NCDRC orders full refund with interest and costs to homebuyer in complaint against developer

The National Consumer Disputes Redressal Commission (NCDRC) recently ordered a property developer to refund the entire principal amount paid by a homebuyer with interest at the rate of 9 per cent per annum and ₹25,000 in litigation costs [Vikas Jain v M/s Chintels India Ltd.].- The complainant had booked a flat with developers who assured delivery of possession in a given period of time;- The delivery of possession was delayed by 15 months, the project remained unfinished and the layout of the project had been changed according to the complainant;- The developer argued that the complainant was not a "consumer" under the Act and in any case, had been given due notice regarding changes;- The Court found in favour of the complainant since no evidence was produced by the opposite party to support its claims;- Thus, a full refund along with compensation and litigation costs were awarded to the complainant..Presiding Member Justice Deepa Sharma and Member Subhash Chandra passed the order in a consumer complaint filed due to change in the project’s layout, delay in handover of the property and inability to complete the project as per proposed plan.The NCDRC took note of the pending home loan taken by the complainant to dismiss the contention that the property was purchased for speculative purposes and not as a consumer. .The complaint had booked a flat in a project, “Chintels Serenity” by paying a booking amount in December 2012. At the time of booking, the opposite party (OP) had assured delivery of possession within 42 months.In August 2013, the OP sought another payment and the date of booking was changed to August 2013. In October 2013, the Apartment Buyers Agreement was executed which contemplated a period of 42 months including 6 months grace period for delivery of possession.Subsequently, the OP sought various payments on different occasions amounting to a total of ₹1,62,67,614 out of the total consideration of ₹1,93,55,795..The offer of possession was finally made in March 2019 after a delay of about 15 months from the stipulated date.Further, on visiting the site, the complainant found that the allotted flat was uninhabitable and the project remained unfinished. The complainant found that the project had been divided into two phases with only 3 of the 9 towers being offered for possession at the time.In fact, 50 per cent of the area had been cordoned off for construction of the remaining towers leaving the allottees with substantially fewer common areas and amenities. It was noted that the number of flats per floor had been increased and the quality of construction was reduced.It was the complainant’s stand that the changes to the project were without consent and unilateral..The OP, however, said that the complainant was not a “consumer” under the Act and had defaulted in timely payments.Further, it was their claim that they had agreed to compensate the buyers for the delay in terms of the agreement despite having to stop construction due to the National Green Tribunal’s order..The Commission, on hearing both parties, noted that the OP furnished no evidence that the complainant was served with a notice seeking consent to the proposed changes and in absence of evidence, the contentions could not be accepted.It was the Commission’s observation that the onus to prove that the complainant was not a consumer rested solely on the OP and since no evidence was addressed to support the same, it was not accepted..In fact, the order stated that it was evident from admitted facts that the OP had indulged in unfair practices and there was deficiency in service on their part in view of the delay.The Commission did not find fault in the complaint’s refusal to take possession in view of the incomplete project..Thus, the complainant was refunded the entire principal amount of ₹1,62,67,614 with simple interest at the rate of 9 per cent per annum and ₹25,000 as litigation costs..Advocates Geetika Kapur and Ensha Chhabra appeared for the complainants and advocate Nishi Ranjan Singh appeared for the OP..[Read Order]