1.      This consumer complaint under section 21 of the Consumer Protection Act, 1986 (in short, the ‘Act’) is filed against the opposite party alleging deficiency in not handing over possession of the flat booked by the complainants within the promised time and seeking compensation for the delay in handing over of possession along with interest as compensation and other costs.

2.      The facts, according to the complainant, are that in September 2008 the complainants had booked a flat in “The Meadows”, a project promoted by the opposite party in Sector 76, Gurgaon and were allotted flat no A-302 admeasuring 2445 sq ft. for a sale consideration of Rs 85,40,505/- and a Buyer’s Agreement was signed on 08.12.2008. Possession was promised by January 2012 with grace period of 90 days for obtaining Occupation Certificate. The project did not take off for various reasons. Hence, opposite party 1 offered a transfer to its project “The Enclave” at another location on the same terms and conditions which was agreed to by complainants. Unit no. P-1801 was allotted and possession was indicated vide clause 19 of the application form to be within 36 months. However, vide letter dated 03.07.2009 the opposite party 1 confirmed that date of possession would be January 2012 as in the previous booking. On 08.07.2010 a Buyer’s Agreement was executed whereby Unit No. TEN-P-F12-01 on 12^th Floor, Tower P with super area 2415 sq ft was allotted at a sale consideration of Rs 83,25,258/-. Payment was to be as per a Construction Linked Payment Plan and possession was reaffirmed vide clause 14(a) to be within 24 months from commencement with timely payments being the essence of the contract. The complainants paid Rs 91,82,219/- in various instalments as on 07.05.2018. However, possession was delayed till 14.03.2018 when offer of possession was made by opposite party 1. The opposite party failed to provide compensation for delay of Rs 5/- per sq ft per month as per clause 16(a). Possession was offered on 14.03.2018. The complainants are before this Commission praying for directions to the opposite party to:

(a)     pay compensation for the delay in handing over possession in the form of interest @ 24% p.a.;

 (b)      settle the accounts and account for the additional amount of Rs 8,56,961/- paid in excess to the opposite party as per demands made;

(c)      ensure the completion of all promised facilities of swimming pool, badminton area, putting greens, gymnasium, kids creche, party areas etc. and to allow complainants to use these facilities and club free of charge or pay Rs 10,00,000/- in lieu;

(d)       pay Rs 10,00,000/- as compensation for mental torture and hardship;

(e)       pay Rs 1,50,000/- towards litigation charges; and

(f)        any other relief deemed fit and proper.

3.      Upon notice, the opposite parties resisted the complaint by way of a written statement and denied all averments of the complainant. Preliminary objections were taken by opposite party 1 that (i) the compliant did not lie in view of the indemnity cum undertaking dated 03.05.2018 executed by the complainants in favour of the opposite party; (ii) complainants were not ‘consumers’ under section 2(1)(d)(ii) of the Act as they were permanent residents of Delhi and had booked the property for commercial purpose; (iii) the issues raised by the complainant needed adjudication in a civil court; (iv) interest claimed @24% p.a. was beyond the terms of section 74 of the Indian Contract Act since clause 16(a) of the Buyer’s Agreement provided for compensation @ Rs 5/- per sq ft per month; (v) possession had already been handed over and hence the complaint needed to be dismissed; (vi) clause 14(a) of the Buyer’s Agreement had been misinterpreted with regard to 24 months of construction period with 3 months grace since this was to be read conjointly with other provisions for force majeure; (vii) the terms of the contract in the Buyer’s Agreement could not be altered as held by the Hon’ble Supreme Court in a catena of cases; (viii) section 14(1)(d) of the Act provided for compensation only due to the negligence of the opposite party which was not proven in this case; (ix) that compensation had to be on a rational basis and equivalent to the loss suffered as held by the Supreme Court; (x) in view of section 74 of the Indian Contract Act providing for liquidated damages, compensation cannot be claimed; (xi) clause 37 of the Buyer’s Agreement provides for arbitration in matters of dispute. On merits, it was contended that the complainants had approached the opposite party and there were no false inducements or with a view to extort money. It is admitted that there has been a delay in the project which is attributable to force majeure conditions. The amount stated to have been charged in excess by it has been justified since it comprised taxes which were statutory dues and were required to be paid by the complainant. The complaint is stated to be barred under limitation under section 24A of the Act and does not meet the pecuniary jurisdiction of this Commission and therefore not maintainable.

4.      On behalf of opposite party 2, it was contended that it only had a relationship with opposite party no. 1 being the owner of the land and that it had no contractual obligation with the complainant.

5.      Parties led their evidence on affidavit and filed the rejoinder, written submission, and short synopsis of arguments. I have heard the learned counsel for both the sides and perused the evidence on record carefully.

6.      During arguments the learned counsel for complainants limited his claim only for compensation for delayed possession, settlement of accounts and refund of excess payments and permission to use the club facilities free of charge or compensation of Rs 10,00,000/-.

7.      In view of the fact that possession of the flat has been taken by the complainant, the only surviving issues are that of compensation for the delay in the offer of possession, the settlement of accounts with regard to the excess amount alleged to have been charged by the opposite party no. 1 and the issue pertaining to the use of the club house facilities. 

8.      Vide clause 14(a) of the Buyer’s Agreement dated 08.07.2010, possession was to be offered within 2 years with 3 months grace from the date of start of construction. According to the opposite party possession was to have been offered after 24 months with 6 months of grace, i.e., 30 months from the state of construction. Instead, it was offered on 14.03.2018.  According to the complainants, possession should have been offered on 21.02.2013 since there was no change in the date of possession as committed by the opposite party no 1 at the time of the switchover to the present project from “The Meadows” and therefore the delay is of 60 months. The contention of the opposite party 1 that since an Indemnity cum Undertaking dated 03.05.2018 was signed by the complainants, this would not apply cannot be accepted as it amounts to a clear case of unfair trade practice considering the fact that the complainants shifted their booking to the project “Enclave” only on the assurance that the date of handing over would remain unchanged from 21.02.2013 which was affirmed by the opposite party 1 in writing by way of a letter. The argument of the opposite party 1 that the date of handing over possession was subject to force majeure has not been substantiated by any evidence and remains a bald statement and therefore cannot be accepted. The project is admittedly delayed as conceded by the learned counsel for the opposite party no. 1 during oral submissions. Therefore, the complainants are entitled to compensation on this account. However, the prayer for 24% p.a. cannot be considered as justifiable in view of the Hon’ble Supreme Court’s judgments in Lakshmi Cotton Traders Ltd., vs CWC 3 (1996) CPJ 22 which held that compensation has to be on a notional basis and in Ghaziabad Development Authority vs Balbir Singh JT 2004 (5) SC 17, which held that confirmation should not be a source of profit but equivalent to loss suffered thus, interest has to be restitutionary and compensatory. In Wg Cdr Arifur Rehmans & Aleya Sultana Vs DLF CA No. 6239 of 2019 dated 24.02.2020 the Hon’ble Supreme Court held that interest @ 6% to be reasonable.

9.      The relief of refund of the excess amount paid by the complainants has been contested by the opposite party to be on account of tax dues liable to be paid by the complainants. Possession has been taken by the complainants on payment of final dues. Therefore, this prayer does not subsist. However, the parties may reconcile their accounts while finalizing the payment due.

10.    In so far as the relief of access to the club and recreational facilities free of charge or compensation of Rs 10,00,000/- in lieu thereof is concerned, opposite party has drawn our attention to clause 3(a) of the Buyer’s Agreement which reads as under:

3.         CLUB MEMBERSHIP REGISTRATION CHARGES

(a)     In accordance with the development plan of the Complex, the Developer proposes to develop a club for recreational purposes (the “Club”) and the Allottee(s) has/have agreed to avail membership of the Club. The Allottee(s) understands that the Club may be developed either simultaneous with or after development of the Unit. The Allottee agrees to pay Club Membership Registration Charges (“CMRC”) for availing membership of the Club and Club development expenses as and when required for this purpose by the Developer.

(b)     On the Club becoming functional, keeping in view the general requirement of the members, the quantum of facilities available in the Club and other incidental factors effecting the running, maintenance, and upkeep of the Club, the Allottee(s) shall pay charges as prescribed from time to time by the Developer and agree to abide by the rules and regulations formulated by the Developer for proper management of the Club.

It is evident that the Club and its facilities are a paid facility to be developed either simultaneously or subsequently and for which there is a membership fee and charges prescribed. In view of this clear provision in the contract between the parties, the prayer of the complainant for free access to the club facilities or compensation of Rs 10,00,000/- in lieu does not appear justifiable. However, the opposite party no.1 is obligated to provide this facility to the complainants as it is a facility that has been promised by it. As the membership of the club and its facilities is contingent upon the payment of membership charges, the relief sought by the complainants does not appear justified and therefore does not merit consideration. They are advised to adhere to the provisions of the Agreement as already signed by them.

11.    In the facts and circumstances of this case, for the aforesaid reasons, this complaint is allowed partially and disposed of with the following directions:

(i)     opposite party no. 1 shall pay the complainants compensation for the delay in possession @ 6% p.a. simple interest on the amount deposited as on 21.02.2013 till 14.03.2018, the date of offer of possession within 2 months of this order failing which the rate of interest shall be 9% p.a.;

(ii)    the parties will reconcile their accounts to determine whether any excess amount has been paid by the complainants to the opposite party no 1 which will be appropriately adjusted while determining the compensation for the delay in possession as awarded by this order.

(iii)    there shall be no order as to costs.

All pending IAs shall stand disposed of with this order.