1. This Consumer Complaint is filed under Section 21(a) (i) of the Consumer Protection Act, 1986 (for short, the Act), by Mr. Sandeep Singh Randhawa (hereinafter referred to as the Complainant/Buyer) against M/s Emaar MGF Land Ltd. (hereinafter referred to as the Opposite Party/Builder), seeking possession of Unit booked with the Opposite Party along with compensation and other reliefs.
2. The brief facts leading up to the present Complaint are that the Complainant on 18.06.2009 booked a Unit in the project of the Opposite Party called “Emerald Floors at Emerald Greens” located at Sector – 65, Gurgaon, Haryana. The relevant details of the Unit of the Complainant and other related details is as under:

3. The amount paid by the Complainant includes service tax and interest on delayed payment @ 24% per annum as stated in clause 1.2 (c) of the Buyer’s Agreement.  Clause 13 (a) of the Buyer’s Agreement specifically mentioned that Builder shall give possession of the Unit within 27 months from the date of execution of Agreement and another three months as a grace period and as per Clause 15 (a), if it failed to do so, it shall pay a compensation at the rate of Rs. 10/- per sq ft per month for the period of delay within six months of grace period as specified in Clause 13 (a).  The Complainant stated that despite on time payment of the entre demand of the Opposite Party and despite repeated requests and reminders over letters, email, phone calls and personal visits by the complainants, the Opposite Party have failed to deliver the possession of the unit to the complainant, till the date of the filing of the present complaint.
4. Aggrieved by the above acts of the Opposite Party, the Complainant filed this Complaint in this Commission with prayer as under:

“a)      Direct the Opposite Party to the refund of total amount received with respect to apartment as per the payment plan of the Buyer’s Agreement i.e. 39,10,898/-

b)        direct Opposite Party to pay interest @18% per annum as compensation for the above mentioned amount.

c)         direct the Opposite Party to pay an amount of Rs. 5,00,000/- being the deterrent damages; and

d)        direct the Opposite Party to pay an amount of Rs. 5,00,000/- being the deterrent damages; and

e)         direct Opposite Party to a sum of Rs. 2,00,000/- to each complainant towards the cost of litigation; and’

f)         grant such other/further relief as this Hon’ble Tribunal may deem fit under the circumstances.

5. The Opposite Party/ Builder resisted the Compliant by taking main objections as under:
   1. This Commission has no pecuniary jurisdiction. The Complainant has raised inflated claim solely or the purpose of satisfying the pecuniary jurisdiction.

2. The Complainant does not fall within the purview of the Section 2(1)(d)(i) of the Consumer Protection Act, 1986 since a bare perusal of the complaint and the relief claimed therein, clearly reflects that the Complainant is permanent resident of Delhi. The Complainant has apparently booked the flat in question for the purpose of investments/ commercial purpose to reap financial benefit.

3. The construction of the unit belonging to Complainant is completed in all respects and the Opposite Party has applied for the Occupancy Certificate.

4. As per the Agreement, the Complainant was bound to pay the balance amount as per the terms agreed, but the complainant has defaulted in making payments of the instalments.

5. The claim of the Complainant of 12% interest per annum on the amount paid to the Opposite Party is not maintainable as it is outside the purview of the Buyer’s Agreement.

6. The construction of the Unit in question started in November 2016 and the entire basic construction including the internal tile, flooring and wall painting was completed. Defaulted/ Delayed payment of the balance amount slowed down the development.

7. The construction delay is also attributed to force majeure condition faced by the Opposite Party, along with financial constraints.

8. The Complaint has been filed beyond the prescribed period under Section 24A of the Consumer Protection Act, 1986

6. The Complainant, in his rejoinder, denied all the allegations made by the Builder and stated that the Complainant has received the physical possession of the unit on 16.02.2019 i.e. during the pendency of the Complaint.
7. Heard learned Counsel for both the parties and have gone through material available on record.
8. Learned Counsel for the Complainant argued that he booked the Unit in the project of the Opposite Party. The Builder Buyer Agreement was executed on 28.12.2009 with a proposed date of possession on 28.06.2012. He further argued that the offer of possession was made on 05.01.2019 and he had received the possession of the Unit on 10.02.2019. The Conveyance Deed was executed on 17.02.2019. The Complainant has paid an amount of Rs.63,37,845/- for the allotted unit.
9. Learned Counsel of the Builder argued that the Occupation Certificate has been obtained on 03.12.2018. The buyers were obligated to make payment as per the terms agreed. But the Complainant defaulted and delayed in making payments of the instalments towards consideration amount which slowed down the construction of the project. The Ld. Counsel for the Builder further argued that the work was slowed down due to the Force Majeure condition. The contractor responsible for the project's construction caused difficulties for the opposing party.
10. The Complainant in the present case is seeking possession of his Unit along with delay compensation. The possession of the Unit has already been handed over to the Complainant on 10.02.2019.  On the issue of delay compensation, clause 13(a) of the agreement stipulates a period of 27 months plus 3 months grace period, totalling 30 months from the Agreement’s execution date for offering possession. The said date therefore falls on 28.06.2012. However, the Opposite Party acknowledges that the possession offer was made on 05.01.2019. The Opposite Party has definitely committed deficiency of service under the Act for such inordinate delay of 6 years, 6 months and 8 days in handing over timely possession of the Unit due to which evidently the Complainant have suffered.
11. For deciding the rate of interest for delay compensation in case of possession, I would like to rely on a few Judgments of the Hon’ble Supreme Court.
    1. In Santhosh Narasimha Murthy & Ors v. M/s Mantri Castles Private Limited & Anr in Civil Appeal No. 8418 of 2022 decided on 25.07.2023, the Hon’ble Supreme Court held as under:

“11.    For the purpose of these proceedings, counsel appearing on behalf of the home buyers and the first respondent-developer have proceeded on the basis of the dates of possession as indicated in Annexure P-14 to the Civil Appeal. Having due regard to Clause 14.5 of the agreements, each of the sixty-two home buyers is entitled to compensation at the rate of Rs 3 per square foot per month for the delay of nearly six to seven years in granting possession. The compensation shall be payable for each home buyer from the date on which possession was assured (as reflected in Annexure P-14) until 19 February 2023 when possession was handed over by the developer.

12.       The NCDRC has awarded interest at the rate of 6% per annum on the deposits made by the complainants with effect from 28 February 2018 till the offer of possession. This has been questioned on behalf of the home buyers on the ground that they are entitled to interest with effect from the respective dates on which the deposit of consideration was made with the developer. Moreover, it has been submitted that interest at the rate of 6% per annum must be enhanced to 9% per annum.

13.       On the other hand, counsel for the developer submits that the developer had, in addition, paid EMIs on behalf of the home buyers.

14.       The home buyers have submitted that the EMIs were paid in terms of the scheme which was agreed upon and were paid only for some of the home buyers.

15.       The home buyers are entitled to interest with effect from the assured dates of possession until the offer of possession was made on 19 February 2023.

16.       In the facts of the present case, we affirm the award of interest at the rate of 6% per annum by the NCDRC subject to the modification that interest shall be payable with effect from the respective dates prescribed in the agreements for delivery of possession.

17.       We accordingly allow the appeal filed by the home buyers in the following terms:

(i)        The home buyers shall be paid compensation on account of delayed possession at the rate of Rs 3 per square foot per month in terms of clause 14.5 of the buyer agreements. 

(ii)       For computing the amount due under clause 14.5 in terms of (i) above, the assured dates of possession, as reflected in Annexure P-14, shall be the dates with effect from which the payment would be computed. The compensation shall be payable until 31 January 2023.

(iii)     The home buyers shall be entitled to interest at the rate of 6% per annum with effect from the respective dates fixed for handing over possession, as reflected in Annexure P-14; and

(iv)    The amounts which are due and payable in the above terms shall be paid over on or before 30 September 2023.

18.       The appeal is accordingly allowed.

19.       Pending applications, if any, stand disposed of.

Civil Appeal No Diary No 1490 of 2023

20.       Delay condoned.

21.       The appeal is disposed of in terms of the order passed in Civil Appeal No 8418 of 2022.

22.       Pending applications, if any, stand disposed of.”

2. In DLF Home Developers Ltd. (Earlier known as DLF Universal Ltd) and Another Versus Capital Greens Flat Buyers Association in Civil Appeal No. 3864-3889 of 2020 decided on 14.12.2020, the Hon’ble Supreme Court held as under:

“It is true that in the present case, the contractual rate of Rs 10 per square foot per month is double the rate fixed in the agreements in the above case. On the other hand, the court must be conscious of the fact that the situation in the real estate market in Delhi is very distinct from that in Bengaluru both in terms  of rentals and land values.  This has not been disputed. The flat buyers had to suffer on account of a substantial delay on the part of the appellants. In such a situation, they cannot be constrained to the compensation of Rs 10 per square foot provided by the agreements for flat purchase. However, having regard to all the facts and circumstances, we are of the view that the compensation on account of delay should be brought down from 7% to 6%. Moreover, the amount, if any,  which has been paid in terms of the contractual rate shall be adjusted while computing the balance due and payable in terms of the judgment. (In the earlier decision noted above, compensation at 6% was ordered to be paid in addition to the contractual rate since the amenities agreed to be provided by the developer had not been set up).

11. Accordingly, we allow the appeals in part to the following extent:

i.          The compensation on account of delay in handing over possession of the flats to the flat buyers is reduced from 7% to 6%; and 

ii.         The direction for the refund of parking charges and club charges and interest on these two components shall stand set aside.

12. We clarify that the directions of the NCDRC are upheld, save and except, for the above two modifications in terms of clauses (i) and (ii) above. The payment at the rate of 6% per annum shall be made after making due adjustments for the compensation for delay at the contractual rate (where it has been paid in terms of the agreement to the flat purchasers). The order shall be complied with within a period of two months from today.”

3. In Supertech Ltd. Vs. Rajni Goyal, (2019) 17 SCC 681 decided on 23.10.2018, the Hon’ble Supreme Court held as under :-

“However, the Commission held that since there was a delay in handing over possession of the flat to the Respondent purchaser, the Appellant builder was liable to pay interest to the Respondent purchaser by way of compensation.  The scheduled date for handing over possession was 31.10.2013.  The Appellant builder had issued the pre-possession letter on 31.10.2015.  As per the Respondent purchaser, the Appellant builder did not have the occupancy certificate on that date. The Commission directed the Appellant builder to pay compensation in the form of simple interest @ 8% p.a. from 1.11.2013 till the date on which possession was actually offered to the Respondent purchaser.

The Appellant builder inter alia submitted that possession of the flat was offered to the Respondent purchaser in December, 2015 after obtaining the completion certificate for the building. Even though the agreement provided for delivery of possession by 31.10.2013, the delay occurred because of various legal impediments in timely completion of the project because of various orders passed by the National Green Tribunal. The delay ought to be computed from six months after 31.10.2013 i.e. from 1.5.2014 by taking into consideration, the 6 months grace period provided in the agreement. Furthermore, the period of interest should close on April, 2016 when the full occupancy certificate was obtained as per the admission of the Respondent purchaser herself in para 4 (j) of the Consumer Complaint, wherein she has admitted that the Appellant builder had obtained the completion certificate as late as April, 2016 with respect to delay in handing over possession.  The Respondent purchaser ought not to be allowed to reap the benefits of her own delay in taking possession.  In the light of the aforesaid discussion, the period of compensation of interest must be computed from 1.5.2014 till 30.4.2016 at the rate awarded by the Commission.  The Order of the Commission is modified only to the extent mentioned hereinabove. The Appeals are disposed of accordingly.”

12. I am relying on the Order of the three Judge Bench of the Hon’ble Supreme Court in Santosh Narasimha Murty & Ors. (Supra) for the rate of interest in case of delay compensation considering the magnitude of delay and peculiarities of this case.  The delay has been unreasonable. 
13. In view of the discussion above, the Complaint is allowed with directions as under:

1. The Opposite Party/ Builder shall pay to the Complainant delay compensation @ 6% per annum from the due date of possession as per Agreement including the grace period (which is 28.06.2012), till the offer of possession (which is 05.01.2019) within six weeks of this Order.  Any delay beyond six weeks, will attract an interest rate of 9% per annum for the same period.
2. The Opposite Party shall also pay to the Complainant Rs.10/- per sq. feet of super area per month in terms of Clause 15 (a) of the Buyer’s Agreement from 28.09.2012 till 05.01.2019.