JUSTICE SUDIP AHLUWALIA, MEMBER

This Consumer Complaint has been filed under Section 21(a)(i) and 14 of the Consumer Protection Act, 1986 seeking award of Rs.4,75,29,353.61/- along with other ancillary reliefs.

2.      The brief facts leading upto the present Complaint are that the Complainant, being induced by the advertisements of the Opposite Party, had booked a four bedroom Flat bearing No. T8-1002 on the Tenth Floor measuring 3480 sq. ft., equivalent to 323.29 sq. meters @ 11520/- per sq. ft. with one covered car parking space for a total price of Rs.4,00,89,600/- in the Opposite Party’s Apartment complex namely, ‘Parsvnath La-Tropicana’ situated at Civil Lines, Delhi, on 07.09.2010. The aforesaid sale consideration along with Flat included reserved car parking space, club membership fee, 100% power backup, external electrical charges, fire-fighting installations, maintenance charges of common area for a period of 2 years from the date of handing over of possession of the said Flat and additionally one covered car parking space was also included in the said price. The Complainant paid a sum of Rs.15,00,000/- at the time of booking along with service tax of Rs.38,650/-. The Complainant opted for Construction Linked Payment Plan and paid regular payments as demanded by the Opposite Party. The Opposite Party called upon the Complainant to pay a sum of Rs.46,08,960/- which included Rs.6,00,000/- towards car parking and service tax which was alleged to be illegal and unjustified. Consequently, the Complainant sent a letter dated 29.10.2010 to the Opposite Party and filed a Suit bearing No. 14/2011 on failure of the Opposite Party to respond to the said letter, challenging the illegal demand of Rs.6,00,000/-. Thereafter the Opposite Party vide its letter dated 14.06.2011 waived off the demand of Rs.6,00,000/- and service tax of Rs.15,450/-. The Complainant further continued payments as demanded by the Opposite Party, and also replied to their letter dated 11.11.2011 on 15.11.2011 stating that the payment is to be made according to the Construction Linked Plan and the demand should be raised accordingly. The Opposite Party handed over a Flat Buyer Agreement to Complainant which contained terms and conditions that were not in consonance with the terms agreed, and the Complainant sent a Notice dated 18.02.2013 raising objections with respect to its clauses. Further, the Complainant also came to know that MCD had booked the said project for violation in construction on account of excess coverage and also due to deviation in construction from the sanctioned plan.

3.      It was the case of the Complainant that despite reminders, the Opposite Party did not inform/undertake as to when the construction of the subject Flat would be completed and be delivered to Complainant free from all encumbrances and liabilities. Inspite of this, the Opposite Party raised further demand on 05/19.06.2013 and threatened the Complainant that if the demand was not complied within 5 days, the Flat would be cancelled and the amount paid would be refunded after forfeiting the Ernest money. The Complainant had paid a sum of Rs.2,14,16,425.58/- till 16.06.2013. It is contended that as per the last demand dated 19.06.2013 of the Opposite Party showed that the Opposite Party would be receiving the payment of 95% of the price agreed whereas the construction of Tower T8 was still at a raw stage. The Complainant visited the site on 15.11.2016 and came to know that no work is being carried out and the Opposite Party has abandoned the Project.  Hence, it is contended that the Opposite Party has defaulted in completion of requisite stage of construction as is apparent from the photographs filed by the Complainant. The Complainant had booked the Flat in 2010 with a hope to get the same in 2013.  However, there appeared to no chance of the Flat being delivered in the near future. The Complainant also filed a Suit bearing No. 135/2013 for prohibitory and mandatory injunction, to restrain the Opposite Party from cancelling the Flat, which was disposed off vide Order dated 22.10.2016. Therefore on failure of the Opposite Party to complete the construction of the Flat, delay and change in circumstances in the family, the Complainant asked the Opposite Party to cancel the Flat in July, 2016 and refund the sum paid with interest. Subsequently, the Complainant also sent a Legal Notice dated 08.10.2016 seeking refund of Rs.4,75,29,353.61/-. 

4.      The Complaint has thereafter been filed challenging the alleged illegal and unfair trade practices indulged into by the Opposite Party in failing to handover the possession and charge payments as per Construction Linked Plan-B. Hence, the Complainant has prayed as follows:          

“a) Grant and award the sum of Rs.4,75,29,353.61 (Rupees Four Crores Seventy-five Lacs Twenty-nine thousand Three Hundred Fifty –three and Sixty-one paise only) along with interest at the rate of 24% per annum along with pendent-lite and future interest at the rate of 24% to the Complainant, till the date of actual realization of the amount;

b) Pay a sum of Rs.5,50,000/- (Rupees Five Lacs and Fifty Thousand Only) to the Complainant towards mental agony suffered by the complainant;

c) Pay the sum of Rs.3,00,000 (Rupees Three Lacs only) to the Complainant towards the cost of litigation;

and/or

d) Any other and further order/ orders as this Hon’ble Forum may deem fit and proper in the facts and circumstances of the case may also kindly be passed in favour of the Complainant and against the Opposite Party.” 

5.      The Opposite Party has filed its written version to resist the present Complaint and denied the contents of the Complaint while raising the following objections:

1. That the Opposite Party was a successful bidder in the bids invited by DMRC for development of a residential Project at Khyber Pass, Delhi, and an Agreement for the allotment of Project Land was executed between DMRC and the Opposite Party on 30.03.2004. Thereafter, the possession of the Project was handed over by DMRC in favour of Opposite Party on 17.10.2005 and Transfer deed was executed between them on 01.09.2006. Subsequently, the Opposite Party started working for obtaining requisite approvals from the concerned authorities. The Opposite Party submitted Lay Out plans for approval of DMRC which were subsequently, submitted to Town planner, MCD after due approval from DMRC. Meanwhile, in 2007, there were certain major changes in Master Plan of Delhi, 2007 which changed the scheme of the complex due to which the Opposite Party had to make changes in the Lay Out Plans and Building Plans. The Layout Plans for the Group Housing were duly approved by the Deputy Town Planner vide its letter dated 28.02.2008 and the Building plans were approved by MCD on 27.05.2009;
2. That the Opposite Party commenced construction work initially in a few towers in September, 2009, and subsequently, the construction work was carried out in phased manner in the other Towers and accordingly, the work in the last Tower  was commenced in 2012;
3. That further there were changes in Master Plan of Delhi in 2011 and the Opposite Party submitted revised building plans with the MCD for their approval. Since then the revised plans were pending for approval with the MCD pending execution of the Lease Deed between L&DO and DMRC; 
4. That as per Clause 11(a) of the Flat Buyer Agreement, the construction was likely to be completed within 36 months of the commencement of construction of the particular Towers in which the Flat is located after receipt of all requisite approvals,  with a grace period of 6 months subject to Force Majeure conditions. Further, no claim by way of damages/ compensation lies against the Developers in case of delay on account of the said reasons;
5. That recession in the Real Estate Industry all over India has resulted in circumstances beyond the control of the Opposite Party leading to delay in construction;
6. That the progress of construction activity was hampered due to reasons beyond the control of the Opposite Party;
7. That the construction in a few Towers is almost nearing completion wherein the possession is likely to be offered in parts subject to approvals from competent authorities;
8. That the Opposite Party is only liable to pay delay penalty to the respective Allottees/ Complainant in terms of the Flat Buyer Agreement;
9. That the Complainant has paid only a total sum of Rs.2,16,24,891/- out of the total sale consideration having basic cost of Rs.4,17,60,000/-;
10. That two copies of the Flat Buyer Agreement were sent to the Complainant but the same was not signed and returned by the Complainant despite persistent follow-ups;
11. That the Opposite Party had duly replied to the Legal Notice dated 18.02.2013 on 23.04.2013;
12. That the Complainant made repeated defaults in making timely payments;
13. That the Suit bearing No. 14/2011 was disposed off as settled in mediation wherein the opposite Party gave a discount of Rs.6,00,000/- to the Complainant;
14. That the Complainant has failed to establish any deficiency of service or consumer dispute attributable to the Opposite Party and has made bare allegations without any proof;
15. That the present case requires elaborate evidence which cannot be adjudicated upon under summary jurisdiction of this Commission. Therefore this Commission lacks jurisdiction;
16. That the Complaint is barred by limitation;
17.  That the Opposite party has already achieved a considerable status of construction in the Project which is evident from the fact that the Opposite Party has sent the Offer of possession for fit-out purposes in Tower nos. T-1, T-2, T-3, T-4, T-5, T-21 and T-23;
18. That the Opposite Party had informed the Complainant about the construction stage of the Project from time to time.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      

Hence, the Opposite Party contends that the complaint is liable to be dismissed with exemplary costs.

6.      Rejoinder has been filed on behalf of the Complainant. The Complainant at the outset has denied the contents of Reply filed by the Opposite Party, and reiterated the contents of the Complaint. It is stated that the Complainant is no more interested in receiving delayed penalty and prays for refund. It is also stated that the Opposite Party has received more than 50% of the payment. It has, however, has completed only less than 20% of the construction work. It is further claimed that the Opposite Party had assured to handover the possession of the Flat within 36 months with grace period of 6 months from date of receipt of first instalment of sale consideration.

7.      Affidavit in Evidence has been filed by Mr. Siddharth Aggarwal on behalf of the Complainant. Affidavit in Evidence has been filed by Mr. Madan Dogra on behalf of the Opposite Party.

8.      It has been argued by the Opposite Party in addition to the above pleadings/submission that the Lease Deed has not been executed till filing of its Reply by the DMRC despite several reminders and NDMC is not ready to grant sanction of the Building Plan.

9.      Heard the Ld. Counsel for the parties. Perused the material available on record.

10.    It is an admitted case of the Opposite Party that the Building plans have not been approved by the concerned Authority till date which has been alleged to be beyond the control of the Opposite Party. However, it is the responsibility of the Opposite Party to ensure that all the necessary approvals are obtained and the Complainant cannot be made to wait indefinitely for obtaining the said approvals from the concerned Authorities. The Opposite Party has failed to make out or establish that the delay in completion of the construction is due to Force Majeure conditions or reasons beyond the control of the Opposite Party.

11.    Moreover, the Opposite Party has accepted liability for delay charges thereby admitting delay in completion of construction. The Opposite Party has further admitted that the Project is near completion meaning thereby the Project is still not complete. Moreover, the Opposite Party sending Offer of fit-out possession of Tower nos. T-1, T-2, T-3, T-4, T-5, T-21 and T-23 do not concern the present case as the unit in the present matter is situated in Tower T8.

12.    Therefore, it can be said that there has been delay on the part of the Opposite Party in handing over possession of the Unit to the Complainant in time.     

13.    There are certain facts peculiar to the present case in as much as no Builder-Buyer Agreement appears to have been signed between the parties.  But, the Complainant would not appear to be at fault for this omission. This is so because he had booked his dwelling Unit as far back as on 7.9.2010 for which purpose he had paid a huge amount of Rs. 15.00 lakhs plus Rs. 38,650/- as Service Tax.  But, the draft Flat Buyers Agreement was sent by the Opposite Party to the Complainant for his signatures more than a year later on 11.11.2011, and thereafter on 9.3.2012, in which certain unreasonable conditions which were not in consonance with the assurances/representations originally made on behalf of the Opposite Party were incorporated therein. Consequently, the Complainant in spite of paying more amounts as demanded by the Opposite Party raised his objections against such unreasonable terms, and when no fruitful result emerged in such dispute, he was also constrained to file a Civil Suit which ultimately was settled in mediation between the parties, during the course of which the amount of Rs. 6.00 lakhs allegedly being charged unlawfully by the Opposite Party was given up.  In this backdrop, even though no formal agreement had been executed but the bottom-line is that the Opposite Party had already realised more than 50% of the total purchase price from the Complainant between 2010-2012.  Even as per the relevant Clause of the draft Agreement, assuming its terms and conditions had been uncontentious, the Opposite party would have been obligated to deliver possession within a period of 03 years with a grace period of 06 months thereafter subject to any Force Majeure conditions.

14.    Now, it is the own admission of the Opposite Party that construction of the last Tower in the Project had commenced only in 2012.  But, even from that period of time, it was therefore required that possession of the Complainant’s dwelling Unit would have to be ready at some relevant date of the year 2015 to be followed by the grace period of 06 months if necessary.  But, it transpires that even after the Complaint having been filed as late as on 23.12.2016, the Opposite Party had not been able to even obtain its Lease Deed from the Competent Authority, on account of which it could not have been in a position to even commence construction of the Tower No. 8 which was supposed to contain the Complainant’s apartment.

15.    Clearly, the Complainant cannot be made to suffer for such omissions on the part of the Opposite Party, and in the given circumstances, its objection that the delay was due to Force Majeure conditions also does not hold.  This Commission in “Sivarama Sarma Jonnalagadda & Anr.  Vs. M/s. Maruthi Corporation Limited & Anr., CC No. 379 of 2013, decided on 21.09.2021”, held that –

“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 force majeure clause while retaining the amounts deposited by the Complainants, is not only an act of deficiency of service but also amounts to unfair trade practice.”

16.    There is no doubt that there has been an inordinate delay in handing over the possession of the Unit to the Complainants as per the Agreement.  The Complainant cannot wait for an indefinite time as he has invested a heavy amount with the intention to get the possession of the Unit on time.  There are a number of Case Laws wherein the Hon’ble Supreme Court has decided favourably on the right of the buyers for getting a fair delay compensation in case of undue and unreasonable delay by the Developer in giving possession or refund in terms of the Agreement.

17.    The Hon’ble Supreme Court In C.A No.3182 of 2019 dated 25.03.2019, “Kolkata West International City Pvt. Ltd. Versus Devasis Rudra”, has observed -

“…..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 is 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 SCDRC and by the NCDRC for refund of moneys were justified…….”.

18.    The Complaint is therefore allowed, and        the Complainant is held entitled to seek refund of the total money paid by him to the Opposite Party alongwith interest @ 9% p.a. from the respective date of each deposit till payment, within two months from the date of passing of this Order.  In the event of non-compliance of this Order, the outstanding amount to be paid shall attract a penal interest of 12%.

19.    In addition, an amount of Rs. 50,000/- is awarded to the Complainant as compensation on account of mental agony and an additional amount of Rs. 25,000/- towards litigation costs.

20.    Pending application(s), if any, also stand disposed off as having been rendered infructuous.