Reserved

State Consumer Disputes Redressal Commission

U.P. Lucknow.

Complaint  Case No  120  Of  2016

1. Mr. Vishal Tahlani Advocate, s/o Shyamlal,

Vishal Tahlani Residence: P/10/01 Celebrity Meadows,

Sec-I Sushant Golf City, Lucknow.

2. Smt. Anju Agrawal w/o Shri Sandeep Kumar Agarwal, Advocae

R/o C-23, Sector C, Chetan Vihar, Aliganj, Lucknow.

Versus

1.  M/s  Ansal  Properties and Infrastructure Ltd.,

through Addl. V.P. Sales & Marketing.

2. Shri Susheel Ansal, Chairman, Ansal API

Both residence of Branch Office, Ground Floor, YMCA

Campus 13- Rana Pratap Marg, Lucknow.

                                           …..Opposite parties.

Present:-

1- Hon’ble Sri Govardhan  Yadav, Presiding Member.

2- Hon’ble Sri Rajendra  Singh, Member

Sri Vishal Tahlani, complainant no.1 in person.

None for the opposite parties.

Date      10 .03.2021

JUDGMENT

Sri Rajendra  Singh,  Member-          This Complaint has been filed against the opposite parties for directing them to deliver possession of

plot no.3802-N-02/0116 Phase II, Sushant Golf City with interest @ 24% from 18.12.2013 on Rs.10,44,000.00, to award Rs.18 lacs as damages for mental and physical harassment and Rs.55,000.00 as cost of the case. 

In brief the complainant cases is that, the opposite parties are developing a high-tech township on Sultanpur road known as Shushant Golf City. The complainants applied for allotment of a plot and opposite parties agreed to sell plot no.3802 N 02/0116 having area of 240 yd² (200 m²) at the rate of Rs.10,440.00  per sq. meter.  A written agreement was executed between complainant and M/S Ansal Properties and Infrastructure Ltd on 18.12.2011 at Lucknow regarding the sale of the aforesaid unit. The price of the aforesaid unit was agreed at ₹ 20,88,000/– and complainants paid Rs.10,44,000.00 within six months of allotment as per agreement. The opposite parties after a laps of 4 years have not executed conveyance deed in favour of the complainants for sale of plot. The complainants visited several times to the office of the opposite parties but no satisfactory answer was given by the employees of the opposite parties regarding possession or execution of the conveyance deed. The opposite parties entered into the agreement with complainants regarding sale of aforesaid unit on false representation that the property is free from al encumbrances. A legal notice has been sent to opposite parties, by complainants on 7.1.2016 for immediate delivering the aforesaid unit and damages @ 24% per annum till possession on advance payment of Rs.10,44,000.00. The opposite parties replied the legal notice of complainants on 27.01.2016 that no such provision has been mentioned in the buyer(s) agreement pertaining to delivery of the said unit/plot within two years. Even after a lapse of more than four years opposite parties have not mentioned in their reply that what is the present status of development of plot and when they shall deliver the possession of the aforesaid unit and they did not  mention anything regarding ownership of the plot is vested with opposite parties or not. The opposite parties are delaying the delivery of possession of plot for monetary gain as they have received half of the price of the plot.  In case of any delay on part of the buyers, the opposite parties are charging interest at a rate of 18% per annum. The complainant suffered mental and physical harassment by the conduct of opposite parties for not delivering possession as huge amount of complainants is deposited with opposite parties. The agreement for sale of plot was executed in Lucknow and the property is situated Lucknow therefore this Hon’ble commission has jurisdiction to deal with the case. Hence the complainant be allowed and suitable orders the past against the opposite parties.

The opposite parties, in his written statement, have submitted that the present complaint is not maintainable as it has been filed by the complainant in the gross violation of the provisions of the Consumer Protection Act 1986. The complainant is not a consumer under the provision of section 2 (d) of the Consumer Protection Act 1986, for the sake of brevity the provisions of section 2 (d) Of the Consumer Protection Act 1986 is reproduced as follows: –

            “Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a persons who obtains such goods for resale or for any commercial purpose; or

1.  (Hires or avails of) any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who (hires or avails of) the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose.)
2. [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 1[hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payments, when such services are availed of with the approval of the first-mentioned person;

[Explanation- For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment.]”

complainant number 1 has purchased 2 flats  from the opposite party under different association with his father Mr  Shyam Lal and mother, one with Smt Anju  Agrawal  w/o Sri  Sandeep  Kumar  Agrawal , Advocate . The plot number 3802N 02/0116 having plot area of 240 m² has been purchased by the complainant number two in association with one Smt  Anju Agrawal. The complainant number 1 has filed another complaint case number 120/2016 along with Smt Anju Agrawal , pending before this Hon’ble Commission. Complainant number 1 has bought another property/flat number 3014 –OP/10/01 in Celebrity Meadows along with his father Mr Shyam Lal and also filed a complaint case number 121 of 2016 (Shyam Lal versus Ansal Properties and Infrastructure Ltd). Para 41 clearly shows that the complainants are currently residing in property number 3014 –OP/10/01 along with his father and other family members. The address of the complainant  given in the complaint case number 120 of 2016 (Vishal  Tahlani & Anr  Vs  Ansal Properties and Infrastructure Ltd) is also the same which confirmed the place of resident.

Complainant number 2 of the present complaint namely Smt Anju Agrawal , wife of Shri  Sandeep  Kumar  Agrawal , Advocate is no where connected with  Mr  Vishal  Tahlani and his family members, though she is a co-allottee of the flat number  3802 N 02/00016 .

It is clearly evident that the sale deed cannot be done individually, neither the layout plan can be divided, neither the permission of construction and passing of the layout plan of proposed houses will be built and can be passed by Lucknow Development Authority, therefore Mr  Vishal  and  Smt  Anju  Agrawal cannot use the booked plot individually. Hence it is nothing but pure commercial transaction debarring both the complainants to be a consumer within section 2 (d) of the Consumer Protection Act, 1986 has the present complaint case number 120 of 2016 is not maintainable before this Hon’ble Commission and the present Hon’ble Question has no jurisdiction to entertain a complaint where the complainants are not covered within the definition of consumer under section 2 (of the Consumer Petition Active 1986. (para-9)

it is clear that flat number 3802  N  02/ 0116 shall not be used  by the complainant for their own purposes hence the complainants have  no locus standi to file any consumer complaint. In Consumer Complaint No  208  of  2012  (  Shivani  Gupta  and  Ors  Vs  M/s  Omax ) it is clearly states that booking/purchase of anyone and more property by a person is not consumer in scope of Consumer Protection Act 1986 and in the present complaint, in paragraph  13  complainant has also mentioned that the plot is booked by the complainants only for the dwelling purpose by constructing a house over it .

In  Ramesh  Kumar  Sahan Hans  Vs  Goal  Eye  Institute and others , Consumer  Complaint  No  135 /2011 decided on  30.03.2012 , the Hon’ble NCDRC held that the District Forum, Estate Consumer Commission or the National Commission are required to examine the complaint to find out :

1. Whether the complainant is a consumer within the meaning of section 2 (1) (d) of the Act and is entitled to invoke the original jurisdiction of the Consumer Forum.
2. Whether the complaint raises one are more consumer disputes  viz. , unfair trade practice or restrictive trade practice, defects in goods or deficiency in service as defined under the act.
3. Whether Consumer Forum has territorial and pecuniary jurisdiction to entertain the complaint,
4. whether the complaint has been filed within the period of limitation, and
5. whether complaint is accompanied with such amount of fee, as has been prescribed.

It is submitted here that the answering respondents are very reputed Real Estate Company, which enjoys great goodwill in the real estate market and whose projects have lured and appreciated by its customers. It has developed and given successful possession of residential and Commercial Malls et cetera all across India. It is worth to mention that the Union government through a national agenda declared “A Housing for All” as a priority area and has set a target of  2 million houses every year with emphasis on poor  and deprived, out of which 0.7 million houses shall be constructed in the urban area. With above mentioned backdrop the union government forwarded “National Housing and Habitat Policy 1998” by the Ministry of Urban Development and Poverty Elevation which was laid before the Parliament on 29.07.1998. The housing and habitat policy  1998 specifically aimed at facilitating and acceleratig supply of service land and housing. In tune with the above noted  spirit of National Housing and Habitat Policy 1998, The Government of Uttar Pradesh framed a Maga scheme of development of high-tech township in the state of Uttar Pradesh adopting public-private partnership for its execution and formulated a high-tech township policy in the year 2003. On 15.10.2004 proposals were invited by the state from developers interested in the development of high-tech townships, and in response to which the answering defendants Ansal Properties & Industries Ltd (subsequently renamed as Ansal Properties and Infrastructure Ltd) submitted its proposal along with other well-known developers on 15 October 2004 to the state of the Uttar Pradesh to develop high-tech township at Lucknow.

On 21 May 2005 the state of Uttar Pradesh’s selected the answering defendant as developer of high-tech township at Lucknow. The developer m/s Ansal Properties & Industries Ltd and its consortium members started purchasing land for development of high-tech township. On 22 May 2006 the detailed project report of high-tech township was approved by the DPR committee for the allotment of high-tech township on 1765 acres of land comprised of in the housing scheme of the Uttar Pradesh Awas Evam Vikas Parishad. In the year 2007 the layout plan of high-tech township was approved by the Lucknow Development Authority.

The complainant has book a plot number  3802  N  02/ 0116  having plot area of 240 yd² and the agreement was executed between complainant and answering respondent on 18.12.2011 in the style of  Shushant  Golf  City  , the high-tech township, Sultanpur road, Lucknow. The present project was a government conceived and controlled project, several teething issues developed regarding the execution of the present scheme and as there was no footprint of any other similar project being conceived and controlled by the government under the banner of public-private partnership, these teething issues caused a considerable impact over the pace of the project and derailed the entire timeline of the project.

23- the agreement dated 20^th April 2009 contains the clause regarding to Force Majeure Condition . As per the provision of clause 14 of the Buyer Agreement dated 18^th April 2009 the provision of the Force Majeure conditions is there according to which the developer shall be given a reasonable time extension for the completion and delivery of the possession of the booked unit and for such extended time period the buyer shall not ask for any penalty. The basic concept of Force Majeure lies in its definition. The Force Majeure is an event or circumstance or combination of events and circumstances which materially and adversely affect the performance of the obligations of either party to a contract and is not within the reasonable control (directly or indirectly) of the party affected . The provision of class 14 is as follows ,

“That the Buyer agrees that the sale of the unit is subject to force majeure clause, which inter alia include delay on account of non-availability of steel, cement or any other building materials, or water supply or electric power or slowdown strike or due to a dispute with the construction agency employed by the Developer, civil commotion or by reason of war , or enemy action or any act of God, delay in certain decisions/clearances from statutory body ( ies) , or if non-delivery of possession is as a result of any notice, order, rules or notification of the Government and/or any other public or Competent Authority or for any other reason beyond the control of the developer and any of the aforesaid event, the developer shall be entitled to a reasonable corresponding extension of the time of the delivery of possession of the said plot on account of force majeure circumstances and in such eventuality the buyer will not claim any amount of money by way a damages/compensation from the developer.”

Up to 2014, more than 39 km of drain, 38 km of sewer lines , 17 km of water supply pipes, 345 km of rainwater harvesting pipes and 102 km of electric cables has been developed in the township, and more than 60 km of quality roads has been constructed by Ms  UEM , a famous Malaysian company has become operational. It is further submitted that common facilities such as fire station, sub- post office and police station has been operational within the periphery of the township. It is noteworthy that around 2800 plots, 1250 built-up houses, 4000 apartments have already been sold. Besides the above about 800 houses of EWS/LIG and about 170 built-up houses have already been offered for possession. In addition to the above several reputed instalments like Goyanka Public-School and Ansal School of Technology and Management has already started functioning within the township earlier.

Thereafter the answering opposite parties denied various contents of the complaint and has said that the present project was a government conceived and controlled project, several teething issues developed regarding the execution of the present scheme and as there was no footprint of any other similar project being conceived and controlled by the government under the banner of public-private partnership, these teething issues caused a considerable impact over the pace of the project and it derailed the entire timeline of the project. The answering opposite parties are regularly send project status report to their allottees and the opposite parties also replied the legal notice of the complainant vide letter dated27.01.2016 regarding the queries of the complainant and status of the project. .

The complainant number 1 has purchased two flats from the opposite party under different association with his father Mr Shyam  Lal and another one with Smt  Anju  Agrawal . The plot number  3802  N  02/ 0116 having plot area of 240 m² approx. has been purchased by the complainants in association with another one name Smt  Anju  Agrawal . The complainant No 1 the has filed another complaint case no  120  of  2016 along with Smt  Anju  Agrawal which is pending before this Hon’ble Commission.

 We have heard both the parties councils and perused the evidence, documents, readings filed by the parties.

Now the pleadings of the complaint and written statement are the basis of the present case . The parties cannot add anything more after filing of the pleadings except by way of amendment.

In the advertisement it has been clearly stated that water purifier will be given in the kitchen but no commitment was made for any particular brand to be awarded by the respondents. Similarly the modular kitchen was mentioned but no commitment was made regarding size, brand, unit et cetera. The provision of the shopping complex in the building was never advertised. The layout plan of township has been duly approved by the Lucknow Development Authority and it cannot be altered for individual demand, therefore there was no proposal for cut of the road in front of the building layout plan and it cannot be open on  individual demand. Development of Fountain within “Celebrity Meadows” has not been advertised or committed and similarly a green belt has been made as per the layout plan, that with regard to the development of the back portion of the “Celebrity Meadows” it is pertinent to mention that the township is fully not developed and it is in phased development. After the completion of township all civic amenities which are being developed shall become fully furnished. With regard the cold water or cool water, there was no such commitment or advertisement was made in this regard by the answering respondent.

The following facts have been admitted by opposite party

1. The complainant applied with the opposite parties for purchase of a plot and the opposite parties agreed to sell a plot number 3102  N 02/0116  having area of 240 yd² or 200 m² @ ₹ 10,440/-per square metre . A written agreement has been executed between the parties on 18.12.2011 . Price agreed at ₹ 20,88,000/- . The complainant paid ₹ 1,044,000 /- within six months of allotment as per agreement .
2. The opposite parties did not adhere to their promise and a legal notice has been sent to the opposite parties by the complainant ON 07.01.2016 and thereafter the opposite parties replied the legal notice on 27.01.2016 and stated that there is no such provision has been mentioned in the plot buyers agreement pertaining to delivery of the said unit/plot within two years.

The main allegation of the opposite party is that, that the complainant has purchased these properties for commercial purposes hence he is not a consumer. There is no document filed by the opposite parties  to show that the complainant is doing the business of property dealing or he is in the business of purchasing and reselling the property. No such transaction has been filed before this bench to convince that the complainant is doing the business of property dealing. Therefore we have to believe version of the complainant that he is not in the business of property purchasing and reselling.

There is no legal bar for the allotment of unit separately in the name of husband and wife. If both the spouses have booked separate flats even then they are consumer in relation to their flats or units. In the today’s social setup, the son also wants to live independently from his father therefore if a son purchases a flat/unit in his name then also he’s consumer. If the purpose of purchasing two units is not to earn profit but to live in it separately for the peace of mind, the complainant shall be treated as consumer.

It is the duty of the service provider to acquire the land before inviting application for the allotment of units/flats. There should be sanction of the scheme by the authorities concerned, there should be No Objection Certificate by the concerned authority and then the builder may proceed further for inviting applications from the general public for the allotment of units/flats.

If any builder did not prescribe any time limit for the completion of the project, he cannot take benefit of it and cannot say that he will complete the project in infinite time. Hon’ble NCDRC has held in many cases has held if the possession is not given within a reasonable time, it is deficiency in service. Here the complainant has deposited more than 90% of the cost and he was not given possession for more than six years or so ,  it is a clear case of deficiency in service. If a government servant after getting all the post retiral benefits , invest it for getting a flat or unit and if he is not given the flat or unit within a reasonable time, he must have paid a huge amount on the rented house. The reasonable period for the allotment of house is about 2 to 3 years.

These builders are just earning money from the consumers to whom they issued allotment letters and got a huge amount. They keep this amount for a long time and earn interest on it. Property dealing is that part of business where they never pay a penny to the consumers on their amounts deposited for a long-term or if they pay, they pay a meagre interest of about 5% or so  but they charge 18 to 24% or more if the consumers default in depositing any instalment. It reminds us the story of “The Merchant of Venice” The Merchant of Venice is the story of a Jewish moneylender Shylock who demands that an antisemitic Christian offer “a pound of flesh” as collateral against a loan. These acts of builders also remind us the age of  Sahukari during ancient  India and also during British Raj . Whether these builders have power to frame their own law? They put their terms and conditions in such a way that the sufferer will always be the consumer. The Consumer Protection Act 1986 has been enacted for the benefits of consumers,  so the courts dealing with Consumer Protection Act 1986 should come forward for their rescue. The courts are not governed by the builders but they are governed by the law, Custom and Usages. Now in the background of all the facts and also the facts of the present case, we will also discuss something more.

The well-known Indian novelist and story writer Munshi Premchand has written in his novel “ Godan “about this high rate of interest by the moneylenders . He is best remembered for Godan (gift of a cow), his last novel, whose protagonist Hori represents the perennially impoverished peasant, victim as much to the moneylender as to his own rigid adherence to irrational customs. What Hori longs for, above all else, is to own a cow, the symbol of rural wealth, and pays with his life for it. After he dies, in a typically Premchand  moment, the village priests demand from his grieving wife the gift of a cow as ransom for her dead husband’s sole. Are we living in that era still now ?

Now we come to the legal position of this case and also will discuss some important legal citations of the Hon’ble NCDRC and Hon’ble Supreme Court of India regarding delay in giving possession by the builders.

In  the Case  of  Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors.  Versus  DLF Southern Homes Pvt Ltd (now Known as BEGUR OMR Homes Pvt. Ltd.) and Ors.   ( Civil Appeal No. 6239 of 2019 With Civil Appeal No. 6303 of 2019) ; The  Hon’ble  Supreme  Court  has  held

“  24 . A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service. The expression „service‟ in Section 2 (1) (o) means a service of any description which is made available to potential users including the provision of facilities in connection with (among other things) housing construction. Under Section 14(1)(e), the jurisdiction of the consumer forum extends to directing the opposite party inter alia to remove the deficiency in the service in question. Intrinsic to the jurisdiction which has been conferred to direct the removal of a deficiency in service is the provision of compensation as a measure of restitution to a flat buyer for the delay which has been occasioned by the developer beyond the period within which possession was to be handed over to the purchaser. Flat purchasers suffer agony and harassment, as a result of the default of the developer. Flat purchasers make legitimate assessments in regard to the future course of their lives based on the flat which has been purchased being available for use and occupation. These legitimate expectations are belied when the developer as in the present case is guilty of a delay of years in the fulfilment of a contractual obligation. To uphold the contention of the developer that the flat buyer is constrained by the terms of the agreed rate irrespective of the nature or extent of delay would result in a miscarriage of justice. Undoubtedly, as this court held in Dhanda, courts ordinarily would hold parties down to a contractual bargain. Equally the court cannot be oblivious to the one-sided nature of ABAs which are drafted by and to 24 protect the interest of the developer. Parliament consciously designed remedies in the CP Act 1986 to protect consumers. Where, as in the present case, there has been a gross delay in the handing over of possession beyond the contractually stipulated debt, we are clearly of the view that the jurisdiction of the consumer forum to award just and reasonable compensation as an incident of its power to direct the removal of a deficiency in service is not constrained by the terms of a rate which is prescribed in an unfair bargain.

25 . Numerous judgments of this Court have elaborated on the nature and extent of the jurisdiction of the consumer forum to award just and reasonable compensation. Since the decision of this Court in Lucknow Development Authority v. M K Gupta (1994) 1 SCC 243  , it has been a settled principle of law that the jurisdiction of the consumer forum extends to the award of compensation to alleviate the harassment and agony to a consumer. In Balbir Singh  (2004) 5 SCC 65  , a two judge Bench of this Court, while explaining the ambit of the jurisdiction of the adjudicatory fora under the CP Act 1986 observed: “6…The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the   Commission to redress any injustice done. “

26.  The court observed that the award of compensation has to be based on a finding of loss or injury and must correlate to it. The court observed that no “hard and fast rule” could be prescribed:

“8…No hard-and-fast rule can be laid down, however, a few examples would be where an allotment is made, price is received/paid but possession is not given within the period set out in the brochure. The Commission/Forum would then need to determine the loss. Loss could be determined on basis of loss of rent which could have been earned if possession was given and the premises let out or if the consumer has had to stay in rented premises then on basis of rent actually paid by him. Along with recompensing the loss the Commission/Forum may also compensate for harassment/injury, both mental and physical. “

Where possession has been given, one of the circumstances which must be factored in is that the purchaser has been compensated by the increase in the value of the property.

27.  In  R V Prasannakumaar v. Mantri Castles Pvt Ltd , 2019 SCC OnLine SC 224, under the terms of the ABA, possession of the flats was to be handed over to the buyers on 31 January 2014. However, the developer received an occupation certificate only on 10 February 2016 and it was thereafter from May 2016 that the developer started issuing letters offering possession. Based on this, the NCDRC awarded compensation in the form of interest at the rate of 6 per cent per annum. The developer had pleaded that since the agreement provided compensation at the rate of Rs. 3 per square foot per month for delayed possession, the purchasers were not entitled to anything in addition. Dealing with the submission, this Court observed:

 “9. We are in agreement with the view of the NCDRC that the rate which has been stipulated by the developer, of compensation at the rate of 3 per sq. ft. per month does not provide just or reasonable recompense to a flat buyer who  has invested money and has not been handed over possession as on the stipulated date of 31 January 2014. To take a simple illustration, a flat buyer with an agreement of a flat admeasuring a 1000 sq. ft. would receive, under the agreement, not more than Rs. 3000/- per month. This in a city such as Bangalore does not provide just or adequate compensation. The jurisdiction of the NCDRC to award just compensation under the provisions of the Consumer Protection Act, 1986 cannot in the circumstances be constrained by the terms of the agreement. The agreement in its view is one sided and does not provide sufficient recompense to the flat purchasers.”

The Court observed that there was a delay of two years and hence the award of interest at the rate of 6 per cent was reasonable and justified.

28.  In Pioneer Urban Land and Infrastructure Limited v. Govindan Raghavan , (2019) 5 SCC 725, there was a delay of almost two years in obtaining an occupancy certificate after the date stipulated in the ABA. As a consequence, there was a failure to provide possession of the flat to the purchaser within a reasonable period. This Court dwelt on the terms of the ABA under which the builder was entitled to charge interest at 18 per cent per annum for the delay in payment of instalments by the purchaser. On the other hand, the failure to provide possession on the part of the developer was subject to a grace period of twelve months followed by a termination notice of ninety days and a further period of ninety days to the developer to effect a refund. Adverting to these clauses, the court noted:

 “6.4. A perusal of the apartment buyer's agreement dated 8-5- 2012 reveals stark incongruities between the remedies available to both the parties. For instance, Clause 6.4(ii) of the agreement entitles the appellant builder to charge interest @18% p.a. on account of any delay in payment of instalments from the respondent flat purchaser. Clause 6.4(iii) of the agreement entitles the appellant builder to cancel the allotment and terminate the agreement, if any instalment remains in arrears for more than 30 days. On the other hand, as per Clause 11.5 of the agreement, if the appellant builder fails to deliver possession of the apartment within the stipulated period, the respondent flat purchaser has to wait for a period of 12 months after the end of the grace period, before serving a termination notice of 90 days on the appellant builder, and even thereafter, the appellant builder gets 90 days to refund only the actual instalment paid by the respondent flat purchaser, after adjusting the taxes paid, interest and penalty on delayed payments. In case of any delay thereafter, the appellant builder is liable to pay interest @9% p.a. only. Another instance is Clause 23.4 of the agreement which entitles the appellant builder to serve a termination notice upon the respondent flat purchaser for breach of any contractual obligation. If the respondent flat purchaser fails to rectify the default within 30 days of the termination notice, then the agreement automatically stands cancelled, and the appellant builder has the right to forfeit the entire amount of earnest money towards liquidated damages. On the other hand, as per Clause 11.5(v) of the agreement, if the respondent flat purchaser fails to exercise his right of termination within the time limit provided in Clause 11.5, then he shall not be entitled to terminate the agreement thereafter, and shall be bound by the provisions of the agreement.”

Justice Indu Malhotra speaking for the Court noted:

 “6.8. A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the agreement dated 8-5-2012 are ex facie one-sided, unfair and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2(1)(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the builder.” The Court observed that in these circumstances, the flat purchasers could not be compelled to obtain possession which was offered almost two years after the  grace period under the agreement had expired. Hence, the NCDRC was held to have correctly awarded interest at the rate of 10 percent per annum.

29 . The decision of this Court in Dhanda Case 2019 SCC OnLine SC 689  has been relied upon by learned Senior Counsel appearing on behalf of the developer as elucidating the principle that where a flat buyers‟ agreement stipulates a consequence for delayed possession, exceptional and strong reasons must be established before the forum constituted under the Act of 1986 awards compensation in addition to what has been contractually agreed. In Dhanda’s case, the SCDRC issued a direction for handing over physical possession of the residential unit to the complainant and for execution of a sale deed. In addition, compensation was awarded by way of interest at the rate of 12 per cent per annum with effect from twelve months after the stipulated date under the agreement. In an appeal by the developer, the NCDRC directed that the rate of interest for a house building loan for the corresponding period in a scheduled nationalised bank would be appropriate and if a floating rate of interest was prescribed, the higher rate of interest should be taken for the computation. A sum of Rs. 1 lac per annum from the date for handing over possession to the actual date of possession was regarded as appropriate in the facts of the case. In that case under the terms of the buyer‟s agreements, possession was to be delivered within twenty-four months of the execution of the agreement i.e. 10 February 2013 – failing which the developer was liable to pay compensation at the rate of Rs. 10 per square foot per month for the delay. The developer contended that construction activities were delayed as a result of an injunction granted by this Court over a period of eight months and consequently sought an extension of the period for handing over possession by one year. Alternatively, the developer offered to refund the money deposited with interest at 9 per cent per annum. Construction of 258 independent floors was completed while about 1,500 units were nearing completion. In two sets of Civil Appeals which came up before this Court earlier, agreed terms were arrived at providing for the award of interest at 9 per cent per annum from the date of deposit till refund. While considering the order of the NCDRC, this Court observed:

“16. The District Forum under the Consumer Protection Act, 1986 is empowered inter-alia to order the opposite party to pay such amount as may be awarded as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party including to grant punitive damages. But the forums under the Act cannot award interest and/or compensation by applying rule of thumb. The order to grant interest at the maximum of rate of interest charged by nationalised bank for advancing home loan is arbitrary and no nexus with the default committed. The appellant has agreed to deliver constructed flats. For delay in handing over possession, the consumer is entitled to the consequences agreed at the time of executing buyer's agreement. There cannot be multiple heads to grant of damages and interest when the parties have agreed for payment of damages at the rate of Rs. 10/- per sq. ft. per month. Once the parties agreed for a particular consequence of delay in handing over of possession then, there has to be exceptional and strong reasons for the SCDRC/NCDRC to award compensation at more than the agreed rate.”

32.  In the present case, there exist, clear and valid reasons for not holding down the flat buying consumers merely to the entitlement to receive compensation at the rate of 5 per square foot per month in terms of clause 14 of the ABA:

(i) There has been a breach on the part of the developer in complying with the contractual obligation to hand over possession of the flats within a period of thirty-six months of the date of the agreement as stipulated in clause 11(a);

 (ii) The failure of the developer to hand over possession within the contractually stipulated period amounts to a deficiency of service within the meaning of Section 2 (1) (g), warranting the invocation of the jurisdiction vested in the NCDRC to issue a direction for the removal of the deficiency in service;

 (iii) The triggering of an obligation to pay compensation on the existence of delay in handing over possession is admitted by the developer for, even according to it, it has adjusted compensation at the agreed rate of Rs 5 per square foot per month to 145 out of the 171 appellants;

 (iv) The agreement is manifestly one-sided: the rights provided to the developer for a default on the part of the home buyer are not placed on an equal platform with the contractual right provided to the home buyer in the case of a default by the developer;

(v) There has been a gross delay on the part of the developer in completing construction ranging between two and four years. Despite successive extensions of time to deliver possession sought by the developer, possession was not delivered on time;

(vi) The nature and quantum of the delay on the part of the developer are of such a nature that the measure of compensation which is provided in clause 14 of the ABA would not provide sufficient recompense to the purchasers; and

(vii) Judicial notice ought to be taken of the fact that a flat purchaser who is left in the lurch as a result of the failure of the developer to provide possession within the contractually stipulated date suffers consequences in terms of agony and hardship, not the least of which is financial in nature. Having paid a substantial amount of the purchase price to the developer and being required to service the debt towards loan installments the purchaser is unable to obtain timely possession of the flat which is the subject matter of the ABA.

But, it has been submitted by the developer – a submission which found acceptance by the NCDRC – that the execution of the Deed of Conveyance by a flat purchaser precludes a consumer claim being raised for delayed possession. During the course of the proceedings before the NCDRC, the flat purchasers relied upon the communications which were issued by the developer to demonstrate that the purchasers were not permitted by the developer to execute a Deed of Conveyance or to take possession under protest. The material which was produced before the NCDRC supports this submission, which was urged before the Court by Mr Prashant Bhushan, learned Counsel. By a communication dated 16 February 2016, the developer informed a flat buyer that in terms of the ABA, the allottee is required to take possession of the apartment by making payments and executing documentation after the developer has obtained a certificate for occupation from the competent authority and has offered possession of the apartment to the allottee. The developer stated: “We may also like to bring to your notice, that if the acceptance of offer of possession terms is being conveyed by the allottee under protest the Company will not be in a position to hand over the possession and execute the Conveyance Deed and as such your request to take over the 34 possession and execute the documents under protest is untenable.”

36 . It has been urged by the learned counsel of the developer that a consequence of the execution of the Deed of Conveyance in the present case is that the same ceases to be a transaction in the nature of “supply of services” covered under the CP Act 1986 and becomes a mere sale of immovable property which is not amenable to the jurisdiction of Consumer Fora. In Narne Construction (P) Ltd. v. Union of India (2012) 5 SCC 359 , this Court distinguished between a simple transfer of a piece of immovable property and housing construction or building activity carried out by a private or statutory body falling in the category of “service‟ within the meaning of Section 2 (1) (o) of the CP Act 1986. This Court held that:

“8. Having regard to the nature of transaction between the appellant Company and its customers involved much more than a simple transfer of a piece of immovable property it is clear the same constitutes “service” within the meaning of the Act. It was not the case that the appellant Company was selling the given property with all its advantages and/or disadvantages on “as is where is” basis, as was the position in UT Chandigarh Admn v. Amarjeet Singh. It is a case where a clear-cut assurance was made to the purchasers as to the nature and extent of development that would be carried out by the appellant Company as a part of package under which a sale of fully developed plots with assured facilities was made in favour of the purchasers for valuable consideration. To the extent the transfer of site with developments in the manner and to the extent indicated earlier was a part of the transaction, the appellant Company has indeed undertaken to provide a service. Any deficiency or defect in such service would make it accountable before the competent Consumer Forum at the instance of consumers like the respondents.”

The developer in the present case has undertaken to provide a service in the nature of developing residential flats with certain amenities and remains amenable to the jurisdiction of the Consumer Fora. Consequently, we are unable to subscribe to the view of the NCDRC that flat purchasers who obtained possession or executed Deeds of Conveyance have lost their right to make a claim for compensation for the delayed handing over of the flats.

For the above reasons we have come to the conclusion that the dismissal of the complaint by the NCDRC was erroneous. The flat buyers are entitled to compensation for delayed handing over of possession and for the failure of the developer to fulfil the representations made to flat buyers in regard to the provision of amenities. The reasoning of the NCDRC on these facets suffers from a clear perversity and patent errors of law which have been noticed in the earlier part of this judgment. Allowing the appeals in part, we set aside the impugned judgment and order of the NCDRC dated 2 July 2019 dismissing the consumer complaint. While doing so, we issue the following directions:

1. Save and except for eleven appellants who entered into specific settlements with the developer and three appellants who have sold their right, title and interest under the ABA, the first and second respondents shall, as a measure of compensation, pay an amount calculated at the rate of 6 per cent simple interest per annum to each of the appellants. The amount shall be computed on the total amounts paid towards the purchase of the respective flats with effect from the date of expiry of thirty-six months from the execution of the respective ABAs until the  date of the offer of possession after the receipt of the occupation certificate;
2. The above amount shall be in addition to the amounts which have been paid over or credited by the developer at the rate of Rs 5 per square foot per month at the time of the drawing of final accounts; and
3. The amounts due and payable in terms of directions (i) and (ii) above shall be paid over within a period of one month from the date of this judgment failing which they shall carry interest at the rate of 9 per cent per annum until payment .”

If there is delay in giving possession of land/flats to the respective buyers by the builders, the Hon’ble NCDRC has held that the builders are liable to pay compensation at a fixed rate per month depending on the size of the plot/flat .

In  the  case  of   PRIYANKA MITTAL & ANR. V. PARSVNATH DEVELOPERS LTD. & ANR. ( NCDRC  )  These appeals arise out of single order of State Commission, hence, decided by common order. These appeals have been filed appellant against order dated 25.2.2015 in Complainant Nos.

18 of 2013- Nalin Bhargava & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 34 of 2013- Jasleen Viswanathan & Anr. Vs. Parsvnath Developers Ltd. & Anr; 58 of 2011- Janmejai Mani Tiwari Vs. Parsvnath Developers Ltd. & Anr; 68 of 2013- Indu Singh Vs. Parsvnath Developers Ltd. & Anr.; 69 of 2013- Poonam Sagar Vs. Parsvnath Developers Ltd. & Anr.; 86 of 2010- Priyanka Mittal & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 101 of 2011- Mohd. Aslam Khan & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 130 of 2012- Dr. Sunil Kr. Singh & Anr. Vs. Parsvnath Developers Ltd. & Anr; 49 of 2012- Neera Mittal & Anr. Vs. Parsvnath Developers Ltd. & Anr; , 74 of 2011- Deepak Bhalla Vs. Parsvnath Developers Ltd. & Anr. ; 87 of 2010- Syed Gufran Ali Alvi & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 96 of 2011- Uppasana Malik Vs. Parsvnath Developers Ltd. & Anr.; 175 of 20130- Umesh Chandra Dixit & Anr. Vs. Parsvnath Developers ; byLtd. & Anr.; 97 of 2011- Pravin Kumar Goel & Anr. Vs. Parsvnath Developers Ltd. & Anr which complaints were partly allowed.

  The  Hon’ble  NCDRC  held

“ Brief facts of the cases are that opposite parties/respondents are engaged in the activity of housing construction and accordingly they have launched a project named as Parsvnath Planet situated in Gomti Nagar, Lucknow. The project was demonstrated to be very lucrative and made attractive to the vendees, in order to procure/collect money from the needy persons demonstrating themselves to be excellence in the field of construction activity as compared to other builders and assured the buyers/complainants that it has been duly approved by the Lucknow Development Authority and necessary permission has also been obtained from them. The emphasis was made by the opposite parties that the possession of the Unit shall be given within a scheduled period of 36+6=42 months stipulated in agreements executed in between the parties for the project launched in the year 2006. The complainants/appellants attracted by the promise and assurance of the opposite parties, somehow managed and arranged the money from their personal sources as well as on loan at attractive rate of interest and the hard earned money was paid by them to the opposite parties in a hope that the possession of the units shall be provided to them in the year 2009 and they can leave peacefully in their own houses, since the complainants are living in rented houses. The complainants visited the construction site of the opposite parties after depositing the entire amount, where it was revealed that the construction activities were on halt and the persons available on the site told the complainants that the apartments are likely to be completed till 2015. Even the partial construction done by the opposite parties was defective and did not match the specifications provided in the agreement. The complainants were shocked on hearing it and observing the site. The complainants immediately contacted the Area Manager, who told the complainants that there is some delay in the construction of the apartment and the apartments shall be ready till June, 2010. The complainants have to repay the amount taken on loan alongwith interest without getting the possession of the allotted units causing irreparable loss and injury to them. The complainants have come to know that the opposite parties have invested the funds earmarked for this project into their other projects in other city due to which they have -10- not been able to complete the project in time. Besides this, it has also come to the light that although the opposite parties had collected huge funds from the buyers but in spite of that the opposite parties have miserably failed to pay the dues of Lucknow Development Authority which forced the Lucknow Development Authority to issue coercive measures against the opposite parties for the recovery of their dues. Alleging deficiency on the part of opposite parties/respondents, complainants filed separate complaints before State Commission. Ad aggrieved  by  the  order  of  Hon’ble  State  Commission , these  appeals preferred  befpre Hon’ble National  Consumer  Disputes  Redressal  Commission .

Hon’ble  NCDRC discussed various  case  laws  and  after  hearing  the  parties held ,

“ Learned Counsel for appellants submitted that as complainants have been deprived of possession for a long period beyond agreed period, it amounts to restrictive trade practice under  and complainants are entitled to get compensation. Section 2 (nnn) runs as under:- means a trade practice which tends to bring about restrictive trade practice manipulation of price or its conditions of delivery or to affect flow of supplies in the market relating to goods or services in such a manner as to impose on the consumers unjustified costs or restrictions and shall include- Delay beyond the period agreed to by a trader in supply of such goods or in providing the services which has led or is likely to lead to rise in the price; Any trade practice which requires a consumer to buy, hire or avail of any goods, or, as the case may be, services as condition precedent to buying, hiring or availing of other goods or services; Perusal of aforesaid provision reveals that when opposite party delays in delivery of goods which leads to rise in the price of goods meaning thereby, more price is charged from complainant, it amounts to restrictive trade practice. In the case in hand, opposite party on account of delayed delivery of possession is not charging higher rate than the agreed rate for delivery of possession of flat, so, it does not fall within the purview of restrictive trade practice under  Admittedly, agreements were executed in 2006 and as per agreements, possession of flats was to be delivered within 42 months, meaning thereby, possession was to be given in the year 2009-2010 and possession has not been handed over so far though year 2016 has started. No doubt, complainants are entitled to get penalty amount for delayed delivery of possession as per clause 10 ( c) of the agreement but opposite party cannot be permitted to avail benefit of aforesaid clause for indefinite period. This penalty clause should be allowed for the benefit of parties for a limited period and in the cases in hand, I deem it appropriate to extend applicability of aforesaid clause for a period of one year beyond 42 months and after that, complainants are certainly entitled to compensation. Opposite party cannot be allowed to avail huge funds of complainants by paying merely Rs. 5/- per sq. ft. for example, complainants who have purchased flat measuring 164.901 sq. mtr., they have made payment of about Rs. 31.00 to 32 lakhs and in the garb of clause .

10 (c), opposite party is paying penalty @ approximately Rs. 9,000/- per month against enjoying funds more than Rs. 30.00 lakhs. As complainants have been deprived to shift to their flats for a long period which would not only have given them satisfaction of living in their own house but also have raised their social status and opposite party has enjoyed funds of complainants for a long period, I deem it appropriate to allow compensation @ Rs. 15,000/- p.m. to the complainants who have applied for flats upto 175 sq. mtr and Rs. 20,000/- per month to complainants who have applied for flats above 175 sq. after 54 months of execution of agreement till delivery of possession. Complainants- Nalin Bhargava in and complainantsComplaint No. 18 of 2013 Ravindra Singh in , are entitled to get only difference of amount fromComplaint No. 32 of 2012 -14- the amount already awarded by State Commission which has not been challenged by opposite party. Perusal of record reveals that in Complaint No. 987 of 2011, Pravin Kumar Goel Vs. , flat area of complainant has been increased and additional Rs. 7,99,997/-Parsvnath Developers has been demanded by opposite party from complainant but Learned State Commission has not allowed penalty as per clause 10 (c ) for the increased area and complainants are entitled to get penalty as per aforesaid clause on the increased area also. Consequently, appeals filed by appellants are partly allowed and order dated 25.2.2015 passed by Learned State Commission in the aforesaid complaints is modified and opposite party is directed to pay @ Rs. 15,000/- p.m. and Rs. 20,000/- to the allottees of flats upto 175 sq. mt. and above 175 sq mtr respectively from beginning of 55 month from the date of execution of flatth buyer agreement till delivery of possession of flat to the complainants and complainants in and are entitled to receive only differenceComplaint No. 18 of 2013 Complainant No. 32 of 2012 of amount as stated above and opposite party is directed to pay penalty to complainant in on the increased area as per clause 10 (c ) of the agreement.Complaint No. 97 of 2011 Parties to bear their costs.”

Against this  judgement , parties  went  to  Hon’ble  Supreme  Court . The judgement  of  Hon’ble  Supreme  Court is :-

    Nalin Bhargava  vs  Parsvnath Developers Ltd on 13 July, 2018

          CA 6662/2018 @ SLP(C) 7596/2016 etc.

           IN THE SUPREME COURT OF INDIA

            CIVIL APPELLATE JURISDICTION

            Civil Appeal No. 6662/2018

        (arising out of SLP(C) No. 7596/2016)

              Judgement July 13, 2018

  NALIN BHARGAVA & ANR. ……………………………. Appellant

                            VERSUS

 PARSVNATH DEVELOPERS LTD & ANR…………..  Respondent

                       WITH

               Civil Appeal No. 6665/2018

               (arising out of SLP(C) No. 9659/2016)

                Civil Appeal No. 6663/2018

                               (arising out of SLP(C) No. 7662/2016)

                Civil Appeal No. 6671/2018

                               (arising out of SLP(C) No. 10146/2016)

                  Civil Appeal No. 6670/2018

               (arising out of SLP(C) No. 10064/2016)

                  Civil Appeal No. 6666/2018

          (arising out of SLP(C) No. 9715/2016)

              Civil Appeal No. 6667/2018

         (arising out of SLP(C) No. 9720/2016)

             Civil Appeal No. 6668/2018

         (arising out of SLP(C) No. 9849/2016)

              Civil Appeal No. 6673/2018

         (arising out of SLP(C) No. 10362/2016)

            Civil Appeal No. 6669/2018

        (arising out of SLP(C) No. 9886/2016)

            Civil Appeal No. 6672/2018

       (arising out of SLP(C) No. 10254/2016)

            Civil Appeal No. 6664/2018

          arising out of SLP(C) No. 9590/2016)

                      O R D E R

         Leave granted in all the special leave petitions.CA 6662/2018 @ SLP(C) 7596/2016 etc.

       It is submitted by Mr. M.L. Lahoty, learned counsel appearing for the appellants in all the appeals that the possession has been handed over and the deficiencies have been removed and, therfore, he has no grievance. However, Mr. Lahoty would insist that there should be imposition  Of  costs as compensation.

       Mr. Sachin Datta, learned senior counsel appearing for the developer has raised   objections    with regard to imposition of costs.

       Having heard learned counsel for the parties, we are of the considered opinion that the cause of justice would be best subserved if each of the appellants in the present appeals are given Rs.1,50,000/- (Rupees one lakh fifty thousand only) per flat, towards costs.   When we say“cost”, we mean costs alone and nothing else.

       Needless to emphasise,the present arrangement stands confined and restricted to the present appeals.

       Before  parting with the case, we record our unreserved appreciation for the efforts made by Mr. Gaurav Agarwal, learned counsel, who has been able to  bring out a workable solution in the obtaining fact  situation.

       With the aforesaid modification in the order passed by the National Consumer Disputes Redressal Commission, the appeals stand disposed of. “

In the case of Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra[Civil Appeal No. 3182 of 2019 @ SLP (C) No(S). 1795 of 2017] judgement delivered on 25.03.2019 , the Hon’ble Supreme Court has held ;

“ Interestingly, where the buyer is in default, the agreement stipulates that interest at the rate of 18 per cent from the date of default until the date of payment would be charged for a period of two months, failing which the allotment would be cancelled by deducting 5% of the entire value of the property. The agreement was evidently one sided. For a default on the part of the buyer, interest at the rate of 18% was liable to be charged. However, a default on the part of the developer in handing over possession would make him liable to pay interest only at the savings bank rate prescribed by the SBI. There is merit in the submission which has been urged by the buyer that the agreement was one sided.

The clause which has been extracted in the earlier part of this order will not preclude the right and remedy available to the buyer to claim reasonable interest or, as the case may be, compensation. The essential aspect of the case which is required to be analysed is whether the buyer was entitled to seek a refund or was estopped from doing so, having claimed compensation as the primary relief in the consumer complaint.

The Buyer's Agreement is dated 2 July 2007. In terms of the agreement, the date for handing over possession was 31 December 2008, with a grace period of six months. Even in 2011, when the buyer filed a consumer complaint, he was ready and willing to accept possession. It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period.

A period of seven years is beyond what is reasonable.”

Now in the light of above mentioned judgements of Hon’ble the Supreme Court That and Hon’ble NCDRC , it is clear that the complainant is entitled to get compensation and interest on the amount deposited by him which was kept by the builder for such a long period. The plot/flat in question is more than 175 Sq Mtr , he is entitled to get ₹ 20,000 per month in addition to one-time compensation of ₹ 150,000 and also interest at a rate of 15% on the deposited amount . We have discussed all the facts and circumstances of the case and came to the above conclusion. As far as other amenities are concerned, the builders shall not charge a penny a nation to any maintenance charge until they provide all the amenities as assured by them . They will provide the basic amenities uninterrupted  like electricity, supply of potable water, well maintained roads et cetera .

                                                          ORDER

The complaint is allowed partially . The opposite parties are directed pay ₹ 20,000 per month from   01.01.2012   till the month of delivery of the unit . The opposite parties shall also pay simple interest at a rate of 15% per annum from the date of depositing the allotment amount till delivery of possession . The opposite parties shall also pay a lump-sum amount of ₹ 150,000/-  as cost to the complainants and also pay ₹ 1 lakh for mental agony . The opposite parties shall not charge any maintenance charge from the complainants till all the amenities be provided as assured by them. The opposite parties shall provide the fundamental basic amenities like uninterrupted power supply and potable water supply 24 x 7 , failing  which  they  shall  be  liable  to  pay  Rs. 10,000.00 per  month to the Complainants .

       (Govardhan Yadav)                       (Rajendra Singh)

                    Member                                       Member

Judgement signed/dated by us and pronounced in the open court today . Let the copy the provided as per rules. Consigned the record.

       (Govardhan Yadav)                       (Rajendra Singh)

                    Member                                       Member

State Consumer Disputes Redressal Commission

U.P. Lucknow.

Complaint  Case No  121  Of  2016

1. Shyam  Lal aged about 62 Years S/O Late Vishan Das
2. Mr  Vishal  Tahlani aged about 34 years S/O Shri Shyam Lal

Both R/O – P/10/01 Celebrity Meadows, Sec-I, Sushant Golf City Shaheed Path Lucknow.………………Complainant

Vs

1.  M/S  Ansal  Properties M/S Ansal Properties and Infrastructure Ltd, Through its Addl. V.P. Sales & Marketing.
2. Shri Susheel Ansal Chairman Ansal API

Both residence of Branch Office fifth floor Y.M.C.A. Campus 13 Rana Pratap Marg, Lucknow..…Respondent.

Present:-

1- Hon’ble Sri Govardhan  Yadav, Presiding Member.

2- Hon’ble Sri Rajendra  Singh, Member

Sri  Vishal  Tahlani, Ld. counsel for the Complainant.

Date :     10-03-2021.

JUDGMENT

Sri Rajendra  Singh,  Member-        This Complaint has been filed against the opposite parties for directing them to pay ₹ 150,000/– as damages for the cost of water purifier (R.O) and modular kitchen, ₹ 134,708/– for the cost of two wardrobe with 24% interest per annum from 02.09.2015 till payment, for the return of ₹ 294,876/– (External Electrification Charges) with 24% interest with effect from 17.08.2015, for directing them to provide covered car parking immediately otherwise to pay interest at the rate of 24% per annum on car parking charges ₹ 155,250/– with effect from 17.08.2015, to direct the opposite party for providing club membership facility immediately and until club facilities are not provided to pay interest at the rate of 24% per annum on club membership charges ₹ 55,000/– with effect from 17.08.2015, for directing opposite party to pay ₹ 20,000/– rent per month from April 2010 to March 2012 and at a rate of ₹

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25,000 from April 2012 to March 2014, ₹ 28,000 from April 2014 to August 2015 along with a interest of 24% per annum, total ₹ 1,556,000/– with 24% interest per annum, to direct the opposite parties to provide swimming pool facility, to provide the cut on  the front of building entrance, to develop the back portion of the building and to develop the fountain and greenbelt, to develop the playground for the children, to construct the shade on water tank and to treat the supply of cold water during summer, to make a security gate on the front of the building of Celebrity Meadows, ₹ 23 lakhs as damages for mental agony, physical harassment, Rs two lacs as damages for not providing basic civic amenities, ₹ 1 lakh as cost of the petition and for staying the building maintenance charges.

In brief the complainant’s case  is that, that the opposite parties are developing a high-tech township on Sultanpur road known as Shushant Golf City. The complainants applied for the purchase of built up house by sale vide application dated 28.01.2008. The opposite parties initially allotted a built-up unit E/1/0055 and later on allotted other built-up unit E/2/90 having area of 240 yd² (200 m²) and built-up area 140 yd² (130 m²) approximately and the complainant accepted it. A written agreement was executed between complainant and M/S Ansal Properties and Infrastructure Ltd on 14.03.2008 at Lucknow regarding the sale of the aforesaid unit. The price of the aforesaid unit was agreed at ₹ 3,118,000/– to be paid in the manner as given in schedule attached with agreement, with various payment options and one of them being down payment option. The complainant’s opted for down payment plan (with 12% rebate) and took ₹ 21,00,000/– Home Loan by HDFC Bank Ltd. The complainants had paid more than 95% payment (26,77,115.00) to the opposite parties as follows :

1. ₹ 53,000/- vide cheque number 248382 drawn on PNB , Lucknow (Civil Court Branch) dated 08.01.2008.
2. ₹ 250,000/– vide cheque number 162136 drawn on SBI High Court Lucknow dated June 08.01.2008.
3. ₹ 21 lakhs drawn on HDFC Bank Ltd , Hazratganj Lucknow vide cheque number 008117 dated 31.03.2008 (loan taken from HDFC Bank).

4. ₹ 274,115/-drawn on SBI High Court Lucknow vide cheque number 162139 dated 31.03.2008.

In order to pay the down payment the complainant have taken a loan of ₹ 21 lakh from HDFC Bank, Ashok Marg Lucknow and the complainant regularly paid EMI of Rs 22,889/–  per month to the bank for repayment of loan till March 2014. The opposite parties assured the complainant’s that the property of unit number E/2/90 was free from all encumbrances and development plan of the property is valid. According to clause 20 of the agreement dated 14.03.2008 opposite parties have to complete the construction within two years from the date of sanction of plan from the competent authority and opposite parties gave assurance to the complainants that they will deliver the possession within two years. The opposite parties signed undertaking cum indemnity bond dated 28.03.2008 with HDFC Ltd, second floor, Hindustan Times house, 2J Ashok Marg Lucknow, confirmed necessary permission, approvals, sanction for construction of the said building and gave written assurance to the complainants  and HDFC Bank they will complete the construction within two years and the construction of the said building as well as the unit is in accordance with the approved plans. After the lapse of more than three and half years the opposite parties had not started construction of the aforesaid unit nor informed the complainants that whether the plan has been sanctioned or not. The complainants several times visited the office of opposite parties at Lucknow but no satisfactory answer was given by employees of opposite parties regarding possession or execution of the deed. A legal notice has been sent to opposite parties, by complainants in the month of November 2011. The opposite parties replied the legal notice of complainants  vide letter dated 13.12.2011 and offered the complainants to exchange plot number 24, pocket 9 , sector C in

place of built up unit number E/2/90. , and assured the complainants that possession of unit number 24 will be delivered within six months. On the basis of this assurance of opposite parties, the complainant gave their consent for exchange of built up unit number E/2/20 with plot number 24, sector C – 9 because complainants and his family where living in a rental house since June 2009 at a monthly rent which was initially ₹ 14,000 per month and since April  2010 it increased to ₹ 20,000 per month.

After taking consent of complainants opposite parties allotted a unit in sector C – pocket 9/24 and executed fresh agreement on 15.03.2012. That again after a lapse of three years opposite parties have not delivered the possession of the said unit to the complainants nor completed the development of the concerned sector. Again the complainants visited several times to the office of opposite parties but no satisfactory answer was given by the opposite parties regarding possession of the said unit. Complainant number one retired from the post of District and Sessions Judge on 31.05.2015 but complainants and his family members were compelled to live in rented house due to conduct of opposite parties and they had to pay a rent of ₹ 20,000 per month from April 2010 to March 2012 and a rent of ₹ 25,000 from April 2012 to March 2014 and again and increased rent of ₹ 28,000 per month from April -2014 to August 2015 . The complainants agreed to exchange a built-up unit with plot under the assumption that after retirement complainants will get a suitable accommodation for residence but even after retirement complainant number one and his family was compelled to reside in a rental house due to reasons that the opposite parties have not delivered the possession of allotted plot to the complainant since  last six years. The conduct of opposite parties show that earlier they allotted a unit regarding which ownership of land was not in their

name and thereafter they exchanged it with another unit by false representation and in this way the opposite parties deliberately cheated complainants. The opposite parties cannot sell any unit or plot to anyone when ownership of land is in dispute. The opposite parties vide their letter dated 18.03.2015 informed the complainants that due to some technical reason they are not able to give the allotted unit plot number 0501 – O –C/9/0024 and the opposite parties again offered the complainants that unit number 3014 –O– P/10/01 In Celebrity Meadows. The cost of it was ₹ 3,859,100/– but opposite parties have not made it clear as to what are the technical reason. The complainants vide letter dated 17.04.2015 accepted the offer of opposite parties under duress and compulsion because complainants and his family members were living in rented house and paying loan EMI and huge amount of complainants was deposited with the opposite parties subject to the following conditions:

1. that the price of the new unit shall not be the launching rate of celebrity Meadows as agreed in our meeting with Sri  Mahesh S Narayanan , additional VP sales and marketing and sell API and Manoj  Kapoor.
2. That the excess amount if any, shall be paid at the time of execution of conveyance deed.
3. That opposite parties shall build wardrobe into bedrooms before possession of new unit, as agreed in meeting, that also the consent was given by complainants are under duress because huge amount of complainants were being deposited with opposite parties and complainants were living in a rented house since June 2009.

On the basis of complainant’s consent opposite parties allotted the

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unit 3014 –O –P/10/01 in Celebrity Meadows at Shushant  Golf  City , Sultanpur  Road , Lucknow to the complainants, it means that the opposite parties allotted this unit accepting all the conditions of the complainants. The opposite parties sent a letter on 07.08.2015 for possession of 3014 –P/10 – 01 Celebrity Meadows to the complainant and committed to provide the world-class infrastructure and social facilities and round-the-clock electricity/water supply and security. The complainant paid to the opposite parties excess amount of BSP ₹ 17,02,024/– and complainant also paid ₹ 224,876/– for external electrification charges, ₹ 120,904/– for firefighting charge, ₹ 155,250/– for car parking charges, ₹ 55,000/– for club membership charges under duress and protest for unit number 3014 –O –P/10/01 Celebrity Meadows. The opposite parties have not provided the details as to how the external electrification charges and firefighting charges have been calculated. The opposite parties have not provided any covered car parking to the complainants as held in civil appeal number  2544/2010 and six are connected appeals decided on 31 August 2010 by the Hon’ble Supreme Court that the common space of building is not saleable. As the complainants deposited ₹ 155,250/ – against the covered car parking, therefore the opposite parties are bound to provide covered car park immediately.

The opposite parties have not provided club membership and swimming pool  facilities in the building. Therefore opposite parties are bound to provide club membership facilities immediately and swimming pool facility to the complainants. The opposite parties initially allotted the build up unit number E/1/055 and later on opposite parties changed the aforesaid unit and allotted the built up unit number E/2/90. The complainants paid the opposite parties ₹ 2,677,115/– till 31 March 2008. Opposite parties failed to deliver the aforesaid unit within stipulated time of two years and allotted plot number C – 9/24 again on 15^th March  2012 with the promise that the possession of plot number C – 9/24 will be given within six months and returned the difference amount of ₹ 602,115/– along with interest and

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the remaining amount of ₹ 2,025,000/– was retained by opposite parties from 31 March 2008. A sale deed was executed between opposite parties and complainants on 31 August 2015 Re: unit number 3014 –O –P/10/01 Celebrity Meadows and opposite parties have delivered the possession on 2 September 2015 to the complainants. After possession the complainants noticed that opposite parties have not provided wardrobe into bedrooms, not provided water purifier of branded company and modular kitchen of standard norms, some of the tiles were broken and there was no covered car parking or club building and the complainants noticed that the opposite parties also not provided any shopping complex in building and also not provided any swimming pool which was advertised in their advertisement and master plan. The conduct of opposite parties shows that they sold different units on false representation that the properties are free from all encumbrances and complainants always gave their consent for exchange of the plots under duress and as complainants were in the need of suitable accommodation and they deposited huge amount with opposite parties. Modular kitchen is of bad quality. The complainant served a letter dated sixth October 2015to the opposite parties to remove all the defects and deficiencies found in the flat within seven days but opposite parties have not still removed the deficiencies nor they replied  . The opposite party have not provided the cut on on the front road building due to which all heavy vehicles and other vehicles are coming to wrong side and opposite parties have neither developed  the back portion nor installed any fountain and Greenbelt while the opposite party advertised that all the amenities will be provided. Opposite parties have not developed any playground for children. It is important to mention here that the opposite parties constructed the water tank in open area on the top of the building without any treatment of supply of cool water due to which after 8 AM in summer season complainants and their family members find hot water till midnight . The opposite parties have not built security gate on the front of the building of Celebrity Meadows. Opposite party are charging ₹ 1.90/- per square feet along with service tax, maintenance charges approximately ₹ 5000/-per month from the complainants and other residents of the building. The opposite parties are

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charging ₹ 1.30 per square feet building maintenance charges rupees 0.60 per square feet township charges, total rupees 1.90/- per square feet along with service tax approximately ₹ 5000 per month from all residents but the opposite parties have not provided any civic facilities. Complainants in deposited entire demanded maintenance charges of first December 2015 to 31^st March 2016 to the opposite parties under duress and protest on 7 January 2016. The sale deed was executed between opposite parties and complainants on 31^st August  2015 Re: unit number 3014 –O-P/10/01 in Celebrity Meadows opposite parties have delivered the possession on 02.09.2015 to the complainants . The opposite party charged ₹ 1.90/–per  square feet along with service tax maintenance charges but opposite parties have not constructed any security gate on the entrance of building and did not provide any generator  for electricity failure. The complainants are residing at tenth floor and five other families are residing at tenth ,ninth, seventh, sixth and second floor.

On 12.04.2016 the complainant number two, when returned from court at 7 PM, he came to know that building is out of light since afternoon. There are two generators fitted in building out of which one generators of 30 kVA was out of order and other generator was not running. The complainant number two who is a patient of high blood pressure waited for about one hour 30 minutes on ground floor and his family was also detained on 10^th floor whole day because the lifts were not operational. The complainant served the notice dated 13.04.2016 to opposite parties relating to aforesaid incident and for removing all the defects and deficiencies found in the building and pay rupees two lakhs of damages but opposite parties have neither replied nor removed deficiencies nor paid damages. The complainants  had given their consent for exchange of their earlier unit with unit number 3014 –O –P/10/01, Celebrity Meadows, on condition that opposite parties shall build wardrobe into bedrooms and after that opposite parties accepted the proposal of complaints. The opposite parties have not provided the wardrobe in two rooms. Complainants

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built wardrobes into bedrooms and spent ₹ 134,708/– and now the opposite parties are bound to pay the said amount to the complainant with 24% interest per annum from 02.09.2015 till payment. The opposite parties delayed the possession of unit for seven years without any fault of complainants. If there is a delay in payment by the allottee/customer, opposite parties charge interest at the rate of 18% per annum. A legal notice has been served on opposite parties on 07.01.2016 for the payment of damages and removing deficiencies in the flat but opposite parties neither replied nor removed deficiencies nor did pay the damages. The complainant suffered mental and physical harassment by the conduct of opposite parties for not delivering possession since seven years while huge amounts have been deposited with opposite parties. It is prayed that the reliefs sought by the complainants be granted against the opposite parties.

The opposite parties, in their written statement, have submitted that the present complaint is not maintainable as it has been filed by the complainant in the gross violation of the provisions of the Consumer Protection Act 1986. The complainant is not a consumer under the provision of section 2 (d) of the Consumer Protection Act 1986, for the sake of brevity the provisions of section 2 (d) Of the Consumer Protection Act 1986 is reproduced as follows: –

“            “Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a persons who obtains such goods for resale or for any commercial purpose; or

1.  (Hires or avails of) any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any

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beneficiary of such services other than the person who (hires or avails of) the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose.)

2. [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 1[hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payments, when such services are availed of with the approval of the first-mentioned person;

[Explanation- For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment.]”

The complainant number two has purchased 2 units  from the opposite party under different association with his father Mr  Shyam Lal and mother, one with Smt Anju  Agrawal  w/o Sri  Sandeep  Kumar  Agrawal , Advocate . The plot number 3802N 02/0116 having plot area of 240 m² has been purchased by the complainant number two in association with one Smt  Anju Agrawal. The complainant number two has filed another complaint case number 120/2016 along with Smt Anju Agrawal , pending before this Hon’ble Commission. Complainant number two has bought another property/flat number

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3014 –OP/10/01 in Celebrity Meadows along with his father Mr Shyam Lal and also filed a complaint case number 121 of 2016 (Shyam Lal versus Ansal Properties and Infrastructure Ltd). Para 41 clearly shows that the complainants are currently residing in property number 3014 –OP/10/01 along with his father and other family members. The address of the complainant  given in the complaint case number 120 of 2016 (Vishal  Tahlani & Anr  Vs  Ansal Properties and Infrastructure Ltd) is also the same which confirmed the place of resident. Complainant number two has also purchased a unit number 3016 – SS –2 – GS 0205, sector-D, pocket 2 Shushant  Golf  City Lucknow which is a commercial shop in shopping square. Thus the complainant number two has invested lots of money in the real estate business in Sushant Golf City, Lucknow and the opposite party also acquired properties with other builders, Lucknow Development Authority, Awas Vikas Parishad, Lucknow. The complainant number two is not a consumer within the definition of “Consumer” under section 2 (d) of the Consumer Protection Act 1986 and hence this petition should be dismissed on this very ground. It is submitted here that the answering the respondents are very reputed Real Estate Company, which enjoys great goodwill in the real estate market and whose projects have lured and appreciated by its customers. It has developed and given successful possession of residential and commercial malls et cetera all across India. It is worth to mention that the Union government through a national agenda declared “A Housing for All” as a priority area and has set a target of  2 million houses every year with emphasis on poor  and deprived, out of which 0.7 million houses shall be constructed in the urban area. With above mentioned background the union government forwarded “National Housing and Habitat Policy 1998” through the Ministry of Urban Development and Poverty Elevation which was laid before the Parliament on 29.07.1998. The housing and habitat policy 1998 specifically aimed at facilitating and acceleratig supply of service land and housing. In tune with the above noted  spirit of National Housing

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and Habitat Policy 1998, The Government of Uttar Pradesh framed a Maga scheme of development of high-tech township in the state of Uttar Pradesh adopting public-private partnership for its execution and formulated a high-tech township policy in the year 2003. On 15.10.2004 proposals were invited by the state from developers interested in the development of high-tech townships, and in response to which the answering defendants Ansal Properties & Industries Ltd (subsequently renamed as Ansal Properties and Infrastructure Ltd) submitted its proposal along with other well-known developers on 15 October 2004 to the state of the Uttar Pradesh to develop high-tech township at Lucknow.

On 21 May 2005 the state of Uttar Pradesh’s selected the answering defendant as developer of high-tech township at Lucknow . The developer m/s Ansal Properties & Industries Ltd and its consortium members started purchasing land for development of high-tech township. On 22 May 2006 the detailed project report of high-tech township was approved by the DPR committee for the allotment of high-tech township on 1765 acres of land comprised of in the housing scheme of the Uttar Pradesh Awas Evam Vikas Parishad. In the year 2007 the layout plan of high-tech township was approved by the Lucknow Development Authority.

The complainant has applied with the opposite parties for purchase of buildup house by sale vide application dated 28.01.2008. The opposite parties initially allotted to complainant  a built up unit E/1/055 and later on allotted another built up unit E/2/90 having plot area of 240 yd² (200 m²) and built up area 140 yd² (130 m²) approximately which was accepted by complainants. A written agreement was executed between complainants  and M/S   Ansal Propertis and Infrastructure Ltd on 14.03.2008 at Lucknow regarding sale of aforesaid unit. The opposite parties replied the legal notice of complainants vide letter

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dated 13.12.2011 and offered the complainants to exchange plot no 24 pocket 9 sector C in place of built up unit number E/2/90 and assured the complainant that possession of pocket 9 sector C will be delivered within six months. On the basis of assurance of opposite parties, complainant gave consent for exchange of built-up unit no  E/2/90 with plot number sector C – 9/24. After taking consent of complainants opposite parties allotted to the complainant  unit in sector C pocket 9/24 and executed fresh agreement on 15.03.2012. The opposite parties VIDE their letter dated 18.03.2015 informed the complainants that due to some technical reason they are not able to give allotted unit plot number 0501-O –C/9/0024 and opposite parties again offered the complainants unit number 3014 –O –P/10/01 in Celebrity Meadows. The complainants VIDE letter dated 17.04.2015 accepted the offer of opposite parties. On the basis of complainants consent opposite parties allotted the unit number 3014 –O –P/10/01 in Celebrity Meadows at Sushant Golf City, Sultanpur road Lucknow to the complainants. A sale deed was executed between opposite parties and complainants on 31.08.2015 regarding unit number 3014 –O –P/10/01 in Celebrity Meadows and opposite parties have delivered the possession on  02.09.2015 to the complainants. The complainants are residing at 10^th floor and five other families are residing at 10^th, 9^th,7^th ,6^th and second floor. As the present project was a government conceived and controlled project several teething issues developed regarding the completion of the present scheme and as there was no footprint of any other similar project being conceived and controlled by the government under the banner of public-private partnership, these teething issues caused a considerable impact of over the pace of the project and  derailed the entire timeline of the project. Up to 2014, more than 39 km of drain, 38 km of sewer lines , 17 km of water supply pipes, 345 km of rainwater harvesting pipes and 102 km of electric cables has been developed in the township, and more than 60 km of quality roads has been constructed by Ms  UEM , a famous

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Malaysian company has become operational. It is further submitted that common facilities such as fire station, sub- post office and police station has been operational within the periphery of the township. It is noteworthy that around 2800 plots, 1250 built-up houses, 4000 apartments have already been sold. Besides the above about 800 houses of EWS/LIG and about 170 built-up houses have already been offered for possession. In addition to the above several reputed instalments like Goyanka Public-School and Ansal School of Technology and Management has already started functioning within the township earlier. It is pertinent to mention here that in the light of the above facts and circumstances all the claims and the relief sought by the complainant under the present complaint is illegal and the present complaint is likely to be dismissed inlimine itself.

In the advertisement it has been clearly stated that water purifier will be given in the kitchen but no commitment was made for any particular brand was awarded by the respondents. Similarly the modular kitchen  was mentioned but no commitment was made regarding size, brand, unit et cetera. The provision of the shopping complex in the building was never advertised. The layout plan of township has been duly approved by the Lucknow Development  Authority and it cannot be altered for individual demand, therefore there was no proposal for cut of the road in front of the building layout plan and it cannot be open on  individual demand. Development of Fountain within “Celebrity Meadows” has not been advertised or committed and similarly a green belt has been made as per the layout plan, that with regard to the development of the back portion of the “Celebrity Meadows” it is pertinent to mention that the township is not fully developed and it is in phased development. After the completion of township all civic amenities which are being developed shall become fully furnished. With regard the cold water or

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cool water, there was no such commitment or advertisement was made in this regard by the answering respondent.

We have heard both the parties councils and perused the evidence, documents, readings filed by the parties.

The following facts have been admitted by opposite party

1. the complainant applied with the opposite parties for purchase of built up house vide application dated 28.01.2008 and he was allotted built-up unit E/1/0055 having plotted of 240 yd² or 200 m². A written agreement has been executed between the parties on 14.03.2008. Price was agreed at ₹ 3,118,000. Till 31 March 2008 the complainant had paid more than 95% of the payment i.e, ₹ 2,677,115/–. The opposite parties later on allotted E/2/90 in place of original allotment of E/1/0055.
2. as per clause 20 of the agreement dated 14.03.2008 the opposite parties have to complete the construction within two years from the date of sanction of plan from the competent authority and the opposite parties where given assurance that the possession will be delivered within two years.
3. The opposite parties signed undertaking cum indemnity bond dated 28 March 2008 with HDFC Ltd and given written assurance to the complainant’s and HDFC Bank that they will complete the construction within two years and the construction of the said building as well as the unit is in accordance with the approved plans.
4. Thereafter the opposite parties did not adhere to their promise and a legal notice has been sent to the opposite parties by the complainant in the month of November 2011 and thereafter the opposite parties replied the legal notice on 13 December 2011 and offered the complainants to exchange plot number 24 pocket 9 sectors C in place

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of built-up unit number E/2/90 and assured the complainants that possession of units of a 24 will be delivered within six months. On this assurance the complainants has given their consent for the exchange. A fresh agreement dated 15 March 2012 has been executed.

5. On 18 March 2015 the opposite parties again informed the components that due to some technical reason they are not able to a lot unit brought number 24 and they again offered the complainant for 3014 –O –P/1001 in Celebrity Meadows. The complainants vide their letter dated 31^st August 2015 accepted this offer. The delivery of possession handed over on 2 September 2015 to the complainants.
6. Thus it is clear that the complainants entered into an agreement with the opposite parties for the allotment of a built-up unit’s on 14 March 2008 and due to carelessness/fault/shortcomings/deficiency in service/et cetera et cetera they got it after seven years and that too on the whims of opposite parties. There is a clear delay of at least five years on the part of the opposite parties.

The complainant has filed the affidavits of himself, his son Vishal , Brig Dr R K Srivatava and Nidhi  Bishnoi in evidence from his side. The opposite parties raised objection on the affidavits of Brig Dr RK Srivastav and Nidhi saying that, that the present complaint has been filed by Shyam Lal and his son Vishal Tahlani but Brig Dr RK Srivastav  and Nidhi Bishnoi are not complainant and therefore both of them have no locus standi to file their affidavits. The complainant objected on it and said that under section 13 (4)AAA of the Consumer Protection Act, the District Forum has power to receive evidence on affidavits like a civil court. The complainant is free to do his case with the help of independent evidence and the objections raised by the opposite parties are baseless.

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The main allegation of the opposite party is that, that the complainants have purchased these properties for commercial purposes hence he is not a consumer. There is no document filed by the opposite parties  to show that the complainant is doing the business of property dealing or he is in the business of purchasing and reselling the property. No such transaction has been filed before this bench to convince that the complainant is doing the business of property dealing. Therefore we have to believe version of the complainant that he is not in the business of property purchasing and reselling.

There is no legal bar for the allotment of unit separately in the name of husband and wife. If both the spouses have booked separate flats even then they are consumer in relation to their flats or units. In the today’s social setup, the son also wants to live independently from his father therefore if a son purchases a flat/unit in his name then also he’s consumer. If the purpose of purchasing two units is not to earn profit but to live in it separately for the peace of mind, the complainant shall be treated as consumer.

It is the duty of the service provider to acquire the land before inviting application for the allotment of units/flats. There should be sanction of the scheme by the authorities concerned, there should be No Objection Certificate by the concerned authority and then the builder may proceed further for inviting applications from the general public for the allotment of units/flats.

If any builder did not prescribe any time limit for the completion of the project, he cannot take benefit of it and cannot say that he will complete the project in infinite time. Hon’ble NCDRC has held in many cases has held if the possession is not given

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within a reasonable time, it is deficiency in service. Here the complainant has deposited more than 90% of the cost and he was not given possession for more than six years or so ,  it is a clear case of deficiency in service. If a government servant after getting all the post retiral benefits , invest it for getting a flat or unit and if he is not given the flat or unit within a reasonable time, he must have paid a huge amount on the rented house. The reasonable period for the allotment of house is about 2 to 3 years.

These builders are just earning money from the consumers to whom they issued allotment letters and got a huge amount. They keep this amount for a long time and earn interest on it. Property dealing is that part of business where they never pay a penny to the consumers on their amounts deposited for a long-term or if they pay, they pay a meagre interest of about 5% or so  but they charge 18 to 24% or more if the consumers default in depositing any instalment. It reminds us the story of “The Merchant of Venice” The Merchant of Venice is the story of a Jewish moneylender Shylock who demands that an antisemitic Christian offer “a pound of flesh” as collateral against a loan. These acts of builders also remind us the age of  Sahukari during ancient  India and also during British Raj . Whether these builders have power to frame their own law? They put their terms and conditions in such a way that the sufferer will always be the consumer. The Consumer Protection Act 1986 has been enacted for the benefits of consumers ,  so the courts dealing with Consumer Protection Act 1986 should come forward for their rescue. The courts are not governed by the builders but they are governed by the law, Custom and Usages. Now in the background of all the facts and also the facts of the present case, we will also discuss something more.

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The well-known Indian novelist and story writer Munshi Premchand has written in his novel “ Godan “about this high rate of interest by the moneylenders . He is best remembered for Godan (gift of a cow), his last novel, whose protagonist Hori represents the perennially impoverished peasant, victim as much to the moneylender as to his own rigid adherence to irrational customs. What Hori longs for, above all else, is to own a cow, the symbol of rural wealth, and pays with his life for it. After he dies, in a typically Premchand  moment, the village priests demand from his grieving wife the gift of a cow as ransom for her dead husband’s sole. Are we living in that era still now ?

Now we come to the legal position of this case and also will discuss some important legal citations of the Hon’ble NCDRC and Hon’ble Supreme Court of India regarding delay in giving possession by the builders.

In  the Case  of  Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors.  Versus  DLF Southern Homes Pvt Ltd (now Known as BEGUR OMR Homes Pvt. Ltd.) and Ors.   ( Civil Appeal No. 6239 of 2019 With Civil Appeal No. 6303 of 2019) ; The  Hon’ble  Supreme  Court  has  held

“  24 . A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service. The expression „service‟ in Section 2 (1) (o) means a service of any description which is made available to potential users including the provision of facilities in connection with (among other things) housing construction. Under Section

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14(1)(e), the jurisdiction of the consumer forum extends to directing the opposite party inter alia to remove the deficiency in the service in question. Intrinsic to the jurisdiction which has been conferred to direct the removal of a deficiency in service is the provision of compensation as a measure of restitution to a flat buyer for the delay which has been occasioned by the developer beyond the period within which possession was to be handed over to the purchaser. Flat purchasers suffer agony and harassment, as a result of the default of the developer. Flat purchasers make legitimate assessments in regard to the future course of their lives based on the flat which has been purchased being available for use and occupation. These legitimate expectations are belied when the developer as in the present case is guilty of a delay of years in the fulfilment of a contractual obligation. To uphold the contention of the developer that the flat buyer is constrained by the terms of the agreed rate irrespective of the nature or extent of delay would result in a miscarriage of justice. Undoubtedly, as this court held in Dhanda, courts ordinarily would hold parties down to a contractual bargain. Equally the court cannot be oblivious to the one-sided nature of ABAs which are drafted by and to  protect the interest of the developer. Parliament consciously designed remedies in the CP Act 1986 to protect consumers. Where, as in the present case, there has been a gross delay in the handing over of possession beyond the contractually stipulated debt, we are clearly of the view that the jurisdiction of the consumer forum to award just and reasonable compensation as an incident of its power to direct the removal of a deficiency in service is not constrained by the terms of a rate which is prescribed in an unfair bargain.

25 . Numerous judgments of this Court have elaborated on the nature and extent of the jurisdiction of the consumer forum to award just   and reasonable compensation. Since the decision of this Court in

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Lucknow Development Authority v. M K Gupta (1994) 1 SCC 243  , it has been a settled principle of law that the jurisdiction of the consumer forum extends to the award of compensation to alleviate the harassment and agony to a consumer. In Balbir Singh  (2004) 5 SCC 65  , a two judge Bench of this Court, while explaining the ambit of the jurisdiction of the adjudicatory fora under the CP Act 1986 observed: “6…The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the   Commission to redress any injustice done. “

26.  The court observed that the award of compensation has to be based on a finding of loss or injury and must correlate to it. The court observed that no “hard and fast rule” could be prescribed:

“8…No hard-and-fast rule can be laid down, however, a few examples would be where an allotment is made, price is received/paid but possession is not given within the period set out in the brochure. The Commission/Forum would then need to determine the loss. Loss could be determined on basis of loss of rent which could have been earned if possession was given and the premises let out or if the consumer has had to stay in rented premises then on basis of rent actually paid by him. Along with recompensing the loss the Commission/Forum may also compensate for harassment/injury, both mental and physical. “

Where possession has been given, one of the circumstances which must be factored in is that the purchaser has been compensated by the increase in the value of the property.

27.  In  R V Prasannakumaar v. Mantri Castles Pvt Ltd , 2019 SCC OnLine SC 224, under the terms of the ABA, possession of the flats was to be handed over to the buyers on 31 January 2014. However,

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the developer received an occupation certificate only on 10 February 2016 and it was thereafter from May 2016 that the developer started issuing letters offering possession. Based on this, the NCDRC awarded compensation in the form of interest at the rate of 6 per cent per annum. The developer had pleaded that since the agreement provided compensation at the rate of Rs. 3 per square foot per month for delayed possession, the purchasers were not entitled to anything in addition. Dealing with the submission, this Court observed:

 “9. We are in agreement with the view of the NCDRC that the rate which has been stipulated by the developer, of compensation at the rate of 3 per sq. ft. per month does not provide just or reasonable recompense to a flat buyer who  has invested money and has not been handed over possession as on the stipulated date of 31 January 2014. To take a simple illustration, a flat buyer with an agreement of a flat admeasuring a 1000 sq. ft. would receive, under the agreement, not more than Rs. 3000/- per month. This in a city such as Bangalore does not provide just or adequate compensation. The jurisdiction of the NCDRC to award just compensation under the provisions of the Consumer Protection Act, 1986 cannot in the circumstances be constrained by the terms of the agreement. The agreement in its view is one sided and does not provide sufficient recompense to the flat purchasers.”

The Court observed that there was a delay of two years and hence the award of interest at the rate of 6 per cent was reasonable and justified.

28.  In Pioneer Urban Land and Infrastructure Limited v. Govindan Raghavan , (2019) 5 SCC 725, there was a delay of almost two years in obtaining an occupancy certificate after the date stipulated in the ABA. As a consequence, there was a failure to provide possession of the flat to the purchaser within a reasonable period. This Court dwelt on the terms of the ABA under which the

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builder was entitled to charge interest at 18 per cent per annum for the delay in payment of instalments by the purchaser. On the other hand, the failure to provide possession on the part of the developer was subject to a grace period of twelve months followed by a termination notice of ninety days and a further period of ninety days to the developer to effect a refund. Adverting to these clauses, the court noted:

 “6.4. A perusal of the apartment buyer's agreement dated 8-5- 2012 reveals stark incongruities between the remedies available to both the parties. For instance, Clause 6.4(ii) of the agreement entitles the appellant builder to charge interest @18% p.a. on account of any delay in payment of instalments from the respondent flat purchaser. Clause 6.4(iii) of the agreement entitles the appellant builder to cancel the allotment and terminate the agreement, if any instalment remains in arrears for more than 30 days. On the other hand, as per Clause 11.5 of the agreement, if the appellant builder fails to deliver possession of the apartment within the stipulated period, the respondent flat purchaser has to wait for a period of 12 months after the end of the grace period, before serving a termination notice of 90 days on the appellant builder, and even thereafter, the appellant builder gets 90 days to refund only the actual instalment paid by the respondent flat purchaser, after adjusting the taxes paid, interest and penalty on delayed payments. In case of any delay thereafter, the appellant builder is liable to pay interest @9% p.a. only. 6.5. Another instance is Clause 23.4 of the agreement which entitles the appellant builder to serve a termination notice upon the respondent flat purchaser for breach of any contractual obligation. If the respondent flat purchaser fails to rectify the default within 30 days of the termination notice, then the agreement automatically stands cancelled, and the appellant builder has the right to forfeit the entire amount of earnest money towards liquidated damages. On the other hand, as per Clause 11.5(v) of the agreement, if the respondent flat

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purchaser fails to exercise his right of termination within the time limit provided in Clause 11.5, then he shall not be entitled to terminate the agreement thereafter, and shall be bound by the provisions of the agreement.”

Justice Indu Malhotra speaking for the Court noted:

 “6.8. A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the agreement dated 8-5-2012 are ex facie one-sided, unfair and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2(1)(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the builder.” The Court observed that in these circumstances, the flat purchasers could not be compelled to obtain possession which was offered almost two years after the  grace period under the agreement had expired. Hence, the NCDRC was held to have correctly awarded interest at the rate of 10 percent per annum.

29 . The decision of this Court in Dhanda Case 2019 SCC OnLine SC 689  has been relied upon by learned Senior Counsel appearing on behalf of the developer as elucidating the principle that where a flat buyers agreement stipulates a consequence for delayed possession, exceptional and strong reasons must be established before the forum constituted under the Act of 1986 awards compensation in addition to what has been contractually agreed. In Dhanda’s case, the SCDRC issued a direction for handing over physical possession of the residential unit to the complainant and for execution of a sale deed. In addition, compensation was awarded by way of interest at the rate of 12 per cent per annum with effect from twelve months after the stipulated date under the agreement. In an appeal by the developer, the NCDRC directed that the rate of interest for a house building loan for the corresponding period in a scheduled

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nationalised bank would be appropriate and if a floating rate of interest was prescribed, the higher rate of interest should be taken for the computation. A sum of Rs. 1 lac per annum from the date for handing over possession to the actual date of possession was regarded as appropriate in the facts of the case. In that case under the terms of the buyer‟s agreements, possession was to be delivered within twenty-four months of the execution of the agreement i.e. 10 February 2013 – failing which the developer was liable to pay compensation at the rate of Rs. 10 per square foot per month for the delay. The developer contended that construction activities were delayed as a result of an injunction granted by this Court over a period of eight months and consequently sought an extension of the period for handing over possession by one year. Alternatively, the developer offered to refund the money deposited with interest at 9 per cent per annum. Construction of 258 independent floors was completed while about 1,500 units were nearing completion. In two sets of Civil Appeals which came up before this Court earlier, agreed terms were arrived at providing for the award of interest at 9 per cent per annum from the date of deposit till refund. While considering the order of the NCDRC, this Court observed:

“16. The District Forum under the Consumer Protection Act, 1986 is empowered inter-alia to order the opposite party to pay such amount as may be awarded as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party including to grant punitive damages. But the forums under the Act cannot award interest and/or compensation by applying rule of thumb. The order to grant interest at the maximum of rate of interest charged by nationalised bank for advancing home loan is arbitrary and no nexus with the default committed. The appellant has agreed to deliver constructed flats. For delay in handing over possession, the consumer is entitled to the consequences agreed at the time of executing buyer's agreement. There cannot be multiple heads to

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grant of damages and interest when the parties have agreed for payment of damages at the rate of Rs. 10/- per sq. ft. per month. Once the parties agreed for a particular consequence of delay in handing over of possession then, there has to be exceptional and strong reasons for the SCDRC/NCDRC to award compensation at more than the agreed rate.”

32.  In the present case, there exist, clear and valid reasons for not holding down the flat buying consumers merely to the entitlement to receive compensation at the rate of 5 per square foot per month in terms of clause 14 of the ABA:

(i) There has been a breach on the part of the developer in complying with the contractual obligation to hand over possession of the flats within a period of thirty-six months of the date of the agreement as stipulated in clause 11(a);

 (ii) The failure of the developer to hand over possession within the contractually stipulated period amounts to a deficiency of service within the meaning of Section 2 (1) (g), warranting the invocation of the jurisdiction vested in the NCDRC to issue a direction for the removal of the deficiency in service;

 (iii) The triggering of an obligation to pay compensation on the existence of delay in handing over possession is admitted by the developer for, even according to it, it has adjusted compensation at the agreed rate of Rs 5 per square foot per month to 145 out of the 171 appellants;

 (iv) The agreement is manifestly one-sided: the rights provided to the developer for a default on the part of the home buyer are not placed on an equal platform with the contractual right provided to the home buyer in the case of a default by the developer;

(v) There has been a gross delay on the part of the developer in completing construction ranging between two and four years. Despite successive extensions of time to deliver possession sought by the

developer, possession was not delivered on time;

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(vi) The nature and quantum of the delay on the part of the developer are of such a nature that the measure of compensation which is provided in clause 14 of the ABA would not provide sufficient recompense to the purchasers; and

(vii) Judicial notice ought to be taken of the fact that a flat purchaser who is left in the lurch as a result of the failure of the developer to provide possession within the contractually stipulated date suffers consequences in terms of agony and hardship, not the least of which is financial in nature. Having paid a substantial amount of the purchase price to the developer and being required to service the debt towards loan installments the purchaser is unable to obtain timely possession of the flat which is the subject matter of the ABA.

But, it has been submitted by the developer – a submission which found acceptance by the NCDRC – that the execution of the Deed of Conveyance by a flat purchaser precludes a consumer claim being raised for delayed possession. During the course of the proceedings before the NCDRC, the flat purchasers relied upon the communications which were issued by the developer to demonstrate that the purchasers were not permitted by the developer to execute a Deed of Conveyance or to take possession under protest. The material which was produced before the NCDRC supports this submission, which was urged before the Court by Mr Prashant Bhushan, learned Counsel. By a communication dated 16 February 2016, the developer informed a flat buyer that in terms of the ABA, the allottee is required to take possession of the apartment by making payments and executing documentation after the developer has obtained a certificate for occupation from the competent authority and has offered possession of the apartment to the allottee. The developer stated: “We may also like to bring to your notice, that if the acceptance of offer of possession terms is being conveyed by the allottee under protest the Company will not be in a position to hand over the possession and execute the Conveyance Deed and as such

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your request to take over the 34 possession and execute the documents under protest is untenable.”

36 . It has been urged by the learned counsel of the developer that a consequence of the execution of the Deed of Conveyance in the present case is that the same ceases to be a transaction in the nature of “supply of services” covered under the CP Act 1986 and becomes a mere sale of immovable property which is not amenable to the jurisdiction of Consumer Fora. In Narne Construction (P) Ltd. v. Union of India (2012) 5 SCC 359 , this Court distinguished between a simple transfer of a piece of immovable property and housing construction or building activity carried out by a private or statutory body falling in the category of “service‟ within the meaning of Section 2 (1) (o) of the CP Act 1986. This Court held that:

“8. Having regard to the nature of transaction between the appellant Company and its customers involved much more than a simple transfer of a piece of immovable property it is clear the same constitutes “service” within the meaning of the Act. It was not the case that the appellant Company was selling the given property with all its advantages and/or disadvantages on “as is where is” basis, as was the position in UT Chandigarh Admn v. Amarjeet Singh. It is a case where a clear-cut assurance was made to the purchasers as to the nature and extent of development that would be carried out by the appellant Company as a part of package under which a sale of fully developed plots with assured facilities was made in favour of the purchasers for valuable consideration. To the extent the transfer of site with developments in the manner and to the extent indicated earlier was a part of the transaction, the appellant Company has indeed undertaken to provide a service. Any deficiency or defect in such service would make it accountable before the competent Consumer Forum at the instance of consumers like the respondents.”

The developer in the present case has undertaken to provide a

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service in the nature of developing residential flats with certain amenities and remains amenable to the jurisdiction of the Consumer Fora. Consequently, we are unable to subscribe to the view of the NCDRC that flat purchasers who obtained possession or executed Deeds of Conveyance have lost their right to make a claim for compensation for the delayed handing over of the flats.

For the above reasons we have come to the conclusion that the dismissal of the complaint by the NCDRC was erroneous. The flat buyers are entitled to compensation for delayed handing over of possession and for the failure of the developer to fulfil the representations made to flat buyers in regard to the provision of amenities. The reasoning of the NCDRC on these facets suffers from a clear perversity and patent errors of law which have been noticed in the earlier part of this judgment. Allowing the appeals in part, we set aside the impugned judgment and order of the NCDRC dated 2 July 2019 dismissing the consumer complaint. While doing so, we issue the following directions:

1. Save and except for eleven appellants who entered into specific settlements with the developer and three appellants who have sold their right, title and interest under the ABA, the first and second respondents shall, as a measure of compensation, pay an amount calculated at the rate of 6 per cent simple interest per annum to each of the appellants. The amount shall be computed on the total amounts paid towards the purchase of the respective flats with effect from the date of expiry of thirty-six months from the execution of the respective ABAs until the  date of the offer of possession after the receipt of the occupation certificate;
2. The above amount shall be in addition to the amounts which have been paid over or credited by the developer at the rate of Rs 5 per square foot per month at the time of the drawing of final accounts; and

3. The amounts due and payable in terms of directions (i) and (ii) above shall be paid over within a period of one month from the date of this judgment failing which they shall carry interest at the rate of 9 per cent per annum until payment .”

If there is delay in giving possession of land/flats to the respective buyers by the builders, the Hon’ble NCDRC has held that the builders are liable to pay compensation at a fixed rate per month depending on the size of the plot/flat .

In  the  case  of   PRIYANKA MITTAL & ANR. V. PARSVNATH DEVELOPERS LTD. & ANR. ( NCDRC  )  These appeals arise out of single order of State Commission, hence, decided by common order. These appeals have been filed appellant against order dated 25.2.2015 in Complainant Nos.

18 of 2013- Nalin Bhargava & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 34 of 2013- Jasleen Viswanathan & Anr. Vs. Parsvnath Developers Ltd. & Anr; 58 of 2011- Janmejai Mani Tiwari Vs. Parsvnath Developers Ltd. & Anr; 68 of 2013- Indu Singh Vs. Parsvnath Developers Ltd. & Anr.; 69 of 2013- Poonam Sagar Vs. Parsvnath Developers Ltd. & Anr.; 86 of 2010- Priyanka Mittal & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 101 of 2011- Mohd. Aslam Khan & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 130 of 2012- Dr. Sunil Kr. Singh & Anr. Vs. Parsvnath Developers Ltd. & Anr; 49 of 2012- Neera Mittal & Anr. Vs. Parsvnath Developers Ltd. & Anr; , 74 of 2011- Deepak Bhalla Vs. Parsvnath Developers Ltd. & Anr. ; 87 of 2010- Syed Gufran Ali Alvi & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 96 of 2011- Uppasana Malik Vs. Parsvnath Developers Ltd. & Anr.; 175 of 20130- Umesh Chandra Dixit & Anr. Vs. Parsvnath Developers ; byLtd. & Anr.; 97 of 2011- Pravin Kumar Goel & Anr. Vs. Parsvnath Developers

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Ltd. & Anr which complaints were partly allowed.

  The  Hon’ble  NCDRC  held

“ Brief facts of the cases are that opposite parties/respondents are engaged in the activity of housing construction and accordingly they have launched a project named as Parsvnath Planet situated in Gomti Nagar, Lucknow. The project was demonstrated to be very lucrative and made attractive to the vendees, in order to procure/collect money from the needy persons demonstrating themselves to be excellence in the field of construction activity as compared to other builders and assured the buyers/complainants that it has been duly approved by the Lucknow Development Authority and necessary permission has also been obtained from them. The emphasis was made by the opposite parties that the possession of the Unit shall be given within a scheduled period of 36+6=42 months stipulated in agreements executed in between the parties for the project launched in the year 2006. The complainants/appellants attracted by the promise and assurance of the opposite parties, somehow managed and arranged the money from their personal sources as well as on loan at attractive rate of interest and the hard earned money was paid by them to the opposite parties in a hope that the possession of the units shall be provided to them in the year 2009 and they can leave peacefully in their own houses, since the complainants are living in rented houses. The complainants visited the construction site of the opposite parties after depositing the entire amount, where it was revealed that the construction activities were on halt and the persons available on the site told the complainants that the apartments are likely to be completed till 2015. Even the partial construction done by the opposite parties was defective and did not match the specifications provided in the agreement. The complainants were shocked on hearing it and observing the site. The complainants immediately contacted the Area Manager, who told the complainants that there is some delay in the construction of the

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apartment and the apartments shall be ready till June, 2010. The complainants have to repay the amount taken on loan alongwith interest without getting the possession of the allotted units causing irreparable loss and injury to them. The complainants have come to know that the opposite parties have invested the funds earmarked for this project into their other projects in other city due to which they have -10- not been able to complete the project in time. Besides this, it has also come to the light that although the opposite parties had collected huge funds from the buyers but in spite of that the opposite parties have miserably failed to pay the dues of Lucknow Development Authority which forced the Lucknow Development Authority to issue coercive measures against the opposite parties for the recovery of their dues. Alleging deficiency on the part of opposite parties/respondents, complainants filed separate complaints before State Commission. Ad aggrieved  by  the  order  of  Hon’ble  State  Commission , these  appeals preferred  befpre Hon’ble National  Consumer  Disputes  Redressal  Commission .

Hon’ble  NCDRC discussed various  case  laws  and  after  hearing  the  parties held ,

“ Learned Counsel for appellants submitted that as complainants have been deprived of possession for a long period beyond agreed period, it amounts to restrictive trade practice under  and complainants are entitled to get compensation. Section 2 (nnn) runs as under:- means a trade practice which tends to bring about restrictive trade practice manipulation of price or its conditions of delivery or to affect flow of supplies in the market relating to goods or services in such a manner as to impose on the consumers unjustified costs or restrictions and shall include- Delay beyond the period agreed to by a trader in supply of such goods or in providing the services which has led or is likely to lead to rise in the price; Any trade practice which requires a consumer to buy, hire or avail of any goods, or, as the case may be,

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services as condition precedent to buying, hiring or availing of other goods or services; Perusal of aforesaid provision reveals that when opposite party delays in delivery of goods which leads to rise in the price of goods meaning thereby, more price is charged from complainant, it amounts to restrictive trade practice. In the case in hand, opposite party on account of delayed delivery of possession is not charging higher rate than the agreed rate for delivery of possession of flat, so, it does not fall within the purview of restrictive trade practice under  Admittedly, agreements were executed in 2006 and as per agreements, possession of flats was to be delivered within 42 months, meaning thereby, possession was to be given in the year 2009-2010 and possession has not been handed over so far though year 2016 has started. No doubt, complainants are entitled to get penalty amount for delayed delivery of possession as per clause 10 ( c) of the agreement but opposite party cannot be permitted to avail benefit of aforesaid clause for indefinite period. This penalty clause should be allowed for the benefit of parties for a limited period and in the cases in hand, I deem it appropriate to extend applicability of aforesaid clause for a period of one year beyond 42 months and after that, complainants are certainly entitled to compensation. Opposite party cannot be allowed to avail huge funds of complainants by paying merely Rs. 5/- per sq. ft. for example, complainants who have purchased flat measuring 164.901 sq. mtr., they have made payment of about Rs. 31.00 to 32 lakhs and in the garb of clause .

10 (c), opposite party is paying penalty @ approximately Rs. 9,000/- per month against enjoying funds more than Rs. 30.00 lakhs. As complainants have been deprived to shift to their flats for a long period which would not only have given them satisfaction of living in their own house but also have raised their social status and opposite party has enjoyed funds of complainants for a long period, I deem it appropriate to allow compensation @ Rs. 15,000/- p.m. to the

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complainants who have applied for flats upto 175 sq. mtr and Rs. 20,000/- per month to complainants who have applied for flats above 175 sq. after 54 months of execution of agreement till delivery of possession. Complainants- Nalin Bhargava in and complainantsComplaint No. 18 of 2013 Ravindra Singh in , are entitled to get only difference of amount fromComplaint No. 32 of 2012 -14- the amount already awarded by State Commission which has not been challenged by opposite party. Perusal of record reveals that in Complaint No. 987 of 2011, Pravin Kumar Goel Vs. , flat area of complainant has been increased and additional Rs. 7,99,997/-Parsvnath Developers has been demanded by opposite party from complainant but Learned State Commission has not allowed penalty as per clause 10 (c ) for the increased area and complainants are entitled to get penalty as per aforesaid clause on the increased area also. Consequently, appeals filed by appellants are partly allowed and order dated 25.2.2015 passed by Learned State Commission in the aforesaid complaints is modified and opposite party is directed to pay @ Rs. 15,000/- p.m. and Rs. 20,000/- to the allottees of flats upto 175 sq. mt. and above 175 sq mtr respectively from beginning of 55 month from the date of execution of flatth buyer agreement till delivery of possession of flat to the complainants and complainants in and are entitled to receive only differenceComplaint No. 18 of 2013 Complainant No. 32 of 2012 of amount as stated above and opposite party is directed to pay penalty to complainant in on the increased area as per clause 10 (c ) of the agreement.Complaint No. 97 of 2011 Parties to bear their costs.”

Against this  judgement , parties  went  to  Hon’ble  Supreme  Court . The judgement  of  Hon’ble  Supreme  Court is :-

    Nalin Bhargava  vs  Parsvnath Developers Ltd on 13 July, 2018

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          CA 6662/2018 @ SLP(C) 7596/2016 etc.

           IN THE SUPREME COURT OF INDIA

            CIVIL APPELLATE JURISDICTION

            Civil Appeal No. 6662/2018

        (arising out of SLP(C) No. 7596/2016)

              Judgement July 13, 2018

  NALIN BHARGAVA & ANR. ……………………………. Appellant

                            VERSUS

 PARSVNATH DEVELOPERS LTD & ANR…………..  Respondent

                       WITH

                          Civil Appeal No. 6665/2018

             (arising out of SLP(C) No. 9659/2016)

              Civil Appeal No. 6663/2018

                          (arising out of SLP(C) No. 7662/2016)

              Civil Appeal No. 6671/2018

                          (arising out of SLP(C) No. 10146/2016)

                Civil Appeal No. 6670/2018

             (arising out of SLP(C) No. 10064/2016)

                Civil Appeal No. 6666/2018

          (arising out of SLP(C) No. 9715/2016)

              Civil Appeal No. 6667/2018

         (arising out of SLP(C) No. 9720/2016)

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             Civil Appeal No. 6668/2018

         (arising out of SLP(C) No. 9849/2016)

              Civil Appeal No. 6673/2018

         (arising out of SLP(C) No. 10362/2016)

            Civil Appeal No. 6669/2018

        (arising out of SLP(C) No. 9886/2016)

            Civil Appeal No. 6672/2018

       (arising out of SLP(C) No. 10254/2016)

            Civil Appeal No. 6664/2018

          arising out of SLP(C) No. 9590/2016)

                      O R D E R

         Leave granted in all the special leave petitions.CA 6662/2018 @ SLP(C) 7596/2016 etc.

       It is submitted by Mr. M.L. Lahoty, learned counsel appearing for the appellants in all the appeals that the possession has been handed over and the deficiencies have been removed and, therfore, he has no grievance. However, Mr. Lahoty would insist that there should be imposition  Of  costs as compensation.

       Mr. Sachin Datta, learned senior counsel appearing for the developer has raised   objections    with regard to imposition of costs.

       Having heard learned counsel for the parties, we are of the considered opinion that the cause of justice would be best subserved if each of the appellants in the present appeals are given Rs.1,50,000/- (Rupees one lakh fifty thousand only) per

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flat, towards costs.   When we say“cost”, we mean costs alone and nothing else.

       Needless to emphasise,the present arrangement stands confined and restricted to the present appeals.

       Before  parting with the case, we record our unreserved appreciation for the efforts made by Mr. Gaurav Agarwal, learned counsel, who has been able to  bring out a workable solution in the obtaining fact  situation.

       With the aforesaid modification in the order passed by the National Consumer Disputes Redressal Commission, the appeals stand disposed of. “

In the case of Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra[Civil Appeal No. 3182 of 2019 @ SLP (C) No(S). 1795 of 2017] judgement delivered on 25.03.2019 , the Hon’ble Supreme Court has held ;

“ Interestingly, where the buyer is in default, the agreement stipulates that interest at the rate of 18 per cent from the date of default until the date of payment would be charged for a period of two months, failing which the allotment would be cancelled by deducting 5% of the entire value of the property. The agreement was evidently one sided. For a default on the part of the buyer, interest at the rate of 18% was liable to be charged. However, a default on the part of the developer in handing over possession would make him liable to pay interest only at the savings bank rate prescribed by the SBI. There is merit in the submission which has been urged by the buyer that the agreement was one sided.

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The clause which has been extracted in the earlier part of this order will not preclude the right and remedy available to the buyer to claim reasonable interest or, as the case may be, compensation. The essential aspect of the case which is required to be analysed is whether the buyer was entitled to seek a refund or was estopped from doing so, having claimed compensation as the primary relief in the consumer complaint.

The Buyer's Agreement is dated 2 July 2007. In terms of the agreement, the date for handing over possession was 31 December 2008, with a grace period of six months. Even in 2011, when the buyer filed a consumer complaint, he was ready and willing to accept possession. It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period.

A period of seven years is beyond what is reasonable.”

Now in the light of above mentioned judgements of Hon’ble the Supreme Court and Hon’ble NCDRC , it is clear that the complainant is entitled to get compensation and interest on the amount deposited by him which was kept by the builder for such a long period. The plot/flat in question is more than 175 Sq Mtr , he is entitled to get ₹ 20,000 per month in addition to one-time compensation of ₹ 150,000 and also interest at a rate of 15% on the deposited amount . The companies are also entitled to get office map the complainants are also entitled to get 50% of the amount of external Electrification Charges, We have discussed all the facts and circumstances of the

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case and came to the above conclusion. As far as other amenities are concerned, the builders shall not charge a penny a nation to any maintenance charge until they provide all the amenities as assured by them . They will provide the basic amenities like uninterrupted electricity and potable water supply  24 x 7 , failing  which  they  shall  be  liable  to  pay  damages @ Rs. 10,000.00 per  month to the Complainants .

                                                          ORDER

The complaint is allowed partially . The opposite parties are directed pay ₹ 20,000 per month from  01.07.2014  till the month of delivery of the unit . The opposite parties shall also pay simple interest at a rate of 15% per annum from the date of depositing the allotment amount till delivery of possession . The opposite parties shall pay ₹ 20,000 per month which was spent by complainants for a rented house from 01.08.2015 (two months after retirement) till the month of delivery of the possession. The opposite parties shall also pay a lump-sum amount of ₹ 150,000/-  as cost to the complainants and also pay ₹ 1 lakh for mental agony . The opposite parties shall not charge any maintenance charges from the complainants till all the amenities have been provided as assured by them. The opposite parties shall provide the fundamental basic aminities  like uninterrupted power and potable water supply  24 x 7 , failing  which  they  shall  be  liable  to  pay  Rs. 10,000.00 per  month to the Complainants .

             (Rajendra Singh)                       (Govardhan Yadav)

                    Member                                      Member

Judgement signed/dated by us and pronounced in the open court today . Let the copy the provided as per rules. Consigned the record.

             (Rajendra Singh)                       (Govardhan Yadav)

                    Member                                      Member

Pramod Kumar

P.A.G-1,

Court No.-1.