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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Deepa Sharma, Presiding Member and Subhash Chandra, Member
Suparna Nihal Singh —Complainant
versus
M/s. Ireo Grace Realtech
Pvt. Ltd. and Anr. —Opp. Parties
Consumer Case No.1736 of 2018
Decided on 14.6.2022
Consumer Protection Act, 1986 – S. 21(a)(i) – [Consumer Protection Act, 2019 —S.58(1)(a)(i)] – Services – Real Estate – Allotment of Flat – Delayed Possession – Committed date - Compliant has been filed for alleged delay in possession of flats – Refund of amount paid – No Occupancy certificate – No occupancy certificate has been obtained by the opposite party and no offer of possession made to the complainant. A sum of Rs 1,55,99,186/- amounting to nearly 85% of the sale consideration has been collected by the opposite party in the meanwhile which is a very substantial amount. This is indisputably a case of deficiency in service as well as an unfair trade practice on part of the opposite party - The opposite party cannot deny the complainants their right to a full refund or to be kept waiting indefinitely – Thus, the committed date has to be reckoned from the date of the sanction of building plans which includes the date of approval of the fire safety scheme. Admittedly, this scheme was approved on 27.11.2014. Therefore, the period of 48 months committed by the opposite party to offer possession after obtaining the occupation certificate should be taken as 27.11.2018. There is neither an occupancy certificate in respect of the flat available nor has an offer of possession been made – Appeal allowed. [Paras 11 to 14]
Result: Appeal allowed.
ORDER
Subhash Chandra, Member—This complaint is filed u/s 21(a)(i) of the Consumer Protection Act, 1986 in respect of the flat booked by the complainant in a project promoted and developed by the opposite parties alleging deficiency in service and unfair trade practice resulting in delay in handing over possession of the flat and seeking refund of the amount deposited along with penal interest and other compensation.
2. The brief facts of the case are that the complainant had booked a flat in the project ‘The Corridors’ promoted and developed by the Opposite party viz. Ireo Grace Realtech Pvt. Ltd. located on Golf Course Extension Road, Sector 67 A, Gurgaon, Haryana on 28.03.2013 for his residential purpose for a total sale consideration of Rs.1,84,44,568/- and deposited Rs. 16,00,000/- as booking amount with the opposite party. On subsequent dates further instalments were paid. An allotment letter was issued by the opposite party to the complainant on August 2013 allotting flat no.CD-A4-06-602, ad measuring 1726.91 sq ft. An Apartment Buyer’s Agreement (in short ‘the ABA’) was entered into between the complainant and the opposite party on 02.06.2014. As per clause 13.3 of the ABA, the opposite party committed to offer possession of the flat within 42 months with an additional grace period of six months i.e. by February 2018 failing which compensation at the rate of Rs.7.50 per sq foot was promised by the opposite party to the complainant. However, possession of the said flat was not offered by the opposite party till the date of filing of the complaint. Hence, the complainant has approached this Commission alleging deficiency in service and unfair trade practice in not adhering to the committed date of handing over possession and imposing entirely one sided conditions in the ABA that are in favour of the opposite party which the complainant as a consumer was unable to contest and was compelled to accept.
3. It is the complainant’s case that the opposite party has failed to deliver the possession of the allotted flat as was promised. The complainant has not averred that the flat was booked for the residential requirement of the complainant and her family. The opposite party had in August 2013 allotted flat number CD-A4-06-602 in the said project after 5 months. Thereafter, the opposite party executed the flat ABA after almost one and half years of booking in favour of the complainant on 02.06.2014. Thus, the complainant was coerced to accept the one-sided, arbitrary and unreasonable clauses of the agreement in its entirety, since any disagreement or cancellation would have led to forfeiture of Earnest Money (i.e. 20% of the total sale consideration of the flat). The complainant upon persuasion of the opposite party shifted her booking to another tower where the opposite party promised possession within the time promised. The complainant accordingly accepted transfer flat no.CD-B5-11-1104 in Tower B on 31.01.2017 for which the opposite party issued the letter in the name of complainant. Complainant has relied upon Satish Kumar Panday vs United Ltd. CC no. 427 of 2014 decided on 08.06.2015 where it was held that
“.............it cannot be accepted that the opposite party could not have arranged adequate labour, either directly or through contractors/ sub-contractors, for timely completion of the project. ……….Therefore, I find no merit in the plea that the completion of the project was delayed due to non-availability of water, sand and bricks in adequate quantity……….”
4. The complainant is before us with the following prayer:—
(i) Direct the opposite party (s) jointly or severally, for an immediate 100% refund of the total amount of Rs.1,55,99,186/- paid by the complainant along with a penal interest of 18% per annum from the date of the receipt of the payments made to the opposite party (s);
(ii) Direct the opposite party (s) jointly and severally, to pay compensation of Rs.5,00,000/- to the complainant for mental agony, hara
Committed date - the committed date has to be reckoned from the date of the sanction of building plans which includes the date of approval of the fire safety scheme.
Delays in possession of real estate mandate full refund to consumers under the Consumer Protection Act.
(1) Bald assertion – In the absence of any evidence being brought on record, merely a bald assertion that the project was delayed due to in action by the Government or its statutory organisations and....
Consumer rights include timely possession and refund in cases of inordinate delays by builders, ensuring protections under consumer law are maintained.
Installment – Once the instalments were collected, the buyers are sought to be non-suited on a multitude of grounds, primarily the liability of the Government in not providing infrastructure and to c....
No Occupancy Certificate – The Occupation Certificate is not available even as on date, which clearly amounts to deficiency of service.
Delay in possession and unfair contractual terms lead to a mandated refund with interest for allottees.
1) Incorporation of one-sided and unreasonable clauses in Apartment Buyer’s Agreement constitutes an unfair trade practice under Section 2(1)(r) of the Consumer Protection Act.2) Developer cannot com....
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