For the Appellant Ms Minu Mahajan, Advocate For the Respondent Mr Nikhil Thakur, Proxy Counsel for Ms Kanika Agnihotri, Advocate ORDER PER MR SUBHASH CHANDRA 1. This Appeal under Section 19 and 21 of the Consumer Protection Act, 1986 (in short, the ‘Act’) is directed against the order dated 20.07.2017 of the State Consumer Dispute Redressal Commission, Haryana, Panchkula (in short, ‘State Commission’) in Complaint Case No. 329 of 2017 disallowing the complaint as being premature. 2. Briefly stated, the relevant facts of the case are that the appellant had entered into a purchase agreement with the original buyer of Unit No. T-42 (Duplex), 4th Floor, Tuscan City, Kundli, District Sonipat being developed and constructed by the respondent for a sale consideration of Rs 32,50,003.21. He had paid Rs 16,77,870/- to the original allottee and a Transfer Certificate was issued. The appellant and the respondent entered into an independent floor buyers agreement for the purchase of an independent floor with the respondent on 24.05.2014 (in short, the “Agreement”) as per which possession had been promised within 2 years. However, as no construction had commenced at site by the respondent, appellant had approached the State Commission through a consumer complaint (No. 329 of 2017) on 25.05.2017 seeking refund of the amount of Rs 16,77,870 with interest @ 24% p.a. and compensation of Rs 5,00,000/- for harassment and mental agony, Rs 5,00,000/- towards rent paid and Rs 55,000/- for litigation expenses. 3. The complaint was disposed of by the State Commission after hearing the appellant vide the impugned order wherein it was held that: 3. Learned counsel for the complainant vehemently argued that he purchased this unit from first allottee and paid Rs 16,77,870/- to him. O.P. has not raised any construction and be directed to refund the amount as mentioned above. 4. This argument is of no avail. The counsel for the complainant has failed to show date by which possession was to be delivered. When no such date has expired how it can be presumed that there is deficiency in service on the part of O. P. No cause of action has accrued as yet. 5. In view of the above discussion it is clear that complaint is premature and is not maintainable at this stage and is hereby dismissed as such. However, complainant will be at liberty to file fresh complaint as and when cause of action accrues. 4. Aggrieved by this order, the appellant is before us. We have heard the Learned Counsel for both the parties and perused the record carefully. 5. On behalf of the appellant it was contended that he had entered into an Agreement with one Gurbachan Singh who had booked the flat in question with the respondent for the purchase of the said flat and respondent had issued a transfer certificate in his name on 19.10.2011 confirming the transfer and crediting the payment of Rs 16,77,870/- in the appellant’s account. A Floor Buyer’s Agreement (FBA) was executed between the appellant and respondents on 24.05.2014 indicating the sale consideration as Rs 32,50,003.21. According to the appellant, the respondent promised to give possession of the unit within two years complete in all respects and the appellant agreed to deposit future instalments at the stage of construction to be completed up to 60%. According to the appellant it was agreed that the respondent would be liable to refund the amount along with interest at 24% p.a. calculated from the respective dates of deposit, in case possession was not handed over within two years. Despite the appellant approaching the respondent several times, no construction had commenced on site and was not likely to be commenced at any time in the near future. Alleging deficiency in service, the appellant approached the State Commission after a legal notice seeking refund of Rs 16,77,870/- with interest at 24% p.a. and other compensations which was not responded to by the respondent. Appellant therefore approached the State Commission which erroneously dismissed the complaint without appreciating the facts of the case and therefore this appeal had been filed. According to the appellant, the impugned order contradicted itself in paras 4 and 5 since it gave liberty to the appellant to file a fresh complaint whereas as per para 4 there was no possibility of any cause of action accruing to him as the FBA did not indicate any date of handing over of possession. It was also contended that the impugned order would enable setting of a wrong legal precedent and incorrect benchmark for builders and therefore warranted being set aside. It was also averred that the order was a mechanical order without application of mind and deserved to be set aside. It was therefore prayed that this Commission: (i) Call for the trial court record; (ii) Summon the respondent to contest the present appeal (iii) Set aside the impugned order dated 20.07.2017 passed by the State Commission in complaint no. 329 of 2017 titled as “Sanjay Kumar Gehlawat Vs TDI Infrastructure Ltd.”; (iv) Direct the respondent to refund pay the entire amount as claimed in the complaint; (v) Remand back the case to the learned State Commission to be tried on merits; (vi) Pass such other order or orders as this Hon’ble Court may deem fit and proper in the facts and circumstances. 6. On behalf of the Respondent it was argued that the appeal had been filed after a delay of 5 months and 19 days beyond the prescribed period of 30 days and the appellant was attempting to mislead the Commission by stating that the appeal was filed after around 4 months. It was contended that sufficient cause had not been shown by the appellant to condone the delay. Reliance was placed on the judgment of the Hon’ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority, (2011) 12 SCC 579 to argue that the special period of limitation has been provided under the Act to meet the objective of expeditious adjudication of consumer disputes. Respondent also relied upon Sanjay Sidgonda Patil Vs. Manager, National Insurance Co. Ltd., RP No. 985/2013 wherein this Commission declined to consider condonation of delay on the ground that the medical certificate justifying the delay would be produced during arguments. Respondent’s case is that there was no cause of action as he failed to show the date by which possession was to be handed over and hence no ground for deficiency in service was made out. 7. Addressing the preliminary issue of limitation raised by the respondent at the outset, a delay of 144 days has been reported by the Registry. The appellant’s ground for seeking condonation of this delay is that it took time for him to identify and appoint a counsel in Delhi to file the appeal. In view of the fact that this appeal raises an important aspect of consumer interest and rights insofar as allottees of housing projects are concerned, the delay has been considered and condoned in the interest of justice as it has far reaching implications for consumers of housing projects. Objections of the respondent are therefore over-ruled and the delay condoned. 8. From the foregoing it is manifest that the State Commission has considered the complaint premature on the ground that the FBA did not include any commitment on part of the respondent regarding a prospective date by which possession would be handed over, despite specifying that there would be a service (of construction of a flat, i.e. ‘housing services’) against a consideration. It now contends that the complaint is premature in that there was no stipulation of a date by when the construction was to be completed. When there are provisions mandating payments as part of the consideration with provisions for penal consequences for default on part of the appellant/allottee, the non-inclusion of any corresponding provision of liability on the respondent is an ‘unfair trade practice’. An Agreement to provide housing services based upon a payment schedule based on certain milestones without any commitment to a time frame for handing over possession to the allottee/consumer making such payments would amount to making such an allottee/consumer subject to liabilities without any right to agitate his right to seek possession within a reasonably defined time frame. In a catena of judgments, notably in Fortune Infrastructure & Anr. Vs. Trevor D’Lima & Ors., (2018) 5 SCC 442 and Kolkata West International City Pvt. Ltd., vs Devasis Rudra 2019 (6) Scale 462 the Hon’ble Supreme Court has laid down that while it would be reasonable to expect an allottee to wait for a reasonable time to obtain possession of a flat booked by him, it would manifestly be unfair to expect him to wait indefinitely to be handed over possession by the builder. The Hon’ble Supreme Court has therefore laid down certain guiding principles to safeguard consumer interest in Pioneer Urban Land Infrastructure Ltd., vs Govindan Raghavan (2019) 5 SCC 725 and Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, C.A. No. 6044 of 2019 decided on 07.04.2022. It has also balanced equities by safeguarding liabilities on builders in DLF Homes Panchkula Pvt. Ltd., vs D S Dhanda (2020) 16 SCC 318, decided on 10.05.2019. In Central Water Transport Corporation Ltd., vs Tarun Kanti Sengupta (1986) 3 SCC 156, the Hon’ble Supreme Court has laid down that Agreements that are drafted by builders and executed with allottees/consumers when they have no option but to sign on the dotted line containing one-sided and onerous clauses constitute an unfair trade practice. An Agreement, such as the case of the instant FBA, which does not indicate any date of completion and then seeks to oust the allottee from the ambit of the Consumer Protection Act on ground of lack of cause of action is therefore patently unfair and unjustifiable. It cannot be sustained and must be set aside. A consumer cannot be left with no remedy of even seeking redressal while being exposed to the rigours of a contractual arrangement that puts him under strict and harsh conditions of payments for the services obtained against a consideration. For this reason, the impugned order which is passed mechanically and without application of mind, must be quashed and set aside. 9. The contention of the respondent that there has been no deficiency in service has also been considered. “Deficiency” is defined under the Act as under: 2. (g) “deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. It is evident that the non-disclosure of the time by which possession of the flat would be handed over to the appellant constitutes a ‘deficiency’. Further, as per the Act, an “unfair trade practice” is defined as below: “unfair trade practice” means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provisions of any service, adopts any unfair method or unfair or deceptive practice. The execution of an Agreement containing one-sided and clauses adverse to the appellants constitutes an unfair trade practice and abuse of dominant position. 10. Respondent has not disputed the appellant’s contention that the execution of the project has not been completed. There is no submission or the bringing on record any evidence that the project is underway or is likely to see the light of day by any date. It has not denied that it has permitted transfer of the flat from the original allottee, Gurbachan Singh, to the present appellant. As per the judgment in M/s Laureate Buildwell Pvt. Ltd., vs Charanjeet Singh in Civil Appeal no. 7042 of 2019 decided on 22.07.2021 a subsequent allottee steps into the shoes of the original allottee with effect from the date of such a transfer. Hence, the appellant is entitled to claim possession of the flat within a reasonable period of time from the date of approval of transfer, i.e., 19.10.2011. Respondent has not provided any reason or evidence for the inordinate delay of 10 years. No legal or force majeure circumstances have been advanced either. It will, therefore, not be incorrect to conclude that the delay is wilful and deliberate. It is also manifest that there is no possibility of the flat in question being completed and handed over. In any case, there is the alternate prayer by the appellant for refund with compensation in the appeal under consideration. 11. For the reasons stated above, in the facts and circumstances of the case, the respondent is held guilty of deficiency in service and unfair trade practice qua the appellant. Accordingly, the appeal is allowed and disposed of with the following directions: (i) the impugned order dated 20.07.2017 is quashed and set aside; (ii) respondent shall refund to the appellant the amount of Rs.16,77,870/- without any deductions with interest @ 9% simple interest p.a. from 19.10.2011 within 8 weeks failing which the applicable rate of interest shall be 12% p.a. till realization; (iii) respondent shall also pay the appellant litigation fee of Rs 75,000/-. 12. Pending IAs, if any, stand disposed of with this order. | 
