National Consumer Disputes Redressal
Poonam Ladia vs M/S. Jaiprakash Associates Limited on 25 September, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 106 OF 2016 1. VINOD KUMAR LADIA SHYAM KUNJ, MODERN COMPLEX, PULLA BHUWANA ROAD, N.H. 8, UDAIPUR-313004 RAJASTHAN ...........Complainant(s) Versus 1. M/S. JAIPRAKASH ASSOCIATES LIMITED JAYPEE GREENS, SECTOR-128-B, NOIDA-201304 U.P. ...........Opp.Party(s) CONSUMER CASE NO. 107 OF 2016 1. POONAM LADIA SHYAM KUNJ, MODERN COMPLEX, PULLA BHUWANA ROAD, N.H.8, UDAIPUR-313004, RAJASTHAN ...........Complainant(s) Versus 1. M/S. JAIPRAKASH ASSOCIATES LIMITED REGD. OFFICE: JAYPEE GREENS, SECTOR NO. 128-B, NOIDA-201304 UTTAR PRADESH ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE A. P. SAHI,PRESIDENT HON'BLE DR. SADHNA SHANKER,MEMBER
FOR THE COMPLAINANT : FOR THE COMPLAINANTS : MR. APURV SINGHVI, ADVOCATE
MR. AASHISH ARORA, ADVOCATE FOR THE OPP. PARTY : FOR THE OPPOSITE PARTY : MR. TENZEN TASHI NEGI, ADVOCATE
MR. SARTHAK GARG, ADVOCATE
Dated : 25 September 2023 ORDER
A.P. SAHI, J, PRESIDENT
1.These are two consumer complaints where the complainants have come up contending that the opposite party has failed to deliver possession of the premises in question in the project developed by the opposite party known as "Knights Court" at Jaypee Greens, Noida, U.P., in spite of a payment of Rs.1,10,47,424/- and Rs.1,10,45,586/- respectively for which the complainants had also taken loans from the HDFC Bank. The allotment letter dated 29.11.2010 promised possession approximately in 36 months, i.e. by 28.11.2013. The opposite party however informed the complainants on 06.09.2014 that the possession would be delivered by November, 2015. The letter admitting delay and promising payment of delay compensation is extracted hereunder:-
"You shall however be entitled to delay compensation for the delay beyond the scheduled period of delivery as per the provisions of Standard Terms and Conditions."
2. The complaints were filed on 01.02.2016 alleging deficiency in service/unfair trade practice and seeking delivery of possession together with damages and interest thereon.
3. A written statement was filed admitting allotment and the constructions being proceeded with but there were certain impediments on environmental issues that travelled up-to the National Green Tribunal as there was an injunction of granting completion certificate as a result whereof the flats could not be handed over. It is urged that the project has taken shape to a substantial extent but the complainants had joined hands in the proceedings before the Real Estate Regulatory Authority (RERA) and hence they would be bound by the orders passed in the said proceedings where a rehabilitation programme has been agreed to and such facts have been brought on record.
4. Learned counsel for the opposite party has vehemently contended that the project has been completed which is being denied by the complainants. It is further pointed out by the learned counsel for the opposite party that they have already applied for the occupancy certificate which has not been granted and as soon as the same is obtained and any dues which are there against the complainants are cleared, the possession will be handed over to the complainants. It is also submitted that in respect of other towers the occupancy certificate has been granted in the same project and there is every likelihood that the occupancy certificate would be granted in respect of this tower as well.
5. What has been vehemently argued by the learned counsel for the opposite party is that the judgment in the case of Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor 2022 SCC OnLine SC 416 and the judgment in the case of Imperia Structures Ltd. Vs. Anil Patni (2020) 10 SCC 783 were all decisions on section 18 of the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as the RERA Act) whereas in the present case the rehabilitation before the RERA has been considered in the light of sections 7, 8 and 34(a) of the RERA Act. It is vehemently argued that in the event of any conflict between the provisions of Consumer Protection Act, 1986 (hereinafter referred to as the 1986 Act) and the RERA Act, the rehabilitation which is based on an agreement and the order passed by the RERA would prevail.
6. To augment this argument, learned counsel for the opposite party has further invited the attention of the Court to the consent clause 11(h) of the order dated 29.01.2021 to urge that in view of the aforesaid proceedings before the RERA, the Consumer Forum cannot proceed to grant the reliefs for which an agreement has been reached into between the parties before the RERA.
7. To substantiate the submission, the learned counsel for the opposite party has invited the attention to the agreement dated 21.01.2021 entered into between the opposite party and the home buyers welfare association consisting of 160 buyers including the complainants in the same project where all details have been worked out including all disputes regarding any amount to be negotiated under the terms and conditions of the said agreement for the purpose of achieving the construction milestones as agreed to therein.
8. In order to buttress the said argument, learned counsel has further invited the attention of the Court to the order passed under section 8 read with sections 11 and 37 of the RERA Act dated 29.01.2021 in the said proceedings and to clause 11(h) of the said order which is extracted hereunder:-
"11. Therefore, with a view to facilitate the completion of the project in a time bound manner, to protect the interests of the allottees, the Authority, using the powers conferred upon it under section 8 of the RERA Act read with section 37 of the Act, other enabling provisions of the Act, the Rules and the Regulations made there under, and as per the principle laid down by the Hon'ble Bombay High Court in the Neelkamal Realtors and others vs the Union of India and the Others and in conformity with the Government order dated 26th June 2020 stipulating the guidelines to be followed in such matters does hereby authorize the promoter, with consent of AOA, to undertake the completion of the remaining development and the construction work of the project, subject to the following terms and conditions:
XXX XXX XXX h. The AOA and the Promoter should suitably settle the issue of delay penalties and charging of additional area (other than area as mentioned in builder buyer agreements) to be charged as per the builder buyer agreement at the time of possession after the balance development work of the project is completed and the occupancy certificate has been applied for along with all required/statutory certificates and NOCs. Any dispute between the AOA and the Promoter shall be amicably settled through the good offices of the project advisory and monitoring committee constituted by the Authority in this behalf."
9. It is submitted that the present complainants are members of the said welfare association and their names are shown in the list that was tendered in compliance of the rehabilitation order aforesaid at serial no. 136 and 137 which accompanies the letter dated 05.02.2021.
10. Learned counsel has further stressed upon the General Body Resolution that was passed by the said welfare association affirming the said negotiations and has filed on record the affidavit of the promoter in compliance of the said negotiations including the order dated 29.01.2021 to contend that both the parties have amicably proceeded before the RERA, hence the reliefs prayed for should not be granted.
11. Learned counsel for the opposite party has further invited the attention of the Court to the orders passed by the UP RERA dated 17.08.2022 whereby the promoter was authorised to complete the project by 31.05.2023 and it is urged that the project has now been completed within the timeline extended awaiting the occupancy certificate which is to be released shortly.
12. Learned counsel for the opposite party has further stated that this fact of awaiting the occupancy certificate was also noticed by the Apex Court in the appeals filed by the promoters in the case of Jaiprakash Associates Vs. Atulya Gupta [Civil Appeal Diary No(s). 15750/2023] and an interim order was granted for not taking any coercive steps against the promoter appellant therein.
13. To supplement that the occupancy certificate has been applied for, learned counsel for the opposite party has invited the attention to the extract of the registration form which has been filed at page 15 in the brief note of arguments filed on their behalf mentioning the plot/house no. KGT 03 to 08.
14. Learned counsel for the opposite party has then advanced his submissions on the basis of judgments of the Apex Court vis-à-vis other statutes to contend that the RERA Act shall prevail. For this, reliance has been placed on the judgment in the case K. Ramanathan Vs. State of Tamil Nadu and Ors., (1985) 2 SCC 11 to contend that the power of RERA can still be exercised and will have a binding effect on the parties even if it is assumed that the Consumer Forum has jurisdiction to proceed with the issues raised herein including any payment of compensation. It is urged that any monetary claim on account of delayed possession would also be governed by the rehabilitation clause where, in terms of the RERA order dated 29.01.2021, this dispute has also to be resolved according to the mechanism provided therein and which has been consented to by the welfare association which includes the complainants. He has then invited the attention of the Court that in a dispute relating to the conflict between the RERA and the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI), 2002 the Apex Court in the case of Union Bank of India Vs. Rajasthan Real Estae Regulatory Authority and Others 2022 SCC OnLine SC 1885 has held that the provisions of the RERA Act will prevail.
15. Apart from all the aforesaid arguments, learned counsel for the opposite party has urged that the complainants cannot be allowed to probate and approbate and they are estopped from seeking any relief of compensation or any other monetary benefits and the possession which they are entitled to will be governed by the order of the RERA referred to hereinabove. He has also gone to the extent of contending that the complainants have waived their right to seek any redressal through this Forum or any adjudicatory forum by virtue of the proceedings that have a final shape under the RERA proceedings that have been detailed hereinabove.
16. Reiterating the submissions, the learned counsel for the opposite party has again urged that the judgments cited on behalf of the complainants in the cases of Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor (Supra) and Imperia Structures Ltd. Vs. Anil Patni (Supra) would not apply as they were in relation to the provisions under the 1986 Act vis-à-vis section 18 of the RERA Act. This clearly distinguishes the said judgments keeping in view the facts of the present case where the order under section 8 has intervened during the pendency of this complaint with the consent of the parties and hence the ratio of the said judgments would not apply herein.
17. In order to appreciate the controversy, it would be appropriate to extract the provisions of sections 7, 8 and 34(a) of the RERA Act, which read as under:
"7. Revocation of Registration.-(1) The Authority may, on receipt of a complaint or suo motu in this behalf or on the recommendation of the competent authority, revoke the registration granted under section 5, after being satisfied that--
(a) the promoter makes default in doing anything required by or under this Act or the rules or the regulations made thereunder;
(b) the promoter violates any of the terms or conditions of the approval given by the competent authority;
(c) the promoter is involved in any kind of unfair practice or irregularities.
Explanation. -- For the purposes of this clause, the term "unfair practice means" a practice which, for the purpose of promoting the sale or development of any real estate project adopts any unfair method or unfair or deceptive practice including any of the following practices, namely:--
(A) the practice of making any statement, whether in writing or by visible representation which,--
(i) falsely represents that the services are of a particular standard or grade;
(ii) represents that the promoter has approval or affiliation which such promoter does not have;
(iii) makes a false or misleading representation concerning the services;
(B) the promoter permits the publication of any advertisement or prospectus whether in any newspaper or otherwise of services that are not intended to be offered;
(d) the promoter indulges in any fraudulent practices.
(2) The registration granted to the promoter under section 5 shall not be revoked unless the Authority has given to the promoter not less than thirty days notice, in writing, stating the grounds on which it is proposed to revoke the registration, and has considered any cause shown by the promoter within the period of that notice against the proposed revocation.
(3) The Authority may, instead of revoking the registration under sub-section (1), permit it to remain in force subject to such further terms and conditions as it thinks fit to impose in the interest of the allottees, and any such terms and conditions so imposed shall be binding upon the promoter.
(4) The Authority, upon the revocation of the registration,--
shall debar the promoter from accessing its website in relation to that project and specify his name in the list of defaulters and display his photograph on its website and also inform the other Real Estate Regulatory Authority in other States and Union territories about such revocation or registration;
shall facilitate the remaining development works to be carried out in accordance with the provisions of section 8;
shall direct the bank holding the project bank account, specified under sub-clause (D) of clause (l) of sub-section (2) of section 4, to freeze the account, and thereafter take such further necessary actions, including consequent de-freezing of the said account, towards facilitating the remaining development works in accordance with the provisions of section 8;
may, to protect the interest of allottees or in the public interest, issue such directions as it may deem necessary.
8. Obligation of Authority consequent upon lapse of or on revocation of registration.-Upon lapse of the registration or on revocation of the registration under this Act, the Authority, may consult the appropriate Government to take such action as it may deem fit including the carrying out of the remaining development works by competent authority or by the association of allottees or in any other manner, as may be determined by the Authority:
Provided that no direction, decision or order of the Authority under this section shall take effect until the expiry of the period of appeal provided under the provisions of this Act:
Provided further that in case of revocation of registration of a project under this Act, the association of allottees shall have the first right of refusal for carrying out of the remaining development works.
34. Functions of Authority. - The functions of the Authority shall include--
(a) to register and regulate real estate projects and real estate agents registered under this Act"
18. The contention is that in view of the aforesaid provisions, the order passed on 29.01.2021 following the agreement dated 21.01.2021 would bind the parties and would estopp them from approaching this Forum. Apart from this, the contention is also waiver on the part of the complainants and lastly the said provisions would have an overriding effect so as to exclude the jurisdiction of this Forum to adjudicate on a dispute arising out of a rehabilitation programme undertaken on consent under section 8 of the RERA Act. The judgments in Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor (Supra) and Imperia Structures Ltd. Vs. Anil Patni (Supra) therefore would not apply as the ratio of the said judgments rests on an interpretation of section 18 of the RERA Act.
19. To understand this interplay and the argument of the opposite party it would be appropriate to refer to the provisions aforesaid. In our considered opinion, even though section 8 of the RERA Act proceeds to authorise the RERA to pass orders regarding rehabilitation and settlement of disputes in terms thereof, yet it does not preclude the jurisdiction of this Forum to award delayed compensation keeping in view the provisions of section 3 of the 1986 Act, which is extracted herein:
"3. Act not in derogation of any other law. - The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force."
20. This is for the reason that this Forum has the jurisdiction and authority to opine about any deficiency in service or unfair trade practice and such a jurisdiction does not get eclipsed by virtue of any exercise undertaken under section 8 of the RERA Act. Deficiency in service and unfair trade practice are issues within the jurisdiction of the Consumer Protection Act. The RERA forum provides for revocation of registration followed by facilitating remaining development works as per 7(4)(b) in accordance with section 8 by a competent authority or by the association of allottees or in any other manner as may be determined by the authority. This is in order to ensure execution of the project for completing development work. Section 8 therefore is not to oust the jurisdiction or authority of adjudicating deficiency in service or unfair trade practice that can be raised before the Consumer Forum. To facilitate possession by locating deficiency or unfairness of a builder and to award delay compensation for the same is under the scope of the Consumer Protection Act and is not barred, impeded or obscured by the RERA Act. The contention that it has an overriding effect in view of section 79 was therefore, after careful analysis of the object and reasons of the Consumer Protection Act, suitably harmonized with section 18 of the RERA Act in the cases of Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor (Supra) and Imperia Structures Ltd. Vs. Anil Patni (Supra) to demonstrate that there is no conflict as both are designed to facilitate the laudable object of preventing exploitation of hapless home-buyers from defaulting builders. The Acts are thus supplementary to each other as they are legislatively designed to safeguard the interests of consumers. The remedy under one beneficial statute does not and cannot preclude or contain the remedy claimed under the other. The ratio of the decision in paras 22, 23 and 26 in Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor (Supra) is worth quoting in support of our conclusions:-
"22. From the two decisions referred to by us, it is crystal clear that the Consumer Protection Act and the RERA Act neither exclude nor contradict each other. In fact, this Court has held that they are concurrent remedies operating independently and without primacy. When Statutes provisioning judicial remedies fall for construction, the choice of the interpretative outcomes should also depend on the constitutional duty to create effective judicial remedies in furtherance of access to justice. A meaningful interpretation that effectuates access to justice is a constitutional imperative and it is this duty that must inform the interpretative criterion.
23. When Statutes provide more than one judicial fora for effectuating a right or to enforce a duty-obligation, it is a feature of remedial choices offered by the State for an effective access to justice. Therefore, while interpreting statutes provisioning plurality of remedies, it is necessary for Courts to harmonise the provisions in a constructive manner. It is beneficial to juxtapose the preambular objects of the Consumer Protection Act and the RERA Act to appreciate the commonality of the objects that both these statutes are to sub-serve:
The Consumer Protection Act, 1986 The Real Estate (Regulation and Development) Act, 2016 An Act to provide for the better protection of the interests of consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlement of consumers' disputes and for matter connected herewith.
An Act to establish the Real Estate Regulatory Authority for regulation and promotion of the real estate sector and to ensure sale of plot, apartment or building, as the case may be, or sale of real estate project, in an efficient and transparent manner and to protect the interest of consumers in the real estate sector and to establish an adjudicating mechanism for speedy dispute redressal and also to establish the Appellate Tribunal to hear appeals from the decisions, directions or orders of the Real Estate Regulatory Authority and the adjudicating officer and for matters connected therewith or incidental thereto.
26. A consumer invoking the jurisdiction of the Commission can seek such reliefs as he/she considers appropriate. A consumer can pray for refund of the money with interest and compensation. The consumer could also ask for possession of the apartment with compensation. The consumer can also make a prayer for both in the alternative. If a consumer prays for refund of the amount, without an alternative prayer, the Commission will recognize such a right and grant it, of course subject to the merits of the case. If a consumer seeks alternative reliefs, the Commission will consider the matter in the facts and circumstances of the case and will pass appropriate orders as justice demands. This position is similar to the mandate under Section 18 of the RERA Act14 with respect to which the Court clarified the position in Para 25 of Imperia case referred to herein above."
21. What is worth mentioning is that the agreement dated 21.01.2021 on which heavy reliance is placed by the opposite party itself admits of a delay of more than 7 years in the opening clause of the agreement which extracted hereunder:
"WHEREAS the Project was launched around September 2010 and the possession of the homes was to be delivered around June 2013 to the then buyers and is consequently delayed for more than 7 years"
22. Again the very same agreement refers in clause 8 that the home buyers would automatically become eligible for delay compensation and adjustments would be made without prejudice to the legal rights of the home buyers which are available under law de-hors the contractual provisions. Further clause 18 refers to the consequences of default in the event of failure of completion of construction and that the agreement is without prejudice to any legal rights that the parties may have. Clause 21 specifies about the enforcement of the RERA order as per law or as mutually settled between the parties. A perusal of these provisions does not create any estoppel or waiver against the complainants to seek remedy under the 1986 Act before this Forum.
23. Coming to the order passed by the RERA, clause 11 of the said order entails the timeline for the performance by the Project Advisory and Monitoring Committee. Learned counsel for the opposite party has stressed on clause (h) of the said order to contend that any such dispute shall be amicably settled through the good offices of the Committee and therefore the adjudicatory jurisdiction of this Forum is excluded. We do not find any such recital in the said order or the clause of excluding this jurisdiction.
24. The argument is that the RERA Act will have overriding effect for which comparison is sought to be drawn with such issues regarding which pronouncements have been made by comparing other enactments like the Essential Commodities Act and the SARFAESI Act with the RERA. The said decisions which have been cited by the learned counsel for the opposite party are not decisions on a comparative study of the provisions of the 1986 Act. Secondly, the interpretation given therein would not be applicable in the present controversy as section 3 of the 1986 Act very eloquently recites that this Act shall not be in derogation of any other provisions.
25. We therefore find it difficult to accept the argument of the counsel for the opposite party that inferentially section 8 of the RERA Act creates a bar or an implied bar for these proceedings to go on for granting relief on findings of unfair trade practice and deficiency of service.
26. Apart from this even if these are proceedings on rehabilitation, the present complaint seeks possession of the property and which has been insisted by the learned counsel for the complainants consistently through his arguments. This relief of possession claimed through this complaint is not in derogation to or contrary to the scope of the order passed by the RERA on 29.01.2021. The direction of completing the constructions and handing over the possession is what is wanted here and which in no way either impedes the order of the RERA or is in conflict with as the ultimate object is handing over possession to the flat buyers, nor does it transgress upon any of the other terms of rehabilitation as envisaged in the said order. It does not condone the delay which has occurred in handing over possession, rather it confirms the delay.
27. Learned counsel for the opposite party insisted that any amount of claim of compensation would also have to be decided by the RERA. Suffice it to say that any amount of compensation for unfair trade practice or deficiency in service is within the jurisdiction of this Forum and therefore the RERA order will not have any diluting or subsidizing effect on the exercise of jurisdiction of this Forum for award of any such amount. However, this issue is only consequential as the main grievance of the complainants is of seeking possession of the flat.
28. In our considered opinion, applying the above principles, any orders passed in terms of section 8 for rehabilitation including possession cannot bar a complaint filed under the 1986 Act. Even if the complainants have a concurrent remedy, the proceedings of seeking possession before the Consumer Forum is not excluded and we find support from the ratio of the decision in the case of Pioneer Land Urban Infrastructure Vs. Union of India (2019) 8 SCC 416 and another Three Judges decision in the case of Ireo Grace Realtech Ltd. Vs. Abhishek Khanna (2021) 3 SCC 241 that has been affirmed in para-26 of the Three Judges decision in the case of Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor (Supra) quoted above.
29. From the facts that have been brought on record, the cause of inordinate delay in handing over the possession continues which is a clear cut deficiency on the part of the opposite party. It is undisputed that the occupancy certificate has not been delivered till today which the opposite party contends is likely to be issued as the project has been completed. If that is so, then it is all the more imminent that the relief of possession should be granted to the complainants coupled with the award of compensation that has resulted on account of the delay in possession. The evidence for admitted delay is not far to count. The first is the response of the opposite party dated 06.09.2014 already quoted above. The period of 36 months came to an end in 2013. A second promise was made through the said letter for offering possession by November, 2015. The environmental issues regarding New Okhla Bird Sanctuary were stated to have been resolved through the notification issued by the Government of India dated 19.08.2015. Yet the project had not proceeded further. The present complaints were filed and remained pending with no progress reported. Then came the approach by the Allottees Association before the RERA Authority and the promoter opposite party where the agreement dated 21.01.2021 recorded almost a 7 year delay that has been quoted hereinabove. Acting on the same, the Authority passed orders on 29.01.2021 also noted above, where in para-3 it was observed and recorded as follows:
"3. The Promoter has failed to complete the Project, within the specified period i.e. 28th December 2020. The project was got inspected by the Authority in September 2020 and as per the inspection report overall physical progress of the project is about 60 percent. Further, this project has been stalled since the year 2014. Under the circumstances stated above, the promoter approached the Authority for guidance and direction to complete the project. None of the units have been delivered to the allottees as development work of the Project has not been completed."
30. The occupancy certificate not available till today, the question of offering possession still remains on hold. Thus not only has the delay in the past been admitted but continues to extend in the near future till the occupancy certificate, as stated to have been applied, is ultimately issued. As noted above, the delay has been admitted by the opposite party as per the agreement dated 21.01.2021 and the order dated 29.01.2021 referred to hereinabove.
31. It is in this background that the complainants are entitled to the possession of the premises namely Units No. KGT 7/1502 (3 BHK) and KGT 7/1501 (3 BHK), both situate at Knight Court, 15th Floor, having super area 191.38 sq. meters each, within a period of three months from today, or else the complainants will be entitled to contest for such other reliefs before this Forum or any other competent forum for such remedies as may be available in law.
32. Apart from this, since the deficiency in service by the opposite party on account of the delay in possession has been established and continues, the terms of payment of compensation and its duration have to be analysed. For this we find that the letter dated 06.09.2014 recites "You shall however be entitled to delay compensation for the delay beyond the scheduled period of delivery as per the provisions of Standard Terms and Conditions". The standard terms and conditions are contained in clause 7.2 as stated in para-14 of the written statement. The provisional allotment is appended as R-1 to the reply enclosing therewith the standard terms and conditions. Clause 7.2 is extracted hereunder:
"7.2 Nothing contained herein shall be construed to give rise to any right to a claim by way of compensation/damages/loss of profit or consequential losses against the Company on account of delay in handing over possession for any of the aforesaid conditions beyond the control of the Company. If, however, the Company fails to deliver possession of the said premises within the stipulated period as mentioned here in above, and within the further grace period of 90 (ninety) days thereafter, the Applicant shall be entitled to a discount in Consideration for delay thereafter @ Rs.10/- per sq. ft. (Rs.108/- per sq. mtr) per month for the Super Area of the Said Premises in case of Apartments/Houses and upto a maximum of Rs.150/- per sq. yard (Rs.180/- per sq.mtr) of plot area in case of Plots ("Rebate"). The time consumed by the occurrences of Force Majeure Events shall be excluded while computing the time delay for the delivery of possession of the Said Premises."
33. Such a term which offers Rs.10/- per sq. ft. per month as delay compensation has been deprecated in a number of judgments as being one-sided and too paltry a sum as compared to the realisation of 18% interest on outstanding amounts as is evident from clause 5.6 of the allotment. Apart from this, there are other bondages. Reference be had to the Apex Court judgment in the case of Wing Commander Arifur Rehman Khan and Aleya Sultana and Ors. Vs. DLF Southern Homes Pvt. Ltd. (2020) 16 SCC 512 and the judgment in the case of NBCC (India) Ltd. Vs. Shri Ram Trivedi (2021) 5 SCC 273 where such clauses have been held to be repositories of unfair trade practice. The said judgments have been approved in Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor (Supra) where the one-sided clause of delay compensation offered Rs.7.50 per sq. ft. per month. Reference was also made therein to the judgment in the case of Ireo Grace Realtech Ltd. Vs. Abhishek Khanna (Supra) wherein a similar clause was termed as unfair and one-sided.
34. In the instant cases, provisionally allotment was offered on 29.11.2010 and possession was to be delivered by 28.11.2013 (36 months) or latest under the 6 months extension clause by 28.05.2014. Instead the letter dated 06.09.2014 extended the limit unilaterally till November, 2015 which was also not honoured.
35. On the other hand, in both the complaints no. 106 and 107 of 2016, the payment plan, which was a construction linked plan, was for a sum of Rs.1,23,18,800/- each. As against this Vinod Kumar Ladia in Complaint No. 106 of 2016 has paid Rs.1,10,47,424/- whereas Poonam Ladia in Complaint No. 107 of 2016 has paid Rs.1,10,45,586/- which payments are not in dispute.
36. These amounts have been paid till before the filing of the complaints after taking loans from the HDFC Bank. They are approximately 95% of the payments that were made and possession as indicated above, after including the extended period, was to be handed over by 28.05.2014. As already held hereinabove, the proceedings before the RERA do not create any estoppel or waiver on the complainants so as to construe abandonment of claims on account of delayed possession.
37. We therefore hold that the payments made by the complainants as indicate above were retained and withheld unjustifiably beyond 28.05.2014 without delivering possession till date. This amounts to unfair trade practice as well as deficiency in service. Consequently we allow the claim and direct that the possession of flats provisionally allotted to the complainants shall be delivered complete in all respects as promised as soon as the Occupancy Certificate is issued and the complainants shall take delivery on payment of the balance of the sale price and other legitimate and lawful dues as per the allotment letter.
38. Regarding compensating the complainants for delayed possession, we provide that they shall be entitled to interest @ 9% on the entire amount paid w.e.f. 28.05.2014 till the date of actual and physical delivery of possession of their premises complete in all respects. In the event of any future default in spite of issuance of Occupancy Certificate the rate of interest shall stand enhanced to 12% per annum from the date of such issue..
39. Both the complaints stand disposed of in the above terms with Rs.25,000/- each as litigation costs.
.........................J A. P. SAHI PRESIDENT ............................................. DR. SADHNA SHANKER MEMBER