DR.INDER JIT SINGH, MEMBER

1.   The present Consumer Complaint (CC) has been filed by the Complainant against the opposite party as detailed above, inter aila praying for:-

(i)      to pay delayed possession compensation equal to interest @12% per annum on the amount deposited by the Complainant with the OP, from the promised date of possession, i.e., April 2017 till the date of physical possession.

(ii)     to pay Rs.5,00,000/- as compensation on account of mental agony and harassment.

(iii)    to pay Rs. 2,00,000/- towards cost of proceedings etc.

2.       Notice was issued to the opposite party on 27.06.2019 giving them 45 days’ time to file their written statement.

3.       It is averred/stated in the complaint that:-

i)        That the son of the complainant Mr. Nalin Singal booked a flat on 29.12.2012 in the residential Project launched by the OP in the name of “Paras Dew’s”, at Sector-106, Dwarka Expressway, Daultabad, Gurgaon, Haryana by paying a booking amount of Rs.7,50,000/-. After booking, he transferred the rights and liabilities attached to the Apartment in the name of his father, Mr. Sushil Singal, the complainant and was allotted flat No. T-C/0002 on Ground Floor, Tower ‘C’ admeasuring super area of 1760 sq. feet and allotment letter dated 10.01.2013 was issued.  Builder Buyer Agreement dated 30.04.2013 was entered between the parties.  The total consideration for the flat was Rs.1,16,70.720/-, out of which, the complainant paid Rs.1,25,78,460/- till the filing of this complaint, i.e. 30.04.2017. The OP was liable to handover the possession of the unit within 42 months from the date of Agreement with a grace period of six months, i.e. 30.04.2017.

ii)       After having paid a substantial portion of the consideration for the flat, the OP failed to hand over the possession within the stipulated period, i.e. April, 2017. On 24.01.2019, after a delay of about two years, the OP issued offer of possession vide letter dated 24.01.2019. The complainant made numerous attempts to communicate with the OP but instead, the OP issued letter of offer of possession whereby the complainant had to take possession within 30 days, i.e. by 24.02.2019.

iii)      As the OP not only failed to deliver the possession within the promised time period, but also  failed to adequately compensate the complainant towards the inordinate and unjustified delay in offering the possession. Therefore, the complainant filed complaint before this Commission.

4.       No reply was filed by OP in response to notice dated 27.06.2019, no one appeared on behalf of the OP on 21.10.2019 & 20.12.2019 despite service having been effected.  Hence, the OP was proceeded ex-parte on  20.12.2019 and their right to file written statement was closed on that day.

5.       Evidence by way of affidavit was filed by the complainant on 24.01.2020 broadly on the lines of averments made in the complaint.

6.       Heard counsels of both sides. The details of the flat allotted to the Complainant/other relevant details of the case are given in the Table below:-

7.    It was argued by the complainant that OP , despite having received 100% of the total consideration of the unit, failed to deliver the possession by the committed date as per agreement, i.e. 30.04.2017, and the same was offered only on 24.01.2019 i.e. after a delay of about two years.  The OP on the other hand argued that complainant made multiple defaults in the instalment schedule and the delay was due to reasons beyond their control. However, there is no documentary evidence to support the contention of the Opposite Party that the reasons pleaded by them, can be construed as ‘Force Majeure. The contention of the OP that the cancellation of Apartment should be as per agreed terms of BBA is also not acceptable. Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raglivan II (2019) CPJ 34 (SC) decided on 02.04.2019 held that “a term 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 incorporation of one sided clause in an agreement constitute 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 flats by the builder ........., the appellant-builder cannot seek to bind the respondent with such one sided contractual terms.” 

8. In the instant case, there is a delay of about two years in handing over the possession of flat by the OP. The complainant cannot be made to wait for an indefinite time and suffer financially. Hence, the complainant in the present circumstances, have a legitimate right to get timely possession alongwith fair delay compensation/interest from the OP. The plea of OP for entitlement of compensation to the complainant in accordance with provisions of the BBA is not valid.

9.   For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, the Consumer Complaint is allowed/disposed off with the following directions/reliefs: -

(i)      OP to deliver the possession of the unit in question to the complainant, if not done already, complete in all respects with amenities and facilities, as promised in the brochure and/or agreement, within one month from the date of this order, along with delay compensation in the form of simple interest @6% p.a. on the total amount paid by the complainant from the committed date of possession (30.04.2017) to the date of offer of possession (24.01.2019).

ii)       OP shall not charge any maintenance charges/holding charges till the date of actual physical possession.

iii)      Complainant will be liable to pay various charges as per BBA dated 30.04.2014, if remaining unpaid, as well as various taxes payable to government authorities.

iv)      OP shall also pay Rs.25,000/- as litigation costs to the complainant.

10.     The pending IAs, if any, also stand disposed off.