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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Binoy Kumar, Presiding Member and Sudip Ahluwalia, Member
Nikhil Kumar Garg and Anr. – Complainants
versus
Gardenview Abode Private Limited – Opp. Party
Consumer Case No.344 of 2020
Decided on 31.1.2023
Consumer Protection Act, 1986 – S.12(1)(a)[Consumer Protection Act, 2019 – S.35(1)(a)] – Services – Real Estate – Allotment of Flat / Plot – Delayed Possession – builder Buyer Agreement – One sided clauses – not binding – Refund of amount ordered - the fact that the Complainants had booked two residential flats would not ipso facto mean that their intention was necessarily to make any strategic profit making investment with a view to sell any unit, from the very time they opted for purchase. There is nothing on record, much less in documents, filed on behalf of the Opposite Parties to show that the Complainants are engaged in the business of buying and selling properties with a view to earn profits therefrom. The fact that at the relevant time the one of the Complainants was based in Singapore, or is subsequently now residing in Ghaziabad cannot ipso facto give rise to any presumption that his intention was never to personally shift into the Apartment in question at Bangalore, at any subsequent stage - A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder - the Opposite Parties are directed to refund to the Complainant Rs. 2,81,23,870/- Complaint allowed. [Paras 15 to 24].
Result: Compaint allowed.
ORDER
Sudip Ahluwalia, Member—This Consumer Complaint has been filed by Complainants namely Nikhil Kumar Garg and Nidhi Tayal (hereinafter together referred as ‘Complainants’) under Section 21 r/w section 12(1)(a) of the Consumer Protection Act 1986, against M/s Gardenview Abode Pvt. Ltd., seeking refund of the entire amount collected by the Opposite Party from the Complainants towards consideration of the dwelling Unit along with other ancillary reliefs.
2. The brief facts leading upto the Complaint are that the Complainants made a joint booking in a project being developed by the Opposite Party namely ‘Mantri Blossom’ situated at Lalbagh Fort Road, Sudhama Nagar, Bangalore (hereinafter referred as ‘Project’). They were allotted unit bearing no.-D-1003, 10th Floor, Buiding D, admeasuring a super build up area of 2700 sq. ft. The opposite Party executed the Construction Agreement dated 29.06.2016 with the Complainants. The Complainants averred that sale price of the unit was Rs. 2,61,50,000/- excluding tax and other charges. However, the Opposite Party claimed the basic cost of the Unit to be Rs.2,70,19,020 excluding deposit, statutory and other charges.
3. The Complainants have further stated that the Opposite Party promised to deliver the unit in November, 2018.
4. The Opposite Party, however, failed to complete the construction and deliver possession even after delay of more than one year.
5. The Complainants further submitted that they have taken a home loan from ICICI Bank for Rs.2,40,00,000/- and subsequently entered into a Memorandum of Understanding dated 12.06.2016 stating that there will be no EMI till the possession of the said flat
6. The Complainants claim to have paid Rs.2,81,23,870 till date. And further submit that the project is still on going and the possession will not be granted in near future. Hence, aggrieved by the delay, the Complainants have filed the present complaint before this Commission with the following prayers—
(a) Direct the Opposite Party for an immediate 100% refund of the total amount paid by the complainants for the unit is INR 2,81,23,870 (Rupees Two Crore eighty One Lacs Twenty Three Thousand Eight Hundred and Seventy Only) along with a penal interest of 18% per annum from the date of receipt of each payment;
(b) Direct the Opposite Party to pay compensation of Rs. 10,00,000/- (Rupees ten Lakhs only) to the complainants for mental agony, harassment, discomfort and undue hardships caused to complainants as a result of the above acts and omissions on the part of the Opposite Party;
(c) Direct the Opposite Party to litigation costs to the tune of Rs. 2.00 Lakhs.
7. The Opposite Party has filed its written version and raised the following objections—
(a) The Complainants are not ‘consumers’ as the unit was purchased for investment purposes, for making profit ,and they do not want to take possession of the flat;
(b) The Complainants should have invoked the arbitration clause as provided in Agreement of Construction;
(c) The dispute raised by the Complainants is purely civil in nature and a commercial dispute, and the facts in issue require a full-fledged trial before a competent Civil Court for a proper adjudication;
(d) The parties had entered into Agreement for Buy Back Scheme dated 12.07.2016, which was after the Agreement for sale dated 29.06.2016, and the Agreement for Construction dated 29.06.2016;
(e) The Complainants have not disclosed about the litigation between the parties pending before the NCLT, Bengaluru;
(f) The Complainants have suppressed material facts including receipt of amount Rs.50,13,534/- from Opposite Party under the pre EMI clause;
(g) The basic cost of the unit was Rs.2,70,19,020 and Opposite Party had allotted the said flat on 12.05.2016;
(h) The Opposite Party failed to complete the project due to circumstances beyond its control. The Real Estate Regulatory Authority vide its order dated 17.10.2017 for approval of the project had granted time
One-sided - Complainants cannot be made bound to the terms of the Agreement, which is one-sided and unfair.
Default by Contractors - Complainant cannot be made to suffer on account of default by contractors engaged by OP.
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.
(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 fo....
Dotted lines - A term of a contract will not be final and binding if it is shown that that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder.
Consumers are entitled to refunds for unreasonable delays in property possession, affirming their rights under contracts.
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