DR. INDER JIT SINGH, MEMBER

1. The present Consumer Complaint (CC) has been filed under Section 12 of the Consumer Protection Act,1986( for short ‘the Act’) by the Complainant against Opposite party (OP) as detailed above, inter alia praying for:-

1. To direct OP to refund Rs. 88,58,937/- along with interest @ 24 %  p.a. from the date of each payment by the Complainant, the rate at which, the OP has collected the late payment from the Complainant.

2. Or in alternative, direct the OP to deliver fully completed unit to Complainant along with compensation for delay w.e.f 08.08.2015 calculated @ 24% p.a. on amount deposited by the Complainant.

3. To direct OP to pay Rs.10 lakhs as compensation towards mental agony and harassment to the Complainant.

2. Notice was issued to OP on 13.08.2018, giving them 30 days time to file written statement.

3. It is averred in the Complaint that: -

1. The complainant booked a residential apartment with the OP in a project namely ‘Palm Gardens’ which the OP was to develop in Sector 83 of Gurgaon. The booking was made on 23.4.2011 paying a booking amount of Rs.7,50,000/-. After allotment of a residential apartment bearing No. 05/202 to the complainant the parties executed an agreement on 30.05.2011, incorporating their respective obligations in respect of the said transaction. As per the  Buyers agreement (hereinafter referred to as agreement), the possession was proposed to be handed over to the complainant within thirty six months from the start of construction. A grace period of three months was also available to the OP. The construction as per the brochure, which the OP had issued in respect of the said project, started on 09.08.2012. It was also stated in the brochure that the construction was progressing as per schedule and the expected delivery was 08.08.2015. The grievance of the complainant is that the possession has not been offered to him and the construction is not complete, despite he having paid Rs. 88,58,937/- out of the agreed sale consideration of Rs. 93,51,388/-.

2. OP have used their dominant position and arbitrarily imposed illegal demands for payments i.e on exorbitant interest of 24% p.a. on delayed payments, the said unit and other amenities promised were not ready for possession.

3. It is averred that the Complainant has issued legal notice dated 08.08.2017 to OP, however no reply of said letter has been given by OP.

4. It is further averred that cause of action arose on April, 2011 when the Complainant booked the unit and is continuing till date.

5. The conduct of the OP falls under the definition of unfair trade practices and deficiency in services.

4.  The OP in their written statement/reply stated that:-

1. This commission lacks pecuniary jurisdiction and the complainant has inflated the amount in order to reach the jurisdiction.

2. Clause 32 of the agreement states that any dispute arising between the parties shall be settled through arbitration.

3. The Complainant has bought the flat for investment purpose and cannot be termed as Consumer under the said Act, and the burden of proof lies on the consumer to prove whether he has bought the unit for commercial purpose or investment purpose, which has not been disclosed by the Complainant.

4. They could not complete the construction due to unavaiodable force majeure circumstances and slow work by the Infrastructure Leasing and Finance Ltd. (to whom the construction work was entrusted). Further insolvency proceedings against IL&FL, were admitted in NCLT, Mumbai which led to the delay in construction of the project.

5. It is averred that this Commission cannot amend or modify the terms of the agreement, and the Complainant is praying for relief not mentioned in the agreement.

6. The present complaint is time barred as it is filed beyond the time prescribed under Section 24A of the Act.

7. It is further averred that the Complainant is a chronic defaulter and has not made the payment on time, despite delay from him, OP offered the possession of flat on 19.03.2018, but Complainant has not taken the possession in order to extract money from OP.

8. OP has denied allegations of unfair trade practices, deficiency of services etc., stating that the Complainant signed the agreement with his full consent.

5. Complainant in his rejoinder while denying the allegations of OP, stated that:-

1. He has not been a chronic defaulter, he only missed some payments due to his duty, as he is a Brigadier in Indian Army and is located in places outside.

2. Arbitration clause in agreement does not bar the jurisdiction of this Hon’ble Commission.

3. He has not bought the house for investment purpose.

4. Time is the essence of contract and OP is liable to deliver the possession as per the agreement.

5. Complainant has taken the home loan and paying the EMI’s of it, which led to financial loss to him.

6. Evidence by way of an Affidavit was filed by the complainant broadly on the lines of averments made in the complaint. Written Synopsis was filed by the Complainant and OP. This Commission vide order dated 13.09.2022 allowed the I.A no.1249 of 2021, filed by OP in order to place certain necessary documents on record. The documents are taken on record by this Commission.

7.  The details of the flats allotted to the Complainant:-

8.  Heard counsels of both sides. The learned counsel for the Complainant while reiterating the facts of the complaint and denying all allegations of OP stated by them in their written statement, cited various Hon’ble Supreme court judgements to support their contentions. The learned counsel for the OP while reiterating their contentions cited various Supreme court judgements in support of their contentions and stated that, they have offered possession to the Complainant after getting occupancy certififcate and according to law laid down by this Commission, if possession has been offered after occupancy certificate, the allottee is obliged to take over the possession and further stated that compensation can be made only on well recognized principle, governing the quantification on a rational basis, further the compensation should not be granted on multiple heads.

9.  The contention of OP that this Commission lacks pecuniary jurisdiction is not valid. Under Section 21 of the Act, Commission has the jurisdiction where value of goods and services and compensation, if any, claimed exceeds Rs one crore. The objection that the Complaint is barred by limitation is also not accepted. The OP have failed to deliver the possession of the unit to the complainant till date and therefore, the cause of action is continuing. The contention that complainant is not a consumer as he has purchased the unit for commercial purpose is also rejected as no such evidence has been adduced by the OP in this regard. The plea of OP that delay was due to force majeure circumstances has some weight.  The construction was entrusted to M/s IL & FS, who was a well established/reputed company at that time, but did not deliver as per agreed time lines, and later on insolvency proceedings were initiated against the M/s IL & FS. The offer of possession was given after obtaining occupation certificate, but with a delay of about 2 and a half years from the committed date of possession as per the agreement, which according to OP is not unreasonable in view of the circumstances beyond their  control.  Hence, this complainant is liable to take the possession and not entitled for refund. We tend to agree with the contentions of the OP.    The contention of the OP that the parties are bound by the agreement is also not acceptable. Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raglivan II (2019) CPJ 34 (SC) decided on 02.04.2019 held that “a term of a contract will not be final and binding if it is shown that the flat purchasers had no option to sign on the dotted line, on a contract framed by the builder ......... the incorporation of one sided clause in an agreement constitute 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 flats by the builder ........., the appellant-builder cannot seek to bind the respondent with such one sided contractual terms.”   

10. For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, the Consumer Complaint is allowed/disposed off with the following directions/reliefs: -

(i) The OP shall deliver physical possession of the unit/flat in question, as per the specifications and along with all the facilities and amenities as promised in the brochure and/or agreed to in the agreement, complete in all respects, within three months from the date of this order, subject to payment of balance due amount and completion of the formalities as per the agreement.

(ii) The OP shall also arrange a joint physical inspection of the unit with complainant/his representative and OP’s representative, within 15 days of this order to enable both the complainant and opposite party to take stock of the latest situation.  If any defects/deficiencies are noticed as per the joint inspection report so prepared, the same shall be removed/rectified by the OP within 30 days of date of joint inspection report.  Thereafter, the OP shall inform the complainant in writing, about the readiness of the said unit for physical possession within 7 days of rectification of all such defects, giving him 30 days’ time from the date of communication informing complainant about the readiness of the unit for possession to deposit the balance due amount and complete other formalities as per the agreement without charging any interest on such due amount or imposing any other penalties.

(iii) The OP shall also pay delay compensation in the form of simple interest @6% per annum on the total amount paid till date from the committed date of possession (08.11.2015) till the date of offer of possession (19.03.2018).  The amount of delay compensation shall be adjusted from the balance amount payable by the Complainant for taking possession, and balance, if any, be paid within three months of this order.

(iv) The OP shall pay a sum of Rs.25,000/- as cost of litigation to the complainant.

11. The pending IAs, if any, also stand disposed off.