This Complaint has been filed under Section 12 (1)(a) read with Section 21 of the Consumer Protection Act, 1986 (for short “the Act”) by the Complainant, Ram Singh Chauhan against the Opposite Party, M/s. DLF Universal Ltd. (hereinafter to be referred to as “the Developer”), seeking the following reliefs:

“a) Direct the Opposite Party to pay to the Complainant interest/ compensation Rs.1,02,84,600/- for the period 01.07.2012 to 10.08.2017 @ 18% p.a. on Rs.1,12,40,000/- on account of delayed possession;

 

b) Direct the Opposite Party to pay to the Complainant interest/ compensation Rs.6,39,600/- for the period 01.04.2013 to 10.08.2017 @ 18% p.a. on Rs.8,20,100/- on account of delayed possession;

 

c) Direct the Opposite Party to refund the amount of Rs.11,22,147/- (139 sq. ft.*8073) collected under the guise of increase in Super Area Unilaterally and without there being  any change in the carpet area;

 

d) Direct the Opposite Party to refund the amount of Rs.15,00,000/- collected for the peripheral services  likes school etc. as the same are not present at the site;

 

e) Direct the Opposite Party to pay to the Complainant Minimum Admitted compensation  i.e. Rs.9,47,400 @ Rs. 10 per sq. ft. of the super area of apartment per month (for 1579 sq. ft.) for the period 1.07.2012 to 10.08.2017/ date of filing complaint;

 

f) Direct the Opposite Party to compensate the Complainant to tune of Rs.20,00,000/- for the mental and physical harassment caused to him on account of the unreasonable delay;

 

g) Refund/ compensate the Complainant for the additional Service Tax/ GST which was paid by the Complainant on account of delay which is solely attributable to the Opposite Party;

 

h) Refund the additional amount collected under the guise of super area without any change in carpet area.

 

i) Refund/ compensate the Complainant for the additional EDC/IDC collected by the Opposite Party; and 

 

j) Pay to the Complainant Litigation Expenses of Rs.2,50,000/-.

 

k) Refund Any other order or orders as may deems fit and proper  may also be passed.”

 

 

2. The brief facts as stated in the Complaint are that the Complainants enticed by the eye catching advertisements, assurances and representations made by the representatives of the Developer that the possession of the Flat will be delivered within three years from the date of booking, booked a Flat No. CGT 033 in the Project known as “DLF Capital Green” Phase II, Shivaji Marg,  New Delhi-110015 (hereinafter to be referred to as the Project) in September, 2009. It is stated that the Complainant under Down Payment Plan, paid the entire sale consideration of ₹1,12,40,000/-, except registration cost, to the Developer by April, 2010. It is averred that the Apartment Buyer’s Agreement (hereinafter to be referred to as “the Agreement”) was belatedly executed on 26.03.2010 i.e. almost after seven months from the date of booking and that some of the Clauses of the Agreement were arbitrary, unfair, unjust and one-sided. It is alleged that the Complainant was coerced to sign the one-sided Agreement inasmuch as the Developer threatened him to forfeit the amount paid by him in case of any objection. It is further stated that the total Sale Consideration was increased to ₹1,18,20,000/- without any change in the Carpet Area and the Complainant was also charged preferential charges without any prior consent. 

03. It is averred in the Complaint that in the Agreement the date of handing over the possession was unilaterally changed to three years from the date of the execution of the Agreement. The amount payable by the Complainant was the essence of the Agreement, however for any delay in handing over the possession of the Flat by the Developer, a meagre compensation of ₹10/- per sq. ft. per months was payable in terms of Clause 14 of the Agreement, which comes to around 0.5% p.a. rate of interest.  

4. According to the Complainant, vide letter dated 10.03.2010, he was informed by the Developer that all the requisite permissions for construction of the Project had been obtained but he was informed by the Developer, vide letter dated 19.12.2011 that the construction was in progress, however, the Building Plan has been approved only in October, 2011. The Complainant, vide letter dated 02.01.2012,  expressed his concern for the delay caused and stated that he had made the complete payment and on account of delay in construction he was suffering huge financial losses. Thereafter, on 19.07.2012, the Complainant received another letter from the Developer admitting that there was delay in completing the Project and they justified the delay on the pretext of ‘force majeure’ conditions on account of lapse on their part in getting requisite approval from Competent Authorities which is totally contrary to the representations made to him. Vide letter dated 23.07.2012, the Complainant informed the Developer that the delay of 16 months in obtaining statutory approvals does not come within the meaning of ‘force majeure’. According to the Complainant, the Developer has illegally collected the huge amount from him without having the requisite approvals and he took the objection on it with the Developer. By letter, dated 25.10.2012 though their Counsel, the Developer informed the Complainant that under Clause 55 of the Agreement they have appointed a Sole Arbitrator with regard to the alleged disputes between the Parties.  In response to the said letter/notice, the Complainant sent a letter dated 30.10.2012 reiterating that dispute regarding the interest payable by the Developer will be raised at an appropriate stage. 

5. Vide letter dated 28.02.2013, the Developer arbitrarily raised additional demand of ₹8,20,074/- on account of increase in the saleable area from 1440 sq. ft. to 1538.33 sq. ft. However, the Complainant paid the said amount on 28.03.2013 under protest as the possession of the Flat was getting delayed and he had paid a huge amount. It is averred that the Developer has indulged in cheating and Unfair Trade Practice by launching the Project and collecting huge amounts from the Buyers without getting the land and requisite permissions from the Competent Authorities. It is alleged that even after three years of collecting the full payment from the Complainant, the Developer failed to complete the construction and hand over the possession of the Flat in a timely manner, i.e., by June, 2012. In the year 2014, the Complainant was shocked to find out that the work was completely stopped by the Developer at the site. Vexed with the attitude of the Developer and huge delay in handing over of possession of the Flat, the Complainant alleging Unfair Trade Practices and gross deficiency in services on the part of the Developer approached the Delhi State Consumer Disputes Redressal Commission by filing a Complaint seeking redressal of the his grievance. It is averred that vide email dated 01.12.2017, the Developer demanded an additional amount of ₹2,52,738/- from the Complainant which was increased to ₹6,38,197/- as the club charges were doubted and the Super Area was increased. The Complainant was also burdened with additional charges of Service Tax/GST due to delay in the Project. The Developer has also failed to construct and deliver the promised facilities like school etc. However, during the pendency of the said Complaint, after a substantial delay of more than five years, the possession of the Flat was finally handed over to the Complainant in August, 2017, which was accepted by the Complainant without prejudice to his rights. 

6. On 09.01.2018, in view of the larger Bench decision of this Commission in the case of Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd, - I (2017) CPJ I (NC) as the Delhi State Consumer Disputes Redressal Commission has no jurisdiction to entertain the Complaint, the Complaint was withdrawn with liberty to file a fresh Complaint before the Appropriate Forum. 

7. Thereafter, alleging deficiency in service and malpractices on behalf of the Developer in completion of the Project, the Complainant approached this Commission with the aforenoted reliefs.  

08. Upon notice, the Developer contested the Complaint by filing its Written Statement and admitting to the booking, Allotment, receipt of amount and execution of the Agreement dated 26.03.2010, wherein the Developer has agreed to complete the construction and deliver the possession of the Flat within 36 months from the date of execution of the Application subject to ‘Force Majeure’ conditions. It is pleaded, inter-alia, in the Written Statement that; the Complainant is not a “Consumer” as defined under Section 2 (1) (d) of the Act and he is a real estate speculative Investor; the dispute if any can be referred to Arbitration and in absence such can be tried only in a Civil Court; the Complaint filed in the year 2018 is time-barred; the Complainant was not forced to sign the Agreement under the threat of forfeiture of the deposited amount; delay in completion of the construction work of the Project has occurred on account of extra time taken by the concerned Authority in granting permission and necessary approvals; the Developer applied for approval of Layout Plan in  December, 2009, when the Project was launched  but the approval was received in June, 2010 and immediately thereafter in August 2010 the Developer has applied for approval of Building Plans which were approved on 20.10.2011, i.e. after about 14 months; parties are bound by the terms and conditions of the Agreement as observed by the Hon’ble Supreme Court in the case of Bharti Knitting Co. Vs. DHL Worldwide Courier – (1996) 4 SCC 704;  there was a halt in construction work from 26.05.2014 to 30.07.2015 on account of Prohibitory Order dated 26.05.2014, passed by the Director of Industrial Safe and Health (Labour Department) Government of National Territory of Delhi on account of an unfortunate accident on site in which one worker was fatally injured. Vide Orders dated 16.09.2014, 06.01.2015 and 30.01.2015 permission was granted to resume the construction work in phased manner and finally on 30.07.2015, the permission was granted to resume work on all the 23 towers, which also led to considerable delay in completing the construction and the same cannot be attributed to the Developer. All the afore-noted reasons were beyond the control of the Developer and falls under ‘Force Majeure’ conditions as mentioned in Clause 11 of the Agreement and the Developer cannot be made liable for the delayed acts of the Competent Authorities in granting the necessary approvals and for the Order of Competent Authorities prohibiting the construction work. 

09. It is further pleaded that Vide letter dated 19.07.2012, the Complainant was informed about the delay of 16 months in obtaining approvals from the Competent Authority, which was beyond the control of the Developer and that the time for completion of construction was revised from 36 months to 52 months and the Complainant was given a fair exit option @ 9%, which was not opted for by him and he continued with the allotment and agreed to the delay in completing the construction. It is further urged that the issues involved in the present Complaint relates to the interpretation and implementation of the terms of the Agreement and this Commission does not have the jurisdiction to go into the interpretation of, or rights of the Parties in accordance with the Agreement, which can only be exercised by a Civil Court. The relief sought for by the Complainant is contrary to the terms of the Agreement and that in terms of Clause 11 (a) of the Agreement, the Complainant is only entitled for compensation @ ₹10/- per sq. ft. per month for any delay in handing over of possession of the Flat, which comes to ₹4,00,244/- and the same has already been adjusted in the Accounts of the Complainant. 

10. It is submitted that on 30.03.2017, the Complainant executed an Indemnity cum Undertaking Bond for taking the possession of the Flat, wherein the Complainant waved off his rights to raise any claims against the Developer. Therefore, all the prayers made by him in the present Complaint had already been waved off by him vide the aforesaid Bond at his own will and volition. The possession of the Flat was handed over on 10.07.2017. All the other averments made in the Complaint have been denied by the Developer and sought for dismissal of the Complaint with costs.   

11. In Rejoinder, the Complainant reiterated the averments made in the Complaint and denied the averments made in the Written Version. It is further submitted that the Complainant has accepted the possession in August, 2017 without prejudice to his rights and claims. It is averred in the Rejoinder by the Complainant that the Complainant under coercion executed the Indemnity Bond dated 30.03.2017 as the Developer was withholding the possession, which is a clear Unfair Trade Practice adopted by the Developer.  

12. We have heard the learned Counsel for the Parties at some length and also perused the material available on record. 

13. In brief, it is the case of the Complainant that in September 2009, he booked a Flat No. CGT 033 admeasuring 1440 sq. ft. in the Project, namely, “DLF Capital Green” proposed to be developed by the Opposite Party Developer in Phase II, Shivaji Marg, New Delhi-110015. During the period from September, 2009 to April, 2010, the Complainant paid the entire consideration of ₹1,12,40,000/- to the Developer. The Apartment Buyer’s Agreement was executed on 26.03.2010 between the parties. In terms of the Clause 11 (a) of the Agreement, the Developer was under an obligation to hand over the possession of the booked Apartment to the Complainant within a period of 36 months from the date of Application unless their shall be delay or failure due to Force Majeure conditions and as such the possession was to be handed over to the Complainant in the year 2012. However, the possession has been handed over to the Complainant in August 2017 after a delay of over five years and as such he is entitled for the compensation for delay in possession. 

14. With regard to the preliminary objection taken by the Developer that due to existence of Arbitration Clause in the Agreement, this Commission has no jurisdiction to entertain the Complaint, 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 the Arbitration Clause in the Agreement does not bar the jurisdiction of the Consumer Fora to entertain the Complaint.

15. The contention of the Learned Counsel for the Developer that the Complainant is not a ‘Consumer’ as the Complainant has booked the Apartment for earning profits and for investment purpose, is completely unsustainable in the light of the judgement 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 Complainant is a ‘Consumer’ as defined under Section 2 (1)(d) of the Act.  

16. In support of Complainant’s case, learned Counsel appearing for the Complainant has placed reliance on the decision rendered by a Coordinate Bench of this Commission in Capital Greens Flat Buyer Association Vs. DLF Universal Limited and connected matters - I (2020) CPJ 297 (NC) which relates to the same Project, i.e. “DLF Capital Greens” situated at Shivaji Marg, Moti Nagar, New Delhi. We find that the defence taken by the Developer in the present Complaint is more or less similar to that taken in the aforesaid decision. While dealing with the similar reasons taken by the Developer for delay in handing over the possession in the afore-referred case, the Coordinate Bench of this Commission has observed as under:-

“12.    The complaints have been resisted by the developer on several grounds.  It has been inter-alia stated in the written version filed by the developer that there has been no deficiency on its part in rendering services to the allottees and they have not indulged into any unfair trade practice or restrictive trade practice.  It is further stated in the reply filed by the developer that at the time of booking itself, the allottees were informed that the plans had not yet been sanctioned and the schedule for delivering possession of the apartments was tentative. 

 

As regards early payment rebate and timely payment rebate, it is submitted that early payment rebate has been given to all the allottees who made early payment, whereas timely payment rebate which was to be given as an adjustment, has been given to all the allottees who were not in default at the time possession was offered. 

 

As regards the delay in offering possession, it is stated that the developer had applied for the approval of the building plan of Phase-I in May 2009 but the approval was granted in March 2010, though usually it takes three to six months to grant such an approval.  It is alleged that the building plans for Phase-II could not be filed earlier since it took seven months for revision of the lay out plan and the said approval came only in August 2011 despite having been applied in August 2010.  As regards Phase-III, it is stated that the approval came in February 2013, though it was applied in January 2011.  It is also submitted that in view of the aforesaid delays, the allottees of Phase-II & Phase-III were given option of exiting from the project, by taking refund with 9% interest.   

 

It is also stated that Director of Industrial Safety and Health (Labour Department) of Government of NCT had prohibited construction at the site of this project on 26.05.2014, on account of an unfortunate accident involving injury to a worker.  The construction work was permitted to be resumed only on 16.09.2014 in respect of 5 towers w.e.f. 06.01.2015 in respect of another five towers, w.e.f. 30.01.2015 in respect of yet another 5 towers, and w.e.f. 30.07.2015 in respect of all the 23 towers.  The aforesaid Prohibitory order, according to the developer, resulted in delaying the construction.  It is also submitted that though the allottees were given escalation free allotments, they are entitled to compensation @ Rs.10 per sq. feet of super area in terms of clause 14 of the agreements though it would be payable to those allottees who had made timely payment of the installments.

 

It is stated in the written version filed by the developer that common areas and facilities u/s 3 (j) of Delhi Apartment Ownership Act does not include the common areas and facilities which were designated by the developer in writing prior to allotment or which were reserved for use of certain apartment or apartments to the exclusion of other apartments and the allottees were clearly informed about the areas which were to constitute part of the common areas and the areas in which they would have to pay separately.  The Club House and the basement parking, according to the developer, did not form part of the common area. 

 

 SUPER AREA

 

13.    In terms of Annexure-II of the Agreements executed between the developer and the allottees, the price of the apartments was to be calculated on the basis of its super area.  It was also noted in the above referred clause that the super area mentioned in clause 1.1 was only tentative and could change.  The allottees had agreed not to object to the change of the super area.  However, if the super area was to increase/decrease by more than 15% on account of any alteration/ modification/ change, the allottees were required to be intimated in writing before carrying out the proposed change and had an option to take refund of the payment which they had made to the developer alongwith interest. 

The super area in terms of Annexure-II of the Agreements was to consist of the apartment area, pro-rata share of the common areas of the building and pro-rata share of other common areas outside the building, as defined therein.

14.    In the project subject matter of these complaints, the developer has not sought additional payment for increase in the super area beyond 15%.  Therefore, no prior notice to the allottees was required before increasing the super area and to the extent there has been actual increase in the super area, as defined in Annexure-II of the Agreements, the allottees are required to pay for such an increase. The allottees had also agreed that not only the super area but even the percentage of the apartment area to the super area could change and they would have no objection to change of the said ratio, though the case of the OP is that the ratio has not changed and the same continues to be 78.5% of the super area.  The developer has filed the affidavit of its Additional Chief Architect Mr. Mukul Gupta who has stated on oath that the final super area based on the approved completion drawings which includes floor plans, unit area plans, elevation and sections of the building was verified and quantified by external experts M/s. GAA Advisory, who also determined the common area and pro-rata share of the apartment in the common areas.  The detailed report of GAA Advisory in respect of all the three phases has been filed with the Convenience Compilation filed by the developer. It is stated in the affidavit  that the super area so determined by GAA Advisory was rechecked and verified by the School of Planning and Architecture, Delhi and the reports of the said School have been filed with the Convenience Compilation. 

Though, the affidavits of the experts from GAA Advisory and the School of Planning and Architect have not been filed, I see no reason to disbelieve their respective report supported by an affidavit of the Architect, when no material to the contrary has been field by the allottees.  Therefore, I have no hesitation in holding that the additional demand on account of increase in the super area, which has been restricted to 15% of the super area stated in the agreements, is justified.  Though, the ratio of the apartment area to the super area could also change, it is stated in the affidavit of Mr. Mukul Gupta that the final percentage of the apartment area to the super area of the apartment is not less than 78.5% and there is no material to the contrary filed by the allottees.   Therefore, I find no justification in the grievance with respect to the demand on account of increase in the super area of the apartments.

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FORCE MAJEURE CIRCUMSTANCES

26.    Admittedly the possession of the apartments has been considerably delayed.  According to the developer the delay happened primarily on account of the abnormal time taken in approval of the building plans and the order issued by the Government of NCT of Delhi, prohibiting construction for a considerable time. The said circumstance, according to the developer was beyond its control therefore, the allottees are not entitled to any compensation for the period the possession has been delayed on account of the aforesaid factors.  It is an admitted position that the building plans had not been approved at the time allotments were made in this project.  The submission of the complainants is that the allotment of the flats without obtaining all the requisite approvals was by in itself an unfair trade practice and in any case, being an experienced developer, 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.  In the submission of the allottess, the time taken by the concerned authorities in sanction of the building plans cannot be a force majeure circumstance, since it was very much in the contemplation of the developer at the time the allotments were made.  The learned counsel for the developer, on the other hand, submitted that though the time ordinarily taken for grant of such approvals may have been factored in by the developer 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 developer 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 developer in preparation and submission of the building plans etc.  Though, the allottees were given an option to exit from the project with 9% interest, they were not bound to accept the said exit option they having booked the apartment for the purpose of having a roof over their head and not for the purpose of earning interest on the amount paid to the developer.

In any case no force majeure circumstance has been sought on account of the delay in sanction of the building plans, in the force majeure chart submitted by the developer.

27.    A perusal of the prohibition letter dated 26.5.2014 issued by the Directorate of Industrial Safety & Health (Labour Department), Government of NCT of Delhi would show that there have been as many as six fatal accidents at the side of this project.  One death each of the workers took place on 04.9.2011, 11.4.2012, 16.8.2012, 28.2.2013, 16.1.2014 and 17.5.2014.  The work at the site was not stopped by the Government despite loss of five lives prior to 17.5.2014.  After a fatal accident on 17.5.2014, an inspection was carried out and it was revealed that a worker had slipped while applying paint on tower No.14 and had later died. It was in view of the repeated accidents in the past on the same site, that the authorities held that the said site was dangerous to the safety and health of building workers. It was also noticed that despite previous directions issued by the Government and suggestion given by the National Safety Council vide its Safety Audit Report on 3.4.2014, the requisite measures for safety of the workers had not been taken.  The Government was therefore constrained to stop the construction work till all the safety, health and welfare provisions were taken.  Had the developer or the contractor engaged by it taken the requisite measures and complied with the directions issued by the Authorities and implemented the suggestions given by National Safety Council, the unfortunate incident of 17.5.2014, resulting in loss of sixth human lives at the same project would not have happened and consequently the work at this site would not have been stopped.  Though, it was submitted on behalf of the developer that they had engaged a reputed company L&T to construct the buildings and the said contractor had taken all the requisite safety measures, no material has been placed before this Commission to prove that the safety measures taken by the contractor were adequate and in conformity with the rules.  Had all the requisite safety precautions been taken as many as six incidents at the same site resulting in loss of six precious human lives would not have happened in a span of 2 ½ years.  Therefore, the developer, in my opinion cannot get any advantage on account of the aforesaid prohibitory order dated 26.5.2014 by taking advantage of its own negligence or the negligence of the contractor engaged by it.  In any case, the compensation which the developer will have to pay to the allottees can always be claimed by it from the contractor to the extent it relates to the period the work was prohibited by the Government on account of the above referred fatal accidents.

 28.    The developer has also claimed force majeure circumstances on account of the delay in grant of the occupancy certificate.  Again, no material has been placed on record to show how much is the time usually taken for grant of occupancy certificate in respect of such a large project.  The opposite party being an experienced developer knew, even at the time allotments were made and the agreements with the flat buyers were executed that sometime would be taken by the concerned authorities in issuance of the occupancy certificate.  In any case, the correspondence exchanged between the developer and the concerned authorities has not been placed on record to prove that there had been no defect or deficiency in the construction raised and the documents submitted by the developer to the concerned authorities for grant of the occupancy certificate and despite that the concerned authorities took more than reasonable time in issuance of the occupancy certificate.

29.    For the reasons stated hereinabove, I hold that the OP has failed to establish any force majeure circumstance for the delay in offering possession of the allotted flats to the concerned allottees.”

INDEMNITY-CUM-UNDERTAKING

30. The developer, while offering possession of the allotted flats insisted upon execution of the Indemnity-cum-Undertaking before it would give possession of the allotted flats to the concerned allottee. Clause 13 of the said Indemnity-cum Undertaking required the allottee to confirm and acknowledge that by accepting the offer of possession, he would have no further demands/claims against the company of any nature, whatsoever.

It is an admitted position that the execution of the undertaking in the format prescribed by the developer was a pre-requisite condition, for the delivery of the possession. The opposite party, in my opinion, could not have insisted upon Clause 13 of the Indemnity-cum-Undertaking. The obvious purpose behind such an undertaking was to deter the allottee from making any claim against the developer, including the claim on account of the delay in delivery of possession and the claim on account of any latent defect which the allottee may find in the apartment. The execution of such an undertaking would defeat the provisions of Section 23 and 28 of the Indian Contract Act, 1872 and therefore would be against public policy, besides being an unfair trade practice. Any delay solely on account of the allottee not executing such an undertaking would be attributable to the developer and would entitle the allottee to compensation for the period the possession is delayed solely on account of his having not executed the said undertaking-cum-indemnity.

COMPENSATION

31.    The next question which arises for consideration is the quantum of the compensation to which the allottees are entitled on account of the delay in offer of possession made to them.  Though, the submission of the learned counsel for the developer was that the allottees are entitled to compensation only @ Rs.10/- per sq. ft. of the super area per month as per the agreements executed between the parties, Such one-sided agreements have consistently been held to be unfair not only by this Commission but also by the Hon’ble Supreme Court.  A reference in this regard can be made to the decision of the Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. GovindanRaghavan (2019) 5 SCC 725 which to the extent it is relevant, reads as under:

“6.4. A perusal of the Apartment Buyer’s Agreement dated 08.05.2012 reveals stark incongruities between the remedies available to both the parties.

For instance, Clause 6.4 (ii) of the Agreement entitles the Appellant – Builder to charge Interest @18% p.a. on account of any delay in payment of installments from the Respondent – Flat Purchaser.

Clause 6.4 (iii) of the Agreement entitles the Appellant – Builder to cancel the allotment and terminate the Agreement, if any installment remains in arrears for more than 30 days.

 On the other hand, as per Clause 11.5 of the Agreement, if the Appellant – Builder fails to deliver possession of the apartment within the stipulated period, the Respondent – Flat Purchaser has to wait for a period of 12 months after the end of the grace period, before serving a Termination Notice of 90 days on the Appellant – Builder, and even thereafter, the Appellant – Builder gets 90 days to refund only the actual installment paid by the Respondent – Flat Purchaser, after adjusting the taxes paid, interest and penalty on delayed payments. In case of any delay thereafter, the Appellant – Builder is liable to pay Interest @ 9% p.a. only.

 6.5. Another instance is Clause 23.4 of the Agreement which entitles the Appellant – Builder to serve a Termination Notice upon the Respondent – Flat Purchaser for breach of any contractual obligation. If the Respondent – Flat Purchaser fails to rectify the default within 30 days of the Termination Notice, then the Agreement automatically stands cancelled, and the Appellant – Builder has the right to forfeit the entire amount of Earnest Money towards liquidated damages.

 On the other hand, as Clause 11.5 (v) of the Agreement, if the Respondent – Flat Purchaser fails to exercise his right of termination within the time limit provided in Clause 11.5, then he shall not be entitled to terminate the Agreement thereafter, and shall be bound by the provisions of the Agreement.

 6.6. Section 2 (r) of the Consumer Protection Act, 1986 defines ‘unfair trade practices’ in the following words :

 “‘unfair trade practice’ means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice …”, and includes any of the practices enumerated therein. The provision is illustrative, and not exhaustive.

 6.7. A term 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.”

32.    It is submitted on behalf of the developer that the allottees have not proved any loss or damage to them on account of the delay in offer of possession, whereas there has been substantial appreciation in the value of the apartments.  I am unable to accept the contention that there has been no loss to the allottees on account of the delay in offer of possession.  Had the apartments been delivered to them in time, they would have been living therein, besides having the mental satisfaction of living in their own houses.  Also, it can hardly be disputed that the allottee who waits for a long time for the possession of the apartments allotted to him by a developer, despite his having made payment in time either from his own savings or by raising loans undergoes a lot of mental agony and harassment on account of the said delay and the umpteen rounds he has to make to the office of the developer just to realize the fruits of his hard-earned income.  Moreover, if such terms are allowed to prevail, an unscrupulous builder would like to take advantage of such a term and delay the construction of the flat for an indefinite time, utilizing the money collected from the flat buyers for other projects or for its other purposes.  Such a situation cannot be accepted by a consumer forum which is set up primarily to protect the genuine interests of the consumers.   A paltry compensation of say Rs.10/- per sq. ft. of the super area per month is at best a token compensation and does not provide adequate redress to the aggrieved allottee.  If the developer knows that he can get away with paying such a paltry compensation, there will be no pressure on him to complete the construction and delivery of possession to the allottees since he knows that the said token compensation is only a fraction of the cost of the borrowings if he has to borrow funds from the market, including banks and financial institutions.”

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34. Considering all the facts and circumstances, particularly the circumstances peculiar to this case, the allottees in my opinion, should be paid compensation in the form of simple interest @ 7% per annum from the expected date for delivery of possession till the date on which the possession was actually offered to them. If the possession to an allottee has been delayed solely on account of his having not executed the Indemnity-cum-Undertaking prescribed by the developer, the compensation to such an allottee should be paid with effect from the expected date for delivery of possession till the date on which the consumer complaint was actually instituted by/on behalf of such an allottee.

17. In the aforesaid decision, the Co-ordinate Bench of this Commission rejecting the defence of force-majeure conditions taken by the Developer, has directed the Developer to charge additional amount on account of increase in the super area of the Apartment from the Complainant and to pay compensation in the form of simple interest @7% p.a. from the expected date for delivery of possession till the date on which the possession was actually offered to the Allottees. 

18. At this juncture, it would not be out of place to mention here that against the aforesaid judgement of the Co-ordinate Bench of this Commission, Civil Appeal Nos. 3864-3889 of 2020 were filed before the Hon’ble Supreme Court.  The Hon’ble Apex Court, Vide its order dated 14.12.2020, has dismissed the Civil Appeals filed by the Developer, with modification to the extent that the compensation on account of delay in handing over possession of the flats to the flat buyer is reduced from 7% to 6%.

19. In the present case, the possession of the booked Apartment had already been handed over to the Complainant in August 2017 prejudice to his rights and claims. 

20. Respectfully following the aforesaid decisions of the Hon’ble Supreme Court and the Co-ordinate Bench of this Commission, we are of the considered view that the Developer is entitled to the additional demand on account of increase in the Super Area of the Apartment and the Developer shall be liable to pay compensation in the form of simple interest @ 6% p.a. from the expected date of delivery of possession till handing over the actual possession. This apart, the Developer shall pay a sum of ₹50,000/- to the Complainant towards the costs of litigation. 

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