National Consumer Disputes Redressal
Deepak Agarwal & Anr. vs Three C Shelters Pvt. Ltd. & Anr. on 21 January, 2020
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 3879 OF 2017 1. DEEPAK AGARWAL & ANR. 38, Kamla Club, Kalpi Road, Near JK Jute Mills Kanpur Uttar Pradesh- 208012 ...........Complainant(s) Versus 1. THREE C SHELTERS PVT. LTD. & ANR. C- 23, Greater Kailash Enclave I New Delhi- 110048 Delhi 2. Orris Infrastructure Pvt. Ltd. RZ-D-5, Mahavir Enclave New Delhi- 110045 Delhi ...........Opp.Party(s) CONSUMER CASE NO. 3880 OF 2017 1. RAJAT CHAWLA & ANR. ...........Complainant(s) Versus 1. THREE C SHELTERS PVT. LTD. & ANR. C-23, Greater Kailash Enclave 1, new delhi-110048 2. ORRIS INFRASTRUCTURE PVT.LTD. RZ-D-5, MAHAVIR ENCLAVE, NEW DELHI-110045 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER
For the Complainant : For the Complainants : Mr. Aditya Parolia, Advocate with
Ms. Harshita Chauhan, Advocate For the Opp.Party : For the Opposite Party No.1 : Mr. Dhananjai Jain, Advocate with
Ms. Ruchika Jain, Advocate
For the Opposite Party No.2 : Mr. B. K. Singh, Advocate
Dated : 21 Jan 2020 ORDER
R.K. AGRAWAL, J. PRESIDENT
1. These Consumer Complaints, under Section 21 read with Section 12(1)(a) of the Consumer Protection Act, 1986 (for short "the Act"), have been filed by the Complainants, the allottees of Residential Flats/Apartments in a project, namely, "Greenopolis" (for short "the Project"), to be developed and constructed by the Opposite Party at Sector 89, Gurgaon, Haryana, seeking possession of their respective booked flats or refund of the amount paid with interest and compensation for the losses suffered by them on account of unfair and restrictive trade practices adopted and the deficient services rendered by the Opposite Parties in not handing over the possession of the allotted Flats/Apartments within the stipulated time.
2. Both the pairs of the Complainants have been allotted their respective flats by the Opposite Parties by executing identical "Allotment Letters"; the facts and questions of law involved in their cases are similar, inasmuch as physical possession of the allotted Flats have not been handed over within the committed period and almost similar reliefs have been prayed for by all the Complainants.
3. For the sake of convenience, the material facts, enumerated hereinafter, are taken from the Consumer Complaint No.3879 of 2017 titled as Deepak Agarwal & Anr. Vs. M/s. Three C Shelters Pvt. Ltd. & Anr.. Concisely put, the Complainants Nos.1 & 2, who are husband and wife, being swayed by the various advertisements made by the Opposite Parties in respect of their housing project, namely, 'Greenopolis' which was to be raised at Sector 89, Gurgaon, Haryana, had jointly booked an Apartment in the said Project for a total consideration of Rs.1,02,83,880/-, by paying booking amount of Rs.8,50,000/- on 25.02.2012. The Project was to be consisted of 29 towers with flats ranging from 2BHK to 4BHK having super area from 1297 sq. ft. to 2750 sq. ft.. Pursuant to the booking, the Complainants were allotted Apartment No.603 on 6th Floor in Tower 23, having super area of 2036 sq. ft. vide Allotment Letter dated 28-08-2012. Subsequently, the Opposite Parties executed the Apartment Buyer's Agreement, after a delay of about one year, on 20-06-2013 and that too after having collected Rs.26,76,114/- from the Complainants. In terms of the Agreement, the possession of the Apartment was to be delivered within 36 months with a grace period of six months from the date of issuance of Allotment Letter i.e. by 28-02-2016, subject to timely payment by all the buyers of the apartments in the Project. Complainants opted for the Construction Linked Plan and diligently made the payments, as and when demanded by the Opposite Parties. They paid an amount of Rs.90,53,310/-, in toto, by 19-04-2016 to the Opposite Parties. Since then, no further demands have been raised by the Opposite Parties. It is further averred that despite receipt of the amount of Rs.90,53,310/- i.e. about 88% of the total consideration, the Opposite Parties failed to hand over possession of the Apartment within the stipulated period i.e. by 28-02-2016. Further, the Opposite Parties had never disclosed, in the Project Layout Plan, Brochure or in the Agreement, that there is a huge sewage canal passing through the middle of the Project which is in close proximity to the tower in which the Complainants have been allotted their Apartment and that a high tension electric wire was also passing through the Project. Both these factors depreciate the value of the property and also have serious repercussions on the health. Complainants averred that they would have never opted for the said Project if these facts were known to them at the time of booking. As part of their averments, the Complainants have submitted that the Opposite Parties stopped the construction of the Project in early 2016 and have not raised a single demand since April, 2016 thereby jeopardizing the timely possession of the Apartment. The Complainants also raised protest with regard to passage of huge sewage drainage canal and the high tension electricity line, but the Opposite Parties failed to give any explanation for the same. The construction of the Project was still far from completion and there was no update available with respect to Tower 23 on the website of the Opposite Parties. It is also averred that one of the Opposite Parties had taken a high yield loan against receivables from IndoStar Capital Finance Ltd., an NBFC, in the form of non-convertible debentures, the proceeds of which are to be used to pre-pay debt from Xander Finance and Religare Credit Opportunities Fund and the rest of the capital is proposed to be used as working capital towards 10 of the existing projects of the Opposite Parties. This loan, which has been taken against collaterals, was detrimental and prejudicial to the interest of the Complainants. Thus, foreboding that the completion of the Project and handing over of possession of the booked Apartment is not possible in the near future, alleging the instances of failure of the Opposite Parties to complete the construction and to deliver the possession of the Apartment even after collecting substantial portion of consideration; that the funds collected from the Complainants have been diverted to the other projects by the Opposite Parties; inordinate delay in handing over possession; execution of the Apartment Buyer's Agreement after a delay of one year after collecting substantial amount; no affirmative time schedule given for completion and possession; the non-disclosure of passage of sewage drainage canal and high tension electricity line through the Project; as deficiency in service/unfair trade practice on the part of the Opposite Parties, the Complainants have filed this Complaint praying following directions to the Opposite Parties:
(i) to handover possession of the Apartment, in conformity with the Buyer's Agreement, complete in all respects, with all additional facilities and to execute necessary and required documents of the said Apartment in favour of the Complainants within eight months from the date of filing of the Complaint;
(ii) in the event, the prayer at (i) is not allowable, to refund the entire amount of Rs.90,53,310/- with penal interest @18% p.a. from the respective dates of receipt of each payment;
(iii) to pay interest @18% p.a. on the amount deposited from the promised date of delivery of possession till the date of actual possession with all necessary documents and common areas and facilities as promised;
(iv) to pay Rs.6,000/- per day in case of failure to provide possession within the stipulated time as directed by this Commission;
(v) to make arrangements to cover the sewage drainage canal flowing through the project and to pay compensation amounting to 20% of the total consideration for loss in the value of the Apartment due to presence of the sewage canal and high tension wire;
(vi) to refund the wrongly charged taxes like Service Tax and other charges like Preferential Location Charges with interest @12% p.a. from the date of receipt of such wrongful charges and taxes;
(vii) to provide adequate car parking spaces in the Project and to refund the excess amount collected from the Complainants towards car parking slots with interest @12% p.a.;
(viii) to pay Rs.5,00,000/- towards mental agony and harassment and
(ix) to pay Rs.1,00,000/- towards the costs of litigation.
4. Upon notice, the Opposite Parties contested the Complaint by filing their separate Written Versions. The Opposite Party No.1, in its Written Version, raised preliminary objections that the Complainants are not 'consumers' as defined in the Consumer Protection Act, 1986 since they have booked two flats in the same Project bearing Flat No.402 in Tower 15 and Flat No.603 in Tower 23, which amounts to booking of such flats for investment/commercial purpose. The Complaint deserves to be rejected at threshold on this submission alone.
5. On merits, the Opposite Party No.1 contended in its Written Version that the approval of building plan and other approvals in respect of the Project were obtained by the Opposite Party No.2 and the same is developed by the Opposite Party No.1 in terms of the Development Agreement dated 02.11.2011 entered into between the Opposite Party No.1, Opposite Party No.2 and other land owning companies of the Opposite Party No.2. The total area of licensed land was 47.218 Acres out of which the Project was launched only on 37.218 Acres and balance land has been returned to Opposite Party No.2 vide Supplemental and Relinquishment Agreement dated 14.09.2017. In terms of the said Development Agreement, the Opposite Party No.2 was entitled for 35% of the total developed area of the Project and the Opposite Party No.1 was entitled for 65% of the total developed area. The construction was started after receipt of Environmental Clearance granted on 04.09.2013 and Consent to Establish granted on 27.11.2013. The construction of structure and finishing works of seven towers from Tower No.15 to 21 is almost complete and be ready within three months and construction of structure of 12 towers from Tower No.1 to 12 are also complete and final finishing works are in progress. The construction of structure of remaining 10 towers was also complete and MEP and finishing works were in progress. It is further contended that in terms of Clauses 5.1 and 5.2 of the Buyers Agreement the time period for completion of the Project and giving possession to the Complainants ended in November, 2017. Most of the buyers, like Complainants, booked the Apartment under 'Construction Linked Plan' and have not made timely payment of installments and defaulted in their obligation to make timely payment of installments to the tune of Rs.117.59 Crores which has contributed to the delay in completion of Apartment. Besides the above major default in payment of installments by majority of buyers, the demonetization of currency notes of Rs.500/- and Rs.1000/- has also affected the pace of development of the Project since the laborers, due to non-payment in cash, stopped working and left the Project which led to huge labour crisis. Further, the capping on withdrawal and non-availability of adequate funds with the banks escalated the problem many folds. With respect to the presence of sewage canal and high tension line, the Opposite Party submitted that the details of the Project were in public domain with complete project location address since beginning and also shown in the sanctioned lay-out of the Project. The Opposite Party had also arranged site visit for prospective buyers including the Complainants for visiting the Project site prior to making application for booking and that the Complainants were aware of the existence of Sewage Canal and High Tension Line passing through the Project since beginning because the same could not have been kept hidden by the Opposite Party No.1. The Opposite Party No.1 has applied for grant of permission to cover the Sewage Canal and on receipt of the same the Sewage Canal shall be covered and shall not affect the mobility of residents. As regards the recovery of Service Tax, the Opposite Party has contended that the same has been recovered as per the rules, policies and laws prevailing from time to time and deposited in the Government Account. As soon as the concerned department releases the money, the same shall be returned to the Complainants. The Opposite Party, however, submitted that in terms of the judgment of CESTAT, Allahabad (2016) (7) TMI52 in the matter of Commissioner of Central Excise, Lucknow Vs. Eldeco Housing & Industries Pvt. Ltd., the concerned department, with whom the money has been deposited in lieu of the Service Tax, shall directly return the same to the buyers. As regards the Car Parking, the Opposite Party contended that in terms of Clause 3.3 of the Apartment Buyer Agreement, the Complainants shall be allotted one car parking space and no excess amount has been collected from the Complainants towards car parking slots with interest. The Opposite Party has submitted that due to delay in payments, by majority of the buyers in the Project, of the demands raised, the pace of construction activities got affected and it became difficult to complete the Project within the stipulated time and due to demonetization of currency notes and capping of withdrawal and non-availability of adequate funds with the banks, which further escalated the problem, the Opposite Party could not complete the Project in time. Both these factors were beyond the control of the Opposite Party and, therefore, there is no breach on the part of the Opposite Party No.1 and the Opposite Party No.1 is entitled to a reasonable extension of time on these counts. All other allegations made in the Complaint were specifically denied by the Opposite Party and prayer for dismissal of the Complaint with costs has been made.
6. The Opposite Party No.2, in its Written Version, has raised the preliminary objection that the Complainants are not consumers as defined in the Consumer Protection Act, 1986, since they have made multiple bookings and attempted to sell the under construction units for earning profits. The Complaint is not maintainable against Opposite Party No.2 since the Apartment in the Project was allotted to the Complainants by the Opposite Party No.1 out of its own share of the Project and entire payment was collected and utilized by the Opposite Party No.1. The Opposite Party No.2 is only the land owner and license holder for the Project land and Opposite Party No.1 being the developer of the Project is solely responsible for carrying out construction. Thus, no cause of action arises against the Opposite Party No.2 and the Complaint is not maintainable against the Opposite Party No.2. The Opposite Party No.2 has also raised the contention in its Written Version as regards to imposition of stay by the High Court of Punjab & Haryana vide its order dated 31-07-2012 on use of ground water for the purpose of construction due to which the construction activities in Gurgaon got affected since the builders were no longer permitted to use the ground water for the purpose of construction which eventually led to delay in completion of the Project. In the light of the order passed by the Hon'ble High Court, the Opposite Party No.1 had to arrange water from alternate sources from distant places which required additional time and money resulting in delay. However, no additional money was demanded from the Allottees for this purpose. The said event constitutes Force Majeure event in terms of Clause 5.2 of the Apartment Buyer's Agreement and no penalty or fine can be levied on the Opposite Parties due to prevalence of Force Majeure conditions. It is also contended that the dispute is subject to Arbitration as per Clause 10.2 of the Apartment Buyers Agreement and this Hon'ble Commission should refer the parties to arbitration by dismissing the Complaint. The Opposite Party No.2 is not providing any service to the Complainants, thus, there is no relationship of service provider and consumer between them. The Complainants were well aware of the location of their flat from the date of allotment yet they are now raising the issue of High Tension Wires and Sewage Canal in the proximity of their Apartment as reasons for seeking refund. The Complaint, thus, involves disputed questions of facts and, therefore, is not maintainable under the Consumer Protection Act, 1986 and it is proper to relegate the parties to other remedies. All other allegations made in the Complaint were specifically denied by the Opposite Parties.
7. The Complainant No.1 filed its Evidence by way of Affidavit and marked the copy of details available on the Ministry of Corporate Affairs as Exhibit CW1/1, copy of brochure titled 'Greenopolis' as Exhibit CW1/2, copy of Allotment Letter dated 28-08-2012 as Exhibit CW1/3, copy of Apartment Buyer's Agreement dated 20-06-2013 as Exhibit CW1/4, copy of Google image showing huge sewage drainage canal flowing through the middle of land as Exhibit CW1/5, copy of letters dated 20-10-2015 and 03-08-2017 written by the Opposite Party (s) to The General Manager, HSIIDC as Exhibit CW1/6, copy of Statement of Accounts dated 08-11-2017 as Exhibit CW1/7, copy of Project Construction Update available on website of Opposite Party in November, 2017 as Exhibit CW1/8, copy of news report with respect of loan received from IndoStar Captial Finance Ltd. as Exhibit CW1/9, on their behalf.
8. The Opposite Party No.1 filed its Evidence by way of Affidavit and marked copies of Environmental Clearance dated 04-09-2013 and Consent to Establish dated 27-11-2013 as Exhibit-RW1, photographs of site as on September, 2017 as Exhibit RW2, copy of cash flow statement of Opposite Party No.1 showing the inflow and outflow as Exhibit-RW3, copy of certificate showing the amount demanded and amount collected including delayed interest, transfer charges and other charges, etc., issued by chartered accountant as Exhibit-RW4, on its behalf. The Opposite Party No.2 also filed its Evidence by way of Affidavit and marked copy of the Board Resolution authorizing the Authorized Representative of Opposite Party No.2 as Exhibit-OP2W-1/1, copy of Development Agreement showing liabilities of Opposite Parties Nos.1 and 2 as Exhibit-OP2W-1/2, copies of proceedings before HRERA Authority as Exhibit-OP2W-1/3, copy of order dated 23-01-2019 of HRERA as Exhibit-OP2W-1/4.
9. We have heard the Learned Counsel for the parties and perused the material on record.
10. The Learned Counsel for the Complainants has argued that in terms of the Clause 11 of the Allotment Letter dated 28.08.2012, the possession was to be handed over within 36 months with a grace period of six months from the date of allotment. Accordingly, the possession was due on 28.02.2016, but the Opposite Parties have not offered the possession so far. Therefore, the request for refund has been made. Complainants have paid Rs.90,53,310/- by 19.04.2016. The Learned Counsel further argued that there is no force in the objection raised by the Opposite Parties with regard to payment of interest on the amount of refund, because the compensation for delayed possession as per the Allotment Letter is not sufficient to compensate the Complainants for the loss suffered. In support of his contention, the Learned Counsel referred to the judgment given by this Commission in Thangavel Palanivel & Anr. Vs. M/s. DLF Southern Homes Pvt. Ltd., C.C.No.304 of 2015, decided on 29.8.2016, wherein the following observation has been made:
"12. The last question which arises for consideration in this regard is as to whether the opposite party is liable to pay only the compensation stipulated in the Buyers Agreement or a compensation which commensurates with the loss suffered by the complainants on account of the deficiency on the part of the opposite party in rendering services to them. This question has been considered by this Commission in a number of cases including Satish Kumar Pandey & Anr. Vs. Unitech Ltd. and connected matters, decided on 08.6.2015. The following view taken in Satish Kumar Pandey (supra) is relevant in this regard:
"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.
The view taken in Satish Kumar Pandey (supra) reiterated by this Commission in Swarn Talwar (supra) and the decision of this Commission, as noted earlier, was upheld by the Hon'ble Supreme Court.
Therefore, I have no hesitation in reiterating that the compensation which the builder has to pay to the buyers in such cases cannot be restricted to the compensation stipulated in the wholly one side Buyers Agreement and has to be based upon the loss suffered by the consumer on account of deficiency in the services rendered to him."
11. The Learned Counsel for the Complainants further referred to the decision of this Commission in Jivitesh Nayal & Anr. Vs. Emaar MGF Land Ltd. and Anr., CC No.34 of 215, decided on 2.11.2017, wherein the following was observed:
"8. In terms of Section 14(1)(e) of the Consumer Protection Act, if this Commission is satisfied that any of the allegations contained in the complaint about the services of the opposite party are proved it is required to issue an order to the opposite party directing it to remove the deficiencies in the services in question. In terms of Section 14 (1)(d) of the Act this Commission is also required to pass an order directing the opposite party to pay compensation to the complainants for any loss or injury suffered by them due to the negligence of the opposite party. If the builder, whose services are engaged by a buyer for construction of a residential house for him fails to complete the construction and deliver its possession on or before the date committed by him for the purpose, such an act on the part of the builder would be an act of negligence, causing loss or injury to the flat buyer. The term 'negligence' has not been defined in the Consumer Protection Act but as per its dictionary meaning, it is the failure to give enough care or attention especially when such an act has serious results for another person (Oxford Advanced Learner's Dictionary, New 8th Edition). As per Black's Law Dictionary IX Edition, negligence includes the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation. In the absence of force-majeure circumstances, a prudent builder in place of the opposite party would have been in a position to construct the flats and offer their possession to the complainants on or before the date committed for this purpose or at best within the grace period available under the BBA. By not delivering on the commitment made by it with respect to the delivery of the possession of the flats booked by the complainants, the opposite party certainly committed an act of negligence and since the said act of negligence has resulted in loss or injury to the complainants who have been deprived of the use of the flats booked by them, compensation in terms of Section 14 (1)(d) of the Consumer Protection Act can be awarded to the complainants, against the opposite party.
Since the Act empowers this Commission to direct removal of the deficiencies in the service in question, the opposite party, in exercise of the aforesaid power of this Commission, can also be directed and in fact ought to be directed to complete the construction and deliver possession of the flats to the complainants at the earliest possible. Therefore, both the directions sought by the complainants viz. direction for completion of the construction and delivery of possession of the flats and the direction for payment of compensation for the period the possession is delayed are within the competence of this Commission under Section 14 of the Consumer Protection Act. Therefore, it is not correct to say that the complainants are seeking specific performance of the agreement they had executed with the opposite party. The specific performance of a contract can be sought before a Civil Court in terms of the provisions contained in the Specific Relief Act 1963. Neither this Commission is a Civil Court nor have the complainants invoked the provisions of the Specific Relief Act, 1963.
9. Also, I find no merit in the contention that the compensation stipulated in Clause 15(a) of the BBA is in the nature of a penalty attracting applicability of Section 74 of the Indian Contract Act. The aforesaid compensation is a unilateral and patently unfair term imposed by the builders upon the flat buyers. Having already paid the booking amount to the builder, they have no option but to sign on the dotted lines, since the failure to execute the agreement unilaterally drafted by the builder and imposed upon the flat builders is likely to result in the booking amount being forfeited by the builder. Therefore, executing an agreement containing such a term is nothing, but a consent given under coercion and cannot be said to be the result of the exercise of a free consent on the part of the flat buyer. Moreover, a term to pay such a paltry compensation to the flat buyer in the event of default on the part of the builder, while making him pay exorbitant interest in the event of default or delay on his part is an absolutely unfair term. In fact, the incorporation of a term for payment of a paltry compensation to the buyer in the event of the failure of the builder to deliver possession within the time period committed by him, had become so wide spread and rampant that the Legislature had to step in by enactment of the Real Estate (Regulation & Development) Act, 2016 to statutorily require the builder to pay compensation in the form of interest at prescribed rate in the event of the possession being delayed or the buyer deciding to quit on account of the delay on the part of the builder in delivering upon the promise made by him. Therefore, irrespective of Clause 15(a) of the BBA, the complainants in my view are entitled to a just and fair compensation for the period the possession of the flats is delayed by the opposite party.
11. If a paltry compensation of say Rs.10/- per sq. ft. per month is awarded against a builder, it may lead to dangerous consequences since the builder may be tempted not to complete the construction and divert the money collected from the flat buyers for other purposes, in the hope that in the event of the buyer approaching a Court or a Consumer Forum, he can get away by paying a paltry compensation of Rs.10/- per sq. ft. per month to him. Paying such a meagre compensation would always be a win win situation for a builder who is likely to pay many times more if he goes to market for arranging finances which he gets by diverting the money collected from the flat buyers to other purposes. This Commission, therefore, ought to refrain from taking a view which would lead to such serious consequences, against the innocent flat buyers. I also find some merit in the contention of the complainants that in a situation where the builder despite taking money from the flat buyers does not utilize the whole of the said money only for the construction of the flat sold to him, the amount which the builder has collected from the flat buyers should be treated as a cash deposit with the builder who should pay adequate interest to the flat buyer for utilizing his money."
12. As regards the contention raised by the Opposite Parties that the Complainants defaulted in payment of installments and, therefore, in terms of Section 55 of the Indian Contract Act, 1872, they are not entitled to any relief, the Learned Counsel for the Complainants stated that this issue has been considered by this Commission in Rakesh Mehta Vs. Emaar MGF Land Limited, CC No.653 of 2015, decided on 16.10.2017, while giving the following observation:
"5. This complaint was instituted way back on 10.8.2015, about two years before the occupancy certificate was obtained by the opposite party. Therefore, the opposite party was not in a position to offer possession of the flat to the complainant even after the complaint was instituted or within a reasonable period thereafter. The first prayer made by the complainant being for delivery of immediate possession of the flat and the opposite party not being in a position to offer the said immediate possession, he became entitled to the alternative relief of refund of the amount paid by him. Even otherwise, Section 55 of the Indian Contract Act expressly provides that 'when a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promise, if the intention of the parties was that time should be of the essence of the contract'. I therefore, find no merit in the submission that the complainant is not entitled to refund of the amount paid by him."
13. It is further contended by the Learned Counsel for the Complainants that the plea taken by the Opposite Parties in respect of the Force Majeure condition that a ban was imposed on drawing the ground water for construction purposes by the Hon'ble High Court is not valid. The order of the Hon'ble High Court referred to by the Opposite Party No.1 was only in respect of not drawing the ground water, but there was no ban on the construction activity nor any ban on the use of water. The water should have been brought from outside by the Opposite Parties and should have been used for construction activity. Therefore, the order of the Hon'ble High Court cannot be treated as Force Majeure condition. The Opposite Parties should have taken remedial measures. Once the Allotment Letter is signed between the parties, the Opposite Parties have to keep in mind the adverse situations that may arise and they should be ready to counter those conditions so that Complainants need not suffer for the same. While advancing this contention, the Learned Counsel took support of the judgment passed by this Commission in M/s. IREO Fiveriver Pvt. Ltd. vs. Surinder Kumar Singla & Anr., FA No.1358 of 2016, decided on 29-11-2016 , wherein it has been observed as hereunder:
"14. We have considered the rival contentions and perused the record. On careful consideration of record, we do not find merit in the contention of the appellant. In our considered view, the protection of Force Majeure clause in the agreement between the parties is not available to the appellant builder for the reason that it is the stand of the appellant that vide letter dated 16.03.2011, DTCP Haryana had directed the appellant not to carry out any earth work or construction work at the subject site without obtaining no objection certificate from the Irrigation Department Haryana. It is also admitted case of the appellant that ultimate clearance for undertaking construction work was received vide letter dated 24.04.2015 of National Board of Wild Life granting clearance for the development project. Despite of the aforesaid restraint on the appellant for carrying out development work, admittedly, the appellant executed Plot Buyer's agreement with the respective complainants during the period 23.06.2011 to 23.04.2012. It is not the case of the appellant that while entering into the agreement, the appellant disclosed about the restraint letter dated 16.03.2011 issued by DTCP Haryana. Thus, it is clear that appellant by concealment of material fact defrauded the respondents/ complainants to execute the agreement contained Force Majeure clause, which in our considered opinion is unfair practice amounting to deficiency in service. As the agreement containing Force Majeure clause has been executed by concealment of material fact on the part of the opposite party, the aforesaid agreement is not binding on the complainants. Thus, appellant cannot take benefit of said clause. In view of the discussion above we do not find fault with finding of State Commission holding the appellant to be guilty of deficiency in service and directed the appellant to refund the money paid by the respective complainants with 12% interest besides payment of compensation and litigation expenses."
14. The Learned Counsel for the Complainants emphatically contended that the facts of passing of Sewage Canal and High Tension Electricity Line near the Tower in which the Complainants have been allotted their flat were never brought to the notice of the Complainants which amounts to unfair trade practice. Had the same been disclosed to the Complainants before the booking of the flat, they would have never opted for booking of the flat in the project.
15. On the basis of the arguments advanced as above, the Learned Counsel for the Complainants submitted that the amount paid by the Complainants to the Opposite Parties be refunded to the Complainants. It was stated by the Learned Counsel that the amount has been paid to Opposite Party No.1 though the Allotment Letter has been signed by both the Opposite Parties.
16. Per contra, it was argued by the Learned Counsel for the Opposite Party No.1 that this Commission does not have pecuniary jurisdiction to decide the present case as the relief claimed is for refund of Rs.90,53,310/- only. While advancing this argument, the Learned Counsel took support of the judgment rendered by this Commission in Shahbad Cooperative Sugar Mills Vs. National Insurance Company Ltd., decided on 2.4.2003, II (2003) CPJ 81 (NC) wherein it has been observed that interest will not be added to the value of goods or services for deciding the pecuniary jurisdiction of the consumer forum. Apart from that, some Benches of this Commission have also taken a view that judgment of the Larger Bench in Ambrish Kumar Shukla (supra) is not applicable on refund cases where the value of service is to be taken as the amount of refund and, therefore, the additional compensation demanded in the Complaint cannot be added to this figure as interest is also in the form of compensation only. Accordingly, this Commission does not have the pecuniary jurisdiction to entertain the present complaint. In support of his arguments, the Learned Counsel also referred to the judgment of this Commission in Harmanjit Kaur and another Vs. M/s. Ansal Hi-Tech township Ltd., Consumer Case No.236 of 2017, decided on 7.2.2017, wherein it has been observed as hereunder:
"3. On perusal of the prayer clause it transpires that the complainants are seeking refund of principal amount paid by them alongwith 24% interest p.a. from the respective dates of payment till realization of the amount or in the alternative possession of the apartment in question. Besides, the interest, the complainants have also sought Rs.50 lakhs as compensation. The relief claimed by the complainants is highly unrealistic. On one hand they are seeking refund of the entire consideration with 24% interest which is in the nature of compensation and on the other hand they are also claiming Rs.50 lakhs as compensation for undue harassment and loss caused. Even if the opposite party has failed to fulfill their part of the promise, the complainant cannot claim compensation under more than one head. They can either claim lumpsum compensation for the damages suffered by them or the interest on the amount paid. It may also be noted that 24% interest claimed by them is on higher side. If the complainants are interested in refund with interest, then also the consideration amount of Rs.44,69,452/- with 24% interest cannot be more than rupees one crore and if the complainant is interested in lumpsum compensation of Rs.50 lakhs, the value of services plus compensation works out to be Rs.94,69,452/-. In both the eventualities, the value of the complaint for the purpose of pecuniary jurisdiction is less than rupees one crore."
17. The Learned Counsel for Opposite Party No.1 further argued that as per Clause 4 of the Allotment letter, the Complainants were required to make payments as per payment plan attached to the Allotment Letter. The Complainants had opted for a construction linked plan but have defaulted in making payments. As per Clause 4.7 of the Apartment Buyer Agreement, the Opposite Party No.1 is entitled to terminate the Agreement and is also entitled to forfeit earnest money equal of 10% of the total consideration and to deduct other charges including the brokerage charges. Further, in terms of Clause 4.3 of the Apartment Buyer Agreement it has been clarified that time is of the essence under this Agreement and borrower shall make the timely payment in respect of each installment. Since Complainants have agreed to this Clause, they are defaulter and no relief can be granted to a defaulter in the Consumer Complaint. It was argued that total consideration of the flat is Rs.1,02,83,880/- and if the allotment is cancelled, and refund is ordered, then Opposite Party is entitled to forfeit 10% of this amount as earnest money as per the agreed Clause.
18. The Learned Counsel for Opposite Party No.1 further argued that as per Section 55 of the Indian Contract Act, if a party to the contract does not perform its part/obligation, it is not entitled to ask for relief under the contract from other party. In this regard, Learned Counsel stated that the construction of the building depends upon timely payment by the buyer and if the buyer does not pay instalment in time, he becomes defaulter in the performance of his part/obligation. Therefore, under Section 55 of the Contract Act the Complainants cannot demand relief as per the agreement from the Opposite Parties. To support his arguments, the Learned Counsel referred to the judgment of this Commission passed in DLF Southern Town Pvt. Ltd. vs. Dipu C. Seminlal, RP NO.1973 of 2014 decided on 7.1.2015, wherein the following observation has been made:
"9. Complainant filled application form for provisional allotment on 30.9.2008 and rest of the amount was to be paid in instalments within 27 months of booking. Complainant did not pay any of the instalments and OP vide demand notice dated 31.10.2008, 4.12.2008, 17.12.2008, 31.12.2008, 2.2.2009, 2.3.2009 and 6.3.2009 asked complainant to remit payment, but complainant did not remit payment. OP also asked complainant from time to time to return duly signed Apartment Buyers Agreement, but that was not sent by complainant to OP. As per letter dated 28.1.2010, OP asked complainant to deposit Rs.10,60,326/- outstanding against him on or before 1.3.2010, failing which, allotment will be cancelled and earnest money will be forfeited. Later on, by notice dated 10.3.2010, issued by complainants advocate it was expressed that complainant was ready to remit unpaid instalments or in the alternative demand of Rs.4,00,000/- deposited was made which was denied by OP vide reply dated 9.4.2010. It was specifically stated in this reply that OP was to complete construction within 36 months from date of execution of the agreement subject to allottee making timely payment of instalments and when payment was not made by the complainant, OP vide letter dated 28.7.2010 cancelled allotment and forfeited Rs.4,00,000/- earnest money and intimated to the complainant that no balance was refundable. After this letter, complainant filed complaint before District Forum with aforesaid prayer.
12. He has also placed reliance on judgment of this Commission in R.P. No. 624 of 2007 - Sahara India Commercial Corpn. Ltd. & Anr. Vs. C. Madhu Babu in which also similar order was passed as in P. Gajendra Chary (Supra). He further placed reliance on judgment of Hon'ble Apex Court reported in (2000) 4 SCC 120 - Prashant Kumar Shahi Vs. Ghaziabad Development Authority in which it was observed as under:
"4....Having failed to perform his part of the contract, the appellant cannot be permitted to urge that he is not liable to pay the balance amount along with interest as according to him the respondent-authority had failed to deliver possession as per terms of the brochure. The authority was not expected to deliver possession in the absence of the payment of the agreed amount".
13. In the light of aforesaid judgments, it becomes clear that as complainant has not paid any subsequent instalments and committed default in making payments of instalments and also committed default in returning back duly signed agreement, OP had every right to forfeit amount of earnest money deposited by complainant and learned District forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal."
19. As part of his rival arguments, the Learned Counsel for Opposite Party No.1 submitted that the interest on the refund amount can only be awarded under the provisions of the Interest Act, 1978 which is held by the Hon'ble Supreme Court in HUDA Vs. Raj Singh Rana, Civil Appeal No.4436 of 2008, decided on 16.7.2008 as hereunder:
"10. The concept of levying or allowing interest is available in almost all statutes involving financial deals and commercial transactions, but the provision empowering Courts to allow interest is 13 contained in the Interest Act, 1978, which succeeded and repealed the Interest Act, 1839. Section 3 of the said Act, inter alia, provides that in any proceeding for the recovery of any debt or damages or in any proceeding in which a claim for interest in respect of debt or damage already paid is made, the Court may, if it thinks fit, allow interest to the person entitled to the debt or damages or to the person making such claim, as the case may be, at a rate not exceeding the current rate of interest, for the whole or part of the periods indicated in the said Section."
20. The Learned counsel mentioned that as per the definition of the current rate of interest as given in the Interest Act, 1978, the highest rate of interest is payable in FDs and highest FD rate is about 7-8% p.a. and, therefore, more interest cannot be granted even if a decision is taken to refund the amount along with interest. The Learned Counsel for the Opposite Party No.1 agreed that there has been a delay in the project. However, the matter has now been taken cognizance by the Real Estate Regulatory Authority, Haryana (RERA, Haryana). The RERA Haryana had convened a meeting on 07.09.2018 where MDs of Opposite Party No.1 and Opposite Party No.2 participated and it has been decided that Opposite Party No.1 will complete the project in phases and the first phase will be completed by 31.3.2019, the second phase will be completed by 31.12.2019 and 3rd phase by 30.9.2020.
21. Coming to the Force Majeure conditions, learned counsel for Opposite Party No.1 stated that vide order dated 31.7.2012, Hon'ble High Court of Punjab and Haryana in "Sunil Singh Vs. Ministry of Environment & Forests parayavaran" which was numbered as CWP-20032-2008 imposed a blanket ban on the use of ground water in the region of Gurugram and adjoining areas for the purposes of construction. The demonetization policy was implemented by the Government because of which the labour was not paid in cash due to non-availability of cash and capping of withdrawal of cash from the banks. Consequently, the labour started migrating to their native places resulting in shortage of labour which was beyond the control of the Opposite Parties. In the light of the Force Majeure conditions, no compensation is payable according to Clause 5.2 of the Apartment Buyer Agreement. The delay has occurred due to conditions prevailing which were beyond the control of the Opposite Parties.
22. In respect of the compensation, it was argued by Learned Counsel for Opposite Party No.1 that a consumer forum is authorized to order compensation as per Section 14(i)(d) of the Consumer Protection Act, 1986 and the compensation has to be based on the loss or injury suffered by Complainants due to negligence of the Opposite Parties. In the present case, no loss has been suffered by the Complainants as no proof has been filed by the Complainants whether they have suffered any loss due to payment of any rent or any such other thing. In support of this argument, the Learned Counsel referred to the judgment of the Hon'ble Supreme Court passed in M/s. Fortune Infrastructure (Now known as M/s. Hicon Infrastructure) and Anr. Vs. Trevor D"Lima and Ors., Civil Appeals Nos.3533-3534 of 2017, decided on 12.3.2018, wherein the Apex Court has held as under:-
"11. It is now well established that the contractual damages are usually awarded to compensate an injured party to a breach of contract for the loss of his bargain. In the case of Johnson and Anr. V. Agnew, [1979] 1 All ER 883, the aforesaid case has clearly held as under:
The general principle for the assessment of damages is compensatory, i.e. that the innocent party is to be placed, so far as money can do so, in the same position as if the contract had been performed."
23. The Learned Counsel for the Opposite Party No.2, while advancing the rival contentions, submitted that the Opposite Party No.1 is the Developer and Opposite Party No.2 is only the Land Owner. There is a Development Agreement between Opposite Party No.1 and Opposite Party No.2 and this was in the knowledge of Complainants. As per the Development Agreement, 65% units are to be sold by Opposite Party No.1 and 35% units are to be sold by Opposite Party No.2. In this background, it is to be considered that the project has been delayed by Opposite Party No.1 and, therefore, Opposite Party No.2 is not responsible for paying any compensation for the delay in handing over the possession. The Learned counsel further argued that the buyer was aware about the Development Agreement between the Opposite Parties as clarified in Clause 9.1 of the Apartment Buyer Agreement wherein it is clearly stated that the buyer has understood the terms and conditions of the Development Agreement as well. It was further argued by the learned counsel that the timely construction was subject to timely payment by all the buyers and it was Opposite Party No.1 who had committed to complete the building in 36 months plus six months of grace period. The main responsibility of construction was of the Developer i.e. Opposite Party No.1. The Opposite Party No.2 is only the land owner and no liability for delay in construction can be fastened on Opposite Party No.2. Learned counsel further argued that as per Clause 5.5 of the Apartment Buyer Agreement, the Company is liable to pay delay charges @ Rs.10/- per sq. ft. per month if the delay is more than 9 months and in the present case this will be applicable. As the parties are bound by the Agreement and the Company is ready to pay the delay charges as per the agreement, there should be no question of seeking more compensation by the Complainants and the Commission would not be justified in ordering further compensation beyond the one agreed in the agreement between the parties.
24. As part of his arguments, the Learned counsel for Opposite Party No.2 submitted that Opposite Party No.1 is the owner of the project and entire amount paid by the Complainants has been taken by Opposite Party No.1. Learned Counsel for Opposite Party No.2 further submitted that as per Clause 4.7 of the Apartment Buyer Agreement, the Opposite Party No.1, M/s. Three C Shelters Pvt. Ltd., is responsible for refund and, therefore, no liability can be fastened upon the Opposite Party No.2 for refunding the amount as per the Agreement and also due to the fact that no money has been paid to Opposite Party No.2. It was further argued that Complainants have not paid any amount to Opposite Party No.2 and therefore, Complainants are not consumers qua Opposite Party No.2 under the provisions of Consumer Protection Act, 1986. Therefore, the Complaint against Opposite Party No.2 is not maintainable. On the aspect of delay in construction, Learned Counsel for Opposite Party No.2 pleaded the same argument as pleaded by Learned Counsel for Opposite Party No.1.
25. We have given our thoughtful consideration to the issue at hand. As far as the question of pecuniary jurisdiction is concerned, it is seen that the total consideration of the flat is Rs.1,02,83,880/-and Rs.90,53,310/- has been paid by the Complainants. As per the judgement of National Commission, passed in Ambrish Kumar Shukla & Ors. vs. Ferrous Infrastructure Pvt. Ltd., (supra), while deciding the pecuniary jurisdiction of a Forum, the total consideration of the flat along with compensation demanded is to be considered. The Learned Counsel for Opposite Party No.1 has argued that interest will not be applicable for refund of the paid amount as there is no provision in the Apartment Buyer Agreement for such interest and in this regard the Learned Counsel has referred to the judgment of larger Bench of this Commission in Shahbad Cooperative Sugar Mills Vs. National Insurance Company Ltd. (supra) where this Commission has held that interest will not be added to the value of goods or services for deciding the pecuniary jurisdiction. This judgment is of the year 2003 whereas the larger Bench of this Commission in Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd (supra) has decided the issue in the year 2016 that interest is also in the form of compensation and the same needs to be added to the value of goods or services for deciding the pecuniary jurisdiction of a Consumer Forum. Since this Commission has revisited its view in a later judgment, the recent decision of the larger Bench of this Commission in Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd. (supra) shall prevail so far as adding of interest to the value of goods or services for consideration of the pecuniary jurisdiction is concerned. This Commission has also taken the view in the matter of Gaurav Aneja & anr. Vs. Supertech Limited, II (2018) CPJ 365 (NC) that for deciding the pecuniary jurisdiction, the compensation in the form of interest @ 18% per annum should be considered. If the interest is calculated till the present date, the pecuniary jurisdiction of this Commission is clearly established even if no compensation is added to the value of service, though the Complainants have demanded a compensation of Rs.5,00,000/- separately for mental agony and harassment. If at this time, this Complaint is dismissed on the ground of pecuniary jurisdiction and Complainants are directed to go before the State Commission, the State Commission would not be having the pecuniary jurisdiction to decide the present case and they will also return the Complaint to be filed before the appropriate forum and then the appropriate forum would be this Commission. Accordingly, in our view, this Complaint needs to be decided by this Commission.
26. So far as Sections 54 and 55 of The Indian Contract Act, 1872 are concerned, Learned Counsel for the Opposite Party No.1 has relied upon the judgment of this Commission in DLF Southern Town Pvt. Ltd. vs. Dipu C. Seminlal (supra), whereas the Learned Counsel for the Complainants has relied upon the decision of this Commission in Rakesh Mehta Vs. Emaar MGF Land Limited (supra). In the case of DLF Southern Town Pvt. Ltd. vs. Dipu C. Seminlal (supra), the complainant has deposited only the booking amount and no instalments were paid whereas in the present case instalments have been paid and total payment of Rs.90,53,310/- have been made. Thus, two cases cannot be compared and, therefore, it cannot be said that the Complainants have breached the terms of Agreement and they are not entitled to any relief in the light of Section 54 and 55 of The Indian Contract Act, 1872.
27. Admittedly, the Opposite Parties have not been able to complete the project in time and deliver the possession of property in question to the Complainants in time as per the Allotment Letter or the Apartment Buyer Agreement. It has now been established that the allottees have a right to ask for refund if the possession is inordinately delayed, more particularly beyond a period of one year. In the present case, the project is not yet complete though the possession was to be given in February, 2016. The Opposite Party No.1 has taken the defence of Force Majeure conditions for delay whereas the fact is that the Learned Counsel for Opposite Party No.1 has mentioned about the order of the Hon'ble High Court of Punjab and Haryana in "Sunil Singh Vs. Ministry of Environment & Forests Parayavaran (supra) wherein the use of ground water was restricted and Opposite Parties had to bring water from outside. However, there was no ban on construction and Opposite Party No.1-Company should have put its resources and managerial skills to bring water from outside and to complete the construction in time. The plea taken by the Opposite Party as regards shortage of labour is not supported by any documentary evidence placed on record. The ground taken by the Opposite Party that there was shortage of cash and the labour could not be paid in cash is not acceptable because payments could always be made through their bank accounts. Especially, when millions of accounts have been opened by the Government under Jandhan Yojana with zero balance, the plea that payments could not be made to the labour due to non-availabilty of cash and capping of withdrawal of cash from the banks cannot be accepted.
28. It is now aptly established that the project has been delayed for more than two years and, consequently, a valuable right has arisen in favour of the Complainants by efflux of time and failure of the Opposite Parties to give possession for more than two years from the stipulated date of possession, to take possession of the subject flat at this belated stage or to seek refund of the entire amount deposited with reasonable compensation. In Emmar MGF Land Ltd. & Ors. vs. Amit Puri - II (2015) CPJ 568 NC, this Commission has held that after the promised date of delivery, it is the discretion of the Complainant whether he wants to accept the offer of possession, if any, or seek refund of the amounts paid with reasonable interest. We are of the view that the Complainants cannot be made to wait indefinitely for the delivery of the possession when they had already paid almost the entire consideration. In such circumstances, it is well within the Complainants' right to seek for refund of the principal amount with interest and compensation.
29. The Learned Counsel for the Complainants has also prayed for refund of the amount paid along with interest and compensation.
30. Learned Counsel for Opposite Party No.1 has argued that interest can only be ordered as per the Interest Act, 1978. The current interest rate as per the Interest Act, 1978, is 10% p.a.. The relief sought for refund with interest @18% p.a. is contrary to the terms of the Allotment Letter and is in a way of re-writing the terms of the allotment which is not permissible, more so, when the Complainants neither disputed the terms of allotment nor challenged them in any of the reliefs.
31. The aforesaid contention, in our view, does not really arise for consideration in this case. The primary purpose of a Consumer in booking a residential Flat which the Builder is to construct for him, is to start living in that house on or about the date committed to him by the Builder for delivering possession of the flat booked by him. If the Builder fails to comply with the contractual obligation and at the same time, is unable to show that the delay in completion of the flat and offering its possession to the Consumer is on account of circumstances beyond his control, this would constitute deficiency on the part of the Builder/Service Provider in rendering services to the Consumer. If we accept the contention that the Builder can indefinitely postpone and delay the construction of the Flat and the Flat Buyer has no option but to wait till the Builder decides to complete the construction and offer possession to the Buyer, that would be nothing but a travesty of justice and result in a situation where the Flat Buyer is left at the mercy of the Builder, without recourse to an appropriate legal remedy. Such an interpretation, if taken, is bound to defeat the very objective behind the enactment of the Consumer Protection Act, as far as housing construction is concerned. Therefore, we are unable to accept the contention advanced by the Learned Counsel for the Opposite Parties. In our view, wherever the Builder commits a particular date or time frame for completion of the construction and offering possession to the Buyer, they must necessarily honour the commitment made by them, though a minor delay may not constitute deficiency in the service rendered by them to the Buyer. Of course, if the Builder is able to show that the delay in completion of the construction and offering possession to the Buyer is attributable wholly to the circumstances beyond its control, that may not be a case of deficiency in the services rendered to the Consumer.
32. At this juncture, we find it a fit case to place reliance on the recent judgment of the Hon'ble Apex Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan - II (2009) CPJ 34 (SC), wherein the Apex Court has observed as follows:
"6.7. A terms of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the Agreement dated 08.05.2012 are ex-facie one sided, unfair and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder.
7. In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyer's Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent-Flat Purchaser. The Appellant-Builder cannot seek to bind the Respondent with such one-sided contractual terms."
33. We further place reliance on the judgment of the Hon'ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra - II (2019) CPJ 29 SC, in which the Hon'ble Apex Court has observed as hereunder:-
".....It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years in beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund.
In the circumstances, we are of the view that the orders passed by the SCDRC and by the NCDRC for refund of moneys were justified."
34. In the instant case also the Complainants cannot be made to wait indefinitely as the possession of the flat has not been handed over to them so far and the Opposite Parties are enjoying the benefits of their hard-earning money deposited with them. Therefore, the Complainants are also entitled for refund of the principal amount with reasonable interest and compensation.
35. Even though in the main relief, the Complainants have sought for possession of the Flats/Apartments in these Complaints and alternatively they have claimed refund of the amount deposited by them along with interest and compensation, but as the Builder Opposite Party has failed to deliver the possession of the Flats to the Complainants latest by February, 2016, i.e. the stipulated period with grace period in the Agreement and approximately more than 2 years have passed but the possession has not been given and the Complainants cannot be made to wait for such a long period, they are entitled for refund of the deposited amount along with compensation. The project was a joint project of the Opposite Parties as both of them have signed the Apartment Buyer Agreement, therefore, both are responsible for delay. However, as Opposite Party No.2 has not received any amount of money from the Complainants and Complainants are seeking refund, clearly the joint liability of Opposite Party No.2 cannot be considered in the present case. As Opposite Party No.1 has received all the amounts paid by the Complainants, it would be liable to refund the same to the Complainants. Hence, for all the afore-noted reasons, the Complaint is partly allowed and disposed of along with pending IAs, if any, with the directions that:
(i) the Opposite Party No.1 shall refund the entire amount deposited by the Complainants along with interest @ 10% p.a. from the respective dates of deposits till the date of realisation, within a period of one month from today failing which the Opposite Party No.1 shall be liable to pay interest @ 12% p.a.;
(ii) the Opposite Party No.1 shall also pay Rs.10,000/- as costs of litigation to the Complainants.
36. Before parting, we may make it clear that the interest @10% p.a. on the refund of the amount which has been awarded as compensation is not factually interest on refund and, therefore, there is no question of deducting any tax on source.
......................J R.K. AGRAWAL PRESIDENT ...................... M. SHREESHA MEMBER