1. The present Consumer Complaint has been filed under Section 12(1)(a) of the Consumer Protection Act, 1986 (for short “the Act”) by Muzamil Mattoo and Mrs. Neha Godara (hereinafter referred to as the Complainants) against Opposite Party, M/s. Emaar MGF Land Limited (hereinafter referred to as the OP Developer), seeking possession of the Unit alongwith compensation for delay in delivery or in alternative refund of the amount paid towards purchase of Unit alongwith interest and costs as the Opposite Party Developer failed to deliver the Possession of the Unit within stipulated period, which was booked by them in the Project launched by the Developer in the name and style of “Emerald Floors” located at Sector—65, Urban Estate, Gurgaon, Haryana.

 

2. It has been averred in the Complaint that the Opposite Party Developer launched a Residential Project in the name and style of “Emerald Floors” located at Sector—65, Urban Estate, Gurgaon, Haryana (hereinafter referred to as the Project).  The Complainants booked a Unit in the said Project by paying a booking sum of ₹10 lakh to the OP Developer. Vide provisional allotment letter 13.09.2011, the Complainants were allotted Unit No. EFP-III-46-0402 for a sale consideration of ₹96,43,200/- exclusive of EDC and IDC.  Buyer’s Agreement (hereinafter referred to as the Agreement) was executed between the Parties on 09.03.2012, in which total sale consideration was mentioned as ₹1,04,00,200/-. As per Clause 11 of the Agreement, the delivery of the possession of the Unit was to be offered within 24 months with a grace period of 3 months from the date of the execution of the Agreement, i.e., by 09.07.2014. The Complainant had deposited ₹88,53,372/- on different dates upto the date of filing of the Complaint, as per demand of the Opposite Party Developer.  Despite that the Opposite Party Developer miserably failed to deliver the possession of the Unit within stipulated period.  It is also averred in the Complaint that the Complainants have availed Home Loan of ₹65 lakh from the HDFC Bank Limited and are paying interest @10.15% on the said loan to the Bank.  After lapsing a long period of more than 6 years from the date of execution of the Agreement and having made huge payment of ₹88,53,372/-, i.e., major part of the sale consideration, 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.  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:-

“a. Direct the Opposite Party to immediately give the possession of the Unit allotted to the Complainants alongwith an interest @24% on the amount deposited and / or;

 

b. Direct the Opposite Party to refund the entire amount paid by the Complainant amounting to ₹88,53,372/- alongwith an interest @24% on delayed possession immediately; and

 

c. Direct the Opposite Party to pay compensation of ₹25,00,000/- (Rupees Twenty Five Lacs Only) for the mental agony, loss of opportunity & finances, for the interest paid by the Complainants to the HDFC bank Limited towards the loan and harassment faced by the Complainants; and

 

d. pass any such other and further order(s) as this Hon’ble Commission may deem fit and proper in the interest of justice.”

 

3. The Complaint was resisted by the Opposite Party Developer by filing its Written Statement in which it was stated that the Complainant is resident of Mumbai and has purchased the Unit in question to reap financial benefit thus the Complainant does not fall within the ambit of a ‘consumer’.  It was further stated that the development work got slowed as many allottees including the Complainants have committed defaults/delayed in making payments to the OP Developer; OP 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. It was further stated that the Complainants are entitled for delay compensation in terms of Clause 13 the Agreement and not more than that.    

 

4. In addition to above, the other defence taken by the Opposite Party Developer, have already been considered and rejected in CC No. 34 of 2015 Jivitesh Nayal & Anr. Vs. M/s. Emaar MGF Land Ltd. & connected matters decided on 02.11.2017. Hence, the said grounds need not be examined again in these Consumer Complaints.  

 

5. The decision of this Commission in the case of Jivitesh Nayal & Anr. Vs. M/s. Emaar MGF Land Ltd. (supra) to the extent it is relevant reads as under:-

“7. On merits, the following contentions were advanced by Shri A.S. Chadhiok, learned senior counsel for the opposite party:

 

(a) In view of the Clause 13(a) read with Clause 15 of the BBA, compensation @ Rs.10/- per sq. ft. per month is in the nature of a stipulation by way of penalty and therefore, the upper limit of the compensation which can be awarded to the complainants, in the event of breach of contract by the opposite party.

 

(b) No evidence of actual damages, if any, caused to the complainants has been led and therefore, they are not entitled to any compensation or damages.

 

(c)　No loss or injury to the complainants has been established, and therefore, they are not entitled to any compensation.

 

(d)　No negligence on the part of the opposite party is proved or even alleged.

 

(e) The complainants are seeking specific performance of the contract between the parties, and therefore are bound by its terms.

 

8. Clause 13(a) and 15 of the BBA read as under:

 

　　 "13.　 POSSESSION –

 

　　(a)　Time of handing over the possession

 

Subject to terms of this clause and subject to the allottee(s) having complied with all the terms and conditions of the agreement, and not being in default under any of the provisions of this Agreement and compliance with all provisions, formalities, documentation etc., as prescribed by the company, the company proposes to hand over the possession of the Independent Floor within 27 months from the date of execution of this Agreement.　 The allottee(s) agres and understands that the company shall be entitled to a grace period of three months for applying and obtaining the occupation certificate in respect of the Independent Floor and / or the project.

 

15.　　 COMPENSATION –

 

(a) In case within a grace period of six months as stated in clause 13(a), the company is not able to hand over the possession to the Allottee(s), the Allottee(s) shall be entitled to payment of compensation for delay at the rate of Rs.10/-(Rupees ten only) per sq. ft. per month of the super Area till the date of notice of possession under the provisions of Clause 14(a), provided the allottee(s) has complied with all the terms and conditions of this Agreement.　 The Allottee(s) shall have no other claim against the company in respect of the said independent floor and parking space under this Agreement during such extended period.

 

(b) The Allottee(s) agrees that the compensation as payable under clause 15 (a) hereinabove shall be payable only after making payment of all charges and clearing off all dues as reserved in this Agreement and after allottee(s) fulfils all the condition as set out in clause 14(b).

 

(c) The allottee(s) agrees and understands that the compensation as mentioned hereinabove, that may become payable to the allottee(s) will be paid only if the allottee(s) has not defaulted and or breached the terms of the Buyer’s Agreement or defaulted in payments as per the Schedule of Payment annexed hereto this Agreement or in other words has complied with all the terms and conditions of the Agreement.

 

(d) Notwithstanding anything contained hereinabove or elsewhere in this Agreement, in the event if there is delay in handing over possession due to the delay or non-receipt of the occupation certificate, completion certificate and / or any other permission / sanction from the competent authorities, then in such an event no such compensation or any other compensation shall be payable to the allottee(s).

 

8. In terms of Section 14(1)(e) of the Consumer Protection Act, if this Commission is satisfied that any of the allegations contained in the complaint about the services of the opposite party are proved it is required to issue an order to the opposite party directing it to remove the deficiencies in the services in question.　 In terms of Section 14 (1)(d) of the Act this Commission is also required to pass an order directing the opposite party to pay compensation to the complainants for any loss or injury suffered by them due to the negligence of the opposite party.　 If the builder, whose services are engaged by a buyer for construction of a residential house for him fails to complete the construction and deliver its possession on or before the date committed by him for the purpose, such an act on the part of the builder would be an act of negligence, causing loss or injury to the flat buyer.　 The term ‘negligence’ has not been defined in the Consumer Protection Act but as per its dictionary meaning, it is the failure to give enough care or attention especially when such an act has serious results for another person (Oxford Advanced Learner’s Dictionary, New 8th Edition).　 As per Black’s Law Dictionary IX Edition, negligence includes the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation.　 In the absence of force-majeure circumstances, a prudent builder in place of the opposite party would have been in a position to construct the flats and offer their possession to the complainants on or before the date committed for this purpose or at best within the grace period available under the BBA.　 By not delivering on the commitment made by it with respect to the delivery of the possession of the flats booked by the complainants, the opposite party certainly committed an act of negligence and since the said act of negligence has resulted in loss or injury to the complainants who have been deprived f the user of the flats booked by them, compensation in terms of Seciton14 (1)(d) of the Consumer Protection Act can be awarded to the complainants, against the opposite party.

 

　　　Since the Act empowers this Commission to direct removal of the deficiencies in the service in question, the opposite party, in exercise of the aforesaid power of this Commission, can also be directed and in fact ought to be directed to complete the construction and deliver possession of the flats to the complainants at the earliest possible.　 Therefore, both the directions sought by the complainants viz. direction for completion of the construction and delivery of possession of the flats and the direction for payment f compensation for the period the possession is delayed are within the competence of this Commission under Section 14 of the Consumer Protection Act.　 Therefore, it is not correct to say that the complainants are seeking specific performance of the agreement they had executed with the opposite party.　 The specific performance of a contract can be sought before a Civil Court in terms of the provisions contained in the Specific Relief Act 1963.　 Neither this Commission is a Civil Court nor have the complainants invoked the provisions of the Specific Relief Act, 1963.

 

9. Also, I find no merit in the contention that the compensation stipulated in Clause 15(a) of the BBA is in the nature of a penalty attracting applicability of Section 74 of the India Contract Act.　 The aforesaid compensation is a unilateral and patently unfair term imposed by the builders upon the flat buyers.　 Having already paid the booking amount to the builder, they have no option but to sign on the dotted lines, since the failure to execute the agreement unilaterally drafted by the builder and imposed upon the flat builders is likely to result in the booking amount being forfeited by the builder.　 Therefore, executing an agreement containing such a term is nothing, but a consent given under coercion and cannot be said to be the result of the exercise of a free consent on the part of the flat buyer. Moreover, a term to pay such a paltry compensation to the flat buyer in the event of default on the part of the builder, while making him pay exorbitant interest in the event of default or delay on his part is an absolutely unfair term. 　In fact, the incorporation of a term for　 payment of a paltry compensation to the buyer in the event of the failure of the builder to deliver possession within the time period committed by him, had become so wide spread and rampant that the Legislature had to step in by enactment of the Real Estate (Regulation & Development) Act, 2016 to statutorily require the builder to pay compensation in the form of interest at prescribed rate in the event of the possession being delayed or the buyer deciding to quit on account of the delay on the part of the builder in delivering upon the promise made by him. Therefore, irrespective of Clause 15(a) of the BBA, the complainants in my view are entitled to a just and fair compensation for the period the possession of the flats is delayed by the opposite party.

 

10. I am also unable to accept the contention that the complainants have failed to prove any loss or injury to them on account of the failure of the opposite party to deliver the possession of the flats on or before the time period stipulated in the BBA.　 Had the opposite party delivered possession of the flats within the time stipulated for this purpose, the complainants would have been enjoying the use and possession of the flats booked by them. They have been deprived of the user of the flats on account of the default committed by the opposite party. It can hardly be disputed that the deprivation of the user of a self- owned house amounts to a serious injury to the flat buyer who has booked the flat for the purpose of having a shelter over his head and therefore, has either to live in a rented accommodation or an accommodation which is not suitable or convenient to him. Also, we need to appreciate the satisfaction and enjoyment one would have if he lives in a house of choice owned by him as against living in a rented accommodation or in an accommodation which is not owned by him or is not otherwise suitable or convenient to him.

 

11. If a paltry compensation of say Rs.10/- per sq. ft. per month is awarded against a builder, it may lead to dangerous consequences since the builder may be tempted not to complete the construction and divert the money collected from the flat buyers for other purposes, in the hope that in the event of the buyer approaching a Court or a Consumer Forum, he can get away by paying a paltry compensation of Rs.10/- per sq. ft. per month to him. Paying such a meagre compensation would always be a win win situation for a builder who is likely to pay many times more if he goes to market for arranging finances which he gets by diverting the money collected from the flat buyers to other purposes.　 This Commission, therefore, ought to refrain from taking a view which would lead to such serious consequences, against the innocent flat buyers.　 I also find some merit in the contention of the complainants that in a situation where the builder despite taking money from the flat buyers does not utilize the whole of the said money only for th construction of the flat sold to him, the amount which the builder has collected from the flat buyers should be treated as a cash deposit with the builder who should pay adequate interest to the flat buyer for utilizing his money."

 

12. For the reasons stated hereinabove, I hold that:

 

(i)　 The opposite party has been negligent in the matter of rendering services to the complainants

 

(ii)　The flat buyers have suffered loss and injury due to negligence of the opposite party

 

(iii)　The term for payment of compensation under Clause 15(a) of the BBA does not bind the complainants, who are entitled to just and fair compensation against the opposite party for the deficiency on the part of the opposite party in the services rendered to them.

 

(iv) The complainants are not seeking specific performance of the BBA in terms of the Specific Relief Act, 1963 but are seeking compensation in terms of Section 14(1)(d) of the Consumer Protection Act and

 

(v)　This Commission in exercise of the powers conferred upon it by Section 14(1)(e) of the Consumer Protection Act can direct the opposite party remove the deficiencies in the services by completing the construction and delivering possession of the flats within a reasonable time."

 

6. The Opposite Party Developer has preferred a Civil Appeal Diary No(s). 7840/2018 – M/s. Emaar MGF Land Ltd. Vs. Kumar Vaibhav & Anr. before the Hon’ble Supreme Court against the above referred decision of this Commission and the Order passed by this Commission has been partially stayed by the Hon’ble Supreme Court vide its Order dated 27.04.2018, which reads as under:

“There shall be stay of the impugned order to the extent of 50% of the interest amount directed to be paid to the respondents in terms of clause(b) of the said order. In so far as the remaining 50% amount is concerned, an amount of Rs.10/- per sq. ft. per month would be paid to the respondent(s) by the petitioner while the balance amount will be deposited in court. Such amount deposited in court would be kept in a fixed deposit initially for a period of six months to be kept renewed. The payment and deposit be made within two weeks.”

 

7. The Complainant has relied upon Judgments passed by this Commission on the same Project against the same Developer in ‘T.P. Malhotra vs. Emaar MGF Land Ltd. [CC No. 762 / 2015 decided on 28.11.2019]; Amitava Shankar Guha Vs. Emaar MGF Land Ltd. [CC No. 1712 / 2017 decided on 23.04.2019] and Prashant Kishore Vs. Emaar MGF Land Ltd. [CC No. 764 / 2015 decided on 05.08.2019] in support of his contentions.  

 

8. In the written submissions filed on behalf of the OP Developer, it was submitted that the Occupation Certificate has been received and they have sent Offer for possession to the Complainant on 07.11.2020 but the Complainant has not taken the possession.  It was also submitted that during the pendency of the Complaint, the Complainants have also filed similar Complaint seeking the same relief before RERA, Gurugram on 10.01.2020 and the Complainants cannot be permitted to seek the same relief before two Forums simultaneously. It was prayed that the Consumer Complaint be dismissed.

 

9. We have heard Ms. Harshika Verma, learned Counsel for the Complainants, 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.

 

10. The contention of the learned Counsel for the Opposite Party Developer that the Complainants do not fall under the category of ‘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 (NC), 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 Complainants are ‘Consumer’ as defined under Section 2 (1)(d) of the Act.

 

11. 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 13(a) of the Agreement, we have gone through the various clauses of the Agreement.  Clauses 13(a) and 14.1 of the Agreement read as under:-

“13. Compensation

(a) In case within a grace period of three months as stated in clause 11(a) and an additional period of three months, the Company is not able to hand over the possession to the Allotee(s), the Allottee(s) shall be entitled to pay of compensation for delay at the rate of Rs.5/- (Rupees Five only) per sq. ft. per month of the Super Area till the date of notice of the possession under the provision of clause 12(a), provided the Allottee(s) has complied with all the terms and conditions of this Agreement. The Allottee(s) shall have no other claim against the Company in respect of the said Unit and car parking space under this Agreement during such extended period. 

 

14.1 It is agreed by the Allottee(s) the in the event of the failure of the Allottee(s) to take the possession of the said Unit in the manner as aforesaid in clause 12, then the company shall have the option to cancel this Agreement and avail of the remedies as stipulated in clause 17 of this Agreement or the Company may, without prejudice to its rights under any of the clause of this Agreement and at its sole discretion, decide to condone the delay by the Allottee(s) in taking over the said Unit in the manner as stated in this clause on the condition that the Allottee(s) shall pay to the company the following amount:

 

(a) …….

 

(b) Simple interest @ 24% per annum on the amount due as mentioned in the notice for possession from the due date till date of the payment.” 

 

12. A bare perusal of above Clauses makes it clear that as per Clause 13.1 of the Agreement, in case of delay the Opposite Party Developer is liable to pay ₹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 14.1(b) 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: 

“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.”

 

13. As far as the plea regarding default in making payment by the Allottees including the Complainants is concerned, the Opposite Party was at liberty to take action against the defaulters in terms of the Agreement.    The OP Developer neither cancelled their allotment nor refunded their deposited amount but condoned the default by charging delayed interest.  The OP Developer can arrange funds from the open market and manage the development work at the Project.  Now at this belated stage, the OP Developer cannot escape from its liability to pay delay compensation to the Complainants under the plea that the Complainants have defaulted in making payment for which the Complainants have already paid delayed charges to the OP Developer.   

 

14. So 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 Complainants/Allottees cannot be made victim for the same.

 

15. The next contention of the OP Developer that the present complaint is not maintainable as during the pendency of the Complaint the Complainants had filed Complaint before HRERA, Gurugram on 10.01.2020.   As laid down by the Hon’ble Supreme Court in the case of “M/s. Imperia Infrastructure Ltd. vs. Anil Patni and Anr.” reported in 2020 10 SCC 783, the Doctrine of Election is applicable and it is always open to a person either to approach the fora under the Consumer Protection Act, 1986/2019 or to approach any other Authority under Real Estate Regulatory Authority Act, 2016 or NCLT under the provisions of Insolvency and Bankruptcy Code, 2016 for redressal of his grievance.  The person who has approached to any of the Authorities referred to above, at the first instance, is estopped from approaching other two Authorities as Doctrine of Election applies. Admittedly, in the present case, the Complainants had approached this Commission by filing the present Consumer Complaint on 19.11.2018, i.e., prior to filing of Complaint before HRERA, Gurugram.  Thus, strictly speaking the Doctrine of Election has to be applied and the present Complaint is maintainable before this Commission.

  

16. It is not in dispute that the Complainants were allotted the Unit in the year 2011, the Agreement was executed between the Parties on 09.03.2012 and the date for delivery of the possession of the Unit was 09.06.2014, but the OP Developer offered the Possession to the Complainants only on 17.11.2020, i.e., during the course of the Proceedings, with an inordinate delay of more than 6½  years, for which the OP Developer is liable to pay delay compensation to the Complainants.

 

17. We find it a fit case to place reliance on the Judgment dated 11.01.2021 passed by the Hon’ble Supreme Court in “Ireo Grace Realtech Pvt. Ltd. vs. Abhishek Khanna & Ors.” [Civil Appeal No. 5785 / 2019 & other connected Appeals], in which the Hon’ble Apex Court has observed as hereunder :

“.......We are of the view that allottees at Serial Nos. 1 and 2 in Chart A are obligated to take possession of the apartments, since the construction was completed, and possession offered on 28.06.2019, after the issuance of Occupation Certificate on 31.05.2019. The Developer is however obligated to pay Delay Compensation for the period of delay which has occurred from 27.11.2018 till the date of offer of possession was made to the allottees..” 

 

18. For the reasons stated hereinabove, we are of the considered view that the Complainants are entitled for delay compensation w.e.f. 09.06.2014 till the date of offer of possession, 17.11.2020.  Since the matter was sub-judiced before this Commission, the OP Developer shall not be entitled for any delay / holding charges w.e.f. the date of offer of possession, i.e.. 17.11.2020 till the date of actual possession.  Consequently, the Consumer Complaint stands disposed of with the following directions:-

(i) The Opposite Party Developer is directed to pay delay compensation in the form of interest @8% p.a. on the amount deposited by the Complainants, w.e.f. 09.07.2014 till 17.11.2020, within six weeks from today.  

(ii) The Opposite Party Developer shall work out the Compensation in terms of this Order, after making adjustment of the outstanding charges payable by the Complainants and make payment of the balance compensation amount, if any, to the Complainants within six weeks from today;

(iii) After adjusting the delay compensation, if any amount remains payable by the Complainants, the Complainants will make the payment of the shortfall to the Opposite Party Developer before getting the delivery of the possession of the Unit;

(iv) The Opposite Party Developer shall deliver the possession of the Unit, complete in all respects, to the Complainants within eight weeks from today.

(v) The Opposite Party shall pay ₹25,000/- as the cost of litigation, within six weeks from today.

 

(vii) The pending Applications, if any, also stand disposed off.