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2020 SCC OnLine NCDRC 930

In the National Consumer Disputes Redressal Commission†

Through Video Conferencing
(BEFORE DEEPA SHARMA, PRESIDING MEMBER)

Pratibha Nagrendra Singh and Another … Complainant(s);

Versus
Vatika Ltd. … Opp.Party(s).
Consumer Case No. 2744 of 2018
Decided on December 3, 2020
Advocates who appeared in this case :
In person for the Complainant;
Ms. Swati Mittal, Advocate for the Opp.Party.
The Order of the Court was delivered by
DEEPA SHARMA (ORAL), PRESIDING MEMBER:— The present Complaint has been
filed by the Complainants alleging deficiency in service on the part of the Opposite
Party in providing the allotted unit to them in terms of the agreement entered into
between them and the Opposite Party.
2. The brief facts of the case are that the Complainants had booked a villa with the
Opposite Party and entered into a Builder Buyer Agreement dated 22.12.2009. Under
that agreement, the Opposite Party had promised to hand over the allotted unit to the
Complainants within three years from the date of execution of the said agreement. The
Opposite Party failed to honour their promise made in the said agreement and made
no offer of possession of the unit to them till the year 2017 when they made an offer
of villa no. 6, S-5.3, Signature Villa 2. The Opposite Party had made the offer without
any approved plan and Completion Certificate. Hence, the Complainants did not accept
the offer of possession. They have filed the present Complaint.
3. In the Complaint, it is alleged that the Opposite Party had initially allotted the
Villa No. 31/240/Simplex/BR but later on despite seeking certain Addendum on the
false promise of handing over the possession of the changed villa, the Opposite Party
did not deliver the possession of the villa within stipulated period of three years from
December 2009. It is submitted that without consent of the Complainants, the villa
had been changed again and an offer of possession of Villa No. 6, S-5.3, Signature
Villa 2 had been made. It is submitted that the Opposite Party had also asked for
certain additional charges towards holding charges, maintenance charges and
restoration cost which again is contrary to the terms and conditions of the agreement.
On these submissions, the Complainants have prayed that the Opposite Party be
directed to refund the deposited amount of Rs. 63,75,830/- along with appropriate
interest and compensation.
4. The Written Statement has been filed by the Opposite Party. The only plea taken
is that the Complainants are not consumers. It is further contended in the Written
Statement that Section 79 of Real Estate (Regulation and Development) Act, 2016
(RERA) bars the jurisdiction of this Commission. It is further submitted that there is
no deficiency in service on the part of the Opposite Party. It is contended that the offer
of possession was made but the Complainants have failed to accept the possession
and therefore, it cannot be said that there was deficiency in service on the part of the
Opposite Party. It is submitted that the increase in the cost of the villa has been due
to the increase in the area of the villa. It is contended that the time was not the
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essence of the agreement. It is further contended that the Complainants were the
defaulter and the delay occurred is beyond the control of the Opposite Party. It is
submitted that there was no availability of steel/cement, another building material,
water supply, electric power or slow down, strike, man power etc. and due to that
reason, the delay had occurred. There was an element of force majeure and there
cannot be said that there was any deficiency in service. It is prayed that the Complaint
is liable to be dismissed.
5. Learned Counsel for the Opposite Party has argued at length. She has submitted
that she does not press their contention that the Complainants are not the consumers.
She has further stated that the Completion Certificate had been obtained in the year
2018. It is further argued that the extra charges are due to the increase in the area of
the villa. It is submitted that there is sufficient evidence on record to show that there
was an element of force majeure. It is further argued that the changes in the villa are
made with the permission and consent of the Complainants.
6. The parties have led their evidences by way of affidavits.
7. I have heard the arguments of the Complainants and the learned Counsel for the
Opposite Party. The admitted facts of the case are that the parties had entered into an
agreement dated 22.12.2009 whereby the Opposite Party had promised to allot a villa
to the Complainants within a period of three years from the date of execution of the
agreement. It is an admitted fact that for the first time, an offer of possession was
made to the Complainants on 20.06.2017. The possession as promised was to be
given within three years, i.e. by 2012. However, the offer of possession was made in
the year 2017. Thus, the delay in offer of possession stands conclusively proved.
8. Learned Counsel for the Opposite Party has argued that the delay had occurred
due to certain unavoidable circumstances like non-availability of steel/cement, another
building material, water supply, electric power or slow down, strike, man power etc.
and brought to my notice Clause 12.1 of the Builder Buyer Agreement dated
22.12.2009. The relevant Clause is reproduced as under:
“12.1 Delay due to reasons beyond the control of the Company.
If, however, the completion of the said Unit is delayed by reason of non-
availability of steel and/or cement or other materials or water supply or electric
power or slow down, strike or due to dispute with the construction agency (ies)
employed by the Company, lock-out or civil commotion, by reason of war or enemy
action or terrorist action or earthquake or any act of God or if non-delivery for
possession is as a result of any Act, Notice, order, Rule or Notification of the
Government and/or any other Public or Competent Authority or due to delay in
sanction of unit/zoning plans/grant of control of the Company then the Applicant
agrees that the Company shall be automatically entitled to the extension of time for
delivery of possession of the said Unit. The Company as a result of such a
contingency arising reserves the right to alter or vary the terms and conditions of
this Agreement or if the circumstances beyond the control of the Company so
warrant, the Company may suspend the project for such period as it may consider
expedient and the Applicant agrees not to claim compensation of any nature
whatsoever (including the compensation stipulated in Clause (12.5) of this
Agreement during the period of suspension of the Scheme.”
9. It is apparent that the benefit of this Clause is available to the Opposite Party
only when due to the reasons enumerated in this Clause, the project was suspended.
Learned Counsel for the Opposite Party has submitted that the project had at no stage
been suspended. Moreover, there is no sufficient evidence on record, produced by the
Opposite Party, to prove that the delay had occurred due to any reason mentioned in
this Clause. The benefit under this Clause is, therefore, not available to the Opposite
Party. From the above discussion, it is proved that there is deficiency in service on the
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part of the Opposite Party since they have not delivered the subject property to the
Complainants within the stipulated period as per the terms of the agreement. The
argument of learned Counsel for the Opposite Party that the Complainants had agreed
to the change of the villa and had been executing certain Addendums from time to
time, has no merit in view of the fact that even when the offer of possession of a villa
was made to the Complainants in the year 2017, there was neither any approved plan
of the villa nor any Completion Certificate. The order itself was not valid. This amounts
to deficiency in service on the part of the Opposite Party.
10. The Complainants have submitted that an amount of Rs. 63,75,830/-, which
they had deposited with the Opposite Party, be refunded to them because it is almost
eight years and now the circumstances in which they needed the villa have changed.
It is further submitted that they cannot be forced to take the possession after such a
long delay.
11. Learned Counsel for the Opposite Party has argued that there is no prayer in the
Complaint for refund of the money and therefore, the Complainants be directed to take
possession of the subject villa for which the Completion Certificate has been obtained.
12. There is no doubt, there is no specific prayer of the Complainants in the
Complaint regarding refund of the money. The prayer clause f reads as under:
“f. Pass such other or further order/orders as may be deemed fit and
proper on the facts and in the circumstances of this case.”
13. This Clause covers any other relief which this Commission finds appropriate and
therefore, it cannot be said that no order except for the order of possession can be
passed in this Complaint. In the case of “Fortune Infrastructure v. Trevor D'lima, Civil
Appeal No. 3533-3534 of 2017 decided on 12.03.2018”, the Hon'ble Supreme Court
has clearly held that a person cannot be made to take delayed possession of the plot
allotted to him and he can seek refund of the amount along with compensation. In the
case of “Bangalore Development Authority v. Syndicate Bank, (2007) 6 SCC 711, the
Hon'ble Supreme Court has also held that when the possession is not delivered within
the stipulated time, the allottee is entitled for refund of the amount with reasonable
interest from the date of payment till the date of refund. In view of the settled
proposition of law, I hereby pass the following order:
(i) the Opposite Party shall refund the amount of Rs. 63,75,830/- to the
Complainants along with interest @ 9% p.a. from the date of respective deposits
till the date of refund;
(ii) the Opposite Party shall pay a sum of Rs. 25,000/- as litigation expenses to the
Complainants.
14. The payment shall be made by the Opposite Party within four weeks.
15. With these directions, the Complaint stands disposed of.
———
† New Delhi Bench

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