1. The present Consumer Complaint has been filed under Section 12(1)(a) of the Consumer Protection Act, 1986 (for short “the Act”) by Mohammad Faizan Iqbal (hereinafter referred to as the Complainant) against Opposite Party, M/s. Emaar MGF Land Limited (hereinafter referred to as the OP Developer), seeking refund of the amount paid towards purchase of Flat alongwith interest and costs as the Opposite Party Developer failed to deliver the Possession of the Flat within stipulated period, which was booked by him in the Project launched by the Developer in the name and style of “Imperial Garden” located at Sector-102, Gurgaon, Haryana.
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2. It has been averred in the Complaint that the Opposite Party Developer launched a Residential Project in the name and style of “Imperial Garden” located at Sector-102, Gurgaon, Haryana (hereinafter referred to as the Project).  The Complainant booked a Unit for residential purpose of his parents in the said Project for a total sale consideration of ₹1,52,29,960/-.  Unit No. IG-07-0101 at 1^st Floor, Tower No. 7 having super area of approx. 2000 sq. ft. was allotted to the Complainant vide letter dated 27.02.2013 by the OP Developer.  Builder Buyer Agreement (hereinafter referred to as the Agreement) was executed between the Parties on 16.05.2013.  Although the said Agreement had contained various one-sided and arbitrary clauses yet the Complainant had to sign the Agreement under the threat of forfeiture of huge amount as he had already deposited ₹17,04,677/- before execution of the Agreement.  As per Clause 14(a) of the Agreement, the delivery of the possession was to be offered within 42 months with a grace period of 3 months from the date of the start of the construction.  It is averred by the Complainant that in terms of the Agreement, the expected date of delivery of possession of the Unit/Apartment was 11.08.2017 as the construction at the Project site started in 11.11.2013. The Complainant had deposited ₹1,46,39,295/- on different dates upto October 2019, as per demand of the Opposite Party Developer.  Despite that the Opposite Party Developer miserably failed to deliver the possession of the Flat within stipulated period.  It is also averred that through various E-mails and telephonic conversations, the Complainant raised query for actual date of possession, the OP Developer without assigning any reason for the delay, kept postponing the delivery date of the said Project on one pretext or the other.  Seeing the conduct of the OP Developer, the Complainant, vide letter dated 12.10.2018 sought refund of the entire amount from the Opposite Party, but in vain.  On the website of the Opposite Party no specific update with respect to Tower-7 has been provided.  The Opposite Party Developer offered possession of the Unit vide letter 25.10.2019.  It is averred that when the Complainant requested the Opposite Party Developer to inspect the Unit, the same was refused.  The Complainant has lost trust on the Opposite Party Developer and is no longer interested in having possession of the Flat.  Alleging deficiency in service and Unfair Trade Practice on the part of the Opposite Party Developer, the Complainant has filed the present Consumer Complaint with the following prayer:
3. “i. Direct the Opposite Party for an immediate 100% refund of the total amount of ₹1,46,39,295/- (Rupees One Crore Thirty Nine Lacs Two Hundred Ninety Five only) paid by the Complainant, along with a penal interest of 18% per annum from the date of the receipt of the payment made to the Opposite party;
    
   ii. Direct the Opposite Party to pay compensation of ₹5,00,000/- (Rupees Five Lakhs Only) to the Complainant for mental agony, harassment, discomfort and undue hardships caused to the Complainant as a result of the above acts and omissions on the on the part of the Opposite Party;
    
   iii Direct the Opposite Party to pay a sum of ₹1,00,000/- (Rupees One Lakh Only) to the Complainant in the Project ‘Imperial Gardens’ towards litigation costs;
    
   iv That any other and further relief in favour of the Complainant as the Hon’ble Commission may deem fit and proper in the fact and circumstances of the case.”
3. The Complaint was resisted by the Opposite Party Developer by filing its Written Statement in which it was stated that the Complainant has purchased another property in Dwarka Expressway and purchased the Unit in question to reap financial benefit as is evident from E-mail dated 06.12.2019, thus the Complainant does not fall within the ambit of a ‘consumer’.  It was further stated that the development work got slowed as the OP Developer Company has undergone re-structuring and the Contractor was also liable for the delay as it did not complete the work in time-bound manner.  Therefore, the delay in construction is due to the reasons which were beyond the control of the Developer.  They offered the possession of Flat to the Complainant on 25.10.2019.  There is only 26 months’ delay.  For this delay, the Complainant has demanded huge sum of ₹29 lakhs vide email dated 08.07.2020.  However, they are ready to compensate the Complainant as per Clause 16 of the Agreement, which provides compensation @7.5/- per sq. ft. per month of the super area, the Complainant is not entitled for more than the compensation as agreed between them.  When the OP Developer did not agree to the demand raised by the Complainant, the present Complaint seeking refund has been filed after one year of offer of possession.  It was also stated that if refund is allowed, the OP Developer be permitted to forfeit the earnest money.  In support of his contentions, the OP Developer relied upon Judgment passed by this Commission in ‘Ramesh Malhotra & Ors. Vs. Emaar MGF Land Ltd. [CC No. 438 / 2019 dated 29.06.2020]’

4. We have heard Mr. Aditya Parolia, learned Counsel for the Complainant, Mr. Rajeev Agarwal, learned Counsel appearing on behalf of the Opposite Party Developer, perused the material available on record and have given our thoughtful consideration to the various pleas raised by the learned Counsel for the Parties.

5. The contention of the learned Counsel for the Opposite Party Developer that the Complainant is not a ‘Consumer’ and that the subject Unit was booked to reap financial benefit 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 Developer 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.
6. Regarding the contention of the learned Counsel for the Opposite Party Developer that the Complainant is entitled for delay compensation only in terms of Clause 16 of the Agreement and they are ready to compensate the Complainant for delay in terms of Clause 16 of the Agreement, we have gone through the various clauses of the Agreement.  Clauses 13 and 16 of the Agreement read as under:-

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7. A bare perusal of above Clauses makes it clear that as per Clause 16(a) of the Flat Buyer Agreement, in case of delay the Opposite Party Developer is liable to pay ₹7.5/- per sq. ft. of the super built up area of the flat per month for the period of delay in offering of possession, whereas in terms of Clause 13.1 in case of late payment, the Complainant/Buyer is liable to pay interest @24% 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:-

8. As far as the plea regarding delay in Project due to re-structuring of Company and failure on the part of the Contractor to complete the work in time-bound manner is concerned, we observe that it is their internal matter and the Complainant/Allottee cannot be made victim for the same. 
9. As far as the plea of the learned Counsel for the Opposite Party Developer regarding forfeiture of earnest money is concerned, we are of the considered view that the OP Developer failed to deliver the possession within stipulated time and there was inordinate delay of more than 2 years in offering the Possession.  The Complainant was compelled to make a request of refund of the amount.  The Opposite Party Developer cannot take advantage of their own wrong as they were not in a position to deliver the possession within stipulated period.  Even otherwise, the Earnest Money Clause in the Agreement being wholly one-sided and unjustified constitutes an unfair trade practice and therefore, is not binding upon the Complainant in view of the Judgment passed by the Hon’ble Supreme Court in “Pioneer Urban Land & Infrastructure Ltd. (Supra)”.  Under these circumstances, the Opposite Party Developer is not entitled for forfeiture of Earnest Money. The Judgment passed by this Commission in the case of ‘Ramesh Malhotra & Ors. Vs. Emaar MGF Land Ltd. [CC No. 438 / 2019 dated 29.06.2020]’ as relied upon by the learned Counsel for the Opposite Party Developer, does not help him, as there was delay of about 14 months in delivery of possession in that case whereas in the case in hand, there is an inordinate delay of about 26 months, which in our considered view cannot be said to be a reasonable delay. 
10. Regarding the plea of the learned Counsel for the OP Developer that they have offered the Possession of the Flat on 25.10.2019 and the Complainant is not entitled for refund of the amount, a reference can be made to the Judgments passed by the Hon’ble Supreme Court in Civil Appeal No. 12238 of 2018 Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan & Connected Matter decided on 02.04.2019 and in ‘Civil Appeal No. 3182 of 2019 ‘Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra’ decided on 25.03.2019’.
11. In Kolkata West International City Pvt. Ltd. (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 ‘Kolkata West International City Pvt. Ltd. (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 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.”

12. 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, [(1994) 1 SCC 243] 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., [(2018) 5 SCC 442] 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.

13. In the instant case, it is not in dispute that the Complainant was allotted the Flat on 27.02.2013 and the proposed date for delivery of the possession was 11.08.2017 but the possession was offered by the Opposite Party Developer with a delay of more than 2 years only on 25.10.2019.  The Complainant cannot be made to wait indefinitely and he has sought refund of the amount paid by him to the Opposite Party Developer on account of the delay in offering possession of the allotted Unit to him.
14. Respectfully following the principles laid down by the Hon’ble Supreme Court in ‘Kolkata West International City Pvt. Ltd. (supra) and Pioneer Urban Land & Infrastructure Ltd. (supra), we are of the considered view that the Complainant is entitled for refund of the entire deposited amount along with damages and compensation.  Since the possession of the Unit has been offered by the Opposite Party Developer on 25.10.2019, the ends of Justice will be met if the Complainant is awarded damages and compensation in the form of simple interest @9% p.a. on the deposited amount with effect from the respective date of deposit till the date of offer of Possession, i.e., 25.10.2019. Consequently, the Opposite Party Developer is directed to refund to the Complainant ₹1,46,39,295/- (Rupees One Crore Forty Six Lacs Thirty Nine Thousand Two Hundred and Ninety Five only) alongwith interest @9% p.a. from the respective dates of deposit till the date of offer of possession, i.e., 25.10.2019, within 6 weeks from the date of passing of this Order.  Keeping in view the peculiar facts and circumstances of the case, there shall be no order as to costs.
15. The Consumer Complaint is partly allowed in above terms.  The pending applications, if any, also stand disposed off.