29 Jan 2022 5:40 AM GMT
The National Consumer Disputes Redressal Commission has ordered Rs. 1 lakh compensation and return of deposits on Athena Infrastructure Ltd and Indiabulls Real Estate Ltd ('Builders') for delay in offering possession to a homebuyer.Justice Ram Surat Ram Maurya dismissed the Builders' contention that time was not the essence of the contract. Relying on the Supreme Court's decision in...
The National Consumer Disputes Redressal Commission has ordered Rs. 1 lakh compensation and return of deposits on Athena Infrastructure Ltd and Indiabulls Real Estate Ltd ('Builders') for delay in offering possession to a homebuyer.
Justice Ram Surat Ram Maurya dismissed the Builders' contention that time was not the essence of the contract. Relying on the Supreme Court's decision in Fortune Infrastructure vs. Trevor D' Limba, it reiterated that the Buyer cannot be made to wait for possession for an unlimited period.
It further held that in case of a "Construction Linked Payment Plan", the builder has to prove that in spite of demand letter, the homebuyer did not deposit instalment in time. In the absence of same, default in payment by homebuyer is not a ground to escape liability.
The Buyer had booked a 4BHK flat in 2010 at a housing project launched by the Builders at Sector 110 Gurgaon. A Flat Buyer's Agreement was executed wherein the possession of the flat and two parking spaces was to be offered within three years with a grace period of 6 months. The Buyer also offered a cheque worth INR 5 lakhs in pursuance of the same.
In fulfilment of the agreement, the Buyer availed a loan of INR 1.25 crore and between a period of March 2012 to November 2014, the Buyer deposited a total sum of INR 1,76,48,722 as against the basic sale price of INR 1,65,79,998 with the Builders.
As per the Agreement, the due date for possession was June 2015. However, the same was not complied with by the Builders. The Buyer continued to seek information with regard to possession until September 2017 wherein they were informed that the 'Occupation Certificate' had been applied for and the exact date of possession would be informed by the Builders. Thereafter, the Buyer sought a return of the total deposit but the same was not done by the Builders. As a result, the Buyer filed a complaint with the NCDRC for deficiency in service.
The Builders did not deny the material facts but contended that Indiabulls Real Estate Ltd is not a necessary or proper party and therefore, there was a misjoinder of parties. Further, the agreement contained an arbitration clause and the instant complaint was not maintainable.
The Buyer was not a consumer and often committed defaults in payments and therefore, could not complain of delay in possession. Additionally, time was not the essence of contract as the agreement stipulated compensation to the buyers in case of delay in construction but not delay in possession.
The Builders assured that the construction is at 'full swing' and the offer of possession will be completed soon.
The Buyer vide the rejoinders reiterated the facts and also added Final Statement of Account which demonstrated an acknowledgement of total deposit worth INR 1,80,88,354 with INR 15,69,354 as pending amount. The Buyer confirmed that they had cancelled the agreement and sought refund of the money deposited by them.
Therefore, the Buyer sought a return of INR 1,76, 48,722 along with compoundable interest @18% quarterly, future interest @18% compounded quarterly until actual payment, INR 25 lakhs as compensation for mental and physical harassment and cost of litigation.
The Bench observed that there was delay of more than two years and eight months in offering possession without any reason by the Builders.
The default in timely payments by the Builders was not a sufficient reason to not offer possession as no evidence in this respect has been produced. It added that since the payment plan was "Construction Linked Payment Plan" builder has to prove that in spite of demand letter, the complainants have not deposited instalment in time but no such plea was raised nor any paper has been filed.
As far as the contention of misjoinder of parties was concerned, the Bench observed that the letter pad of Indiabulls was used in the Allotment Letter and the Final Statement of Accounts and hence, the entity was the necessary and proper party.
The Bench ordered the Builders to return the entire sum deposited by the Buyer along with interest @9 % per annum from the date of each deposit till actual payment within a period of two months.
Case Title: Raju Chowdhary & Anr vs Athena Infrastructure Ltd and Anr