R.K. AGRAWAL, J., PRESIDENT

1. The present Consumer Complaint has been filed under Section 21 of the Consumer Protection Act, 1986 (for short “the Act”) by Nidhi Gupta and Mala Gupta (hereinafter referred to as the Complainants) against Opposite Party No.1, M/s. Parsvnath Developers Limited (hereinafter referred to as the Developer) and Opposite Party No. 2 Dr. Sunit Sachar, Vice President of the Opposite Party No.1, seeking refund of the amount paid towards purchase of Flat alongwith interest and costs as the Opposite Party Developer had failed to hand-over the possession of the Flat booked by them in the Project launched by the Developer in the name and style of “Parsvnath Exotica” located at Section 53, Golf Course Road, Gurgaon. 

    

2. Brief facts as narrated in the Complaint are that the Opposite Party Developer launched a Residential Group Housing Project in the name and style of “Parsvnath Exotica” located at Section 53, Golf Course Road, Gurgaon (hereinafter referred to as the Project).  Mr. Kamal Mehra and Mrs. Vidushi Mehra (hereinafter referred to as the Original Allottees) were allotted a Flat No. 202 in Tower D-6 in the said Project. Flat Buyers Agreement (hereinafter referred to as the Agreement) was executed between the Original Allottees and the Developer on 26.05.2006. Allured by the attractive brochure of the said Project and the assurances given by the Executive of the Developer that all the Flats in the Project have been booked and the possession will be offered to the Allottees in the year 2009 or by the mid of the year 2010, after completing all the formalities, the Complainants got transferred all the rights, title and interest in the Flat No. 202 in Tower D-6 of the said Project from the Original Allottees, in her favour vide Agreement to Sell dated 16.01.2008.  The Developer endorsed all the original receipts and Flat Buyer Agreement in respect of the Flat No. 202 in Tower D-6 in favour of the Complainants vide Endorsement Form dated 13.02.2008.  By availing Home Loan of ₹42,62,200/- from the Kotak Mahindra Bank, the Complainants made full and final payment of ₹1,22,28,033/- (Rupees One Crore Twenty Two Lakh Twenty Eight Thousand and Thirty Three Only) to the Developer on 07.10.2008.  It is averred in the Complaint that they have never committed any default in making payment except few installments against which the Developer has already charged a total penalty of ₹1,28,393/- by way of penal interest @24% in terms of the Clause 5(b) of the Flat Buyer Agreement.  As per Clause 10(a) of the Agreement, the construction of the said flat was to be completed within 36 months from the date of commencement of construction of a particular block in which flat is located. Despite that the Opposite Party Developer miserably failed to deliver the possession of the Flat within stipulated period.  It is averred by the Complainant that the construction at the site remained at a standstill since 2009.  The Project is still incomplete and the Developer has even not received the Occupancy Certificate in respect of the Tower D-6 where the allotted Flat is situated.  The Complainants have repeatedly enquired from the Developer regarding the status of their Flat on several dates but the Opposite Party Developer did not give any satisfactory reply.  When the Complainants decided to initiate legal action in the year 2011, the Opposite Party No. 2 Vice President of the Developer assured that the possession will be handed over by the year 2012 but no assurance or promise came true.  The Complainant visited the site in the year 2016 and shocked to witness that the Tower D6 is still under construction and is not completed even after lapse of more than 7 years from the actual date of handing over the possession.  The Complainants captured the pictures of the construction at site in the year 2016, which are annexed as Annexure C-5 with the Complaint.  Being aggrieved, the Complainants requested the Opposite Party Developer to hand over the possession of the Flat alongwith compensation for delay vide letter 18.05.2016 and Email dated 19.07.2016, but the Opposite Party Developer did not respond. Alleging deficiency in service and Unfair Trade Practice on the part of the Opposite Party Developer, the Complainant has filed the present Consumer Complaint with the following prayer: 

3. Pass an Order directing the Opposite Parties No. 1 to hand over the possession of Flat No. 202 in Tower D6 to the Complainant; And/OR;

    

4. Direct the Opposite Party No. 1 to make the payment of compensation / penalty to the tune of Rs.2,34,77,823/- (Rupees Two Crore Thirty Four Lakh Seventy Seven Thousand Eight Hundred and Twenty Three only) to the Complainants for delay in handing over the possession of the said allotted flat in terms of the Clause 5(b) of the Flat Buyer Agreement; AND/OR;

    

5. Grant pendent lite and future interest @24% per annum on the said amount of Rs.2,34,77,823/- (Rupees Two Crore Thirty Four Lakh Seventy Seven Thousand Eight Hundred and Twenty Three only); AND/OR

    

6. Pass an Order for a sum of Rs.2,00,000/- (Rupees Two Lakh Only) for the litigation cost, mental agony and harassment, AND/OR

    

7. Pass any other or further orders in favour of the complainants and against the opposite parties in the interest of justice and for good conscience.”

    

8. The Complaint was resisted by the Opposite Party Developer by filing its Written Statement in which the Opposite Party Developer averred that the terms & conditions of the Agreement is binding upon the parties as held by Hon’ble Supreme Court of India in the matter of Bharti knitting Vs DHL Courier World Wide Express Courier” reported at [1996] 4 SCC 704 and thus in the case of delay in handing over physical possession of the flats and delay in payment of price of the flat, the consequences as per the term of the contract have to follow.  It was further stated that the delay in construction of Project is caused due to global recession in the real estate sector and this was duly informed to the Complainant.  The Project is under way and is not abandoned by the Developer.

    

9. It was further stated that M/s. Puri Construction, M/s. Florentine Estates of India, M/s. MAD Entertainment Network Ltd., Mr. Sunil Manchanda, Mr. Arjun Puri, Mr. Mohinder Puri and Mr. Ram Prakash were owner of the land, over which the project was constructed. The builder entered into agreements dated 24.11.2004, 04.04.2005, 21.09.2006, 04.09.2009 and 01.10.2009, with the aforesaid owners, for development and construction of Parsvnath Exotica. M/s. Puri Construction Ltd. moved an application to the Director, Town and Country Planning, Haryana on 11.12.2004, for approval of Building Plans of Group Housing Scheme, of which approval was granted on 07.01.2005. M/s. Puri Construction Ltd. moved another application to the Director, Town and Country Planning, Haryana on 11.12.2004, for approval of Building Plans of Group Housing Scheme, of Pocket-B, in which the flat of the complainants was located, of which approval was granted on 10.04.2009. M/s. Puri Construction Ltd. moved another application to the Director, Town and Country Planning, Haryana on 29.11.2007, for approval of Building Plans of Group Housing Scheme, of other part of Pocket-B, of which approval was granted on 10.04.2009. Thereafter, the construction was started as such delay in completing construction and delivery of possession cannot be attributed to the Developer. It has further stated that out of 18 multi-storied residential towers in Parsvnath Exotica (excluding EWS towers), construction of 11 towers were completed and more than 450 flat buyers have taken possession in it. The construction of remaining 5 towers out of total 7 remaining towers, have been completed and the Developer has applied for grant of Occupation Certificate.It was also stated that they have sent offer for fit out of the said flat vide letter dated 02.05.2015 and as a goodwill gesture credited the delay penalty for a sum of ₹5,33,900/- for the delay from April 2010 to October 2011 and granted special rebate of ₹6,25,000/- on account of unfinished work in the said flat.It was further stated that the delay in construction is due to the reasons which were beyond the control of the Developer, however, they are ready to compensate the Complainant as per Clause 10(c) of the Agreement. It was further stated that there is no Deficiency in Service or Unfair Trade Practice on their part and prayed that the Consumer Complaint be dismissed.

    

10. We have heard Mr. Navin Kr. Thakur, learned Counsel for the Complainants, Mr. Prabhakar Tiwari, learned Counsel appearing on behalf of the Opposite Party Developer and perused the material available on record.

     

11. Mr. Sudhir Mahajan, learned Counsel appearing on behalf of the Complainant submitted that the terms of the Agreement are one-sided wherein as per Clause 10(c) of the Agreement in case of delay in construction of the Flat beyond the period as stipulated as per clause 10(a) the Developer/OP is liable to pay ₹10/- per sq. ft. of the super built up area of the flat per month for the period of delay in offering of possession, which is very meager and contrary to Clause 15 (a) according to which in case of delay payment, the Buyer is liable to pay interest @24% p.a.The Project is still incomplete and the Developer has even not received the Occupancy Certificate.They have no trust on the Opposite Party Developer and prayed that the Complaint be allowed in terms of the Prayer Clause of the Complaint.

     

12. Mr. Prabhakar Tiwari, learned Counsel appearing on behalf of the Opposite Party Developer submitted that the delay in Construction is due to global recession which is beyond their control.However, they are ready to compensate the Complainant for the delay as per Clause 10(C) of the Agreement.There is no Deficiency in Service or Unfair Trade Practice on their part and prayed that the Consumer Complaint be dismissed.

     

13. We have given our thoughtful consideration to the various pleas raised by the learned Counsel for the Parties.

     

14. The plea of the learned Counsel for the Opposite Party regarding binding nature of the Agreement/Contract whereby the Parties are bound by the terms and conditions of the Agreement, to compensate the Complainant for delay in terms of Clause 10(c) of the Agreement, we have gone through the Clause 10(c) and 15 (a) of the Agreement, which Agreement reads as under:-

    “10(c)    In case of delay in construction of the Flat beyond the period as stipulated subject to force majeure and other circumstances as aforesaid under sub-clause (a) above with grace period of 6 months,, the Developer shall pay to the Buyer compensation @ ₹107.60 (Rupees One Hundred seven and paise sixty only) per sq. meter or @ ₹10/- per sq. ft. of the super area of the Flat per month for the period of delay. Likewise, if the Buyer fails to settle the final account and to take possession of the Flat within 30 days from the date of issue of the final call notice/offer to hand over possession by the Developers, the Buyer shall be liable to pay to the Developers holding charges @ ₹107.60/- per sq. meter or @ ₹10/- per sq. ft. of the super area of the Flat per month on expiry of 30 days notice.

     

    15.(a) The Developer and/or its nominees shall look after the maintenance and upkeep of the common areas and facilities until these are handed over to an agency nominated by the Developer or a Body Corporate or Society or Association of the Buyers constituted under the Haryana Apartment Ownership Act. The Buyer shall pay maintenance charges as may be determined by the Developer or the nominee/Maintenance Agency from time to time. Delay in payment of maintenance charges will make the Buyer liable for interest @ 24% per annum…..”

     

15. A bare perusal of above Clauses makes it clear that as per Clause 10(c) of the Flat Buyer Agreement, in case of delay the Opposite Party Developer is liable to pay ₹10/- per sq. ft. of the super built up area of the flat per month for the period of delay in offering of possession, whereas in terms of Clause 15 (a) in case of late payment, the Complainant/Buyer is liable to pay interest @24% p.a.  This shows that the terms of the Agreement are wholly one-sided and unfair. Therefore, the Complainant cannot be made bound to the terms of the Agreement, which is one-sided 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:

    “6.7.  A terms 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.

     

    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.”

     

16. As far as the plea regarding delay in Project due to global recession in the real estate market is concerned, the terms of the Agreement between the Parties do not justify the delay in completion of the Project on the aforesaid ground and therefore, the Opposite Party was duty bound to complete the construction irrespective of the recession in the market.  Therefore, the delay in completion of the Project cannot be justified.

     

17. As far as the plea of the learned Counsel for the Opposite Parties that delay was caused in execution of development agreements with the owners of the land and later on,  approval of lay out plan was delayed as such, the construction could not be completed within promised period, is concerned, it is the responsibility and duty of the Developer to complete the formalities and get the execution of development agreements with the owners of the land done in time and to get approved the lay out plan within time, the Complainants/Allottees cannot be made to suffer for it. The Hon’ble Supreme Court in “DLF Home Developers Ltd. Vs. Capital Green Flat Buyers Association, 2020 SCC OnLine SC 1125” has held that time taken in obtaining approval of lay out plan, is always expected. The builder cannot take this defence for delaying construction. Therefore, we do not find any force in this plea and the same is rejected.

     

18. So far as letter dated 02.05.2015 for fit out possession is concerned, the Complainants have filed various photographs showing that the construction was going on, even after issuance of letter for fit-out Possession. If the construction was not complete and flat was not in a habitable condition, then issuance of letter for fit out possession was not proper.Without obtaining Occupancy Certificate from the statutory authority, possession notice could not be given. In such circumstances, the Complainants were justified in not taking possession of the Flat.

     

19. It is not in dispute that the Complainants were got transferred all the rights, title and interest in the Flat No. 202 in Tower D-6, which was allotted in the year 2006, from the Original Allottees after endorsement made by the Opposite Party Developer in the year 2008.  The possession of the flat was agreed to be handed over by the year 2010 but after more than 11 years, the Occupation Certificate in respect of the Tower D-6 in which the said Flat is located, has not been received.  Keeping in view the Judgment passed by this Commission in Emmar MGF Land Ltd. & Ors.  vs. Amit Puri [II (2015) CPJ 568 NC], wherein it was laid down that after the promised date of delivery, it is the discretion of the Complainant whether he wants to accept the offer of possession, if any, or seek refund of the amounts paid with reasonable interest, it is held that it is well within the Complainant’s right to seek for refund of the principal amount with interest and compensation as construction is still not complete. We are of the view that the Complainant cannot be made to wait indefinitely for the delivery of possession and the act of the Opposite Party in relying on global recession while retaining the amounts deposited by the Complainant, is not only an act of Deficiency of Service but also amounts to Unfair Trade Practice.

     

20. We find it a fit case to place reliance on the judgment of the Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, II (2019) CPJ 29 SC, in which the Hon’ble Apex Court has observed as hereunder :

    “.....It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years in beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund.

     

    In the circumstances, we are of the view that the orders passed by the SCDRC and by the NCDRC for refund of moneys were justified.”

     

21. In the instant case also the Complainant cannot be made to wait indefinitely for possession of the Flat as the Occupancy Certificate in respect of the Tower-6 Flat has not been received till date. Therefore, we are of the considered view that the Complainant is entitled for refund of the principal amount with reasonable interest, which we quantify @9% p.a. from the date of respective date of deposit till the date of actual refund.Consequently, the Opposite Party Developer is directed to refund ₹1,22,28,033/- (Rupees One Crore Twenty Two Lakhs Twenty Eight Thousand Thirty Three only) to the Complainants alongwith interest @9% p.a. from the date of respective date of deposit till the date of actual refund within 6 weeks from the date of passing of this Order.  However, keeping in view the facts and circumstances of the case, there shall be no order as to costs.

     

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