ARVIND YADAV vs OMAXE AZORIM DEVELOPERS PVT. LTD.

Arvind Yadav, the complainant herein being lured by the brochure and the advertisements given by the opposite party applied for allotment of a residential flat in the project "The Forest SPA-Faridabad" undertaken by the opposite party developer. Pursuant to the application, a letter of allotment of flat No.503, Barberry Block measuring 2520 sq. ft. was issued in favour of the complainant. As per the terms & conditions the complainant was supposed to make timely payment of the installments and the opposite party was supposed to deliver the possession of the flat complete in all respects within 30 months from the date of signing of the allotment letter which period could be extended for six months. According to the complainant he has fulfilled his part of agreement and paid a sum of Rs.1,11,87,505/- to the opposite party against the consideration amount of Rs.1,44,41,040/-. It is further the case of the complainant that there was some delay on the part of the complainant in making payment of the installments but the delay was condoned by the opposite party on receipt of penal interest of Rs.6,88,168/-. It is alleged that although the stipulated time for delivery of possession has expired, the opposite party has failed to deliver the possession of the flat despite of several requests made by the complainant. Being aggrieved the complainant has filed the consumer complaint.

The opposite party on being served with the notice of the complaint has filed written statement. According to the opposite party the complainant is not a consumer as envisaged under Section 2 (1) (d) of the Consumer Protection Act, 1986 as he had booked the residential flat for commercial gains and not for using the same for residence. The opposite party also took the preliminary objection that as per clause 55 of the allotment letter the opposite party had agreed for resolution of the dispute, if any, by arbitration. Therefore, the jurisdiction of the Consumer Fora is ousted. It is also pleaded by the opposite party that the complaint is bad for misjoinder of parties as there is no company by the name M/s Omaxe Azorim Developers Pvt. Ltd. and the name of the said company had been changed to M/s Omaxe Forest Spa and Bills Developers Ltd. which fact was duly intimated to the complainant on 20.3.2014.

On merits it is pleaded that the complainant is a chronic defaulter and all the payments were made after the stipulated date of payment and some of the installments were paid after a considerable delay of about 287 days, that too after series of reminders. Once the allotment was cancelled due to default but subsequently restored on the complainant''s request on payment of the penal interest. It is alleged that the progress of the construction got delayed because of delay in payment by the complainant as well as other allottees and that there is no deficiency in service on the part of the opposite party.

The complainant in support of his case has filed his affidavit to affirm the allegations in the complaint. The OP also filed affidavit of their authorized signatory Sh. Pawan Aggarwal.

We have heard learned counsel for the parties and perused the record.

It is not in dispute that complainant and opposite party entered into Builder-Buyer''s agreement for construction and delivery of apartment no. 503, Barberry Block measuring 2520 sq. ft. in the development project "The Forest SPA-Faridabad" undertaken by the opposite party. It is also not in dispute that as per the terms and conditions of the agreement, the possession of the apartment in all respects was to be delivered within 30 months of the signing of the agreement, which period could be extended for six months. It is also not disputed that agreed consideration amount payable by the complainant was Rs.1,44,41,040/-, against which the complainant has paid a sum of Rs.1,11,87,505/-. Admittedly, despite of having received the aforesaid huge amount against the consideration amount, the opposite party has failed to complete the construction of the project and deliver possession of the subject apartment to the complainant within the stipulated time. As a matter of act, possession of the apartment has not been delivered as yet.

Copy of the Builder-Buyer agreement dated 27.05.2011 executed between the parties has been placed on record. Clause 30 of the said agreement reads as under:

"The company shall complete the construction of the Apartment/Project within 30 months (thirty months) from the date of signing of this Agreement by the buyer(s) or within an extended period of six months, subject to force-majeure conditions (as mentioned in clause (b) hereunder) and subject to the allottee (s) as well as other Unit Buyer(s) making timely payment and subject to any other reasons beyond the control of the Company. No claim by way of damages/compensation shall lie against the Company, in case, of delay in handing over the possession on account of any of the aforesaid reasons and the company shall be entitled to a reasonable extension of time for the delivery of possession of the said apartment to the buyer(s). The aforesaid period of development shall be computed by excluding Sundays. Bank Holidays, enforced Govt. Holidays and the days of cessation of work at site in compliance of order of any Judicial/Concerned State Legislative Body.

(b) The company shall not be held responsible or liable for not performing any of its obligations or undertakings provided for in this Agreement, if such performance is prevented, delayed or hindered by an act of God, fire, flood, explosion, war, riot, terrorist acts, sabotage, inability to procure or general shortage of energy, labour, equipment, facilities, materials or supplies, failure of transportation, strikes, lock outs, action of labour unions or any other cause (whether similar or dissimilar to the foregoing) not within the reasonable control of the company. Further, the company shall not be held liable for any delay in delivery of possession of the said apartment to the Buyer (s) if the delay in delivery of possession of the said Apartment to the buyer(s) if the delay is caused due to carrying out any alternate/additional work demanded by the buyer(s) in the said apartment at any point of time during construction of the said apartment.

(c) The company shall offer in writing to the Buyer(s) to take over, occupy and use the said Apartment within thirty days from the date of offer of possession and the company shall hand over the said Apartment to the Buyer(s) for his occupation and use subject to the buyer(s) having complied with all the terms and conditions of this Agreement and is not in default under any of the terms and conditions and has complied with all the provisions, formalities, documentation etc. as may be prescribed by the Company in this regard. Upon receiving a written intimation from the Company, the Buyer(s) shall within the time stipulated by the company in the notice offering possession, take over the said apartment from the company by executing necessary indemnities, undertakings and such other documentation as the Company may prescribe and the Company shall after satisfactory execution of such documents and payment by Buyer(s) of all the dues, permit the Buyer(s) to occupy and use the said apartment.

(d) If the Buyer(s) fails to take over the said Apartment as aforesaid within the time limit prescribed by the Company in its notice, then the said Apartment shall lie at the risk and cost of the Buyer(s) and the Company shall have no liability or concern thereof. In the event of buyer(s) failure to take possession for any reasons whatsoever, he shall be deemed to have taken the possession of the apartment on expiry of 30 days of offer of possession for the purpose of payment of maintenance charges or any other taxes, levies, outflows on account of the apartment or for any other purpose. Further, it is agreed by the Buyer(s) that in the event of his failure to take over the said Apartment in the manner as aforesaid, the Buyer(s) shall pay to the Company penalty at the rate of Rs.5/- (Rupees five only) per sq.ft. of the super area of the said Apartment per month for the entire period of such delay and agrees that the company may withhold conveyance or handing over for occupation and use of the said apartment till the entire penalty with applicable overdue interest, if any, at the rates as prescribed in this agreement are fully paid.

(e) However, in case of delay in construction of the Apartment/said Project attributable to delay of Company subject to clause (a) & (b) herein above, the Company would pay to the Buyer(s) a sum of Rs.5/- (Rupees five only) per sq.ft. per month for the super area for the period of delay.

(f) If for force majeure reasons, the whole or part of the project is abandoned or abnormally delayed, no other claim will be preferred except that buyer(s)''s money will be refunded on demand after compliance of certain formalities by the buyer(s).

(g) In case of any supervening event like acquisition or any other decision of the Government of local Authorities, the Company is unable to complete the development/construction of the said apartment. The buyer(s) shall remain obliged to make payment to the Company proportionate to the extent of the completion thereof and as may be certified by the Architect of the Company. The decision so made shall be final. However, the buyer(s) shall be entitled to transfer of the right to receive the compensation (if any) of the Company from the Government in respect of the said Apartment."

On reading of the above, it is clear that opposite party had promised the complainant to complete the construction of the apartment / project within 30 months from the date of signing of the agreement i.e. 27.11.2013, which period could be extended by six months. The 30 month period and even six months extension period in the agreement expired on 27.05.2014. The complainant has failed to complete the construction and deliver the possession of the apartment till date although opposite party had received substantial payment to the tune of Rs.1,11,87,505/- against the consideration amount. No doubt, clause 30 of the terms and conditions of the agreement do provide for contingencies which may exonerate the opposite party from allegation of completing the project within timeline but learned counsel for the opposite party has not been able to point out any such contingency which could have justified failure of the opposite party to complete the construction and deliver possession of the apartment to the complainant. Thus, in our considered opinion, this is clear case of deficiency in service on the part of the opposite party.

Learned counsel for the opposite party in order to wriggle out of this situation has contended that complainant is a chronic defaulter who defaulted in making payment of Construction Linked Payment Plan and some of the instalments were paid after the considerable delay of 287 days, that too after series of reminders. It is argued that once allotment of complainant was cancelled due to default but it was subsequently restored on the request of the complainant after receiving penal interest. From the argument itself, it is clear that al-though the complainant defaulted in making instalments as per Construction Linked Plan, the opposite party condoned said default and restored the allotment after receiving payment of instalment with penal interest. Therefore, the opposite party cannot take shelter of plea of default and cancellation of allotment which was subsequently restored.

It is further contended by learned counsel for the opposite party that delay in progress of construction is unintentional and the project delayed because not only the complainant as well as other allottees failed to make payment against the consideration amount as per the Construction Linked Plan. We do not find merit in this contention for the reason that no cogent evidence has been led by the opposite party to show that substantial number of co-allottees defaulted in making payment. Thus, in our view, opposite party has no logical explanation for not completing the project within three years after the expiry of stipulated date for delivery of possession.

In view of the discussion above, we are of the opinion that opposite party despite of having received major portion against the consideration amount has failed to complete the project and deliver possession of the apartment to the complainant. This obviously amounts to deficiency in service. Complainant is, therefore, entitled to refund of his money paid alongwith compensation.

From the discussion above, it is evident that opposite party has utilized Rs.1,11,87,505/- paid by the complainant against the consideration amount in instalments. Had the opposite party borrowed said money from market or the bank, opposite party would have paid interest on the same. Therefore, looking into the over-all facts and circumstances of the case and the prevailing bank rate, we are of the opinion that interest of justice shall be fulfilled if the opposite party is directed to refund the money paid by the complainant against the consideration amount with 12% interest p.a. on the said amount from the respective dates of payment till realization of the amount.

In view of the discussion above, the complaint is allowed with following directions: 1. The Opposite parties shall refund the entire amount of Rs.1,11,87,505/- paid to it by the complainant within 30 days alongwith 12% simple interest p.a. from the respective dates of payment of instalments by the complainant.