Taken up through video conferencing. C.C. No. 2405 of 2019 and C.C. No. 2406 of 2019 1. Similar facts and same questions of law are involved in these two consumer complaints. As such, they are being disposed of vide this common order, with the C. C. No. 2405 of 2019 being taken as the lead–case. C.C. No. 2405 of 2019 (lead case) 2. Heard the learned counsel for the complainant, the learned counsel for the opposite party builder co. and Mr. Harpreet Singh Batra, managing director of the builder co. in person. Perused the entire material on record, including inter alia the complaint, the written version of the builder co., the rejoinder thereto and the evidence filed by the two sides. 3. This complaint was instituted under Section 12(1)(a) read with Section 21(a)(i) and Section 22 of the Act 1986 (which was as then in force). The matter relates to a builder – buyer dispute. To put it succinctly, the written version and the evidence of the builder co. itself shows that an agreement dated 22.04.2013 was entered into between the complainant and the builder co., it is admitted by the builder co. that a sum of Rs. 59,70,531/- was deposited by the complainant with the builder co. in the period between 26.10.2011 to 14.11.2016, it is also admitted that, inclusive of the grace period of 06 months provided for in the agreement, the agreed and assured date of offering delivery of possession of the subject unit was 22.10.2016. The aforesaid facts appear to be beyond dispute as they were also admitted to by both sides during the arguments today. (Learned counsel for the complainant further submitted that though in all Rs. 59,91,247/- was deposited by the complainant; however, the amount of Rs. 59,70,531/-, admitted to by the builder co., may be taken, and the complainant, desiring speedy redressal of his complaint, does not wish to agitate the difference of Rs. 20,716/-.) 4. Learned counsel for the builder co. argued that an application for obtaining the completion-cum-occupancy certificate of the subject project has been made on 15.04.2021. Citing financial difficulty in the obtaining economic scenario, learned counsel argued that the builder co. be provided further opportunity to obtain the completion-cum-occupancy certificate, complete the subject project, and offer possession of the subject unit to the complainant with some compensation for delay. Similar submission was made by Mr. Harpreet Singh Batra, managing director of the builder co. We note that, by the builder co.’s own admission, though the agreed and assured date (inclusive the grace period of 06 months provided for in the agreement) for offering possession was 22.10.2016, yet on date, i.e. on 17.08.2021, after about 04 years and 09 months, too, even the completion-cum-occupancy certificate is not available (only an application to obtain the said certificate is stated to have been made on 15.04.2021). 5. Learned counsel for the complainant argued that there has been undue, unreasonable, inordinate and indefinite delay in offering possession, beyond the agreed and assured date of 22.10.2016. The complainant has availed of home loan to finance the subject unit, his repeated requests for refund of his deposited money with interest / compensation have been callously ignored by the builder co., he is no longer willing to wait further for offer of possession, as the things obtain, the complainant only wishes to get back the refund of his deposited amount with interest / compensation. Learned counsel further argued that, aggrieved by the deficiency in service and unfair trade practice of the builder co., many other consumers of the same builder co. had approached this Commission and filed consumer complaints, and the matters have already been adjudicated in favour of the concerned consumers by a co-ordinate bench. Learned counsel emphasized that the facts of this case are fully covered by the Order dated 12.09.2018 of this Commission in similar matters passed in consumer complaints no. 3011-3020 of 2017, in which the opposite party was the same builder co., i.e. M/s Imperia Structures Limited. Learned counsel also pointed out that against the said Order of this Commission, civil appeal no. 3581-3590 of 2020 (@ civil appeal diary no. 9796 of 2019) was filed by the builder co. but the same has been dismissed by Hon’ble Supreme Court vide its Order dated 02.11.2020 with additional cost of Rs. 50,000/- each to the each of the complainants. We have been taken through the Order dated 12.09.2018 of this Commission in consumer complaints no. 3011-3020 of 2017 and we note that the present case is similar to the matters in the said consumer complaints, similar facts and same questions of law are involved. 6. Here it is relevant that in order to arrive at an equitable and just solution in the instant case at hand, this bench, vide its Order dated 30.07.2021, had made the following direction: The chief executive of the opposite party builder co. (by name and by designation) shall file his affidavit within a period of two weeks from today to explain the builder co.’s policy in matters in which the principal amount is indefinitely retained by the builder co. and the possession is unreasonably and unduly delayed. And, on the next date of hearing, the chief executive shall be present in person, through video conferencing, with counsel, to explain the builder co.’s policy in such matters. In compliance thereof, an affidavit dated 13.08.2021 has been filed by Mr. Harpreet Singh Batra, managing director of the builder co. We note that the affidavit does not precisely or satisfactorily address the query raised by this Commission in its direction of 30.07.2021. The builder co.’s policy, relating to matters in which the principal amount is being indefinitely retained and the possession has been unreasonably and unduly delayed, has not been made explicit. On the contrary, the submissions made today by Mr. Harpreet Singh Batra, the managing director of the builder co. are tantamount to a position that it will retain the principal amount indefinitely and will offer possession only when it gets the completion-cum-occupancy certificate and as and when the project will get completed. 7. That being so, we may first say here that prior to, or, at the least, simultaneous to, getting a consumer to enter into its agreement and accepting the first payment towards the total cost of the subject unit, the builder co. was required and expected to have the due pragmatic and realistic assessment and preparation of the project planning, execution and completion. It was the prime responsibility of the builder co. to ensure that it was in a position to deliver the possession of the subject unit/s to the buyer/s consumer/s within the assured period of 36 months and in all contingencies within the extended grace period of 06 months thence. Planning, execution and completion were the builder co.’s responsibility, and not of the consumer; (normal) impediments or problems that may arise in planning, execution and completion were again its own responsibility, and not of the consumer. Specifically, availability of land (/ acquisition of land), as well as all approvals from the concerned government, development and municipal authorities, as and when due, being fundamental basic requirements of a residential housing project, were decidedly to be taken care of and be dealt with by the builder co. with due diligence. Cost and time overruns were also within the domain of its own duty and obligation. Non-fulfilment of its overall responsibilities of project planning, execution and completion can not be and are not grounds for condoning or overlooking delay in completion and failure to offer possession within the agreed and assured period. Omnibus plea of force majeure, unforeseeable circumstances, irrespective of its various ‘liberal’ or ‘strict’ interpretations, and irrespective of its various interpretations in different sets of facts, can, but, not be nebulously and irrationally articulated in the agreement, or be successfully contended and argued for anything and everything related to the builder co.’s failure to fulfil its responsibilities for completion of the project without occasioning cost or time overruns. 8. A consumer cannot be made to wait in the wings indefinitely or unreasonably. Indefinite or unreasonable delay cannot continue ad nauseam, ad infinitum. Such situation would be absurd. In the facts of the present case, indefinite and unreasonable delay is writ large. A natural corollary thereof is that two rights accrue to the consumer: one : the option to wait for the subject unit to be delivered, if and when the construction is completed and the offer of possession is made by the builder co. at its discretion, and in addition to seek just and equitable compensation under the Act 1986 for unreasonable delay and loss and injury. two : to claim refund of the principal amount with just and equitable interest / compensation / cost of litigation. Thus the consumer has both options available, he may obtain possession of the subject unit if and when offered by the builder co. and in addition seek just and equitable compensation under the Act 1986 for unreasonable delay in possession, or may opt for a fair amount from the builder co. comprising of refund of the deposited amount with just and equitable interest / compensation / cost of litigation. 9. In the instant case, as already said, in the wake of unreasonable, undue, inordinate and indefinite delay being writ large, out of the two options available to the complainant herein, he has opted for obtaining refund of the principal amount paid to the builder co. with interest / compensation / cost of litigation. 10. Here, Section 2(1)(g) and Section 2(1)(r) of the Act 1986, which define ‘deficiency’ and ‘unfair trade practice’, may be reproduced for ready reference: 2. Definitions.- In this Act, unless the context otherwise requires,- - - - 2(1)(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service; - - - 2(1)(r) "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 including any of the following practices, namely:— - - - (Section 2(11) and Section 2(47) of the Act 2019 are para materia to the Section 2(1)(g) and Section 2(1)(r) of the Act 1986.) 11. Section 2(1)(g) and Section 2(1)(r) of the Act 1986 are clear in what constitutes ‘deficiency’ and ‘unfair trade practice’. In respect of Section 2(1)(r), which defines ‘unfair trade practice’, it may be elaborated that the word “including” connotes that the list provided therein is illustrative and not comprehensive or exhaustive. That is to say, an unfair method or unfair or deceptive practice, as may be judiciously determined on facts and reasons, after a fair and objective appraisal of the evidence and material on record, would qualify as ‘unfair trade practice’ within the meaning of Section 2(1)(r) in a given case. 12. In our considered view the admitted (proved) facts of the instant case contain ingredients of both ‘deficiency’ and ‘unfair trade practice’ within the meaning of Section 2(1)(g) and of Section 2(1)(r) of the Act 1986. Retaining the amount deposited by the complainant during the period 2011 to 2016, for an undue, unreasonable, inordinate and indefinite period (2021) beyond the agreed and assured date (2016) provided for in the agreement, ignoring his repeated requests for refund with interest / compensation, taking the stance that the consumer should cool his heels and wait further, again indefinitely, for the builder co. to obtain the completion-cum-occupancy certificate and to complete the project, self-evidently contain ingredients of both ‘deficiency’ and ‘unfair trade practice’. 13. We also find that, in similar facts, a co-ordinate bench of this Commission, vide its Order dated 12.09.2018 in consumer complaints no. 3011 – 3020 of 2017, in which the opposite party was the same builder co., i.e. M/s Imperia Structures Ltd., made the following award: “14. Keeping in view the admitted incomplete construction, the fact that some of the Complainants have also taken bank loans and are paying EMIs and considering the stipulation provided in Clause 11.4, this Complaint is partly allowed directing the Developer to refund the amounts deposited with simple interest @9% p.a. from the respective dates of deposits till the date of realisation together with costs of Rs. 50,000/- to be paid to each of the Complainants. The directions are to be complied within four weeks from the date of receipt of a copy of the order, failing which, the amount shall attract interest @12%p.a. for the said period.” The said Order of this Commission was impugned by the builder co. before Hon’ble Apex Court, and the Hon’ble Court dismissed the civil appeal with cost of Rs. 50,000/- each to the complainants therein. 14. We deem it appropriate to make similar award in the instant consumer complaint, in which the facts are akin. 15. In view of the facts and circumstances and the law discussed above, the award in consumer complaint no. 2405 of 2019 is made as below: The builder co. through its managing director is directed to refund the amount of Rs. 59,70,531/- deposited by the complainant with simple interest at the rate of 9% per annum from the respective dates of deposits till the date(s) of actual realisation along with cost of litigation of Rs. 50,000/- to the complainant. The award shall be made good within 30 days from today, failing which the amount shall attract interest at the rate of 12% per annum for the period beyond 30 days from today. In respect of ‘unfair trade practice’ per se, the builder co. through its managing director is ordered under Section 39(1)(g) of the Act 2019 (corresponding Section 14(1)(f) of the Act 1986) to forthwith discontinue its practice of unduly, unreasonably, inordinately and indefinitely retaining a consumer’s deposited amount beyond the agreed and assured date of completion and keeping the consumer in a state of continuous uncertainty and harassment, loss and injury. C.C. No. 2406 of 2019 16. The consumer complaint no. 2406 of 2019 is disposed of, mutatis mutandis, with similar award and order under Section 39(1)(g) of the Act 2019, in terms of the examination and reasons contained hereinabove apropos consumer complaint no. 2405 of 2019, the lead-case. 17. The award in the instant consumer complaint no. 2406 of 2019 is accordingly made as below. The builder co. through its managing director is directed to refund the amount of Rs. 63,75,956/- deposited by the complainant with simple interest at the rate of 9% per annum from the respective dates of deposits till the date(s) of actual realisation along with cost of litigation of Rs. 50,000/- to the complainant. The award shall be made good within 30 days from today, failing which the amount shall attract interest at the rate of 12% per annum for the period beyond 30 days from today. In respect of ‘unfair trade practice’ per se, the builder co. through its managing director is ordered under Section 39(1)(g) of the Act 2019 (corresponding Section 14(1)(f) of the Act 1986) to forthwith discontinue its practice of unduly, unreasonably, inordinately and indefinitely retaining a consumer’s deposited amount beyond the agreed and assured date of completion and keeping the consumer in a state of continuous uncertainty and harassment, loss and injury. C.C. No. 2405 of 2019 and C.C. No. 2406 of 2019 18. The Registry is requested to send a copy each of this Order to the opposite party builder co. & to its managing director (Mr. Harpreet Singh Batra) and to the complainant(s), as well as to their learned counsel, within three days. The stenographer is requested to upload this Order on this Commission’s website immediately. | 
