1.      Heard Mr. M.L. Lahoty, Senior Advocate, for the complainants and Mr. Pinaki Mishra, Senior Advocate, Advocate, for the opposite parties.

2.      This bunch of 34 consumer complaints were consolidated. Out of which CC/1415/2018, CC/1281/2018, CC/1365/2018 & CC/2562/2017 were disposed of with the consent of the parties on different dates. Remaining were heard together as in all these cases, the facts and reliefs are similar and have been filed against the same builder and in respect of the flats in same project. For ready reference a chart containing material facts of 34 consumer complaints are given below:-

3.      In order to appreciate the issues, facts of CC/1279/2018 are given in this judgment. Sant Kumar Manchanda (the complainant) filed the complaint for directing the opposite parties, (hereinafter referred to as the builder) (i) to refund Rs.13264651/- along with an interest of Rs.9580144.51/- (@18% per annum, calculated up to 23.05.2018) together with further interest till the date of actual payment (ii) to pay Rs.25/- lacs as compensation, for loss caused due to commission/ omission of the opposite party (iii) to pay Rs.5/- lacs for mental and physical harassment (iv) to pay Rs. one lac as cost of litigation and (iii) any other relief which may be deemed fit and proper, in the circumstances of the case, be passed.

4.      The facts, as stated in the complaint and emerged from the documents attached with it, are that the builder was a company, engaged in the business of development and construction of residential and commercial buildings and selling its unit to the prospective buyers. In the year 2012, the builder propagated itself as one of the leading real estate builders in India and had licence for developing “group housing complex” in the land admeasuring 10.164 acre and 2.794 acres, at Sector 86, DLF Garden city, Gurgaon. The builder launched a project of group housing complex in the name of “The Sky Court”, at Sector 86, DLF Garden City Gurgaon, Haryana, gave a glitzy and glossy advertisement dated 20.12.2012, giving rosy picture of the project, with the motive to allure the prospective buyers. Heavily impressed by the tall promises and reassuring representations of the builder, the complainant booked a residential flat, in this project on 21.12.2012 and deposited Rs.1031000/. As per clause-18 of the terms and conditions attached with allotment letter, the building had to be completed within 48 months from the date of application with grace period of six months also. The builder assured that possession of the flat, complete in all respect, would be given within 48 months. The complainant was allotted Flat No. SCA-024 admeasuring apartment area as 1540 sq. ft., super area 1854 sq. ft., @ Rs.6500 sq.ft. basic sale price of Rs.12051000/-, (Preferential Location Charges Rs.1205100/-, External Development Charges Rs.433368/-, Infrastructure Development Charges Rs.50004/- and Maintenance Security Rs.278100/- Total Rs.14018094/-) and parking spaces No. PA 1026 and PA 1027, on 07.01.2013. Payment plan was “Time /Construction Linked Payment Plan”. Total sale price had to be paid in 16 instalments within 4 years, starting from 21.12.2012 and possession had to be delivered within that period. Apartment Buyer’s Agreement was executed on 30.09.2013, after deposit of about 30% of total sale price. The complainant deposited Rs.1031000/- on 21.12.2012, Rs.1091441/- on 04.02.2013, Rs.1069598/- on 20.03.2013, Rs.16758/- on 14.05.2013, Rs.1074787/- on 21.06.2013, Rs.1064432/- on 20.09.2013, Rs.10752/- on 04.10.2013, Rs.1070001/- on 30.12.2013, Rs.10809/- on 06.01.2014, Rs.1064432/- 12.06.2014, Rs.10752/- on 07.07.2014, Rs.1064472/- on 20.10.2014, Rs.10753/- on 02.11.2014, Rs.1064432/- on 16.12.2014, Rs.10752/- on 05.01.2015, Rs.709622/- on 02.02.2015, Rs.7168/- on 07.03.2015, Rs.709622/- on 21.03.2015, Rs.7168/- on 07.04.2015, Rs.713649/- on 17.06.2015, Rs.7209/- on 07.07.2015, Rs.714668/- on 21.12.2015, Rs.7219/- on 07.01.2016, Rs.715920/- on 28.02.2017 and Rs.7232/- on 05.03.2017 (total Rs.13264651/-). The complainant visited the site on various occasions but found that construction was incomplete. Even in December, 2016, August, 2017 and April, 2018, on visit, it was found that the project was not even remotely near completion. The builder applied for issue of “Occupation Certificate” on 17.02.2017 and managed to obtain it on 17.07.2017, on false declaration, which is evident from the letter of the builder dated 07.02.2017 issued to the various allottees, demanding payment on start of painting works, which was 14^th instalment according “Construction Linked Payment Plan”. Authenticity of “Occupancy Certificate” is further belied from the fact that the Project Delay Report by the Architect certifying with supporting photographs that the project was incomplete as on 15.12.2017. The builder changed in layout plan of the site without consent of the buyers, thereby several facilities were curtailed and primacy of the apartment was also changed. On 16.03.2018, the builder raised Final Demand for payment of Rs.2438055/- (adjusting compensation of 26 days, due to delay in offer of possession) together with interest bearing maintenance security of Rs.289200/- although, the complainant had already paid Rs.13264651/-. The complainant, therefore, vide email dated 21.05.2018 raised his protest against demand letter dated 16.03.2018 and requested the builder to refund his entire money along with interest. Then this complaint was filed on 24.05.2018, on the ground that Apartment Buyer’s Agreement was an ‘one sided document’ and is not binding. The complainant had already deposited about 30% of the sale consideration on the date of agreement and was not in position to bargain. Delivery of possession has been delayed for more than 17 months but delay compensation of 23 days only was offered. The builder managed to obtain “Occupation Certificate” on 17.07.2017, on false declaration, in order to avoid registration of the project under Haryana Real Estate (Regulation and Development) Rules, 2017, although the construction was incomplete. Layout plan has been arbitrarily changed due to which cost was increased to Rs.529100/- and usable area has been reduced. Taxes were realized in excess of actual amount. Escalation charge of Rs192800/- is being demanded illegally. Approach road was not of uniform width of 24 meters, not supported by any footpath/pavement and made without any divider marks with trees as shown in the original lay out, making it prone to conjunction and riskier for motorists and pedestrians. The actual look and feel of the condominium complex, club building (without a covered porch), pools, fountains, sports facilities and gardens being significantly inferior than what had been widely marketed in the brochure and advertisements and non-existence of bare necessities including water pipeline etc.    

5.      The builder contested the complaint and filed its written reply on 16.08.2018, in which, material facts have not been denied. It has been stated that the complainant booked 4 flats in this project and was allotted flats No.SCA-024, SCA-194, SCF-011 and SCF-091 and have filed four complainants. Other complaints were CC/1428/2017, CC/1429/2017 and CC/1430/2017, which are pending. The complainant invested money in real estate in order to earn profit. The market in real estate has gone down from November, 2016, the complainant therefore wanted to withdraw from the agreement and return of his money along with interest. The complainant is not a consumer, within the meaning of Consumer Protection Act, 1986, rather an investor and the complaint was not maintainable. These complaint ought to have been dismissed in terms of Section 26 of the Consumer Protection Act, 1986. Clause-58 of Apartment Buyer’s Agreement contains an arbitration clause for resolution of dispute between the parties, as such, the parties be relegated to go through arbitration. Application Form also contained all the terms and conditions. After reading thoroughly and understanding each and every clauses of it, the complainant voluntarily booked the flat on 21.12.2012. The builder sent Apartment Buyer’s Agreement to the complainant on 11.04.2013. The complainant, after understanding it, signed it, on 30.09.2013. They were neither forced nor influenced to sign the agreement. After expiry of 3 years, the complainant cannot be permitted to challenge the agreement on the ground that it was one sided. Under Clause-14 of Apartment Buyer’s Agreement, if the complainant wants to withdraw from the agreement then he would be entitled for refund of money without interest and after reduction of brokerage within 90 days. Under clause-18 of Application Form and Clause-11 of Apartment Buyer’s Agreement, it was provided that the builder would endeavour to complete the construction within 48 months from the date of the application, subject to force majeure conditions and complainant’s making timely payment of the instalments. After a grace period of six months, the builder would be liable to pay compensation for delayed possession @ Rs.15/- per sq. ft. per month on the super area under clause-15 of Apartment Buyer’s Agreement. The builder completed the construction of the flats in February, 2017 and applied for “Occupation Certificate” on 17.02.2017, which was issued on 17.07.2017. The complainant was intimated about “Occupation Certificate” through letter dated 24.08.2017. The construction was completed within the period of 48 months and grace period of six months. After completing other formalities, the builder offered possession through letter dated 16.03.2018, along with Final Statement of Accounts, adjusting the compensation for delayed possession as provided under Clause-15 of Apartment Buyer’s Agreement, which was payable up to receipt of “Occupation Certificate”. Time taken in obtaining “Occupation Certificate” falls in the term ‘force majeure’. The builder acted according to the terms of Apartment Buyer’s Agreement and incurred the amount deposited by the buyers, in completing the construction. The complainant delayed payment of instalment by 47 days on 02.02.2015, 531 days on 28.02.2017 and 95 days on 15.06.2018. The complainant breached the agreement after offer of possession and is not entitled to any relief. There was no deficiency in service on the part of the builder. It has been denied that there by changing layout plan, water bodies, guest’s car parking were removed and club building was changed. As per MOEF Committee guidelines, a slight depression in earth was required to the created within the project wherein rain water could accumulate. The same water body was a smaller one behind the ‘F’ block and same still exist. The roundabout was removed for better and optimum utilization of space in the project. Internal drivable roads are 7.5 meter wide, which are clear of footpath and parking space. The builder has planned additional facilities of exclusive community centre, which includes multi-purpose hall, card room, pool room, basket ball court, table tennis court, badminton court, cricket pitch, kids playing area, yoga/meditation place and various other facilities, without any extra payment. Super area has been increased to 74 sq.ft, i.e 4.10%, which is permissible limit of 10% under Apartment Buyer’s Agreement. Common area has been increased as Fire Department directed to construct one additional staircase for every tower. Due to this compelling reason, layout plan was revised. It has been denied that there was any reduction in the area of balcony and obstruction of view by bulky pillars. In the Terms of allotment and agreement, it was made clear that layout was tentative. The builder, vide letter dated 26.03.2015, invited objection/suggestion for revision of the layout plan but none of the buyer raised any objection/suggestion. As per Clause-1.6 and 1.7 of the agreement, the buyers are liable to pay for increase of ‘super area’. As per Clause-1.2 of the agreement, the buyers are liable to pay escalation charge, which has been levied on the basis of actual payment done to the contractor by the builder, due to escalation of the price of material or labour charges, which was at the rate Rs.100/- per sq.ft. The builder has applied for water connection, with the local authorities. Till the supply of water by the local authority, the builder is supplying water to the occupant through tanker procured from government treated water plant, as directed in the “Occupancy Certificate”. A.C. ledges were always part of apartments and the buyer were aware of it. It has been denied that any excess amount towards GST or other taxes was demanded. Execution of Indemnity bond-cum-undertaking is mandatory, without which, possession could not be taken. It has been denied that the terms of the agreement were one sided and taken care of the interest of the builder or as such, to extract money from the buyers. The builder had also taken heavy loan for completing the construction within stipulated time. The buyers get appreciated value of the property in case of delay in possession as such delayed compensation has been provided at the different rate. On the other hand, if the buyer delayed payment then the construction would be affected which would multiply the cost as such the higher rate of interest has been stipulated so that the buyer may take care for timely payment. It has been denied that the construction was not at the stage for which demand were made time to time during construction. Email of the complainant was duly replied vide email dated 23.05.2018.  

6.      The complainant filed their rejoinder reply on 01.04.2019, in which, the material facts stated in the complaint were reiterated. It has been denied that the complainant had invested money in this flat, for earning profit. It has been stated that the complainant booked 4 flats to shift his extended family, who has dream of having their own home. The complainant was not in business of property dealing. The construction was however delayed for more than 48 months and sanctioned Layout Plan has been changed. The builder, of its own, informed the home buyers about the stage of construction, in its magazine “Oasis”, in January, 2018, mentioning therein that the sky court project nearing completion. Even at the time of filing the rejoinder reply, construction was not complete as is proved from the Report dated 22.01.2019, submitted by Dr. S. N. Bansal, a qualified architect. Offer of possession vide letter dated 16.03.2018, was illegal. No reason of the category of force majeure has been given for delaying the construction. The builder committed brazen default in completing the construction within stipulated period, even after extracting 92.5% of the basic sale price and committed deficiency in service. Under the terms of the agreement, he was entitled for refund of his money along with interest. As the builder was charging 18% per annum interest for delayed payment as such the complainant was also entitled for interest at the same rate.

7.      The complainant filed Affidavit of Evidence of Manu Manchanda. The builder filed Affidavit of Evidence of Poonam Madan. Both the parties have filed various documentary evidence. Both the parties have filed their written arguments.

8.      The builder filed I.A. No. 1738 of 2021, for leave to file Additional Documents, which was rejected by this Commission, vide order dated 25.02.2021, along with similar applications filed in connected cases. The builder challenged the order dated 25.02.2021 in Supreme Court, in Civil Appeal Nos. 933-966 of 2021, which were allowed vide order dated 26.03.2021 and this Commission has been directed to admit the Additional Documents. Thereafter, the builder filed I.A. No. 3182 of 2021, for placing Additional Documents on record and treating the application as additional pleadings. It has been stated in this application that the builder moved an application before Director, Town and Country Planning, Haryana (for short DTCP) for sanction of Layout Plan of the project “The Sky court” on 16.08.2012, which was sanctioned on 12.12.2012, which consisted 674 apartments in 10 towers. The builder applied for “No Objection Certificate” of Fire Department. Fire Department, vide letter dated 04.04.2013, raised an objection that only one staircase for one tower has been allocated in sanctioned Layout Plan, it would be two for each tower. In order to meet out the objection of Fire Department, Layout Plan was revised and applied on 16.06.2014 before DTCP, on which some clarifications were required, which were submitted on 03.11.2014. Thereafter, DTCP granted provisional sanction on 11.03.2015. The builder sent individual letter dated 26.03.2015 to all the buyers for their approval of revised plan and also made publications in newspapers. Since no objection was received from the buyers, DTCP was intimated accordingly. Then Layout Plan was finally approved on 21.09.2015. The construction of all the 10 towers in the project was completed on 14.02.2017. The builder applied for issue of “Occupation Certificate” on 17.02.2017. The competent authority issued “Occupation Certificate”, on 17.07.2017. The builder offered possession to the buyers from 16.03.2018. Out of 674 buyers, 482 buyers have taken possession. Under clause-18 of Application Form and Clause-11 of Apartment Buyer’s Agreement, it was provided that the builder would endeavour to complete the construction within 48 months from the date of the application subject to force majeure conditions and complainant’s making timely payment of the instalments. Under clause-15 of Apartment Buyer’s Agreement, the buyer is entitled for delayed compensation at the rate of Rs.15/- per sq. ft. on super area, after six months from the date of expiry of said 48 months. The complainant applied for allotment of the flat on 21.12.2012. 48 months were completed on 20.12.2016. The construction was completed on 14.02.2017. There was some delay in completing the construction. Thereafter, delay was occurred in issuance of “Occupancy Certificate”. The cause of delay was beyond the control of the builder and the complainant was not entitled to any compensation.

9.      The complainant, an application on 13.04.2021, attaching the copies of order dated 04.07.2013 and 30.07.2013 of Delhi High Court, passed in Company Petition No.105 of 2013, Email dated 30.07.2020 sent by the builder, Status of Licence No.31 of 2010 and No. 44 of 2012, as published website, Email dated 17.04.2015, given by the allottee of Apartment No. SCC-093 (CC/1329/2018) and reply thereto dated 17.06.2015, Emails dated 26.04.2015, 12.07.2015 and 19.07.2015, by allottee of Apartment No. SC-111 (CC/133/2018) and replies thereto dated 17.06.2015, 13.07.2015 and 17.07.2015, “Occupation Certificate dated 06.02.2020, Affidavit of Dr. S.N. Bansal, to prove Report dated 22.01.2019, Part-2 of the Report dated 22.01.2019 of Dr. S.N. Bansal, Email dated 07.01.2016 by the builder to allottee of Apartment No. SCA-092, along with statement o delayed interest and statement of delayed statement dated 15.07.2015 issued by the builder to allottee of Apartment No. SCG-151, Affidavit of Evidence of the complainant filed in CC/1256/2018, extract of National Building Code of India, 2005, Email dated 29.10.2015 by the builder to allotte of Apartment No. SCA-111, Electricity Service Connection Order dated 01.06.2018 issued by Haryana Bijli Viteran Nigam to Skycourt Resident Condominium Association, Email dated 19.10.2019 by the representative of the builder with circular demanding security deposit and application form for piped LPG gas connection, Email dated 30.01.2021 by the representative of the builder, informing completion of solar water supply work, Email dated 02.01.2021 by the representative of the builder, informing that access control and boom barrier will be made operational from 15.01.2012 and Email dated 10.02.2021 by the representative of the builder, announcing opening of club restaurant on 15.02.2021. 

10.    The counsel for the complainants submitted that the builder gave a glitzy and glossy advertisement in its brochure on 20.12.2012, giving rosy picture of the project, with the motive to allure the prospective buyers. Impressed by the tall promises and reassuring representations of the builder, the complainants booked residential flats, in this project “The Sky court” in December, 2012, relying upon the brochure of the builder that possession, complete in all respect, would be delivered within 48 months. After extracting substantial amount of sale price, the builder sent unilaterally framed ABA on 11.04.2013. The complainants signed the ABA under threat of forfeiture of their 10% sale price, in the name of earnest money. Under clause- 42(a) of the ABA, the buyer is liable to pay interest @ 18% per annum for delayed payment, while under clause-15, the builder is liable to pay Rs. 15/- per sq. ft. per month, of the super area, for delay in possession, which is arbitrary. The complainants could never know about these arbitrary terms at the time of booking. The complainants paid instalments as and when demanded and about 92% of the sale price was paid till March, 2017 but the builder has failed to deliver possession in December, 2016. The complainants have paid about 92.5% of sale consideration, the builder through letter dated 16.03.2018, demanded Rs.2438055/-, in garb of enhanced super area, escalation in price, taxes and cess etc. The prime motive of glitzy brochure was to allure the buyers for parting their money, which was unfair trade practice. Various photographs of the project taken on 04.02.2017, 24.08.2017, 17.04.2018, 01.12.2018, 08.12.2018, 24.12.2018 and 07.05.2019 show that the construction was incomplete. Two qualified architects namely Ar. Nitin Zindal and Dr. S.N. Bansal inspected the project on the instruction of the complainants and gave his reports dated 15.12.2017 and 22.01.2019 that the construction was incomplete. The builder mentioned in the magazine “Oasis” in January, 2018 that “The Sky court” nearing completion. Layout as shown at the time of booking was materially deviated and 24 meter wide road, which was initially in three sides were not on the spot and ‘super area’ has been increased. The alleged “Occupancy Certificate” dated 17.07.2017 was illegal and has been challenged in CWP No.5589 of 2019, in Punjab and Haryana High Court. The builder, themselves, applied for issue of “Occupancy Certificate” in 2019 again. Common area facilities including electricity, water, community building, nursery school, club and other facilities were non-functional. The builder admitted that the water was being supplied in tankers and date of electricity connection was given as 01.06.2018. The builder has not mentioned that the mortgages had been redeemed, before offer of possession. Paltry compensation for 26 days only has been offered for delayed possession. There were numerous defects in the apartment. Due to delay in possession and change in layout plan, some of the buyers opted for cancellation of the agreement. In such circumstances, the buyers are entitled for refund of their money. As the builder was charging interest @ 18% per annum as such the complainants are also entitled to the interest at the same rate on refund of their money. He relied upon judgment of Supreme Court in Central Inland Water transport Corporation Vs. Brajo Nath Ganguly, (1986) 3 SCC 156, Pioneer Urban Land & Infrastructure Ltd. Vs. Govind Raghvan, (2019) 5 SCC 725, Ireo Grace Realtech Vs. Abhishek Khanna, (2021) 3 SCC 241, for the proposition that if terms of the contract was arbitrary and one sided, it cannot be enforced. Fortune Infrastructure Vs. Trevor D’ Limba, (2018) 5 SCC 442, Pioneer Urban Land & Infrastructure Ltd. Vs. Govind Raghavan, (2019) 5 SCC 725, Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 (6) SCALE 462, Wg.Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512, for the proposition that in case of inordinate delay in offer of possession, the buyer was entitled for refund of money. Laxmi Engineer Works Vs. P.S.G. Industrial Institute, (1995) 3 SCC 583, Bunga Daniel Babu Vs. Sri Vasudeva Construction, (2016) 8 SCC 429, Lilavati Kirtilal Mehta Medical Trust Vs. Unique Shanti Developers, (2020) 2 SCC 265, NCDRC judgment dated 12.02.2015 in CC/137/2010 Kavita Ahuja Vs. Shipra Estate Ltd. and judgment dated 20.01.2020 in CC/1036/2018 Narender Gupta Vs. DLF Limited, for the proposition that the complainants were consumers. NCDRC judgment dated 18.06.2020 in CC/3580/2017 Sanjay Rastogi Vs. BPTP Ltd, for proposition that enormous gap between allotment and execution of Flat Buyers Agreement was unreasonable. Judgement of Supreme Court in Faqir Chand Gulati Vs. Uppal Agencies Pvt. Ltd., (2008) 10 SCC 345 and interim order of Civil Appeal Diary No. 5260 of 2020, M/s. Raheja Developers Vs. Vishesh Sood, for the proposition that “Occupation Certificate” and “Completion Certificate” are different. NCDRC judgment dated 18.06.2020 in CC/3580/2017 Sanjay Rastogi Vs. BPTP Ltd, for proposition that offer of possession, without common amenities, was incomplete. NCDRC judgment dated 20.01.2020 in CC/1036/2018 Narender Gupta Vs. DLF Limited, for proposition that requirement of indemnity/undertaking as pre-condition of delivery of possession. NCDRC judgment dated 23.12.2019 in CC/1605/2018, Anil Kumar Jain Vs. M/s. Nexgen Infracon Pvt. Ltd., defence that delay was caused beyond the control of the builder, has to be established.  

11.    In reply to the aforesaid arguments, the counsel for the builder submitted that the project “the Sky court” comprises of 674 apartments in 10 towers. The constructions of these 10 towers and EWS block was completed in February, 2017. There was about two months delay in completing construction, which does not give any cause to the buyers, seeking refund of the money as under Terms and Conditions of allotment letter and ABA, six months grace period have also been provided. Layout Plan of the project “The Sky court” was sanctioned on 12.12.2012. The builder applied for “No Objection Certificate” of Fire Department. Fire Department, vide letter dated 04.04.2013, raised an objection that only one staircase for each tower had been allocated in sanctioned Layout Plan, it would be two for each tower. In order to meet out the objection of Fire Department, Layout Plan was revised and applied on 16.06.2014 before DTCP, on which, some clarifications were required, which were submitted on 03.11.2014. Thereafter, DTCP granted provisional sanction on 11.03.2015. The builder sent letter dated 26.03.2015, individually to all the buyers for their approval of revised plan and also made publications in newspapers. Since no objection/ suggestion were received from the buyers, DTCP was intimated accordingly. Then Layout Plan was finally approved on 21.09.2015. The construction of all the 10 towers in the project was completed on 14.02.2017. The builder applied for issue of “Occupation Certificate” on 17.02.2017. Fire Department issued “No Objection” on 28.06.2017. The competent authority issued “Occupation Certificate”, on 17.07.2017. There was no misrepresentation in obtaining “Occupancy Certificate”. After completing formalities, the builder offered possession to the buyers from 16.03.2018. Out of 674 buyers, more than 500 buyers have taken possession and residing in the apartments. Terms and Conditions of the contract were same as mentioned in the allotment letter. In allotment letter it has been mentioned the format of ABA was available on the website and at the Head Office of the builder. Allegations that ABA was one sided or arbitrary are incorrect. Layout plan was revised to meet out the objection of Fire Department, of which, due notice was given to the buyers and none of them filed any objection. Revision of Layout was fully in accordance of the agreement. Due to revision of Layout Plan, super area has been increased. However, increase in super area was less than 5% although under the terms of the contract, it can vary up to 10%. The project was lying in interior side of village. The builder took proceedings for acquisition of land for approach road, which took time. Approach road was constructed by the builder on their own cost. All the amenities and facilities in the project, including electricity supply, sewage treatment plant, gas supply, club, sport facilities, banquet hall, landscaped gardens, children play area, gymnasium, salon etc. are fully functional. Water supply is being done through tanker as in spite of application for regular water supply, the Municipal Corporation has not given connection. Many of the amenities and facilities viz. multi-purpose hall, library, restaurant, mini theatre, reception area, kid’s club, doctor’s room, salon, open gym, sitting area, kiosks, lobby, driver’s area etc. are in addition to the amenities promised in the agreement and free of cost. The photographs filed by the complainants were in respect of additional amenities, which were completed after 17.07.2017. After completion of construction of all the amenities and facilities, the builder again applied for issue of second “Occupation Certificate” which was issued on 06.02.2020. Under Haryana Apartment Ownership Act, 1983 and Haryana Building Code, 2017, “Completion Certificate” is not necessary requirement or condition precedent for delivery of possession. Escalation charges and charges for increase in ‘super area’ were mentioned even in Terms and Conditions supplied along with allotment letter. He relied upon judgment of Supreme Court in Ireo Grace Realtech Vs. Abhishek Khanna, (2021) 3 SCC 241, NCDRC judgment dated 12.09.2018 in CC/1564/2017 Shailesh Kumar Vs. DLF Home Developers Ltd., judgment dated 13.02.2019 in FA/1340/2016 Vineet Kumar Vs. DLF Universal Ltd, judgment dated 03.01.2020 in CC/351/2015 Capital Greens Flat Buyers Association Vs. DLF Home Developers Pvt. Ltd., DLF Home Developers Pvt. Ltd. Vs. Capital Greens Flat Buyers Association, 2020 SCC OnLine SC 1125.      

12.    We have considered the arguments of the counsel for the parties and examined the record. First issue raised by the buyers is that the terms of the ABA, being one sided, arbitrary and unfair as such are not binding upon the buyers. Inasmuch as the ABA conferred unfettered right upon the builder (i) to change the layout plan unilaterally. (ii) to change super area. (iii) to charge and realize escalation charges, without providing details. (iv) Forfeiture of earnest money. (v) Liability of the buyer to pay interest at different rate for delayed payment while the builder has to give nominal compensation for delayed possession.

13.    Under clause-2 of the Application Form, it has been mentioned that the format of the ABA was available on the website and office of the builder. Application Form contained all the terms and conditions of the ABA. Under clause-16 of the Application Form and clauses-1.6 and 1.7 of the ABA, it has been mentioned that layout plan and ‘super area’ may be changed and such change may increase area up to 10% of ‘super area’. In this case, layout plan was changed on the objection of Fire Department. Total price as given in the Application Form and Clause-1.2 provide for escalation charges. Clause-14 of the Application Form contained forfeiture clause. Clause-14 (b) of the Application Form provides for interest @ 15% and 18% per annum for delayed payment. In such circumstances, it cannot be said that the ABA was one sided. So far as the arguments that it contained arbitrary terms and conditions are concerned, apart from different rates of interest for delayed payment by the buyer and nominal compensation for delayed possession by the builder, no other clause can be said as arbitrary. Supreme Court in Wg.Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512, has laid down that compensation for delayed possession would be interest @ 6% per annum, on the deposit made by the buyer, from the promised date of possession, instead of declaring the contract as void. This judgment is being regularly followed by this Commission. As such, it cannot be said that the ABA is null and void.  

14.    Much arguments have been raised that “Completion Certificate” has not been obtained till today. “Completion Certificate” is necessary as held by Supreme Court in Faqir Chand Gulati Vs. Uppal Agencies Private Limited, (2008) 10 SCC 345. In Faqir Chand Gulati’ case, issue before Supreme Court was as to whether a landowner, who enters into an agreement with a builder, for construction of an apartment building and for sharing of the constructed area, is a consumer? While deciding this issue, Supreme Court, relying upon the clauses of the agreement, (in paragraph-37) held that the agreement clearly contemplates the builder for completing the construction and securing completion certificate. So far as, present case is concerned it is governed by Haryana Apartment Ownership Act, 1983 and The Haryana Building Code, 2017. Clause-4.10 provides for application of “Occupancy Certificate”, for which, under Clause-4.10 (1) (ii) completion certificate from architect is required to be attached. Clause-4.11.(4) of The Haryana Building Code, 2017, is quoted below:-

 Clause-4.11.(4)- No person shall occupy or allow any other person to occupy any person to occupy any new building or part thereof for any purpose whatsoever until such building or part thereof has been certified by the Competent Authority as having been completed and an occupation certificate has been issued in his favour in Form BRS-V within above mentioned period.

          For offer of possession, “Occupancy Certificate” was only necessary document. For obtaining “Occupancy Certificate”, completion certificate from architect is required to be attached. It is only when, the completion of entire project is completed then “Completion Certificate” issued by the competent authority has to be submitted under Haryana Development & Regulation of Urban Areas Rules, 1976.

15.    So far as delay in offer of possession is concerned, Clause-18 (a) of the Application Form and clause 11 (a) of ABA are quoted below:

“18(a). Subject to other terms of this Application/Agreement, including but not limited to timely payment of the total Price, Stamp duty and other charges by the Applicants, the Company shall endeavour to complete the construction of the said Apartment within forty eight months from the date of Application. The Company will offer possession of the said Apartment to the Applicants as and when the Company receives the occupation certificate from the competent authority.”

“11(a). Schedule for possession of the said Apartment-

The Company based on its present plans and estimates and subject to all just exceptions endeavour to complete construction of said building/said Apartment within forty eight months from the date of Application unless there shall be delay or failure due to Force Majeure conditions including but not limited to reasons mentioned in clause 11(b) and 11(c) or due to failure of Allottee to pay in time the Total price and other charges and due/payments mentioned in this Agreement or any failure on the part of the Allottee to abide by all or any of the terms and conditions of this Agreement.”

16.    According to the builder, the construction of all the 10 towers and EWS block of the project was completed on 14.02.2017. The builder applied for issue of “Occupation Certificate” on 17.02.2017, which was issued on 17.07.2017 and Possession was offered on 16.03.2018 after completing all the formalities. These facts have been challenged by filing photographs of incomplete construction and Architect’s reports. According to the builder, these photographs relate to the additional amenities and facilities, which were constructed after 17.07.2017. Report of Ar. Nitin Zindal dated 15.12.2017 and report of Dr. S.N. Bansal dated 22.01.2019 also show the incomplete construction of additional amenities and facilities. In view of the fact that the competent authority has issued “Occupation Certificate”, as such, it cannot be said that the construction was incomplete on 14.02.2017. Under the Application Form and the ABA, there was commitment to endeavour to complete construction within 48 months. The construction was completed within 50 months as such it cannot be said that the builder had delayed construction unreasonably. So far as offer of possession, it has been offered on 16.03.2018, after completing other formalities. The builder applied for issue of “Occupation Certificate” on 17.02.2017, which was issued on 17.07.2017. In the circumstance and considering the grace period of six months, it cannot be said that the construction and possession was unreasonably delayed.

17.    Remedy of the buyer has been provided under clause-14 of the ABA, in which, if the builder failed to offer possession within 48 months from the date of Application, then the buyer can terminate the agreement, within 90 days of expiry of 48 months. In that case, the buyer would not be entitled for any interest on the amount paid by him and the amount paid by the builder for brokerage and taxes would be deducted. This clause cannot be said to be unreasonable inasmuch as mode of payment was “construction linked payment plan”. In other words, it was a self-financing construction scheme. The builder has invested the amounts realised by the buyers, in construction of apartment. In civil works, delay is always probable.

18.    Other remedy of the buyer for delayed possession is under clause-15 of the ABA, in which, compensation @ Rs. 15/- per sq.ft. per month of the super area for the delayed period has been provided. Under the judgment of Supreme Court in Wg.Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512, now interest @ 6% per annum, on the deposit made by the buyer, from the promised date of possession till the date of offer of possession would be paid. For reasonable delay in completing construction, the buyer cannot be permitted to withdraw from the agreement. The cases relied upon by the counsel for the complainants relate to unreasonable delay in offer of possession. Both the parties have relied upon the judgment of Supreme Court in Ireo Grace Realtech Vs. Abhishek Khanna, (2021) 3 SCC 241, in which, including grace period, possession had to be offered in July, 2017 but it was offered on 28.06.2019. It has been held that if possession has been offered after obtaining “Occupation Certificate” the buyers were obligated to take possession. In the present case, the delay is not more than one year.

19.    Allegation that there was change in layout plan of the site and 24 meter wide road, which was initially in three sides are not on the spot and ‘super area’ has been increased. Report of Ar. Nitin Zindal dated 15.12.2017 shows that 24 meter wide roads were existing on all the three sides. Construction of two of the approach roads was incomplete at the time of inspection. It has not been denied that sanctioned Layout Plan was revised on the objection of Fire Department and in place of one staircase for each tower, two staircases were constructed with due notice to all the buyers, due to which ‘super area’ has been increased. It has been clearly mentioned in the clause of Company’s Representation that super area may be changed. In this case ‘super area’ has been increased to 74 sq. ft., which come to .04% increase. Under clause-10 of ABA, 10% change in ‘super area’ was permitted and under clause-1.7 of the buyer is liable to pay price of increased ‘super area’ and under clause-1.8, no objection can be raised in this respect. Supreme Court in DLF Home Developer Ltd. Vs. Capital Greens Flat Buyers Association, 2020 SCC OnLine SC 1125 has upheld 10% increase in ‘super area’. Under clause-1.2 escalation charges were payable.

20.    It has been stated that there was no water supply through water pump. According to the builder, he had applied for water supply before Haryana Urban Development Authority and deposited requisite expenses but water supply has not been provided. Under Condition-3 of “Occupancy Certificate”, he has been supplying water through tanker to all the residents of the apartments.

21.    So far as the arguments that the amenities as mentioned in the brochure were not complete at the time of offer of possession, is concerned, it may be a deficiency in service. But for this reason, the buyers cannot be permitted go out of the contract and ask for refund of the money. According the builder, at this time, all the promised amenities are complete and extra amenities viz. multi-purpose hall, library, restaurant, mini theatre, reception area, kid’s club, doctor’s room, salon, open gym, sitting area, kiosks, lobby, driver’s area etc. are in addition to the amenities promised in the agreement and free of cost have also been provided.  

O R D E R

In view of aforementioned discussions, the relief of refund prayed by the complainants is rejected.  The opposite party is directed to hand over possession after collecting the dues if any and payment of compensation @6% per annum on the amount paid by the complainants from the due date of possession till the date of offer of possession.  This order be complied within a period of six weeks. With the aforesaid directions, Consumer Complaints are disposed of.