DR.INDER JIT SINGH, MEMBER

1. The present Consumer Complaint (CC) has been filed by the Complainants against the opposite parties as detailed above, inter aila praying for:-

i. refund of Rs.87,28,586/- paid by complainants towards Unit No.C-213, Tower-C in the project ‘The Peaceful Homes’ in Sector 70-A, Gurugram.

ii. to pay interest @18% p.a. on the total amount already paid by the complainants from its respective date till its realization.

iii. To recall their demand/call letter dated 01.04.2017, wherein a sum of Rs.9,42,722/- towards interest charged by the Bank under Subvention Scheme had been claimed from the complainants.

iv. to pay Rs.5,00,000/- towards costs and litigation expenses and compensation for harassment & mental agony.

2. Notice was issued to the opposite parties giving them 30 days’ time to file their written statement.

3. It is averred/stated in the complaint that:-

i) That the parents of the complainants booked a flat on 09.08.2012 in the residential upcoming Project/Housing complex of the OPs namely “The Peaceful Homes” situated in Sector 70A, Gurgaon, Haryana under the Construction Linked Plan (CLP) having a Super Area of 1565 sq.ft. and it was assured by the OPs that the Unit at 5th floor shall be allotted and as per Application Form, the booking amount of Rs.9,00,000/- was deposited . As per Clause 35 of the Application Form, the possession of the unit/flat was to be handed over within 36 months of the Application Forum, i.e. in the year 2015. The column nos. 2 (Unit No.), 3 (Floor) & 4 (Tower/Block) were asked to leave blank stating that the said columns shall be filled up when the same shall be allotted at 5th Floor. Believing upon the version of OPs the parents of the complainants signed each and every paper of the application form.

ii) The complainants’ parents received letters dated 04.10.2012, 20.10.2012 and 22.10.2012 from the OPs for getting it signed, stating that the amount of Rs.18.00 lakh stands transferred to OP-2 being 100% subsidiary company of the OP-1 having no objection to the parents of the complainants. They signed and not considered a big issue rather counter-signed upon those letters.

iii) The construction within stipulated period was not commenced by the OPs. Parents of the complainants received letter dated 29.07.2013 as “Intimation to take-up Allotment” demanding instalment. On enquiry, they found that they have been allotted flat/unit No. C213 at 21st Floor in Tower-C instead of 5th floor. Pursuant to which parents of the complainants sent an e-mail to OP-1 for such mischievous act of OPs by allotting unit at 21st floor, but OPs did not pay any attention and sent further demand of instalment. Being threatened for cancellation of the unit and forfeiture of the whole money, the complainants’ parents paid the said amount to OP-2. On 21.04.2014, the OP-2 informed that the excavation at the site/project has commenced in April 2014 and demanded more amounts. Thereafter, the parents of the complainants neither executed Flat Buyers Agreement nor comply with the said demand for the reason that the construction at the site could not start when the initial remittance by the OPs was received, as what was told by the OPs at the time of booking. Various remainders were sent to the OPs drawing attention to execute the Flat Buyers’ Agreement. The parents were no more interested to continue with the OPs, who since inception misled them by making false representations. They visited the site and upon seeing the slow phase of construction enquired from OPs, but the OPs tried to convince the parents of the complainants to continue with them in the project and stimulated to transfer the Allotment of Unit/Flat in favour of the complainants stating that Project has been approved from the Bank, hence the complainants can opt for Subvention Scheme and to get the loan by mortgaging the Unit with the Bank and in terms of the said Subvention Scheme/Plan no interest payable to Bank till possession, shall be charged form the complainants and also repayment of loan amount shall be commenced w.e.f. May 2017 i.e. after handing over the possession. Vide letter dated 10.02.2015, parents of the complainants surrendered the unit/flat by returning the original documents/receipts for substitution of the name of the complainants and also completed the necessary formalities by executing the necessary documents.

iv) Flat Buyer’s Agreement (FBA) was executed between the Complainants and OP-2. As per clause 10 (a) of the FBA, possession was to be given within a period of 36 months from the date of commencement of construction of the project with grace period of six months, which expired on 20.10.2017. The complainants availed a loan of Rs.85,00,000/- from HDFC Ltd. , out of which Rs.62,78,863/- had been disbursed by the bank at various intervals as per demand raised by the OPs.

v) OPs failed to give possession within the committed date of possession. The complainants are now burdened to re-pay the loan amount in absence of completion of the project, whereas the complainants in anticipation for giving the possession of unit continued with the OPs and chosen for subvention plan, but the bank had started demanding re-payment of loan amount disbursed to the OPs by sending notice, which was replied by the complainants.

vi) After having paid Rs.87,28,586/-, the OPs failed to hand over the possession within the stipulated period. The complainants took loan from HDFC Bank. The Bank paid a sum of Rs.62,78,863/- to the OPs on which interest has been paid by the complainants. Hence, the complainants filed complaint before this Commission.

4. OPs in their written statement/reply stated that :-

i. The complaint is frivolous and vexatious being based on false and fabricated facts. The complaint is liable to be dismissed for non-joinder of HDFC Ltd. Bank.

ii. OP-2 is subsidiary of OP-1. The name of OP-1 requires to be deleted from the array of parties since there is no privity of contract between the complainants and the OP-1.

iii. The complainants are defaulters and have failed to abide by their obligations under the Addendum to Flat Buyer’s Agreement dated 24.03.2015.

iv. The FBA dated 24.03.2015 expressly records the conditions under which the possession of the said unit allotted to the complainants was to be handed over by the OP-2. The delay in completion/handing over the possession of the said unit to the complainants is beyond the reasons attributable to OPs.

v. The complainants had entered into an ‘Addendum to Flat Buyer’s Agreement’ dated 24.03.2015 with the OPs at the request of Complainants as recorded in the Agreement. The said Addendum dated 24.03.2015 provided a ‘subvention’ scheme by way of which the complainants could avail the option of getting home loans from HDFC Limited. The conditions of the Addendum were in the knowledge of the complainants.

vi. In terms of the Addendum dated 24.03.2015 that the provisions of the same shall be read together with the provisions of the FBA dated 24.03.2015 – thus any default in payment under the said Addendum shall also be construed to be a default in payment under the FBA dated 24.03.2015. Inter alia the complainants are to abide by the payment obligations. The timely payments under the said Agreements was further crucial to the timely completion of the said project, without prejudice to the stand of the OPs that any purported delay in the handing over of possession of the said Unit is not attributable to the OPs at all.

vii. The complainants did not disclose the Tripartite Agreement dated 27.03.2015 entered into between the complainants, the OPs and HDFC Bank.

viii. The complainants through their parents have filed various complaints before different authorities at Gurugram including Police Authorities, SDM, etc. just to pressurize and wriggle out of the contract entered with OP-2.

ix. The complainants are not consumers within the meaning of S.2(d) of the C.P. Act, 1986. The complaint is not maintainable in view of the clause 49 of Schedule 1 of the Application Forum dated 02.04.2013 (as also clause 57 of the FBA dated 24.03.2015), which provides for Arbitration in the event of any dispute between the parties.

x. The complainants are not the consumers as they are not the original allottees. The other allegations are denied by the OPs.

xi. The complaint being devoid of any merits, be dismissed with heavy costs u/s 26 of the C.P. Act

5. Evidence by way of affidavit was filed by the complainants and by the OPs broadly on the lines of averments made in the complaint.

6. Heard counsels of both sides. The details of the flat allotted to the Complainants/other relevant details of the case are given in the Table below:-

7. It was argued by the counsel for the complainants that the licence for the project was granted to OP-2, but initial three payments were collected by OP-1, who still had no right to deal with the project. Letters dated 08.01.2014, 13.06.2014 and 25.11.2014 of OP No.1 sent to complainants clearly say that project shall be developed by OP-1. OPs have not fulfilled their commitments to provide Nursery School, recreational facilities, auto car wash etc. OPs argued that on 26.09.2019 the possession of the said unit was handed over to the authorized representative of the bank in terms of orders dated 02.08.2019 passed by the D.M. Gurgaon. Hence, the OPs cannot be directed to refund the amounts already paid towards said unit as said unit now vests with Bank pursuant to proceedings under SARFAESI Act. The instant complaint should be dismissed on account of non- joinder of HDFC as a party. Complainants having defaulted on payments, have forfeited the earnest money paid.

8. The contention of OPs that this Commission lacks pecuniary jurisdiction is not valid. Under Section 21 of the Act, Commission has the jurisdiction where value of goods and services and compensation, if any, claimed exceeds Rs. one crore. The contention of the OPs that the parties are bound by the agreement which provides for arbitration is also not acceptable as proceedings under the Consumer Protection Act are in addition to the remedies under Special statues and when two remedies are available for the same relief, the party to whom such remedies are available has the option to elect either of them.

9. In the instant case, there is an inordinate delay in handing over the possession of flat by the OPs. The complainants cannot be made to wait for an indefinite time and suffer financially. Hence, the complainants in the present circumstances have a legitimate right to claim refund alongwith fair delay compensation/interest from the OPs The plea of OPs for entitlement of compensation to the complainants in accordance with provisions of the FBA is not valid.

10. For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, the Consumer Complaint is allowed/disposed off with the following directions/reliefs: -

i. Considering that the possession of the unit in question has presently been taken over by the HDFC on account of default in repaying the loan which is on account of delay in possession of the unit in question to the complainants by the OPs, OPs shall settle the entire dues payable to the HDFC including the principal amount disbursed by the HDFC on behalf of the complainants to OPs, which will enable the OPs to take back the possession of the unit in question from the HDFC and will also enable the HDFC to close any liability towards complainants/their parents and issue No Dues Certificates to complainants/their parents/the persons in whose name the loan was sanctioned.

ii. The OPs shall refund the entire principal amount paid by the complainants directly to OPs alongwith compensation in the form of simple interest @ 9% per annum from the date of each payment till the date of refund. The principal amount refundable mentioned in this para is subject to verification of actual amount paid by the complainants based on receipts etc.

(iii) The OPs shall pay a sum of Rs.25,000/- as cost of litigation to the complainants.

(iv) The liability of the OPs shall be joint as well as several.

(v) The payment in terms of this order shall be paid within three months from today.

11. The pending IAs, if any, also stand disposed off.