1. The present Consumer Complaint has been filed under Section 21 read with Section 12(1)(a) of the Consumer Protection Act, 1986 (for short “the Act”) by Complainants being co-allottees against Opposite Party, M/s. BPTP Limited (hereinafter referred to as the OP Developer) seeking possession of the allotted plot along with compensation or in the alternate refund of the amount paid towards purchase of Plot alongwith interest and costs as the Opposite Party Developer failed to deliver the Possession of the Plot within stipulated period.

 

2. The facts leading to filing of the present Complaint are that one Mr. Subhash Agrawal (hereinafter referred to as the ‘Original Allottee’) was allotted Plot No. C-264 in project “Amstoria Plots” proposed to be developed by Opposite Party Developer in Gurgaon, Haryana, tentatively admeasuring 225 sq. yrds. (188.130 sq. mtrs.) having basic sale price of ₹38,250/- per sq. yrds.  The allotment was transferred to present Complainants from Original Allottee vide letter dated 15.06.2011 by the OP Developer. Subsequently, Plot Buyer’s Agreement (hereinafter referred to as the Agreement) was executed between the Complainants, OP Developer and M/s. Countrywide Promoters Pvt. Ltd. on 13.10.2011. According to Clause 5 of the Agreement, possession was supposed to be handed over within 24 months from the date of sanction of service plan of the entire colony along with grace period of 180 days.  It was also averred that the Complainants have even made payment of unjust demands of E_STP (Erection of Sewerage Treatment Plan). The Complainants availed loan of ₹26,00,000/- (Rupees Twenty Six Lacs Only) from HDFC Ltd in order to make timely payment towards the sale consideration and is paying interest @9.65% p.a. The Complainants have contended that the Opposite Party Developer has illegally and arbitrarily charged interest amount of ₹73,449/- for delay in payment, which was caused due to failure on the part of the OP Developer to sign the Tripartite Agreement. Complainants have alleged that certain clauses of the Agreement were wholly arbitrary and one-sided. Clause 5.4 of the Agreement imposes penalty upon the Opposite Party of ₹ 30/- per sq. yrds. per month for first six months of the delay, ₹ 40/- per sq. yrds. per month for the next six months of the delay and ₹ 50/- per sq. yrds. per month for any delay thereafter. That the penalty as quoted in clause 5.4 is unacceptable to the Complainants since the delay is completely intentional and on account of the Opposite Party, therefore Opposite Party must pay penalty @18% per annum, which the Opposite Party is charging from Allottees as delayed interest. That the Complainants are even paying rent of ₹30,000/- per month, cost of which must be borne by the Opposite Party Developer. The Complainants have contended that Opposite Party has utilised Complainant’s money in other projects. That the Opposite Party drew a very rosy picture and made false promises to the Complainants and has thus cheated the Complainants of their hard earned money.

 

3. The Complainants have paid ₹1,03,36,028.50/- (Rupees One Crore Three Lacs Thirty Six Thousand Twenty Eight and Fifty Paisa), i.e., 95% of the total sale consideration till 23.04.2012 despite that the development activity has progressed at a very slow pace and still the Project is not habitable and amenities as promised, i.e., club, etc. do not exist. 

 

4. Aggrieved by such deficient service as provided by the Opposite Party Developer, the Complainants issued legal notice to the Opposite Party on 14.10.2017 seeking possession along with cost or in the alternate, refund the amount paid along with interest @18% p.a., however, the Opposite Party Developer, in spite of replying to the legal notice, issued Offer of Possession on 27.10.2017 without obtaining requisite sanction of the service plans for the entire Colony, which admittedly was received only on 27.12.2017 and without Occupancy Certificate which was completely illegal since the Project was still incomplete and cannot be said to be a valid offer of possession.

 

5. Alleging deficiency in service and unfair trade practice on the part of the Opposite Party, the Complainants have filed the present Consumer Complaint seeking following reliefs:-

“i) To direct the O.P. to settle the account and hand over the possession of the residential Plot No. C-264, in “Amstoria Plots” situated at Sector-102, Gurgaon, Haryana i.e., plot in question complete in all respect in a habitable and livable condition with all amenities;

 

or in alternative,

 

  to return the amounts paid by the Complainant on various dates together with 18% p.a. interest on the accounts paid by the Complainant. 

 

ii) In case plot is being offered by the OP

 

a) Direct the OP to execute conveyance of the plot in favour of the Complainant and hand over the physical possession of the plot in a livable and habitable condition with all amenities. 

 

b) Direct the Opposite Party to pay Complainant cost of funds @12% p.a. on the amounts paid by the Complainant, from committed date of Possession till the date of actual physical handover of Possession of plot in question in habitable and livable condition with all the amenities.  

 

c) Refund ₹2,49,525/- charged towards E_STP charges. 

 

d) Refund the interest of ₹ 73,449/- wrongly charged. 

 

iii) Pass any other or further orders as may be deemed fit and proper in facts and circumstances of the present case.”

 

6. Upon notice, the Opposite Party has filed its written version and has denied the contents of the Complaint, further stating that the Complaint is liable to be dismissed and is required to be referred to Arbitrator in view of clause 31 of the Agreement wherein it was stated that all or any dispute arising between the parties are to be referred for Arbitration; that possession has already been offered on 27.10.2017 and the Complainants have made the payments as per the demands raised, however only documentation formalities are yet to be carried out; that the Complainants are not “consumers” since the Complainants have also invested in another project being Park Street; that the Agreement have been executed by three Co-allottees, however, Complaint is filed only by one allottee, therefore Complaint is liable to be dismissed for non-joinder of necessary parties; that various disputes as raised by the Complainants are intricate in nature and thus cannot be tried summarily; that the Complainants have purchased the allotment of the unit from secondary market after due-diligence; that Complaint is nothing but an afterthought, since the Complainants were well aware of the contents of the Agreement as the same are mentioned in the Allotment letter in an indicative manner and that before execution of the Agreement all the concerns of the Complainants were discussed in detail; that the Internal Development work of the plots is complete and therefore the possession was offered to the Complainants; that delay in provision of clubs, schools, recreational and sporting activities does not entitle the Complainants to cancel the Agreement; that the Complainant agreed to contents of the Agreement, pertinently, clause 11.4 wherein penalty have been imposed upon Allottees for causing delay in making timely payments; that the Opposite Party has only charged ₹23,746/- as interest for delayed payments from the Complainants and not ₹73,499/-; that the Complainants have defaulted in making timely payments on various occasions; that the Opposite Party have always kept the Complainants informed about the status of construction of the Project; that the Complainants are bound to pay charges for erection of sewerage treatment, pollution control devices, etc as per clause 2.3 of the Agreement; that various departments involved in the process of service plan approvals incorporates changes from time to time which causes delay; that the service plan were approved by DTCP on 27.12.2017 and therefore in consonance with clause 5 & 13 of the Agreement, possession was offered within the time frame; that the Project has been marred by delays in payment made by the Complainants as well as the Original Allottee; that the Complaint is liable to be dismissed since there exists no cause of action as timely possession has been offered to the Complainants and has thus prayed that the Complaint be dismissed in favour of the Opposite Party. 

 

7. On merits, the booking, the allotment and consideration paid by the Complainants have not been disputed. 

 

8. It is relevant to mention that initially the Complaint was filed by a Single Allottee without representative character, however, vide Order dated 01.11.2019, IA/15959/2019 was allowed, thereby, bringing on record all the Co-allottees as Co-Complainants and amending the Memo of Parties.

 

9. Mr. Sudhir Mahajan, learned Counsel for the Complainants has argued at length that the Complainants purchased allotment of the Unit on 15.06.2011, Plot Buyer’s Agreement was executed on 13.10.2011 and 95% of the payment was paid till 23.04.2012, however, development work was put on hold with malafide intention. That construction work had progressed at a very slow pace and possession was offered on 27.10.2017, however, project is still not habitable and amenities as promised do not exist.  However, the Possession of the Plot has been accepted by the Complainants and the sale/conveyance deed has been executed on 09.04.2018.  It is prayed argued that the Complainant should be awarded interest @18% per annum on account of delay caused in handing over possession. It is also argued that since the Opposite Party did not file evidence and admission/denial, thus the contentions of the Complainants are un-rebutted and the Complaint of the Complainants must be granted in terms of the prayer clause. 

 

10. Contrarily, Mr. Pragyan Pradip Sharma, learned Counsel for the Opposite Party had denied the arguments as raised by the learned Counsel for the Complainants and submitted that the STP (sewer treatment plant) charges and delay interest were charged in terms of the Agreement.  It was further submitted that service plan in respect of 108.068 acres of land was approved vide Licence No. 58/2010 on 30.06.2014 and for additional area of 18.0606 acres additional Licence No. 45 / 2011 was approved by DTCP only on 27.12.2017 and as such possession was offered on 27.10.2017 was within the time frame in terms of the Clause 5 & 13 of the Agreement.  The possession of the Plot has been handed over to the Complainants vide execution of Sale/Conveyance Deed on 09.04.2018.  Therefore, there is no deficiency in service on their part and prayed that the Complaint be dismissed. 

 

11. We have heard Mr. Sudhir Mahajan, learned Counsel for the Complainant, Mr. Pragyan Mahajan, learned Counsel appearing on behalf of the Opposite Party Developer, perused the material available on record and have given our thoughtful consideration to the various pleas raised by the learned Counsel for the Parties. 

 

12. The contention of the learned Counsel for the Opposite Party that the Complainants are not Consumers as they had purchased the said unit for commercial purpose is not substantiated by any documentary evidence and the ratio laid down by this Commission in Kavita Ahuja v. Shipra Estates, (2016) 1 CPJ 31, squarely applies to the facts of this case.

 

13. The Hon’ble Supreme Court in M/S Emaar MGF Land Limited vs. Aftab Singh – I (2019) CPJ 5 (SC), has laid down the law that an Arbitration clause in the Agreement does not bar the jurisdiction of the Consumer Fora to entertain the Complaint. Hence, the objection raised by the learned Counsel for the Opposite Party that the clause of Arbitration bars this Commission from entertaining the Complaint is unsustainable. 

 

14. As far as the payment towards STP Charges and interest for delayed payment is concerned, we find that the same are demanded in terms of the Agreement and the Complainants are liable to pay the same.  

 

15. All the reasons, as stated by the learned Counsel for the Opposite Party, do not fall within the ambit of reasons beyond their control as it can be seen from the record that the Plot Buyer's Agreement was entered into way back in October, 2011 and subsequently, the delay caused in taking approvals and sanction of plans cannot be construed to be any substantial reason and definitely not a force majeure condition. It was the duty and responsibility of the OP Developer to coordinate with the concerned authorities and complete all the required formalities well-in-time for obtaining approvals from the Authorities.  The Complainants/Allottees cannot be made victim for the same.   Therefore, we do not find any force in the contention of the learned Counsel for the OP Developer and the same is rejected.  

 

16. Regarding the contention of the learned Counsel for the Opposite Party Developer that the Complainants are entitled for delay compensation only in terms of Clause 6.1 of the Agreement, we have gone through the various clauses of the Agreement and find that as per Clause 6.1 of Agreement, in case of delay the compensation to be paid by the Developer at ₹30/- per sq. yrds. per month for first six months of delay in offering possession of the unit after adjusting all the dues, ₹ 40/- per sq. yrds. per month for next six months and ₹ 50/- per sq. yrds. per month for any delay thereafter. These charges are further to be paid only after the stipulated period of 24 months plus grace period has lapsed, whereas in terms of Clause 11.4 of the Agreement in case of delay in payment on the part of the   Allottees, the Complainants/Allottees are liable to pay interest @18% p.a.  This shows that the terms of the Agreement are wholly one-sided and unfair. Therefore, the Complainants cannot be made bound to the terms of the Agreement, which is one-sided and unfair in the light of the recent Judgment of the Hon’ble Apex Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, II (2019) CPJ 34 (SC),wherein the Apex Court has observed as follows: 

“6.7. A terms 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 08.05.2012 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(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder.

 

7. In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyer’s Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent-Flat Purchaser. The Appellant-Builder cannot seek to bind the Respondent with such one-sided contractual terms.”

 

17. Regarding the plea of the learned Counsel for the OP Developer that they have offered the Possession of the Plot on 27.10.2017, which was within the time frame in terms of the Clause 5 & 13 of the Agreement and the Complainants are not entitled for any compensation, it is relevant to reproduce the Clause 5 of the Plot Buyer's Agreement dated 13.10.2011 entered into between the Parties, which reads as under:

“Subject to Clause 13 herein or any other circumstances not anticipated and beyond the control of the Seller/Confirming Party an any restraints/restrictions from any courts/authorities and subject to the Purchaser(s) having complied with all the terms and conditions of this Agreement and not being in default under any of the provisions of this Agreement including but not limited to timely payment of all instalments and the total sale consideration and Stamp Duty and other charges and having complied with all provisions, formalities, documentation etc., as prescribed by the Seller/Confirming Party, whether under this Agreement or Maintenance Agreement or otherwise, from time to time, the Seller/Confirming Party proposes to hand over the possession of the Plot to the Purchaser(s) within a period of 24 months from the date of sanctioning of the service plan of the entire colony or execution of Plot Buyer’s Agreement, whichever is later. The Purchaser(s) agrees and understands that subject to Clause 13 of this agreement, the Seller/Confirming Party shall be entitled to a grace period of 180 (One Hundred and Eight) days, after the expiry of 24 months as stated above, for applying and obtaining necessary approvals in respect of the colony.”     

 

18. From a bare perusal of the Clause 5 of the Agreement, we find that two time-limits are laid down for delivery of possession – 24 months from the date of sanctioning of the Service Plan of the entire colony or from the date of execution of the Agreement, whichever is later, in addition to that 180 days grace period is also available for the OP Developer.  In the instant case, Plot Buyer’s Agreement was executed between the Parties on 13.10.2011; the Opposite Party Developer received huge amount of ₹1,03,36,028.50/- (Rupees One Crore Three Lacs Thirty Six Thousand Twenty Eight and Fifty Paisa), i.e., 95% of the total sale consideration till 23.04.2012, but the possession of the Plot was offered by the Opposite Party Developer only on 27.10.2017 but the possession was physically handed over to the Complainants only on 09.04.2018. Keeping in view the facts and circumstances of the case, we are of the considered view that the Clause 5 of the Agreement is wholly unjust, one-sided and totally in favour of the OP Developer, which cannot be binding on the Complainants in view of the Judgment passed by the Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. (supra).  

 

19. It is the responsibility and duty of the OP Developer to deliver the possession of the Plot within a reasonable time. The Complainants/Allottees cannot be made to wait indefinitely for having the possession of the Plot in view of the Judgment passed by the Hon’ble Apex Court in ‘Kolkata West International City Pvt. Ltd. (supra)’ in which it has been held as under:

“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. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC.  There was in any event a prayer for refund.”

 

20. In the instant case, the OP Developer took almost 6½ years from the date of Execution of the Agreement to deliver physical possession to the Complainants on 09.04.2018 despite having received huge amount of ₹1,03,36,028.50/- (Rupees One Crore Three Lacs Thirty Six Thousand Twenty Eight and Fifty Paisa), i.e., 95% of the total sale consideration by 23.04.2012, which viewed from any angle, cannot be said to be a reasonable period for handing over the physical possession of the Plot to the Complainants.  The OP Developer should have handed over the possession of the Plot within three years’ from the date of execution of the Agreement.  

 

21. For the reasons stated hereinabove, we are of the considered view that the Complainants are entitled for delay compensation w.e.f. 13.10.2014 till the date of actual possession of the Plot, i.e., 09.04.2018.  Consequently, the Opposite Party Developer is directed to pay delay compensation in the form of interest @9% p.a. on ₹1,03,36,028.50/- w.e.f. 13.10.2014 till 09.04.2018, within 6 weeks from the date of passing of this Order.  Keeping in view the peculiar facts and circumstances of the case, there shall be no order as to costs.

 

22. Consumer Complaint is partly allowed in above terms.  The pending applications, if any, also stand disposed off.