National Consumer Disputes Redressal
Dr. Shriram Trivedi vs National Building Construction ... on 20 September, 2019
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 84 OF 2017 1. DR. SHRIRAM TRIVEDI 3/3, 2ND FLOOR, RAMESH NAGAR, NEW DELHI - 110 015. ...........Complainant(s) Versus 1. NATIONAL BUILDING CONSTRUCTION CORPORATION LIMITED (NBCC) THROUGH THE DIRECTORS, 5TH FLOOR, NBCC BHAWAN, LODHI ROAD, NEW DELHI - 110 003 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER
For the Complainant : Mr. Rajesh Trivedi, AR with
Dr. Shriram Trivedi, Complainant in person. For the Opp.Party : Mr. Debarshi Bhadra, Advocate.
Dated : 20 Sep 2019 ORDER
Per Mrs. M. Shreesha, Member
This Complaint has been filed under Section 21(a)(i) of the Consumer Protection Act, 1986 (in short "the Act") by Dr. Shriram Trivedi against National Building Construction Corporation Ltd. (for short "NBCC"), seeking the following reliefs:-
"1. As per interim relief.
2. And to compensate for delay in possession with a regular monthly justified market rate of rent of 4 BHK in Gurgaon. The prevalent rate is ₹1,00,000/- (One Lac) per month and hence a monthly rental of ₹1,00,000/- from July, 2014 onwards till possession be provided (As on the date of filing the Complaint it was approximately = 30 months x 1,00,000/- =₹30,00,000/-).
3. To provide interest on deposited amount of ₹79,94,407/- @ 18% p.a. from the date of possession committed June, 2014 till date of possession. (As on the date of filing the Complaint that was approximately =₹36,00,000/- [That the sale price of the unit allotted is 1,00,54,478/- (Rs. One Crore Fifty Four Thousand Four Hundred Seventy Eight Only)]
4. To compensate for the mental agony and harassment caused to the complainant by the Act of Respondent which is ₹10,00,000/-.
5. Legal Charges ₹50,000/-.
6. Any other relief which the Hon'ble Forum find suitable."
2. The brief facts as set out in the Complaint are that the Complainant applied for a dwelling unit as advertised by NBCC in Sector 89, Gurgaon. A dwelling unit type V Flat bearing No. 402 (4th floor) was allotted to him by NBCC against a sale consideration of ₹1,00,54,478/-. It is stated that as per the advertisement in Hindustan Times dated 18.02.2012, possession was to be offered by June, 2014. The Complainant paid all the instalments detailed as hereunder:-
Detail Amount (in ₹) Due Date Status Application money 400000/-
With application Paid Allotment money 1032539/-
14.08.12 Paid Installment 1 1910052/-
28.09.12 Paid Installment 2 1910052/-
30.03.13 Paid Installment PLC 303799/-
30.06.13 Paid Installment III 1432539/-
30.09.13 Paid Installment IV 955026/-
30.03.14 Paid Total 79,44,007/-
Possession Date June 2014 (Annexure II) Installment V 1432539 30.09.14 Due Installment VI 677932 30.12.14 Due
3. It is averred that instalments V and VI were collected by NBCC even after the due date of possession. Thereafter when the Complainant visited the site in the month of September, 2014, he was surprised to see that the progress was not as per the promised date of possession.
4. In their reply to an RTI Application, NBCC on 23.05.2014 has duly admitted stoppage of work since first week of January, 2014. Having received no satisfactory response regarding the progress and promised date of delivery, the Complainant got issued a legal notice dated 30.08.2014. It is also averred that without obtaining Completion Certificate and Occupation Certificate from the competent authorities, the letter of interim possession dated 04.07.2016 does not have any sanctity. It is pleaded that the Complainant is a senior citizen and as no legal possession was offered to him as per the promised date, the Complainant approached this Commission seeking the afore-noted reliefs.
5. NBCC filed their Written Version stating that the Complaint ought to be dismissed as it is pre-mature; that as per Clause 20 of the Terms & Conditions of allotment it was only an endeavour to complete the construction of the dwelling unit within 2½ years from the date of allotment letter and that this period is also subject to Force Majeure conditions; that vide Clause 20 of Terms & Conditions of Application for Allotment, NBCC agreed to pay to the allottee, subject to the allottee, not being in default, a compensation @ ₹2/- per sq. ft. of the super area of the Dwelling Unit per month for the period of such delay beyond one year (plus valid extended period due to Force Majeure reasons)'; that the payment plan agreed upon by the Complainant was a time-linked payment plan and the Complainant is barred by Doctrine of Estoppel to subsequently demand a construction linked payment plan; that the advertisement filed by the Complainant only states likely possession by June, 2014 and nowhere a promise was given; that the work of construction was awarded to M/s Supreme Infrastructure Pvt. Ltd. who failed to perform its duties and when NBCC tried to take action against it, the said Contractor filed a suit bearing No. CS (OS) No. 2404/2013 before the Hon'ble Delhi High Court. Vide Order dated 03.12.2013, he Hon'ble Delhi High Court directed NBCC not to encash the bank guarantees of the said defaulting contractor and accordingly, NBCC could not terminate the defaulting agency or award the work to some other agency and, therefore, the delay.
6. It is further averred that after taking steps on 21.06.2014 the remaining works were awarded to M/s Rama Construction Company and it was only on account of the order of the Delhi High Court that there was a delay which is a Force Majeure condition. It is also stated that while Occupation Certificate was awaited, the allottees were allowed to carry out the internal works and no false information was given to the allottees in this regard. Hence there is no deficiency of service on their behalf and they seek dismissal of the Complaint with costs.
7. The Complainant filed Affidavit by way of Evidence and marked Exhibit 1/PW1(Complaint), 2/PW1(Advertisement in Hindustan Times dated 18.02.2012 -Library receipt), 3/PW1(Allotment Letter dated 30.06.2012), 4/PW1(Payment Ledger), 5/PW1(Photograph status uploaded by NBCC on website www.nbccindia.com, 6/PW1 (RTI), 7/PW1 and 8/PW1 (Letters of NBCC), 9/PW1 (Legal Notice), 10/PW1 (Recent Application Form), 11/PW1 (Application form for 2011 1st allotment (Para 20 End ever to complete the construction of the dwelling unit within three years), 12/PW1 (Allotment letter issue date for this batch was 1 June, 2011), 13/PW1 (Copy of interrogatories Questionnaire) and 14/PW1 (Reply of Interrogatories by NBCC).
8. NBCC also filed Affidavit by way of Evidence and marked Exhibit RW1/1 (Application dated 14.03.2012 submitted by the Complainant), RW1/2 (Letter of Allotment dated 30.06.2012), RW1/3 (Letter of offer of possession dated 09.02.2018), RW1/4 (Letter of Award dated 21.06.2014), RW1/5 (Collectively copies of the orders of the Delhi High Court dated 03.12.2013 and 07.05.2014), RW1/6 (Reply dated 26.09.2014 to the Complainant's Legal Notice) and RW1/7 (Letter dated 26.12.2014).
9. Heard both the parties at length. A brief perusal of the advertisement and allotment letter evidence that the possession date was June, 2014. From a perusal of record it is seen that the Complainant had paid all the instalments due and in fact the 5th and 6th instalments were paid in September, 2014 and December 2014 after the promised due date of possession. The contention of the Learned Counsel appearing for NBCC that it was only an endeavour by NBCC to complete the subject Project within 2½ years from the date of allotment letter and nowhere such a promise was specifically made and that the delay was on account of Force Majeure conditions is unsustainable as there is no documentary evidence on record to establish that the Project was hit by Force Majeure conditions. The first Contractor not delivering as per the schedule and the suit filed by NBCC against the said Contractor cannot be viewed as Force Majeure from any angle. The dictionary meaning of Force Majeure is as follows:-
"unexpected circumstances, such as war, that can be used as an excuse when they prevent somebody from doing something that is written in a contract."
10. We are of the considered view that the reasons given by NBCC that the delay is due to Force Majeure conditions cannot be accepted. The submission by Learned Counsel appearing for NBCC that the compensation, if any, shall be payable only after four years plus valid extension due to Force Majeure reasons from the date of allotment is untenable in the light of the fact that we have already held that the reasons cannot be construed to be Force Majeure. The contention of the Learned Counsel appearing for NBCC that 'Time is not Essence of the Contract' also cannot be sustained in the light of the view taken by the Hon'ble Supreme Court in Banglore Development Authority Vs. Syndicate Bank (2007) 6 SCC 711 in which case the Hon'ble Supreme Court has laid down that even if the time is not essence of the contract 'substantial reasons' ought to be given by the Developer for any delay in the delivery of possession. In the instant case, at the cost of repetition, no such cogent reasons were given.
11. We rely on the judgement 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 is beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund."
12. Needless of add, Clause 20 of Terms & Conditions of Application for Allotment, which stipulates compensation of ₹2/- per sq. ft. of the super area, is construed as unfair trade practice as defined under Section 2(r) of the Act, as it is clearly seen from the record that NBCC charges 12% for delayed payment as per Clause 16 of Terms & Conditions of Application for Allotment. This act is squarely covered by the principle laid down by the Hon'ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan II (2009) CPJ 34 (SC) wherein the Apex Court has laid down as follows:-
"6.7 A term 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 could not seek to bind the Respondent with such one-sided contractual terms."
13. The afore-noted principles squarely apply to the facts and circumstances of this case. It is an admitted fact that the Occupation Certificate was obtained on 19.07.2017. This Commission more than a year ago on 07.05.2018 had requested the Learned Counsel to seek instructions as to whether the possession of the subject flat could be delivered to Complainant on his giving an undertaking that he would not create any third-party rights and shall abide by the final result of the Complaint. Despite the fact that the Complainant had paid ₹1,00,00,000/-, Learned Counsel on instructions submitted that the possession could not be delivered as an amount of ₹6,00,000/- is still due from the Complainant towards interest.
14. Thereafter vide an order dated 06.06.2018, this Commission had allowed the interim application preferred by the Complainant seeking directions to NBCC to deliver possession of the subject apartment subject to the receipt of the balance sale consideration amount and the Complainant furnishing an Indemnity Bond in favour of the Developer.
15. It is only in August, 2018 that possession was taken by the Complainant by order of this Commission. Though the promised date of delivery of possession was not mentioned in the Agreement, as per Clause 20 of the Allotment Letter, it is stated that NBCC shall endeavour to complete the construction of the Dwelling Unit within 2½ years of allotment letter (dated 30.06.2012) i.e. 01.01.2015. Even if an additional grace period of six months is added to it, the scheduled date of delivery of possession as per the allotment letter is 30.06.2015. Admittedly, the Occupation Certificate was obtained on 09.07.2017 after more than 25 months. Hence, we are of the considered view that there is deficiency of service on behalf of NBCC. Further, their conduct in withholding the delivery of possession despite a direction of this Commission that possession may be delivered as the Complainant had paid more than an amount of ₹1,00,00,000/- out of the total sale consideration of ₹1,00,54,478/- is deprecated. At the cost of repetition, the possession was given only in August, 2014 after a direction by this Commission.
16. Keeping in view all the facts and circumstances of the case and the ratio laid down by the Hon'ble Supreme Court in Kolkata West International City Pvt. Ltd. and Pioneer Urban Land & Infrastructure Ltd. (supra), we are of the considered view that there is deficiency of service on the part of NBCC and this Complaint is allowed in part directing NBCC to pay interest @ 10% p.a. on the amount deposited by the Complainant from June, 2015 till the actual date of possession which is in August , 2018 together with compensation of ₹2,00,000/- for rental loss and mental agony and costs of ₹25,000/-. Time for compliance four weeks from the date of receipt of a copy of this order, failing which, the amount shall attract interest @ 12% p.a. for the same period.
......................J R.K. AGRAWAL PRESIDENT ...................... M. SHREESHA MEMBER