For DLF Homes             :         Mr. Krishnan Venugopal, Sr. Advocate

                                                Assisted by Mr. Akarshan Sahay, Advocate

                                                Mr. Uday Rathore, Advocate

                                                Ms. Seema Sundd, Advocate

For the complainants     :          Mr. Narender Yadav, Advocate

                                                 Mr. Anand Prakash, Advocate

                                                 Mr.Anand Prakash, Advocate

                                                 (In FA/123/2017 to 128/2017, FA No.

                                                 156/2017 to 161/2017, FA No. 163/2017 to

                                                 166/2017,FA/293/2017, FA/312/2017,  FA No.

                                                 318/2017 &   319/2017)

                                              Mr. Parveen Gupta, Advocate

                                              (In FA No.129/2017)

                                              Mr. Naveen Sheokand, Advocate

                                              (In FA No. 130 to 133 of 2017, FA No.

                                              167/2017, FA No. 294 of 2017 &

                                              FA/1491/2017)

                                              Mr. Sudhir Kathpalia, Advocate

                                              (In FA No. 134/2017, FA No. 286 to 288/2017

                                               & FA No. 291/2017,

                                              Mr. Sukaam Gupta, Advocate

                                              (In FA No. 162/2017)

                                              Mr. Sukaam Gupta, Adv., Proxy Counsel

                                              For Mr. Mukund Gupta, Advocate

                                              (In FA No. 289/2017)

                                              Mr. Naveen Sheokand, Advocate, proxy counsel

                                              For Mr. Surender Deswal, Advocate

                                              (In FA No. 297/2017, FA No. 296/2017 &

                                              295/2017)                                          

                                              Mr.Sandeep Chhabra, Advocate

                                               (In FA No. 321 & 644/2017)

                                              Nemo for remaining complainants            

JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

          By this order, we propose to dispose of the above noted appeals preferred by the opposite party developer against three common orders of the State Commission, UT Chandigarh dated 5.12.2016, 3.1.2017 and 9.1.2017 involving similar question of fact

2.       Briefly stated, the facts relevant for the disposal of the appeals are that appellant opposite parties undertook to develop a residential group housing project “The Valley” situated in Sector 3, Kalka-Pinjore Urban Complex.  The respondents complainants booked flats in the aforesaid project on various dates and paid certain amounts against the consideration agreed between the parties.  The appellant opposite party executed independent Floor Buyers Agreement in favour of the respondents complainants allotting independent floors / flats to the complainants alongwith parking.

3.       As per the agreement, the appellant opposite party subject to Force Majeure clause was required to deliver possession of the unit booked by the respective complainants within 24 months from the date of execution of the respective agreements.  The agreement further provided that in case of any delay beyond 24 months, the opposite parties were to pay compensation @ Rs.10/- per sq. feet per month of the saleable area to the Allottees.

4.       It is the case of the complainants that despite of the commitments made in the agreement, the opposite party failed to deliver possession of the respective flats within the stipulated period. The opposite party published an advertisement on 13.01.2014 wherein they promised to hand over possession of the flats to the respondents complainants in 2014.  Despite the said promise, the opposite party failed to deliver possession even by the extended date till the filing of the consumer complaints.

5.       It is further the case of the complainants that opposite party have not provided community hall, covered stilt parking, yoga centre, proper swimming pool, library, card / carom room, pool/billiards room and a club house with modern facilities as promised under the Builder Buyer Agreement.  Even the quality of construction done by the opposite party is very poor.  Claiming failure of the opposite party to fulfil his part of obligation under the agreement as deficiency in service as also unfair trade practice, the respondents complainants filed respective complaints in the State Commission seeking direction to the opposite party to hand over physical and legal possession of the unit in question, complete in all respects after obtaining all permission and requisite certificates including completion certificates besides interest calculated  @ 12% p.a. or more in some cases on the deposited amount from the date of respective payments till the dates of delivery of possession to the respective complainants. The complainants have also claimed compensation @ Rs.10/- per sq. ft. of the saleable area per month for the period of delay alongwith 24% interest p.a. from 07.01.2011 besides Rs.5.00 lakhs as compensation on account of agony, harassment and mental disturbance and also litigation expenses.

6.       The opposite parties on being served with the notice of the respective complaints filed written statements resisting the complaints. In their respective written statements the opposite parties took the preliminary objection that respective complainants/respondents in these appeals are not the consumers as they had booked the floors in the subject project for the purpose of earning profit by resale at a higher price. The opposite parties also took the plea that in view of clause 55 of the builder-buyer agreement the subject dispute should be referred to arbitration. A separate application under Section 8 of the Arbitration & Conciliation Act, 1996 was also moved in this regard.

7.       So far as the merits of the case are concerned, the opposite parties in the respective written statements admitted booking of respective floors by the respondents/complainants and also the execution of the builder-buyer agreement between the parties. The payment of substantial amount against the agreed consideration amount by respective complainants was also admitted. The opposite party denied the allegation of deficiency in service. It was pleaded in the respective written statements that the completion of the project got delayed due to force majeure conditions. It was pleaded that an SLP No.21786-88/2010 was filed in Supreme Court in respect of the subject land and the Supreme Court vide its order dated 19.4.2012 stayed the construction activity at the subject site which order was vacated on 12.12.2012. It is alleged that thereafter the construction work was resumed. According to the opposite parties occupation certificates of substantial number of floors have already been received and the issue of offer of possession to the allottees has already been started. The opposite party also pleaded that exit option was given to the respective complainants/respondents vide letter dated 2.4.2013 whereby the respective allotttees were informed about the delay in project and given option to withdraw if they so desired by taking the refund of money paid by them with 9% interest thereon. The respondents/complainants, however, did not exercise the option. Therefore, the time for completion of construction and handing over of possession stood extended as per Section 63 of the Contract Act.

8.       Learned State Commission on appreciation of the pleadings and the evidence allowed the complaints and directed thus: -  

          Consumer Complaints bearing No: 

              The Opposite Parties (DLF Homes Panchkula Pvt. Ltd.), in each of these cases, are jointly and severally, held liable and directed as under:-

 Consumer Complaints bearing No: 

              In these twelve cases, the Opposite Parties have offered possession during the pendency of the complaint but, as already stated above, copies of offer of possession letters were not placed on record. In case, any allottee is eager to get possession, he/she will complete formalities and deposit the amount before the period of six months, and pay the demand raised, except the demands raised towards, contingent VAT deposit and Advocate charges, and as and when, amount is deposited and other necessary documents are submitted, possession will be handed over to complainant(s).

             The Opposite Parties, in each of these cases, are, jointly and severally, directed as under:-            

             In all these complaints, as agreed between the parties, the Advocate Charges shall not be charged by the Opposite Parties. The actual expenditure for registration of Sale Deed(s) besides Stamp duty and Registration charges, shall, however, be borne by the complainant(s). The amount of contingent vat, shall be payable by the complainant(s) as and when the same becomes payable by the Opposite Parties to the Government.

             As agreed, the amount of contingent Vat deposit will not be insisted upon at this stage, subject to furnishing an affidavit by the allottee(s) to make the payment as and when demanded by the Government.

             Since the demand(s) raised have, by and large, been held to be justified, in cases wherever, there is delay in making payment towards demand raised beyond two months, period taken beyond two months shall be excluded for the purpose of payment of 12% interest compensation on delayed period.

          Consumer Complaints bearing No: 

               The Opposite Parties, in each of these cases, are jointly and severally, held liable and directed as under:-

 (i)  To refund the amounts of Rs.58,77,704.69, 63,94,551.00 (in CC No.531/2016 and 532/2016 respectively) and amount as discussed in Para 36 (in CC No.533/2016), alongwith simple interest @15% per annum, to the respective complainant(s), from the respective dates of deposits, till realization, within 45 days, from the date of receipt of a certified copy of this order, failing which, the Opposite Parties shall pay the aforesaid amounts alongwith simple interest @18% per annum, instead of 15% per annum, from the date of default till actual payment;

 (ii) To pay an amount of Rs.2,00,000/- as compensation for mental agony and physical harassment, and Rs.35,000/- as litigation costs to the complainant(s), within a period of 45 days from the date of receipt of a certified copy of the order, failing which, the Opposite Parties shall pay the aforesaid amount alongwith simple interest @15% per annum from the date of filing the complaint till actual payment;

       However, it is made clear that in case, the complainant(s) have availed loan facility from any financial institution(s), such an institution shall have the first charge on the amount(s) payable, to the extent, the same is due against the complainant(s).”

       Consumer Complaints bearing No: 

              In these seven cases, except CC/464/2016, 466/2016 & 599/2016 wherein possession was offered on 03.02.2016, 03.02.2016 & 08.06.2016 respectively, the Opposite Parties have offered possession during the pendency of the complaints. In case, any allottee is eager to get possession, he/she will complete formalities and deposit the amount before the period of six months, and pay the demand raised, except the demands raised towards, contingent VAT deposit and Advocate charges, and as and when, amount is deposited and other necessary documents are submitted, possession will be handed over to complainant(s), by the Opposite Parties within 30 days.

             The Opposite Parties, in each of these cases, are, jointly and severally, directed as under:-

            In all these complaints, as agreed between the parties, the Advocate Charges shall not be charged by the Opposite Parties. The actual expenditure for registration of Sale Deed(s) besides Stamp duty and Registration charges, shall, however, be borne by the complainant(s).

             As agreed, the amount of contingent Vat deposit will not be insisted upon at this stage, subject to furnishing an affidavit by the allottee to make the payment as and when demanded by the Government. The amount of contingent vat, shall be payable by the complainant(s) as and when the same becomes payable by the Opposite Parties to the Government. The complainant(s) shall deposit contingent vat within three weeks from the date the same is paid by Opposite Parties to the Government and the complainant(s) are informed of this fact. Delay beyond three weeks from the receipt of notice shall attract simple interest @12% per annum.

             Since the demand(s) raised have, by and large, have been held to be justified, in cases wherever, there is delay in making payment towards demand raised beyond two months, period taken beyond two months shall be excluded for the purpose of payment of 12% interest compensation on delayed period.

          Consumer Complaint bearing No: 

              The Opposite Parties (DLF Homes Panchkula Pvt. Ltd.), in each of these cases, are jointly and severally, held liable and directed as under:-

          Consumer Complaints bearing No: 

The Opposite Parties, in each of these cases, are jointly and severally, held liable and directed as under:-

 (i)  To refund the amounts of Rs.44,99,668.00 (in CC/612/2016), Rs.92,00,102.83 (in CC/655/2016) and Rs.40,20,195.00 (in CC/656/2016), alongwith simple interest @15% per annum, to the respective complainant(s), from the respective dates of deposits, till realization, within 45 days, from the date of receipt of a certified copy of this order, failing which, the Opposite Parties shall pay the aforesaid amounts alongwith simple interest @18% per annum, instead of 15% per annum, from the date of default till actual payment;

 (ii) To pay an amount of Rs.1,25,000/- [in CC/612/2016 & 656/2016] as compensation for mental agony and physical harassment [in CC/655/2016 Rs.2,00,000/-] and Rs.35,000/- as litigation costs to the complainant(s), within a period of 45 days from the date of receipt of a certified copy of the order, failing which, the Opposite Parties shall pay the aforesaid amount alongwith simple interest @15% per annum from the date of filing the complaint till actual payment;

          However, it is made clear that in case, the complainant(s) have availed loan facility from any financial institution(s), such an institution shall have the first charge on the amount(s) payable, to the extent, the same is due against the complainant(s).

         Consumer Complaints bearing No: 

              In these seven cases, the Opposite Parties have offered possession during the pendency of the complaints i.e. in October 2016 and November 2016. In case, any allottee is eager to get possession, he/she will complete formalities and deposit the amount before the period of six months, and pay the amount towards demand raised, except the demands towards, contingent VAT deposit and Advocate charges, and as and when, amount is deposited and other necessary documents are submitted, possession will be handed over to complainant(s), by the Opposite Parties within 30 days.

             The Opposite Parties, in each of these cases, are, jointly and severally, directed as under:-

               If, in any of these cases, the Opposite Parties have given, benefit/credit on account of delay compensation while offering possession, the same shall be deducted from the compensation amount by way of interest @12% for delay period

            In all these complaints, as agreed between the parties, the Advocate Charges shall not be charged by the Opposite Parties. The actual expenditure for registration of Sale Deed(s) besides Stamp duty and Registration charges, shall, however, be borne by the complainant(s).

             As agreed, the amount of contingent Vat deposit will not be insisted upon at this stage, subject to furnishing an affidavit by the allottee to make the payment as and when demanded by the Government. The amount of contingent vat, shall be payable by the complainant(s) as and when the same becomes payable by the Opposite Parties to the Government. The complainant(s) shall deposit contingent vat within three weeks from the date the same is paid by Opposite Parties to the Government and the complainant(s) are informed of this fact. Delay beyond three weeks from the receipt of notice shall attract simple interest @12% per annum.

             Since the demand(s) raised have, by and large, been held to be justified, in cases wherever, there is delay in making payment towards demand raised beyond two months, period taken beyond two months shall be excluded for the purpose of payment of 12% interest compensation on delayed period.

         Consumer Complaint bearing No:

             The Opposite Parties (DLF Homes Panchkula Pvt. Ltd.), are jointly and severally, held liable and directed as under:-

Consumer Complaints bearing No: 

              The Opposite Parties, in each of these cases, are jointly and severally, held liable and directed as under:-

 (i)  To refund the amounts of Rs.42,78,732.00 (in CC/657/2016) and Rs.41,31,344.00 (in CC/677/2016), alongwith simple interest @15% per annum, to the respective complainant(s), from the respective dates of deposits, till realization, within 45 days, from the date of receipt of a certified copy of this order, failing which, the Opposite Parties shall pay the aforesaid amounts alongwith simple interest @18% per annum, instead of 15% per annum, from the date of default till actual payment;

 (ii) To pay an amount of Rs.1,50,000/- (in CC/657/2016) and Rs.1,75,000/- (in CC/677/2016) as compensation for mental agony, physical harassment & deficiency in service and Rs.35,000/- as litigation costs, in each case, to the complainant(s), within a period of 45 days from the date of receipt of a certified copy of the order, failing which, the Opposite Parties shall pay the aforesaid amount alongwith simple interest @15% per annum from the date of filing the complaint till actual payment;

9.       The opposite party being aggrieved of the order of the State Commission preferred the above-noted appeals.  

10.     We have heard learned counsel for the parties and carefully gone through the record. From the pleadings it is clear that allotment of respective floors to the respective complainants/respondents and execution of builder-buyer agreements in their favour is not in dispute. It is also not in dispute that the respective respondents pursuant to the builder-buyer agreement executed with the opposite parties have made substantial payment in installments to the opposite parties from time to time. It is pertinent to note that independent floor buyer agreements between the parties were executed on different dates and even the occupation certificates issued in respect of different floors were issued by the authorities on different dates. Therefore, we find it appropriate to tabulate the important dates and facts pertaining to respective cases. The relevant tables are reproduced as under: -

TABLE

TABLE

TABLE

TABLE  

TABLE  

 TABLE  

TABLE

TABLE  

 TABLE

11.     Learned Shri Krishnan Venugopal, Sr. Advocate appearing for the appellant builder has firstly contended that the State Commission has committed an illegality by deciding the above-noted 23 complaints by a common order ignoring the fact that every complaint has distinct facts raising different issues. Expanding on the argument learned Sr. counsel for the appellants has drawn our attention to the fact that the builder-buyer agreements were executed on different dates, therefore, due dates of possession were different and also admittedly some of the complainants are second allottees whose cases cannot be equated with the cases of the first allottees.

12.     We do not find merit in the contention because core issue in the complaint is the same i.e. the appellant/opposite party has failed to deliver possession of the subject floors to the respective complainants as per agreed timeline. The appellant/opposite party has taken the defence of force majeure in all the complaints pleading that it was prevented from completing the construction in time because of the litigation pertaining to land of the subject project and the stay order passed by the Hon’ble Supreme Court. Thus, it is clear that the main question of fact and law in all the complaints is similar and therefore we do not find any illegality in the impugned order of the State Commission in disposing of the complaints by a common order particularly when the State Commission has taken pains to note and distinguish various cases while determining the relief granted to the respective complainants.

13.     Learned Sr. Advocate for the appellants has further contended that the State Commission has committed a grave error in failing to allow the applications of the opposite parties under Section 8 of the Arbitration & Conciliation Act, 1996 and referring the dispute between the parties to arbitration despite there being arbitration clause in the floor buyer agreements executed between the parties. In support of his contention learned counsel has referred to clause 55 of the standard floor buyer agreements between the parties. We do not find merit in the above contention. The issue pertaining to interpretation of Section 8 of the Arbitration & Conciliation Act, 1986 came up for consideration before the Larger Bench of this Commission constituted to settle the issue in the matter of Aftab Singh vs. M/s EMAAR MGF Land Ltd. & Anr. in CC/701/2015 decided on 13.7.2017. The Larger Bench after considering the submissions made by the respective parties in that matter and relevant sections of the Consumer Protection Act, 1986 as also the Arbitration Act, 1986 as amended upto date took following view: -

          “In view of the afore-going discussion, we arrive at the following conclusions: (i) the disputes which are to be adjudicated and governed by statutory enactments, established for specific public purpose to sub-serve a particular public policy are not arbitrable; (ii) there are vast domains of the legal universe that are non-arbitrable and kept at a distance from private dispute resolution; (iii) the subject amendment was meant for a completely different purpose, leaving status quo ante unaltered and subsequently reaffirmed and restated by the Hon’ble Supreme Court; (iv)Section 2(3) of the Arbitration Act recognizes schemes under other legislations that make disputes non-arbitrable and (iv) in light of the overall architecture of the Consumer Act and Court-evolved jurisprudence, amended sub-section (1) of Section 8 cannot be construed as a mandate to the Consumer Forums, constituted under the Act, to refer the parties to Arbitration in terms of the Arbitration Agreement.

4. Consequently, we unhesitatingly reject the arguments on behalf of the Builder and hold that an Arbitration Clause in the afore-stated kind of Agreements between the Complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act.

5. The reference is answered accordingly.”

14.     In view of the above interpretation of law by the Larger Bench, we do not find any fault with the order of the State Commission rejecting the application for referring the matter in dispute to arbitration.

15.     Coming to the merits of the case learned Sr. Advocate appearing for the appellants has contended that the State Commission has fallen in error in failing to appreciate that the delay in construction of subject flats and delivery of possession occurred because of circumstances beyond the control of the appellant builder. Expanding on the argument learned counsel for the appellants has submitted that the State Commission has failed to appreciate that subject project has been developed on the land allotted to the opposite party after acquiring it from the farmers. It is argued that the State Commission has failed to appreciate that a writ petition No.6230/2010 was filed by the aggrieved farmers before Hon’ble High Court Punjab & Haryana wherein Hon’ble High Court vide order dated 6.4.2010 restrained the opposite parties from creating third party right and also directed to ensure that nature of land shall neither change nor any further construction activity carried out. An appeal assailing the order of Hon’ble High Court dated 6.4.2010 was filed in the Hon’ble Supreme Court wherein Hon’ble Supreme Court vide its order dated 23.7.2010 set aside the order passed by Hon’ble High court. It is further argued that delivery of possession of the independent floors was delayed on account of force majeure i.e. pending litigation before Hon’ble Supreme Court in SLP No. 21786-88/2010 wherein Hon’ble Supreme Court stayed the construction activity at the project site which stay order was ultimately vacated on 12.12.2012. Thereafter, the opposite party made an endeavour to immediately resume construction at the project site. However, there was considerable difficulty for the opposite parties to gather the work force and it took several months for gathering the requisite work force and for resuming the construction activity in full swing. Therefore, it is amply clear that that delay in handing over possession was a result of force majeure condition.

16.     We are not convinced with the above argument firstly for the reason that as per the contention of learned counsel for the appellants the litigation challenging the acquisition of land pertaining to the subject project started in Hon’ble High Court of Punjab & Haryana in the year 2010 and in the said litigation i.e. writ petition No.6230/2010 Hon’ble High Court passed a restraint order. It is also clear from the submissions that aforesaid restraint order was challenged in Hon’ble Supreme Court by filing SLP No. 21786-88/2010. From this it is clear that there was a litigation going on regarding the legality of the acquisition of land under the subject project in the year 2010. Undisputedly the builder buyer agreements with the respective complainants were executed during the period October, 2010 onwards i.e. during the pendency of the aforesaid litigation. There is no evidence on record to indicate that aforesaid crucial aspect was brought by the appellants to the notice of the respondents/complainants. Obviously, pendency of litigation qua the land pertaining to subject project was a material fact. The appellants by concealing the aforesaid crucial fact, in our view, have indulged in concealment of facts bordering an unfair trade practice. Had the aforesaid fact regarding litigation been disclosed to the respondents/complainants they probably might not have entered into the agreement with the appellants and taken risk of investing money in the project. Even if for the sake of argument it is assumed that the appellants were prevented from completing the construction within the stipulated period due to the above noted litigation, as also the stay order by the Hon’ble Supreme Court, then also the opposite parties cannot avail of the benefit of argument of force majeure. Undisputedly, Hon’ble Supreme Court vacated the said order in December, 2012. Thus, after December, 2012 there was no impediment on the opposite party/appellant to complete the construction and deliver possession of the flats to the respondents/complainants. Even if two years’ time for completing the project is calculated from December, 2012 then also the appellant is found deficient in service as it failed to deliver possession to the respective complainants till the year 2016 when the complainants were compelled to file the consumer complaint. Thus, these are the clear cases of deficiency in service on the part of the appellant/opposite party and the order of the State Commission cannot be faulted.

17.     Learned counsel for the appellants in order to wriggle out of the situation has drawn our attention to clause 11 (a) of the floor-buyer agreement and submitted that bare reading of the clause would show that the appellants did not promise strict timeline for completing the construction and delivering the possession and it only promised that it shall endeavour to complete construction of the independent floor within 24 months. Expanding on the argument, learned counsel for the appellants has submitted that by promising to endeavour to complete the construction within 24 months, the appellants only promised to make a serious attempt to complete construction but did not promise a strict timeline for completing the construction.

18.     We do not find merit in the above contention. In order to appreciate the contention of learned counsel for the appellant, it would be useful to have a look on clause 11 (a) of the floor-buyer agreement which is reproduced as under: -

“The company based on its present plans and estimates and subject to all just exceptions, endeavors to complete construction of the said independent floor within a period of twenty four (24) months from the date of execution of the agreement unless there shall be delay or failure due to force majeure conditions and due to reasons mentioned in clause 11 (c) or due to failure of allottees to pay in time the total price and other charges, taxes, deposits, securities etc. and dues/payments or any failure on the part of the allottees to abide by all or any of the terms and conditions of this agreement.”

19.     No doubt in clause 11 (a) of the agreement, the appellant has promised to endeavour to complete the construction of independent floors within 24 months from the date of execution of the agreement unless there is a delay or failure due to force majeure. This, however, does not provide escape route to get away from his failure to complete the construction within the stipulated period. The word “endeavour” as per the dictionary means a serious and sincere effort to complete the task. Now the question is whether the appellant builder has made a serious effort to complete the construction work. Our answer to the aforesaid question is in the negative because the appellants have failed to lead any cogent evidence to highlight the efforts made by them to complete the construction. In absence of any cogent evidence, it cannot be said that the appellants have endeavoured to complete the construction within 24 months from the date of respective agreements as promised under clause 11 (a) of the floor-buyer agreement.

20.     Yet another contention of the appellants is that the respondents/complainants are estopped from raising the plea of deficiency in service on the part of the appellants i.e. failure to deliver the possession of the subject floors within the stipulated period because respondents/complainants despite of exit option offered to them vide letter dated 2.4.2013 decided to continue with the contract instead of exiting after receiving refund of the amount paid alongwith simple interest of 9% p.a. In support of the contention, learned counsel for the appellants has drawn our attention to the letter dated 2.4.2014, which is reproduced as under: -

 “DLF Homes Panchkula Pvt. Ltd.

  Chandigarh Technology Park, Plot No.2,

  Tower-D, Ground Floor,

 Chandigarh-UT Pin160101

 Ph.911724607737

 Fax: 911724607737

 Website: www.dlf.in

2^nd April 2013

Dear Ms./Mr. HIMANSHU ARORA

Reg: Apartment No.DVF-A1/49-GF#217 in DLF Valley, Panchkula

This is further to our letter of 28^th December, 2012. To recap the facts, we refer to our earlier letter dated 11.5.2012 by which we had informed that as per directions of the Hon’ble Supreme Court vide its order dated 19.4.2012 in SLP No.21786-88/2010 and a communication dated 30.4.2012 from DTCP, Haryana, we had put the construction activities at the project site in abeyance and no further construction activities were carried out pursuant to the said directions.

The Hon’ble Supreme Court dismissed the SLP No. 21786-88/2010 vide its order dated 12.12.2012 and the earlier order dated 19.4.2012 passed by Supreme Court not to undertake further construction activities at the project land stands vacated.

The company will endeavour to complete the project subject to the delay of 12 months which has occurred due to stoppage of the work mentioned above. We may also like to mention that for such delay the company is not liable for performance of its obligations as per the terms of the allotment of apartment as set out in clause 18 of the applicator for allotment of apartment.

We request you to confirm that you will agree to the above conditions for additional time to be taken for completion of the construction. In case you do not agree to the above, the company will cancel the allotment and refund the amount paid by you along with simple interest calculated @ 9% p.a.

We will request you to please provide your consent by sending a confirmation in the duplicate copy of this letter within 10 days from the date of receipt of this letter. In case the company fails to receive the confirmation from you within the stipulated period of 10 days , it will be deemed to be considered that you are agreeable to continue with the allotment on the above terms and conditions, including the extended time line for completion of the project.

With kind regards,

AR

Ananta Singh Raghuvanshi

Director-Sales & Marketing”

21.     On careful reading of the above letter, we find that the said exit option is of no avail to the appellants. On reading of the above letter, we find that it is stated to be in furtherance of letter dated 28^th December, 2012. It may be noted that even if it is assumed that letter dated 28^th December, 2012 was sent by the opposite party to the complainants, one fact is clear that during the period of operation of stay order passed by Hon’ble Supreme Court i.e. from 19.4.2012 to 12.12.2012, the appellant/opposite party did not bother to inform the respondents/complainants about the stay order against the construction which could delay the completion of the project. Be that as it may, the essence of the letter is that appellant/opposite party vide this letter while offering exit option to the complainants/respondents promised to endeavour to complete the project subject to delay of 12 months which allegedly occurred due to stoppage of work. The aforesaid promise obviously was a lure to the respondents/complainants to continue with the original contract which promise was never intended to be fulfilled. This is obvious from the fact that till the filing of the respective complaints in the year 2016 the appellant/opposite party had not completed the construction and delivered possession. Further non-action on the part of the respondents/complainants on this letter cannot be termed as novation of contract and would not absolve the appellant from their liability to compensate the complainants on account of their failure to complete the project within the promised time. It is pertinent to note that otherwise also in the last paragraph of letter the appellant had requested the respondents/complainants to provide their consent by sending a confirmation in duplicate within 10 days from the date of receipt of letter. However, no such consent on the part of any of the respondents/complainants has been placed on record which may indicate that the complainants/respondents had agreed to the extension of timeline.

22.     Learned counsel for the appellant has drawn our attention to clause 14 of the floor buyer agreement and contended that the respondents/complainants by failing to exercise the exit option under the aforesaid clause have opted to continue with the contract as such they are now estopped from raising the plea of deficiency in service on account of delay in completing the construction and delivery of possession to the complainants.

23.     In order to appreciate the contention of learned counsel for the appellants, it would be useful to have a look on clause 14 of the floor-buyer agreement which reads as under: -

“Failure to deliver possession by the company

If for any reasons other than those stated above, the company is unable to or fails to deliver possession of the said independent floor to the allottee within twenty four months (24) from the date of execution of the agreement or within any extended period or periods as envisaged under this agreement, then in such case, the allottee shall be entitled to give notice to the company within ninety (90) days from the expiry of said period or such extended period, as the case may be, for terminating this agreement. In that event the Company shall be at liberty to sell and/or dispose of the Said independent Floor and Parking Space(s) to any other party at such price and upon such terms and conditions as the Company may deem fit without accounting for the sale proceeds thereof to the Allottee.  Thereafter the Company shall within ninety (90) days from the date of full realization of the sale price after sale of Said Independent Floor and the Parking Space (a)_ refund to the Allottee, without any interest, the balance from the amounts paid by the Allottee in respect of the said Independent Floor and the Parking Space(s) without deduction of Earnest Money but after deduction of other Non-Refundable Amounts.  The Allottee agrees that the Allottee shall have no other claim against the Company in respect of the Said Independent Floor and Parking Space(s) under this Agreement. If the Allottee fails to exercise the right of termination within the time limit as afore-stated by delivery to the Company of a written notice acknowledged by the Company in this regard then the Allottee shall not be entitled to terminate this Agreement thereafter and shall continue to be bound by the provisions of this Agreement.”

 24.    On bare reading of the aforesaid clause, it is clear that it is highly unfair and tilted towards builder. The clause provides that if the appellant company is unable or fails to deliver possession within the stipulated period allottee shall be entitled to give notice to the company within 90 days for terminating the agreement and in that event the company shall be at liberty to sell or dispose of the said independent floor to any other party and the company thereafter within 90 days from the date of full realization of the sale price shall refund the amount paid by the allottee without any interest. This clause obviously is unconscionable for the reason that in effect it is meant to benefit the builder to utilize the money received from the allottee without interest.

25.     Lastly, it is contended that the State Commission has committed grave error in awarding 12% interest or more than 12% in some cases on the refund amount to the respective respondents/complainants ignoring the fact that as per the contract between the parties in such a case the appellant/builder shall be liable to pay Rs.10 per sq. ft. of the simple saleable or per month as compensation for the delayed period.

26.     In order to appreciate above contention, it would be useful to have a look on clause 15 of the agreement between the parties which is as under: -

“Abandonment

          The Allottee agrees and understands that the Company may abandon the Said Project due to any reasons whatsoever, without giving any reasons and if the Company abandons the Said Project then this Agreement shall stand terminated and the Allottee shall be entitled to refund of the amount along with 9% interest per annum for the period the amount has been laying with the Company and the Company shall not be liable to pay any other compensation whatsoever.  However, the Company may, as its sole option and discretion, decide not to terminate this Agreement in which event the Company agrees to pay only to the Allottee(s) and not to anyone else subject to the Allottee not being in default under any term of this Agreement, compensation @ ₹10/- per sq. ft. of the Saleable Area of the Said Independent Floor per month for the period of such delay beyond twenty four months or such extended periods as permitted under the Agreement.  The adjustment of such compensation shall be done only at the time of conveyancing the Said Independent Floor to the Allottee first named in this Agreement and not earlier.”

27.     The above clause provides for a right to the builder to abandon the project and terminate the contract and in that event the allottee would be entitled to refund of the amount paid by him alongwith 9% interest p.a. for the period the amount has been lying with the company. In the second part clause 15 provides that however the company in its sole discretion may decide not to terminate the agreement and in that event it shall pay compensation of Rs.10 per sq. ft. of the saleable area of the independent floor per month for the period of delay beyond the stipulated date of 24 months or extended period permitted. This clause also in our view is unfair and uunconscionable. The clause is one sided and confers rights on the service provider company ignoring the right of the allottee. If the interpretation sought to be given to the clause by the appellant is accepted, it would be permitting the service provider appellant to exploit the allottee consumer by using the amount paid by the allottees against the consideration amount at a negligible interest offered at about 2 to 4% instead of arranging money from the market at a much higher rate. The interpretation as put forth by learned counsel for the appellant is accepted as it shall defeat the entire object of the Consumer Protection Act which is meant to protect and promote the rights of the consumer. Undisputedly as per the respective builder buyer agreement between the parties the possession of subject flats were to be delivered within two years of the respective agreements but the appellant builder has failed to fulfill its promise even after the expiry of around two years from the stipulated date. The allottee consumer cannot be made to wait for an indefinite period. Therefore, we do not find any fault with the order of the State Commission directing the appellants to refund the respective amounts paid by the respondents/complainants with interest. However, the question is whether the State Commission was justified in awarding 12% and more than 12% in some cases interest to the respondents/complainants as compensation.  

28.     It is well settled principle of law that incase of violation of contract, the  amount of compensation must commensurate to the actual damage suffered by the claimant which is also to be established by the evidence. In the instant case, the respondents/complainants have not led any evidence to show the extent of damage suffered due to the failure of the opposite party/appellant to perform its part of contract. Be that as it may, the fact remains that the complainants have paid substantial amount against the agreed consideration amount to the appellants from time to time and the appellants have realized that money. Had the appellants borrowed said money from financial institution they would have paid substantial amount of interest on the same. Similarly, the complainants also, if they had deposited that money in bank in a fixed deposit amount, would have earned interest on the same. At the relevant time when the complainants entered into contracts and paid installments against the consideration amount, the going bank rate for fixed deposit was around 9% p.a. Therefore, in our view, awarding 9% interest on the refund amount would have met the ends of justice. It is pertinent to note that even in clause 15 of the floor buyer agreement between the parties the parties had agreed that in case of abandonment, refund of money shall be there alongwith interest on the specific payments. State Commission has failed to consider the aforesaid aspect while awarding compensation. Therefore, we are inclined to reduce the interest payable on the refund amount to 9%.

29.     In view of the discussion above, we partially allow the appeals and while confirming the order of the State Commission we modify the same only to the extent that the interest payable on the refund amount to the respective respondents/complainants shall be 9% instead of 12% or more as awarded by the State Commission.

30      It is clarified that in the cases of refund 9% interest shall be payable on the refund amount calculated from the dates of respective payments of installments till the date of refund. And in the cases in which possession has been delivered with delay the 9% interest shall be payable on the respective amounts paid in installments from the dates of said payments till the date of delivery of possession.

31.     Appeals are disposed of accordingly.