DR. INDER JIT SINGH, MEMBER

1. The present Consumer Complaint (CC) under Section 21(a)(i) has been filed by the Complainants against the OP for failure to hand over the possession of the apartment No.902 in Oak Towers, at the Forest Spa situated at Sarai Khawaja, Badhkal- Surajkund Road, Sector 43, District Faridabad, Haryana ,as per terms & conditions envisaged under Flat buyers agreement (FBA) dated 22.07.2011. The Complainants have bought the said unit in resale from the former buyer/ original allottee  named Mr.Virendra Agrawal and the same has been  transferred by the OP in the name of Complainants : It is inter-alia prayed in the complaint to direct the OP to:-

1. Withdraw the cancellation of allotment letter and hand over the possession of the said unit.

2. Withdraw arbitrary demand of Rs.86,12,213/-and interest for alleged delay in payment of final installments.

3. Rs.75,20,000/- for delayed possession to pay delayed compensation on the TDS paid by the complainant.

4. Rs.10,00,000/- towards mental harassment and agony.

5. Rs.5,00,000/- towards litigation cost.

2. It is averred/stated in the Complaint that: -

1. One Mr. Virendra Agrawal (original allottee) has booked a flat in the said project of the OP on 03.06.2011 and paid a sum of Rs.70,00,000/-. FBA was signed between the original allottee and the OP on 22.07.2011, as per which out of a total consideration of Rs.1,41,94,080/-, Rs.70,00,000/- was payable at the time of booking and balance Rs. 71,94,080/- to be paid at the time of offer of possession. As per FBA, the committed date of possession was 18 months from the date of allotment i.e. 22.07.2011, with a grace period of 6 months, i.e. 22.07.2013. Complainants purchased the property rights from the original allottee vide agreement to sell dated 26.05.2014 and request form dated 01.08.2014 on the same terms and conditions of FBA dated 22.07.2011. First offer of possession was made to the Complainants on 29.06.2016 for fit out option subject to payment of full and final installment of Rs.88,09,629/- plus service tax within 30 days , thereafter, after 60 days the possession of flat will be given on completion of various formalities. The said letter dated 29.06.2016 offering possession was issued by the OP claiming the unit to be in final stage of completion, with only finishing touches remaining. On site inspection, the Complainants found many defects and took up the matter with with OP on many occasions and Complainants were constrained to withhold the payment of final installment on account of exorbitant delay and sent a legal notice dated 29.06.2017 to the OP. Subsequently, OP vide letter dated 10.01.2018 cancelled the allotment of the said unit and forfeited the earnest money.

2. There is significant delay in granting possession of the flat. As per Flat Buyers Agreement (FBA), OP was bound to deliver the possession by 22.07.2013. The Unit was offered to Complainants in an uninhabitable and dilipated state. OP has arbitrarily cancelled the allotment in absolute disresgard to the FBA.

3. It is alleged in the complaint that the act and omission of the OPs falls under the definition of unfair trade practices and restrictive trade practices within the ambit of Consumer Protection Act 1986 for which buyers should be adequately compensated.

3. The OP in their written statement/reply while denying  each and every averments, allegations made by the complainant, have stated that:-

1. This commission lacks pecuniary jurisdiction in the present matter, the ambit of jurisdiction of Commission is strictly limited to examine the question of deficiency in service and not to go behind the agreement or terms of the agreement, Complainant is not consumer in the present case as he has bought the flat for investment purpose.

2. Allotment was cancelled because the Complainants themselves did not take the possession even after offering of possession by the OP.

3. Timely payments by the Complainants was the essence of the agreement, Complainants have defaulted in payment of installments.

4. At the time of transfer of the unit from the original allottee to the Complainants both the original allottee and the Complainants submitted an affidavit and indemnity bond, agreeing , inter- alia that construction period of the said unit as stated in the agreement shall be reckoned from the date of endorsement of allotment rights in favour of the Complainants and that they will not claim any compensation for delay in offer of possession.

5. OP completed the construction of the said unit and after obtaining occupancy certificate on 28.10.2016, offered possession to the Complainants on 29.10.2016 subject to making balance payment and completing the formalities. The Complainants never discharged their payment obligations as per agreed payment schedule despite repeated reminders and due to chronic defaults on the part of Complainants, allotment was cancelled on 10.01.2018 with consequences as per agreed terms of the contract.

4. Complainants in their rejoinder while denying the allegations of Opposite party and reiterating the contentions of the complaint stated that vide request form dated 01.08.2014, the Complainants stepped into shoes of former buyer, Mr.Virendra Agrawal with regards to allotment letter/ Agreement.

5. Evidence by way of an Affidavit was filed by the complainants and OP broadly on the lines of averments made in their respective complaint/reply. Written Synopsis was also filed by the Complainant and OP(s). The details of the flats allotted to the Complainants/other relevant details of the case are given in the Table below.:-

6. Heard counsels of both sides. The learned counsel for the complainants while reiterating facts of the complaint submitted that the undue delay in handing over the possession and the dilipated state of the unit caused mental agony to the Complainants and OP is liable for it. The learned counsel for the OP submitted while supporting their contention with various judgements of Hon’ble Supreme court stated that, the possession was offered to Complainants on 29.06.2016 for carrying out the interior work of the flat, but the Complainants never discharged their payment obligations which led to cancellation of allotment letter.

7. The contention of OPs that this Commission lacks pecuniary jurisdiction is not valid. Under Section 21 of the Act, Commission has the jurisdiction where value of goods and services and compensation, if any, claimed exceeds Rs one crore. The OPs have failed to deliver the possession of the unit to the complainant till date and therefore, the cause of action is continuing. The contention that complainant is not a consumer as he has purchased the unit for commercial purpose is also rejected as no such evidence has been adduced by the OPs in this regard. The contention of the OPs that the parties are bound by the agreement 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. Perusal of various communications between Complainants and OP post issuance of letter dated 29.06.2016 for fit out possession show that the said unit was not complete in all respects at the time of issuance of letter dated 29.06.2016 as well as subsequent offer of possession letter dated 29.10.2016 and Complainants were justified in delaying the payments of 2^nd/ final installment payable at the time of offer of possession as per terms & conditions of FBA. Certain additional works were indeed got done by the OP post issuance of letter dated 29.10.2016. No doubt the Complainants got into the shoes of original allottee with respect to various rights & liabilities under the FBA dated 22.07.2011, but when the transfer of the said unit took place in favour of Complainants on 01.08.2014 , the committed date of possession i.e  22.07.2013 was already over. Hence the Complainants were aware and conscious of the fact that the said apartment will not be delivered as per the timeline mentioned in the FBA and were willing to accept delay in completion of the project

9. Vide order dated 12.02.2018, while issuing pre admission notice to OP, it was ordered to maintain status quo in respect of the said unit. Notice to OP was received back with report of refusal. Complaint was admitted on 19.03.2018 with notice to OP to file written statement within 30 days, which was also received back with refusal report. On account of non appearance of anyone on behalf of OP, it was ordered on 21.08.2018 to proceed against OP ex-parte. IA filed by OP to recall the ex-parte order was dismissed in default on 17.12.2018. Subsequently, vide order dated 24.01.2020, IA of OP for recalling the earlier order was allowed subject to payment of costs. IA filed by the Complainants seeking permission to deposit the balance amount of the price of flat with the commission and direction to OP to remove all defects and offer physical possession to Complainants was declined with observation that the matter will be decided at the stage of final arguments.

10. 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: -

1. OP shall deliver the possession of the said flat to the Complainants with all the facilities / amenities/ final finishing/ as per agreed scope/ specifications under the agreement, and removing defects, if any, within 45 days of this order subject to payment of balance amount as per payment plan in the FBA and completion of required formalities within 30 days of this order, without charging any interest/ penalties for delayed payments since issuance of letter dated 29.10.2016.

2. Complainants will not be entitled for any delay compensation/ interest for delay in possession from the date committed in FBA.

3. In case of any delay in actual physical possession beyond 45 days from the date of the order, subject to Complainants paying the balance due amount and completion of requisite formalities within 30 days, OP shall be liable to pay delayed compensation @ 9% simple interest for the period of delay.

4. In case the Complainants delay the payment beyond 30 days from the date of this order, they shall be liable to pay simple interest @ 9% p.a. on the amount due for the period of delay.

5. Joint physical inspection shall be arranged between the Complainants / their representative and OP/ their representative within 15 days of this order for taking stock of availability of requisite amenities/facilities/final finishing as per agreed scope and specifications and resolving differences regarding defects if any amicably with mutual trust and good faith. 

6. Parties to bear their respective costs.

11. The pending IAs, in any of the Consumer Complaints, if any, also stand disposed off.