1. The present batch of Consumer Complaints have been filed under Section 21(1) (a) of the Consumer Protection Act, 1986 (for short “the Act”) by the Complainants, against M/s Raheja Developers Limited (hereinafter referred to as the ‘Opposite Party’) for delay in construction of the Project. 

 

2. Since the facts and question of law involved in these Complaints are similar except for minor variations in the dates, events and flat numbers, these Complaints are being disposed of by this common Order. However, for the sake of convenience, Consumer Complaint No. 728 of 2020 is treated as the lead case and the facts enumerated hereinafter are taken from Consumer Complaint No. 728 of 2020. 

 

3. Brief facts of the case as narrated in the Complaint are that initially Mrs. Manju Sharma booked an Apartment on an independent floor (hereinafter referred to as the Unit) in Project “Rahejas Shilas” situated in Sector 109, Gurgaon, Haryana of the Opposite Party. She paid a booking amount of Rs.2,00,000/- (Two Lakhs Only) to the Opposite Party on 08.03.2011. Thereafter, she was allotted Unit bearing no. IF17-03 on 17th floor, Tower-3, Area-2102 sq.ft. for a total consideration of Rs.1,03,10,906/- (One Crore Three Lakhs Ten Thousand Nine Hundred and Six Only). An Agreement to Sell (hereinafter referred to as the Agreement) was signed between Mrs. Manju Sharma (Initial Allottee) and Mrs. Charu Sharma (Hereinafter referred to as the Complainant) on 21.12.2012.

 

4. The Complainant stated that as per clause 4.2 of the Agreement, the possession of the Unit was to be delivered within 30 months from the date of execution of the Agreement in case of an Independent Floor. Hence, the possession was to be delivered by January, 2014. The relevant portion of clause 4.2 of the Agreement reads as under:

 “ That the seller endeavors to give possession of the Apartment to the Purchaser within 24 months from the date of the execution of this Agreement and after providing of necessary infrastructure in the sector by the Government, but subject to force majeure conditions or any Government/Regulatory authority’s action, inaction or omission and reasons beyond the control of the Seller The seller shall be entitled for compensation free grace period of 6 months, in case the construction is not completed within the time frame mentioned above.”

 

5. The Complainant stated that she diligently followed the payment plan of the Opposite Party and made payments as and when the demands were raised by the Opposite Party. The Complainant has paid            Rs.91,46,333/- (Ninety One Lakhs Forty Six Thousand Three Hundred and Thirty Three Only) by August, 2012. She averred that the Opposite Party failed to give possession of the Unit even after the expiry of more than 6 years from the promised date of possession.

 

6. The complainant stated that she had paid more than 90% of the total Sale Consideration to the Opposite Party by 2014. She further averred that though timely payment timely payment has been made an essential pre-requisite in the Agreement, timely completion of the Project was not given similar importance. She further averred that the Agreement is filled with one-sided and arbitrary terms.

 

7. Thus, aggrieved by the delay in possession of their Unit, the Complainants have filed this Complaint with following prayer to :-

a) Direct the Opposite Party to handover the possession of the Unit to the Complainant, Complete in all respect and in conformity with the Agreement to Sell and for the consideration mentioned therein, with all additional facilities and as per quality standards promised and execute all necessary and required documents in respect of the said Unit in favour of the Complainant within 6 months of this Complaint being filed before this Hon’ble Commission or as this Hon’ble Commission deem fit and appropriate;

b) Direct the Opposite Party to pay interest @12% per annum as delayed possession compensation from the promised date of possession as per the Agreement to Sell, i.e. from January, 2014 till the date of actual possession is handed over by the Opposite party along with all necessary documents and common areas and facilities as promised during the initial booking made by the Complainant;

c) Direct the Opposite Party for an immediate 100% Refund of the total amount paid by the Complainant along with a penal interest of 18% per annum from the date of receipt of payments made to the Opposite Party in the event that absolute, complete and final possession of the Unit cannot be handed over within 6 months of this Complaint being filed before this Hon’ble Commission or as this Hon’ble Commission deem fit and appropriate;

d) Direct the Opposite Party to pay compensation of Rs.5,00,000/- to the Complainants for the mental agony, harassment, discomfort and undue hardship caused to the Complainants as a result of the above acts and omissions on the part of the Opposite Party;

e) Direct the Opposite Party to pay a sum of Rs.1,00,000/-  to the Complainants towards litigation cost; and

f) Any other and further relief in favour of the Complainants as the Hon’ble Commission may deem fit and proper in the facts and circumstances of the Case.

 

8. The Opposite Party filed its written version and resisted the Complaint by taking objections as under:

a) Complainants are not consumer under the Act as they had purchased the Unit for Investment purpose.

b) This Commission lacks jurisdiction.

c) Time is not the essence with respect to the immovable property.

d) The dispute if any can be referred to arbitration and in absence such can be tried only in a civil court.

e) The present Complaint is barred by limitation.

f) The parties are bound by the terms of the Agreement. The Opposite Parties cited Order of Hon’ble Supreme Court in Bharathi Knitting Company v. DHL Worldwide Express Courier Division of Airfreight Ltd. AIR 1996 SC 2508 wherein Hon’ble Supreme Court affirmed the view that liability of a party should be limited to the extent as undertaken in the Contract between the Parties.

g) The Opposite Party cited Clause 4.4 of the Agreement that says that the purchaser agrees and accepts that construction/ continuation/completion of the said building/complex is subject to Force Majeure Conditions.

 

9. The Complainants filed Rejoinder against the written version of the Opposite Party and denied the averments, assertions and allegations made in it. The Complainants submit that they had booked the Unit for the residential requirement of themselves and their family and not for any commercial purpose.

  

10. We have heard the learned Counsel for both the parties and perused the material available on record.

 

11. The learned Counsel of the Complainant submitted that the Complainant in Consumer Complaint No. 728 of 2020 is seeking refund of deposited amount whereas the Complainants in Consumer Complaints No. 729 to 734 are seeking possession of the Unit, provided the Opposite Party/Builder can give the possession by September 2022.

 

12. We will analyse the objections of the Opposite Party.  The first objection of the Opposite Party that the Complainants are not ‘Consumer’ under the Act as they had purchased the Unit for investment purpose is rejected. Attention is drawn to the Order of this Commission in Sai Everest Developers v. Harbans Singh Kohli, 2015 SCC OnLine NCDRC 1895 decided on 21.07.2015, in which it was held that “the Opposite Party should establish by way of documentary evidence that the Complainants were dealing in real estate or in the purchase and sale of the subject property for the purpose of making profits.” 

In the Instant case, there is no such Evidence filed by the Opposite Party to establish its case that the said flat was purchased for the purpose of trading in real estate. Therefore, this argument of the Opposite Party does not hold good.

 

13. The objection that this Commission lacks jurisdiction is rejected. In this regard attention is drawn Attention is drawn to the Order of Hon’ble Supreme Court in M/s Imperia Structures Ltd. v. Anil Patni and Another (2020) 10 SCC 783 decided on 02.11.2020 which held that “remedies under the Consumer Protection Act were in addition to the remedies available under special statutes”. Hence, this Commission is competent authority, also, as per section 3 of the act “the provisions of this Act shall be in addition to and not in derogation of any other law for the time being in force”.

 

14. The objection of the Opposite Party that time is not the essence with respect to immovable property is devoid of merit. In this regard attention is drawn to the judgment of the Hon’ble Supreme Court in Wg. Cdr.  Arifur Rahman Khan v. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512 decided on 24.08.2020, wherein the Hon’ble Supreme Court has observed as hereunder :

“A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service. The expression service ‟ in Section 2 (1) (o) means a service of any description which is made available to potential users including the provision of facilities in connection with (among other things) housing construction. Under Section 14(1)(e), the jurisdiction of the consumer forum extends to directing the opposite party inter alia to remove the deficiency in the service in question. Intrinsic to the jurisdiction which has been conferred to direct the removal of a deficiency in service is the provision of compensation as a measure of restitution to a flat buyer  for the delay which has been occasioned by the developer beyond the period within which possession was to be handed over to the purchaser. Flat purchasers suffer agony and harassment, as a result of the default of the developer. Flat purchasers make legitimate assessments in regard to the future course of their lives based on the flat which has been purchased being available for use and occupation. These legitimate expectations are belied when the developer as in the present case is guilty of a delay of years in the fulfilment of a contractual obligation.

For the above reasons, we have come to the conclusion that the dismissal of the complaint by the NCDRC was erroneous. The flat buyers are entitled to compensation for delayed handing over of possession and for the failure of the developer to fulfil the representations made to flat buyers in regard to the provision of amenities........” 

 

15. The objection that the dispute between the parties can be only referred to Arbitration or civil court is rejected. In this regard attention is drawn to Order of this Commission in Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017. which was also upheld by Hon’ble Supreme court, wherein it was held that:

“Arbitration Clause in the Buyer’s Agreement does not bar the jurisdiction of the Consumer Fora.”

 

16. The objection that the Complaint is barred by limitation is devoid of merit. The Opposite Parties have not delivered the possession of the Unit to the Complainant till date therefore the cause of action is continuing. In this regard, attention is drawn to the Order of the Hon’ble Supreme Court in Meerut Development Authority Vs. Mukesh Kumar Gupta [IV (2012) CPJ 12] decided on 09.05.2012 wherein it was held that :

“the failure to deliver possession of the Plot constitutes a recurrent/continuing cause of action.”

 

17. The objection that the parties are bound by the Agreement is devoid of merit. In this regard, attention is drawn to the Order of the Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghvan, ll (2019) CPJ 34 (SC), decided on 02.04.2019, wherein it was held as under:

 

 “6.7. 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 contractual terms of the Agreement of 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 flats by the Builder.

    7. In view of 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.”

 

 

18. The Objection of the Opposite Party that the delay was due to force majeure circumstances holds. Attention is drawn to CC 379 of 2013 Sivarama Sarma Jonnalagadda & Anr vs. M/s Maruthi Corporation Limited & Anr decided on 21.09.2021 wherein it was held that:

“We are of the view that that the Complainant cannot be made to wait indefinitely for the delivery of possession and the act of the Opposite Party in relying on force majeure clause while retaining the amounts deposited by the Complainant, is not on only an act of deficiency of service but also amounts to unfair trade practice.”

 

19. We find that there is no doubt to the fact that there has been an inordinate delay in handing over the possession of the Units to the Complainants as per the ‘Agreement’. The Complainants cannot wait for an indefinite time as they have invested heavy amount with the intention to get the possession of the Unit on time. There are a number of Case Laws wherein the Hon’ble Supreme Court has decided favourably on the right of the buyers for getting fair delay compensation in case of undue and unreasonable delay by the Developer in giving possession or refund in terms of the Agreement. 

 

20. Reliance is placed on the Judgment of the Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, II (2019) CPJ 29 SC, decided on 25.03.2019 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 is 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 SCDRC and by the NCDRC for refund of moneys were justified.”

 

21. This Commission in the matter of Vishal Malik and Anr in CC No. 1238 of 2017 decided on 29.03.2019 has observed as under:

       “ 12. In M/s Supertech Ltd. Vs. Rajni Goyal [Civil Appeal Nis. 6649-50 of 2018] decided by the Hon’ble Supreme Court on 23.10.2018, this Commission while directing delivery of possession of the allotted flat to the complainant/respondent before the Hon’ble Supreme Court, to pay compensation to him in the form of interest @ 8% p.a. The direction for payment of interest 8% p.a. was upheld by the Hon’ble Supreme Court, though the period upto which the compensation was payable was restricted till the date on which the Occupancy Certificate had been obtained. Thus, the award of compensation for the delay in delivery of possession, by way of interest @8% p.a. w.e.f. the committed date for delivery of possession has been upheld by the Hon’ble Supreme Court in the above-referred recent decision.

 

22. In the leading Consumer Case no. 728 of 2020, the Complainant was to get possession by 2014. However, even after an inordinate delay of around 8 years, the Opposite Party failed to given possession of the Unit to the Complainant. It is pertinent to note that the Opposite Party applied for Occupation Certificate in the year 2017 but it has not obtained Occupation Certificate till date. The Opposite Party has not given any timeline when it will give possession of the Units to the Complainants.

 

23. We find that there has been an inordinate delay on the part of the Opposite Party in completing the construction of the Project. It is a fact that all the Complainants have signed the Agreement between the years 2010-2012. Also, all the Complainants have paid substantial amount of total consideration of their respective Unit.  As per the Agreement clause 4.2, the date of possession of the Units was between 2012-2014. However, the Opposite Party failed to construct and deliver the Unit to the Complainants even after delay of around 8 and more years from the promised date of possession for which they have not given reasonable justification. Therefore, the Complainants are entitled for fair and delay compensation.

 

24.      Details of all the Complainants regarding their units, payments, Agreement, dates etc. have been listed in the chart hereunder :-

 

 

25. We are of considered view that the Complainants are entitled to a just and fair compensation for the unreasonable delay in handing over the possession of the flats.  

 

26. In view of the discussion above, the Consumer Complaints are partly allowed with following direction:

 

i. With respect to CC/729/2020, CC/730/2020, CC/731/2020, CC/732/2020, CC/733/2020, CC/734/2020, the Opposite Party is directed to complete the construction of the Unit allotted to the Complainants in all respects, duly obtaining the requisite Occupancy certificate at its own cost and responsibility and offer and give possession of the respective Units to the Complainants by end of September 2022 alongwith delay compensation @ 8% per annum from the proposed date of possession as per the respective Agreements which will include the grace period, till the offer of possession or obtaining Occupancy Certificate whichever is later. If the Opposite Party fails to deliver the possession of the Unit by end September 2022, it shall refund the deposited amount within four weeks i.e. end October, 2022 with delay compensation @9% per annum simple interest from the respective, dates of deposits till realization. Any delay beyond October, 2022 will attract an interest @ 12% for the same period. 

ii. At the time of giving possession, the Opposite Party shall work out the delay compensation after making adjustment of outstanding charges payable by the Complainant and make payment of the compensation to the Complainants by end of September, 2022. After adjusting the Delay Compensation, if any amount remains payable by the Allottee, then the Allottee will make the payment of the shortfall to the Opposite Party by end of September, 2022.

iii. With respect to CC/728/2020, the Opposite Party is directed to refund the entire amount paid by the Complainant with a delay compensation of 9% simple interest p.a. from the respective dates of deposits till realization, within a period of six weeks of this Order.  Any delay beyond six weeks, will attract an interest rate of 12% p.a. for the same period.

 

27. All the Consumer Complaints are disposed of, in above terms.  All pending applications, if any, stand disposed of.