
Aashish Bansal and Anr. —Complainants
versus
Ireo Pvt. Ltd. and Ors. —Opp. Parties
Consumer Case No.653 of 2019
Decided on 4.5.2022

Advocates:
Counsel for the Parties:
For the Complainants:Mr. Manoj Swarup, Sr. Advocate with Mr. Maitreyi Subramaniam, Advocate, Mr. Aashish Bansal, In person
For the Opp. Parties:Mr. Abhimanyu Bhandari, Advocate

IMPORTANT POINTS
(1) Remedies - The remedies under the Consumer Protection Act, 1986 are in addition to the remedies available under special statutes.
(2) Refund of Money - Buyer cannot be made to wait indefinitely for possession, in case of inordinate delay in offer of possession and the buyer is entitled for refund of money.

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 – RERA – Consumer Fora – Remedies - Whether primacy to be given to RERA over the Consumer Protection Act – Reiterated – The remedies under the Consumer Protection Act, 1986 are in addition to the remedies available under special statutes as there is the absence of a bar under Section 79 of the RERA Act to the initiation of proceedings before a fora which is not a civil court, read with Section 88 of the RERA Act makes the position clear and Section 18 of the RERA Act specifies that the remedies are without prejudice to any other remedy available – Thus, Commission has the power to entertain the present Complaint. [Para 17].
(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 – Delayed Possession - Whether plea of the Opposite Parties that the Complainants have defaulted in making timely payment of installments can be countenanced – Thus, admittedly the Complainants have paid a sum of Rs.5,12,14,931/-, which comes to around 90% of the total sale consideration in 13 installments on time and only the 14th installment has not been paid, after seeing no development at the project site. [Para 18]
(c) 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 – 10 years – Quantum of Compensation - Whether the Complainants are entitle for refund of the amount deposited by them with Delay Compensation - Admittedly, there is a delay in completion of the project and the stipulated period for delivery of possession has expired - Buyer cannot be made to wait indefinitely for possession, in case of inordinate delay in offer of possession and the buyer is entitled for refund of money – Thus, the Complainants are entitle for refund of the amount deposited by him with adequate compensation in the form of interest as the Opposite Party has failed to deliver the possession even after lapse of more than 10 years from the date of booking and the Opposite Party has itself admitted in the Written Statement that it has not yet obtained the Occupancy Certificate and no specific date is given for delivery of possession of the Apartment – Thus on facts the simple interest @ 9% per annum on the amount deposited would be just and reasonable - Complaint is allowed in part and the Opposite Parties are directed to refund the amount deposited by the Complainants along with simple interest @ 9% p.a. from the date of each deposit till the date of actual payment. [Paras 20 to 22]
Result: Complaint Allowed.

ORDER

R.K. Agrawal, President.—The present Consumer Complaint has been filed under Section 21 (a) of the Consumer Protection Act, 1986 (hereinafter referred to as “the Act”) by the Complainants, against the Opposite Parties, namely, M/s. Ireo Pvt. Ltd. and M/s. Nucleus Conbuild Pvt. Ltd., seeking refund of the money paid, as the Opposite Parties have failed to handover the possession of the Apartment booked within the stipulated period.

2. The facts as enumerated in the Complaint are that in November, 2011 the Complainants booked an Apartment with the Opposite Parties in the Project, “Ireo Gurgaon Hills” (hereinafter referred to as “the Project”) located in the Village Gwal Pahari, Tehsil Sohna, District Gurgaon, Haryana for their personal use. Thereafter, the Apartment Buyer’s Agreement (hereinafter referred to as “the Agreement”) was executed between the Parties on 07.11.2012, i.e. after a year from the date of booking. It is alleged by the that some of the terms of the Agreement are arbitrary and one-sided in favour of the Opposite Parties and as the Complainants have already paid more than rupees One Crore, they have no option but to sign the same.

3. The Complainants have stated that till the date of filing of the Complaint they have paid a sum of Rs.5,12,14,931/- out of the total sale consideration of Rs.5,72,17,194/- and that the Complainants, in order to pay the sale consideration, took home loan of Rs.4,25,00,000/- from ICICI Bank at floating rate of interest from 8.75% to 10.65% for a period of 180 months, which stands completely repaid. It is stated that the Complainants have opted for a construction linked payment plan and have paid all installments till 13th installment, as and when demanded by the Opposite Parties. The Complainants have further stated that the Opposite Parties have demanded 14th instalment, despite no progress in the development at project site.

4. It is stated that as per Clause 14.3 of the Agreement, the possession of the Apartment was to be handed over within 42 months from the date of sanction of Building Plans along with grace period of six months. It is averred that the Building Plans were sanctioned on 17.05.2012, therefore, the possession should have been handed over latest by May, 2016. It is alleged that till date the project is lying underdeveloped and is not habitable and the Opposite Parties have also failed to get the project register before the RERA. The Complainants have stated to have made various attempts to communicate and put forth their grievances, however, their grievances have not been adhered to by the Opposite Parties. As the Opposite Parties failed to give any definite reply on the issue of handing over the possession of the Apartment and after waiting for more than six years from the date of booking, the Complainants, via email dated 11.12.2018, sought refund of the deposited amount along with compensation and interest as they are no longer interested in the project of the Opposite Parties. However, the Opposite Parties have not replied to the same.

5. Vexed with the attitude of the Opposite Parties, the Complainants having lost trust in the Opposite Parties and alleging deficiency in service and unfair trade practice on the part of the Opposite Parties, have filed the present Complaint with the following prayer:-

“(i) Direct the Opposite Party to refund the entire amount paid by the Complainants i.e., Rs. 5,12,14,931/- along with interest @20% p.a. from the respective dates of deposit till the its actual realization; and

(ii) Direct the Opposite Party to repay amount of interest paid on home loan i.e., Rs. 44,24,902/- along with 20% interest per annum from the respective dates of payment till the date of repayment; and

(iii) Direct the Opposite Party to pay an amount of Rs. 10 lakhs on account of compensation for mental agony, torture and harassment and inconvenience suffered by the Complainants due to the acts and conduct of the Opposite Party; and

(iv) direct Opp