1.       In the Project, christened as “The Enclave” situated at Sector-66, Gurgaon, Haryana, admeasuring super area 1920 sq. ft., launched by the Opposite Party, a Residential Unit, being Unit No. TEN-P-F01-03, was purchased by the Complainants in order to provide their family with quality standard of living in a spacious apartment.  The Complainants are the subsequent Buyers of the Unit that had been purchased by them from one Ms. Archana Tanwar (hereinafter referred to as the Original Buyer) on 05.07.2013.  Initially, the Original Buyer had booked one such Unit in the Project known as “The Meadows” of the Opposite Party but on the option given to her by the Opposite Party vide letter dated 08.06.2009 (Annexure C-2), the booking was transferred to a new Project, namely, “The Enclave” and the Unit in question had been allotted to her vide Provisional Allotment Letter dated 13.01.2010 (Annexure C-3). The sale consideration for the said Unit was Rs.62,36,784/- and the amount of Rs.60,33,230/- paid by her towards the initial Unit had been adjusted towards the consideration of the new Unit in question.  On 14.09.2010, the Apartment Buyer’s Agreement, hereinafter referred to as the Agreement (Annexure C-4), was executed between the Original Buyer and the Opposite Party.  Subsequently on 05.07.2013 an Agreement to Sell was executed between the Original Buyer and the Complainants, which had been duly endorsed by the Opposite Party in favour of the Complainants on the said date (see page 116 of the Complaint), and the Complainants had paid a sum of Rs.70,00,000/- to the Original Buyer as the sale consideration for the Unit in question. Vide Nomination letter dated 12.07.2013, the transfer was also acknowledged by the Opposite Party.  Both the Agreement to Sell dated 05.07.2013 and the Nomination letter dated 12.07.2013 are annexed to the Complaint as Annexure C-5 (Colly.). 

2.       As per Clause 14(a) of the Agreement, the possession of the Unit was to be delivered/handed over within 30 months, including a grace period of 6 months, from the date of start of construction.  The Opposite Party was to handover possession by 21.02.2013 as the Project had started on 21.08.2010.  The said Clause of the Agreement reads as under:

“14(a) Subject to terms of this clause and the Allottee(s) having complied with all the terms and conditions of this Agreement and not being in default under any of the provisions of this Agreement and upon complying with all provisions, formalities, documentation etc. as prescribed by the Developer, the Developer proposes to hand over the possession of the Unit within 24 months from the start of construction.  The Allottee(s) agrees and understands that the Developer shall be entitled to a grace period, for applying and obtaining the occupation certificate in respect of the Complex.”

3.       It is averred that a sum of Rs.60,33,230/- stands paid by the Complainants to the Opposite Party, which is in excess of Rs.1,29,923/- as per the Revised Statement issued by the Opposite Party to the Complainants.

4.       Though, as per the assurances given by the Opposite Party at the time of purchase of the Unit in question by the Complainants from the Original Buyer, the Unit was required to be handed over to the Complainants by October, 2013 but the Opposite Party failed to deliver possession of the Unit within the promised time period.  The Complainants vide their various emails communicated their concerns to the Opposite Party, which kept on giving false assurances to the effect that the Occupation Certificate will be applied for in the first quarter of 2014.  Vide their emails dated 30.04.2015 and 18.04.2017 (which had been sent by the Opposite Party pursuant to the Complainants’ email dated 17.04.2017, whereby they had enquired about the status of construction), the Opposite Party admitted to the delay in delivery of the Unit in question and agreed to pay compensation therefor. 

5.       However, vide Demand Letter dated 30.01.2018, the Opposite Party raised a demand of Rs.2,25,056/-, which seems to have been raised towards receipt of the Occupation Certificate.  The Complainants vide their email dated 30.01.2018 itself and letter dated 06.02.2018 objected to the said demand and asked for address of their queries with regard to delay compensation but the Opposite Party did not give any satisfactory answer to the same. 

6.       After a delay of about 4 years from the promised date of delivery, on 15.03.2018 the Opposite Party sent the letter of offer of possession to the Complainants along with the final demand for payment.  It is stated by the Complainants that the Opposite Party did not adjust the delay compensation and unilaterally increased the super area of the Unit in question from 1920 sq. ft. to 2130 sq. ft., resulting in the increase in the cost of the Unit in question by Rs.8,40,139/-.  The increased cost was adjusted towards the amounts to be paid to the Complainants towards EPR (Early Payment Rebate) and delay compensation without their permission and vide their email dated 16.03.2018 the Opposite Party sought more time to adjust the delay compensation credit in the Offer of Possession and vide their emails dated 19.03.2018 and 18.04.2018 agreed to pay compensation from the promised date of possession, i.e. October, 2013.

7.       Further, vide their email dated 27.04.2018 (Annexure-12) the Opposite Party issued to the Complainants a revised statement of account, reflecting the amount of Rs.77,09,163/- received by the Opposite Party, which included (i) the amount of Rs.10,96,765/- adjusted by the Opposite Party towards Early Payment Rebate and (ii) delay compensation at Rs.5/- per sq. ft., i.e. Rs.5,79,168/-, calculated on super area of 2130 sq. ft. for a period of October, 2013 to March, 2018, whereas the Opposite Party was charging exorbitant interest @ 24% for delay in the payment by the Buyers.  Despite various emails exchanged between the Parties from 28.05.2018 to 10.02.2019, neither any satisfactory reply had been given by the Opposite Party nor the compensation payable to the Complainants on account of delay in offering possession of the Unit in question had been given.

8.       Vide their letter dated 01.03.2019 the Opposite Party raised the demand towards holding charges, which was vehemently objected to by the Complainants, stating that it was not maintainable in light of the judgment of this Commission in CC No. 351 of 2015 (Capital Greens Flat Buyer Association Vs. DLF Universal Ltd.). 

9.       Though the Opposite Party was required to deliver/handover possession of the Unit in question to the Complainants by October, 2013 but it failed to do so.  It had no reasonable justification for the inordinate delay in the delivery of the possession and none of circumstances resulting in delay were beyond its control.  Further, it had unjustifiably levied delayed payment charges and other charges on the Complainants. Though the Complainants have parted with their lifetime savings for the Unit in question but the purpose of purchasing it has been frustrated because of inordinate delay and unjustified levy of various charges.

10.     In this factual matrix, being aggrieved by the deficiency in service and unfair trade practices of the Opposite Party, the Complainants have filed the present Complaint, seeking the following reliefs:

“A.     Direct the Opposite Party to handover possession of the Unit to the Complainants, complete in all respects and in conformity with the Buyer’s Agreement and for the consideration mentioned therein, with all additional facilities with warranties and as per quality standards promised and execute all necessary and required documents in respect of the said Unit in favour of the Complainants immediately …

B.       Direct the Opposite Party to pay interest @ 15% per annum on the amount deposited by the Complainants with the Opposite Party, with effect from the date of delivery promised in the Agreement, till the date of actual possession as per clause (a) above is handed over by the Opposite Party along with all necessary documents and common areas and facilities as promised during the initial booking made by the Complainants;

C.       Direct the Opposite Party to refund the excess amount of Rs.8,40,139/- (Rupees Eight Lakh Forty Thousand One Hundred and Thirty Nine Only) along with the interest on that amount at the rate of 18% p.a., arbitrarily charged by them on account of increase in area without the permission of the Complainants;

D.      Direct the Opposite Party to adequately compensate the Complainants for the extra expenditure that will be incurred by them due to the arbitrary increase in area;

E.       Direct the Opposite Party not to charge additional maintenance charges for the increased super area of 210 sq. ft.;

F.       Direct the Opposite Party to refund the excess amount of Rs.1,29,923/- (Rupees One Lakh Twenty Nine Thousand Nine Hundred and Twenty Three Only) along with the interest on that amount at the rate of 18% p.a., as excess amount which is lying with the Opposite Party;

G.      Direct the Opposite Party to pay compensation of Rs.10,00,000/- (Rupees Ten Lakhs Only) to the Complainants for mental agony, harassment, discomfort and undue hardships caused to the Complainants a result of the above acts and omissions on the part of the Opposite Party;

H.      Direct the Opposite Party to pay a sum of Rs.1,00,000/- (Rupees One Lakh only) to the Complainants as a whole, towards litigation costs;

I.       Direct the Opposite Party to refund wrongfully charged taxes and other charges along with the interest on that amount at the rate of 18% p.a. from the date of receipt of such wrongfully levied charges and taxes;

J.       That any other and further relief in favour of the Complainants as the Hon’ble Commission may deem fit and proper in the fact and circumstances of the case.”

11.     The Complaint has been resisted by the Opposite Party.  While admitting about the allotment of the Unit in question to the Original Buyer, repurchase of the said Unit by the Complainants, and endorsement of the Agreement executed between the Original Buyer and the Complainants by the Opposite Party on 05.07.2013, it has been stated on its behalf that the actual physical possession of the Unit had been offered to the Complainants vide letter dated 15.03.2018, with a request to make the payment of final dues and other statutory charges for the purpose of taking possession on or before 14.04.2018, but the Complainants did not complete the formalities.  In terms of the Agreement dated 14.09.2010, which had been endorsed in favour of the Complainants on 05.07.2013, the Opposite Party has settled all the accounts/dues/charges, as evident from the Statement of Account.  As per the Statement, a compensation of Rs.5,79,168/- towards the delay in delivery of possession and Early Payment Rebate of Rs.7,31,177/- (this amount should be Rs.10,96,765/- as a further sum of Rs.3,65,588/-, which had been credited to the Complainants, has also been shown in the said Statement) have been given to the Complainants though there was default on the part of the Complainants in depositing the demanded amounts. The Complaint is not maintainable as the Complainants do not fall within the purview of Section 2(1)(d) of the Consumer Protection Act, 1986.  They are permanent residents of Gurgaon, which is admitted from the documents on record, and have purchased the Unit in question in resale from the previous allottee for the purpose of investment/commercial purpose.  The Complainants were fully aware about the physical condition of the Project, construction status of the Unit in question and the fact that the completion period of the Unit had already passed at the time of repurchase on 05.07.2013. As per the Agreement, the possession was to be handed over within 24 months from the start of the construction with an additional grace period of 6 months, which period ended on February 2013 as the excavation started on 21.08.2010. The Opposite Party had clearly presented to the Complainants that there will be delay in handing over the possession and, therefore, the Complainants had submitted the Indemnity-cum-Undertaking dated 05.07.2013 as also Affidavits, under which they had undertaken and agreed that they will not be entitled for compensation for delay in handing over the possession.  The said documents had been submitted by the Complainants after getting agreed with the terms and conditions applicable for the transfer of the Unit in question in their name.  However, after offering of possession by the Opposite Party on 15.03.2018, the Complainants themselves breached the conditions of their own documents and made claim for compensation for delay in delivery of possession @ 15% interest p.a. on the amount deposited and also penal interest, which is barred by law.  In terms of Clause-16 of the Agreement dated 14.09.2010, the Complainants have agreed to the accept the penalty in the nature of liquidated damages @ Rs.5/- per sq. ft. per month in case of delay in possession beyond the date as mentioned therein.  The Complainants at no point prior to the filing of the Complaint or even in the entire Complaint have challenged the said Clause of the Agreement, providing for liquidated damages to the Complainants in the case of delay.  Though the Complainants were not entitled for compensation and other benefits, yet the Opposite Party had given them compensation for delay in the handing over possession as also the benefit of Early Payment Rebate, referred to above. The excavation of the Project started in August, 2010 and entire basic construction, including the internal flooring was completed in November, 2014.  There was a slowdown situation in the real estate in the year 2014 and continued till the present years, on account of which many allottees of the Project did not make the payments timely.  Due to this reason and since the Project was dependent upon the availability of funds, there was delay in the completion of the Project. The Contractors appointed by the Opposite Party were delaying construction, resulting in the appointment of new Contractors for completing the affected work.  Despite all hardships, the Opposite Party completed the Project and offered the possession to the Complainants.  During the aforesaid period, the Opposite Party had undergone restructuring and in order to ensure development of the on-going Projects, the Opposite Party had undergone the process of demerger pursuant to a Scheme of Arrangement under Sections 391-394 of the Companies Act.  This fact was duly informed by the Opposite Party to the Complainants and other Unit Buyers.  Various orders of the Courts/National Green Tribunal etc. have also caused hurdles in smooth development of the Project, resulting in the delay and escalation of the cost of the Project, for which it cannot be said that the Opposite Party has deliberately delayed the Project to earn profit.  Clause 14(a) of the Agreement dated 14.09.2010, which provides for handing over possession of the Unit within 24 months from the start of construction with additional grace period of 6 months for applying and obtaining completion/occupation certificate, cannot be read in isolation but has to be read with other Sub Clauses and Clauses of the Agreement, which relate to Force Majeure event or any other reason beyond the control of the Opposite Party, for which reason the period for delivery of possession shall stand extended.  As per Clause 16 of the Agreement, the compensation for delay in delivery of possession beyond the period as specified in Clause 14(a) of the Agreement is subject to Allottee fulfilling all the terms and conditions of the Agreement and not being in default of any of the terms and conditions of the Agreement, including the payment plan.  The Opposite Party has complied with Clause 16 of the Agreement and the Complainants, who are bound by the contractual terms of the Agreement, are not entitled to claim any relief beyond the scope of the Agreement.  Further, the Complaint is not maintainable in view of Clause-37 of the Agreement dated 14.09.2010, which provides for adjudication of disputes between the Parties by a Sole Arbitrator, appointed in the manner agreed by the Parties, and also Clause-39, whereby the Parties have agreed for the exclusive jurisdiction of the Hon’ble Courts at Gurgaon.  All the demands towards the payments have been raised as per the agreed terms and conditions of the Agreement dated 14.09.2010.  It is stated that the Complaint had been filed beyond the time prescribed under Section 24A of the Consumer Protection Act, 1986 vis-à-vis the cause of action and, therefore, it was not maintainable.  There was no deficiency in service or failure in service or unfair trade practices on the part of the Opposite Party and, therefore, the Complaint deserves to be dismissed with exemplary costs.     

12.     We have heard the learned Counsel for the Parties and perused the material available on record.  

13.     At the outset, it may be noted that the Opposite Party had, admittedly, offered the physical possession of the Unit in question to the Complainants on 15.03.2018 and, therefore, the Complaint, which has been filed with this Commission on 11.03.2020, is maintainable and not barred by limitation, as it has been filed in consonance with the provisions under Section 24A of the Consumer Protection Act, 1986, which for filing a Complaint provides for two years’ time from the date on which the cause of action arose.   

14.     The contention of the Opposite Party that the Complaint is not maintainable as the Complainants are permanent residents of Gurgaon and have purchased the Unit in question for commercial purposes and, therefore, do not fall within the purview of Section 2(1)(d) of the Consumer Protection Act, 1986, is unsustainable.  The Opposite Party in support of this plea has not filed any documentary evidence, showing that the Complainants are ordinarily indulged into purchasing and selling activities of flats/apartments in order to earn profit. Merely stating that the Complainants have purchased the Unit in question for commercial purposes is not sufficient to hold so. Therefore, we are of the considered view that the Complainants are ‘Consumers’ as defined under Section 2 (1)(d) of the Consumer Protection Act, 1986.  

15.     As per the agreed terms and conditions of the Agreement dated 14.09.2010, executed between the Original Buyer and the Opposite Party, the possession of the Unit in question was required to be handed over within 30 months from the date of start of construction, including additional grace period of 6 months, provided for applying and obtaining completion/occupation certificate.  As admitted by the Opposite Party, the construction/excavation work in the Project had started in August, 2010 and, therefore, the Opposite Party was to handover possession by February, 2013.  By that time and even as on 05.07.2013, when the Complainants had purchased the Unit in question from the Original Buyer, the Project was not complete and the Complainants were aware about the same.  However, at the time of endorsement of the transfer, the Complainants were represented by the Opposite Party that the Project would be complete and possession would be handed to them by October, 2013, which fact is fortified from the fact that the Opposite Party had agreed to and given compensation to the Complainants for the delay in handing over possession for the period from October, 2013 to March, 2018.  It is admitted by the Opposite Party that by November 2014 basic construction, including the internal flooring, was complete, meaning thereby that the Project was not complete in toto.  The physical possession of the Unit in question had been offered to the Complainants on 15.03.2018, after more than four years from October, 2013, when as per the assurance given by the Opposite Party, possession was to be given.  The change of ownership from one Buyer to another, wherein the subsequent Buyer steps into the shoes of the earlier Buyer, would not ipso facto alter/change the time period prescribed for handing over possession in the Agreement executed between the seller and the earlier buyer.  However, as, at the time of repurchase and consequent endorsement of the transfer by the Opposite Party in favour of the Complainants, the Complainants were aware of the status of the Project and were represented that the possession would be handed over to them by October, 2013, the Opposite Party was required to handover the possession by the said time but there was inordinate delay of over four years in offering the possession, which had been offered on 15.03.2018.  At this point of time, as the Opposite Party had raised certain further demands, the Complainants did not take the possession and take up the matter with the Opposite Party, which is apparent from the emails exchanged between the Parties upto 10.02.2019, and thereafter on 11.03.2020 the Complainants filed the present Complaint before this Commission.  Since then the matter is subjudice before this Commission and no interim direction has been given for handing over possession to the Complainants even though an Application in this behalf had been filed by the Complainants. Therefore, the Complainants cannot be blamed for not accepting the possession of the Unit in question till now.     

16.     If for certain reason (restructuring of the Project) the area of the Unit in question is increased, it would certainly result into increase in the cost of the same and the Complainants may also have to incur some further amount therefor.  Though it is contended by the Opposite Party that necessary information in this behalf had been given to the Complainants and other Buyers, there is no proof that it had been in fact done.  Be that as it may, the fact remains that water in the river has already flown to a great extent and the Occupation Certificate has also been received by the Opposite Party on 25.01.2018.  Once the Complainants take possession of the Unit in question, it will be used by them in toto.  Now, the increased area cannot be split from the total area and, therefore, the Complainants are required to pay for the increased area.    

17.     As regards the Indemnity-cum-Undertaking dated 05.07.2013 and the Affidavits, referred to above, wherein the Complainants had undertaken and agreed that they will not be entitled for any compensation for delay in handing over possession, we find that the said documents are one-sided, required by the Opposite Party as a routine formality to endorse the transfer, and cannot be used to the detriment of the Complainants.  There are catena of decisions of this Commission and the Hon’ble Supreme Court, where in similar cases the compensation for the delay in handing over possession has been granted/upheld. Therefore, the Complainants are within their rights to claim compensation for the delay in delivery of possession.

18.     The claim of the Complainants that they should be granted interest @ 15% per annum on the amounts deposited by them for the delay in handing over possession as also the terms of Clause-16 of the Agreement dated 14.09.2010, wherein the Opposite Party is required to pay penalty in the nature of liquidated damages @ Rs.5/- per sq. ft. per month in case of delay in offering possession beyond the stipulated date, are not applicable.  In view of the prevailing market condition as a result of Covid-19 Pandemic, while the interest claimed by the Complainants is too high, the delay compensation @ Rs.5/- per sq. ft. per month for the period of delay (which the Opposite Party has agreed to and given to the Complainants for the period from October, 2013 to March, 2018 along with Early Payment Rebate, as reflected in the Statement issued by the Opposite Party) is too meagre.  It is well settled by a catena of decisions of the Hon’ble Supreme Court, wherein the contention of the Developer to pay such meagre compensation has been negated and reasonable interest has been granted to the Buyer (see Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna and Ors., 2021 SCC OnLine SC 14).

19.     Further, for the slowdown in the real estate market and resultant non-making of payments by some allottees of the Project, the Complainants cannot be blamed.  It is true that the Project is dependent upon the availability of funds and for this reason the construction work of the Project may be hampered but for that reason the Complainants cannot be made to wait indefinitely for taking the possession of the Unit booked.  It is for the Developer, which has floated the Project, to look for alternative arrangements so that the Project is completed within the stipulated period.   

20.     Coming to the plea of Force Majeure, as contended by the Opposite Party, we find that except for referring to delay in construction work by the existing Contractors, appointment of new Contractors for completing the affected work, and various orders of the Courts/National Green Tribunals etc., no other reason has been given by the Opposite Party.  While the issues relating to disputes between the existing Contractors and the Opposite Party and the appointment of new Contractors for completing the affected work are the internal affairs of the Opposite Party, the Complainants have nothing to do with the same.  It is for the Opposite Party to take steps for resolving the said internal issues and completing the Project in time.  Further, no details of any of any order passed by any Court of law have been given by the Opposite Party, in the absence of which it cannot be ascertained how the Project was affected because of this reason.       

21.     The contention of the Opposite Party that the Complaint is not maintainable in view of Clause-37 of the Agreement dated 14.09.2010, which provides for adjudication of the disputes between the Parties by a Sole Arbitrator, is also not tenable.  The Hon’ble Supreme Court in the case of Emaar MGF Land Vs. Aftab Singh – I (2019) CPJ 5 (SC) has held that that jurisdiction of the Consumer Fora under the Consumer Protection Act, 1986 is not barred merely because there is a Clause of Arbitration in the Agreement entered into between the Parties.

22.     As per the provisions under the Consumer Protection Act, 1986, the Complaint, where the value of goods or services and compensation, if any, claimed exceeds Rs.1.00 Crore, is maintainable before this Commission. In this view of matter, the present Complaint, wherein a total amount of above Rs.1.00 Crore has been claimed, is maintainable and this Commission has pecuniary jurisdiction to try the same.  Accordingly, the Complainants are not barred by Clause-39 of the Agreement, wherein the exclusive jurisdiction has been assigned to the Courts at Gurgaon.  

23.     The delay compensation @ Rs.5/- per sq. ft. per month for the period of delay as provided under Clause-16 of the Agreement has already been held to be meagre above.  Therefore, the contention of the Opposite Party that it has complied with Claus-16 of the Agreement and that the Complainants are also bound by the contractual terms and conditions of the Agreement and cannot claim the compensation beyond the terms agreed to in the Agreement dated 14.09.2010, cannot be accepted.  Further, as the Complaint, which had been filed with this Commission within the prescribed period of two years from the date when the cause of action arose, after the Opposite Party had issued final demand letter to the Complainants on 15.03.2018 along with the offer of physical possession, was subjudice before this Commission, it cannot be said that there was any default on the part of the Complainants in making the payments.  As already noted above, almost entire sale consideration already stands paid by the Complainants and if any other amount remains to be paid by the Complainants that shall be a petty amount and, therefore, it cannot be said that there was any major default on the part of the Complainants in making the payment and accordingly they are not entitled to claim any delay compensation.   

24.     In view of the foregoing discussion, we hold that there is deficiency in service on the part of the Opposite Party in not handing over possession by October, 2013.  There is inordinate delay in handing over possession to the Complainants and they are entitled to a reasonable compensation therefor.  In our considered opinion, the delay compensation @ 9% simple interest per annum on the amounts deposited by the Complainants from October, 2013 till the date of handing over possession would meet the ends of justice.  As noted above, as the Opposite Party has agreed to pay and already credited delay compensation to the Complainants for the period from October, 2013 to March, 2018, though @ Rs.5/- per sq. ft. per month, the Complainants shall be entitled to the delay compensation right from October, 2013.  The Opposite Party shall be at liberty to adjust the amount already credited to the Complainants and the amount to be paid by the Complainants, if any, towards final dues/statutory charges.      

25.     Accordingly, the Complaint is disposed off with a direction to the Opposite Party to handover physical possession of the Unit in question to the Complainants, complete in all respects, and execute the required documents in their favour within a period of six weeks from today and pay 9% simple interest on the amounts deposited by the Complainants from October, 2013 till the date of handing over possession.  The Opposite Party shall also pay a sum of Rs.25,000/- as litigation expenses to the Complainants.  

26.     Pending Application, if any, shall stand disposed off.