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JUSTICE
V.K. JAIN, PRESIDING MEMBER (ORAL)
The
complainant booked a residential flat with the opposite party in a project
namely ‘Earth Copia’, which the opposite party was to develop in Sector-112
of Gurgaon. The opposite party allotted residential Unit No.404 in
Tower G having super area of 1835 sq. ft. to him for a consideration of
Rs.81,78,580/-. The complainants having opted for a construction
linked payment plan, the aforesaid amount was payable in the following
manner:
- At the time of booking :
10% of the BSP
(ii)
Within 45 days from booking : 15% of the BSP
- Within 120 days from
booking : 10% of the BSP plus 50% of the EDC and IDC
- At start of Excavation Work
: 10% of the BSP
- At start of Basement Slab :
10% of the BSP plus 50% of the EDC and IDC
- At start of 2nd floor
work : 5% of the BSP
- At start of 04th floor
work : 5% of the BSP
- At start of 07th floor
work : 5% of the BSP plus 50% of 3rd and 4th floor
PLC plus 50% of Park Facing PLC plus 50% of road / corner facing PLC
- At start of 10th floor
work : 5% of the BSP
- At start 12th floor
work: 5% of BSP
- At the start of 14th Floor
work : 5% of the BSP
- At start of Internal
Plaster : 5% of the BSP plus 50% of 3rd and 4th floor
PLC plus 50% of Park Facing PLC plus 50% of road / corner facing PLC
- On laying of flooring : 5%
of the BSP
- On offer of Possession : 5%
plus 100% of ECC plus 100% of IFMS plus 100% of EEC and FFC plus 100%
of Power back-up charges”.
2.
The complainant has paid a sum of Rs.58,74,142.00 to the opposite party in
installments, the last payment having been made on 25.7.2015. The
possession as per the buyers agreement dated 31.05.2012 was to be delivered
within three years from the execution of the said agreement, though the
opposite party was allowed a grace period of six months. Thus,
including the grace period, the possession ought to have been delivered by
30.11.2015. The grievance of the complainant is that despite they
having paid a sum of Rs.58,74,142.00 to the opposite party, the
construction of the flat allotted to him is not even complete. The
complainants are therefore before this Commission, seeking refund of the
entire amount paid along with compensation the form of simple of interest.
3.
The complaint has been resisted by the opposite party which has taken a
preliminary objection that this Commission does not have the pecuniary
jurisdiction to entertain the complaint. It is also alleged that the
complainant has defaulted in making payment in terms of the payment plan
agreed by him since 80% of the sale consideration has become due from
him. It is further stated in the reply to the complaint that the
construction has already reached upto 12th floor. It
is however, not disputed that the construction of the flat allotted to the
complainant is not complete, though the learned counsel for the opposite
party states that the construction is likely to be completed by April,
2018. He further states that the Directors of the opposite party are
already in custody.
4.
In terms of Section 21 of the Consumer Protection Act, this Commission
possesses the requisite pecuniary jurisdiction to entertain the complaint,
where the value of the goods or services, as the case may, and the
compensation, if any, claimed by the complainants exceeds Rupees one
crore. As held by a Three-Members Bench of this Commission in Ambrish
Kumar Shukla Vs. Ferrous Infrastructure Pvt. Ltd. CC No. 97 of 2016,
decided on 07.10.2016, the value of the services in such cases means,
the aggregate consideration agreed to be paid by the buyer to the builder.
Therefore, the agreed sale consideration in this case, being
Rs.81,78,580/-, the aforesaid would be value of the services hired or
availed by the complainant. If compensation claimed by the
complainant is added to the aforesaid amount, the aggregate comes to more
than Rupees one crore. This Commission therefore possesses the
requisite pecuniary jurisdiction to entertain the complaint.
5.
As regards, the alleged default on the part of the complainant, it would be
seen form the payment plan agreed between the parties that 65% of the BSP
was required to be paid by the start of 4th floor
work. The (viii) installment was payable at the start of the 7th floor
work, (ix) installment was payable at the start of 10th floor
(x) installment was payable at the start of 12th floor
work. The complainant made last payment in July, 2015, as would be
evident from the Sales Customer Ledger of the opposite party. He paid
more than 65% of the Basic Sale Price by that date. There is no
evidence or even an allegation that 7th floor work had
already started by the time last payment was made by the complainant.
The written version filed by the opposite party does not show when the 7th floor
work, 10th floor work and 12th floor work
started. It is also not known whether the aforesaid work started
before filing of this complaint or after filing of this complaint. In
the absence of the aforesaid particulars, and the proof thereof, the
complainant cannot be said to be a defaulter in payment of viii, ix and x
installments. In any case, if the complainant was in default in
making payment, the opposite party ought to have cancelled his installment
and could even have forfeit the Earnest Money as per the terms and
conditions of the Buyers agreement. That having not been done, the
opposite party is deemed to have condoned the aforesaid default.
Consequently, the relief sought by the complainant cannot be denied on
account of the aforesaid alleged defaults.
6.
It is an admitted position that the construction of the flat allotted to
the complainant is not complete even till date, though more than two years
have already expired from the time period stipulated for completing the
said construction. The complainant therefore cannot be made to wait
indefinitely for the possession of the flat allotted to him. This is
more so, considering the situation where even the Directors of the builder
company are said to be in judicial custody. The complainants
therefore are entitled to refund of the entire amount paid by them along
with appropriate compensation.
7.
The learned counsel for the complainants states on instructions from one of
the complainants, who is present in the Court, that though the complainants
have claimed compensation in the form of simple interest @ 24% per annum,
they in order to avoid further litigation in the matter are restricting
their claim to refund of the principal amount paid by them along with
compensation in the form interest @ 10% per annum and the cost of
litigation.
8.
The complaint is therefore disposed of with the following directions:
(i)
The opposite party shall refund the entire principal amount of
Rs.58,74,142.00 received from the complainant along with compensation in
the form of simple interest @ 10% per annum from the date of each payment
till the date on which the entire amount long with compensation in the form
of simple interest is refunded.
(ii)
The opposite party shall pay Rs.25,000/- as the cost of litigation to the
complainants
(iii)
The payment in terms of this order shall be made within three months from
today.
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