NCDRC, the country's apex consumer panel, has directed Emaar to refund the entire principal amount of Rs 1.13 crore alongwith compensation at the rate of 10.3 percent per annum as well as Rs 25,000 as the cost of litigation to a homebuyer.
It directed the developer to make the payment within three months from the date of the order.
The National Consumer Disputes Redressal Commission also noted that even if possession is being offered after filing of the petition, the homebuyer is at liberty to claim refund. A consumer cannot be forced to take possession after a delay of around three years.
It also said that if a person wants to shift to Delhi/Gurugram, or resides in the area he/she cannot be said to be an investor just for that reason and will be treated as a consumer and has every right to approach the NCDRC, said advocate Aditya Parolia of PSP Legal, who represented the buyer in the matter.
The buyer had booked a residential unit with the builder in a project Palm Gardens located in Sector 83, Gurugram in April 2012 after paying a booking amount of Rs 7.5 lakh. The two parties executed an agreement in May 2012. As per the agreement, the possession was proposed to be handed over to the complainant within 36 months from the start of construction.
A grace period of three months was also available to the builder for applying and obtaining the occupancy certificate in respect of the unit and/or the project. The construction as per the brochure, which the opposite party had issued in respect of the said project started in June, 2012 and the expected delivery was September, 2015
The buyer had paid Rs 1.13 crore out of the agreed sale consideration of Rs 1.19 crore and sought a refund from the builder with compensation in the event of delay.
The construction was not completed as per the timeline promised.
“In any case, the complainant cannot be compelled to accept possession when it is offered after such a long period of say at least three years from the timeline stipulated for this purpose, in the agreement executed between the parties,” the order noted.
In the Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan & Connected Matter, the Supreme Court had directed that in a case of an unreasonable delay in offering possession of the allotted flat, the consumer cannot be compelled to accept possession at a belated stage and is entitled to seek refund of the amount paid by him to the builder with compensation. “A buyer can be expected to wait for possession for a reasonable period. A period of seven years is beyond what is reasonable,” it had said.
In the Emaar matter, the builder had argued that the delay in completion of construction was due to some flat buyers not paying their dues.
The consumer court also noted that the buyer cannot be made to suffer for the default, if any, committed by the other buyers of the project. If the other buyers in the project had defaulted in making payment in terms of their agreement with the builder, it was for the builder to cancel their allotment, sell those flats in the open market, raise funds from alternative sources and complete the construction of the allotted flats within the timeframe committed in this regard or within a reasonable time, thereafter. That however has not been done, the order noted.
The builder had argued that the buyer was a permanent resident of Alwar in Rajasthan and is not a consumer within the meaning of the Consumer Protection Act.
On this issue, the consumer court noted that Alwar is a part of National Capital Region rather a small town. The desire of a person to shift to a town such as Gurgaon, which is in the close vicinity of the National Capital, is quite natural and understandable.
“There is no evidence of the complainant having booked the residential flat for the purpose of making an investment and selling the house at a higher price after taking its possession from the builder. Therefore, it cannot be said that the complainant is not a consumer within the meaning of Consumer Protection Act.
"The onus was upon the opposite party to prove that the flat in question was booked by the complainant for commercial purpose. The opposite part has miserably failed to discharge the reliance placed by it," the order said.
vandana.ramnani@nw18.com
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