1. The present Consumer Complaints have 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 the Opposite Party Builder) seeking possession of the Plots booked by them in the ‘Amstoria Plots’ to be developed by the Opposite Party or in alternative refund of the amounts deposited by the Complainants alongwith interest since the Opposite Party Builder failed to deliver the possession of the Plots within stipulated period.    

 

2. Since the facts involved in both these Complaints are similar except for minor variations in the Plot numbers and their sale consideration, these Complaints are being disposed off by this common Order. However, for the sake of convenience, facts as enumerated in Consumer Complaint No. 947 of 2018 have been discussed at length herein.

 

3. The brief facts as set out in the Consumer Complaint are that the vide allotment letter dated 04.10.2011 Complainant was allotted a residential Plot No. D-24 measuring 495 sq. yard for a total consideration of ₹2,55,21,000/- in a Residential Housing Project, i.e., ‘Amstoria Plots’ situated at Sector 102, Gurgaon, Haryana (hereinafter referred to as the Project’) to be developed by the Opposite Party Builder.  Plot Buyers Agreement (hereinafter referred to as the Agreement) was executed on 28.12.2011 between the Parties.  It is the case of the Complainant that there are one-sided clauses in the Agreement which are only in favour of the Opposite Party but they have to sign the Agreement under the threat of forfeiture of earnest money.  As per clause 5 of the Agreement, the possession of the Plot was to be handed over within 24 months with a grace period of 180 days from the date of the Agreement, i.e., by 28.06.2014 in the present case.  Despite receiving substantial amount from the Complainant, the Opposite Party Builder failed to deliver the possession of the Plot within stipulated period, i.e., by 28.06.2014.   Vide letter dated 27.10.2017, the Opposite Party Builder offered the possession of the Plot with an inordinate delay of about 3 years and 4 months.  On visit to the site, the Complainant found that the Project is still not habitable and lacks of amenities.  The Complainant raised the issue with the Opposite Party Builder by writing a number of E-mails but no response was received from the Opposite Party Builder.  The Complainant issued legal notice to the Opposite Party Builder on 29.03.2018, but in vain.  It is the case of the Complainant that there are one-sided clauses in the Agreement which are only in favour of the Opposite Party for example for delay in Project the Opposite Party Builder was supposed to compensate the Complainants with ₹30/- per sq. yard per month for first six months, ₹40/- per sq. yd. per month for the next six months and ₹50/-  per sq. yd. per month for any delay thereafter whereas on the other hand, in case of delay in payment, the Opposite Party is entitled for interest @18% p.a.  Similarly, the Complainant is also entitled for interest @18% p.a. for the delay in Project, since the Opposite Party Builder had utilized the Complainant’s money in its other Projects and also transferred the funds of the present Project to other Projects in pipeline.  The Opposite Party Builder vide E-mail dated 04.04.2018 sent a Indemnity cum Undertaking for Possession and asked the Complainant to sign the same, which was not acceptable to the Complainant since it was the apprehension of the Complainant that signing Indemnity cum Undertaking for Possession would take away his legal rights.  Alleging deficiency in service and unfair trade practice on the part of the Opposite Party Builder, the Complainant has filed the present Complaint seeking following reliefs:-

“(i) To direct the OP to settle the account and hand over the possession of the residential Plot No.D-24, in “Amstoria Plots”, situated at Sector-102, Gurgaon, Haryana i.e. plot in question complete in all respect in a habitable and livable condition with all amenities

 

  On in alternative

 

To return the amounts paid by the Complainants on various dates together with 18% p.a. interest on the amounts paid by the Complainants.

 

(ii) In case plot is being offered by the OP

 

(a) Direct the OP to execute conveyance of the plot in favour of the Complainant and hand over the physical possession of the plot in a livable and habitable condition with al amenities. 

 

(b) Direct the Opposite Party to pay complainants cost of funds @12% p.a. on the amounts paid by the complainants, from committed date of possession till the date of actual physical handover of possession of plot in question in habitable and liveable condition with all the amenities. 

 

(iii) Cost of the complaint. 

 

  Pass such other or further orders as may deemed fit and proper in facts and circumstances of the present case.”

 

4. The Opposite Party contested the Complaint by filing its written version wherein it was submitted that the Complaint is required to be referred to Arbitrator in view of clause 31 of the Agreement wherein it was stated that all or any dispute arising between the Parties are to be referred for Arbitration; that the Complainants are not “consumers” since the Complainants have booked the Plots solely for the making profit from re-sale of the Plot; that Complaint is nothing but an afterthought, since the Complainants were well aware of the contents of the Agreement as the same are mentioned in the Allotment letter in an indicative manner and that before execution of the Agreement all the concerns of the Complainants were discussed in detail; that the Internal Development work of the plots is complete and therefore the possession was offered to the Complainants; that delay in provision of clubs, schools, recreational and sporting activities does not entitle the Complainants to cancel the Agreement; that the Complainant agreed to contents of the Agreement, pertinently, clause 11.4 wherein penalty have been imposed upon Allottees for causing delay in making timely payments; that various Departments involved in the process of service plan approvals incorporates changes from time to time which causes delay; that the service plan in respect of 108.068 acres of land was approved vide Licence No. 58/2010 on 30.06.2014 and for additional area of 18.0606 acres additional Licence No. 45 / 2011 was approved by DTCP only on 27.12.2017 and as such possession offered on 27.10.2017 was within the time frame in terms of the Clause 5 & 13 of the Agreement; that the Complaint is liable to be dismissed since there exists no cause of action as timely possession has been offered to the Complainants and has prayed that the Complaint be dismissed in favour of the Opposite Party.  

 

5. We have heard Mr. Sudhir Mahajan, learned Counsel appearing on behalf of the Complainants, Ms. Nidhi Tewari, learned Counsel appearing on behalf of the Opposite Party Builder, perused the material available on record and have given a thoughtful consideration to the various pleas raised by them.

 

6. During the pendency of the Consumer Complaints, vide Order dated 07.08.2018, the Complainants were permitted to take the possession of the Plot without prejudice to their right to seek compensation for the delay in delivery of the Possession.  Accordingly, the possession of the Plot was handed over to the Complainant on 14.01.2019 and Conveyance Deed was executed on 10.10.2019.

 

7. The contention of the learned Counsel for the Opposite Party that the Complainants are not Consumers as they had purchased the said Plots for earning profit by reselling the Plots, is completely unsustainable in the light of the Judgment passed by 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.

 

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. All the reasons, as stated by the learned Counsel for the Opposite Party, do not fall within the ambit of reasons beyond their control as it can be seen from the record that the Plot Buyer's Agreement was entered into way back in August, 2011 and subsequently, the delay caused in taking approvals and sanction of plans cannot be construed to be any substantial reason and definitely not a force majeure condition. It was the duty and responsibility of the Opposite Party Builder to coordinate with the concerned authorities and complete all the required formalities well-in-time for obtaining approvals from the Authorities.  The Complainants/Allottees cannot be made victim for the same.   Therefore, we do not find any force in the contention of the learned Counsel for the Opposite Party Builder and the same is rejected.  

 

10. Regarding the contention of the learned Counsel for the Opposite Party Developer that the Complainants are entitled for delay compensation only in terms of Clause 6.1 of the Agreement, we have gone through the various clauses of the Agreement and find that as per Clause 6.1 of Agreement, in case of delay the compensation to be paid by the Developer at ₹30/- per sq. yrds. per month for first six months of delay in offering possession of the unit after adjusting all the dues, ₹40/- per sq. yrds. per month for next six months and ₹ 50/- per sq. yrds. per month for any delay thereafter. These charges are further to be paid only after the stipulated period of 24 months plus grace period has lapsed, whereas in terms of Clause 11.4 of the Agreement in case of delay in payment on the part of the   Allottees, the Complainants/Allottees are liable to pay interest @18% p.a.  This shows that the terms of the Agreement are wholly one-sided and unfair. Therefore, the Complainants 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.”

 

11. Regarding the plea of the learned Counsel for the Opposite Party Builder that they have offered the Possession of the Plot on 27.10.2017, which was within the time frame in terms of the Clause 5 & 13 of the Agreement and the Complainants are not entitled for any compensation, it is relevant to reproduce the Clause 5 of the Plot Buyer's Agreement dated 13.10.2011 entered into between the Parties, which reads as under:

“Subject to Clause 13 herein or any other circumstances not anticipated and beyond the control of the Seller/Confirming Party an any restraints/restrictions from any courts/authorities and subject to the Purchaser(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 including but not limited to timely payment of all instalments and the total sale consideration and Stamp Duty and other charges and having complied with all provisions, formalities, documentation etc., as prescribed by the Seller/Confirming Party, whether under this Agreement or Maintenance Agreement or otherwise, from time to time, the Seller/Confirming Party proposes to hand over the possession of the Plot to the Purchaser(s) within a period of 24 months from the date of sanctioning of the service plan of the entire colony or execution of Plot Buyer’s Agreement, whichever is later. The Purchaser(s) agrees and understands that subject to Clause 13 of this agreement, the Seller/Confirming Party shall be entitled to a grace period of 180 (One Hundred and Eight) days, after the expiry of 24 months as stated above, for applying and obtaining necessary approvals in respect of the colony.”     

 

12. From a bare perusal of the Clause 5 of the Agreement, we find that two time-limits are laid down for delivery of possession – 24 months from the date of sanctioning of the Service Plan of the entire colony or from the date of execution of the Agreement, whichever is later, in addition to that 180 days grace period is also available for the Opposite Party Builder.  In the instant case, Plot Buyer’s Agreement was executed between the Parties on 28.12.2011; the Opposite Party Developer received huge amount of ₹2,31,57,916.89ps. (Rupees Two Crore Thirty One Lacs Fifty Seven Thousand Nine Hundred Sixteen and Eighty Nine Paisa), i.e., 95% of the total sale consideration till the year 2012, but the possession of the Plot was offered by the Opposite Party Developer only on 27.10.2017 and the possession was physically handed over to the Complainants only on 14.01.2019. Keeping in view the facts and circumstances of the case, we are of the considered view that firstly, not mentioning the definite date of handing over of the possession of the Plot in the Agreement and receiving huge amount from the Complainants without sanctioning of service plan from the concerned Authorities, amounts to misrepresentation and is a clear case of unfair trade practice and deficiency in service on the part of the Opposite Party Builder and secondly, Clause 5 of the Agreement is wholly unjust, one-sided and totally in favour of the Opposite Party Builder, which cannot be binding on the Complainants in view of the Judgment passed by the Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. (supra).  

 

13. It is the responsibility and duty of the Opposite Party Builder to deliver the possession of the Plot within a reasonable time. The Complainants/Allottees cannot be made to wait indefinitely for having the possession of the Plot in view of the Judgment passed by the Hon’ble Apex Court in ‘Kolkata West International City Pvt. Ltd. (supra)’ in which it has been 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.”

 

14. In the instant case, the Opposite Party Builder took almost 7 years from the date of Execution of the Agreement to deliver physical possession to the Complainants on 14.01.2019 despite having received 95% of the total sale consideration by the year 2012, which viewed from any angle, cannot be said to be a reasonable period for handing over the physical possession of the Plot to the Complainants.  The Opposite Party Builder should have handed over the possession of the Plot within three years’ from the date of execution of the Agreement.  

 

15. Even though in the relief claimed, the Complainants have prayed for awarding interest @12% p.a. on the amounts paid by them, but in the Written Synopsis filed on their behalf on 25.10.2021, they have narrowed it down and restricted it to 6% p.a. by relying upon the Order dated 24th August 2020, passed by the Hon’ble Supreme Court in Civil Appeal No. 6239 / 2019 ‘Wing Commander Arifur Rahman Khan & Aleya Sultana & Ors. Vs. DLF Southern Homes Pvt. Ltd. & Ors.’. In addition to above Compensation, the Complainant has also prayed for awarding ₹5 lakh towards mental agony and cost of litigation to the tune of ₹1 lakh.   

 

16. It is well settled that the Consumer Fora cannot grant Compensation in addition to the Interest awarded by way of Damages, therefore, the prayer of the Complainant to award ₹5 lakh towards mental agony is not acceptable.   

 

17. For the reasons stated hereinabove, it would be in the interest of Justice that the Opposite Party Builder be directed to pay Delay Compensation in the form of simple interest only @6% p.a. on the deposited amount with effect from the date of expiry of thirty-six months from the execution of the Plot Buyer Agreement till the actual date of Possession of the Plot.  

 

18. Consequently, in CC No. 947 of 2018, the Opposite Party Builder is directed to pay delay compensation in the form of simple interest @6% p.a. on the deposited amount w.e.f. 28.12.2014 till 14.01.2019 to the Complainant within six weeks from today failing which the rate of interest will increase to 9% p.a.  It is also made clear that the above amount shall be in addition to the Compensation amount which have been paid over or credited by the Opposite Party Builder at the time of the drawing of final accounts. In CC No. 949 of 2018, the Opposite Party Builder is directed to pay delay compensation in the form of simple interest @6% p.a. on the deposited amount w.e.f. 06.02.2015 till 14.01.2019 to the Complainant within six weeks from today failing which the rate of interest will increase to 9% p.a.  It is also made clear that the above amount shall be in addition to the Compensation amount which have been paid over or credited by the Opposite Party Builder at the time of the drawing of final accounts.  The Opposite Party Builder is also directed to pay cost of ₹50,000/- in each case, to the Complainants in both the Consumer Complaints.

 

19. Both the Consumer Complaints are partly allowed in above terms.  The pending applications, if any, also stand disposed off.