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2021 Supreme(Online)(NCDRC) 581
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
JUSTICE DEEPA SHARMA, PRESIDING MEMBER, MR. SUBHASH CHANDRA, MEMBER
ROHIT VERMA & ANR. – Appellant
Versus
SUPERTECH LIMITED & ANR. – Respondent
Consumer Case No. 530 of 2020
For the Complainant: Mr Nithin Chandran
For the Opp.Party: Ms Ratna Dwivedi Dhingra
Delay in possession constitutes deficiency of service, justifying a refund with interest and compensation for mental distress.
Headnote:(A) Consumer Protection Act, 1986 - Sections 12(1)(a) and 21 - Complaint regarding delay in possession of residential unit - Complainants booked a unit in the project and paid over 90% of the consideration - Delay justifies refund along with interest and compensation for mental distress. (Paras 3, 10, 14, and 15)
(B) Consumer Status - The court ruled that the Complainants, purchasing for residential use, qualify as consumers despite Opposite Parties’ claims to the contrary, finding such contentions baseless. (Paras 9, 10, and 15)
(C) Force Majeure - The court rejected the Opposite Parties' defence, ruling that reasons cited were not beyond their control and did not absolve them of contractual obligations (Paras 12 and 15).
Facts of the case:
The Complainants had booked a residential unit, paid a total of Rs.91,83,830/-, but possession was not delivered as promised. The Opposite Parties claimed force majeure as a defense for delays.
Findings of Court:
The Complainants are entitled to a full refund due to the Opposite Parties' failure to meet obligations.
Issues: Whether the Complainants are consumers and whether the delay in possession was justified.
Ratio Decidendi: The court found the Opposite Parties liable for failing to deliver possession and for relying on an unsupported force majeure defense.
Result: Complaint allowed, refund ordered with interest and compensation.
| Table of Content |
|---|
| 1. delay in possession without valid justification. (Para 2 , 4 , 6) |
| 2. opposite parties' force majeure claims lack evidence. (Para 7 , 10 , 12) |
| 3. entitlement to a refund based on non-delivery of possession. (Para 14 , 15) |
PER MR SUBHASH CHANDRA, MEMBER
The present Consumer Complaint has been filed under Section 21 read with Section 12 (1) (a) of the Consumer Protection Act , 1986 by Complainants against Opposite Parties i.e., Supertech Limited and Sarv Realtors Private Realtors, in relation to the Project “Supertech Hues” situated at Sector 68, Gurgaon, Haryana.
2. The facts leading upto the present Complaint are that the Complainants had booked a Unit in the project “Supertech Hues” situated at Sector 68, Gurgaon, Haryana which was being developed by Opposite Party No. 1. On 13.10.2013, the Complainants had paid a booking amount of Rs.6,00,000/-. On 23.09.2014, OP No. 1 executed the Buyer Developer Agreement and allotted a Unit bearing No. 0103 to the Complainants. As per clause 24 of the Agreement, possession of the Unit was to be delivered to the Complainants in 42 months, i.e. by April 2017 with an additional grace period of 6 months, i.e. latest by October 2017. On 11.09.2014, a Tripartite Agreement was executed between the Complainants, OP No. 1 and HDFC bank and accordingly, HDFC bank had sanctioned a loan of Rs.75,00,000/- to the Complainants vide loan agreement dated 30.09.2014 and the entire loan amount was disbursed by HDFC bank on 19.01.2018. As per the Complainants, they regularly followed up with OP No. 1 regarding the progress of the project and were assured that the construction was going on as per schedule. However, contrary to the assurances of OP No. 1, possession of the Unit was not delivered by the stipulated date. As per the ‘Statement of Account’ issued by OP No. 1, as on January 2018, OP No. 1 had collected an amount of Rs.91,83,830/- from the Complainants in spite of which possession was not delivered. It is also submitted that that the project had been transferred to OP No. 2, which was impleaded as a necessary party.
3. Aggrieved, the Complainant is before this Commission with following prayer:-
“ a) Direct the Opposite Party(s), jointly or severally, for an immediate 100% refund of the total amount of Rs.91,83,830/- (Rupees Ninety One Lakh Eighty Three Thousand Eight Hundred Thirty Only) paid by the Complainants along with a penal interest of 18% per annum from the date of receipt of each payment made to Opposite Party No. 1;
b) Direct the Opposite Party(s), jointly or severally, to pay compensation of Rs.5,00,000/- (Rupees Five Lakhs Only) to the Complainants for the mental agony, harassment, discomfort and undue hardship caused to the Complainants as a result of the above acts and omissions on the part of the Opposite Party(s);
c) Direct the Opposite Party(s), jointly or severally, to pay a sum of Rs.1,00,000/- (Rupees One lakh Only) to the Complainants towards litigation costs; and
d) That any other and further relief in favour of the Complainants as the Hon’ble Commission may deem fit and proper in the facts and circumstances of the case.”
4. On behalf of the OP it is admitted that while the complainant had in fact booked the said unit and that the Buyer – Developer Agreement was entered into followed subsequently by the Tripartite Agreement between the Buyer (Complainant), Developer and HDFC Bank, the Developer had endeavoured to complete the project including the said unit. However, due to events covered by the force majeure clause, it had been prevented from completing the same.
5. Parties led their evidences by way of affidavits.
6. We have heard the learned counsels for the parties and carefully perused the records. It was contended by the learned counsel for the Complainants that the Complainants had booked the Unit for their own residential purpose and have not availed the services of the Opposite Party No. 1 for commercial purpose. They further stated that the project is stil
