National Consumer Disputes Redressal Commission (NCDRC): The Bench of S.M. Kanitkar (Presiding Member) and Binoy Kumar (Member) while deliberating upon the instant complaints seeking refund of amount paid against the total consideration of the flat booked along with interest; observed and held that Mahindra Homes and Ireo Pvt. Ltd., have committed deficiency in service vis-a-vis providing the complainants their apartment along with the amenities promised, and since the builder had deducted 10% of total sale consideration, hence the amount of earnest money deducted was not correct, especially when the complainants were not at fault.
Relevant Facts of the Case: The complainants booked an apartment (hereinafter unit) under the “Project Luminare” initiated by the opposite parties (Mahindra Homes and Ireo Pvt. Ltd.) on 10-10-2014. The basic sale price was Rs. 3 crore 52 lakhs and 23 thousand and the complainant paid a booking amount of 15 Lakhs. Thereafter, via provisional allotment letter dated 26-11-2014, the opposite parties allotted the unit to the complainants.
As per the complainants, the opposite parties executed an Apartment Buyer’s Agreement with them on 04-05-2015. Prior to execution of this Agreement, the complainants paid an amount of Rs. 86,70,436 towards consideration of the unit. The complainants stated that all in all, they paid Rs. 1,30, 05,655 against the total consideration. The complainants further stated that the Agreement had several one-sided, arbitrary clauses and they were unbale to negotiate those with the opposite parties. On 28-03-2019, the complainants received the offer of possession and to execute the conveyance deed within 60 days, making the final payment of Rs. 3,41,17,818.
The complainants then visited the site only to discover that the opposite parties had failed to provide the promised amenities such as- a state of the art clubhouse with banquet halls and basketball courts, golf course, kids’ playing area, gym etc.
Contentions: The complainants alleged mischievous concealment of the actual carpet area and super are by the opposite parties in order to overcharge the complainants.
It was also submitted that the opposite parties did not present their plans to the Haryana Real Estate Regulatory Authority. The complainants also submitted that despite them raising these concerns before the opposite parties, no action was taken to cure the defects. They also complained of harassment by the opposite parties.
The main grievance raised by the complainant was that the opposite parties had arbitrarily deducted the earnest money and had not completed the project as per the Agreement.
Per contra, the opposite parties argued that they had made their offer of possession within the time period stipulated in clause 4.3 of the Apartment Buyer’s Agreement. It was also argued that nowhere the opposite party had promised any sort of amenities. They also denied any concealment vis-a-vis the actual carpet area.
The opposite parties also submitted that carpet area details were given to the HRERA authorities in 2017, whereas their agreement with the complainants was finalized before RERA came into effect in 2016; which is why carpet area details were not found in HRERA records.
Observations and Decision:
The Commission noted that the opposite parties had defined “apartment” in their Agreement to mean only the unit allotted to the complainants and not amenities. The Commission rejected the contention of the opposite parties that Schedule VII of the Agreement enshrining the amenities was not mentioned anywhere in the Agreement, it pointed out that clause 3.2 of the Agreement clearly mentions Schedule VII. The Commission also pointed out that the amenities are mentioned in the brochure as well, therefore it was prudent that they should be completed along with the completion of the apartment.
The Commission noted that the allotment letter was issued in 2014; the Agreement came into existence in 2015. It was observed that as per the Agreement the project was scheduled to be completed within 5 years and 3 months from the date of excavation (15-01-2015). Technically the possession should have been offered on 15-04-2020, but the opposite parties offered the possession on 28-03-2019.
The Commission pointed out that the offer of possession was made on 28-03-2019, and the opposite parties had submitted that the facilities stated in Schedule VII are in Phase II of the Complex and would be provided along with Phase II. The Bench also noted the opposite parties’ submission that they had obtained occupancy certificate for Phase II on 06-09-2021, which means that was an unexplained delay of 2 years, including delay in executing the Agreement.
The Commission thus decided that clauses 4.3 must be read in consonance with clause 3.2 and since the opposite parties have obtained the occupancy certificate for Phase II, and an unexplained delay on their part means that the opposite parties have committed deficiency in service.
The Commission partly allowed the complaints and directed Mahindra and Ireo to forfeit only the booking amount and refund the balance to the complainants within 6 weeks of this order.
[Hemant Narang v. Mahindra Homes Pvt. Ltd., Consumer Complaint No. 384, decided on 26-08-2022]
Advocates who appeared in this case :
Complainants: Kapil Madan, Advocate
Opposite Parties: Shweta Bharti, Sukriti R. Kapoor, Eshita Bhasin, Aviral Tripathi, Advocates
*Sucheta Sarkar, Editorial Assistant has prepared this brief.