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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Sudip Ahluwalia, Presiding Member and
Dr. Inder Jit Singh, Member
Chanda Rajesh Agarwal – Complainant
versus
Keystone Realtors Private Limited – Opp. Party
Consumer Case No.165 of 2020
Decided on 6.7.2023
Consumer Protection Act, 1986 – Section 21(a)(i) – [Consumer Protection Act, 2019 – Section 58(1)(a)(i)] – Services – Real Estate – Allotment of Flat / Plot – Delayed Possession - Commercial Activity - Refund of Amount - Complainant is a housewife and there is nothing on record to show that she is engaged in any visible commercial activity. Fact of the matter is that she had paid a huge sum of money amounting to Rs. 50,25,442/- against a total consideration of Rs. 1,67,51,475/- to purchase her dwelling Unit . Being a housewife, it would not be unreasonable to observe that usage of the term “investment” with reference to the deposits made by her towards purchase of her dwelling Unit cannot necessarily imply that such deposits were made for any commercial purpose – Also, the omission/breach in observance of the Agreement between the parties in terms of the Allotment Letter, was actually on part of the Opposite Parties themselves, and, in such a situation, they cannot be permitted to take advantage of their own wrong by contending that since the Complainant has chosen to terminate her allotment, she is liable to face deduction @ 10% of her deposited amount – On facts, Complainant is entitled to seek refund of the total money paid by her to the Opposite Parties alongwith interest @ 9% p.a. from the respective date of each deposit till payment, within two months from the date of passing of this Order – Complaint allowed. [Paras 13 to 22].
Result: Complaint allowed.
ORDER
Sudip Ahluwalia, Member—This Consumer Complaint has been filed under Section 21(a)(i) of the Consumer Protection Act, 1986 seeking refund and other ancillary reliefs.
2. The brief facts leading upto the present Complaint are that the Complainant had booked and been allotted a residential Flat bearing No. 604 on the Sixth Floor admeasuring 934 sq. ft. carpet area in the Project of the Opposite Party namely, ‘Rustomjee Summit’ situated at Rajendra Nagar, Borivali (East), Mumbai-400066 for self-use vide Booking Agreement dated 24.11.2012 and Allotment Letter dated 08.01.2013 which contained one-sided and unfair terms. The Complainant has paid a total sum of Rs.50,25,442/- against the total consideration of Rs.1,67,51,475/-. As per clause 9 of Allotment Letter/ Agreement, the Opposite Party was to deliver the physical possession of Flat on or before 31.12.2016 (including a grace period of six months). The Complainant was also allotted two car parking spaces vide letter dated 08.01.2013.
3. It is the case of the Complainant that vide communication dated 18.11.2014 and various Emails, the Opposite Party had admitted delay in construction. The Opposite Party failed to handover possession of the Flat on or before 31.12.2016. Consequently, the Complainant sent a Legal Notice dated 25.04.2017 to the Opposite Party. Thereafter, the Opposite Party sent a unilateral communication dated 31.01.2019 in the nature of a revised Agreement unilaterally changing the terms of the Agreement. It was informed vide the said communication that the Flat allotted to the Complainant had been changed to another residential Flat bearing No. 1605 on the sixteenth-floor, and measuring 1002.13 sq. ft. carpet area now costing Rs.1,71,25,225/- along with other payable charges of Rs.4,98,600/- and yearly maintenance charges of Rs.2,00,212/-, and further postponing the Possession date to 31.12.2021 while requesting the Complainant to execute the unilateral communication. The Complainant replied to the said communication vide reply dated 14.08.2019 intimating that the said revised Agreement was not maintainable. The Complainant sent another Legal Notice dated 16.09.2019 demanding refund. The Opposite Party replied to the letter dated 14.08.2019 vide letter dated 13.09.2019 intimating the Complainant that in case of failure to execute the revised Agreement, the Opposite Party was to terminate the Agreement i.e. Letter of Allotment dated 08.01.2013 and the refund the paid booking amount in terms of Clause 7B(c). Consequently, the Opposite Party refunded a sum of Rs. 30,48,769/- vide cheque bearing No. 003168 dated 12.09.2019 after deducting Rs.19,76,673 contradicting the Clause 7B(c) which stipulated a refund after a deduction of only 10%. It is stated that the said revised terms were unacceptable to the Complainant, hence, the Complainant did not encash the cheque and informed it vide short reply dated 19.09.2019 to the Opposite Party(s) through their Counsel.
4. Hence, the present Complaint has been filed before this Commission as the Complainant was neither provided her boked Apartment within the time span so agreed upon by the Opposite Party nor was refunded the sum paid, alleging deficiency in services and unfair trade practices by the Opposite Party. Therefore, the Complainant has prayed as follows as per the amended Complaint:—
“(a) Direct the Respondent to refund the total payment made by the Complainant to the Respondent i.e. the entire booking/ principal amount of Rs. 50,25,442/- (Rupees Fifty Lakhs Twenty-Five Thousand Four Hundred Forty-Two Only) along with a penal interest of 18% per annum from the date of receipt of payment i.e. 24.11.2012 till the date of actual refund/ realization; and
(b) Direct the Respondent to pay interest at the rate of 24% per annum to the Complainant on the entire booking/principal amount paid by her amounting to a sum of Rs. 50,25,442/-(Rupees Fifty Lakhs Twenty-Five Thousand Four Hundred Forty Two Only) from the promi
Housewife - Complainant is a housewife and there is nothing on record to show that she is engaged in any visible commercial activity.
Flat Buyer’s Agreement – Inordinate delay in possession without adequate justification constitutes significant breach of terms of Contract, manifesting clear negligence and deficiency of service.
Delays in possession of real estate mandate full refund to consumers under the Consumer Protection Act.
(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) Nom....
(1) Third party – The opposite party has contested the complaint on the grounds of maintainability alleging that the complainant was not a ‘consumer’ within the ambit of section 2(1)(d) of the Act as....
Default by Contractors - Complainant cannot be made to suffer on account of default by contractors engaged by 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....
Contractual obligations under the Apartment Buyer Agreement necessitate interest on refunds paid due to failure in delivering possession, with current economic context influencing the interest rate.
Residential buyers are consumers; builders liable for delayed possession sans force majeure proof; refund with interest from deposit dates.
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