FLAT PURCHASERS CANT BE MADE TO WAIT FOR AN INDEFINITE PERIOD OF TIME HOPING TO OBTAIN POSSESSION…
FLAT PURCHASERS CANT BE MADE TO WAIT FOR AN INDEFINITE PERIOD OF TIME HOPING TO OBTAIN POSSESSION…SEEKING A REFUND OF THE AMOUNTS DEPOSITED IS A VALID REDRESSAL..NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
There is neither a valid occupation certificate nor can the opposite party claim to have made a proper offer of possession..Therefore there is no merit in the complainant's averments….National Consumer Disputes Redressal Commission New Delhi
SANGEETA AGARWAL & ANR vs M/S CHINTELS INDIA LTD
CONSUMER CASE NO 2562 OF 2018
CORAM …Justice Deepa Sharma Presiding Member and Subhash Chandra..Member
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This complaint dated 16.11.2018 under Section 12(1)(a) was filed by the complainants alleging deficiency in service and unfair trade practice by the opposite party M/S Chintels India Ltd claiming refund of the money deposited towards the flat booked by them with the opposite party with damages.
The issue for consideration before the bench of Justice Deepa Sharma Presiding Member & Subhash Chandra Member of the National Commission was whether the opposite party was liable to pay a 100% refund of the total amount paid by the complainant or not.
FACTS MATRIX….It was a case of the complainant that they had booked a flat by depositing the initial booking amount of Rs 22,23,690/- in “Chintels Serenity”, Sector 109, Gurugram which was a project developed by the opposite party. As per the allotment letter dated 19/08/2013 issued by the opposite party, a flat with a super area of 2100 sqft was allotted to the complainants for a total sale consideration of Rs 1,64,09,050/-
An Apartment Buyers Agreement was executed between the two parties on 6/5/2014 wherein as per clause 11 of the agreement, the possession of the aforesaid flat was promised by the opposite party to the complainant after a period of 36 months, with a grace period of 6 months.
The payments were to be made stage-wise and on 22/07/2015 the complainant paid Rs 1,69,96,578/- to the opposite party including the payment due on possession.
It was averred by the complainant that the possession had not been offered even on the date of the filing of the instant complaint while the opposite party continued to receive payments from the complainant.
It was the case of the complainant that the inordinate delay in the completion of the project which was without any justification made the opposite party liable for deficiency in service and unfair trade practice.
It was therefore prayed by the complainant that..
1) That the opposite party be directed for a 100% refund of the total amount of Rs 1,69,96,578/- paid by the complainant along with penal interest of @18% per annum from the date of receipt of each payment made to the opposite party;
2) That the opposite party be directed to pay compensation of Rs 5,00,000/- to the complainants for mental agony, harassment, discomfort and undue hardships caused to the complainant s as a result of the above acts and omissions on part of the opposite party;
3) That the opposite party be directed to pay a sum of Rs 1,00,000/- to the complainants in the project “Chintels Serenity” towards litigation costs;
4) Any other relief in favour of the complainant's as the Hon’ble Commission may deem fit and proper in the facts & circumstances of the case.
The Complainant relied on the observations made by the Commission in Anila Jain vs Emaar MGF Land Limited in CC no 2208 of 2017 based on the orders of the Hon’ble Apex court in Civil Appeal no 12238 of 2018 Pioneer Urban Land & Infrastructure Ltd vs Govindan Raghavan and in Civil Appeal, no 3182 of 2019 Kolkata West International City Pvt Ltd vs Devasis Rudra wherein it was held ”That in any case the complainant cannot be compelled to accept possession when it is offered after such a long period of saying at least three years from the timeline stipulated for this purpose, in the agreement executed between the parties.
Finally, it was argued by the complainant that they were entitled to compensation and damages as per Fortune Infrastructure and Anr vs Trevor D’Lima and Ors in which it was held by the Supreme court that” It must be noted that the law is well settled in this regard. Whenever the builder has refused to perform the contract without any valid justification, the buyer is entitled to compensation as he has been deprived of price escalation of the flat. Every breach of contract gives rise to an action for damages. Such amount of damages must be proved with reasonable certainty.”
The opposite party averred that they were still willing to give the complainant’s possession of the said flat. The opposite party denied that time was the essence in the Agreement or that there was an assurance of handing over of the possession of the flat within the time claimed by the complainant’s.e instalment against a discount which the opposite party had provided.
It was their case that the complainant had booked the flat for speculative purposes.
The opposite party averred that they were still willing to give the complainant’s possession of the said flat. The opposite party denied that time was of the essence in the Agreement or that there was an assurance of handing over the possession of the flat within the time claimed by the complainants.
The fact of the booking of the flat and the payment of Rs 1,69,96,578/-through various instalments was however not disputed by the opposite party.
The Commission also relied on the observations made in Kolkata West International City Pvt Ltd vs Devasis Rudra and Pioneer Urban Land and Infrastructure Ltd vs Govindan Raghavan wherein the Apex court had held that flat purchasers cannot be made to wait for an indefinite period of time hoping to obtain possession and that seeking a refund of amounts deposited is a valid redressal.
Relying upon the observations made in Rajnish Bharadwaj and Ors vs M/S CHD Developers Ltd and ors the Commission observed “In a catena of judgements this Commission has laid down that the onus shifts to the opposite party to prove that the Complainant is “Investor” and it is observed that the opposite party did not discharge their onus of proof regarding this aspect. Hence the complainants are “Consumers” as defined under Section 2(1)(d) of the Consumer Protection Act 1986”.
The Commission was of the view that the mere contention that the complainants had paid only 50%payment upfront for a discount itself couldn’t be a reason to exclude the complainant’s from the scope of Section 2(1)(d) of the Consumer Protection Act of 1986.
The National Commission further observed that since the opposite party had failed to bring any single document on record to prove that the complainant’s were regularly engaged in the business of buying and selling real estate, their averments of the complainant’s having booked the flat for speculative purposes couldn’t be accepted.
The Commission was pleased to observe that it was evident from the documents brought on record that the complainants had been regularly paying the amounts demanded by them towards the flat booked in the concerned project being developed by the opposite party.
The opposite party on the contrary had not brought any evidence on record of any notice to the complainant for default.
The National Commission observed that neither on the date of the filing of the complaint nor subsequently had the opposite party made a valid offer of possession in respect of the said flat and hence their contention that they were now ready to offer possession to the complainant’s was liable to be rejected
.
The National Commission after careful perusal of the evidence was pleased to allow the appeal and direct the opposite party to refund the entire amount of Rs 1,69,96,578/- to the complainant’s with simple interest @9% from the date of respective deposits till the date of payment.
The opposite party was also directed to pay Rs 50,000/- as litigation costs to the complainant’s .
The Commission directed the payment within three months of the date of the said order. In case of default, the Commission directed the compensation to be paid with penal interest of 12% for the period of the delay.