Deepak Chaudhary vs. DLF New Gurgaon Developers Pvt. Ltd.
[2023 SCC Online NCDRC 569]
Consumer Case: 335/2018
Court- National Consumer Disputes Redressal Commission
Decided on: 31.01.2023

Facts
The Complainant booked a residential unit in the project Regal Gardens launched by DLF Garden City at Sector-90, Gurgaon. The total consideration of the unit was Rs- 92,63,010.00 out of which the complainant paid a sum total of Rs. 85,23,623.00. The builder-buyer agreement was executed in between both the parties. As per clause 11(a) of the builder-buyer agreement the construction was to be completed within 42 months i.e., by 03.09.2015.

However, the possession of the unit offered by the builder was on 04.02.2017, after obtaining Occupation Certificate (OC) on- 07/10/2016. The delay was beyond the control of the builder and it is not an unreasonable delay.

After receiving the offer of possession along with OC, the complainant filed the complaint after one year on 06.02.2018.

Held:

• Some delays in a large project are understandable and sometimes inevitable.
• In the case of Ireo Grace Realtech Private Limited v/s Abhishek Khanna & ors. decided on 11.01.2021 by the Hon'ble Supreme Court, the Supreme Court has held that the allottees to whom an offer of possession had been made along with OC are obligated to take the possession of the property.
• Complainant is obligated to take possession and is not entitled for refund.
• For delay in offer of possession, the complainant is entitled to Delay Compensation Charges from stipulated date of possession till date of offer of possession.
• Compensation at 9% p/a on the deposited amount, cost of litigation to be borne by the opposite party.

DLF Ltd. Vs. Bhagwanti Narula
[2015 SCC Online NCDRC 1613]
Revision Petition- 3860/2014
Decided on- 06.01.2015
Court- National Consumer Disputes Redressal Commission

Facts
The Complainant booked an apartment in the project Silver Oaks launched by DLF Ltd in Gurgaon. The total amount paid by the complainant is Rs. 1,45,003.00 out of which the booking amount is Rs. 63,469.00. After booking the unit, the complainant moved abroad, thus no reminders were being seen by her as a result, the builder forfeited the entire amount paid by the complainant because as per the builder buyer agreement 20% of the sale price will account as earnest money.

As per Maula Bux vs. Union of India (1969) (2) SCC 554, The Hon'ble Supreme Court defined what is earnest money-
Earnest Money- "Is a part of the purchase price when the transaction goes forward; it is forfeited when the transaction falls through by reason of the fault or failure of the vendee".

As per Shree Hanuman Cotton mills vs. Tata Air Craft ltd (1969) 3 SCC 522, The Hon'ble Supreme Court quoted the following characteristics of Earnest Money:

1. It must be given at the moment at which the contract is concluded.
2. It represents a guarantee that the contract will be fulfilled or, in other words "earnest" is given to bind the contract.
3. It is part of the purchase price when the transaction is carried out.
4. It is forfeited when the transaction falls through by reason of the default or failure of the purchaser.
5. Unless there is anything to the contrary in the terms of the contract, on default committed by the buyer, the seller is entitled to forfeit the earnest.

Held:

1. Only a reasonable amount can be forfeited as earnest money.
2. In absence of evidence of actual loss, forfeiture of any amount exceeding 10% of the sale price cannot be said to be a reasonable amount.
3. An agreement forfeiting more than 10% of the sale price would be invalid.
4. Only the amount which is paid at the time of concluding the contract can be said to be the Earnest Money.

Satbir Singh Multani vs. Unitech Limited
[2018 SCC Online NCDRC 1027]
Consumer Case- 1573/2017
Decided on – 27.02.2018
Court- National Consumer Disputes Redressal Commission

Facts
The complainant booked a unit in Unitech South Park, Sector 70, Gurgaon of a total consideration of Rs. 1,02,18,888 out of which the total amount paid is Rs. 44,30,224. As per the builder buyer agreement the possession of the unit to be given within 36 months from the date of the builder buyer agreement. However, possession is not given yet. The complainant filed a complaint in National Consumer Disputes Redressal Commission with a prayer of Refund of the entire amount paid along with 18% interest p.a. from the date of payment till the date of refund.

As in Ambrish Kumar Shukla vs. Ferrous Infrastructure Pvt. Ltd. Decided on 07/10/2016 held that-

"The amount of total consideration as agreed between the parties, is to be taken into consideration for deciding the pecuniary jurisdiction of the consumer forum which in the present case is more than 1 crore & therefore this commission will have jurisdiction to decide the present complaint".

Held:

1. The value of consideration as per the definition of "consumers" is given under section 2 (1) (d) of the Consumer Protection Act,1986 includes partly paid and partly promised.
2. Thus, in case of refund, of the amounts paid to the opposite party/builder there would only be the element of "partly paid" and the element of "promised to be paid" would be missing.
3. Value of service in a complaint case seeking refund of the paid amount would be limited to the amount paid whose refund has been sought.
4. The total refund of Rs. 44,30,224 along with 18% interest p.a. does not cross the limit of Rs. 1 crore, hence this Commission does not have pecuniary Jurisdiction to decide the complaint.