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2022 Supreme(Online)(NCDRC) 1155
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
RAM SURAT RAM MAURYA, Presiding Member
ANIMESH GUPTA – Appellant
Versus
M/S. RAHEJA DEVELOPERS LTD. & ANR. – Respondent
CONSUMER CASE NO. 1390 OF 2018
For the Appellants/Petitioners: Mr. S. Surender
For the Respondents: Mr. Siddharth Banthia, Mr. Anand Shankar Jha
Builder obligated to refund deposits with interest for delayed possession under Consumer Protection Act.
Headnote:(A) Consumer Protection Act, 1986 - Section 2(1)(o) - Residential construction - Complaint filed for refund of deposits made for a flat with interest and compensation for delay - Builder failed to refund amounts as per terms of the Memorandum of Understanding (MOU) - Court held that builder is liable for deficiency of service in not refunding the amount on time. (Paras 8, 10)
(B) Consumer's definition - Court considered whether the complainant was a consumer or investor under the Subvention Scheme - Held that housing construction is included in ‘service’ as defined under the Act - Complainant is a consumer despite being an investor. (Paras 7, 8)
Facts of the case:
The complainant booked a flat in a residential project but faced delays in possession and refund. The financial difficulties of the builder led to failure in timely payments as promised in the MOU.
Findings of Court:
Builder is to refund the whole amount with interest as per the MOU, acknowledging the consumer's rights under the Consumer Protection Act.
Issues: Key issue revolved around whether the complainant was a consumer eligible for protection under the Act despite being classified as an investor.
Ratio Decidendi: The court determined that housing construction qualifies as a service, aligning with consumer rights in delayed constructions, asserting that the complainant deserves compensation for delays. (Paras 9, 10)
Result: Complaint partly allowed, builder directed to refund total deposits with interest.
| Table of Content |
|---|
| 1. introduction to case and claims made by complainant. (Para 1 , 2) |
| 2. details of transactions and agreements related to the property. (Para 3 , 4 , 5 , 6) |
| 3. court considers arguments regarding consumer status and service definitions. (Para 7 , 8) |
| 4. court decision on refund obligations and consumer rights. (Para 9 , 10) |
1. Heard Mr. S. Surender, Advocate, for the complainant and Mr. Siddharth Banthia, Advocate, for opposite party-1.
2. Above complaint has been filed, for directing opposite party-1 to (i) refund Rs.7446104/- (i.e. the loan amount) with interest @18% per annum from the date of disbursement till the actual payment to the complainant, (ii) refund Rs.2411026/- with interest @18% per annum, from the date of deposit till the date of payment, (iii) pay Rs.55226/- per month with interest @18% per annum, as Pre-EMI paid by the complainant to opposite party-2, (iv) pay Rs.500000/- as compensation for mental agony and harassment, (v) pay Rs.2/- lacs, as the costs of litigation; and (vi) any other relief which is deemed fit and proper in the facts and circumstances of the case.
3. The complainant stated that M/s. Raheja Developers Limited (opposite party-1) (the builder) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing projects and selling its units to the prospective buyers. ICICI Bank Limited (opposite party-2) was a banking company and used to provide financial assistance to the public. The builder launched a group housing project in the name of “Raheja Revanta” at village Shikohpur, Sector-78, Gurgaon, in the year 2014 and made wide publicity of the rosy pictures of the project. Allured with the representations of the builder and believing on it, the complainant booked a 1BHK flat on 25.11.2014 and deposited booking amount. The builder allotted Apartment No. C-273, super built area 1197.83 sq.ft., basic sale price of Rs.9188554/- @ of Rs.7671/- per sq.ft. and executed an Agreement to Sell dated 13.01.2015 in favour of the complainant. The builder also executed a Memorandum of Understanding dated 13.01.2015 (MOU). Under Clause-8 of the MOU, the builder promised to deliver possession within 33 months to 36 months from the date of booking; Failing which, the complainant would be entitled to cancel booking and claim compensation @ Rs.1400/- per sq.ft. along with refund of total amount deposited; If the builder fails to refund the amount along with compensation within 60 days, the builder would be liable to pay interest @18% per annum on the deposit of the complainant. Payment plan was “Construction Linked Payment Plan”, under which total payment had to be made in 13 instalments. Last instalment of 5% of sale consideration and other charges had to be paid on receipt of “Occupancy Certificate”. The builder also introduced Subvention and Guaranteed buy-back scheme and under clause-8 of it, the builder undertook to pay Pre-EMI on the loan to the bank till the offer of possession. The complainant availed loan of Rs.7994000/- from ICICI Bank Limited, which was sanctioned on 31.12.2015. The complainant deposited Rs.952266/- on 25.11.2014, Rs.737106/- on 12.01.2015, Rs.9523/- on 28.01.2015, Rs.7542/- on 28.01.2015, Rs.943398/- on 04.03.2015, Rs.51193/- on 27.06.2015, Rs.9530/- on 27.06.2015, Rs.4277/- on 29.12.2015, Rs.4795/- on 16.02.2016, Rs.4794/- on 08.04.2016, Rs.4790/- on 10.06.2016 and Rs.4850/- on 23.08.2016 with the builder. ICICI bank Limited disbursed Rs.5119203/- on 01.04.2015, Rs.423351/- on 25.11.2015, Rs.474618/- on 25.01.2016, Rs.474619/- on 08.04.2016, Rs.61996/- on 06.06.2016, Rs.412214/- on 06.06.2016 and Rs.480103/- on 04.08.2016 to the builder from the loan account of the complainant. The builder realised total Rs.10180168/- from the complainant till 23.08.2016. Due to unforeseen contingencies, the complainant, vide email dated 11.04.2017, cancelled the allotment and asked the builder to buy-back the flat. The
