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National Consumer Disputes Redressal Commission (NCDRC): C. Viswanath (Presiding Member) dismissed the complaint while granting an opportunity to the Complainant to approach any Appropriate Forum/ Authority of Court.

The instant complaint was filed under Section 21 of the Consumer Protection Act, 1986.

Complainant a resident and owner of an apartment at Ambience Island Lagoon Apartment, Gurgaon. OP 1 is the Director of the Opposite Parties 2 and 3.

What is the Complaint?

Complainant submitted that an Apartment Buyers Agreement, dated 20-10-2001 was executed between the Complainant and OP 2 for which he paid an amount of Rs 54, 46, 706 towards the purchase of the apartment.

Further Complainant paid an additional 13% of the sale price in two instalments for the registration of the Deed of the Apartment. In 2003, the complainant received the confirming receipt from OP 2 and in 2014 the Conveyance Deed was also executed.

OPs to date has not executed the Deed of Apartment in favour of the Complainant. Further, they alleged that the Conveyance Deed was forced upon them in lieu of Deed of Apartment.

Adding to the above allegations, another revelation was made that the OPs systematically and intentionally defrauded and misled the Complainant.

Hence, the Complainant alleged deficiency in service.

Analysis and Decision

Bench noted that OPs executed the Conveyance Deed as per clause 13 of the Apartment Buyer Agreement.

Further, adding to the above, Commission stated that there were no one-sided clauses in the Agreement which constituted an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 and deficiency in service under Section 2 (g) of the Consumer Protection Act, 1986.

In fact, the Complainant sought for the execution of the Conveyance deed before the Delhi High Court in Civil Suit No. C.S.(O.S) No.2155 of 2011. 

“…the expressed “terms and conditions” of the ABA are binding on Parties”.

Hence, since Complainant himself filed a Civil Suit in Delhi High Court for the execution of the Conveyance Deed, he cannot back out after it is executed.

Supreme Court’s decision in Bhubaneshwar Development Authority v. Susanta Kumar Mishra, (2009) 4 SCC 684 held:

“Further, any fora under the Consumer Protection Act, 1986 (“the Act”, for short) before granting any relief to a complainant, should be satisfied that the complaint relates to any of the matters specified in Section 2(1)(c) of the Act, and that the complainant has alleged and made out either unfair or restrictive trade practice by a trader, or defects in the goods sold or any deficiency in a service rendered, or charging of excessive price for the goods sold, or offering of any goods hazardous to life and safety without displaying information regarding contents, etc. If none of these is alleged and made out, the complaint will have to be rejected”

In the decision of Satish Kumar Pandey v. Unitech Ltd., Consumer Complaint No. 427 of 2014, it was held that it was an undisputed proposition of law that ordinarily the parties are bound by the terms and conditions of the contract voluntarily agreed by them and it is not for a Consumer Forum to revise the said terms.

Commission observed that Clause 13 of the Agreement clearly stipulated that:

“the Company along with its Associates/Subsidiary Companies as stated earlier shall prepare and execute along with the Apartment Allottee a conveyance deed to convey the title of the said Apartment in favour of Apartment Allottee…”

Therefore, in the present matter, the Commission cannot grant any relief beyond the Agreement entered between the Parties.

Complaint was dismissed in view of the above terms. [Dr Amitabha Sen v. Raj Singh Gehlot, 2021 SCC OnLine NCDRC 23, decided on 24-02-2021]

Advocates who appeared before the Commission:

For the Complainant: Dr Amitabha Sen (Advocate) Complainant in person with Ms Aditi Pandey Ms Prarthana and Mr Abhinav, Advocates

For the OP: Mr P.K. Agrawal, Advocate with Ms Tanya Sharma and Ms Deepti Gupta, Advocate

Explanation of a few terms used in the above brief:

  • Conveyance: An instrument which transfers property from one person to another defined for the purposes of the Conveyancing Act, as including ‘assignment, appointment, lease settlement, and other assurance, and covenant to surrender, made by deed on a sale, mortgage, demise or settlement of any property or on any other dealing with or for any property’. [Whart.]
  • Deed: A formal document on paper or parchment duly signed, sealed and delivered. (factum inter partes) needing no actual indentation (Real Property Act, 1845, 8 & 9 Vict. c. 106, s. 5) made between two or more persons in different interests or a deed-poll (charta de unâ parte) made by a single person or by two or more persons having similar interests.
  • Agreement: Every promise and every set of promises, forming the consideration for each other, is an agreement, [Section 2(e), Contract Act, 1872 (India)]
Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): A Division bench of Justice R.K. Agrawal (President) and S.M. Kanitkar (Member) directed the developer to refund the principal amount along with compensation in the form of 9% p.a. interest and 25,000 as litigation costs in view of a 4-year delay in giving the possession of the apartment.

Consumer complaint was filed against Pioneer Urban Land and Infrastructure Limited.

Complainants booked an apartment in the Pioneer Group Housing Project called “Araya” for an amount of Rs 30,00,000. Pursuant to the execution of apartment buyer’s agreement, a unit was allotted to the complainants.

Complainants submitted that on visiting the site regularly they were surprised to see no progress in the construction of the project. Entire site seemed to be an abandoned piece of land with semi constructed structure. 

Failed to deliver the possession of Apartment

Till 16.12.2015 complainants had paid a sum of 3,22,18,954 out of the total consideration of 3,45,22,779 i.e. almost 95% of the total Consideration towards the cost of the apartment.

However, the Developer failed to deliver the possession of the Unit, complete in all respect, even after expiry of a long period of approx. five years despite repeated requests and remedies over letters, email, phone calls and personal visits.

Hence, in view of the above, complainants alleged deficiency in service on the developer’s part.

Complainants by the present petition sought more than contractual benefits from the developer.

Natural causes

Developer contended that the delay in completing the project was due to reasons beyond their control. Further, for refund and compensation, the Complainants have to adhere to the provisions made in Clause 11.5 of the Agreement.

Clause 11.5 of the Apartment-Buyer’s Agreement

Bench observed that, with regard to Clause 11.5 of the Agreement upon which the reliance has been placed by the Developer for refund and compensation payable to the Complainants, this Commission in Consumer Complaint No. 2000 of 2016 – Geeta Bansal v. Ireo Grace Realtech (P) Ltd.  – decided on 24-09-2018,  held that such a Clause is wholly one sided and unfair and, therefore, the Complainants would not be bound by the same. If the Developer is unable to justify the delay, this Commission would be competent to direct refund of the amount paid by them to the Developer along with appropriate compensation.

However, Pioneer had approached Supreme Court against the decision taken by Commission in the above Order, but Supreme Court affirmed the finding returned by this Commission and dismissed the Civil Appeals.

Hence, in the present matter, commission referring to the Supreme Court’s decision, allowed the complainant and directed the OP-Developer to refund the principal amount with compensation in form of simple interest @9% p.a. with costs of Rs 25,000 to be pid to the complainants.

Interest was awarded in light of the current market situation and three months times has been granted to the developer to refund the same. [Smita Uban v. Pioneer Urban Land & Infrastructure Ltd., Consumer Case No. 1430 of 2017, decided on 23-07-2020]