1. The present Consumer Complaint has been filed under Section 21 of the Consumer Protection Act, 1986 (for short “the Act”) against Opposite Party M/s. BPTP Limited (hereinafter referred to as Opposite Party Builder), by Dr. Sukhbir Singh and his wife Mrs. Sunita Singh, Complainants / Allottees of Residential Flat in a Group Housing Project, namely, “Park Prime Mansions” (for short “the Project”), to be developed and constructed by the Opposite Party Builder in Sector 66, Gurgaon, Haryana, seeking possession of the Unit alongwith compensation for the losses suffered by them on account of Unfair and Restrictive Trade Practices adopted and the deficient services rendered by the Opposite Party Builder in not handing over the possession of the allotted Apartment/Unit within the stipulated time. 

2. According to the Complainants, facts of the case are that allured by the advertisements and the various lucrative representations made by the Officials and Brokers of the Opposite Party Builder that the Flats in the Project will be delivered within a period of 36 months, the Complainants jointly booked a Flat, i.e., Unit No. MA-3-404, admeasuring 2764 sq. ft. on 05.05.2010 by paying a sum of ₹1,00,000/- towards booking amount in the Project, namely, “Park Prime Mansions” (for short “the Project”), to be developed and constructed by the Opposite Party Builder in Sector 66, Gurgaon, Haryana. Flat Buyer’s Agreement (hereinafter referred to as the Agreement) was executed between the Parties on 29.09.2010.  The basic sale consideration of the Flat was ₹96,60,180/-.  The Complainants have deposited a sum of ₹1,00,82,487/- on different dates with the Opposite Party Builder as per its demand.  It is stated that as per Clause 3.1 of the Flat Buyer’s Agreement, the possession of the Flat was to be delivered by 04.05.2013, that is, within 36 months from the date of booking/registration, i.e., 05.05.2010.  Despite having received a huge sum of ₹1,00,82,487/-, the Opposite Party Builder failed to deliver the possession of the Apartment. 

3. Alleging deficiency in service and unfair trade practice on the part of the Opposite Party Builder, the Complainants have filed the present Complaint with following prayer:-
4. “a) To direct the opposite party to hand over the possession of the Flat/Apartment bearing Unit No.MA3-404, Unit-4, Mansion Tower-M, admeasuring super area 2764 sq. ft. in the project of the Opposite Party called “Park Prime – Mansion” situated at Sector-66, Gurgaon, Haryana and
    
   b) To direct the opposite party to pay the compensation @ ₹5 per sq. ft. for every month of delay as mentioned in para 3.3 of flat buyer agreement and
    
   c) To direct the opposite party to pay compensation @ 18% per annum on the deposited amount i.e. ₹1,00,82,487.20/- (Rupees One Crore Eighty Two Thousand Four Hundred Eighty Seven and Twenty Paise Only) /- for delay in delivering the possession of apartment for more than 7 years or till the actual possession handed over to the complainants or
    
   d) To refund the amount of ₹1,00,82,487.20/-(Rupees One Crore Eighty Two Thousand Four Hundred Eighty Seven and Twenty Paise Only) /- along-with interest @ 18% per annum from the date of respective deposits till the date of actual payment to the Complainants and
    
   e) To direct the opposite  party to pay a sum of ₹1,50,000/- (One Lakh Fifty Thousand) as compensation on account of deficiency in services, Unfair Trade Practices, Committing Cheating and playing fraud upon the Complainant and for causing mental agony, harassment and loss of valuable time and
    
   f) To direct the opposite party to pay to the Complainant a sum of ₹1,00,000/-(One Lakh) as compensation on account cost of this petition and further proceedings in litigation; 
    
   g) Pass such other or further orders as this Hon’ble Commission may deem fit and proper in the facts and circumstances of the present Complaint.
4. The Complaint was resisted by the Opposite Party Builder.  It was stated that there is Arbitration clause in the Agreement as such the present Complaint is not maintainable before this Commission; Complainants are not Consumers as they have booked the said Flat for investment purpose.  It was further stated that the possession of the Flat could not be delivered in time due to the de-mobilization of main contractor M/s. Vascon and the balance work was awarded to new contractor M/s. Arcee and due to delay in granting necessary approvals from the Government Authorities and these reasons were beyond the control of the Opposite Party Builder. It was further submitted that the Complainants have demanded interest @18% on the deposited amount which is highly exaggerated. 
5. In the Written Arguments filed on behalf of the Opposite Party Builder, it was submitted that after obtaining Occupation Certificate from the concerned Authority on 14.02.2020, they have offered the possession of the Unit to the Complainants vide letter dated 06.03.2020.  Relying upon the Judgment 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]”, it was submitted that the Complainants are obligated to take possession of the Unit since the construction has been completed and possession was offered on 06.03.2020 after issuance of the Occupation Certificate on 14.02.2020. It was further submitted that the Complainants are bound by the pleadings and as prayed by the Complainants in Prayer Clause (b) of the Complaint, they are ready to compensate the Complainant @₹5/- per sq. ft. per month of the delay mentioned in clause 3.3 of the Flat Buyer’s Agreement. 
6. In the Written Arguments filed on behalf of the Complainants, it was submitted that the Opposite Party Builder had offered the possession of the Unit vide letter on 06.03.2020, which was received by the Complainants much later date.  However, they are willing to accept the Possession of the Unit without prejudice to their rights along with Delay Compensation. It was further submitted that the vide Offer of possession letter dated 06.03.2020, the Opposite Party Builder has illegally charged Cost Escalation Charges, Enhanced Area Charges, Electrification and STP Charges and Value Added Tax, therefore, the Opposite Party Builder be directed to waive off the said charges. It was prayed that since the Builder has charged interest @18% p.a. for the delayed payment, they are also liable to pay compensation at the same rate for the delayed possession to maintain the balance of equity.  
7. We have heard Mr. V.V. Manoharan, learned Counsel for the Complainants, Mr. Pragyan Pradip Sharma, learned Counsel for the Opposite Party Builder and perused Complaints, Written Statements and given a thoughtful consideration to the various pleas raised by them.
8. The Hon’ble Supreme Court in M/S Emaar MGF Land Limited vs. Aftab Singh – I (2019) CPJ 5 (SC), 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 learned Counsel for the Opposite Party that the clause of Arbitration bars this Commission from entertaining the Complaint, is unsustainable.
9. The contention of the learned Counsel for the Opposite Party that the Complainants are not ‘Consumer’ and that they have booked the subject Apartment/Unit for earning profits is completely unsustainable in the light of the Judgment 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 they had failed to discharge by filing any documentary evidence to establish their case. Therefore, we are of the considered view that the Complainants are ‘Consumers’ as defined under Section 2 (1)(d) of the Act.
10. According to the Opposite Party Builder the delay happened primarily on account of the delay in granting the necessary approvals by the competent authority for issuance of Occupancy Certificate. The said circumstance, according to the Opposite Party Builder was beyond its control therefore, the Complainants are not entitled to any compensation for the period the possession has been delayed on account of the aforesaid factors. Being an experienced Builder, the Opposite Party knew, at the time the allotments were made that the concerned authorities would take their own time for grant of the requisite approvals. The submission of the learned Counsel for the Opposite Party Builder was that though the time ordinarily taken for grant of such approvals may have been factored in by the Opposite Party Builder while stipulating the expected date for delivery of possession, the time actually taken in this particular Project was much more than the time usually taken for such approvals. There is no material before this Commission to find out how much was the time usually taken for grant of approvals in such a large project. No data in this regard has been placed before the Commission. More importantly, the correspondence exchanged between the Opposite Party Builder and the concerned Authorities has not been placed on record to prove that the delay occurred solely on the part of the concerned authorities and cannot be attributed to any defect or deficiency on the part of the Opposite Party Builder in getting approvals for the Occupancy Certificate.  It was the duty and responsibility of the Opposite Party Builder to get all the formalities done as per time frame.  It was between the Opposite Party Builder and the Competent Authorities.  The Complainants cannot be made victim for the same.  We do not find any force in this contention and the same is rejected.
11. So far as the plea regarding delay in Project due to de-mobilization of main contractor M/s. Vascon and the balance work was awarded to new contractor M/s. Arcee and as such construction could not be completed 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.  We do not find any force in this contention and the same is rejected.
12. So far as the contention of the learned Counsel for the Complainants that the Opposite Party Builder was not justified in demanding Cost Escalation Charges, Enhanced Area Charges, Electrification and STP Charges and Value Added Tax is concerned, it is observed that in Clause 2.4 of the Agreement, it is mentioned that “the Super Area of the Flat shall be determined after completion of construction of the Colony and after accounting for the changes, if any, on the date of handing over the physical possession, the final and confirmed Super Area will be incorporated in the Conveyance Deed.  Any increase or decrease in the Sale Consideration, on the basis of increase or decrease in the Super Area of the Flat, shall be payable or refundable as the case may be without any interest. As such the Complainants cannot deny to pay the enhanced charges on account of any increase in the area of the Super Area.  Even in the case of DLF Home Developers Ltd. and Ors. Vs. Capital Greens Flat Buyers Association and Ors. -(2021) 5 SCC 537, the Hon’ble Supreme Court has held that the Developer is entitled to charge the additional amount on account of any increase in the Super/Built Up Area, if any. However, it is made clear that charging of additional amount on this account would be subject to any increase in the Built Up Area as prescribed in the terms and conditions of the Agreement.  Similarly, the Builder is also entitled to charge the amount on account of cost escalation in terms of Clause 12.11 of the Agreement whereby it has been specifically mentioned that “the basic sale value is escalation free but it is subject to escalation of price of steel, cement and other raw material beyond 10% increase as per index price as on 01.09.2009.The revision by the Company shall be made at its sole and absolute discretion and the purchaser (s) agrees to not to dispute the same”.  As such the Opposite Party Builder is entitled to charge the enhanced costs. With regard to the Electrification and STP Charges, Clause 2.3 of the Agreement authorises the Opposite Party Builder to claim such charges from the Complainants. So far as the HVAT is concerned, in view of Clause 2.1 of the Agreement, which specifies that “the sale consideration has been fixed based on the taxes and/or other statutory dues as applicable on (June 30, 2010). The Purchaser(s) understands and agrees that any fresh incident of tax whatsoever including VAT, Service Tax or statutory de-mands or any increase on such account, even if it is with retrospective in effect, shall be borne and paid by the Purchaser(s) in proportion to the and calculated on the ba-sis of the Super Area of the Flat. The Purchaser(s) undertakes to pay such enhanced proportionate amount, if any, promptly on demand by the Seller/Confirming Party, without any demur and protest, the Complainants are also liable to pay these taxes. In catena of the Judgments, it has been held by the Hon’ble Supreme Court that these are the statutory demands and the Home Buyer cannot escape from paying the same. Accordingly, the Complainants are liable to pay the amount demanded under the head of Cost Escalation Charges, Enhanced Area Charges, Electrification and STP Charges and VAT. As far as the Maintenance Charges is concerned, the Complainants shall be liable to pay the Maintenance Charges with effect from the actual date of physical possession of the Flat.
13. Now, adverting to the question of delay in Project, it is not in dispute that the Complainants booked the Flat in the Project to be developed by Opposite Party Builder on 05.05.2010.  As per terms of the Agreement the expected date of delivery of the possession of the Unit was 04.05.2013.  Despite having received a huge sum of ₹1,00,82,487/-, the Opposite Party Builder had miserably failed to deliver the possession within stipulated period.  The possession was offered by Opposite Party Builder only on 06.03.2020 after obtaining Occupancy Certificate from the concerned authorities, i.e., during the course of the Proceedings, with an inordinate delay of nearly 7 years, which in our view is a clear case of deficiency in service on the part of the Opposite Party Builder.  As such, the Complainants are entitled for a reasonable compensation for the inordinate delay of 7 years in offering the possession of the Flat by the Opposite Party Builder.
14. Now, coming to the quantum of Delay Compensation, according to the learned Counsel for the Opposite Party Builder, the Complainants are bound by the Pleadings and they are ready to compensate the Complainants by paying Delay Compensation in terms of Prayer (b) of the Complaint vide which the Complainants have sought compensation @ ₹5/- per sq. ft. per month for the period of delay. On the contrary, learned Counsel for the Complainants submitted that since the Opposite Party Builder had charged interest @18% p.a. for the delayed payment, they are also liable to pay compensation at the same rate for the delayed possession, which has been sought in Prayer clause (c) in addition to Prayer Clause (b) of the Complaint, to maintain the balance of equity. 
15. 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.” [supra], in which the Hon’ble Apex Court has observed on the point of Delay Compensation as hereunder :
    1. 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..
    2.  
    3.  

We have considered the rival submissions made by both the parties. The Delay Compensation specified in the Apartment Buyer's Agreement of 7.5 per sq. ft. which translates to 0.9% to 1% p.a. on the amount deposited by the Apartment Buyer cannot be accepted as being adequate compensation for the delay in the construction of the project. At the same time, we cannot accept the claim of the Apartment Buyers for payment of compound interest @ 20% p.a., which has no nexus with the commercial realities of the prevailing market. We have also taken into consideration that in Subodh Pawar v. IREO Grace, this Court recorded the statement of the Counsel for the Developer that the amount would be refunded with Interest @ 10% p.a. A similar order was passed in the case of IREO v. Surendra Arora. However, the Order in these cases were passed prior to the out-break of the pandemic.

We are cognizant of the prevailing market conditions as a result of Covid-19 Pandemic, which have greatly impacted the construction industry.

In these circumstances, it is necessary to balance the competing interest of both parties. We think it would be in the interests of justice and fair play that the amounts deposited by the Apartment Buyers is refunded with Interest @ 9% S.I. per annum from 27.11.2018 till the date of payment of the entire amount…..”

16. Respectfully following the principles laid down by the Hon’ble Supreme Court in “Ireo Grace Realtech Pvt. Ltd. vs. Abhishek Khanna & Ors.” [supra]” and the reasons stated hereinabove, we are of the considered view that the Complainants are entitled for Delay Compensation in the form of simple interest @9% p.a. on the deposited amount w.e.f. 04.05.2013 till the date of Offer of Possession, i.e., 06.03.2020.  Since the matter was sub-judiced before this Commission, the Opposite Party Builder shall not be entitled for any delay / holding charges w.e.f. the date of Offer of Possession, i.e., 06.03.2020 till the date of actual possession.  Consequently, the Consumer Complaint stands disposed of with the following directions:-

(i)      The Opposite Party Builder is directed to pay Delay Compensation in the form of simple interest @9% p.a. on the amount deposited by the Complainants, w.e.f. 04.05.2013 till 06.03.2020, within six weeks from today. 

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

4. The Opposite Party Builder shall deliver the possession of the Unit, complete in all respects, to the Complainants within eight weeks from today and shall execute the Conveyance Deed in favour of the Complainants.
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(vii)    The pending Applications, if any, also stand disposed off.