JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

     Complainants had jointly booked a residential apartment in the development project ‘Fresco’ undertaken by the opposite party. They were allotted apartment no. 0302 on 3^rd Floor, Block 14 in the residential complex ‘Fresco’ located in Sector 50, Gurgaon, Haryana.    As per the builder agreement dated 16.08.2007 between the parties, the opposite party builder was to deliver possession of the subject apartment to the complainants by March, 2009.  The consideration amount agreed between the parties was Rs.78,29,235/-. It is alleged that the complainants have paid Rs.74,89,539/- against the agreed consideration as per the demands raised by the opposite party.  The complainants had taken loan of Rs.67,00,000/-.   Despite that opposite party did not adhere to the timeline and failed to deliver possession even after expiry of stipulated period of possession.  Being aggrieved, the complainants through their attorney Mr. Pal Chand Gupta has filed the consumer complaint seeking following relief:

a. Pass a judgment and order holding that the opposite party no.1 and 2 are jointly and severally, guilty of deficient service having failed to act in accordance with the contract entered with the complainants;

b. Pass a judgment and order directing the opposite party no.1 & 2 jointly and severally to forthwith allot, convey and deliver to the complainants, the apartment no.0302 block no.14, at FRESCO Nirvana Country, Gurgaon, Haryana complete in all respects;

or alternatively,

Pass a judgment and order directing the opposite party no.1 and 2, jointly and severally, to refund the entire amount paid by the complainants with interest @ 18% per annum compounded quarterly from 02.12.2006 till payment.

c) Pass a judgment and order the demands made by the opposite party vide letter dated 12.2.2016 as illegal, arbitrary, malafide, unjust and further hold that the complainants are not liable to comply with the said demands and / or pay any amount except the balance payment in terms of the schedule annexed with the Agreement to Sell dated 08.12.2006;

d. to pass appropriate orders directing the opposite parties to pay to the complainants a sum of Rs.1,00,00,000/- ( rupees one crore only) towards deprivation, mental agony, harassment, loss of interest, etc.;

e.           allow the present complaint with costs;

f. pass such further order / direction as may be deemed fit and proper in the facts of present case.”

2.                The complaint has been resisted by the opposite parties taking the plea of Force Majeure which has been rejected in number of consumer complaints.  In the matter of Sumeet Singh Vs. M/s Unitech Ltd. & Anr. in consumer Complaint No. 13 of 2015 and connected matters decided on 18.01.2016, the Coordinate Bench of this Commission has observed as under:

 “(7) The learned counsel for the complainants has pointed out that a number of complaints filed by the allottees of the project Vistas in Sector-70 of Gurgaon were allowed by this Commission vide order dated 08.06.2015. In CC No. 427/2014, Satish Kumar Pandey & Anr. Vs. M/s. Unitech Ltd. and connected matters ,the order passed in the Satish Kumar Pandey & Anr. (supra) to the extent it is relevant, reads as under:

“Neither any new legislation was enacted nor an existing rule, regulation or order was amended stopping suspending or delaying the construction of the complex in which apartments were agreed to be sold to the complainants.  There is no allegation of any lock-out or strike by the labour at the site of the project.  There is no allegation of any slow-down having been resorted to by the labourers of the opposite party or the contractors engaged by it at the site of the project.  There was no civil commotion, war, enemy action, terrorist action, earthquake or any act of God which could have delayed the completion of the project within the time stipulated in the Buyers Agreement.  It was contended by the counsel for the OP that the expression ‘slow down’ would include economic slow-down or recession in the Real Estate sector.  I, however, find no merit in this contention.  The word ‘slow down’ having been used alongwith the words lock-out and strike, I has to be read ejusdem generis with the words lock-out and strike and therefore, can mean only a slow down if resorted by the labourers engaged in construction of the project.

As regards, alleged shortage of labour, I find that no material has been placed on record by the OP that despite trying, it could not be get labourers to complete the construction of the project within the time stipulated in the Buyers Agreement.  It was submitted by the learned counsel for the complainants that ordinarily big builders such as the OP in these cases, are contracting/sub-contracting the construction work to the contractors engaged by them, instead of employing their own labourers on a regular basis, the purpose being to ensure that they are not saddled with the wage bill of those regular labourers, in case the opposite party does not have adequate work for them.  There is no evidence of the OP having been invited tenders for appointment of contractors / sub-contractors for executing the work at the site of those projects and no contractor/ sub-contractor having come forward to execute the project on the ground that adequate labour was not available in the market.  Therefore, it cannot be accepted that the opposite party could not have arranged adequate labour, either directly or through contractors/sub-contractors, for timely completion of the project.  As regards the alleged shortage of water, bricks and sand in the market, I find that there is no evidence filed by the OP, to prove that it was unable to procure water, sand and brick in adequate quantity.  This is also their case that the notification of the Government, being relied upon by the opposite party, is an old notification, which was in force even at the time the opposite party promised possession in 36 months. There is no evidence of the opposite party having invited tenders for supply of bricks and water and there being no response to such tenders.  In fact, if the work is to be executed through contractors/sub-contractors, the material such as bricks, sand and even water will be arranged by the contractor/sub-contractor and not by the opposite party.  As noted earlier, there is no evidence of the opposite party having invited tenders after awarding the work of project in question to the contractors/sub-contractors and there being no response to such tenders.  Therefore, I find no merit in the plea that the completion of the project was delayed due to non-availability of water, sand and bricks in adequate quantity.

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”.

 3.        In Suman Nandi & Anr. Vs. Unitech Limited & Anr., CC No.277/2013 decided on 17.12.2015, a Co-ordinate Bench of this Commission rejected the identical pleas taken by the opposite parties-Unitech and Pioneer Urban Land & Infrastructure Ltd.  The aforesaid judgment to the extent it is relevant reads as under:-

“8.       On careful perusal of the evidence, we find that opposite parties have not led any evidence to show any new legislation, regulation or order suspending, stopping or delaying the construction of complex in which the subject apartments were agreed to be sold to the complainants.  Neither there is an allegation of strike, slow-down, civil commotion, war, enemy action, terrorist action etc. or any other act of god which might have caused delay in completion of project within time stipulated in the Buyer’s Agreement nor evidence in this regard has been adduced.   Learned counsel for the opposite parties have tried to get out of the situation by arguing that expression slow-down in clause 9.b. of the Buyer’s Agreement would also include economic slowdown or recession in real estate sector.  We do not find merit in this contention. The economic constraints ordinarily cannot be taken as a defence for non- compliance of the contract.  The term ‘slow – down’ in clause 9.b. has been used alongwith word ‘strike’ and it has to be read ejusdem generis with the aforesaid words and can only mean a slow down resorted by the labourers engaged in the construction of the project in support of their demands. 

9.      As regards shortage of labour, but for the bald plea of the opposite parties in their written statement and the affidavits which are more or less reproduction of the written statement, there is no material or convincing evidence on record that despite of making efforts, the opposite parties could not get labours to complete the construction of project within the stipulated time.  Therefore, it cannot be accepted that opposite party because of market conditions could not manage to arrange adequate labour for timely completion of project.  As regards the alleged shortage of water, bricks and sand in the market, no cogent evidence has been produced by the opposite party to establish that it was unable to procure water, sand and bricks in adequate quantity.  No evidence has been adduced to establish that from the date of signing of Buyer’s Agreement from 2006-2010, there was shortage of those materials in the market.  The opposite parties have also taken a plea that there was a notification of government imposing restriction on the production of bricks by brick klins.  The aforesaid argument is without any force because the notification relied upon by the opposite party was in force even at the time the opposite party promised possession of the apartments within 30 -36 months.  The opposite parties having entered into an agreement knowing the aforesaid constraints because of government notification now cannot get rid of its obligation to justify the delay in construction.  As regards the scarcity of water, plea of the opposite party is without any basis because the order of High Court stopping use of ground water for construction activity came much later.  If the opposite parties actually intended to complete the construction within the stipulated time, they would have completed the super structure which does not take much time within initial 24 months of the date of Buyer’s Agreement.

10.    As regards the plea of shortage of labour etc. due to common wealth game is concerned, that plea is also not acceptable for the reason that Buyer’s Agreement are of the year 2006 to 2010 and if the opposite parties intended to comply with the terms of agreement, they would have raised substantial construction before common wealth games. Had there been truth in the defence taken by the opposite party, the opposite party after the completion of construction activities pertaining to commonwealth games would have completed the project within the period of five years since the common wealth  games were held.  Till  date, the possession of the apartments have not been handed over to the complainants which clearly indicate the deliberate delay and negligence on the part of the opposite party and opposite party cannot be permitted to hide behind a bogus plea of force majeure or exceptions provided in clause 9.b of the Buyer’s Agreement.

18.    On reading of clause 2 (r) (i) (ii) & (vi), it is clear that if a service provider in order to increase his business makes a false representation regarding the standard and quality of the proposed service or its usefulness, it would amount to the unfair trade practice. On careful reading of the Buyer’s Agreement it is clear that in the said agreement, the opposite party service provider has extended a clear promise/representation to the complainants that in the event of their paying consideration amount, they would be given possession of the booked apartments complete in all respect within 30-36 months or reasonable period thereof. However, in the above-noted case, the stipulated period has expired way back and even almost five years have gone by but the possession of the apartments have not been delivered. There is no evidence from the side of the opposite party as to how and where the money paid by the complainants and the other buyers of apartments in the project has been utilised.  From this can be safely inferred that the opposite party has diverted the funds and instead of utilising the funds paid by the complainants/buyers for completing the project within the promised period. Therefore, in our considered view, this is a case of soliciting business by the opposite party service provider by making false representation. Therefore, in our view, this is a clear case of unfair trade practice. The opposite party, thus, cannot take shelter of clause 4.a of the contract to avoid its liability to pay reasonable compensation for the delay caused due to its intentional act in not making sincere efforts to complete the construction within a reasonable period.

19.    In view of the above, since the opposite party has utilised the money paid by the complainants against consideration amount, the complainants are entitled to interest on the payment made by them for the period of delay as compensation instead of meagre compensation computed on the basis of clause 4.c. of the Buyer’s Agreement, which is highly unfair.  Looking into overall facts and circumstances of the case, we are of the opinion that 12% interest p.a. from the date of default in delivery of the subject apartments would meet the interest of justice.”

4.         In a recent decision in CC No. 368/2014, Shweta Kapoor & Anr. Vs. M/s. Unitech Ltd. & Anr., decided on 14.01.2016, the complainants had agreed to purchase a residential flat from the opposite party Unitech Ltd. in a project which it was developing in Sector-50 of Gurgaon and had made payment of Rs. 95.5% of the total sale consideration. The Buyers Agreement executed between the parties in that case stipulated delivery of possession by September 30, 2009. Since the possession was not delivered by the stipulated date, the complainants approached this Commission by way of a complaint. The grounds on which the aforesaid complaint was resisted were summarized as under:

“A preliminary objection has been taken that as per the terms and conditions of the agreement between the parties, in case of delay on the part of the opposite party in delivering possession, the complainants are entitled only to compensation @ 5 per square feet per month of the super area, for the period the possession is delayed and in case the developers are not in a position to offer the property, they may offer an alternative property or refund the amount received from the flat buyers with interest @ 10% per annum. On merits, the opposite parties have admitted the agreement with the complainants as well as the receipt of the amount alleged by them.  The delay in offering possession is sought to be justified on the following grounds:-

1. “Common Wealth Games during April, 2010 to March, 2011 – the Common Wealth Games were organized in the NCR region which resulted into an extreme shortage of labours in the region as most of the labour force was employed and / or was engaged by the Government to expedite the completion of the pending projects required for the Common Wealth Games.
2. Active implementation of social schemes like NREGA and JNNURM – In addition to the above due to active implementation of alluring and promising schemes floated by the Central and State Government, there was a sudden shortage of labour / workforce especially in the real estate market.  The workforce / labour forces were tempted to return to their respective states due to the guaranteed employment.
3. Order dated 16.7.2012 passed by the Hon’ble High Court of Punjab & Haryana (hereinafter referred to as the “Order” – The above mentioned Order strictly restrained the usage of ground water and directed to use only treated water from available Sewerage Treatment Plants (hereinafter referred to as “STP”).  As the availability of STP, basic infrastructure and availability of water from STP, was very limited in comparison to the requirement of water in the ongoing constructions activities in NCR region.

This scarcity of an essential commodity for construction purposes made it difficult for the Opposite Parties to cope up with the pre-decided schedules as the availability of treated water became very limited and against the total requirement of water.  It is to be highlighted here that only approx. 10-15% of required quantity was available at construction sites to continue with the planned construction activities.

In addition to the above, the Opposite Parties were later completely banned to use underground water for construction purposes and were vehemently directed to use recycled water only.

4.  Notification dated 14.9.1999 published by Ministry of Environment and Forest –The Notification dated 14.09.1999 barred the excavation of top soil for the manufacture of bricks and further directed that no manufacturing of clay bricks or tiles or blocks be done within a radius of 50 (fifty) kilometres from coal and lignite based thermal power plants without mixing atleast 25% of ash with soil.  As a consequence of this Notification dated 14.09.1999 various brick kiln were shut creating shortage of essential commodity bricks for construction purposes. 
5. Further, another raw material i.e. the sand which is used as mixture along with cement was also not available in the vicinity of the Complex due to restrictions from Mining Department imposed in the entire Aravali region and the same had to be procured from neighbouring State of Rajasthan.
6.  Later in a completely unforeseeable ruling by the Hon’ble Supreme Court of India dated 08.05.2009 the Hon’ble Court suspended all the mining operations in the Aravalli Hill range falling in State of Haryana within the area of approx.. 448 sq. kms. In the district of Faridabad and Gurgaon including Mewat which directly affected the construction schedules and activities of the Respondents herein.
7. Notification dated 14.09.2006 published by the office of Director, Town and Country Planning, Haryana – This Notification dated 14.09.2006 imposed certain restrictions and prohibitions on new projects or activities, or on the expansion or modernization of existing projects or activities based on their potential environmental impact being undertaken in any part of India unless prior environmental clearances are obtained.  Therefore, due to the said Notification dated 14.09.2006, the procedure of obtaining approvals and sanctions by the opposite parties led to the delay in the present construction schedule.

Recession in the economy – That since the real estate industry is a cyclical industry that is affected by both local and national economic conditions.  While macroeconomic conditions affect the overall state of the real estate industry, local supply and demand conditions are by far more important factors affecting the real estate markets as a result of which the availability of essential resources namely the labour and various raw materials became scarce.”

   Rejecting all the pleas taken by the opposite party and allowing the complaint, this Commission inter-alia observed and held as under:

4.      We find that the pleas taken in the reply filed by the opposite party are same which this Commission has already rejected in a number of complaints filed against the said opposite party.  In Swarn Talwar & Ors. vs. Unitech Ltd., C.C. No.347 of 2014 decided on 14.08.2015 wherein the opposite party had failed to construct flats in a project known as Unitech Habitat in Greater Noida, this Commission while directing the opposite party to refund of the amount deposited by the flat buyers along with interest on that amount @ 18% per annum inter-alia held as under:-

“8.      As regards the plea that in terms of Clause (c) of the allotment letter the opposite party is required to pay only the holding charges calculated at the rate of Rs.5/- per sq.ft. per month of the super area for the period the possession is delayed, such a contention was expressly rejected by us in Puneet Malhotra (supra) holding that such clause applies only in a case where construction of the flat is delayed but despite delay the buyer accepts the possession of the flat from the seller and consequently the accounts have to be settled between the parties. We observed in this regard that the buyer would have to pay the agreed holding charges to the seller and the seller to pay the agreed compensation on account of delaying the construction of the flat. The said clause, however, does not apply to a case where the buyer on account of delay on the part of the seller in constructing the flat is left with no option but to seek refund of the amount which he had paid to the seller. We further held that such a clause where the seller in case of default on the part of the buyer seeks to recover interest from him at the rate of 24% per annum will amount to an unfair trade practice since it gives an unfair advantage to the seller over the buyer. We also noted in this regard that enumeration of the unfair trade practices in Section 2(r) of the Act is inclusive and not exhaustive.

          This plea was also negatived by us in a batch of complaints CC No.427 of 2014, Satish Kumar Pandey & Anr. Vs. Unitech Ltd. and connected matter, decided on 08-06-2015. All those complaints were filed against none other than the opposite party in these matters, namely, Unitech Ltd.

9.      Coming to the pleas that there was recession in the economy and a disruption due to agitation by farmers and acute shortage of labour, etc., the following view taken by us In Satish Kumar Pandey (Supra) is relevant.

         It would also be pertinent to note here that as pointed out by the complainants the agitation of the farmers was on account of acquisition of land in Noida Extension and not on account of acquisition of land on which the project in which the flats were to be constructed for the complainants. As regards the alleged delay in obtaining environmental clearances there is no material on record to show when the opposite party applied for such clearances, where they submitted all the requisite documents etc. while applying for such clearances and how much was the time taken by the concerned authorities in granting the said clearances. In the absence of such particulars, it would be difficult for us to accept that development of the project was delayed on account of any notification imposing restrictions on new projects. In any case, the opposite party has failed to produce before us any notification imposing restriction or prohibition on development of the project in which the flats were to be constructed for the complainants.

5            This Commission further observed and held as under in Shweta Kapoor & Anr. (Supra):

6.      In the case before us, there is no evidence of the opposite parties having been prevented from completing the construction due to an Act of God or reasons beyond their control. There is no evidence of any Tribunal or Authority having restrained them going ahead with construction of this particular project, which could not be completed even after more than 6 years after the date stipulated for this purpose in buyers agreement.  The averments made in the reply are vague and general in nature, without even specifying when, by which order and for how much period a Tribunal or Authority had stopped the opposite parties from completing the construction.  The opposite parties ought to have obtained all the requisite approvals and clearances before coming in the market for accepting booking of the flats.  If some building material or water was not available in Gurgaon (though there is no evidence of the opposite parties having been unable to get building material and water in Gurgaon) it was for them to arrange building material and water from alternative sources, wherever it could be available.  The shortage of labour, building material or the water required for construction cannot be said to be Acts of God or reasons beyond the control of the opposite parties.  This is not the case of the opposite parties that no construction came up in Gurgaon in last 7-8 years. If others could construct buildings during this period, the opposite parties also could have done so, if they so intended.  This is not the case of the opposite parties that the entire money collected by them from the flats buyers in this project was used only for this project.  Hence, there seems to be truth in the contention of the complainants that the opposite parties have diverted the money collected from them to other projects or for other purpose, thereby financing their other business activities at the cost of the flat buyers in this project. In these circumstances, the aforesaid pleas are accordingly rejected.  

6.          The learned counsel for the opposite party submits that since the apartment in question was purchased for less than Rs.1 Crore, this Commission lacks pecuniary jurisdiction to entertain this complaint and the complainants should be relegated to the concerned State Commission for the redressal of their grievance.  We however find no merit in this contention.  This issue was raised by the opposite party in Swarn Talwar (Supra) and was rejected.  The aforesaid decision to the extent relevant to this plea reads as under:-

“5.      The first question which arises for our consideration in these cases is as to whether this Commission possesses the requisite pecuniary jurisdiction to entertain these complaints. Section 11(1) of the Consumer Protection Act read with Section 21 of the Consumer Protection Act to the extent it is relevant provides that this Commission shall have jurisdiction to entertain complaints where the value of the goods or services and compensation if any claimed exceeds Rs.1,00,00,000/-. The contention of the learned counsel for the opposite party is that interest claimed by the complainants cannot be termed as compensation and if the interest component is excluded, the pecuniary value of the complaint does not exceed Rs.1,00,00,000/- except in one case. The learned counsel for the complainants on the other hand contended that the interest which they have claimed along with refund of the principal sum even if not so described specifically, is by way of compensation only, since the opposite party has been deficient in rendering services to the complainants by not delivering possession of the flats on or before the time agreed in this regard.

6.      In our view, the interest claimed by the flat buyers in such a case does not represent only the interest on the capital borrowed or contributed by them but also includes compensation on account of appreciation in the land value and increase in the cost of construction in the meanwhile. As noted by us in CC No.232 of 2014, Puneet Malhotra Vs. Parsvnath Developers Ltd. decided on 29-01-2015, there has been steep appreciation in the market value of the land and cost of construction of the residential flats in Greater Noida in last about 7-10 years and consequently the complainants cannot hope to get a comparable flat at the same price which the opposite party had agreed to charge from them. In fact it would be difficult to get a similar accommodation, even at the agreed price plus simple interest thereon at the rate of 18% per annum. Therefore, the payment of interest to the flat buyers in such a case is not only on account of loss of income by way of interest but also on account of loss of the opportunity which the complainants had to acquire a residential flat at a particular price.

7.      In Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65, the Hon’ble Supreme Court inter alia observed and held as under:

        “However, the power to and duty to award compensation does not mean that irrespective of facts of the case compensation can be awarded in all matters at a uniform rate of 18% per annum. As seen above what is being awarded is compensation i.e. a recompense for the loss or injury. It therefore necessarily has to be based on a finding of loss or injury and has to correlate with the amount of loss or injury. Thus the Forum or the Commission must determine that there has been deficiency in service and/or misfeasance in public office which has resulted in loss or injury. No hard and fast rule can be laid down, however a few examples would be where an allotment is made, price is received/paid but possession is not given within the period set out in the brochure...

…Along with recompensing the loss the Commission/Forum may also compensate for harassment/injury both mental and physical. Similarly, compensation can be given if after allotment is made there has been cancellation of scheme without any justifiable cause.

That compensation cannot be uniform and can best of illustrated by considering cases where possession is being directed to be delivered and cases where only monies are directed to be returned. In cases where possession is being directed to be delivered the compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting. But in cases where monies are being simply returned then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot. He is being deprived of that flat/plot. He has been deprived of the benefit of escalation of the price of that flat/plot. Therefore the compensation in such cases would necessarily have to be higher.

       It would, thus, be seen that the Hon’ble Supreme Court recognized that the interest to the flat buyers in such cases is paid by way of compensation. Therefore, there is no reason why the interest claimed by the complainants or at least part of it should not be taken into consideration for the purpose of deciding the pecuniary jurisdiction of this Commission. If this is done, the aggregate amount claimed in each of the complaints exceeds Rs.1,00,00,000/- and, therefore, this Commission does possess the requisite pecuniary jurisdiction.

7.         I do not find any reason to disagree with the aforesaid reasoning of the Coordinate Bench. It may be noted that issue raised by the opposite party is no more resintegra.  Accordingly, taking note that the facts of the complaint under consideration are similar to the facts of the above noted cases decided by the Coordinate Bench, I do not find force in the plea of Force Majeure taken by the opposite party.   As the opposite party has failed to complete the construction and deliver the possession of the apartment to the complainant despite of expiry of agreed date of delivery of possession, we find the opposite party guilty of deficiency in service.

8.         Al-though he complainants had prayed for alternative relief of possession or refund of the money paid with interest, at the outset  counsel for the complainants on instructions submitted that complainants do not press claim for possession because till date subject apartment is not ready and restrict their claim for refund of the amount paid with compensation in the form of interest to 10% p.a. from the date of respective payments.

9.         On my query, counsel for the opposite party has stated that subject apartment is not yet complete and is likely to be completed shortly.  Ld. counsel, however, has not given a firm date.  Complainant cannot be made to wait for possession of the apartment till indefinite period.  Therefore, I am of the opinion that opposite party is liable to refund the amount received with compensation.

10.       Now the question is as to what should be the amount of compensation?  In this regard, counsel for the opposite party has drawn my attention to clause 4 c  (ii) of the Builder Buyer Agreement and submitted that as per the agreement between the parties, the opposite party company is liable to pay Rs.5/- per sq. ft. per month as compensation for delay in delivery of possession of the apartment.

11.       Clause 4 c (ii ) and 4 (e) of the Builder-Buyer Agreement deals with the compensation to be awarded by the opposite party in the event of their failure to give possession by stipulated period.  The relevant clauses are reproduced as under

4 c (ii)

“That the Developer would pay charges @ Rs.5/- per s q. ft. per month for the period of delay in offering the delivery of the said apartment beyond the period indicated in clause 4 (a) (i), save and except as for reasons beyond the reasonable control of the Developer. These charges would be adjusted at the time of Notice for possession.”

4 (e)

“If for any reason the Developer is not in a position to offer the Apartment as agreed herein, the Developer shall offer the purchaser an alternative property or refund the amount in full with Simple Interest @ 10% per annum without any further liability to pay damages or any other compensation.”

12.       Counsel for the opposite party has referred to clause 4 c (ii) of the Agreement and submitted that this being the case of failure of the opposite party to deliver possession of the subject apartment, clause 4 c ( ii) of the agreement is attracted and the complainant is entitled to compensation @ Rs.5/- per sq. ft. per month of the super area.  I do not find merit in the contention.  On conjoint reading of the above noted clauses 4 c (ii) and 4 (e), it is evident that clause 4 c (ii) of the Builder Buyer Agreement would be attracted only in a case in which the delay is for reasonable period and it has occurred because of cogent unfavourable circumstances.  This clause would not apply in cases where builder after receiving substantial amount against the agreed consideration deliberately failed to take any steps for completing the construction. If such an argument is accepted, it would give handle to the developer to utilize the money paid by the consumers at a nominal cost of ₹5/- sq. ft. per month of the super area instead of borrowing money from the financial institutions / banks.  In the instant case, opposite party has not shown any cogent circumstances or reason which prevented it to deliver possession within the stipulated period.  Therefore, in my view, this case should be dealt with under clause 4 (e) of the subject Builder Buyer Agreement, which provides that if the opposite party is not in a position to offer possession of the apartment to the allottee, opposite party shall refund the consideration amount received with 10% p.a. Thus, in my view, opposite party is liable to refund the money received from the complainant with 10% p.a. on the amount w.e.f. dates of respective payments of instalments..

13.       In view of the discussion above, the complaint is allowed with following directions:

1.         The   Opposite   parties  shall  refund  the   entire  amount   of Rs.74,89,539/- to the complainants within six weeks from today alongwith compensation of simple interest  @ 10% per annum from the date of each payment till the realisation of the amount.

2.         The Opposite parties shall pay a sum of Rs.10,000/- (Rupees Ten Thousand only) as cost of litigation to the complainants.