JUSTICE SUDIP AHLUWALIA, MEMBER

          This Consumer Complaint has been filed against the Opposite Party-M/s. Raheja Developers Limited, alleging deficiency and unfair trade practice by the Opposite Party for the delay in possession, and seeking delivery of the booked Flat/Apartment with all necessary permission/sanctions/approvals, alongwith compensation/penalty @18% p.a. on the amount so paid by the Complainants, for delayed possession OR, in alternative, refund of the amount paid by the Complainants alongwith interest @ 18% p.a. from the date of payment till its realisation plus damages and costs.  Further, the Complainants have also sought compensation of Rs. 25,00,000/- on account of mental tension, harassment, torture and unfair trade practice by the Opposite Party and have also sought costs of the present proceedings amounting to Rs. 1,10,000/-.  It may be mentioned that in the complaint as originally filed, the Complainants had not only prayed for getting delivery of possession of the dwelling Unit in question, but had also simultaneously prayed for total refund of the consideration price paid by them.  When this anomaly was noted by the Court on 17.5.2023, the Complainants sought a short adjournment to rectify the same. Consequently, they filed an amended complaint by modifying the untenable prayers on 25.5.2023, on which date their prayer for amendment of the original complaint was allowed.

2.      The brief facts leading upto the present complaint are that the Opposite Party is a real estate Developer and had advertised its residential independent Floors for sale under the name and style of “Raheja Shilas” situated at Sector-109, Gurugram, Haryana.  The Complainants had booked an Apartment on an independent Floor in the said Project for residential purpose for themselves and their family members for a total sale consideration of Rs. 1,16,82,875/- (including all the charges). The Opposite Party had allotted a Flat/Apartment No. IF15-014 measuring 2317 sq.ft. and 556 sq. ft. terrace area in terms of the Allotment Letter dated 28.09.2011, to the Complainants.    Consequently, a Flat Buyer’s Agreement dated 28.09.2011 was executed between the parties.  The Complainants had booked the said Apartment with a BSP of Rs. 4,175/- per sq.ft. and the terrace @ Rs. 2,087/- per sq.ft. and the total sale consideration  of  the Flat,  was  Rs. 1,08,34,125/-.   At  the  time  of booking, the Complainants had paid the initial amount of  Rs. 27,78,277/-.  It is averred that the Complainant had booked the Apartment on the assurance given by the Opposite Party that  it had got the approved plan and the independent Floors will be built up as per the approved plans and designs.  The Complainants had opted for the Construction Linked Payment Plan.  They had paid a sum of Rs. 1,04,50,667/-  (Rupees One Crore Four Lakhs Fifty Thousand Six Hundred Sixty Seven only) out of the total consideration.

3.      It is further stated that a part of the said sale consideration i.e. Rs. 47,81,000/- was sanctioned by the Financiers, out of which about Rs. 34,79,164/- was availed by the Complainants to pay to the Opposite Party, firstly, from DHFL Finance Limited, and thereafter from PNB Housing Finance Limited to whom the Complainants had regularly serviced the interest or EMI on the  financed amount from the year 2013 at the prevailing rate of interest, and more than an amount of  Rs. 19,00,000/- had been paid towards interest to its Financiers. 

4.      Further, it is averred that the Opposite Party, as per Clause 4.2 of the Flat Buyer’s Agreement, had assured to deliver the possession of the Apartment within 24 months with a grace period of 06 months from the date of execution of the Agreement i.e. 28.9.2011.    However, the Opposite Party has failed to give possession of the Flat even after 8½ years from the promised date of possession and there is no likelihood of offer of possession of the Flat in question.  It is further stated the said Agreement contained various one-sided and arbitrary clauses, and also that the Complainants were made to sign on the already prepared documents, and such practice constitutes unfair trade practice on the part of the Opposite Party under the Consumer Protection Act.

5.      The Complainants further stated in the complaint that they had booked the Apartment for better living and to reside there, but the inordinate delay so caused has shattered their dreams and they cannot wait for an indefinite period and, as such, requested the Opposite Party to refund the amount paid by them alongwith interest, but the Opposite Party did not consider their repeated requests. 

6.      Aggrieved by the delay, the Complainants have filed this Complaint against the Opposite Party praying for the following relief(s):-

A.        That an Award may kindly be passed directing the Opposite Party, its men, agents etc. to deliver the possession of the booked Apartment bearing No. IF15-014 in Raheja’s Shilas in Sector-109, Gurugram/Gurgaon, Haryana, alongwith all necessary permission, statutory sanctions, approvals, as per sanctioned plan besides delayed possession compensation/penalty @ 18% per annum on the amount so paid by the Complainants from the date of deposit of amount till its  realization to the Complainants OR in the alternative, on account of failure of the Opposite Party(s) to handover the possession of the booked apartment, the amount so paid by the Complainants be also ordered to be returned to the complainants alongwith interest @ 18% per annum from the date of payment till its realization besides damages and costs;

B.        Further an award of damages and compensation of Rs. 25,00,000.00 may kindly be passed for causing mental tension, harassment, torture, and unfair trade practice so carried out by the Opposite Party;

C.        Costs of the present proceedings amounting to Rs. 1,10,000.00 be also awarded in favour of the Complainants;

D.        Any other order/directions which this Hon’ble Commission may deem fit and proper in the facts and circumstances be also passed.

7.      The Opposite Party has resisted the Complaint by filing its Reply taking objections as under –

a.      Complainants are not ‘Çonsumers’ under the Act as they had purchased the Unit for speculative gains;

b.      This Commission lacks jurisdiction;

c.       The parties are bound by the terms and conditions of the Agreement.  The Opposite Party cited Order of the Hon’ble Supreme Court in “Bharthi Knitting Company  Vs. DHL Worldwide Express Courier Division of Airfreight Ltd., (1996) 4 SCC 704”  wherein the Hon’ble Supreme Court affirmed the view that liability of a party should be limited to the extent as undertaken in the Contract between the Parties;

d.      The Opposite Party had only endeavoured to complete the construction of the independent floors within 30 months from the date of execution of the Agreement;

e.      The Opposite party has acted in terms of the Agreement;

f.       Time is not the essence with respect to the immovable property;

g.      No deficiency in service or unfair trade practice on the part of the Opposite Party;

h.      The dispute, if any, can be referred to Arbitration and in absence such can be tried only in a Civil Court;

i.        The present Complaint is barred by Limitation;

Therefore, the Opposite Party has prayed that the Complaint is liable to be dismissed with costs.

8.      Rejoinder has been filed on behalf of the Complainants.  They have submitted that the counter version of the Opposite Party through the Counsel, is only misleading and an abuse of the process of law.  It has also been stated in the Rejoinder that they had booked the Apartment for the residential requirement of themselves and their family and not for any commercial purpose.  It has also been stated that the question of jurisdiction is to be considered on the basis of the averments made in the Complaint and such objection has no legs to stand upon.  Further, it has been stated that the Agreement is one-sided and arbitrary and the Complainants were made to sign that Agreement.  The Complainants have also claimed that the Opposite Party has failed to deliver the possession within the specified time and there was an unequivocal promise/commitment made with the buyers that the possession will be delivered within 30 months (including the grace period of 06 months) from the date of execution of the Agreement.  It has also been stated that the Opposite Party has filed the letter of the Town Planner which itself reflects that the Project has not been made in accordance with the sanctioned plan, and there are deficiencies as pointed out in the Letter of Town Planner dated 27.4.2017, and the Opposite Party is not able to rectify the objections due to which the Project was not approved.  The Complainants further stated that the Opposite Party is trying to play with the process by contending that the ‘Time is not the Essence of the Contract with respect to an Immovable Property’ which is untenable as the Complainants had booked the Apartment vide Agreement dated 28.09.2011 and they cannot wait for an indefinite time for the possession.  There has been sheer deficiency and unfair trade practice on the part of the Opposite Party by cheating, continuously harassing and causing agony in the mind of the Complainants. Further it has been stated that the objection regarding Arbitration does not apply to Consumer Courts, as they are the special Courts set up for Public purpose. The Complainants have also stated that the Complaint is within time and it is a recurring cause of action which is arising and rearising at every moment and the objections by the Opposite Party are liable to be dismissed, and the complaint should therefore be allowed.

9.      We have heard the Ld. Counsel for both the Parties and perused the material available on record.

10.    The Ld. Counsel on behalf of the Complainants argued that the Complainants are requesting possession of the booked Apartment alongwith all necessary permissions, statutory sanctions, approvals as well as delay compensation/penalty @ 18% p.a., OR, in the alternate, refund has been requested in case the Opposite Party fails to give possession. The Opposite Party has not obtained Occupancy Certificate but has applied for the same.  He has further argued that this Commission has already dealt with similar cases of the same Opposite Party in the same Project wherein the Complaint was partly allowed.

11.    The Ld. Counsel for the Opposite Party has argued that construction of the Project is complete.  The Opposite Party has applied for Occupancy Certificate on 27.4.2017.  Possession can be handed over in alternate Units, if so desired, by the Complainants.

12.    The objection of the Opposite Party that the Complainants are not ‘Consumers’ under the Act as they had purchased the Unit for speculative gains, is rejected in view of the Order of this Commission in “Sai Everest Developers  Vs. Harbans Singh Kohli, 2015 SCC OnLine NCDRC 1895 decided on 21.07.2015”, in which it was held that –

“the Opposite Party should establish by way of documentary evidence that the Complainants were dealing in real estate or in the purchase and sale of the subject property for the purpose of making profits.”

In the instant case, there is no such evidence filed by the Opposite Party to establish its case that the said Apartment was purchased by the Complainants for making profits. 

13.    The objection that this Commission lacks jurisdiction is rejected in view of the Order of the Hon’ble Supreme Court in “M/s. Imperia Structures Ltd.  Vs. Anil Patni and Anr., (2020) 10 SCC 783 decided on 02.11.2020”,  in which it was held that-

“remedies under the Consumer Protection Act were in addition to the remedies available under special statutes”.

14.    The objection that the Parties are bound by the terms and conditions of the Agreement is devoid of merit in view of the Order of the Hon’ble Supreme Court in “Pioneer Urban Land & Infrastructure Ltd.  Vs. Govindan Raghavan, II (2019) CPJ 34 (SC), decided on 02.04.2019”, wherein it has held as under-

“6.7     A terms of a contract will not be final and binding if it is shown that the flat purchasers had no option to sign on the dotted line, on a contract framed by the builder.  The contractual terms of the Agreement of 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® of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling flats by the Builder.

7.         In view of 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.”

15.    The objection of the Opposite Party that time is not the essence with respect to immovable property is devoid of merit in view of the judgment of the Hon’ble Supreme Court in “Wg.Cdr. Arifur Rahman Khan  Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512 decided on 24.08.2020”.

16.    The objection that the dispute between the Parties can be referred to Arbitration or Civil Court is rejected in terms of the Order of this Commission in “Aftab Singh  Vs. Emaar MGF Land Limited & Anr., CC No. 701 of 2015, decided on 13.07.2017,  which was upheld by the Hon’ble Supreme Court, wherein it was held that –

“Arbitration Clause in the Buyer’s Agreement does not bar the jurisdiction of the Consumer Fora”.

17.    The objection that the Complaint is barred by limitation is also devoid of merit.  The Opposite Party has not delivered the possession of the Unit to the Complainants till date.  Therefore, the cause of action is continuing in view of the Order of the Hon’ble Supreme Court in “Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 decided on 09.05.2012, wherein it was held that –

“the failure to deliver possession of the Plot constitutes a recurrent/continuing cause of action”.

18.    The objection of the Opposite Party 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.”

19.    We find that 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 Complainants cannot wait for an indefinite time as they have 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 fair delay compensation in case of undue and unreasonable delay by the Developer in giving possession or refund in terms of the Agreement.

20.    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…….”.

21.    In the present case, the Complainants were to get possession by March, 2014 as per the Agreement Clause 4.2.  However, even after an inordinate delay of around 8½ years, the Opposite Party failed to give possession of the Unit to the Complainants.  It is pertinent to note that the Opposite Party applied for Occupation Certificate in the year 2017  but it has not obtained the same till date.  The Opposite Party has not given any timeline when it will give possession of the Unit to the Complainants.  Therefore, the Complainants are entitled for fair and delay compensation.

22.    In the connected cases of “Ekta Gupta  and several Ors.  Vs. Raheja Developers Ltd.”  i.e. the present Opposite Party (CC Nos. 635, 636, 640, 644, 645 and 650 of 2020), similar complaints of the other allottees were allowed by this Commission on 13.12.2022.  All those complaints also pertained to the same Project i.e. “Raheja Shilas”, and the facts in each case were virtually identical.  The present complaint is, therefore, fully covered by the decision in aforesaid connected cases, and is similarly allowed.

23.    Consequently, the complaint is disposed off with the following directions -

i)        The Opposite Party is directed to complete the construction of the Unit allotted to the Complainants in all respects, duly obtaining the requisite Occupancy Certificate at its own cost and responsibility and offer and give possession of the respective Unit to the Complainants before the end of March, 2024, alongwith a delay compensation @6% p.a. from the proposed date of possession as per the Agreement, till the offer of possession or obtaining Occupancy Certificate whichever is later.  If the Opposite Party fails to deliver the possession of the Unit by such time and if the Complainants desire refund of their money, then the Opposite Party shall refund the deposited amount within 03 months with a delay compensation @9% p.a. simple interest from the respective dates of deposits till realization.  Any delay beyond this period will attract an interest @ 12% p.a. for the same period.

ii)       At the time of giving possession, the Opposite Party shall work out the delay compensation after making adjustment of outstanding charges payable by the Complainant, if any, and make payment of the compensation to the Complainants.

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