State Consumer Disputes Redressal Commission
Shalini Verma vs Supertech Ltd. & Anr. on 5 April, 2021
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL COMMISSION
JUDGMENT RESERVED ON: 08.03.2021
JUDGMENT PRONOUNCED ON: 05.04.2021
COMPLAINT NO. 522/2017
IN THE MATTER OF
MRS. SHALINI VERMA .......COMPLAINANT
VERSUS
SUPERTECH LTD. & ORS. ....OPPOSITE PARTY
CORAM:
HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE SH. ANIL SRIVASTAVA, (MEMBER)
Present: Mr. Pradeep Kumar Jha, Counsel for the Complainant.
Mr. Piyush Aggarwal, Counsel for the Opposite Party.
PER: HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
[Via Video Conferencing]
1. The present Consumer Complaint has been filed before this commission under Section 17 of the Consumer Protection Act, 1986 by Mrs. Shalini Verma (hereinafter referred to as "the complainant") against Supertech Limited (hereinafter referred to as "Opposite Party") seeking the following reliefs:
1. Direct the respondents to refund the entire payment of Rs.27,44,253/ (Rupees Twenty Seven Lakh Forty Four CC 522/2017 Page 1 of 19 Thousand Two Hundred Fifty Three Only) from the date 19.03.2016 when the last installment was made by the complainant till the date of its actual refund along with interest @18% p.a.;
2. Direct the Respondent to give Rs. 5,00,000/- towards the harassment and mental agony and Rs.1,00,000/- towards the litigation expenses;
3. Pass any such other appropriate orders and/or directions as this Hon'ble Forum may deem fit and proper under the facts and circumstances of the present case.
2. Brief facts necessary for the adjudication of the present complaint are that the complainant booked a Residential unit in the project of the Opposite Party in Sector-74, Noida, Gautam Budh Nagar, Uttar Pradesh. The complainant paid a total amount of Rs.3,65,706/- towards the booking of the said flat. Vide allotment letter dated 05.11.2011, a residential apartment of 1-BHK having super area of 520 sq. ft. bearing Unit No.0923, 09th Floor, in NORTH EYE Tower situated at CAPE TOWN, GH-01/A, Sector-74, Noida, Uttar Pradesh was allotted to the complainant for a total sale consideration of Rs.36,57,059/-.
3. As per the allotment letter, the opposite party was to hand over the possession of the flat by December, 2014. The complainant over the time had paid a sum of Rs.27, 44, 253/- to the Opposite Party as and when demanded. The tabular representation of the payments made along with the acknowledgment by the Opposite Party has been reproduced below:
CC 522/2017 Page 2 of 194. The complainant along with her son visited the construction site and was shocked to see that the construction of the said Tower was incomplete in all respects and there was no hope of the completion of the construction in the near future, despite there being a specific date to handover the possession by December, 2014. Consequently, the complainants' son wrote an E-mail dated 12.10.2016 to the Opposite Party seeking the status of the project for which, the complainant had paid here hard earned money. In response to the said E-mail, the Opposite Party via E-mail dated 15.10.2016 informed the CC 522/2017 Page 3 of 19 complainant that the possession of the flat will be handed over by December, 2017.
5. Being dissatisfied by the acts of the Opposite Party in delaying the date of handing over of the possession for a further period of three years, the Complainant sought refund from the Opposite Party of the entire amount deposited by her. However, the Opposite Party kept giving assurances that the project will be completed within some time and did not pay heed to the request of the complainant to refund the entire amount. Moreover, the Opposite Party sought the remaining balance payments from the complainant which were denied by the Opposite Party. Alleging deficiency of service and unfair trade practice on the part of the Opposite Party, the complainant approached this commission.
6. The Opposite Party had contested the present case and has raised some preliminary objections as to the maintainability of the complaint case. The Opposite Party has contended (a) that since there exists an arbitration clause in the Allotment Letter/Agreement, the present consumer complaint is not maintainable before this commission and the dispute between the contesting parties should be adjudicated by the Arbitrator; (b) that this commission does not have the territorial jurisdiction to entertain the present consumer complaint since the business activities were carried on from its corporate office situated at B-28-29, Sector-58, Noida, Gautam Budh Nagar, Uttar Pradesh;
(c) that the complainant is not a "Consumer" as defined under the Consumer Protection Act, 1986 as the complainant has booked the said flat to earn profits on investment and therefore, the same amounts to commercial purpose; (d) that time is not the essence of the contract in construction cases and mere delay cannot be the ground for CC 522/2017 Page 4 of 19 repudiating the contract; (e) that the construction of the project was majorly delayed due to the farmers agitation, which was beyond the control of the Opposite Party, for which, the Opposite Party cannot be held liable for deficiency; (f) that the Hon'ble National Green Tribunal had passed restraint orders regarding Ground Water Extraction for construction purposes, which was another reason beyond the control of the Opposite Party.
7. Apart from the preliminary objections, the Opposite Party has rebutted the present consumer complaint on merits as well, seeking assistance from the same grounds on which the preliminary objections were raised.
8. The complainant filed there Rejoinder rebutting the written statement filed by the Opposite Party. Both the parties filed their Evidence by way of Affidavit in order to prove their averments on record and the case was listed for Final Arguments.
9. We have heard the counsel for both the parties and perused through the material on record.
10. The fact that the complainant had booked a flat with the Opposite Party is not in dispute from the evidence on record. Moreover, in its written statement, the Opposite Party has not denied the receipt of an amount of Rs. 27,44,253/- paid by the complainant, hence, the same stands unrebutted.
11. Before delving into the merits of the case, we deem it appropriate to adjudicate preliminary issues of law as to the maintainability of the consumer complaint.
EXISTENCE OF ARBITRATION CLAUSE IN THE ALLOTMENT LETTER
12. The first preliminary objection raised by the Opposite Party is that CC 522/2017 Page 5 of 19 since there exists an arbitration clause in the Allotment Letter, the parties should be referred to arbitration and this commission is barred from exercising its jurisdiction. To deal with this issue, we deem it appropriate to refer to Emaar MGF Land Limited vs. Aftab Singh reported at I (2019) CPJ 5 (SC), wherein the Apex court has held as under:-
"55. We may, however, hasten to add that in the event a person entitled to seek an additional special remedy provided under the statutes does not opt for the additional/special remedy and he is a party to an arbitration agreement, there is no inhibition in disputes being proceeded in arbitration. It is only the case where specific/special remedies are provided for and which are opted by an aggrieved person that judicial authority can refuse to relegate the parties to the arbitration."
13. The Hon'ble Apex Court has put to rest the controversy relating to the existence of arbitration clauses in the allotment letter/apartment buyer agreement etc. as is evident from the relevant paragraph of Emaar MGF Land Limited (supra). In the present case also, the complainant has opted for the special remedies provided under the Consumer protection Act, 1986 therefore, this commission can refuse to relegate the present case to the arbitration. Hence, this commission is authorised to adjudicate the case and the existence of an arbitration clause in the agreement does not affect the jurisdiction of this commission.
WHETHER THIS COMMISSION HAS THE TERRTITORIAL JURISDICTION TO ADJUDICATE THE PRESENT COMPLAINT?
14. The issue with respect to territorial jurisdiction in case of a consumer complaint has been dealt with by this commission in a series of CC 522/2017 Page 6 of 19 judgments wherein it has been held that this Commission is empowered to entertain a consumer complaint against a person/company whose Registered Office is situated within the territory of NCT of Delhi. (Reference: CC-1375/2016 titled Mr. Raghavendra Rengaswamy vs. M/s ORS Infrastructure Pvt. Ltd decided on 25.03.2021, CC-621/2016 titled Abhaya Srivastava & Anr. vs. M/s Supertech Ltd. decided on 09.03.2021).
15. In the present case, the registered office of the Opposite Party is at 1114, Hemkunt Chambers, 89, Nehru Place, New Delhi - 110019, which falls within the territory of Delhi, hence, this commission is not paralyzed from entertaining the present consumer complaint for want of territorial jurisdiction.
COMPLAINANT- A CONSUMER OR NOT?
16. The next leg of argument of the Opposite Party is that the complainant is not a Consumer as defined under the Consumer Protection Act, 1986 since the flat was purchased for investment, i.e. for commercial purpose.
17. It is imperative to refer to the dicta of the Hon'ble National Commission in CC-1122/2018 titled Narinder Kumar Bairwal and Ors. vs. Ramprastha Promoters and Developers Pvt. Ltd. and Ors. decided on 01.11.2019, wherein, the Hon'ble National Commission has held as under:
"19. The contention of the Learned Counsel that the said Apartments were purchased for commercial purpose is not supported by any documentary evidence as the onus shifts to the Opposite Parties to establish that the Complainants have purchased the same to indulge in 'purchase and sale of flats' as was held by this Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31. The Opposite Parties failed to discharge their CC 522/2017 Page 7 of 19 onus and we hence hold that the Complainants are 'Consumers' as defined under Section 2(1)(d) of the Act."
18. From the aforesaid dicta of the Hon'ble National Commission, it flows that it is for the Opposite Party to prove that the flat purchased was for commercial purpose, by way of some documentary proof and a bald statement is not sufficient to raise adverse inference against the Complainant. It is a well-established principle of evidence that suspicion cannot take place of proof, which is also applicable to the present case. Consequently, the contention of the Opposite Party that the complainant is not a consumer since the flat has been taken for investment purposes holds no ground for want of proper, admissible evidence.
TIME-ESSENCE OF CONTRACT OR NOT?
19. The Opposite Party has further contended that mere delay in handing over the possession of the flat cannot be a ground to repudiate the contract in its entirety since in construction cases, time is not the essence of the contract. In support of its contention, the Opposite Party has placed reliance on M/S Hind Construction Contractors vs. State of Maharashtra reported at AIR 1979 SC 720.
20. The issue as to whether time is the essence of contract or not is no more res integra and has been settled by the Hon'ble National Commission in CC-988/2016 titled Mayur Saraf vs. Raheja Developers Ltd. decided on 15.02.2019, wherein, the Hon'ble National Commission, taking into consideration the dicta of the Hon'ble Apex Court in M/S Hind Construction Contractors (supra) has held as under:
"6. It is next contended by the learned counsel for the opposite party that time was not the essence of the construction and in the event of delay the purchaser is entitled to the agreed CC 522/2017 Page 8 of 19 compensation as stipulated in Clause 4.2 of the agreement but he cannot get out of the project and seek refund of the amount paid by him to the developer. I however find no merit in this contention as well. The question as to whether the time is essence of the contract in such cases or no, came up for consideration of this Commission in CC/315/2014 Pradeep Narula & Anr. Vs. M/s. Granite Gate Properties Pvt. Ltd. & Anr. Decided on 23.8.2016, and the following view was taken:
"10. Relying upon the decision of the Hon'ble Supreme Court in Smt. Chand Rani Vs. Smt. Kamal Rani, Civil Appeal No. 3377 of 1979, it was contended by the learned counsel for the opposite party that time is not the essence of the contract in a transaction for the sale of an immovable property. In Chand Rani (supra), the Hon'ble Supreme Court inter-alia observed as under:
It is a well-accepted principle that in the case of sale of immovable property, time is never regarded as the essence of the contract. In fact, there is presumption against time being the essence of the contract. This principle is not in any way different from that obtainable in England. Under the law of equity which governs the rights of the parties in the case of specific performance of contract to sell real estate, law looks not at the letter but at the substance of the agreement. It is not merely because of specification of time at or before which the thing to be done under the contract is promised to be done and default in compliance therewith, that the other party may avoid the contract. Such an option arises only if it is intended by the parties that time is of the essence of the contract. Intention to make time of the essence, if expressed in writing, must be in language which is unmistakable: it may also be inferred from the nature of the property agreed to be sold, conduct of the parties and the surrounding circumstances at or before the contract. Specific performance of a contract will ordinarily be granted, notwithstanding default in carrying out the contract within the specified period, if having regard to the express stipulations of the parties, nature of the property and the surrounding circumstances, it is not inequitable to grant the relief. If the contract relates to sale of immovable property, it would normally be presumed that time was not of the essence of the contract. Mere incorporation in the written agreement of a clause imposing penalty in case of default does not by itself evidence an intention to make time of the essence.CC 522/2017 Page 9 of 19
In Hind Construction Contractors Vs. State of Maharashtra MANU/SC/0031/1979 : (1979) 2 SCR 1147, the Hon'ble Supreme Court quoted the following extract from Halsbury's Laws of England (para 1179, Vol-IV):
Other provisions of the contract may, on the construction of the contract, exclude an inference that the completion of the works by a particular date is fundamental, time is not of the essence where a sum is payable for each week that the work remains incomplete after the date fixed, nor where the parties contemplate a postponement of completion.
The aforesaid contention, in my view, does not really rise for consideration in a case where the flat buyer is seeking possession of the flat booked by him and does not insist upon refund of the sale consideration paid by him, with or without compensation. Moreover, the decision in Chand Rani (supra) was rendered in the context of a suit for specific performance of an agreement to sell the first floor of an existing house, whereas the decision in the Hind Construction (supra) was rendered in the context of a Government contract. In neither of these cases, the Hon'ble Supreme Court was called upon to decide as to whether an unjustified and explained delay on the part of the builder/service provider in construction of a residential flat booked by a person seeking to have a shelter over his head amount to a deficiency in the service rendered by him to the consumer, or not. 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 does not deliver upon his 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 was on account on circumstances beyond his control, this would constitute deficiency on the part of the builder/service provider in rendering services to the consumer. If I 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, I am unable to accept the contention CC 522/2017 Page 10 of 19 advanced by the learned counsel for the opposite party. In my view, wherever the builder commits a particular date or time frame for completion of the construction and offering possession to the buyer, he must necessarily honour the commitment made by him, though a minor delay may not constitute deficiency in the service rendered by him to the buyer. Of course, if the builder is able to how that the delay in completion of the construction and offering possession to the buyer is attributable wholly to the circumstances beyond his control, that may not be a case of deficiency in the services rendered to the consumer."
7. A reasonable delay in a large project of this nature can be very well understood. However in the present case, the delay cannot be said to be the usual delay which can be allowed even in large projects. In the presence case, the delay is more than three years AS the last date for delivery of possession, inclusive of the grace period expired on 05.1.2016 whereas construction is not complete even today. Considering such an abnormal delay on the part of the developer, the complainant, in my view, cannot be compelled to wait indefinitely for the possession of the allotted flat. This is more so, when the opposite party is not even offering the possession of the allotted unit to the complainant in a time bound manner, after obtaining the requisite occupancy certificate. Though, the learned counsel for the opposite party submits that the period subsequent to institution of the complaint would not be relevant, I find no merit in the contention since the aforesaid delay would be a relevant circumstance for the purpose of enabling this Commission to decide whether to direct refund or to ask the complainant to wait for the possession of the allotted flat."
21. Returning to the facts of the present case, the perusal of Clause No. 1 under the head "Possession of the Unit" of the Allotment Letter reflects that the Opposite Party undertook to deliver the possession of the flat by December, 2014. However, the period was extendable up to 6 months due to unforeseen circumstances. Once there is an express undertaking by the Opposite Party to deliver the possession within a stipulated time period, it cannot, at a later stage deny its liability and plead that the time period mentioned in the allotment letter was not actually the essence of the contract. The Complainant CC 522/2017 Page 11 of 19 had made certain assessments on the basis of the promise made by the Opposite Party, to own a flat with the Opposite Party, having deposited her hard earned money, in the near future, which the Opposite Party failed to consider.
22. Consequently, in terms of the pronouncement of the Hon'ble National Commission in Mayur Saraf (supra) and taking into consideration the facts of the present case, we hold that time was of the essence of the contract in the present case and the Opposite Party was duty bound to handover the possession by June, 2015 (inclusive of the extended time period), which it failed to do. Hence, the complainant is not bound to wait indefinitely for the possession of the flat and was well within her rights to claim refund of the amount deposited by her with the Opposite Party.
CAUSE OF DELAY- FARMERS PROTEST AND STAY BY NATIONAL GREEN TRIBUNAL
23. The Opposite Party, in order to explain its failure to handover the possession of the flat within the stipulated time period has further contended that the construction of the building was majorly delayed due to the farmers agitation, whose land was acquired by the Authority, which issue was finally resolved by the Hon'ble Apex Court in Savitri Devi vs. State of U.P. reported at (2015) 7 SCC 21. In addition to the farmer's protest, the Opposite Party has further pleaded that the delay was also caused since the Hon'ble National Green Tribunal had passed restraint orders regarding Ground Water Extraction for construction purposes and the majority of the builders were now to rely on Noida/Greater Noida Authority for supply of water for construction.
CC 522/2017 Page 12 of 1924. The Hon'ble National Commission in plethora of judgments have discussed the aforesaid two issues and have held that they do not hold good ground. We tend to rely on Amit Tyagi vs. Unitech Hi- tech Developers Ltd. and Ors. reported at IV (2017) CPJ 64 (NC), wherein the Hon'ble National Commission has observed as under:
"8. The issue regarding plea of Force Majeure is no more res integra. The aforesaid plea has been considered in earlier judgments of this Commission in the matter of R.K. Jain Vs. Unitech Hi-Tech Developers in CC No. 189 of 2009 decided on 30.05.2017 (relating to the same project) as also in CC No. 1272 of 2015 in Belu Syal Vs. Unitech Hi-Tech Developers Ltd. & Anr. Decided on 31.01.2017. The relevant observations of the Commission in the matter of Belu Syal (supra) are reproduced as under:
"So far as plea of the stay order issued by Hon'ble High Court of Allahabad dated 21.10.2011, it may be noted that this plea was considered and rejected by the Coordinate Bench in CC No. 930 of 2015 Aakash Chopra Vs. Unitech Acacia Projects Pvt. Ltd. and Ors. decided on 20.06.2016. Relevant observations of the Coordinate Bench are as under:
"As far as the judgment of Allahabad High Court dated 21.10.2011 is concerned, learned counsel for the complainant submits that the said judgment did not pertain to the land in question. He has produced on record a copy of the said judgment and submits that it relates only to the land allotted in Sector 91, 135 and
136. The learned counsel for the opposite party is unable to show to us how the aforesaid order dated 21.10.2011 pertains to the land on which the project, 'The Burgundy' was to be developed by it. Moreover, our attention has not been drawn to any direction of the High Court restraining the opposite party from carrying out development on the land in question. Hence, reliance CC 522/2017 Page 13 of 19 upon the aforesaid order dated 21.10.2011 in Writ Petition No. 37443 of 2011 is wholly misplaced.
We find no reason to disagree with the judgment of the Coordinate Bench. Hence, the reliance placed by the opposite party on order of Hon'ble High Court dated 21.10.2011 in writ petition No. 37443 of 2011 is wholly misplaced.
The opposite party in support of Force Majeure has relied upon order dated 11.06.2013 passed by National Green Tribunal in application No. 59 of 2011 Vikram Singh Vs. Union of India and Ors. which prohibits extraction of ground water for the purpose of construction activities till the next date of hearing before the said Tribunal. The stay order by the National Green Tribunal in our view can be no justification for non completion of project and delivery of possession of the apartment to the complainant. Similar plea came to be considered and rejected by the Coordinate Bench of this Commission in the matter of Cap. Gurtaj Singh Sahni & Anr. Vs. The Manager, Unitech Ltd. & Anr. in CC No. 603 of 2014 decided on 02.05.2016. Relevant observations of the Coordinate Bench are reproduced as under:
"As far as the prohibition on use of underground water in construction is concerned, the learned counsel for the complainant has drawn my attention to the order dated 21.08.2012 passed by a Divisional Bench of Punjab & Haryana High Court in Civil Writ Petition No. 20032 of 2008 wherein the High Court noted that the public notice issued under Section 5(3) of the Environment Protection Act, 1986 was published in the newspaper on 26.12.2000. It further shows that the said notice had imposed a complete ban upon the use of underground water in the construction without prior approval of the competent authority. It was noted by the High Court that despite publication of the aforesaid notice, the builders continued CC 522/2017 Page 14 of 19 to use underground water for construction purposes. If there was a complete ban on use of underground water for construction and the said prohibition was notified on 26.12.2000, the opposite party must have taken into account, the impact of the said prohibition while entering into Buyers Agreements with the complainants. Therefore, it is not open to the opposite party to rely upon the said prohibition in order to justify the delay in construction of the villas sold to the complainants. The opposite party knew at the time of entering into agreements with the complainants that it will not be able to use underground water for construction of the villas and therefore, will have to make alternative arrangements from authorized sources for making the water available for the said construction. Therefore, the aforesaid prohibition on use of the underground water for construction purpose does not justify the delay in completion of the construction. In any case, no material has been placed by the opposite party on record to show that efforts were made by it during the relevant period to procure water from alternative sources but it was unable to obtain the water from the said sources. More importantly, in the Buyers Agreement executed between the parties, it was not disclosed to the buyers that since no underground water can be used for construction purpose, the developer will have to arrange water from alternative sources and in case it is not able to arrange water, the construction would be delayed and in that case, it will not be held responsible for the delay in completion of the construction."
Even in the instant case, the written statement of the opposite party does not record any effort made by the opposite party to obtain water for construction from alternative sources. Thus, in our view, the reference to the direction of National Green Tribunal in only an excuse to justify the inordinate delay on the part of the opposite party CC 522/2017 Page 15 of 19 to complete the project and failure of delivery of possession to the complainant.
xxxx xxxx xxxx xxxx In view of the discussion above, it is evident that opposite party has failed to prove its defence of Force Majeure. Undisputedly, the opposite party has failed to deliver possession of subject apartment to the complainant even after expiry of more than two years from the stipulated date of delivery of possession without any reasonable excuse. Thus, we are the view that opposite party is guilty of deficiency in service. In our aforesaid view, we are supported by judgments of Coordinate Bench in CC No. 930 of 2015 Aakash Chopra Vs. Unitech Acacia Projects Ltd. & Ors. and Cc. No. 367 of 2015 Richa Aggarwal & Anr. Vs. Unitech Hi-Tech Developers Limited passed in favour of the complainants in respect of same development project."
9. We do not find any reason to disagree with the reasoning and view taken in the above noted case. Thus, we are of the view that opposite party is guilty of deficiency in service as they have failed to deliver possession of the allotted apartment to the complainant even after expiry of more than four years from the stipulated period of delivery of possession."
25. In the present case, the Opposite Party has not brought forth any evidence to prove that the construction was effected due to the farmer's agitation. The judgment of the Hon'ble National Commission is crystal clear to the point that the farmer's agitation impacted the construction in sector 91,131 and 135 whereas the present project is situated in sector-74, Noida. Moreover, the contention of the Opposite Party with respect to the order of the National Green Tribunal has already been decided by the Hon'ble National Commission and does not calls for this commission's CC 522/2017 Page 16 of 19 comment, as is evident from the dicta reproduced above. Hence, we are of the view that the said grounds are only an excuse to justify the inordinate delay caused by the Opposite Party due to its own default.
26. Consequently, we hold that neither the Farmers' protest nor the Hon'ble National Green Tribunals' order were the reason for the delay in construction of the flat which is the subject matter of the present consumer complaint.
DEFICIENCY OF SERVICE
27. Having discussed the maintainability of the present complaint, the question left to adjudicate is whether the Opposite Party is actually deficient in providing its services to the complainant or not. The expression Deficiency of Service has been dealt with by the Hon'ble Apex Court in Arifur Rahman Khan and Ors. vs. DLF Southern Homes Pvt. Ltd. and Ors. reported at 2020 (3) RCR (Civil) 544, wherein it has been held as follows:
"24. A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service. The expression 'service' in Section 2(1) (o) means a service of any description which is made available to potential users including the provision of facilities in connection with (among other things) housing construction. Under Section 14(1)(e), the jurisdiction of the consumer forum extends to directing the opposite party inter alia to remove the deficiency in the service in question. Intrinsic to the jurisdiction which has been conferred to direct the removal of a deficiency in service is the provision of compensation as a measure of restitution to CC 522/2017 Page 17 of 19 a flat buyer for the delay which has been occasioned by the developer beyond the period within which possession was to be handed over to the purchaser. Flat purchasers suffer agony and harassment, as a result of the default of the developer. Flat purchasers make legitimate assessments in regard to the future course of their lives based on the flat which has been purchased being available for use and occupation. These legitimate expectations are belied when the developer as in the present case is guilty of a delay of years in the fulfilment of a contractual obligation.
28. Returning to the facts of the present case, the Opposite Party was duty bound to hand over the possession of the said Flat to the complainant by June, 2015 (inclusive of the extended period). It is clear that the possession of the flat in question has still not been handed over by the Opposite Party to the complainant. Hence, the failure of the Opposite Party to handover the possession of the flat within the stipulated time period constitutes Deficiency of Service within the ambit of the Consumer Protection Act, 1986.
29. Keeping in view the facts of the present, we allow the following reliefs as prayed for by the Complainant:
I. We direct the Opposite Party to pay an amount of Rs. 27,44,253/- along with interest as per the following arrangement:
A. An interest @ 6% calculated from the date of each instalment/payment received by the Opposite Party till 05.04.2021 (being the date of the present judgment);
B. The rate of interest payable as per the aforesaid clause (A) is subject to the condition that the Opposite Party pays the entire amount on or before 30.06.2021;
CC 522/2017 Page 18 of 19C. In case the Opposite Party fails to refund the amount as per the aforesaid clause (A) on or before 30.06.2021, the entire amount is to be refunded with an interest @ 10% p.a. calculated from the date of each instalment/payment received by the Opposite Party till the actual realization of the amount.
II. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Party is also directed to pay to the complainant A. A sum of Rs. 2,00,000/- as cost for mental agony and harassment;
B. And the litigation cost to the extent of Rs. 50,000/-.
30. Applications pending, if any, stands disposed of in terms of the aforesaid judgment.
31. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
32. File be consigned to record room along with a copy of this Judgment.
(DR. JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (ANIL SRIVASTAVA) MEMBER Pronounced On:
05.04.2021 CC 522/2017 Page 19 of 19