R.K. AGRAWAL, J., PRESIDENT

1. The present Consumer Complaint has been filed under Section 21 of the Consumer Protection Act, 1986 (for short “the Act”) by Kamal Malhotra (hereinafter referred to as the Complainant) against Opposite Party, M/s. Parsvnath Developers Limited (hereinafter referred to as the Developer), seeking refund of the amount paid towards purchase of Flat alongwith interest and costs as the Opposite Party Developer failed to hand-over the possession of the Flat booked by them in the Project launched by the Developer in the name and style of “Parsvnath Privilege” located at Plot No. 11, Section Pi, Greater Noida, Uttar Pradesh. 

    

2. It has been averred in the Complaint that the Opposite Party Developer launched a Residential Group Housing Project in the name and style of ‘Parsvnath Privilege’ located at Plot No. 11, Sector Pi (Chorosia Estate), Greater Noida, UP.The Complainant booked a residential flat for his personal use in the said Project in the year 2006.Flat No. T7-1401, Tower No. 7 having an super area 1855 sq. ft. was allotted to the Complainant at a basic sale price of ₹56,83,256/-.Flat Buyers Agreement (hereinafter referred to as the Agreement) was executed between the Parties on 26.06.2007.As per Clause 10(a) of the Agreement, the construction of the said flat was to be completed within 36 months from the date of commencement of construction of a particular block in which flat is located. Vide letter dated 10.06.2010, the Opposite Party Developer informed the Complainant about Re-Scheduling of Construction Plan and assured that the Project would be completed by March 2012.In the year 2012, the Developer offered the Complainant to switch its allotted flat, i.e., Flat No. 1401 in Tower T7 to Flat No. 1401 in Tower 17, which the Complainant accepted in the hope of getting the flat sooner.However, the pace of construction in Tower 17 was also very slow and in similar situation as that of the earlier tower where the Complainant had originally booked his Flat.The Complainant had opted for Construction Linked Payment Plan and had deposited ₹50,23,484/- on different dates between the year 2006 and 2015 as per demand of the Opposite Party Developer.Despite that the Opposite Party Developer miserably failed to deliver the possession of the Flat within stipulated period.It is averred by the Complainant that the construction at the site remained at a standstill till the date of filing of the Complaint even after almost 7 years from the date of booking of the Flat. The Project is still incomplete and the Developer has even not received the Occupancy Certificate.He has no trust on the Opposite Party Developer and is no longer interested in having possession of the Flat.It was also averred in the Complaint that he has suffered loss of opportunity as the prices of the Flats have increased many times since the year 2007 and the Developer is indulged in unfair trade practice by offering merely ₹5/- per sq. ft. per month as penalty for delay in handing over possession to the Complainant while they are charging 24% interest for delayed payments from the Complainant.Alleging deficiency in service and Unfair Trade Practice on the part of the Opposite Party Developer, the Complainant has filed the present Consumer Complaint with the following prayer: 

a)     Grant a sum of ₹ 1,12,81,796/- towards entire amount paid to the Opposite Party ₹50,23,483/-; alongwith compensation in the form of interest @18% per annum ₹62,58,313/- as calculated upto 30.09.2017, or such amounts at the same rate of 24% per annum which is being charged by the Opposite Party, alongwith pendent lite and future interest, till the date of actual realisation of the payment.

b)     Grant cost of Litigation to the Complainant;

c)       Any other Order, relief or direction which this Hon’ble Commission may deem fit and proper under the circumstances of the case may kindly be passed in favour of the Complainant and against the Opposite Party.”

1. The Complaint was resisted by the Opposite Party Developer by filing its Written Statement in which the Opposite Party Developer took preliminary objection that the Complainant has invested money for his economic purpose and is, therefore, not a Consumer under section 2(1)(d) of the Act. It was stated that a Flat Buyer Agreement was executed between the Complainant and the Developer and they are bound by the terms of the Agreement.It was further stated that the delay in construction of Project is caused due to global recession in the real estate sector and this was duly informed to the Complainant vide letter 10.06.2010.The Project is under way and is not abandoned by the Developer.The delay in construction is due to the reasons which were beyond the control of the Developer, therefore, there is no Deficiency in Service or Unfair Trade Practice on their part.They prayed that the Consumer Complaint be dismissed.

    

2. We have heard Mr. Saurabh Jain, learned Counsel for the Complainant, Mr. Prabhakar Tiwari, learned Counsel appearing on behalf of the Opposite Party Developer and perused the material available on record.

    

3. Mr. Saurabh Jain, learned Counsel appearing on behalf of the Complainant submitted that the Flat was booked in the year 2006 exclusively for personal and residence use and not for commercial/investment purpose.It was further submitted that the terms of the Agreement are one-sided wherein as per Clause 10(c) of the Agreement in case of delay in construction of the Flat beyond the period as stipulated as per clause 10(a) the Developer/OP is liable to pay ₹5/- per sq. ft. of the super built up area of the flat per month for the period of delay in offering of possession, which is very meager and contrary to Clause 15 (a) according to which in case of delay payment, the Buyer is liable to pay interest @24% p.a.It was also submitted that the Opposite Party Developer had utilized the Complainant’s money in other Projects and also transferred the funds of the present Project to other Projects.The Project is still incomplete and the Developer has even not received the Occupancy Certificate.They have no trust in the Opposite Party Developer and is no longer interested in having possession of the Flat and prayed that the Complaint be allowed in terms of the Prayer Clause of the Complaint.He relied upon a judgment passed by this Commission in CC No. 232 / 2014 titled “Puneet Malhotra vs. Parsvnath Developers Ltd.” and other connected matters decided on 29.01.2015, in support of his contentions.

    

4. Mr. Prabhakar Tiwari, learned Counsel appearing on behalf of the Opposite Party Developer submitted that the delay in Construction is due to global recession which is beyond their control.There is no Deficiency in Service or Unfair Trade Practice on their part and prayed that the Consumer Complaint be dismissed.

    

5. We have given our thoughtful consideration to the various pleas raised by the learned Counsel for the Parties.

    

6. The contention of the learned Counsel for the Opposite Party that the Complainant is not a ‘Consumer’ and that the subject flat was booked for investment purpose is completely unsustainable in the light of the judgement of this Commission in Kavita Ahuja vs. Shipra Estates I (2016) CPJ 31, in which the principle laid down is that the onus of establishing that the Complainant was dealing in real estate i.e. in the purchase and sale of plots/ flats in his normal course of business to earn profits, shifts to the Opposite Party, which in the instant case the Opposite Party Developer had failed to discharge by filing any documentary evidence to establish their case. Therefore we are of the considered view that the Complainant is a ‘Consumer’ as defined under Section 2 (1)(d) of the Act.

    

7. Regarding the contention of the learned Counsel for the Opposite Party that the Complainant is bound by the terms of the Agreement and they are ready to compensate the Complainant for delay in terms of Clause 10(c) of the Agreement, we have gone through the clauses of the Agreement.Clause 10(c) and 15(a) of the Agreement reads as under:-

   “10(c)    In case of delay in construction of the Flat beyond the period as stipulated subject to force majeure and other circumstances as aforesaid under clause 10 (a), the Developer shall pay to the Buyer compensation @ Rs.53.82/- ( Rupees Fifty Three and paise Eighty Two only) per sq. meter or @ Rs.5/- (Rupees Five only) per sq. ft. of the super area of the Flat per month for the period of delay. Likewise, if the Buyer fails to settle the final account of the Flat within 30 days from the date of issue of the final call notice, the Buyer shall be liable to pay the Developer holding charges @ Rs.53.82/- (Rupees Fifty Three and paise eighty two only) per sq. meter or @ Rs.5/- ( Rupees Five only) per sq. ft. of the super area of the Flat per month on expiry of 30 days notice.

    

   15.(a) The Developer or its nominee shall look after the maintenance and upkeep of the common areas and facilities until these are handed over to an agency nominated by the Developer or a Body Corporate or Society or Association of the Buyers. The Buyer shall pay maintenance charges as may be determined by the Developer or the nominee Maintenance Agency from time to time. Delay in payment will make the Buyer liable for interest @ 24% per annum.”

    

8. A bare perusal of above Clauses makes it clear that as per Clause 10(c) of the Flat Buyer Agreement, in case of delay the Opposite Party Developer is liable to pay ₹5/- per sq. ft. of the super built up area of the flat per month for the period of delay in offering of possession, whereas in terms of Clause 15 (a) in case of late payment, the Complainant/Buyer is liable to pay interest @24% p.a.  This shows that the terms of the Agreement are wholly one-sided and unfair. Therefore, the Complainant cannot be made bound to the terms of the Agreement, which is one-sided and unfair in the light of the recent Judgment of the Hon’ble Apex Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, II (2019) CPJ 34 (SC), wherein the Apex Court has observed as follows:

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

    

   7.       In view of the 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.”

    

9. As far as the plea regarding delay in Project due to global recession in the market is concerned, the terms of the Agreement between the parties do not justify the delay in completion of the Project on the aforesaid ground and therefore, the Opposite Party was duty bound to complete the construction irrespective of the recession in the market.Therefore, the delay in completion of the Project cannot be justified.

    

10. It is not in dispute that the Complainant was allotted the Flat in the year 2007 and till date construction of the Flat is not completed.Keeping in view the Judgment passed by this Commission in Emmar MGF Land Ltd. & Ors.  vs. Amit Puri [II (2015) CPJ 568 NC], wherein it was laid down that after the promised date of delivery, it is the discretion of the Complainant whether he wants to accept the offer of possession, if any, or seek refund of the amounts paid with reasonable interest, it is held that it is well within the Complainant’s right to seek for refund of the principal amount with interest and compensation as construction is still not complete. In my view, the Complainant cannot be made to wait indefinitely for the delivery of possession and the act of the Opposite Party in relying on global recession while retaining the amounts deposited by the Complainant, is not only an act of Deficiency of Service but also amounts to Unfair Trade Practice.

     

11. I find it a fit case to place reliance on the judgment of the Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, II (2019) CPJ 29 SC, in which the Hon’ble Apex Court has observed as hereunder :

    “.....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 in 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 the SCDRC and by the NCDRC for refund of moneys were justified.”

     

12. In the instant case also the Complainant cannot be made to wait indefinitely for possession of the flat, as the construction is not completed. Therefore, I am of the considered view that the Complainant is entitled for refund of the principal amount with reasonable interest, which is quantified @9% p.a. from the date of respective date of deposit till the date of actual refund.Consequently, the Opposite Party Developer is directed to refund ₹50,23,483/- (Rupees Fifty Lakhs Twenty Three Thousand Four Hundred and Eighty Three only) to the Complainant alongwith interest @9% p.a. from the date of respective date of deposit till the date of actual refund within 6 weeks from the date of passing of this Order.   However, keeping in view the facts and circumstances of the case, there shall be no order as to costs.

     

13. The Consumer Complaint is allowed in above terms.The pending applications, if any, also stand disposed off.