DR. INDER JIT SINGH, MEMBER

1. The present Consumer Complaint (CC) has been filed under Section 12 r/w  Section 21(a)(i) of the Consumer Protection Act, 1986 (for short “the Act”) by the Complainants against Opposite Party (OP) as detailed above, inter alia praying for:-

1. To pay interest calculated @12% p.a on the amount deposited from the date of delay in handing over the possession to Complainants till date the possession was handed over to Complainants i.e on 23.02.2017.

2. To pay interest on the amount of the registration fee paid till the actual registration is done in favour of Complainants by the OP.

3. Compensation of Rs.5 Lakh on account of causing financial risk, hardship, mental agony, harassment, emotional disturbance caused to Complainants due to the actions/omissions.

4. Rs. 75,000/- towards the litigation expenses

5. Compensation U/S 14(hb) of the Act on account of following unfair trade practices with large number of persons.

2. It is averred in the Complaint that: -

1. The Complainants booked a flat in DLF Hyde Project vide application dated 22.08.2012. An independent floor Buyer’s Agreement (IFBA) was signed on 18.09.2013 and a unit no. R2-F711-SF having an area of 1881 sq. ft., with parking no. P-2F was allotted at a total price of Rs. 73,13,635. Till date, Complainants paid Rs.96,99,640/-.  As per IFBA, the committed date of possession was 30 months from the date of application i.e 22.02.2015. Offer of possession was made on 15.02.2016, Complainants took possession on 23.02.2017 under protest.

2. OP has unilaterally and arbitrarily imposed illegal demands using his dominant position, the said unit and other amenities/facilities as promised were not even ready for possession.

3. OP has not provided for a community hall, covered parking, yoga center, swimming pool etc.

4. The construction quality is very poor and most of the promised services/amenities/facilities are lacking, which amounts to deficiency in services.

5. The buyers agreement was signed after 9 to 12 months from the date of booking, Complainants were compelled to execute the agreement, the agreement is one sided.

3. The OP in their written statement/reply dated 04.06.2018 stated that: -

1. Allegations of unfair trade practices are baseless, have been made with an ulterior motive to amend/modify or re-write the concluded agreement/contract, terms of IFBA are binding between the parties.

2. The Complainants have taken possession of the unit on 23.02.2017, after possession is taken, the person booking the unit no more remains a consumer. Once a conveyance deed is executed, there is no privity of contract, a person who is an investor ceases to be a consumer, the unit in question was not applied by Complainants for residential purpose but merely to obtain profits/speculative gains.

3. This commission lacks pecuniary jurisdiction, the complaint is barred by limitation.

4. The contract is one composite document and cannot be enforced in part and rejected in part.

5. There is no deficiency in service or unfair trade practices on the part of OP, in case of delay in delivery of possession, delayed compensation for the same has been accounted for in the agreement itself, the delay was on account of reasons beyond the control of OP.

6. Timely payments by the Complainants was the essence of the agreement, Complainants have defaulted in payment of installments.

4. Complainant in his rejoinder dated 02.09.2019, while reiterating the pleas taken in their complaint and denying the allegations in the reply of OP, stated that the value of the property along with compensation claimed is above Rs. 1 Cr., cause of action to file the complaint have arisen on failure of OP to give legal and actual possession, Complainants have denied delay in payments. Evidence by way of an Affidavit was filed by the complainant on 02.09.2019  broadly on the lines of averments made in the complaint dated 01.03.2018.. OP filed their Evidence by way of an Affidavit on 18.09.2019.

5. The details of the flats allotted to the Complainants:-

[1] Final area 1900 sq. ft., increase of 19 sq. ft.

6. After the judgement was reserved for pronouncement, an IA No. 8499/2022 was filed by the counsel of OP on 06.09.2022, seeking re-hearing of the complaint and to lead oral arguments. Notice for hearing was sent to both the parties for 09.06.2022. On this date counsel for OP was heard and judgement was reserved again.

7. The contention of OP  that this Commission lacks pecuniary jurisdiction is not valid. Under Section 21 of the Act, Commission has the jurisdiction where value of goods and services and compensation, if any, claimed exceeds Rs one crore. The objection that the Complaint is barred by limitation is also not accepted. The contention that complainant is not a consumer as he has purchased the unit for commercial purpose is also rejected.  No such evidence has been adduced by the OP in this regard, that the Complainant has bought the unit for commercial purpose The plea  that delay was due to reasons beyond the control of OP is not valid. There is no documentary evidence to support the contention of the OP in that regard.’ The contention of the OP that the parties are bound by the agreement is also not acceptable. Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raglivan II (2019) CPJ 34 (SC) decided on 02.04.2019 held that “a term of a contract will not be final and binding if it is shown that the flat purchasers had no option to sign on the dotted line, on a contract framed by the builder ......... the incorporation of one sided clause in an agreement constitute an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling flats by the builder ........., the appellant-builder cannot seek to bind the respondent with such one sided contractual terms.” 

8. In the instant case, there is an  delay in handing over the possession of flat by the OP. The plea of OP for entitlement of compensation to the complainant in accordance with clause provisions of IFBA is not valid.

9. For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties,  the Consumer Complaints are allowed/disposed off with the following directions/reliefs:

1. OP is directed to pay interest @ 6% p.a. towards delayed compensation for the period 22.02.2015 (committed date of possession) to 23.02.2017 (actual date of physical possession) on the total amount paid by the Complainants.

2. OP to pay Rs. 25,000/- towards cost of litigation to the Complainant

10. The pending IA’s, in any of the Consumer Complaints, if any, also stands disposed off.