ORDER

(Per: Mrs. Veena Sharma, Member):

The complainants have filed this consumer complaint before this Commission under Section 12 read with Section 18 of the Consumer Protection Act, 1986, against the opposite parties.

2.       Briefly stated the facts of the consumer complaint are that in the year 2007, as an introductory offer of the GTM Forest & Hills, Dehradun launched by the above opposite parties (opposite party Nos. 1, 2, & 3).  The possession period was given two years, i.e. 24 months.  One, two bedroom flat was booked in the aforesaid project on 03.01.2008 by the complainants, Smt. Amita Joshi & Sh. Pradeep Joshi.  The booking amount of two bedroom flat amounting to Rs. 1,38,000/- was paid by the complainant vide demand draft of HDFC Bank bearing No. 490058 dated 03.01.2008 payable at New Delhi.  The complainants opted for construction linked payment plan. The opposite parties assured the complainants vide letter dated 27.10.2008 that they (opposite parties) would be in a position to offer the possession of more than 100 flats by the end of May, 2009.  After 10 months from the date of booking of the flat, the opposite parties demanded the payment of Rs. 11,76,500/- through their letter dated 14.11.2008 against the booked flat No. 103 (FH-31) I^st floor from the complainants.  The complainants immediately in response to the said demand vide application dated 29.12.2008 applied for Home Loan from SBI, RACPC, Dehradun and the term loan of Rs. 20.00 lacs was sanctioned to them on 07.01.2009 for the booked flat No. FH-31, GTM Forest & Hills, Dehradun.  The complainants by cheque No. 024453 dated 19.02.2009 & cheque No. 024454 dated 23.02.2009 of SBI, High Court, Nainital paid Rs. 1,70,000/- &             Rs. 1,00,000/- respectively as their contribution and the bank accordingly disbursed Rs. 9,00,000/- in the month of March, 2009.  By the month of March, 2009 the complainants had paid to the opposite parties Rs. 13,08,000/- (Rs. 1,38,000/- +1,70,000/- +1,00,000/- + 9,00,000/-).  Inspite of receiving substantial amount of Rs. 13,08,000/-, the opposite parties had not started excavation work of two bedroom flats.  When the complainants raised objections in June, 2009, the opposite parties were informed that no time limit can be given for the start of two bedroom flats, i.e. the booked flat and the same will be contructed after completion of three bedroom flats.  The opposite parties futher advised the complainants that since the work of three bedroom flats is in progress, the complainants may upgrade the booked flat.  Vide letter dated 08.01.2010, it was informed by the opposite parties that the possession of six towers (72 flats) would be offered within next four months, i.e. May, 2010.  The complainants paid Rs. 1,00,000/- vide multicity cheque No. 024458 dated 23.04.2010 of SBI, High Court, Nainital.  By April, 2010 the complainants had paid Rs. 29,48,000/-.  Thereafter the complainants paid Rs. 1,00,000/- vide multicity cheque No. 024460 dated 14.12.2010 of SBI High Court, Nainital.  By December, 2010, the complainants had paid Rs. 30,48,000/-.   Thereafter the complainants paid Rs. 1,00,000/- vide multicity cheque No. 024461 dated 09.04.2011 of SBI High Court, Nainital.  By April, 2011 the complainants had paid Rs. 31,48,000/- against the committed price of Rs. 37,92,500/-. The opposite parties unlawful gain demanded              Rs. 2,10,000/- as E.E.C. (External Electrical Charges) from the complainants in addition to the price fixed between the parties.  The complainants are not liable to pay the aforesaid demand in addition to the price fixed.  The complainants being unsatisfied by the actual progress of work at the site and misleading progress of the work given by the opposite parties from time to time.  The complainants objected the External Electrical Charges and misleading progress given by the opposite parties vide letter dated 17.11.2011 even plaster (internal as well as external) has not been completed, landscaping and other developments like construction of roads, works of the lift, external electrification, installation of street lights, club house, swimming pool, sewage work, laying of water supply has not yet started.  The opposite parties vide letter dated 18.11.2011 informed the complainants that lift will be installed by April, 2012, fire fighting work will be completed by March, 2012 and Sewer Treatment Plant work started. The complainants in response paid Rs. 2,00,000/- vide demand draft No. 0573041 of HDFC Bank, New Delhi dated 26.12.2011.  By December, 2011 the complainants had paid Rs. 33,48,000/- against the committed price of Rs. 37,92,500/-.  Thereafter the complainants paid Rs. 1,00,000/- by multicity cheque No. 024464 dated 20.03.2012 of SBI High Court, Nainital. Thus, by April, 2012 the complainants had paid Rs. 34,48,000/- against the committed price.  The opposite parties vide letter dated 27.05.2012 requested for clearing dues was made for issuing offer of possession.  The complainants replied by letter dated 09.06.2012 stating therein that flat is not at all complete for delivery of possession giving details of the work to be completed in the flat as well as in the housing project itself. The opposite parties replied the said letter vide letter dated 21.06.2012 admitting that water and electiricty is accessible at the site, it is just the matter to install the individual meters for the flat.  Fitting and fixtures will be installed within 90 days once the offer of possession is accepted as there is risk to keep the material open at the site because the chances of burglary is possible.  Fitting of sanitary items will be placed within 90 days from the date of possession is accepted. The complainants thereafter paid Rs. 1,00,000/- vide multicity cheque No. 024465 dated 09.07.2012 of SBI High Court, Nainital.  Thus, by July, 2012, the complainants had paid Rs. 35,48,000/- against the committed price.  Vide letter dated 27.09.2012, the opposite parties demanded      Rs. 55,000/- towards Fire Fighting Charges & Sewer Treatment Plant. Filling charges Rs. 20,000/-; External Development Charges (E.D.C.) Rs. 37,118/- and service tax from the complainants.  The company by demanding the aforesaid charges has enhanced the committed price of Rs. 37,92,500/- to the disadvantage of the complainants unilaterally.  The complainants had not given any undertaking to pay the aforesaid charges and are liable to pay service tax only, which has already been paid as per demand.  The complainants, however, paid Rs. 1,00,000/- through cheque No. 024467 dated 18.10.2012 of SBI High Court, Nainital. Thus, by October, 2012 the complainants had paid                  Rs. 36,48,000/-.  Thereafter in March, 2013 the complainants had paid Rs. 1,00,000/- vide cheque No. 024469 dated 09.03.2013 of SBI High Court, Nainital and in April, 2013 Rs. 2,00,000/- through cheque dated 20.04.2013 and 22.04.2013 of SBI, Pantnagar.  Till the end of April, 2013 the complainants had paid Rs. 39,48,000/- against the committed price of Rs. 37,92,500/-, which is Rs. 1,55,500/- more than the committed price of the flat.  Even after one year in spite of making excess payment over and above the committed price the works to be completed stated in the letter dated 09.06.2012 of the complainants in response to the letter dated 27.05.2012 of the opposite party company regarding offer of possession has not been completed till date.  In the flat in question fittin of window panels, electricity, sanitary fitting, wter supply fitting, wood works in bedrooms and workof modular kitchen has to be completed.  As such the flat is not in habitable condition.  After a delay of more than five long years between the booking and delivery of possession of flat in habitable and fit conditioin, the opposite party vide final demand and possession note dated 19.07.2013 demanded Rs. 75,000/- towards documents charges, Rs. 6,18,023/- late payment interest and Rs. 1,50,000/- for escalation charges.  Due to incomplete flat, the complainant vide letter dated 29.07.2013 replied assigning reasons for not taking possession and they are not liable to pay the unlawful demands.  By the said letter the complainants also requested the opposite party to hand over the possession of the flat in question in livable/habitable and fit condition and to provide the completion certificate from the competent authority, i.e. MDDA, so that the flat could be registered in the name of the complainants.  The complainant sent a legal notice dated 02.09.2013 to the opposite party to hand over the possession of the flat No. FH-4(103) in habitable condition within 15 days of the receipt of the notice.  The opposite parties are not completing the remaining work of the flat and responding to the legal notice vide reply dated 12.09.2013 insisting for payment excess of additional payment of Rs. 11,65,141/- over and above the committed price and taking possession of incomplete flat within 15 days or else the company will cancel the allotted flat.  When possession of flat is not delivered within stipulated period, delay so caused is denial of service for which the opposite party company is liable to pay the compensation for the delay in form of interest to the complainants.  The complainants are likely to end up paying more loan EMI to the bank without being able to stay in the apartment brought.  As per the term and condition No. 5 of booking, prices are escalation free.  The said condition cannot be changed unilaterally to the disadvantage of the complainants by the opposite parties.  The complainants are disputing demand of Rs. 2,10,000/- towards External Electrical Charges, Rs. 55,000/- towards Fire Fighting Charges & Sewer Treatment Plant, Rs. 20,000/- towards Filling charges, Rs. 37,118/- towards External Development Charges, Rs. 75,000/- towards documents charges, Rs. 6,18,023/- towards late payment interest and Rs. 1,50,000/- towards Escalation charges, which are wholly unacceptable and amounts to unfair trade practice.  The inordinate delay in delivery of possession of flat in livable and fit condition amounts to negligence and deficiency in rendering service.  The complainants are consumers of the opposite parties.  The cause of action arose to the complainants against the opposite parties on 27.05.2012.  The complainants, in view of the facts and circumstances, entitled to the following reliefs:-

i) direct the oppsotie party to handover the possession of the flat No. FH-4(103) in habitable/livable condition complete in all respect at the committed price of Rs. 37,92,500/-; 

ii) direct the opposite party to pay a sum of Rs. 7,500/- per month to the complainants towards rental charges from 01.10.2011;

iii) direct the opposite party to pay interest @ 18% per annum compounded quarterly on Rs. 39,48,000/-;

iv) direct the opposite party to pay a sum of Rs. 5,00,000/- towards damages/compensation for the mental torture;

v) direct the opposite party to pay a sum of Rs. 50,000/- towards the cost of litigation;

vi) Any other orders as may deem fit and appropriate may also kindly be passed.

3.    The opposite parties have filed the written statement and has submitted that the complainants had shown their interest to upgradation of flat from Two Bedroom + study to Three Bedroom + study, i.e. Flat No. 103, First Floor, FH-04 vide letter dated 14.07.2009.  The complainants’ request of upgrade was accepted by opposite parties on 17.07.2009 and the complainants entered into a Buyer Seller Agreement with the opposite parties in respect of the Flat No. 103, First Floor, Tower No. FH-04 at GTM Forest & Hills, Dehradun 29.09.2009.  As per the said agreement, the complainants opted the construction linked plan for the payments of the said flat.  Whereas, the complainants have to pay the various “Summary of Dues” as mentioned on the page 10 of the said agreement.  In the summary of dues, it is specifically and categorically cleared that the complainants have to pay other charges other than the basis sale price of the said flat as and when demanded by the opposite parties without any delay. The opposite parties have to remind complainants to pay the amounts as per the plan. The complainants had opted construction plan, but they never made the payments to the opposite parties timely, whereas the payment is the essence of time of the said agreement.  The complainants always made the payments only when the opposite parties intimate them that opposite parties shall take stringent action.  The relevant terms of the said agreement for ready reference are reproduced as under:-

Clause-8 – Time of punctual payment of installments as stated in Schedule I & II of payments and applicable stamp duty, registration fee and other charges payable under the agreement is the essence of this contract, failing to fulfill the condition, the entire amount of earnest money deposited by him shall be liable to forfeiture and the agreement of sale shall stand cancelled at the discretion of the developers and the allottee shall be left with no lien on the said premises.  The developers shall thereafter be free to deal with the said premises in any manner.  In exceptional circumstances, the developers may at its sole discretion condone the delay in payments by charging a minimum interest @ 24% per annum of the amount outstanding. 

Clause-12 – The apartment allottee has accepted the plans, designs specification shown to him which are tentative and are kept at the developer’s office and agrees that modifications therein which includes, but no limited increase in height FAR and ground coverage as it.  The allottee hereby gives his consent to such variation/addition/alteration/ deletion and modification. 

Clause-15 – The possession of the said is likely to be delivered by the developers to the apartment allottee in any case 30 months from the date of this agreement subject to the force majeure circumstances and on receipt of all payments punctually as per agreed terms and on receipt of complete payment of the basic sale price and other charges due. 

Clause-35 – The apartment allottee shall pay total basic sale price and other charges towards the premises as per the payment plan agreed to between the parties.  Demand letters, if any, may be sent only as a matter of courtesy.  Apartment allottee agrees and undertake that the basic sale price is not escalation free.  Further apartment allottee agrees and undertake that in case of variation of basic sale price due to escalation, they shall pay to the company the difference amount without any protest/objection.  After the perusal of the above mentioned clauses, it has been cleared that whatsoever the demand raised by the opposite parties, is as per the agreement executed with complainants. 

       It is submitted that the amount complainants asserted as committed price of    Rs. 37,92,500/- is not correct as per the terms and conditions of the agreement executed between the complainants and opposite parties on 29.09.2009.  In reply to it, it is vital to assert herein that the complainants have to pay other charges as and when demanded by the opposite parties other than the basic sale price.  It is specifically denied that the opposite parties had given to the complainants misleading progress of the work, as alleged.  The complainants are raising wrong and misleading facts without any causes and with intention to obtain time on account of the fabricated grounds.  They further submitted that the amount complainants asserted as committed price of Rs. 37,92,500/- is not correct as per the terms and conditions of the agreement.  The opposite parties specifically denied that the complainants had not given any undertaking to pay the charges as alleged in the complaint or that liable to pay service tax.  It is vital to assert herein that the complainants have to pay other charges as and when demanded by the opposite parties other than the basic sale price, which are specifically categorically mentioned in the terms and conditions of the agreement.  It is submitted that due to non-payment of dues and as per the various clauses of the agreement possession of the said flat is not given.  It is specifically denied that the opposite parties have failed to deliver possession of the flat in habitable and fit condition within stipulated period as there being an inordinate delay of more than five long years between the booking and delivery of the possession of flat in habitable and fit condition had defaulted or that to cover such default with ulterior motive offered possession by issuing final demand and possession note dated 19.07.2013 as alleged.  Documentation and incidental charges: we would like to update you that these are the miscellaneous charges on account of documentation and the same has been detailed by clause No. 31 of Buyer-Seller agreement. “Apartment Allottee shall pay, as and when demanded by the Developer, Stamp duty, registration charges and other incidental and legal charges”. In regards to late payment interest, the said charges applicable as per clause No. 8 of Buyer-Seller agreement wherein it has been specifically mentioned.  The opposite parties had also given the calculation sheet of the late payment interest to complainants as requested by them.  In regards to the Escalation Charges: the charges on account of the escalation charges are the cost that has been occurred as extra on account of Steel, Cement and other construction relating material and the same is payable as per clause No. 35 of Buyer-Seller agreement. On various occasions, the opposite parties again requested the complainants to clear your dues or else opposite parties will further charge late payment interest and maintenance charges with immediate effect.  Instead of paying the outstanding amount complainants again and again approaching with malafide intention not to pay legal outstanding.  It is submitted in the written statement that without making the payment of the said flat opposite parties never give you the possession and the reply given to your letter dated 29.07.2013 was replied by vide letter dated 30.08.2013 and the contents of the same shall be read as part and parcel of the para under reply and the same are not being repeated herein for the sake of brevity.  It is denied by the opposite parties that they are not completing the remaining work of the flat or that insisting for additional payment of Rs. 11,65,141/- over and above the committed price of Rs. 37,92,500/-, which wholly unacceptable or that amounts to unfair trade practice of building in hidden cost over and above the initial fixed price by the opposite parties.  The amount complainants asserted as committed/fixed price of Rs. 37,92,500/- is not correct, as per the terms and conditions of the agreement.  The opposite parties strongly denied in the written statement that the opposite parties having failed to deliver the possession of the flat in habitable and fit condition within stipulated period, as there being an inordinate delay of more than five long years between the booking and delivery of the possession of flat.  It is denied that the complainants had made the payment much prior to the actual work carried out at the site as alleged.  It is vital to assert herein that the possession of the flat shall not be given to complainants due to non-payment of the dues which has already been raised against the complainants.  The flat is ready, but the delay in possession is due to non-payment of final outstanding of the said flat.  It is denied that the cause of action for this complaint arose to the complainants against the opposite parties on 27.05.2012, when the opposite parties requested for clearing the due in order to issue offer of possession of incomplete flat to the complainants, but the opposite parties not completed the flat and is continuously insisting for taking possession of incomplete flat with undue demand over and above the committed price.  It is denied that the said cause of action is continuing till date within the jurisdiction of this Hon’ble Commission.  According to the clause No. 43, it is agreed that courts at Delhi alone shall have jurisdiction for adjudication of all matters arising out or in connection with this agreement. 

4.    The complainants have filed an affidavit of Sh. Pradeep Joshi, who is the complainant No. 2 in this consumer complaint and doing pairvi on behalf of the complainant No. 1 and also filed various copies of the correspondence between the parties.  Annexure-2 is a progress report of GTM Forest & Hills, Dehradun dated 27.10.2008, in which the opposite parties informed the complainants that the construction work of the project is in full swing and they hope that they would be in a position to offer the possession for more than 100 flats by end of May, 2009.  They further stated that they appreciate their (complainants) timely payment of the outstanding, if any, which would help in early completion of the project.  Annexure-3 is a document of SBI dated 07.01.2009, in which the bank has intimated the complainants that their home loan of Rs. 20.00 lacs has been sanctioned.  Annexure-4 is a demand notice dated 14.11.2008 of the opposite parties.  In this notice they have demanded due payment of Rs. 11,76,500/-.  Annexure-5 is a demand letter dated 29.07.2009 of the opposite parties, where they demanded Rs. 16,22,000/- for balance amount.  Annexure-6 is also a demand letter dated 18.11.2010, in which opposite parties demanded Rs. 2,17,000/- as balance amount.  Annexure-7 is also a demand letter dated 30.09.2011 in which the opposite parties demanded Rs. 6,73,250/-.  Annexure-8 is also a demand letter dated 27.09.2012 for a sum of Rs. 4,27,136/-.  Annexure-9 is a final demand and possession note dated 19.07.2013.  In this notice, the opposite parties demanded Rs. 10,44,001/-. Annexure-10 is a letter dated 27.10.2009 of the opposite parties to the complainants, in which they stated that “We are working whole heartedly on this project.  Our experts are working hard in all extreme conditions to complete the project on deadline given to them.  And we are trying our level best to hand over the possession of your flat within year 2010”.  They also demanded Rs. 13,65,750/- of outstanding dues.  Annexure-11 is a letter dated 18.11.2009 belongs to SBI, in which the bank has informed the complainants that their home loan of Rs. 30.00 lacs has been sanctioned.  Annexure-12 is a letter dated 08.01.2010 of the Managing Director of the opposite parties, which is addressed to Ms. Amita Joshi, in which it is mentioned that they are facing some hurdles, whether it was regarding approval of maps or removing the electrical line from the project land or getting the required N.O.Cs from the different authorities etc.  He further stated that he intend to complete the entire captioned project in another 08 months, but subject to timely payments of dues/installments at your end.” Annexure-13 is a letter written by complainant Smt. Amita Joshi to the Vice Chairman Cum MD of the GTM Builders and Promoters Ltd. New Delhi in reference to the demand letter dated 30.09.2011 for payment against the above cited subject matter flat.  The demand of Rs. 2,10,000/- due for External Electric Charges is highly exorbitant and without any basis.  She further submitted that she visited the site on 24.10.2011 and the fact is that the progress of work in tower 1 to 8 is very slow.  Even plaster (internal as well as external) has not been completed.  Other developments have not yet started.  Annexure-14 is a project progress report for GTM Forest & Hill, Dehradun dated 18.11.2011 by the opposite parties to the complainants.  Annexure-15, regarding request for clear the dues in order to issuance of Offer of Possession, in which the opposite parties have requested to clear their outstanding dues till 10.06.2012, so that they can issue the offer of possession for fit-outs of their flats.  Annexure-16 is a letter sent by the complainant-Sh. Pradeep Joshi to the opposite parties, in which he mentioned that on personal visit of the Flat No. FH-04/103, he found that the flat is not at all completed for delivery of possession.  Annexure-17 is a reminder against the demand raised on 30.09.2011 of Rs. 3,73,250/-, in which the opposite parties assured the complainants that the work will be competed soon.  Annexure-18         Sh. Pradeep Joshi-complainant No. 2 has filed objection to the Vice Chairman cum MD of M/s GTM Builders and Promoters Pvt. Ltd. New Delhi dated 29.07.2013.  The complainant stated that even after one year in spite of making payments in compliance of your demands the works to be completed stated in the letter dated 09.06.2012 of the allottee in response to letter dated 27.05.2012 regarding offer of possession has not been completed till date.  It is also relevant and pertinent to mention here that it is your duty not only to hand over possession of the flat in habitable and fit condition, but you are also bound to provide the completion certificate from the competent authority.  He further stated that treat this letter as notice also and do the needful at the earliest.  Annexure-19 & 20 are a reply dated 30.08.2013 of the legal notice by the opposite parties to the complainant Smt. Amita Joshi (paper Nos. 15 to 38).  Vide letter dated 12.09.2013, Sh. Ashok Kumar Sabharwal, Legal Head of GTM Builders and Promoters has replied the legal notice of the complainants with summary of dues (paper Nos. 45 to 59).

5.    The opposite parties have filed an affidavit of Sh. Shyam Sunder Gangwar, Legal Head, M/s GTM Builders & Promoters Pvt. Ltd.  The opposite parties have authorized him as their representative.  They have also filed the copy of the Buyer & Seller Agreement (paper Nos. 83 to 87).  In page 2 of the said agreement, the opposite parties assured the allottees that the requisite approval and licence for the construction of the said Complex has already been received from the Mussoorie Dehradun Development Authority (MDDA), Dehradun, Uttaranchal.   In para 2. a). it is clearly mentioned that in the basic sale price the electric connection charges, service lines and the cost of fittings and fixtures, geysers, fans which shall be got installed by the Apartment Allottee at his own cost.  In page 3 para 6 of the said agreement, the opposite parties have specified that the developers had already fully paid the External Development Charges (E.D.C.) on 17.04.2006 to the MDDA.  No further/additional are payable to the MDDA.  However, in case the same is imposed by the MDDA/Government of Uttaranchal at any time, all such charges that may become payable, shall be paid by the Apartment Allottee.  In condoning the delay in payments by charging minimum interest @ 24% per annum of the amount outstanding, but shall not be bound to do so.  In para 16 of the said agreement, it is stated that if the construction of the premises is delayed due to force majeure circumstances, which inter alia include delay on account of non-availability of steel and or cement or other building materials, or water supply etc. that shall stand extended time of delivery of the said premises on account of the force majeure circumstances.  In page 8 para 43 of the said agreement indicates that it is agreed that courts at Delhi alone shall have jurisdiction for adjudication of all matters arising out or connection with this agreement.

6.    We have gone through the papers of the correspondence of both the parties, agreement sale-deed letter and written arguments filed by both the parties.

7.    Learned counsel for the complainants has filed the written arguments.  In their written arguments, the complainants raised the objections that inspite of receiving substantial amount of Rs. 13,08,000/- from the complainants by March, 2009 even the excavation work was not started and when the complainants visited the site and raised objection in June, 2009 they were informed that no time limit can be given for the start of two bedroom flats.  In such compelling circumstances the complainants were left with no option but to upgrade the flat vide letter dated 17.07.2009 of the opposite parties at the committed price of Rs. 37,92,500/-.  The break-up price of the allotted flat FH-4/103 is as under for ready reference:-

       After upgrading the flat the opposite parties demanded                  Rs. 16,22,000/-.  The opposite parties vide letter dated 27.10.2009 gave tentative period when the flat is expected to be completed within the year 2010 with request to clear the dues of Rs. 13,65,750/-.  By November, 2009 the complainants had paid Rs. 28,48,000/- to the opposite parties. The complainants objected the External Electric Charges demanded and the misleading progress report.   The opposite parties company having failed to deliver possession of flat in habitable and fit condition even after more than 7 years between the booking and delivery of possession of flat.  Instead of offering possession of the flat in habitable and fit condition the opposite parties are insisting for the clearance of payable dues amounting to Rs. 13,46,391/- as per the Final Demand issued relying on the agreement clause of “Summary Dues as and when Demanded”. 

Details of Payments Already Made

The complainants having opted construction linked plan paid the amount demanded much prior to the actual work carried out.  The flat is still incomplete inspite of more than 7 years have elapsed from the date of booking, i.e. 03.01.2008. Regarding agreement signed by the complainants it is submitted that in the agreement signed with the builder, buyers have no choice but to sign the agreement in those printed dotted lines, but not even 1% of the agreement are drafted where a buyer have a say.  The agreement signed by the complainants stipulates a hefty rate of interest, i.e. 24% per annum of the amount outstanding.  But for a similar penalty clause for delay on the part of builder in handing over possession as in the instant case one will find none.  From perusal of delayed interest calculation chart and the payment made by the complainants over a period of time, it is clear that by November, 2009 total amount of Rs. 28,48,000/- was paid prior to the completion of the structure.  Thereafter over a period time, i.e. by November, 2013 the complainants have already paid Rs. 39,48,000/-.  As such the delay is on the part of the opposite parties which amounts to denial of service for which the opposite parties are liable to pay compensation for the delay in the form of interest and as well as compensation/damages towards the rent paid by the complainants for taking house on rent due to non-availability of allotted flat.

8.    Learned counsel for the opposite parties has filed the written arguments (paper Nos. 154 to 160) and submitted that a perusal of the complainants’ own papers clearly show that between 02.12.2007 to 20.12.2007 there was an introductory offer, but the same does not disclose whether they had booked for the two bedroom flat.  The complainants seriously thought of paying in January, 2009 when their loan was sanctioned by the State Bank of India, Nainital.  It is pertinent to point out at this stage, it clearly shows that there was a general callous on the part of the complainants in tendering the amount due so much that some payments were made after long intervals such as: 165, 317, 150, 219, 122, 183, 119 and 106 days.   The housing project was Construction Linked Plan, in which only the payments were allowed to be made in installments and whenever the work was carried and amount became due.  There was a deliberate attempt to pay belatedly and the mutually agreed terms were not at all adhered by the complainants themselves.  It is clear from the complaint of the complainants that was an offer of taking possession by the opposite parties to the complainants, but an outstanding amount was yet to be cleared.  The annexures details are important, serial No. A relates to the registration of Sale Document for which there existed Clause-31 of the agreement, late payment interest is also provided by the Clause-8 of the agreement, escalation on account of steel, cement and other construction material etc.  There existed a small outstanding amount of Rs. 19,728/- and the last due payment installment of Rs. 1,81,250/-.  The escalation demand of Rs. 1,50,000/- is only 4.14% of the total basic price of the flat, considering the fact that the period has stretched to 4 years.  A stamp duty of 5% in Uttarakhand and other registration charges for which the purchaser is liable to pay.  There is proof of habitable conditions of living in the residential project of the opposite party No. 1 when already 100 families have taken possession. In the rejoinder of the complainants, if it is being said, “the agreement is tailor made, wholly acceptable, unequal without any say of the buyer, as such is not binding”, this contention is totally unfounded, specifically when the complainant No. 2 is a lawyer of reputation practicing in High Court of Uttarakhand and when there is no allegations of force, undue misrepresentation, fraud etc.  The complainants themselves requested for change, not for the reason of slow pace of work and they deliberately made delayed payments when they knew they had to honour the stipulated demands and are also failing to show inefficient work of the flat.  It is also submitted that the terms of the agreement between the parties for settling the matters are through the Courts of Delhi alone, but the same has been done wrongly before this Hon’ble Commission.  

9.    From the perusal of the documents, evidence and written arguments, we are of the view that the main disputes in question requires consideration in the consumer complaint are (i) can a builder give alluring advertisement promising delivery of possession of the constructed building/flat to the purchaser/consumer within the stipulated time, and, subsequently, on his failure, and turned out and contend that as governmental permissions, such as approvals were not given, the delay in construction should not be the ground for grant of compensation to the consumer.  In our view, it is unfair trade practice on the part of the builder to collect money from the prospective buyers without obtaining the required permissions from the Government. It is the duty of the builder to obtain the requisite permissions in the first instance, and, thereafter recover the consideration money from the purchaser of the flat.  ii) Whether the consumer should suffer by paying the escalation cost due to such delay?  In our view, if there is any express promise that the premises would be delivered within the stipulated time, and, if not done so, escalation cost is required to be borne by the builder.  It is to be borne in mind that in most of the cases consumers invest their hard earned money to get shelter. 

10.  It has been pointed out that despite the aforesaid statement in the brochure, the GTM demanded an additional amount of Rs. 11,65,141/-. On the pretext of escalation charges (E.E.C), late payment charges, charges for registration and stamp duty, these are statutory duties which are payable under Registration Act and Stamp Duty Act. The same have to be paid by the complainants to the concerned authorities.  Normally, delay in construction of building may arise because of various reasons, but in our country, it is known fact that the delay occurs in obtaining various permissions from different governmental authorities, and this fact is well known to the builder.  The time normally taken in getting such permissions could have been contemplated by the builder before issuing the brochure.  It would be unfair trade practice, if the builder, without any planning and without obtaining any effective permission to construct the building/apartment, invite offers and collects money from the buyers.  If the construction of the apartment is delayed and because of such delay, the possession of the apartment is not delivered within the stipulated time, the builder would be liable to bear the escalation cost and not the buyer.  Hence, in our view, it was the duty of the opposite parties-GTM Builders and Promoters to plan in advance to obtain necessary permission.

11.     According to the Clause-8 of the terms and conditions of the agreement, it can hardly be disputed that the terms of the agreement is wholly one sided, unfair and unreasonable. The builder charges compounded interest @ 24% per annum.  In the event of delay on the part of the buyer in making payment to opposite parties, earnest money shall be refunded to the apartment allottee by the developers without any interest (0%).  In this case he does not honour this part of the contract by defaulting in timely possession of the flat to the buyer. The complainants in their consumer complaint has averred that as per agreement Clause-15 that possession of the flat, builder was to handover the possession within 30 months.  The complainant booked two bedroom set on 03.01.2008 and deposited Rs. 1,38,000/- by March, 2009.  Inspite of receiving substantial amount the opposite parties had not started excavation work of two bedroom set.  Therefore, the complainants upgraded the flat booked into three bedroom set, whose total cost was Rs. 37,92,500/- and the complainants have booked the said set on 17.07.2009 to be completed by April, 2011.  The complainants had paid Rs. 37,92,500/- against the committed price of Rs. 37,92,500/-.  In fact, possession was to be handed over within 30 months of booking, but the opposite parties had not given the possession till now.  There is delay of many years.  The complainants had opted construction linked plan.  Under this plan, payment is due according to construction work.  The opposite parties failed to give details of construction work, hence, demand of money was not according to the construction work completed.  The complainants paid the basic price of the said flat by the year 2011.  But still possession was not given to the complainants.  Hence, it has been proved that the delay was from the side of opposite parties.  There is no delay on the part of the complainants. 

12.     The opposite parties raised objections regarding jurisdiction of the court as stated in the agreement.  In their written arguments they submitted that the terms of the agreement between the parties for settling the matters are through the Courts of Delhi alone, but the said property is situated at Dehradun, Uttarakhand.  Therefore, the cause of action arises at Dehradun, so the State Commission has right to hear the consumer complaint at Dehradun.

13.     Learned counsel for the complainants has placed reliance on the following judgment passed by the Hon’ble National Commission:-

a) Satish Kumar Pandey & Anr. vs. M/s Unitech Ltd.; Consumer Case No. 427 of 2014, decided on 08.06.2015.

b) Brig. (Retd.) Kamal Sood vs. M/s DLF Universal Ltd.; First Appeal No. 557 of 2003, decided on 20.04.2007.

c) Mrs. Veena Khanna vs. M/s Ansal Properties & Industries Ltd. and Anr.; First Appeal No. 155 of 2006, decided on 09.07.2007.

14.     All the above mentioned judgments cited by the learned counsel for the complainants are fully applicable in the instant case.      

15.     In these circumstances, the consumer complaint against the opposite party Nos. 1, 2 and 3 is allowed, jointly as well as severally.

16.     For the aforesaid reasons, the consumer complaint is allowed.  The opposite parties are directed to hand over the possession of the flat No. FH-4 (103) in habitable/livable condition complete in all respect to the complainants within one month from the date of order and execute all the necessary and required documents in respect of the flat in favour of the complainants at the committed price of Rs. 37,92,500/-.  In case, if the possession is not delivered within time, as directed, then the opposite parties shall refund the amount of Rs. 39,48,000/- with interest @ 12% per annum from the date of filing the consumer complaint till actual payment.  The opposite parties are also directed to pay Rs. 20,000/- for litigation expesnes.  Amount so awarded shall be paid jointly and severally.