These consumer complaints have been filed by the complainants against the opposite party M/s. Unitech Ltd. for possession of the allotted respective villas after getting them completed in all respects as per the provisions of builder-buyer agreements signed between the opposite party and the complainants.

2.      Brief facts of these complaints are as follows:-

CC NO. 212 OF 2016

3.      The complainants namely Reena Puri Lekhi and Meenu Sharma booked a residential villa with the Opposite party in a project namely Espace Premiere in Unitech Nirvana Country- II, Sector 71 & 72 of Gurgaon on 08.02.2011. Unit No. 0077 in Block B of the aforesaid project was allotted to them for a total consideration of Rs. 2, 57, 71, 354/-. The possession was to be delivered within 24 months from the date of the Buyer’s agreement which came to be executed on 27.07.2011. The grievance of the complainant is that despite them having already paid a sum of Rs. 1, 66, 94, 486/- to the Opposite Party, the possession of the aforesaid unit has not been offered to them. The complainants are therefore before this Commission, seeking possession of the aforesaid unit, along with compensation etc.

CC NO. 213 OF 2016

4.      The complainants namely Mohit Kumar Gupta and his wife Monica Gupta booked a residential unit in the above referred project namely Espace Premiere in Unitech Nirvana Country- II, Sector 71 & 72 of Gurgaon on 05.02.2011 and Unit No. 0078 in Block B of the aforesaid project was allotted to them for a total sale consideration of Rs.2, 57, 71, 354/-.  The possession was to be delivered within 24 months from the date of the Buyer’s agreement which came to be executed on 10.3.2011. Despite they having already paid Rs.1, 65, 69, 621/- to the Opposite party, the possession of the unit has not been offered to them.

CC NO. 214 OF 2016

5.      The complainant namely Dr. Amar Deep Yadav purchased a Villa in the said project from the Original Buyers namely, Lalit Kumar and Rajeev Singh. Unit No. 0043 in Block B of the aforesaid project was allotted to them (original buyers) for a total consideration of  Rs. 2, 13, 20, 104 vide Buyer’s agreement dated 10.5.2012. Subsequently, an Agreement to sell dated 05.08.2013 was entered into between the Original Buyers and the Complainant for a total consideration of Rs. 1, 29, 50, 000/- including premium amount and all subsequent payments to be made by the complainant to the opposite party. The possession was to be delivered within 24 months from the date of the Buyer’s agreement which came to be executed on 10.5.2012. Despite him having already paid Rs. 1, 15, 52, 491/- to the opposite party including the admitted amount paid by the Original Buyers, the possession of the Unit has not been offered to him.

CC NO. 217 OF 2016

6.      The complainants namely Ashish Sharma and his wife Sonu Sharma booked a residential unit in the aforesaid project on 15.3.2012 and Unit No. 0119 in Block B was allotted to them for a consideration of Rs. 3, 21, 08, 311/-. Buyers Agreement was executed on 18.9.2012 in this respect. The possession has not been offered to them despite them having paid an amount of Rs. 2, 15, 41, 845/- to the opposite party.

CC NO. 219 OF 2016

7.      The complainants namely Dr. Ranjan Sachdeva and his wife Dr. Alka Sachdeva booked a residential unit in the above referred project on 01.04.2011 for a total consideration of  Rs. 2, 06, 30, 811/- and executed a Buyers Agreement with the opposite party on 24.8.2011 in respect of Unit No. 0076 in Block B which had been allotted to them. The possession has not been offered to them despite them having already paid a sum of Rs. 2, 03, 22, 961/- to the opposite party.

CC NO. 220 OF 2016

8.      The complainants namely Ravi Sachdeva and his wife Mansi Sachdeva booked a residential unit in the aforesaid project on 21.2.2012 for a total consideration of Rs. 2, 03, 45, 811/- and Unit No. 0131 in Block B was allotted to them. They entered into a Buyer’s Agreement on 27.3.2012. They also have not been offered possession by the opposite party despite having already paid Rs.1, 99, 89, 374/-.

9.      The complaints were resisted by the opposite party by filing the written statements.  It is stated that the delay has occurred due to force majeure conditions.  However, the building work is in progress and the opposite party is in a position to hand over the possession of the villas in the near future.  Both the parties filed affidavit evidence in these complaints.

10.  Heard the learned counsel for both the parties and perused the record.  Learned counsel for the complainants stated that substantive amount has been paid by all the complainants to the opposite party. However, the possession has not been delivered as per the builder-buyer agreement. For example, it is stated that in the Consumer Complaint No.212 of 2016 the total consideration of the villa was Rs.2,57,71,354/- and the complainant has paid Rs.1,66,94,486/- to the opposite party.  It was argued by the learned counsel that in a similar project, this Commission has already taken a view in Satish Kumar Pandey & Anr. Vs. M/s. Unitech Ltd.-CC No.427/2014 & Other connected matters decided on 08.06.2015, wherein the direction was given to the opposite party to deliver the possession of the respective flats of the complainants to them on or before the last date stipulated in its letter of possession along with 12% p.a. interest on the deposited amount.  Learned counsel further mentioned the decision of this Commission in Virender Mohan Marya & anr. Vs. M/s. Unitech Ltd., CC No.1688/2016 & others connected matters, decided on 11.10.2017, wherein for the same project this Commission has passed the following order:-

“5.      Considering all the facts and circumstances of the case, the Consumer Complaints No. CC/1688/2016, CC/1689/2016, CC/1690/2016, CC/1691/2016, CC/384/2016, CC/654/2016, CC/655/2016, CC/656/2016 and CC/657/2016 are disposed of with the following directions:

(i)      The opposite party shall complete construction of the villas allotted to the above referred complainants or their predecessor in interest, in all respects, on or before 30.9.2018;

(ii)      The opposite party shall obtain at its own cost and responsibility the requisite occupancy certificate in respect of the aforesaid villas on or before 30.11.2018;

(iii)     The opposite party after completing the construction in all respects and obtaining the requisite occupancy certificate in terms of directions (i) and (ii) above, shall offer possession of the villas allotted to the complainants on or before 31.12.2018;

(iv)    The opposite party shall pay compensation in the form of simple interest @ 8% per annum to the aforesaid complainants on the entire amount received by it, with effect from the committed date of possession i.e. two years from the date of execution of the Buyers Agreement, till the date on which the possession in terms of this order is actually offered to them after completing the construction in all respects and obtaining the requisite occupancy certificate;

(v)     The compensation in terms of this order shall be paid at the time of offering of possession of the villas or by 31.12.2018, whichever be earlier;

(vi)    The opposite party shall pay Rs.25,000/- as the cost of litigation in ach complaint;

(vii)    If the Hon’ble Supreme Court awards a higher compensation along with the direction for possession in respect of the villas allotted in the project namely Espace Premier in Sector 71 and 72 of Gurgaon, the complainants will be entitled to the said higher compensation, unless the Hon’ble Supreme Court directs that the order passed by it will not be treated as a precedent.”

11.    It was requested by the learned counsel for the complainants that similar order be passed in the present complaint cases.  It was further argued that all the objections taken by the opposite party have already been considered and decided in the two judgements passed by this Commission in Satish Kumar Pandey & Anr. Vs. M/s. Unitech Ltd. (supra) and Virender Mohan Marya & anr. Vs. M/s. Unitech Ltd. (supra).  Therefore, no new issues are required to be decided by this Commission and the order can be passed on the same lines on which this Commission passed order in the above two cases.

12.    On the other hand, learned counsel for the opposite party stated that the building work is in progress and similar order as passed in Virender Mohan Marya & anr. Vs. M/s. Unitech Ltd. (supra) may be considered for these complaint cases.  However, the learned counsel requested that the interest rates are falling and in this scenario, the compensation @ 8% p.a. is not justified and it should be ordered on a reduced level.

13.    I have given a thoughtful consideration to the arguments advanced by the learned counsel for both the parties and have examined the record.  It is clear that the complainants have paid substantial amounts to the opposite party and the building work is in progress. The complainants want possession and the construction work is in progress and the opposite party is ready to deliver the possession, however, with delay.  There is a provision in the builder-buyer agreement for compensating the allottee, if the possession is delayed.  This Commission in Thangavel Palanivel and another Vs. M/s. DLF Southern Homes Pvt. Ltd., Consumer Complaint No.304 of 2015 decided on 29.8.2016, has taken a view that the compensation provided in the builder-buyer agreement is not sufficient to meet the loss and injury suffered by the allottee.  The judgment observes as follows:-

“12.    The last question which arises for consideration in this regard is as to whether the opposite party is liable to pay only the compensation stipulated in the Buyers Agreement or a compensation which commensurates with the loss suffered by the complainants on account of the deficiency on the part of the opposite party in rendering services to them.  This question has been considered by this Commission in a number of cases including Satish Kumar Pandey & Anr. Vs. Unitech Ltd. and connected matters, decided on 08.6.2015.  The following view taken in Satish Kumar Pandey (supra) is relevant in this regard:

“It is an undisputed proposition of law that ordinarily the parties are bound by the terms and conditions of the contract voluntarily agreed by them and it is not for a Consumer Forum or even a Court to revise the said terms.

   However, a term of a contract, in my view will not be final and binding if it is shown that the consent to the said term was not really voluntary but was given under a sort of compulsion on account of the person giving consent being left with no other choice or if the said term amounts to an unfair trade practice.  It was submitted by the learned counsel for the complainants that the term providing for payment of a nominal compensation such as Rs.5/- per square foot of the super area having become the order of the day in the contracts designed by big builders, a person seeking to buy an apartment is left with no option but to sign on the dotted lines since the rejection of such term by him would mean cancellation of the allotment.  He further submitted that a person seeking to acquire a built up flat instead of purchasing a plot and then raising construction on it, therefore, is not in a position to protest resist the inclusion of such a term in the Buyer’s Agreement, and has to rely upon the reputation of the builder, particularly if he is a big builder such as Unitech Ltd.  He also submitted that the format of the Buyer’s Agreement is never shown to the purchasers at the time of booking the apartment and if he refuses to sign the Buyer’s Agreement on the format provided by the builder, not only will he lose the booking, even the booking amount/earnest money paid by him will be forfeited by the builder.  I find merit in the above referred submissions of the learned counsel.  A person who, for one reason or the other, either cannot or does not want to buy a plot and raise construction of his own, has to necessarily go in for purchase of the built up flat.  It is only natural and logical for him to look for an apartment in a project being developed by a big builder such as the opposite party in these complaints.  Since the contracts of all the big builders contain a term for payment of a specified sum as compensation in the event of default on the part of the builder in handing over possession of the flat to the buyer and the flat compensation offered by all big builders is almost a nominal compensation being less than .25% of the estimated cost of construction per month, the flat buyer is left with no option but to sign the Buyer’s Agreement in the format provided by the builder.  No sensible person will volunteer to accept compensation constituting about 2-3% of his investment in case of delay on the part of the contractor, when he is made to pay 18% compound interest if there is delay on his part in making payment.

    It can hardly be disputed that a term of this nature is wholly one sided, unfair and unreasonable.  The builder charges compound interest @ 18% per annum in the event of the delay on the part of the buyer in making payment to him but seeks to pay less than 3% per annum of the capital investment, in case he does not honour his part of the contract by defaulting in giving timely possession of the flat to the buyer.  Such a term in the Buyer’s Agreement also encourages the builder to divert the funds collected by him for one project, to another project being undertaken by him.  He thus, is able to finance a new project at the cost of the buyers of the existing project and that too at a very low cost of finance.  If the builder is to take loan from Banks or Financial Institutions, it will have to pay the interest which the Banks and Financial Institutions charge on term loan or cash credit facilities etc.  The interest being charged by the Banks and Financial Institutions for financing projects of the builders is many times more than the nominal compensation which the builder would pay to the flat buyers in the form of flat compensation.  In fact, the opposite party has not even claimed that the entire amount recovered by it from the flat buyers was spent on this very project.  This gives credence to the allegation of the complainants that their money has been used elsewhere.   Such a practice, in my view, constitutes unfair trade practice within the meaning of Section 2(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practice for the purpose of selling the product of the builder.  Though, such a practice does not specifically fall under any of the Clauses of Section 2(r) (1) of the Act that would be immaterial considering that the unfair trades, methods and practices enumerated in Section 2(r) (1) of the Act are inclusive and not exhaustive, as would be evident from the use of word “including” before the words “any of the following practices.     

     The view taken in Satish Kumar Pandey (supra) reiterated by this Commission in Swarn Talwar (supra) and the decision of this Commission, as noted earlier, was upheld by the Hon’ble Supreme Court.

   Therefore, I have no hesitation in reiterating that the compensation which the builder has to pay to the buyers in such cases cannot be restricted to the compensation stipulated in the wholly one side Buyers Agreement and has to be based upon the loss suffered by the consumer on account of deficiency in the services rendered to him.”       

14.    Thus, it is clear that the complainants are entitled to receive compensation more than whatever is mentioned in the builder-buyer agreement. A compensation of Rs.5/- per sq.ft. per month is mentioned in the builder-buyer agreement.  This Commission in Rajarshi Saikia Vs. M/s. Unitech Ltd., CC No.361 of 2016 decided on 26.03.2018 (NC) recently in a similar case against the same opposite party has passed the order entitling the complainants to receive compensation on the deposited amount before the due date of possession @6% p.a. over and above the compensation provided in the agreement @ Rs.5/- per sq.ft. per month.

CC Nos.212, 213,217,219 & 220 of 2016

15.    Keeping the judgments passed by this Commission in different complaint cases against same opposite party as well as keeping in view the downwards trend of prevailing interest rates, complaints are disposed of with the following order:-

ORDER

CC No.212 of 2016, CC No.213 of 2016, CC No.217 of 2016, CC No.219 of 2016 & CC No.220 of 2016 are disposed of with the following directions:-

“(a)  The opposite party shall complete the construction and hand over the possession of the allotted flats to the respective complainants along with all facilities and amenities as per the agreement before 30.06.2019 after obtaining the occupancy certificate.

 (b)  The opposite party shall pay interest @6% p.a. on the deposited amount by the respective complainant with the opposite party before the due date of possession as per the agreement, from the date of due possession till the date of actual possession.  On the amounts paid after the due date of possession, the interest shall be payable from the date of completion of one year from the date of deposit till the date of possession.  This shall be over and above the delay charges of Rs.5/- per sq.ft. per month as stipulated in the Agreement. The charges if already adjusted shall be counted against this.

(c) If the possession is not given on or before 30.06.2019, the complainant would be at liberty to ask for the refund of total amount paid by him to the opposite party.  In such situation, the opposite party shall refund the total amount received from the complainant within 60 days from the date of demand by the complainant along with interest @11% p.a. from the date of respective deposits till actual payment. If the complainant does not ask for refund, he shall be entitled to get interest @6% p.a. as already ordered till possession is handed over.

(d)   Opposite party shall also pay the cost of litigation as Rs.10,000/- (rupees ten thousand only) to the complainants in each case.”

CC 214 of 2016

16.    In CC No.214 of 2016, the complainant is second allottee, who has purchased villa from the original buyers.  In this case the original builder-buyer agreement was signed on 10.05.2012 and agreement to sell was executed on 05.08.2013, therefore, this allottee has stepped into the shoes of the original purchasers before the date of due possession, which was after two years from the date of agreement dated 10.05.2012.  Because the complainant wants possession, he would also be entitled to the same relief as the other complainants because the compensation will be payable from the date of the due possession.  However, if the possession is not given within the prescribed time, as other complainants, this complainant will also be at liberty to get the refund from the opposite party.  However, he shall get interest only from the date of his agreement to sell i.e. 05.08.2013.  The CC No.214 of 2016 is disposed of with the following order:-

ORDER

CC No.214 of 2016 is disposed of with the following directions:-

(a)   The opposite party shall complete the construction and hand over the possession of the allotted flat to the complainant along with all facilities and amenities as per the agreement before 30.06.2019 after obtaining the occupancy certificate.

 (b)  The opposite party shall pay interest @6% p.a. on the deposited amount by the complainant with the opposite party before the due date of possession as per the agreement, from the date of due possession till the date of actual possession.  On the amounts paid after the due date of possession, the interest shall be payable from the date of completion of one year from the date of deposit till the date of possession.  This shall be over and above the delay charges of Rs.5/- per sq.ft. per month as stipulated in the Agreement. The charges if already adjusted shall be counted against this.

(c) If the possession is not given on or before 30.06.2019, the complainant would be at liberty to ask for the refund of total amount paid by him to the opposite party.  In such situation, the opposite party shall refund the total amount received from the complainant within 60 days from the date of demand by the complainant along with interest @11% p.a. from the date of respective deposits but not from any date prior to 5.8.2013 till actual payment.

(d)   Opposite party shall also pay the cost of litigation as Rs.10,000/- (rupees ten thousand only) to the complainant.