State Consumer Disputes Redressal Commission
Sh. Alok Garg vs Parsvnath Developers Ltd. on 9 March, 2021
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL COMMISSION
JUDGMENT RESERVED ON: 03.02.2021
JUDGMENT PRONOUNCED ON: 09.03.2021
COMPLAINT NO. 31/2016
IN THE MATTER OF
MR. ALOK GARG .......COMPLAINANT
VERSUS
PARSVNATH DEVELOPERS LTD. ......OPPOSITE PARTY
CORAM:
HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE SH. ANIL SRIVASTAVA, (MEMBER)
Present: Mr. SANJEEV MANGLA, Counsel for the COMPLAINANT
Mr. RAKESH BHARDWAJ along with Mr. T. P. Chauhan,
Counsel for the OPPOSITE PARTY.
PER: HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
[Via Video Conferencing]
1. The present complaint has been filed before this commission under Section 12 of the Consumer Protection Act, 1986 alleging deficiency of services and unfair trade practices by the opposite party, wherein the complainant have prayed as under:
a) Pass an order against the opposite party directing him to pay the amount of Rs. 26,31,433.50 (Rupees Twenty Six Lac Thirty One Thousand Four Hundred Thirty Three and Paisa CC 31/2016 Page 1 of 22 Fifty Only) as received by the Opposite party, with an annual compounding interest @ 12.33% (as charged by the lending institution on average basis), from the date of late deposit till the date of refund is made, which till date all together become a sum of Rs. 63,93,794.09/- ( Rupees Sixty Three Lac Ninety Thousand Seven Hundred Ninety Four and Nine Paisa only) Or Pass an order against the Opposite party directing him to pay the amount of Rs. 26,31,433.50 (Rupees Twenty Six Lac Thirty One Thousand Four Hundred Thirty Three and Paisa Fifty Only) as received by the Opposite party, with simple annual @ 24% (as stipulated in the contract), from the date of last deposit till the date of refund is made, which till date all together become a sum of Rs 74,53,661.55/- (Rupees Seventy Four Lac Fifty Three Thousand Six Hundred Sixty One and Fifty Five Paisa)
b) Pass an order against the opposite party directing him to pay the amount of Rs. 19,11,251/- (Rs. Nineteen Lac Eleven Thousand Two Hundred Fifty One Only) on account of increase in the value of the real estate and cost of construction, according to the notified circle rate i.e. @ 69% on the total cost of the flat.
c) Pass an order/decree against the opposite party directing him to pay the amount of Rs. 5,00,000/- (Rupee Five Lac only) as damages on account of mental trauma and hardship as suffered by the complainant on account of default, wrongful act by the opposite party.
d) Cost of Litigation be awarded in favour of the complainant and against the opposite party.
e) Any other relief or remedy which this Hon'ble Court may deem fit and proper may also be passed in favour of the plaintiff and against the Opposite party.
2. The facts of the present case are that on 17.03.2008, the complainant booked a flat in the Project titled "Parsvnath Preston" located at village Shahpur Turk, Tehsil & District Sonepat, Haryana of the CC 31/2016 Page 2 of 22 Opposite Party admeasuring 1265 Sq. Ft. for a total sale consideration of Rs. 27,69,930/-. The complainant was allotted Flat Bearing No. T6-701 in the said project. Thereafter, a Flat Buyer agreement was executed between the parties dated 15.04.2008. The Opposite Party was supposed to handover the possession of the flat within 36 months from the date of start of the foundation of the particular tower in which the flat is located, with a grace period of 6 months, subject to force majeure/events not in control of the Opposite Party.
3. The complainant opted for an EMI Conversion Scheme wherein payment was to be made as per the following arrangement :-
Plan "A" : EMI Conversion Scheme Percentage of Payable on Paid on Amount Paid Sale Consideration Payable 5% At the time 17.03.2008 Rs. 1,39,000/-
of Booking
10% Within 30 15.04.2008 Rs. 2,76,490/-
days of
Booking
80% Within 60 16.05.2008 Rs. 17,05,000/-
days of and Rs. 5,10,943/-
booking Totaling to
Rs. 22,15,943/-
5% At time of Due till date Rs. 27,69,930/-
offer of as the (Total Sale
possession possession Consideration) - Rs.
has not been 26,31,433/-
offered. (Amount Paid) =
Rs. 1,38,497/-
(Pending amount to
be paid)
4. Thereafter, a Tripartite Agreement was entered into between the complainant, the Opposite Party and Dewan Housing Finance Corporation limited (hereinafter referred to as "DHFL") dated 16.05.2008 whereby, a home loan was sanctioned by DHFL in favour CC 31/2016 Page 3 of 22 of the complainant, for an amount of Rs. 17,05,000/-. On the same date, i.e. 16.05.2008, the Complainant and the Opposite Party entered into an agreement wherein the Complainant was to release the entire amount that the Complainant has received from DHFL, in favour of the Opposite Party. Vide the same agreement, the Opposite Party had agreed to reimburse the Complainant, the amount of the EMI Payable by the complainant to the DHFL calculated on 20 years loan at current floating rate of interest till the offer of possession of the flat to the Complainant. In lieu of the same, the amount received by the Complainant from DHFL was further paid to the Opposite Party.
5. The payment receipts attached with the complaint reflect that the Complainant had made payments to the extent for Rs. 26,31,433/- by 16.05.2008 and only an amount of Rs. 1,38,497/- was due which was to be paid at the time of offering possession by the Opposite Party.
However, as per the complainant, the foundation of the tower has still not been laid and there exists no scope of determining the date on which the construction of the flat in question will be completed and the possession of the same would be handed over to the Complainant.
6. Aggrieved by the actions of the Opposite Party, the Complainant got served a legal notice dated 27.07.2015, upon the Opposite Party requesting them to refund the amount paid by the Complainant. The Opposite Party did not feel to respond to the legal notice or to take appropriate action. Left with no other option, the Complainant approached this commission alleging deficiency of services and unfair trade practice on the part of the Opposite Party.
7. During the course of the proceedings, notice was issued to the Opposite Party on 01.03.2016, the counsel for the Opposite Party appeared on 12.07.2016 and the copy of the complaint was supplied to him.
CC 31/2016 Page 4 of 22Subsequent to the acceptance of the copy of the complaint, the Opposite Party filed its written statement.
8. In its written statement, the Opposite Party has contested the present complaint and have raised certain preliminary contentions as to the maintainability of the case. The Opposite Party has contended that the complainant is not a consumer as per the definition as provided under the Consumer Protection Act, 1986; that the complaint involves complicated questions of law, hence, this commission has no jurisdiction to entertain the present case; that the parties are bound by the terms of agreement as entered into between the parties; that the delay was caused due to recession, which is beyond the control of the Opposite Party; and that if the complainant is to be compensated, it should be as per the terms of the agreement.
9. Thereafter, the complainant filed the rejoinder rebutting the contentions raised by the Opposite Party and reiterated the averments made in the complaint. Subsequently, the parties filed their evidence by way of affidavit to prove their averments on record along with the written arguments and the case was listed for final arguments.
10. On 03.02.2021, when the final arguments were being concluded on behalf of both the parties, the counsel for the complainant pointed out that an application has been filed on behalf of the complainant to bring on record the closure receipt of the account with respect to the loan taken from DHFL.
11. We have heard the counsel for the complainant as well as the counsel for the Opposite Party and perused through the material on record.
12. The fact that the complainant had booked a flat with the Opposite party is not in dispute from the evidence on record. Payment to the extent of Rs. 26,31,433.50/- was made by the complainant to the Opposite party CC 31/2016 Page 5 of 22 which is also evident from perusal of receipts attached with the complaint.
13. 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.
• WHETHER THE COMPLAINANT FALLS IN THE
CATEGORY OF 'CONSUMER' UNDER THE CONSUMER
PROTECTION ACT, 1986?
14. The counsel for the Opposite Party has contended that the complainant is not consumer within the meaning of the Consumer Protection Act, 1986 and cannot invoke the provisions of the Act. The counsel for the Opposite Party has alleged that the complainant is merely an investor and has booked the said property for investment/commercial purpose.
15. The contention raised by the Opposite Party relates to the purchase of the said flat by the complainant for a commercial purpose. The aspect as to what constitutes "Commercial Purpose" has been elaborately dealt with by the Hon'ble Apex Court in Lilavati Kirtilal Mehta Medical Trust vs. Unique Shanti Developers and Ors. reported at (2020) 2 SCC 265. The relevant portion has been reproduced as under:
"7. To summarize from the above discussion, though a straight-jacket formula cannot be adopted in every case, the following broad principles can be culled out for determining whether an activity or transaction is 'for a commercial purpose':
(i) The question of whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case. However, ordinarily, 'commercial purpose' is understood to include manufacturing/industrial activity or business-to-business transactions between commercial entities.CC 31/2016 Page 6 of 22
(ii) The purchase of the good or service should have a close and direct nexus with a profit-generating activity.
(iii) The identity of the person making the purchase or the value of the transaction is not conclusive to the question of whether it is for a commercial purpose. It has to be seen whether the dominant intention or dominant purpose for the transaction was to facilitate some kind of profit generation for the purchaser and/or their beneficiary.
(iv) If it is found that the dominant purpose behind purchasing the good or service was for the personal use and consumption of the purchaser and/or their beneficiary, or is otherwise not linked to any commercial activity, the question of whether such a purchase was for the purpose of 'generating livelihood by means of self-
employment' need not be looked into.
(emphasis supplied)"
16. A mere bald statement has been made by the Opposite Party that the complainant purchased the flat for a commercial purpose and on perusal of record before us, we fail to find any material which shows that the complainant is engaged in the business of purchasing and selling houses and/or plots on a regular basis, solely with a view to make profit by sale of such houses. Mere allegation, that the purchase of the property is for commercial purpose, cannot be the ground to reject the present consumer complaint. Consequently the objection raised on behalf of the opposite party is answered in negative.
• WHETHER THIS COMMISSION HAS JURISDICTION TO ADJUDICATE THE PRESENT COMPLAINT?
17. The next question for consideration relates to the jurisdiction of this commission to try the present suit. The counsel for the Opposite Party has contended that the complaint involves complicated questions of facts and law which needs to be proved by leading detailed oral and CC 31/2016 Page 7 of 22 documentary evidence, hence, this commission is not the proper forum to adjudicate the case.
18. The jurisdiction of consumer commissions to entertain cases of this nature has been settled via array of judgments. We tend to rely on the dicta of Hon'ble Supreme Court in Narne Construction P. Ltd., etc. v. Union Of India and Ors. Etc., reported at (2012) 5 SCC 359 :-
5. In the context of the housing construction and building activities carried on by a private or statutory body and whether such activity tantamounts to service within the meaning of clause (o) of Section 2(1) of the Act, the Court observed: (LDA case [(1994) 1 SCC 243] , SCC pp. 256-
57, para 6) "6. ... As pointed out earlier the entire purpose of widening the definition is to include in it not only day-to-day buying and selling activity undertaken by a common man but even such activities which are otherwise not commercial in nature yet they partake of a character in which some benefit is conferred on the consumer. Construction of a house or flat is for the benefit of person for whom it is constructed. He may do it himself or hire services of a builder or contractor. The latter being for consideration is service as defined in the Act. Similarly when a statutory authority develops land or allots a site or constructs a house for the benefit of common man it is as much service as by a builder or contractor. The one is contractual service and the other statutory service. If the service is defective or it is not what was represented then it would be unfair trade practice as defined in the Act. Any defect in construction activity would be denial of comfort and service to a consumer. When possession of property is not delivered within stipulated period the delay so caused is denial of service. Such disputes or claims are not in respect of immovable property as argued but deficiency in rendering of service of particular standard, CC 31/2016 Page 8 of 22 quality or grade. Such deficiencies or omissions are defined in sub-clause (1)(ii) of clause (r) of Section 2(1) as unfair trade practice. If a builder of a house uses substandard material in construction of a building or makes false or misleading representation about the condition of the house then it is denial of the facility or benefit of which a consumer is entitled to claim value under the Act. When the contractor or builder undertakes to erect a house or flat then it is inherent in it that he shall perform his obligation as agreed to. A flat with a leaking roof, or cracking wall or substandard floor is denial of service. Similarly when a statutory authority undertakes to develop land and frame housing scheme, it, while performing statutory duty renders service to the society in general and individual in particular." (emphasis supplied)
6. This Court in LDA case [(1994) 1 SCC 243] further held that when a person applies for allotment of building site or for a flat constructed by the development authority and enters into an agreement with the developer or a contractor, the nature of the transaction is covered by the expression "service" of any description. The housing construction or building activity carried on by a private or statutory body was, therefore, held to be "service" within the meaning of clause (o) of Section 2(1) of the Act as it stood prior to the inclusion of the expression "housing construction"
in the definition of "service" by Ordinance No. 24 of 1993."
19. The present complaint relates to the refund of amount paid by the complainant against a booking of flat and for deficient services by the Opposite party. We are of the opinion that this commission has the jurisdiction to entertain the cases including refund of amount, as the refund is sought due to the deficient services of the opposite party and not for any other reason. Consequently, the said contention of the opposite party is also answered in the negative.
CC 31/2016 Page 9 of 22• WHETHER THE PARTIES ARE BOUND BY THE TERMS OF THE CONTRACT?
20. The next contention of the Opposite Party is that the complaint pertains to enforcement of rights and liabilities created by virtue of agreement and the court shall not interfere with the terms and conditions agreed between the parties.
21. We deem it appropriate to refer to a recent pronouncement of the Hon'ble Supreme Court of India in the case of IREO Grace Realtech Pvt. Ltd. V. Abhishek Khanna and Ors. reported at 2021 SCC OnLine SC 14, wherein it has been observed as under:-
"19.5. In a similar case, this Court in Wg. Cdr. Arifur Rahman Khan & Others v. DLF Southern Homes Pvt. Ltd., affirmed the view taken in Pioneer (supra), and held that the terms of the agreement authored by the Developer does not maintain a level platform between the Developer and the flat purchaser. The stringent terms imposed on the flat purchaser are not in consonance with the obligation of the Developer to meet the timelines for construction and handing over possession, and do not reflect an even bargain. The failure of the Developer to comply with the contractual obligation to provide the flat within the contractually stipulated period, would amount to a deficiency of service. Given the one-sided nature of the Apartment Buyer's Agreement, the consumer fora had the jurisdiction to award just and reasonable compensation as an incident of the power to direct removal of deficiency in service."
22. Even in Pioneer Urban Land and Infrastructure V. Govindan Raghavan reported at (2019) 5 SCC 725, the Hon'ble Apex Court had taken a similar view. The relevant portion is reproduced as under:-
"6.6. Section 2 (r) of the Consumer Protection Act, 1986 defines 'unfair trade practices' in the following words :
"'unfair trade practice' means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or CC 31/2016 Page 10 of 22 for the provision of any service, adopts any unfair method or unfair or deceptive practice ...", and includes any of the practices enumerated therein. The provision is illustrative, and not exhaustive.
In Central Inland Water Transport Corporation Limited and Ors. v. Brojo Nath Ganguly and Ors., this Court held that :
"89. ... Our judges are bound by their oath to 'uphold the Constitution and the laws'. The Constitution was enacted to secure to all the citizens of this country social and economic justice. Article 14 of the Constitution guarantees to all persons equality before the law and equal protection of the laws. This principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause CC 31/2016 Page 11 of 22 in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction. ... ... These cases can neither be enumerated nor fully illustrated. The court must judge each case on its own facts and circumstances."
(emphasis supplied) 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."
23. It is not in dispute that the terms and conditions of the allotment letter cannot be amended on request of the complainant. The Opposite Party/big builders have a prescribed format of Flat Buyers agreement/allotment letter and there exists very little bargaining power in the hands of the complainant, to get the clauses in the agreement amended.
24. Returning to the facts of the present case, we deem it appropriate to refer to Clause 5(a) and 5(b) of the Flat Buyer Agreement, which reads as follows:
"5(a). Timely payment of the installments of the basic price and other charges shall be of the essence of the agreement. It shall be incumbent on the Buyer to make timely payments and to comply with the other terms and conditions of the agreement. If payment is not made within the period CC 31/2016 Page 12 of 22 stipulated and or the buyer commits breach of any of the terms and conditions of this agreement, then this Agreement shall be liable to be canceled. In the eventuality of cancellation earnest money being 15% of the basic sale price would be forfeited and the balance if any, would be refundable without interest. On cancellation of the Agreement the buyer shall also be liable to reimburse to the Developer the amount of brokerage paid, if any, by the Developer towards the booking of the flat by the Buyer. In any case, all the dues, whatsoever, including interest, if any, shall be payable before taking possession of the Flat by the Buyer.
5(b). In exceptional circumstances, the Developer may, in their sole discretion, condone the delay in payment by charging interest at the rate of 24% per annum on the amounts in default. In the event of the developer waiving the right of forfeiture and accepting the payment with interest, no right, whatsoever, would accrue to any other defaulting flat buyers."
25. The clause envisages that if there is a delay in payment or in event of breach of any terms and conditions of the agreement, the allotment will be canceled by the opposite party. The only remedy available to the complainant in such a case is to pay the defaulted amount along with an interest @ 24% per annum which too is at the discretion of the Opposite party.
26. Clause 10 (a) and 10 (c) of the Flat Buyer Agreement which provides for the liability of the Opposite Party reads as follows:
"10(a). The Construction of the flat is likely to be completed within a period of thirty six( 36) months from the date of start of foundation of the particular tower in which the flat is located with a grace period of six (06) months, on receipt of sanction of building plans/revised building plans and approvals of all concerned authorities including Fire Service Department, Civil Aviation CC 31/2016 Page 13 of 22 Department, Traffic Department, Pollution Control Department, as may be required for commencing and carrying on construction subject to force majeure, restraints or restrictions from any courts/ authorities, non-availability of building materials, disputes with contractors/work force. Etc and circumstances beyond the control of the developer and subject to timely payments by flat buyers. No claim by way of damages/compensation shall lie against the developer in case of delay in handing over possession on account of any of such reasons and the period of construction shall be deemed to be correspondingly extended. The date of submitting application to the concerned authorities for issue of completion/part completion/occupancy/part occupancy certificate of the complex shall be treated as the date of completion of the flat for the purpose of this clause/agreement.
10(c). In case of delay in construction of the Flat beyond the period as stipulated subject to force majeure and other circumstances as aforesaid under sub-clause (a) above, the developer shall pay to the Buyer Compensation @ Rs. 53.80 (Rupees Fifty Three and paise eight only) per sq. Meter or @ Rs. 5 per sq. Ft. Of the super area pf the flat per month for the period of delay. Likewise, if the buyer fails to settle the final account , execute sale deed and take possession of the flat within 30 days of the final call notice by the Developer, the buyer shall be liable to pay to the Developer Charges @ Rs. 53.80 per sq. Meter or @ Rs. 5/-per sq.ft. Of the super area of the flat per month on expiry of 30 days notice."
27. The perusal of the Apartment Buyer's Agreement dated 15.04.2008 reveals stark discrimination between the remedies available to both the parties. The stipulations are per se arbitrary and unilateral favoring the Opposite party. Considering that the parties are bound by the terms of CC 31/2016 Page 14 of 22 the agreement, the complainant is liable to pay an interest @ 24% per annum to the opposite party in case of default in making payment as per the payment plan as specified in the Flat Buyer Agreement. On the other hand, the opposite party is liable to pay only Rs. 5/-per sq.ft. to the complainant in case of default in handing over possession within the stipulated time period as per the Flat Buyer Agreement.
28. Given the law as it stands today, we are of the opinion that the agreement is unilateral and arbitrary, favoring the opposite party and against the complainant, hence, the Complainant cannot be said to be bound by the unilateral clauses as enumerated above. In terms of the aforesaid, we hold that the contention of the Opposite Party with reference to the parties being bound by the agreement in any given situation holds no merit.
• WHETHER FORCE MAJEURE IS A VALID DEFENCE?
29. The counsel for the Opposite Party has contended that on account of global recession, which hit the Indian Economy as well, and especially the real-estate sector, the pace of construction slowed down and it was due to the same, that the delay has been caused, which was beyond the control of the Opposite Party. The Counsel for Opposite Party has relied on Clause 10 (a) of the plot buyer agreement, which is reproduced as follows:
10(a). The Construction of the flat is likely to be completed within a period of thirty six( 36) months from the date of start of foundation of the particular tower in which the flat is located with a grace period of six (06) months, on receipt of sanction of building plans/revised building plans and approvals of all concerned authorities including Fire Service Department, Civil Aviation Department, Traffic Department, Pollution Control Department, as may be required for commencing and carrying on construction subject to force majeure, CC 31/2016 Page 15 of 22 restraints or restrictions from any courts/ authorities, non-availability of building materials, disputes with contractors/work force. Etc and circumstances beyond the control of the developer and subject to timely payments by flat buyers. No claim by way of damages/compensation shall lie against the developer in case of delay in handing over possession on account of any of such reasons and the period of construction shall be deemed to be correspondingly extended. The date of submitting application to the concerned authorities for issue of completion/part completion/occupancy/part occupancy certificate of the complex shall be treated as the date of completion of the flat for the purpose of this clause/agreement."
30. Placing reliance on the aforesaid clause, the counsel for the Opposite Party has contended that in event of a force majeure, the date of possession may get extended and shall not be deemed to be deficiency on part of the Opposite Party. Therefore in such an event, the complainants/buyers are not entitled to any compensation/damages due to delay caused.
31. We deem it necessary to refer to the prevailing law with reference to the present issue. The Hon'ble National Commission in the case of Satish Kumar Pandey and Ors. vs. Unitech Ltd. Reported in III (2015) CPJ 440 (NC) while rejecting a similar plea of the builder has held as under:-
"8. Neither any new legislation was enacted nor an existing rule, regulation or order was amended stopping suspending or delaying the construction of the complex in which apartments were agreed to be sold to the complainants. There is no allegation of any lock-out or strike by the labour at the site of the project. There is no allegation of any slow-down having been resorted to by the labourers of the opposite party or the contractors engaged by it at the site of the project. There was no civil commotion, war, enemy action, terrorist action, earthquake or any act of God which could have delayed CC 31/2016 Page 16 of 22 the completion of the project within the time stipulated in the Buyers Agreement. It was contended by the counsel for the OP that the expression 'slow down' would include economic slow-down or recession in the Real Estate sector. I, however, find no merit in this contention. The word 'slow down' having been used alongwith the words lock-out and strike, I has to be read ejusdem generis with the words lock-out and strike and therefore, can mean only a slow down if resorted by the labourers engaged in construction of the project.
9. As regards, alleged shortage of labour, I find that no material has been placed on record by the OP that despite trying, it could not be get labourers to complete the construction of the project within the time stipulated in the Buyers Agreement. It was submitted by the learned counsel for the complainants that ordinarily big builders such as the OP in these cases, are contracting/sub-contracting the construction work to the contractors engaged by them, instead of employing their own labourers on a regular basis, the purpose being to ensure that they are not saddled with the wage bill of those regular labourers, in case the opposite party does not have adequate work for them. There is no evidence of the OP having been invited tenders for appointment of contractors/sub-contractors for executing the work at the site of those projects and no contractor/sub-contractor having come forward to execute the project on the ground that adequate labour was not available in the market. Therefore, it cannot be accepted that the opposite party could not have arranged adequate labour, either directly or through contractors/sub-contractors, for timely completion of the project. As regards the alleged shortage of water, bricks and sand in the market, I find that there is no evidence filed by the OP, to prove that it was unable to procure water, sand and brick in adequate quantity. This is also their case that the notification of the Government, being relied upon by the opposite party, is an old notification, which was in force even at the time the opposite party promised possession in 36 months. There is no evidence of the opposite party having invited tenders for supply of bricks and water and there CC 31/2016 Page 17 of 22 being no response to such tenders. In fact, if the work is to be executed through contractors/sub-contractors, the material such as bricks, sand and even water will be arranged by the contractor/sub-contractor and not by the opposite party. As noted earlier, there is no evidence of the opposite party having invited tenders after awarding the work of project in question to the contractors/sub-contractors and there being no response to such tenders. Therefore, I find no merit in the plea that the completion of the project was delayed due to non-availability of water, sand and bricks in adequate quantity. As regards common-wealth games projects work, on those projects was complete before the games were held in October 2010. The project in question on the other hand was required to be completed in phases, beginning end of 2012, i.e., more than 2 years after the aforesaid games were concluded. In any case, it has been more than 4 1/2 years since common-wealth games were held and even today the project in question is far from complete. Therefore, there is no merit in the contention that the completion of the project was delayed on account of commonwealth games. Consequently, there is no escape from the conclusion that the delay in construction of the apartments cannot be attributed to any of the reasons mentioned in clause 4.a.ii of the Buyers Agreement."
32. We further tend to rely on Imperia Structures Ltd. vs. Anil Patni and Ors. reported at AIR 2021 SC 70 wherein the Hon'ble Supreme Court has held as under :
"10. Consumer Case No. 3011 of 2017 was allowed by the Commission by its judgment and order dated 12.09.2018. It was observed:
10. It is pertinent to note that the Developer has not filed any evidence to support his contention that the delay occurred due to force majeure events. In fact demonetization, non-availability of contractual labour, delay in notifying approvals cannot be construed to be force majeure events from any angle."CC 31/2016 Page 18 of 22
33. In the instant case, there is no documentary evidence to support the contention of the Opposite Party that the ground raised by them can be construed as 'Force Majeure.' In the absence of any material on record to substantiate the plea of the Opposite Party that the delay was for reasons beyond their control, we hold that the Opposite Party cannot take shelter under the Force Majeure Clause. For the latches of the Opposite Party, the Complainant cannot be made to suffer. Hence, it cannot be assumed that the actual cause of delay was such as has been stated by the Opposite Party.
• DEFICIENCY OF SERVICE
34. 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. 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 CC 31/2016 Page 19 of 22 compensation as a measure of restitution to 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 fulfillment of a contractual obligation.
35. As per the above dicta of the Hon'ble Apex Court, where the builder defaults in handing over of the possession to the consumer within a stipulated time period, it is a clear case of deficiency of service as defined in the Consumer Protection Act, 1986. In the present case, the record reflects that Opposite Party was bound to handover the possession of the flat by November, 2011, taking into consideration the grace period of 6 months beyond the 36 months period. However, the the Opposite Party has failed to handover the possession of the flat even till the date of filing the present complaint.
36. The complainant cannot be expected to wait for an indefinite time period to get the benefits of the hard earned money which they have spent in order to purchase the property in question. (Ref: Fortune Infrastructure v. Trevor D'Lima reported at (2018) 5 SCC 442).
37. Relying on the above settled law, we are of the view that the Opposite Party had given false assurance to the complainant with respect to the time for delivery of possession of the apartment and kept the hard earned money of the complainant for about 8 years. Moreover, the Opposite Party has failed to handover the possession of the said plot to the complainant within a reasonable time period, thus the Opposite Party is deficient in providing its services to the Complainant.
CC 31/2016 Page 20 of 2238. Before discussing the quantum of the compensation which can be allowed in favour of the Complainant, it is noteworthy that in the present case, the complainant had availed a loan facility from DHFL for which he had paid interest and the Opposite Party had notice of the same. The Opposite party had entered into an agreement with the Complainant dated 16.05.2008, wherein the Opposite party were to reimburse the EMIs paid towards the said loan taken by the Complainant, which till a certain period i.e. till March, 2015, the Opposite Party complied with but thereafter, it failed to reimburse the EMIs. Hence, the same will be an important factor in assessing the compensation for which the Complainant will be entitled to.
39. 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. 26,31,433.50/- along with interest as per the following arrangement:
A. An interest @ 12.33% (as charged by the lending institution on average basis) calculated from 01.04.2015 (being the date from which the Opposite Party stopped reimbursing EMIs which it was duty bound to do) till 14.07.2020 (being the date on which the complainant received the no-objection certificate from the DHFL after making the payment of the last EMI);
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 30.05.2021;
C. Being guided by the principles as discussed above, in case the Opposite Party fails to refund the amount as per the CC 31/2016 Page 21 of 22 aforesaid clause (A) on or before 30.05.2021, the entire amount is to be refunded with an interest @ 14.33% p.a. calculated from 01.04.2015 (being the date from which the Opposite Party stopped reimbursing EMIs which it was duty bound to do) 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 A. Pay the complainant a sum of Rs. 2,00,000/- as cost for mental agony and harassment to the complainant; B. Pay the complainant a sum of Rs. 50,000/- towards the litigation costs of pursuing the present complaint.
40. Applications pending, if any, stands disposed of in terms of the aforesaid judgment.
41. 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.
42. File be consigned to record room along with a copy of this Judgment.
(DR. JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (ANIL SRIVASTAVA) MEMBER Pronounced On:
09.03.2021 CC 31/2016 Page 22 of 22