PER MR SUBHASH CHANDRA, MEMBER

1.     This is a complaint u/s 13 (3B) of the Consumer Protection Act, 1986 (in short, the Act) on the grounds of deficiency in service and unfair trade practice alleging inordinate delay in delivery of possession of Flat No. 1002, 10^th floor, Tower No. 8, Emerald Isle in the project Emerald Isle situated in Village Tungwa, Powai Estate, Mumbai, a project developed and executed by the Opposite Party. 

2.     In brief, the facts of the case are that the Complainants had booked an apartment in the said project of the Opposite Party admeasuring 1403.19 sq.ft. alongwith car parking space  on 05.12.2014 for a total sale consideration of Rs.4,13,77,000/-. An Apartment Buyers’ Agreement was registered on 20.01.2016 and as per Clause 23, the Opposite Party had agreed to hand over possession of the flat on or before 31.03.2017 with a grace period of six months. The complainants have averred that while they have paid an amount of Rs.3,26,00,000/- as per the demands made by the Opposite Party under the Agreement as on 15.04.2016, possession of an apartment has not been offered yet.  The complainants sent letters dated 12.06.2018 and 31.07.2018 seeking possession of the flat and since the same was not complied with by the Opposite Party, the present complaint was filed in November, 2018.  It is admitted that the   Opposite Party offered possession on 26.12.2018 after obtaining a partial occupation certificate and the complainants accepted possession on 11.02.2019 without prejudice by paying the balance consideration. The Complainants’ prayer in the complaint is as under:-

“a. this Hon’ble Commission be pleased to hold and declare that the opposite parties are guilty of deficiency in service and unfair trade practice for not handing over possession of flat in question within the stipulated period mentioned in the agreement dated 5.12.2014 and be further direct to opposite parties to rectify the defects in its services and to direct the opposite parties to rectify the defects in its services and to direct to opposite parties to rectify the defects in its services and to direct the opposite parties to complete the construction of tower no. 8  and handover possession of flat no. 1002, on the 10^th Floor of Tower no. 8 Emerald isles admeasuring 1403.19 Sq. Ft., together with 1 tandem and 1 car parking space to the complainants under agreements dated 5.12.2014 within 3 months from filing of the complaint or any other reasonable time this Hon’ble Commission may deem fit and proper by accepting the balance consideration under the said agreement as per payment schedule prescribed under the said agreement by obtaining occupation certificate/ part occupation certificate from the concerned authority

b.   Pending the hearing and final disposal of the above complaint, this Hon’ble Commission be pleased to invoke section 13(3B) of Consumer Protection Act and restrained the opposite party from terminating the agreement dated 5^th December 2014 and or creating any kind of third party interest in respect of flat being flat no. 1002, on the 10^th Floor of Tower no. 8 Emerald isles admeasuring 1403.19 Sq.Ft.

c.  That this Hon’ble Commission be pleased to award interest @12 p.a. on Rs.3,26,87,988/- from 1.4.2015 till filing of the complaint amounting to Rs.62,10,717/- and be further pleased to award interest @12% p.a. from the date of complaint till the realization of complainant’s claim;

d.   this Hon’ble Commission be further pleased to direct the opposite party to reimburse the compensation paid by the complainants, under leave and license agreement at Annexure E and F amounting to Rs.11,50,000/- till filing of the complaint and be further pleased to direct the opposite parties to pay compensation @Rs.60,000/- pm from the date of the complaint till realization of the complainants’ claim

e.  That this Hon’ble Commission be pleased to direct the opposite parties to pay an amount of Rs.5,00,000/- towards cost of the complaint.

f.       Interim and ad interim reliefs in terms of prayer clause (b), (c) and (d);

g.  Such other and further reliefs as this Hon’ble Commission may deem fit and proper.”

3.     In view of the possession having been accepted in February 2019, the Complainants have limited their prayer to seeking compensation for delay in delivery of possession from 01.04.2017 till 11.02.2019 on the amount of Rs.3,26,00,000/- with interest @12% p.a. alongwith compensation of Rs.5,00,000/- for mental agony, reimbursement of Rs.13,90,000/- for rent on lease of apartment for residential purpose from April 2017 till February 2019 (amounting to Rs.11,50,000/-) and compensation for the months from November 2018 until February 2019 amounting to Rs.2,40,000/-.

4.     The Opposite Party has contested the claim of compensation for the delay in handing over possession of the said flat on the grounds of force majeure and argued that as per clause 23.1 of the agreement the delay in completion of the project was covered as a force majeure event.  The Opposite Party has averred that after obtaining all the requisite permissions including environmental clearance on 06.09.2014, the project had been commenced. A revised environmental permission was obtained on 25.08.2017 even though it was applied on 15.02.2016.  This fact had been conveyed to the complainants on 13.05.2017 and the Complainants did not raise any objection till 12.06.2018.  There were also delays on account of stop work notice dated 21.06.2017 issued by MCGM on the basis of false complaints which was withdrawn on 29.07.2017 after the Opposite Party approached the High Court of Bombay.  The Opposite Party has also contended that as per the agreement, it was entitled to make variations/alterations, load extra FSI on the project (Clause 11 & 12); seek additional time for handing over possession on grounds of force majeure (clause 23.1) and refund on demand the payment made with 9% interest per annum in case of delay in handing over possession (Clause 23.3).  However, it is contended that the complaint is not maintainable as there was no deficiency in services rendered and there is no provision in the agreement to claim both possession as well as interest since clause 23.3 only entitles the complainants to terminate the contract in case of delay and seek refund of the amount paid with interest @9% per annum.  It was also contended that claim of other compensations sought for mental torture and rent are not valid since the Opposite Party had been kept duly informed .  

5.     We have heard the learned Counsels and perused the records carefully.  During their arguments the learned counsel for the complainants relied upon this Commissions orders in Nagesh Maruti Utekar Vs. Sunsone Developers Joint Venture in ÇC No.12/2017 decided on 04.05.2022, wherein it was held that Complainants are entitled for compensation for delay in delivery of the possession of the flat as per the principles laid down by the Hon’ble Supreme Court in Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna & Ors., I (2021)CPJ 60 (SC).  It has also been held that the Complainants cannot be made bound to the terms of an Agreement which are unreasonable and unfair in the light of the judgment of the Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan-, II (2019) CPJ 34 (SC).  Accordingly, compensation on the amount deposited till the date of offer of possession had been ordered. 

6.     On his part the Opposite Party has relied upon the judgment of the Hon’ble Supreme Court in CCI Projects Pvt. Ltd. Vs. V Rajendra Jogjeevandas Thakkar, (2019) 11 Supreme Court Cases 665, wherein the Hon’ble Apex Court had held that the Appellant was justified in seeking extension in the delivery of the apartment in view of the mandatory requirements to re-submit the plans and get a fresh NOC in respect of fire safety permission.  In the instant case, it is contended by the Opposite Party that the requirement of the revised environmental clearance was, therefore, covered and should be permitted.  This argument has, however, been contested by the learned Counsel for the Complainants on the ground that CCI Projects Pvt. Ltd. Vs. V Rajendra Jogjeevandas Thakkar (supra) was distinguishable from the instant case as the Opposite Party had sought a revised environmental clearance on 25.08.2017 on the grounds of seeking additional FSI for the project Emerald Isle. This was in addition to the existing environmental clearance which was already available as admitted by the Opposite Party and was, therefore, not a mandatory clearance for the project under extension.

7.     In view of the admitted fact of delay and of the complainants having accepted possession on payment of statutory and other dues, the only issue before us is the issue of compensation, if any, for the delay in offering possession.  It is seen that the project had been commenced on the basis of all necessary statutory permissions /sanctions and the Opposite Party had continued to accept payments in instalments from the Complainants since December 2014 till April 2016. It is apparent that the Project had an approved scheme under execution.  The agreement itself makes a specific mention of a date of completion along with an extension period of six months for unforeseen circumstances. It was for the Opposite Party to have planned to apply in time for any other mandatory approvals to ensure adherence to its own time lines. In any event, the application for additional FSI would not constitute an unforeseen event or a force majeure event as claimed by the Opposite Party.  There is merit in the Complainants relying on Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan (supra)  that the terms of an agreement cannot be binding upon the complainants being unreasonable and unfair since incorporation of such one sided clauses in an agreement constitutes an unfair trade practice as per section 2(r) of the Act.  The reliance of the Opposite Party on the judgment of Hon’ble Apex Court CCI Projects Pvt. Ltd. Vs. VRajendra Jogjeevandas Thakkar (supra) is erroneous since the facts of that case are clearly distinguishable in that even though environmental clearance is a mandatory pre-condition, the pendency of such clearance for additional FSI will not constitute a mandatory pre-condition, since environmental clearance is already available for the existing project. Coming to the reliefs sought by the complainants, it is seen that compensation has been sought under various heads. It would be pertinent to rely on DLF Homes Panchkula Private Limited Vs. D.S. Dhandha and Ors., (2020) 16 SCC 318, wherein the Hon’ble Supreme Court has held that when interest is awarded by way of damages, awarding additional compensation is unjustified.

8.     For the foregoing reasons, we allow the complaint with the following directions:-

1. The Opposite Party shall pay compensation for the delay in handing over possession of the flat by way of interest @9% simple interest on the amount of Rs.3,26,87,988/- deposited with the Opposite Party from the committed date of possession (01.04.2017) till the date of offer of possession, i.e., 26.12.2018;

2. The above order be complied within eight weeks from the date of receipt of certified copy of this order, failing which, penal interest @12% simple interest shall be paid.

9.     The complaint is accordingly disposed of.