JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL)

          The complainant booked a residential flat with the OP in a project namely ‘M3M Golf Estate Fairway East’ which the OPs were to develop in Gurgaon.  The booking was made on 30.05.2012. The parties then executed an Apartment Buyers Agreement on 31.08.2012, incorporating their respective obligations in respect of the said booking.  Clause 16.1 of the agreement related to delivery of possession of the apartment and reads as under:

16.1  The Company, based upon its present plans and estimates, and subject to all exceptions, proposes to handover possession of the Apartment within a period of Thirty Six (36) months from the date of commencement of construction which shall mean the date of laying of the first plain cement concrete/mudmat slab of the tower which shall be communicated to the allottee(s) or the date of the execution of this Agreement, whichever is later (“Commitment Period”).  Should the possession of the Apartment not be given within the commitment period, the Allottee agrees to an extension of One Hundred and Eighty (180) days (“Grace Period”) after expiry of the commitment period.  In case of failure of the Allottee to make timely payments of any of the installments as per the payment plan, alongwith other charges and dues as applicable or otherwise payable in accordance with the payment plan or as per the demands raised by the Company from time to time in this respect, despite acceptance of delayed payment alongwith interest or any failure on the part of the Allottee to abide by any of the terms and conditions of this Agreement, the time periods mentioned in this clause shall not be binding upon the company with respect to the handing over of the possession of the Apartment.

2.      Admittedly, the concrete/mud slab of the tower in which allotment was made to the complainant, was laid on 03.11.2012.  The possession after giving the benefit of the grace period, therefore, ought to have been delivered by 03.05.2016.  The possession having not even been offered to them despite they having paid Rs.4,61,68,084/- to the OP, the complainants approached this Commission seeking refund of the amount paid by them to the OPs alongwith compensation etc. 

3.      After institution of the complaint, the possession of the allotted flat was offered to the complainant vide allotment letter dated 15.09.2017 who was also offered a timely payment rebate/discount of Rs.19,25,000/- provided that the payments as per Annexure-A and Annexure-B to the letter were duly paid and all documentation were executed by 20.10.2017.  Admittedly, the said payment was made by the complainants on 20.10.2017, thereby making them eligible for the rebate of Rs.19,25,000/-.  The stamp duty however, was not paid. 

4.      A perusal of the letter dated 15.09.2017 would show that it was a letter offering possession of the allotted flat to the complainants and the timely payment rebate/discount of Rs.19,25,000/- was offered in case the payments required for taking possession of the allotted flat were made by 20.10.2017.  Having made payment of Rs.8,77,656/- and thereby availed the rebate/discount of Rs.19,25,000/- which was applicable to those allottees who were to take possession, after paying the balance amount, the complainants in my opinion, are estopped from seeking refund of the amount paid by them to the OP for purchase of the flat.  Though it is submitted by the learned counsel for the complainants that the payment was made without prejudice to the prayers made in the Consumer Complaint which had already been instituted before making payment, there is no evidence of the complainants having written to the OP that they were making payment in terms of the letter dated 15.09.2017 without prejudice to their rights and contentions in the present complaint.  No liberty of this Commission was sought before making the said payment.  Therefore, I have no hesitation in holding that though the complainants are entitled to possession of the allotted flat, they cannot, having made payment in terms of the letter dated 15.09.2017 without any prejudice or reservation, claim refund of the price which they paid for the flat.

5.      The next question which arises for consideration is as to whether the complainants are entitled to any additional compensation over and above the agreed compensation of Rs.10 per sq. ft. of super area per month which the OP has already credited in their account. 

6.      Clause 16.2 of the agreement executed between the parties relates to the compensation for the delay in offer of possession and reads as under:

16.2   Upon receipt of the Occupation Certificate pertaining to the Tower/Group Housing Colony, the Company shall notify the Allottee in writing to assume possession of the Apartment (“Notice of Possession”) within a period of sixty (60) days by executing and registering the Conveyance Deed, necessary indemnities, undertakings, maintenance, agreement and other documentation as the Company may prescribe, the Company shall, after execution of such documents and payment by the Allottee of all dues payable under this Agreement, permit the Allottee to occupy the Apartment.  If the Allottee fails to pay all dues payable under the Agreement and/or to assume possession of the Apartment within the aforesaid time period, the Apartment shall be and remain at the sole risk and cost of the Allottee and fixed charges @ Rs.10.00 (Rupees Ten Only) per sq. ft. per month of the Super Area of the Apartment (“Holding Charges”) alongwith applicable maintenance charges shall be payable by the allottee for the entire period beyond such period of sixty (60) days.  In addition, the company shall withhold execution of the Conveyance Deed and handing over possession of the Apartment until the entire Holding Charges as may be applicable with interest, if any, are fully paid.  The Allottees agrees that such Holding Charges shall be a distinct charge unrelated to and in addition to the maintenance or any other charge as provided for in this Agreement.

7.      Such clauses, in Builder Buyers Agreement, have repeatedly been held not only by this Commission but also by the Hon’ble Supreme Court to be unfair, they being absolutely one sided and arbitrary.  A reference in this regard can be made to the decision of the Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan (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.”

8.      The learned counsel for the OP submits that they had applied for the Occupancy Certificate way back in December 2016 and they should be asked to pay compensation only till that date.  I however, find no merit in this contention.  The allottees cannot be asked to occupy the house without the builder obtaining the requisite Occupancy Certificate since offer of possession as well as acceptance of the possession without requisite Occupancy Certificate would be an act of illegality on the part of both the parties. 

9.      For the reasons stated hereinabove, the complaint is disposed of with the following directions:

          (i)      The OP shall deliver possession of the allotted flat complete in all respects to the complainants within four weeks from today.

          (ii)      The OP shall pay compensation in the form of simple interest @ 8% per annum to the complainants w.e.f. 03.05.2016 till 15.09.2017 after deducting therefrom the amount credited in the account of the complainants towards delay compensation i.e. Rs.5,66,323/-. 

          (iii)     In the facts and circumstances of the case, the OP shall not be entitled to any maintenance charges or holding charges.

          (iv)    The requisite stamp duty and registration charges shall be paid by the complainant to the OP within three months of delivery of possession to them. 

          (v)     The compensation in terms of this order shall be paid within three months from today.