1. The present Consumer Complaint has been filed under Section 21(a)(i) of the Consumer Protection Act, 1986 (for short “the Act”) against Opposite Party M/s. DLF New Gurgaon Homes Developers Pvt. Ltd. (Now DLF Homes Developers Pvt. Ltd.) (hereinafter referred to as OP Builder), by Mr. Sumeet Saluja and his wife Mrs. Amarjeet Kaur, Complainants / Allottees of Residential Flat in a Group Housing Project, namely, “The Primus DLF Garden City” (for short “the Project”), to be developed and constructed by the OP Builder in Sector 82-A, Gurgaon, Haryana, seeking possession of the Unit alongwith compensation for the losses suffered by them on account of Unfair and Restrictive Trade Practices adopted and the deficient services rendered by the OP Builder in not handing over the possession of the allotted Apartment/Unit within the stipulated time. 

2. According to the Complainants, facts of the case are that allured by the advertisements and the various lucrative representations made by the Officials and Brokers of the Opposite Party Builder that the Flats in the Project will be delivered within a period of 42 months, the Complainants applied on 22.02.2012 for allotment of an Apartment in the Group Housing Project, namely, “The Primus DLF Garden City” (for short “the Project”), to be developed and constructed by the OP Builder in Sector 82-A, Gurgaon, Haryana. The Complainants were allotted Apartment vide allotment letter dated 12.03.2012. Apartment Buyer’s Agreement was executed between the Parties on 18.07.2012.The total sale consideration of the Apartment was ₹1,45,17,125/-.As per final statement of Account as on 27.02.2017, the Complainants have deposited a sum of ₹1,34,18,750/- on different dates with the Opposite Party Builder.It is stated that as per Clause 11(a) of the Buyer’s Agreement, the possession of the Apartment would be delivered by 23.08.2015, that is within 42 months from the date of application. Despite receiving a huge sum of ₹1,34,18,750/-, the OP Builder failed to deliver the possession of the Apartment.

3. Alleging deficiency in service and unfair trade practice on the part of the OP Builder, the Complainants has filed the present Complaint with following prayer:-

1. Direct the Opposite Party to handover the possession of the aforesaid flat complete in all respect to the Complainant immediately as per the Buyer’s Agreement and execute all the necessary and required documents in respect of the said flat in favour of the complainant or in alternative provide a ready to move in flat to the complainant which is of identical size and in similar locality or in alternative pay a sum being the available market rate if the similar house @ ₹13.000/- per sq.ft., the flat being of the size 1799 sq.ft to enable the Complainant to purchase another house on their own.

2. Direct the opposite party to pay interest @ 12% p.a. on the sum collected by the O.P towards the house from the date of possession as per the buyer’s agreement till actual possession

3. Direct the O.P to pay a sum of ₹50.000/- (Rupees fifty thousand only) to the complainants toward the cost of litigation..

4. Any other order(s) as may be deemed fit and appropriate may also kindly be passed;

4. The Complaint was resisted by the Opposite Party Builder by filing Written Statement in which it was stated that there is Arbitration clause in the Agreement as such the present complaint is not maintainable before this Commission; Complainants are not consumers as they have booked the said Apartment for investment purpose.It was further stated that the possession of the Apartment could not be delivered in time due to the delay in grant of the necessary approvals by the competent authority and the reasons were beyond the control of the Opposite Party Builder.It was submitted that they have offered the possession on 27.01.2017 but the Complainants deposited the outstanding dues only on 01.01.2018 after which they issued No Due Certificate to the Complainants on 03.01.2018 despite that the Complainants could take the Possession of the Apartment only on 01.05.2018.It was further stated that the Parties are bound by the terms of the Agreement and as per Agreement they have already compensated the Complainants by crediting a sum of ₹4,91,308/- towards compensation in the Complainants’ Account.It was further stated that there is no deficiency in service on their part and it was prayed that the Consumer Complaint be dismissed.

5. In the written submissions filed on behalf of the Complainants it was submitted that the OP Builder offered the possession of the Apartment on 27.01.2017, which was brought to the notice of the Hon’ble Commission vide IA No. 1341 / 2017 and vide Order dated 18.09.2017 passed by this Commission permission was granted to take the possession.Although they cleared the outstanding dues to the OP Builder on 01.01.2018 yet could take the possession of the Apartment on 01.05.2018.

6. We have heard Mr. Sushil Kaushik, learned Counsel for the Complainants, Mr. Pravin Bahadur, learned Counsel for the Opposite Party Builder and perused Complaints, Written Statements and given a thoughtful consideration to the various pleas raised by them.

7. 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.

8. The contention of the learned Counsel for the Opposite Party that the Complainants are not ‘Consumer’ and that they have booked the subject Apartment/Unit for earning profits is completely unsustainable in the light of the Judgment of this Commission in Kavita Ahuja vs. Shipra Estates I (2016) CPJ 31, in which the principle laid down is that the onus of establishing that the Complainant was dealing in real estate i.e. in the purchase and sale of plots/ flats in his normal course of business to earn profits, shifts to the Opposite Party, which in the instant case they had failed to discharge by filing any documentary evidence to establish their case. Therefore, we are of the considered view that the Complainants are ‘Consumers’ as defined under Section 2 (1)(d) of the Act.

9. According to the OP Builder the delay happened primarily on account of the delay in grant of the necessary approvals by the competent authority. The said circumstance, according to the OP Builder was beyond its control therefore, the Complainants are not entitled to any compensation for the period the possession has been delayed on account of the aforesaid factors. Being an experienced Builder, the OP knew, at the time the allotments were made that the concerned authorities would take their own time for grant of the requisite approvals. The submission of the learned Counsel for the OP Builder was that though the time ordinarily taken for grant of such approvals may have been factored in by the OP Builder while stipulating the expected date for delivery of possession, the time actually taken in this particular project was much more than the time usually taken for such approvals. There is no material before this Commission to find out how much was the time usually taken for grant of approvals in such a large project. No data in this regard has been placed before the Commission. More importantly, the correspondence exchanged between the OP Builder and the concerned Authorities has not been placed on record to prove that the delay occurred solely on the part of the concerned authorities and cannot be attributed to any defect or deficiency on the part of the OP Builder in preparation and submission of the building plans etc. It was the duty and responsibility of the OP Builder to get all the formalities done as per time frame.It was between the OP Builder and the Competent Authorities.The Complainants cannot be made victim for the same.We do not find any force in this contention and the same is rejected.

10. As far as the plea of the learned Counsel for the OP Builder that the Complainants are bound by the terms of the Agreement and they have already compensated the Complainants as per terms of the Agreement, is concerned, we have gone through the Agreement and found that the compensation agreed to the awarded, i.e., @Rs.20/- per sq. ft. in case of delay in delivery of Possession is very meagre/unreasonable in view of the current banking scenario.The Complainants cannot be made bound to the terms of the Agreement, which are unreasonable 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:

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.”

11. It is not in dispute that the Complainants booked the Apartment in the Project to be developed by OP Builder on 22.02.2012.As per terms of the Agreement the expected date of delivery of the possession of the Apartment was 23.08.2015.Despite having received a huge sum of ₹1,34,18,750/-, the OP Builder failed to deliver the possession within stipulatedperiod.The possession was offered by OP Builder on 27.01.2017.In compliance of Order dated 11.12.2017, the Complainants submitted the undertaking and cleared the outstanding dues of the OP Builder on 01.01.2018 and the OP Builder issued No Due Certificate on 03.01.2018 but the Complainants took the possession only on 01.05.2018.

12. We find it a fit case to place reliance on the Judgment dated 11.01.2021 passed by the Hon’ble Supreme Court in “Ireo Grace Realtech Pvt. Ltd. vs. Abhishek Khanna & Ors.” [Civil Appeal No. 5785 / 2019 & other connected Appeals], in which the Hon’ble Apex Court has observed as hereunder :-

1. The Developer is however obligated to pay Delay Compensation for the period of delay which has occurred from 27.11.2018 till the date of offer of possession was made to the allottees….”

13. Respectfully following the principle laid down by the Hon’ble Supreme Court in “Ireo Grace Realtech Pvt. Ltd. vs. Abhishek Khanna & Ors.” (supra), we are of the considered view that the Complainants are entitled for Compensation for delay in delivery of the possession of the Flats.Keeping in view the peculiar facts and circumstances of the case, we are of the view that the compensation in the form of simple interest @ 8% p.a. alongwith cost of ₹25,000/- would meet the ends of justice.  

14. Consequently, the Opposite Party Builder is directed to pay interest on the amount deposited @8% w.e.f. 23.08.2015, i.e., the expected date of delivery of the possession, till 01.01.2018, the date on which the outstanding amount was paid to the OP Builder, after deducting a sum of ₹4,91,308/-, the amount already paid towards compensation to the Complainants, within four weeks from today.The OP Builder shall also pay cost of ₹25,000/- to the Complainants.

15. The Consumer Complaint stands partly allowed in above terms.The pending application, if any, also stands disposed off.