National Consumer Disputes Redressal
S. Rajkumar & Anr. vs Sylvanus Builders & Developers Limited ... on 14 March, 2022
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 2036 OF 2017 1. RAMESH THANGARAJAN & ANR. OLD# B 29/NEW 25, FIRST MAIN ROAD, RAMALINGA NAGAR, WARIYUR POST, TIRUCHIRAPPALLI - 620 003, TAMIL NADU (INDIA) 2. DHANUJA MURUGESAN OLD# B 29/NEW 25, FIRST MAIN ROAD, RAMALINGA NAGAR, WARIYUR POST, TIRUCHIRAPPALLI - 620 003, TAMIL NADU (INDIA) ...........Complainant(s) Versus 1. SYLVANUS BUILDERS & DEVELOPERS LTD. & ORS. 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR, AHMEDABAD - 380 015, GUJARAT 2. PACIFICA (CHENNAI PROJECT) INFRASTRUCTURE CO. PVT. LTD. NOW KNOWN AS PACIFICA BUILDERS PVT. LTD., 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR, AHMEDABAD - 380 015, GUJARAT 3. AMIT ISRANI DIRECTOR, SYIVANUS BUILDERS & DEVELOPERS LIMITED, 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR, AHMEDABAD - 380 015, GUJARAT 4. SANJIL R. RAMESH DIRECTOR, SYLVANUS BUILDERS & DEVELOPERS LIMITED, 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR, AHMEDABAD - 380 015, GUJARAT 5. JAY RAMESH CHANDANI DIRECTOR, SYLVANUS BUILDERS & DEVELOPERS LIMITED, 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR, AHMEDABAD - 380 015, GUJARAT 6. RAKESH MOTILAL ISRANI DIRECTOR, PACIFICA INFRASTRUCTURE PVT. LTD., 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR, AHMEDABAD - 380 015, GUJARAT 7. GUNJAN RAKESH ISRANI DIRECTOR, PACIFICA INFRASTRUCTURE PVT. LTD., 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR, AHMEDABAD - 380 015, GUJARAT ...........Opp.Party(s) CONSUMER CASE NO. 2037 OF 2017 1. DR. SANTHOSSHI NARAYANAN & ANR. R/O HOUSE NO.8, G.R. AVENUE, SRI MEENAKSHI NAGAR, OLD PERUNGALATHUR, GANDHI NAGAR, 1ST STREET, TAMBARAM WEST, CHENNAI-600063 TAMIL NADU 2. MR. GOVINDASAMY VENKAT NARAYANAN R/O HOUSE NO. 8, G.R. AVENUE, SRI MEENAKSHI NAGAR, OLD PERUNGALATHUR, GANDHI NAGAR, 1ST STREET, TAMBARAM WEST, CHENNAI-600063 TAMIL NADU ...........Complainant(s) Versus 1. SYLVANUS BUILDERS & DEVELOPERS LTD. & ORS. 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGR, AHMEDABAD-380015 GUJARAT 2. PACIFICA (CHENNAI PROJECT) INFRASTRUCTURE CO. PVT. LTD. NOW KNOWN AS "PACIFICA BUILDERS PVT. LTD." 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR, AHMEDABAD-380015 GUJARAT 3. AMIT ISRANI, DIRECTOR, SYLVANUS BUILDERS & DEVELOPERS LIMITED 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR, AHMEDABAD-380015 GUJARAT 4. SANJIL R. RAMESH, DIRECTOR, SYLVANUS BUILDERS & DEVELOPERS LIMITED 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR, AHMEDABAD-380015 GUJARAT 5. JAY RAMESH CHANDANI, DIRECTOR, SYLVANUS BUILDERS & DEVELOPERS LIMITED 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR, AHMEDABAD-380015 GUJARAT 6. RAKESH MOTILAL ISRANI, DIRECTOR, PACIFICA INFRASTRUCTURE PVT. LTD. 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR, AHMEDABAD-380015 GUJARAT 7. GUNJAN RAKESH ISRANI, DIRECTOR, PACIFICA INFRASTRUCTURE PVT. LTD. 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR, AHMEDABAD-380015 GUJARAT ...........Opp.Party(s) CONSUMER CASE NO. 2038 OF 2017 1. RAJEEV SUKUMARAN NAIR & ANR. R/O NO. 3C, BLOCK 2, WATERFRONT 37, METTU STREET, KAZHIPATTURE, CHENNAI - 603 103 2. MRS. PREETHI SASEEDARAN R/O NO. 3C, BLOCK 2, WATERFRONT 37, METTU STREET, KAZHIPATTURE, CHENNAI - 603 103 ...........Complainant(s) Versus 1. SYLVANUS BUILDERS & DEVELOPERS LTD. & ORS. 33, AMARPLASH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR, AHMEDABAD - 380 015, GUJARAT 2. PACIFICA (CHENNAI PROJECT) INFRASTRUCTURE CO. PVT. LTD. NOW KNOWN AS PACIFICA BUILDERS PVT. LTD., 33, AMARPLASH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR, AHMEDABAD - 380 015, GUJARAT 3. AMIT ISRANI DIRECTOR, SYLVANUS BUILDER & DEVELOPERS LIMITED, 33, AMARPLASH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR, AHMEDABAD - 380 015, GUJARAT 4. SANJIL R. RAMESH DIRECTOR, SYLVANUS BUILDER & DEVELOPERS LIMITED, 33, AMARPLASH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR, AHMEDABAD - 380 015, GUJARAT 5. JAY RAMESH CHANDANI DIRECTOR, SYLVANUS BUILDER & DEVELOPERS LIMITED, 33, AMARPLASH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR, AHMEDABAD - 380 015, GUJARAT 6. RAKESH MOTILAL ISRANI DIRECTOR, PACIFICA INFRASTRUCTURE PVT. LTD., 33, AMARPLASH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR, AHMEDABAD - 380 015, GUJARAT 7. GUNJAN RAKESH ISRANI DIRECTOR, PACIFICA INFRASTRUCTURE PVT. LTD., 33, AMARPLASH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR, AHMEDABAD - 380 015, GUJARAT ...........Opp.Party(s) CONSUMER CASE NO. 2112 OF 2017 1. K. VELMURUGAN & ANR. 19, LAKEVIEW ROAD,JAINS AHALYA APTS.,F 02, WEST MAMBALAM. CHENNAI-600033 TAMIL NADU 2. S. RUKMANIDEVI 19, LAKEVIEW ROAD, JAINS AHALYA APTS.,F02,WEST MAMBALAM. CHENNAI-600033 TAMIL NADU ...........Complainant(s) Versus 1. SYLVANUS BUILDERS & DEVELOPERS LTD. & 6 ORS. 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR. AHMEDABAD-380015 GUJRAT 2. PACIFICA(CHENNAI PROJECT)INFRASTRUCTURE CO.PVT.LTD. 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR. AHMEDABAD-380015 GUJRAT 3. AMIT ISRANI, DIRECTOR, SYLVANUS BUILDERS AND INFRASTRUCTURE PVT.LTD. 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR. AHMEDABAD-380015 GUJRAT. 4. SANJIL R. RAMESH, DIRECTOR, SYLVANUS BUILDERS AND DEVELOPERS PVT. LTD. 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR. AHMEDABAD-380015 GUJRAT 5. JAY RAMESH CHANDANI, DIRECTOR,SYLVANUS BUILDERS AND DEVELOPERS LTD. 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR. AHMEDABAD-380015 GUJRAT. 6. RAKESH MOTILAL ISRANI, DIRECTOR, PACIFICA INFRASTRUCTURE PVT. LTD. 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR. AHMEDABAD-350015 GUJRAT 7. GUNJAN RAKESH ISRANI, DIRECTOR,PACIFICA INFRASTRUCTURE PVT. LTD. 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR. AHMEDABAD-380015 GUJRAT 8. AMIT ISRANI, DIRECTOR, SYLVANUS BUILDERS AND DEVELOPERS LTD. 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR. AHMEDAMAD-380015 GUJRAT 9. SANJIL R. RAMESH, DIRECTOR, SYLVANUS BUILDERS AND DEVELOPERS LTD. 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR. AHMEDABAD-380015 GUJRAT 10. JAY RAMESH CHANDANI,DIRECTOR, SYLVANUS BUILDERS AND DEVELOPERS LTD. 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR. AHMEDABAD-380015 GUJRAT 11. JAY RAMESH CHANDANI,DIRECTOR, SYLVANUS BUILDERS AND DEVELOPERS LTD. 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR. AHMEDABAD-380015 GUJRAT ...........Opp.Party(s) CONSUMER CASE NO. 2117 OF 2017 1. S. RAJKUMAR & ANR. 8400 SUGAR MAPLE DR APT 301, MASON, OH - 45050 USA 2. MRS. SALENI RAJKUMAR 8400 SUGAR MAPLE DR APT 301, MASON, OH - 45050 USA ...........Complainant(s) Versus 1. SYLVANUS BUILDERS & DEVELOPERS LIMITED & 6 ORS. 33, AMARPALSH BUNGLOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR, AHMEDABAD - 380015 GUJRAT 2. PACIFICA (CHENNAI PROJECT) INFRASTRUCTURE CO. PVT. LTD. NOW KNOWN AS "PACIFICA BUILDERS PVT. LTD. 33, AMARPALSH BUNGLOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR, AHMEDABAD - 380015 GUJRAT 3. AMIT ISRANI 33, AMARPALSH BUNGLOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR, AHEMADABAD - 380015 GUJRAT 4. SANJIL R. RAMESH 33, AMARPALSH BUNGLOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR, AHMEDABAD - 380015 GUJRAT 5. JAY RAMESH CHANDANI 33, AMARPALSH BUNGLOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR, AHMEDABAD - 380015 GUJRAT 6. RAKESH MOTILAL ISRANI 33, AMARPALSH BUNGLOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR, AHMEDABAD - 380015 GUJRAT 7. GUNJAN RAKESH ISRANI 33, AMARPALSH BUNGLOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR, AHMEDABAD - 380015 GUJRAT ...........Opp.Party(s) CONSUMER CASE NO. 2118 OF 2017 1. PRAKASH VENKATESAN R/o. No. 15626 36th AVE SE Bothell, WA 98012 USA ...........Complainant(s) Versus 1. SYLVANUS BUILDERS & DEVELOPERS LIMITED & 6 ORS. 33, Amarpalsh Bungalows Behind Fun Republic, Ramdevnagar Ahmedabad - 380015 Gujarat 2. Pacifica (Chennai Project) Infrastructure Co. Pvt. Ltd., 33, Amarpalsh Bungalows Behind Fun Republic, Ramdevnagar, Ahmedabad - 380 015. Gujarat 3. Amit Israni Director, Sylvanus Builders & Developers Ltd., 33, Amarpalsh Bungalows Behind Fun Republic, Ramdevnagar Ahmedabad - 380 015. Gujarat 4. Sanjil R. Ramesh Director, Sylvanus Builders & Developers Limited., 33, Amarpalsh Bungalows, Behind Fun Republic, Ramdevnagar, Ahmedabad - 380015. Gujarat 5. Jay Ramesh Chandani Director, Sylvanus Builders & Developers Ltd., 33, Amarpalsh Bungalows, Behind Fun republic, Ramdevnagar Ahmedabad - 380 015. Gujarat 6. Jay Ramesh Chandani Director, Sylvanus Builders & Developers Limited., 33, Amarpalsh Bungalows, Behind Fun Republic, Ramdevnagar, Ahmedabad - 380 015 Gujarat 7. Rakesh Motilal Israni Director, Pacifica Infrastructure Pvt. Ltd.,33, Amarpalsh Bungalows, Behind Fun Republic, Ramdevnagar Ahmedabad - 380 015. Gujarat 8. Gunjan Rakesh Israni Director, Pacifica Infrastructure Pvt. Ltd., 33, Amarpalsh Bungalows, Behind Fun Republic, Ramdevnagar Ahmedabad - 380 015. Gujarat. ...........Opp.Party(s) CONSUMER CASE NO. 2119 OF 2017 1. GANGADHARA POLISETTI GADHAMSETTI D.NO.2-77(B), CHODIMELLA POST. ELURU-534002 ...........Complainant(s) Versus 1. SYLVANUS BUILDERS & DEVELOPERS LIMITED & 6 ORS. 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR. AHMEDABAD-380015 GUJRAT 2. PACIFICA(CHENNAI PROJECT)INFRASTRUCTURE CO.PVT. LTD. 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR. AHMEDABAD-380015 GUJRAT 3. AMIT ISRANI, DIRECTOR, SYLVANUS BUILDERS AND DEVELOPERS LTD. 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR. AHMEDABAD-380015 GUJRAT 4. SANJIL R. RAMESH, DIRECTOR,SYLVANUS VUILDERS AND DEVELOPERS LTD. 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR. AHMEDABAD-380015 GUJRAT 5. . . . . 6. JAY RAMESH CHANDANI,DIRECTOR, SYLVANUS BUILDERS AND INFRASTRUCTURE PVT. LTD. 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR. AHMEDABAD-380015 GUJRAT 7. RAKESH MOTILAL ISRANI, DIRECTOR, PACIFICA INFRASTRUCTURE PVT. LTD. 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR. AHMEDABAD-380015 GUJRAT 8. GUNJAN RAKESH ISRANI, DIRECTOR, PACIFICA INFRASTRUCTURE PVT. LTD. 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR. AHMEDABAD-380015 GUJRAT ...........Opp.Party(s) CONSUMER CASE NO. 2120 OF 2017 1. PREM KUMAR SREEDHARAN & ANR. 3A, GREEN PARK, 1237, 18TH MAIN ROAD, ANNA NAGAR. CHENNAI-600040 TAMIL NADU 2. RIGEE PREMKUMAR. 3A, GREEN PARK, 1237, 18TH MAIN ROAD, ANNA NAGAR. CHENNAI-600040 TAMIL NADU ...........Complainant(s) Versus 1. SYLVANUS BUILDERS & DEVELOPERS LIMITED & 6 ORS. 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR. AHMEDABAD-380015 GUJRAT 2. PACIFICA (CHENNAI PROJECT)INFRASTRUCTURE CO.PVT. LTD. 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR. CHENNAI-600040 TAMIL NADU 3. . .. . . 4. AMIT ISRANI, DIRECTOR, SYLVANUS BUILDERS AND DEVELOPERS LTD. 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR. AHMEDABAD-380015 GUJRAT 5. SANJIL R. RAMESH, DIRECTOR, SYLVANUS BUILDERS AND DEVELOPERS LTD. 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR. AHMEDABAD-380015 GUJRAT 6. JAY RAMESH CHANDANI, DIRECTOR, SYLVANUS BUILDERS AND DEVELOPERS LTD. 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR. AHMEDABAD-380015 GUJRAT 7. RAKESH MOTILAL ISRANI, DIRECTOR, PACIFICA INFRASTRUCTURE PVT. LTD. 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR. AHMEDABAD-380015 GUJRAT 8. GUNJAN RAKESH ISRANI, DIRECTOR, PACIFICA INFRASTRUCTURE PVT. LTD. 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR. AHMEDABAD-380015 GUJRAT ...........Opp.Party(s) CONSUMER CASE NO. 2121 OF 2017 1. E.G. ARUN PRASATH & ANR. R/O HIG 67, MANICKAMPALAYAM HOSING UNIT, NASIYANUR ROAD, ERODE-638011 TAMIL NADU 2. MRS. SARVAMANGALA DEVI S R/O HIG 67, MANICKAMPALAYAM HOSING UNIT, NASIYANUR ROAD, ERODE-638011 TAMIL NADU ...........Complainant(s) Versus 1. SYLVANUS BUILDERS & DEVELOPERS LIMITED & 6 ORS. 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEV NAGAR, AHMEDABAD-380015 GUJARAT 2. PACIFICA (CHENNAI PROJECT) INFRASTRUCTURE CO.PVT. LTD. NOW KNOWN AS"PACIFICA BUILDERS PVT.LTD." 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEV NAGAR, AHMEDABAD-380015 GUJARAT 3. AMIT ISRANI, DIRECTOR, SYLVANUS BUILDERS & DEVELOPERS LIMITED 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEV NAGAR, AHMEDABAD-380015 GUJARAT 4. SANJIL R. RAMESH, DIRECTOR, SYLVANUS BUILDERS & DEVELOPERS LIMITED 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEV NAGAR, AHMEDABAD-380015 GUJARAT 5. JAY RAMESH CHANDANI, DIRECTOR, SYLVANUS BUILDERS & DEVELOPER LIMITED 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEV NAGAR, AHMEDABAD-380015 GUJARAT 6. RAKESH MOTILAL ISRANI, DIRECTOR, PACIFICA INFRASTRUCTURE PVT. LTD 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEV NAGAR, AHMEDABAD-380015 GUJARAT 7. GUNJAN RAKESH ISRANI, DIRECTOR, PACIFICA INFRASTRUCTURE PVT. LTD. 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEV NAGAR, AHMEDABAD-380015 GUJARAT ...........Opp.Party(s) CONSUMER CASE NO. 2122 OF 2017 1. ANNADURAI NARAYANAN F-3, THENDRAL APPARTMENTS, 3RD SEAWARD ROAD, VALMIKI NAGAR, THIRUVANMIYUR, CHENNAI-600041 TAMIL NADU ...........Complainant(s) Versus 1. SYLVANUS BUILDERS & DEVELOPERS LIMITED & 6 ORS. 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEV NAGAR, AHMEDABAD-380015 GUJARAT 2. PACIFICA (CHENNAI PROJECT) INFRASTRUCTURE CO.PVT. LTD. NOW KNOWN AS"PACIFICA BUILDERS PVT.LTD." 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEV NAGAR, AHMEDABAD-380015 GUJARAT 3. AMIT ISRANI, DIRECTOR, SYLVANUS BUILDERS & DEVELOPERS LIMITED 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEV NAGAR, AHMEDABAD-380015 GUJARAT 4. SANJIL R. RAMESH, DIRECTOR, SYLVANUS BUILDERS & DEVELOPERS LIMITED 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEV NAGAR, AHMEDABAD-380015 GUJARAT 5. JAY RAMESH CHANDANI, DIRECTOR, SYLVANUS BUILDERS & DEVELOPER LIMITED 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEV NAGAR, AHMEDABAD-380015 GUJARAT 6. RAKESH MOTILAL ISRANI, DIRECTOR, PACIFICA INFRASTRUCTURE PVT. LTD 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEV NAGAR, AHMEDABAD-380015 GUJARAT 7. GUNJAN RAKESH ISRANI, DIRECTOR, PACIFICA INFRASTRUCTURE PVT. LTD. 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEV NAGAR, AHMEDABAD-380015 GUJARAT ...........Opp.Party(s) CONSUMER CASE NO. 2153 OF 2017 1. R. DHANALAKSHMI R/O. NO. 69/5, T.P. KOLI STREET, TRIPLICANE, CHENNAI-60005 ...........Complainant(s) Versus 1. SYLVANUS BUILDERS & DEVELOPERS LTD. & 6 ORS. NOW KNOWN AS "PCIFICA BUILDERS PVT. LTD." 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEV NAGAR, AHMEDABAD-380015 2. PACIFICA (CHENNAI PROJECT) INFRASTRUCTURE CO. PVT. LTD. NOW KNOWN AS "PACIFICA BUILDERS PVT. LTD." 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEV NAGAR, AHMEDABAD-380015, GUJARAT 3. AMIT ISRANI, DIRECTOR SYLVANUS BUILDERS & DEVELOPERS LIMITED, 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEV NAGAR, AHMEDABAD-380015, GUJARAT. 4. SANJIL R. RAMESH, DIRECTOR SYLVANUS BUILDERS & DEVELOPERS LIMITED, 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEV NAGAR, AHMEDABAD-380015, GUJARAT. 5. JAY RAMESH CHANDANI, DIRECTOR SYLVANUS BUILDERS & DEVELOPERS LIMITED, 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEV NAGAR, AHMEDABAD-380015, GUJARAT. 6. RAKESH MOTILAL ISRANI, DIRECTOR 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEV NAGAR, AHMEDABAD-380015, GUJARAT. 7. GUNJAN RAKESH ISRANI, DIRECTOR 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEV NAGAR, AHMEDABAD-380015, GUJARAT. ...........Opp.Party(s) CONSUMER CASE NO. 2155 OF 2017 1. MURUGESAN KANDASAMY CHELLAM PATTY PO. HARUR TALUK-636903 TAMIL NADU ...........Complainant(s) Versus 1. SYLVANUS BUILDERS & DEVELOPERS LTD. & 6 ORS. 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR AHMEDABAD-380015 GUJRAT 2. PACIFIC (CHENNAI PROJECT)INFRASTRUCTURE CO. PVT. LTD. 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR. AHMEDABAD-380015 GUJRAT 3. AMIT ISRANI, DIRECTOR, SYLVANUS BUILDERS AND DEVELOPERS LIMITED. 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR. AHMEDABAD-380015 GUJRAT 4. SANJIL R. RAMESH, DIRECTOR, SYLVANUS BUILDERS AND DEVELOPERS LTD. 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR. AHMEDABAD-380015 GUJRAT 5. JAY RAMESH CHANDANI, DIRECTOR, SYLVANUS BUILDERS AND DEVELOPERS LTD, 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR. AHMEDABAD-380015 GUJRAT 6. JAY RAMESH CHANDANIDIRECTOR, SYLVANUS BUILDERS AND DEVELOPERS LTD, 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR. AHMEDABAD-380015 GUJRAT 7. RAKESH MOTILAL ISRANI,DIRECTOR,PACIFICA INFRASTRUCTURE PVT. LTD. 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR. AHMEDABAD-380015 GUJRAT 8. GUNJAN MOTILAL ISRANI,DIRECTOR,PACIFICA INFRASTRUCTURE PVT. LTD 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR. AHMEDABAD-380015 GUJRAT ...........Opp.Party(s) CONSUMER CASE NO. 3747 OF 2017 1. BOBY VARGHESE & ANR. R/O. APARTMENT 022, TOWER 34, DLF GARDEN CITY, OMR THAZHAMBUR, CHENNAI-600130 2. MERRY JOS E R/O. APARTMENT 022, TOWER 34, DLF GARDEN CITY, OMR, THAZHAMBUR CHENNAI-600130 ...........Complainant(s) Versus 1. SYLVANUS BUILDERS & DEVELOPERS LTD. & ANR. 33, AMARPALSH BUNGALOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR, AHMEDABAD-380015 GUJARAT 2. PACIFICA (CHENNAI PROJECTS) INFRASTRUCTURE CO. PVT. LTD. NOW KNOWN AS "PACIFICA BUILDERS PVT. LTD." 33, AMARPALSH BUNGLOWS, BEHIND FUN REPUBLIC, RAMDEVNAGAR, AHMEDABAD-380015 GUJARAT ...........Opp.Party(s) CONSUMER CASE NO. 576 OF 2018 1. VENKATESALU RAJAGOPAL & ANR. R/O A-1003 SEAWOOD HIRANANDANI, 5/63, OLD SIPCOT, IT PARK, 5/63 OLD MAHABALIPURAM, ROAD,EGATTUR CHENNAI - 600130 2. SANGETHA VENKATASWAMI, R/O A-1103, SEAWOOD HIRANANDANI, OPP SIPCOT IT PARK, 5/63,OLD MAHABALIPURAM ROAD, EGATTUR CHENNAI - 600130 ...........Complainant(s) Versus 1. SYLVANUS BUILDERS & DEVELOPERS LIMITED & ANR. 33, AMARPALSH BUNGALOWS,BEHIND FUN REPUBLICS, RAMDEVNAGAR, AHMEDABAD - 380015 GUJARAT 2. PACIFCA (CHENNAI PROJECTS) INFRASTRUCTURE CO .PVT LTD, NOW KNOWN AS " PACIFECA BUILDERS PVT LTD. 33, AMARPALSH BUNALOWS BEHIND FUN REPUBLIC RAMDENAGAR AHMEDABAD - 380015 GUJARAT ...........Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT For the Complainant : For the Complainants : Mr. Sushil Kaushik, Advocate Ms. Himanshi Singh, Advocate Mr. Karan S. Negi, Advocate For the Opp.Party : For the Opposite Parties : Mr. Gopal Jain, Sr. Advocate Mr. Lakshmneesh S. Kamath, Advocate Ms. Jagruti D., Advocate Ms. Nikhar Luthra, Advocate Dated : 14 Mar 2022 ORDER 1. The bunch of present Consumer Complaints has been filed under Section 21 of the Consumer Protection Act, 1986 (for short "the Act) by the Complainants/Purchasers of the Villas under the name and style "Pacifica Aurm" proposed to be developed at Pacific Aurum Pandur, OMR Road, Chennai, Tamil Nadu (hereinafter to be referred as the Villa), by Sylvanus Builders and Developers Ltd., (hereinafter referred to as the Opposite Party Builder), interalia, alleging deficiency in service in not handing over the possession of the Villa within stipulated period and seeking either possession with delayed compensation or refund of amount deposited by them along with reasonable interest and compensation. 2. Since all the Complainants have entered into identical Undivided Share of land and Construction Agreements (hereinafter referred to as the "Agreement") with the Opposite Parties; the facts and question of law involved in all the cases are similar except minor variation in the dates, and almost similar reliefs have been prayed for, these Complaints are being disposed off by this Common Order. However, for the sake of convenience, CC No. 2118 of 2017 is treated as the lead case and the facts enumerated hereinafter are taken from CC No. 2118 of 2017. 3. It has been averred in the Complaint that in the year 2011, Opposite Party No. 1, Sylvanus Builders & Developer Limited and Opposite Party No. 2 Pacifica (Chennai) Infrastructure Company Private Ltd. (hereinafter referred to as the OP Builder) launched a Group Housing Colony under the name and style of "Pacifica Aurum" (hereinafter referred to as the Project) in Padur, OMR Road, Chennai, Tamil Nadu. Allured by the exaggerated advertisement and the assurances given by the authorised representatives of the OP Builder that there would be club, shopping complex, sports complex, amphitheater, hospital and every modern facilities in the Project and the physical Possession would be handed over within two years of the booking, the Complainant booked a Villa for residential purpose in the said Project for a total sale consideration of ₹1,03,59,118.73ps. (Rupees One Crore Three Lacs Fifty Nine Thousand One Hundred Eighteen and paisa seventy three only) by paying a sum of ₹1,00,000/- towards booking amount on 13.05.2013. The total sale consideration of the Villa was inclusive of (i) basic sale price, (ii) total sale consideration of UDS of land (iii) infrastructure charges, (iv) club membership charges, (v) TNEB/CMWSSB charges and (vi) maintenance charges in advance for two years. It was assured that the possession of the Villa would be delivered by 3.12.2015. Undivided Share of land Agreement/Agreement to sell and Construction Agreement (hereinafter referred to as the Agreements) were executed between the Parties on 10.09.2013. It was alleged that the terms and conditions of the Agreements were unfair, one-sided and only in favour of the OP Builder. Clause 22 of the Agreement reads as under:- "22. In Case, the undivided share of the land in the Schedule "C" Property had already been conveyed to the customer(s) at such point in time, the customer(s) shall, at the Customer(s) cost and expense re-convey the same to the developer and/or to any person nominated by the Developer for a sale consideration equivalent to the amount for which the same was originally purchased by the Customer(s) or for the amount that is held by the Developer in the account of the Customer(s) in excess of the said liquidated damages, whichever is less. The Customer(s) agrees that in any event the first charge over the Property in schedule "D and E" shall be in favor of the Developer only. And the customer(s) shall not be entitled to claim anything by way of compensation, damage, liquidated or otherwise, or specific performance form the Developer." 4. As per Clause 6 of the Construction Agreement, the construction of the Villa was to be completed by 30.06.2015 with a grace period of 6 months. Clause 6 of the Agreement reads as under:- "6. The Developer hereby undertakes to endeavor to complete the construction of the customer(s) Villa Premises by 30 June 2015 and thereafter hand over the Premises to the customer(s), provided all monies inclusive of statutory levies, duties and/ or any other monies payable under this agreement, under the Agreement to sell for Undivided share of Land, executed by the land between the Buyer and the land owner and under such other agreements that may be entered into between the Developer, Land Owners, Conforming Party and Customer/s or otherwise due to the Developer have been paid in full and on time by the Customer(s). The Developer shall be entitled to a grace period of Six (6) months beyond the above mentioned date. In case the Developer does not deliver the premises even after the expiry of the grace period mentioned above despite the customer(s) having paid all monies to the Developer, the Developer will pay to the Customer(s) as and towards damages, an amount of 1% of the amount received, per month for such delay subject to maximum of 3% of the total amount received. It is agreed by the parties hereto that the Customer(s) shall not be entitled to any further claim on any account whatsoever including but not limited to damages, costs or any expenses or claims. However, it is agreed that the Customer(s) is/are entitled to these damages only if all the payments due to be paid to the Developer. Inclusive of statutory levies, duties and/ or any other monies payable under this agreement and under the Agreement to shell for Undivided share of Land, executed by and between the Buyer and the Landowner(s), have been paid in full and on time and also if the Customer(s) is not in any manner responsible for the delay." 5. It is alleged that despite repeated requests, the OP Builder failed to provide the copies of approvals/documents/licenses of the Project. It was alleged that the terms and conditions of the Agreements were unfair, one-sided and only in favour of the OP Builder. As per Clause 21, in case of delay in payment, the OP Builder was entitled to receive interest @18% towards penalty for late payment, whereas in terms of Clause 6 of the Agreement, in case of delay in construction, the OP Builder was liable to pay interest @3% p.a., which shows that the terms of the Agreements were biased and in favour of the OP Builders only. 6. It was further averred that the Complainant followed the payment plan and made the payment to the OP Builder on time. Despite that the OP Builder had failed to deliver the possession of the Villa within stipulated period, i.e., by 31.12.2015. The Complainant raised query for actual date of possession but the OP Builder without assigning any reason for the delay, kept postponing the delivery date of the said Villa on one pretext or the other. Being aggrieved, the Complainant hired the services of a reputed Architect 'Shyam Jebadev Moses' who after conducting the survey of the construction site on 27.05.2017 and 28.05.2017 vide his report submitted as follows:- "Based on my Inspection carried out at the Villas at Pacifica Aurum at Padur, Chennai, on 27th and 28th May 2017, the following are the General list of Design and construction defects and work-in progress identified. a) I have observed that the infrastructure works on the above date seems incomplete with works like Road laying, Paving block works, external Services like Storm water drain and Sewage Drain works, Compound wall for entire villa Plots are still in progress. Street Lights and TNEB transformer are yet to be fixed. b) The Access roads and other external infrastructure works are still incomplete as on date (28 May 2017), without which accessing the Villas is not easy. c) The Construction of the promised common Amenities like Club House, Shopping areas, School and Clinic has not been started. The promised amenities include Club House, Hospital, School, Retail Complex, Amphitheatre, Multiple Playground etc. d) Car parking shows Two car slots in the Layout plan but considering physical measurement and site observation it seems like it is not possible to park two cars in Car parking allotted space in certain Villas, as the Provided space in smaller than 2.5m x 5.0m (for per car). e) The shading element (for windows) width was found to be only 300mm, and is a concern to safeguard against rain lashing into the Villa. f) Hand Rail is missing at the Entrance steps (safety issue for Senior citizens and Kids). g) It was noted that there is no indicator provided to check if the Diesel Generator is on or not in the Electrical Panel (incoming Board) This causes inconvenience to the users especially during a power cut when there is cap to the Electrical load usage per Villa. h) No safety grill works is provided for a window which is an unsafe design. Basic iron monger like Door stoppers, Back door bushes are also not provided. Bath Room Lauvers are exposed to the outer Compound without any safety Grills. i) Additionally it was observed that the neighboring Villa's Roof Rain Water pipes water flow is designed to use its adjacent Villa's plot to complete the drainage process, which reflects poor design and affects everyone. Customers pay a cost to the land areas adjacent to the Villa and the Rain Water Drainage flow should'tbe designed as an intrusion without approval from every individual owner." 7. It is averred that from the above report of the Architect, it was clear that the Villa was not ready for possession till May 2017. The Complainants had lost faith in the OP Builder. 8. Alleging deficiency in service and Unfair Trade Practice on the part of the Opposite Party Builder, the Complainants have filed the present Consumer Complaints seeking refund of the amount deposited by them alongwith 18% interest and compensation together with cost, except in CC No. 2038 of 2017 and CC No. 576 of 2018, in which the Complainants had sought possession of the Villas alongwith delayed compensation together with cost of litigation. 9. The Complaints were resisted by the OP Builder by filing Written Statement in which the OP Builder stated that this Commission does not have the jurisdiction as the claimed amount is below Rupees one crore; the Complainant is not a consumer but an investor and has purchased the property in question for commercial purpose, thus does not fall within the ambit of a 'consumer'; there is Arbitration clause in the Agreement, therefore, the matter is liable to be referred to the arbitration; Parties are bound by the contractual terms and conditions; the Complainants defaulted in making timely payments, which compelled them to borrow money from the open market for completion of Project. It was further stated that there was a deluge in Chennai in December 2015 and Chennai was also hit by Cyclone Vardah in December 2016. Therefore, the delay in construction is due to the natural calamities, i.e., the force majeure, which were beyond the control of the OP Builder and they always updated the Complainants about the progress of the construction. It was further stated that they have received the Completion Certificate on 24.09.2016 and offered the possession of the Villas to the Complainants in the year 2017. However, the Complainants have not taken steps to have the possession of the Villas. It was stated that there is no deficiency in service on their part and prayed that the Consumer Complaints be dismissed. 10. I have heard Mr. Sushil Kaushik, learned Counsel for the Complainants, Mr. Gopal Jain, learned Senior Counsel appearing on behalf of the Opposite Parties Builder, perused the material available on record and have given our thoughtful consideration to the various pleas raised by the learned Counsel for the Parties. 11. So far as the pecuniary jurisdiction is concerned, in terms of Section 21 of the Consumer Protection Act, this Commission possesses the requisite pecuniary jurisdiction where the value of the goods or services as the case may be and the compensation claimed exceeds ₹1 Crore. As held by a three Members Bench of this Commission in CC No. 97 of 2016 Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd., decided on 07.10.2016, the value of the services in such a case would mean the sale amount agreed to be paid by the flat buyer to the developer, which has been held to lay down the law correctly on the issue relating to pecuniary jurisdiction and the sale consideration which was agreed between the Parties for buying the goods or hiring or availing the services is relevant for determination of pecuniary jurisdiction; in cases of refund also by a larger Bench of 5 Members of this Commission in "CC No. 1703 of 2018, Renu Singh vs. Experion Developers Private Limited" and other connected matters" decided on 26.10.2021. In the present cases, if even a part of the compensation claimed by the complainants is added to the sale consideration, the aggregate would be much above ₹1 Crore. Therefore, it would be difficult to say that this Commission does not possess the requisite pecuniary jurisdiction. 12. The contention of the learned Counsel for the Opposite Party Builder that the Complainant is not a 'Consumer' and that the subject Villa was booked for investment purpose is completely unsustainable in the light of the judgement of this Commission in Kavita Ahuja vs. Shipra Estates I (2016) CPJ 31, in which the principle laid down is that the onus of establishing that the Complainant was dealing in real estate i.e. in the purchase and sale of plots/ flats in his normal course of business to earn profits, shifts to the Opposite Party, which in the instant case the Opposite Party Builder had failed to discharge by filing any documentary evidence to establish their case. Therefore we are of the considered view that the Complainant is a 'Consumer' as defined under Section 2 (1)(d) of the Act. 13. As far as the contention of the learned Counsel for the Opposite Party Builder regarding Arbitration Clause is concerned, we find it a fit case to place reliance on the Judgment passed by the Hon'ble Supreme Court in M/s Emaar MGF Land Limited vs. Aftab Singh - I (2019) CPJ 5 (SC),in which the Hon'ble supreme Court has laid down the law that an Arbitration clause in the Agreement does not bar the jurisdiction of the Consumer Fora to entertain the Complaint. Hence, the objection raised by the Opposite Party Builder that the clause of Arbitration bars this Commission from entertaining the Complaint is unsustainable. 14. Regarding the contention of the OP Builder that CC No. 234 / 2019 is barred by limitation as the CC No. 234 / 2019 has been filed after more than 2 years from the receipt of Completion Certificate, it is observed that till the date of filing of the Complaint neither the OP Builder refunded the amount nor had it handed over the Possession of the Villa to the Complainant in CC No. 234 / 2019, therefore, there was continuous cause of action and the CC No. 234 / 2019 is treated to have been filed within limitation. 15. Regarding the contention of the learned Counsel for the Opposite Party that the Complainant is bound by the terms of the Agreement and they are liable to compensate the Complainant for delay in terms of Clause 6 of the Agreement, we have gone through the various clauses of the Agreement. Clause 6 and 21 of the Agreement reads as under:- "6. ...... The Developer shall be entitled to a grace period of Six (6) months beyond the above mentioned date. In case the Developer does not deliver the premises even after the expiry of the grace period mentioned above despite the customer(s) having paid all monies to the Developer, the Developer will pay to the Customer(s) as and towards damages, an amount of 1% of the amount received, per month for such delay subject to maximum of 3% of the total amount received....... 21. Without prejudice to any other right, the Developer may have under this Agreement, in the event of any breach of this Agreement by the Customer(s) including, but not limited to, any delay in the payments by the Customer(s) to the Developer, or any breach of the provisions of this Agreement, the Developer shall have the option to charge interest at the rate of 18% per annum on the delayed payments and/or to terminate/cancel this Agreement...... 16. A bare perusal of above Clauses makes it clear that as per Clause 6 of the Agreement, in case of delay the Opposite Party Builder is liable to pay 1% of the amount received per month for the period of delay subject to maximum of 3% in offering of possession, whereas in terms of Clause 21 in case of late payment, the Complainant/Buyer is liable to pay interest @18% p.a. This shows that the terms of the Agreement are wholly one-sided and unfair. Therefore, the Complainant cannot be made bound to the terms of the Agreement, which is one-sided and unfair in the light of the recent Judgment of the Hon'ble Apex Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, II (2019) CPJ 34 (SC),wherein the Apex Court has observed as follows: "6.7. A terms of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the Agreement dated 08.05.2012 are ex-facie one sided, unfair and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder. 7. In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyer's Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent-Flat Purchaser. The Appellant-Builder cannot seek to bind the Respondent with such one-sided contractual terms."
17. As far as the plea that the Complainants defaulted in making timely payment, which resulted delay in possession is concerned, the OP Builder could arrange the fund from the Open market and could have exercised options available under the terms of the Agreement, i.e., either to cancel the Agreement or charge delay interest. The OP Builder cannot take shelter under the lame excuse that the Complainant defaulted in making payment which resulted delay. I do not find any force in this contention and the same is rejected.
18. So far as the plea regarding Flood in Chennai in late December 2015 and Cyclone in December 2016 is concerned, the OP Builder was obligated to hand over the possession on 30.06.2015 and with a grace period of 6 months, the possession ought to have been delivered by 31.12.2015. The Flood and Cyclone occurred in late December 2015 and December 2016 respectively, which were beyond the agreed date of delivery of possession and no evidence has been led that how long the Construction of Villas was affected due to Flood in December 2015. As per pictures available on record and from the report of Architect as extracted above, it is evident that the Villas were not ready for Possession even uptill 28.05.2017. In view of above, I do not find any force in this plea as well.
19. Regarding the plea of the learned Counsel for the OP Developer that they have obtained Completion Certificate on 24.09.2016 and Intimation of Possession was sent to the Complainants, a reference can be made to the decision of the Hon'ble Supreme Court in Civil Appeal No. 12238 of 2018 Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan & Connected Matters decided on 02.04.2019 and the decision of the Hon'ble Supreme Court in Civil Appeal No. 3182 of 2019 Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra decided on 25.03.2019, in which it has been observed that in a case of an unreasonable delay in offering possession of the allotted flat, the consumer cannot be compelled to accept possession at a belated stage and is entitled to seek refund of the amount paid by him to the builder with compensation.
20. In Devasis Rudra (supra), the possession was offered to the Complainant/Appellant during the pendency of the Complaint before the State Commission and it was contended that the said builder having made substantial investment in terms of the agreement, a direction for refund was not warranted. In the Consumer Complaint filed in Devasis Rudra (supra), the complainant/appellant had prayed for possession of the house and in the alternative, for refund of the amount paid by him to the developer. In view of the said prayer made in the Consumer Complaint, it was argued on behalf of the builder that he should be made to accept possession of the allotted house and refund and not be allowed to him. The Complainant, on the other hand, contended that at the time the Consumer Complaint was filed, he was ready and willing to accept the possession, but seven years having elapsed, he was not more willing to accept possession. Allowing the appeal, the Hon'ble Supreme Court inter-alia held as under:
"It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years is beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund."
21. In Pioneer Urban Land & Infrastructure Ltd. (supra), the builder submitted before this Commission itself that since the construction of the apartment was complete and Occupancy Certificate had been obtained, the flat purchaser must be directed to accept the possession instead of directing refund of the amount deposited. In that case, there was a delay of about three years in offering possession and the flat purchaser had submitted that he was not interested in taking possession after delay of about three years. He also stated that he had taken an alternative property in Gurgaon. This Commission having allowed refund to the complainant/respondent, the appellant before the Hon'ble Supreme Court inter-alia contended that as per the terms of the agreement executed between the parties, the flat purchaser could claim refund only after expiry of twelve months from the grace period by terminating the agreement but the Consumer Complaint had been filed even before the said twelve months period after the grace period had come to an end. It was also submitted on behalf of the builder that this Commission had erred in granting interest at the rate of 10.7% per annum to the complainant when the agreement between the parties provided for payment of interest @ 6% per annum in case of delay in handing over possession. Rejecting the contentions advanced by the builder, the Hon'ble Supreme Court inter-alia held as under:
6.1. In the present case, admittedly the Appellant - Builder obtained the Occupancy Certificate almost 2 years after the date stipulated in the Apartment Buyer's Agreement. As a consequence, there was a failure to hand over possession of the flat to the Respondent - Flat Purchaser within a reasonable period. The Occupancy Certificate was obtained after a delay of more than 2 years on 28.08.2018 during the pendency of the proceedings before the National Commission.
In Lucknow Development Authority v. M.K. Gupta,2 this Court held that when a person hires the services of a builder, or a contractor, for the construction of a house or a flat, and the same is for a consideration, it is a "service" as defined by Section 2 (o) of the Consumer Protection Act, 1986. The inordinate delay in handing over possession of the flat clearly amounts to deficiency of service.
In Fortune Infrastructure &Anr. v. Trevor D'Lima& Ors.,3 this Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation.
6.2. The Respondent - Flat Purchaser has made out a clear case of deficiency of service on the part of the Appellant - Builder. The Respondent - Flat Purchaser was justified in terminating the Apartment Buyer's Agreement by filing the Consumer Complaint, and cannot be compelled to accept the possession whenever it is offered by the Builder. The Respondent - Purchaser was legally entitled to seek refund of the money deposited by him along with appropriate compensation.
6.3. The National Commission in the Impugned Order dated 23.10.2018 held that the Clauses relied upon by the Builder were wholly one-sided, unfair and unreasonable, and could not be relied upon.
The Law Commission of India in its 199th Report, addressed the issue of 'Unfair (Procedural & Substantive) Terms in Contract'. The Law Commission inter-alia recommended that a legislation be enacted to counter such unfair terms in contracts. In the draft legislation provided in the Report, it was stated that :
"A contract or a term thereof is substantively unfair if such contract or the term thereof is in itself harsh, oppressive or unconscionable to one of the parties."
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 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.
6.7. A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder.
The contractual terms of the Agreement dated 08.05.2012 are ex-facie one-sided, unfair, and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder.
7. In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyer's Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent - Flat Purchaser. The Appellant - Builder could not seek to bind the Respondent with such one-sided contractual terms.
8. We also reject the submission made by the Appellant - Builder that the National Commission was not justified in awarding Interest @10.7% S.I. p.a. for the period commencing from the date of payment of each installment, till the date on which the amount was paid, excluding only the period during which the stay of cancellation of the allotment was in operation.
In Bangalore Development Authority v. Syndicate Bank, a Coordinate Bench of this Court held that when possession of the allotted plot/flat/house is not delivered within the specified time, the allottee is entitled to a refund of the amount paid, with reasonable Interest thereon from the date of payment till the date of refund.
22. In the present cases, it is not in dispute that the Complainants were allotted the Villa in the year 2013 and the proposed date for delivery of the possession was December 2015. On perusal of the record, it is revealed that in certain cases, the intimation of possession has been sent only in the year 2017. From the perusal of the pictures and the report of the Architect, extracted above, it is evident that the Villas were not in habitable condition even by May 2017, hence, it can be safely concluded that the Villas were not ready for Possession by May, 2017.
23. In Consumer Complaints Nos. CC/2036/2017, CC/2037/2017, CC/2112/2017, CC/2117/2017, CC/2118/2017, CC/2119/2017, CC/2120/2017, CC/2121/2017, CC/2122/2017, CC/2153/2017, CC/2154/2017, CC/2155/2017, CC/3747/2017, CC/1682/2018 and CC/234/2019, the Complainants did not make a prayer for delivery of possession but sought refund of the amount paid by them to the OP Builder on account of the delay in offering possession of the allotted Villa to them. Respectfully following the principles laid down by the Hon'ble Supreme Court in Devasis Rudra (supra) and Pioneer Urban Land & Infrastructure Ltd. (supra), I am of the considered view that the Complainants in the above consumer complaints are entitled for refund of the entire deposited amount along with damages and compensation in the form of simple interest @9% p.a. from the respective date of deposit till the date of payment.
24. In Consumer Complaints Nos. CC/2038/2017 and CC/576/2018, the Complainants have prayed for possession of the Villas and have already taken the possession of the Villas on 21.01.2020. Respectfully following the principle laid down by the Hon'ble Supreme Court in its Judgment dated 11.01.2021 passed in "Ireo Grace Realtech Pvt. Ltd. vs. Abhishek Khanna & Ors." [Civil Appeal No. 5785 / 2019 & other connected Appeals]" in which it has been held that in case of delay in handing over the possession, the Developer is obligated to pay delay compensation, I am of the considered opinion that the OP Builder is liable to pay delay compensation to the Complainants in CC/2038/2017 and CC/576/2018, w.e.f. 31.12.2015 till the actual date of possession.
25. For the reasons stated hereinabove, the Consumer Complaints are partly allowed in following terms:-
(i) In CC/2036/2017, CC/2037/2017, CC/2112/2017, CC/2117/2017, CC/2118/2017, CC/2119/2017, CC/2120/2017, CC/2121/2017, CC/2122/2017, CC/2153/2017, CC/2154/2017, CC/2155/2017, CC/3747/2017, CC/1682/2018 and CC/234/2019, the Opposite Parties are directed to refund the entire amount deposited by the respective Complainants alongwith simple interest @9% p.a. from the respective dates of deposit till the date of realisation within three months from today, failing which the interest shall increase from 9% p.a. to 12% p.a.
(ii) In CC/2038/2017 and CC/576/2018, the Opposite Parties are directed to pay delay compensation in the form of simple interest @9% p.a. on the amount deposited by the respective Complainants w.e.f. 31.12.2015 till 21.01.2020, i.e., the actual date of possession within three months from today.
(iii) Keeping in view the peculiar facts and circumstances of the case, there shall be no order as to costs.
(iv) Pending Applications, if any, also stand disposed off. ......................J R.K. AGRAWAL PRESIDENT