R.K. AGRAWAL, J., PRESIDENT

The present Consumer Complaint has been filed under Section 21 read with Section 12 of the Consumer Protection Act, 1986 (for short “the Act”) initially by the 12 Complainants against the Opposite Party, M/s. JKG Constructions Pvt. Ltd. (hereinafter to be referred to as ‘the Developer’) seeking possession of the booked Residential Units along with delayed compensation or in the alternative refund of amount paid by them along with interest as the Opposite Party Developer has failed to deliver the possession of the Residential Units to the Complainants within the stipulated period. 

2.       The brief facts of the case as narrated in the Complaint are that in response to the Applications invited by the Opposite Party Developer for allotment of Residential Units/Flats in their upcoming Project, namely, “JKG Palm Court” located at Sector 16-C, Greater Noida, UP (hereinafter to be referred to as ‘the Project’), the Complainants booked Residential Units in the Project and executed respective Flat Buyer’s Agreement (hereinafter to be referred to as ‘the Agreement’) on various dates between 2012 to 2014. It is stated that the Complainants were assured by the Developer that possession of the booked Units would be handed over by December, 2015. It is further asserted that most of the Complainants after obtaining home loans from the various Financial Institutions at higher rate of interest, had paid more than 90% of the total sale consideration to the Opposite Party Developer as per their demands, however, the Opposite Party Developer has completely failed to complete the Project in time and hand over the possession of the allotted Residential Units to them as promised. On enquiry with regard to exact date of completion of the Project and handing over the possession of the Units to the Complainants, every time the Opposite Party Developer had given false assurance that the possession of the Units, complete in all respect, would be given to the Complainants very soon as the construction work at the site is in full swing. However on visiting the site, the Complainants were shocked and surprised to see that there was no construction activity going on and there was a scanty chance for completion of the Project even in the next ten years. It is further alleged by the Complainants that the Opposite Party Developer has made substantial changes in the Project Area, Common Facilities and Layouts without any intimation or their consent.

3.       It is also averred in the Complaint that various Clauses of the Agreement are arbitrary, one-sided, unfair, unreasonable and totally in favour of the Developer. The Complainants were made to sign on the dotted lines of the Agreement and there is no parity of rights between that of the Opposite Party Developer and the Complainants. The Complainants are liable to pay interest     @ 18% p. a. for default in making payment of any of the instalments however, in the event of delay on the part of the Opposite Party Developer in handing over the possession of Units, they are liable to pay paltry compensation at the rate of ₹3/- per sq. ft. per month only for the delayed period. It is further stated that illegal demands with regard to IFMS, Lease Rental Charges, Fire Fighting Charges, External Electrification Charges etc. have been made by the Opposite Party Developer.

4.       Since, the Opposite Party Developer failed to keep its promise to hand over the possession within the assured time, the Complainants having no recourse left with them, served Legal Notice dated 02.11.2017 seeking refund of amount paid by them with interest and compensation, however their requests have been left to no avail. Consequently, the Complainants have filed the present Complaint alleging deficiency in service and Unfair Trade Practice on the part of the Opposite Party Developer and seeking possession along with compensation @ ₹15/- per sq. ft. and compensation of ₹20 lacs each for all the allottees of the Project, or in the alternative, the Complainants have sought refund of the entire amount paid by them along with interest @18% p.a.

5.       An Application No. 580 of 2018 has also been preferred by the Complainants praying to treat the present Complaint filed under Section 12(1) (c) of Act on behalf of all the Allottees of the Project. The said Application was allowed vide Order dated 01.10.2019 and a notice under Section  13 (6) of the Act was directed to be published in the Newspaper.  Consequently, several impleadment Applications, seeking impleadment of the similarly situated Buyers/ Consumers as Co-Complainants, were filed and the same were allowed.

6.       Upon notice, the Complaint has been resisted by the Opposite Party Developer by filing their Written Statement and raising, inter-alia, the preliminary issues that; the Complainants have no locus standi to file the present Complaint as there is no deficiency in service or breach of terms and conditions of the Agreement by the Developer, Complaint has been filed only with the intention to harass the Opposite Party Developer, most of the Complainants had already obtained the possession.

7.       On merits, it is contended that the Project was to be developed in two different phases wherein Phase I comprises of 532 Flats and Phase II has 348 Flats. The construction of the Project has started in the year 2010 itself, however, delay had occurred in completion of the Project due to continuous hindrance by different unavoidable circumstances such as farmer’s protest in Noida/Greater Noida for enhanced compensation which was finally resolved by the Hon’ble High Court of Allahabad in Writ Petition (Civil) No. 37443 of 2011; there was ban on construction activities by the Noida Authority from 25.10.2011 to 27.08.2012 due to farmer’s agitation; digging of entire Approach Road to the Project by the Greater Noida Authority in December 2016 for laying sewer pipelines and finally the Approach Road was re-constructed by the Developer in January 2018; Orders passed by National Green Tribunal imposing ban on construction work, shortage of raw material and labour etc. It is also contended that as per Clause 10 of the Agreement the ‘force majeure conditions’ are applicable as delay is on account of reasons beyond the control of the Developer. Further, it is pleaded by the Developer that the time is not the essence of the Contract; construction work of Phase-I has been completed within deadline provided by RERA and possession was also offered after receiving the Completion Certificate to all the Flat Buyers of Phase I on 05.07.2019, number of families are residing in Phase I, however, the Complainants are not coming forward to take possession despite offer of possession by the Developer; the Opposite Party Developer has never deviated from the terms of the Agreement and in accordance with Clauses 12 and 15 of the Agreement, the booking of Apartment can be cancelled if possession is not taken by the Flat Buyers within 2 months from the date of expiry of fit out period. In terms of Clauses 18 to 27, the Complainants are liable to pay House Tax, Water Tax, Sewerage Tax, Electricity Charges, lease rent, IFMS, Club Membership etc.  It is finally contended that the Complainants are not entitled to any relief and Complaint is liable to be dismissed with exemplary costs.

8.       I have heard the learned Counsel for the Parties at length and also perused the material available on record, evidence adduced by the respective parties and the Written Submissions filed by the Parties.  

9.       It is pertinent to mention here that the Opposite Party Developer has filed an Application being IA/4079/2022 seeking production of original documents filed by the Complainants alleging fraud and fabrication. I have heard the learned Counsel for the Parties and perused the averments made in the Application, Reply and Rejoinder filed by the respective Parties. It is seen from the record that the Complainants have already filed the true copies of the documents along with the Complaint and Evidence. The Opposite Party Developer has not questioned the authenticity of these documents in the Written Statement as also in the Evidence even though these documents were in possession of the Opposite Party Developer as they were  supplied to it along with the copy of the Complaint. The Complainants in the reply of the Application has submitted that all the original documents have been deposited with the financial institutions for obtaining the house loan. These documents were issued by the Opposite Party Developer itself and if there is any fabrication or fraud in the documents as alleged, the Opposite Party Developer should have filed the original or true copy of the same along with their Evidence or Written Version to substantiate its plea. Therefore, this Application filed at this belated stage of Final Hearing of the matter cannot be entertained.  For the foregoing discussion the Application filed by the Opposite Party Developer alleging fraud and fabrication is rejected.

10.     Mr. Sushil Kaushik, learned Counsel appearing on behalf of the Complainants has vehemently argued that as  promised by the Opposite Party Developer the possession of booked Residential Units, complete in all respect, was supposed to be handed over by June, 2015 and further as per Certificate dated 19.09.2015, the Opposite Party Developer had themselves promised to handover possession by 31.12.2015. He strenuously urged that the Opposite Party Developer has obtained conditional Occupancy Certificate on 27.06.2019 wherein it was stated that the building was not in conformity with the requirements of Greater Noida Authority Regulations and another 18 months were given to the Opposite Party Developer to remove all the defects mentioned therein. Mr. Kaushik further submitted that the conditions mentioned in the Occupancy Certificate have still not been complied with by the Developer and the veracity of the conditional Occupancy Certificate issued by the Competent Authority is under a big question mark. It is scrupulously submitted by him that though the Opposite Party Developer has issued letter of offer of possession to all the Complainants but possession of the allotted Residential Units was not allowed to be taken by the Opposite Party Developer unless the present Complaint is withdrawn by the Complainants. That the talks for amicable settlement could not be materialised since the Opposite Party Developer was never intended to settle the dispute.    

11.     Per contra, Mr. Sanjay Jain, learned Counsel appearing on behalf of the Opposite Party Developer strenuously argued that since the delay in completion of the Project was due to several ‘force majeure conditions’,  the Opposite Party Developer is not liable to pay any compensation to the Complainants. The Opposite Party Developer is willing to hand over the possession, subject to payment of the balance consideration by the Complainants and completion of all the formalities.   

12.     From the perusal of the Agreement, I find force in the contention of the learned Counsel for the Complainants that many of the clauses of Agreement are arbitrary, unreasonable, and one-sided in favour of the Opposite Party  Developer as admittedly in the Agreement the date of possession has not been mentioned and further the paltry compensation @ ₹3 per sq. ft. per month for the period of delay is provided as against the Opposite Party Developer is obliged to charge interest @ 18% p.a. on any delayed payments made by the Complainants/ Allottees. This meager sum of ₹3/- per sq. ft. comes to approximately 1% rate of interest per annum, whereas the Developer is charging interest @ 18% p.a. on any delayed payments. At this juncture, I find it a fit case to place reliance on the principle laid down by the Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, II (2009) CPJ 34 (SC), wherein the Hon’ble Apex Court had examined similar Clauses present in the Builder Buyer Agreements and has observed that such one-sided Clauses amount to unfair trade practice. A similar view has been taken by the Hon’ble Supreme Court in Wing Commander Arifur Rahman Khan and Aleya Sultana and Others vs DLF Southern Homes Pvt Ltd and Others [Civil Appeal No 6239/2019 decided on 24 August 2020],  and Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna & Ors., 2019 3 SCC 241, wherein it has been held that the incorporation of such one-sided and unreasonable clauses in the Agreement constitutes unfair trade practice on the part of the Builder/ Developer. Keeping in view the facts and circumstances of the case and following the above referred rulings of the Hon’ble Apex Court, I have no hesitation to hold that many of the Clauses of the Agreement falls within the definition of unfair trade practice as defined under Section 2 (r) of the Act.

13.     The main defense of the Opposite Party Developer with regard to the delay in construction and handing over of possession is twofold. First is that the delay, if any, in construction and handing over of possession was due to reasons beyond its control and are attributable to the ‘force majeure conditions’ and the second is that the Opposite Party Developer in Clause 10 of the Agreement has agreed that the construction of the complex is likely to be completed as early as possible and no specific date for completion of construction and delivery of possession has been committed in the Agreement and the time is not the essence of the Contract and the Opposite Party Developer has already offered possession in the year 2019 and therefore there is no delay.

14.     The contention of the learned Counsel for the Opposite Party Developer that the  delay is attributable to ‘force majeure conditions’, and therefore no deficiency of service can be attributed to them is totally unsustainable as the grounds mentioned for delay, like, digging of approach road by the Greater Noida Authority, Orders passed by the National Green Tribunal (NGT) banning the construction in the NCR region, shortage of labour and raw material has already been dealt with by this Commission in catena of decisions wherein it has been held that these reasons are not attributable to ‘force majeure conditions’. As regards the ban on construction imposed by the Greater Noida Authority in terms of the Order of the Hon’ble Allahabad High Court is concerned, the same cannot be said to be a ‘force majeure conditions’ as the said ban was lifted  on 27.08.2012, as stated by the Opposite Party Developer itself in Para 9 of the Written Version and it is pertinent to mention here that thereafter the Opposite Party Developer has not  given any substantial reason for delay after 27.08.2012, when the ban on construction was lifted. Therefore, the reasons given by the  Opposite Party Developer for delay in completion of construction and handing over of possession, viewed from any angle, cannot be said to be a ‘force majeure conditions’  as there is no material on record to establish that the aforenoted reasons were beyond its control.

15.     The second contention of the Opposite Party  Developer that it had not committed any specific date for possession and the time is not the essence of the contract and therefore there is no delay in handing over of possession. At this juncture, I find it a fit case to place reliance on the ruling of the Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, II (2019) CPJ 29 (SC), wherein the Hon’ble Apex Court has observed that the Complainant cannot be made to wait indefinitely for the possession of the booked unit. In the instant case also  the Complainants cannot be made to wait indefinitely for possession, as the Agreement was entered into between the Complainants and the Opposite Parties as early as in 2012 and after more than seven years the Opposite Party Developer obtained the Occupancy Certificate in the year 2019. The period of more than seven years for delivery of possession from the date of booking cannot be said to be a reasonable period for delivery of possession by any stretch of imagination. It is pertinent to mention here that on the one hand the Opposite Party is claiming that the time is not the essence of the contract with regard to the handing over of possession and on the other hand in Sub-clause c of Clause 2 of the Agreement it is provided that the timely payment is the essence of the allotment therefore the contention of the Opposite Party Developer that the time is not the essence of the Contract cannot be sustained. Further, the Opposite Party Developer has issued a Certificate dated 19.09.2015, mentioning the date of completion of project as 31.12.2015 Therefore, the contention of the Opposite Party Developer that there is no delay in handing over of possession does not hold water. As a period of more than 7 years has lapsed from the date of booking till the date of Occupation Certificate, I am of the considered opinion that the Complainants are entitled for reasonable compensation in the form of interest for the delayed period of possession from 01.01.2016 till the offer of possession was made.

16.     The next question which arises for consideration is the rate of interest that is to be paid to the Complainants for the delayed period. Having regard to the fact that the Hon’ble Supreme Court has been awarding interest @ 9% p.a. and keeping in view the Principles laid down by the Hon’ble Supreme Court in catena of judgments, I am of the considered opinion that interest @ 9% p.a. for the delay period, would meet the ends of justice. This interest @ 9% p.a. is being awarded as damages and compensation, considering the fact that many of the Complainants had obtained home loans from the financial institutions at the floating interest rates and also having regard to the mental agony suffered by the Complainants as no additional amounts are being awarded under the head of ‘Compensation’ in view of the judgment of the Hon’ble Supreme Court in DLF Homes Panchkula Pvt. Ltd Vs. D.S. Dhanda, II (2019) CPJ 117 (SC), wherein it is observed that when interest is awarded by way of damages awarding additional compensation is unjustified.

17.     In the result, the Complaint is allowed in part and the Opposite Party Developer is directed to handover the possession of the units, complete in all respect and pay the delayed compensation in the form of simple interest @ 9% per annum on the amount deposited by the Complainants/ Allottees, from 01.01.2016 till the date, the offer of possession was made to the Complainants/ Allottees. However, the Complainants/ Allottees shall pay the balance consideration, if any, at the time of possession. No Order as to costs.

18.     Time for compliance of the Order is two months from today, failing which the compensation amount calculated in terms of the Paragraph 17  will attract simple interest @ 12 % per annum from the date of Order till its realization.

19.     It is made clear that this Order is only restricted for the benefit of the Complainants/ Allottees of the project, who have not approached any other Authority/ Forum for the reliefs claimed and granted in the present Complaint.  

20.     The pending Applications if any, also stands disposed of.