1.       This Complaint, under Section 21(a)(i) of the Consumer Protection Act, 1986, has been filed by the Complainants, who are the Resale Purchasers/Buyers and have purchased a Residential Unit for their own use from the Original Allottee, against the Opposite Party, namely, Emaar MGF Land Ltd.  Though a considerable part-payment of Rs.50,92,397/- towards sale consideration as against the total sale consideration of Rs.72,25,858/- already stands paid by the Complainants and there is inordinate delay over and above the period prescribed for handing over the possession of the Unit in question but they have not been given possession by the Opposite Party. 

2.       In brief, the facts are that in a Project, namely, “Emerald Hills” of the Opposite Party, which had been launched pursuant to a License, bearing No. 10 dated 21.05.2009, purported to have been obtained by it from the Director, Town and Country Planning, Haryana, for construction and developing a Residential Gated Colony in Sector-65, Gurgaon, Haryana, the Complainants had purchased a Residential Unit, being Unit No. EHF-350-C-GF-017, admeasuring 1750 sq. ft., from the Original Buyer/Allottee.  At that time, the Complainants were assured by the Representatives and Brokers of the Opposite Party that the Project would be completed within time and the date committed to the Original Buyer/Allottee for handing over the possession would remain unchanged. The total sale consideration of the Unit was Rs.72,25,858/-, out of which a sum of Rs.50,92,397/- already stands paid by the Complainants.  The Opposite Party had acknowledged the Transfer of the Unit to the Complainants and also issued Acknowledgment Letter, authenticating the transfer and crediting/transferring the amount received by the Opposite Party from the Original Allottee/Buyer in the name of the Complainants.  The Builder Buyer Agreement dated 28.03.2012 was also executed between the Parties.

3.       It is averred that as per the payment plan, which was a Construction Linked Payment Plan, the Complainants have paid regular instalments, which includes extra charges like service tax and interest on delayed payment @ 24% per annum compounded quarterly.  While the date of Application was 06.06.2009, the Builder Buyer Agreement was executed between the Parties on 28.12.2009 and, as per the same, the proposed date of possession was 28.03.2012.  Some of the Clauses of the Agreement, which the Buyers were made to sign without any modification, were unreasonable and one-sided in favour of the Opposite Party only.  There was a substantial gap between the date of application (06.06.2009) and signing of the Agreement (28.12.2009), which had been sent to the Complainants for signature only after paying the application money.  The Complainants were told that the Agreement has to be signed as it is and in case it is not acceptable then the allotment will stand cancelled and earnest money will be forfeited. 

4.       As per Clause 13(a) of the Agreement, the possession was required to be handed over to the Complainants within 27 months from the date of execution of the Agreement and further 3 months’ grace period, provided to the Opposite Party for applying and obtaining the Occupation Certificate, but it has not been delivered till now.  The said Clause reads as under:-

“13.    POSSESSION

1. Time of handing over the Possession

Subject to terms of this clause and subject to 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 compliance with all provisions, formalities, documentation etc., as prescribed by the Company, the Company proposes to hand over the possession of the Independent Floor within 27 months from the date of execution of this Agreement.  The Allottee(s) agrees and understands that the Company shall be entitled to a grace period of 3 months, for applying and obtaining the occupation certificate in respect of the Independent Floor and/or the Project.”

5.       It is the stated by the Complainants that after the aforesaid period provided for handing over possession was over and they had not been given possession, they visited the site and found that the construction work was not in progress and it seemed to be an abandoned piece of land, with skeleton structure of semi-constructed building, which was not complete despite lapse of many years.  Despite repeated requests, the possession has not been given, which shows the ulterior motive of the Opposite Party to extract money from the innocent people fraudulently as also deficiency in service and unfair/restrictive trade practices on its part.  The Complainants are suffering from disruption of their living arrangements, mental torture/agony and financial losses.

6.       As per Clause 15(1) of the Agreement, the Opposite Party is required to pay a meagre compensation of Rs.10/- per sq. ft. per month for the period of delay.  The said compensation comes out to approximately 1.4% p.a., which too is to be paid after the period prescribed for completing the Project and delivering the possession is over.  The Complainants have paid all the amounts demanded by the Opposite Party, which means that the Opposite Party has not only collected the cost of the flat but also the profit, but the project is not complete and possession has not yet been given to the Complainants, which amounts to gross deficiency in service and unfair/restrictive trade practices adopted by the Opposite Party and the Complainants are to be adequately compensated therefor.        

7.       In this factual matrix, the present Complaint has been filed by the Complainants, seeking the following Reliefs:

“a)      Direct the Opposite Party to handover the possession of the apartment bearing number EHF-350-C-GF-017, complete in all respects to the Complainants immediately as per the Buyer’s Agreement and execute all the necessary and required documents in respect of the said flat in favour of the complainant or in the alternative provide a ready to move in flat to the complainant which is of identical size and in similar locality or in alternative pay a sum of Rs.1,75,00,000/-, being the available market rate of the similar house @ Rs.10,000/- per sq. ft., the apartment being of the size 1750 sq. ft. to enable the Complainant to purchase another house on their own.

b)       Direct the Opposite Party to pay interest @ 12% p.a. on the sum collected by the OP towards the house from the date of possession as per the buyer’s agreement till the actual possession.

c)       Grant immunity to the complainants from payment of any charge incurred due to any escalation in cost including enhanced Service Tax.

d)       Direct the OP to pay a sum of Rs.5,00,000/- (Rupees five lakhs only) to the complainants towards the mental agony and harassment and the cost of litigation.

d)       Any other order(s) as may be deemed fit and appropriate may also kindly be passed.”

8.       The Complaint has been resisted by the Opposite Party by filing its Written Statement/Reply.  The maintainability of the Complaint has been challenged on the grounds that (i) the Complainants are not ‘consumers’ within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986 as they are permanent residents of Gurgaon and have booked the property for the purpose of investments/commercial purpose to reap financial benefit; (ii) Complainant No.1 has not authorized Complainant No.2 to file the present Complaint before this Commission; (iii) vide Clause 37 of the Agreement, the Parties have agreed for exclusive jurisdiction of the Courts at Gurgaon, Haryana; (iv) the claim of the Complainants is not more than Rs.1.00 Crore; and (v) the Complaint has been filed beyond the time prescribed under Section 24A of the Consumer Protection Act, 1986 vis-à-vis the cause of action.   

9.       Further, it is contended by the Opposite Party that the Complaint is devoid of a valid cause of action.  At the time of booking, the Opposite Party had duly explained the terms and conditions to the Complainants and they had signed the Agreement with their own consent and freewill.  Though certain other Allottees of the Project defaulted/delayed the payments, which resulted in slow development and extraordinary delay in the Project, but the Opposite Party has been making all possible efforts to complete the construction of the Project, inasmuch as it has deployed about 15000 labourers on the Project sites across the country. The Opposite Party has already provided the Allottees with the target Completion schedule for the Project and shall also keep them updated of the progress regularly. In fact the Project is near completion and now the Opposite Party is in the process of applying for Occupation Certificate and as soon as the same is received the Opposite Party shall offer the possession to the Allottees. The Complainants have never raised any grievance of the Clauses in the Agreement being wholly one sided, unfair and unreasonable, as also delay in construction etc. before filing of the Complaint.  Clause 13(a) of the Agreement, which provides for handing over possession of the Unit in question within 27 months from the date of execution of the Agreement and 3 months’ grace period for applying and obtaining completion/occupation certificate, cannot be read in isolation and has to be read with other Sub-Clauses of Clause 13 and other Clauses of the same Agreement, which contemplates delay for Force Majeure event or any other reason beyond the control of the Opposite Party.  Assuming but not admitting the delay, if any, in delivery of possession, has to be compensated in terms of Clause-15 of the Agreement, which provides for compensation of Rs.10/- per sq. ft. per month for the period of delay, and, therefore, the Complainants cannot claim penal interest @12%, which is barred by Section 74 of the Indian Contract Act because the Complainants have agreed to accept the said compensation in the Agreement.  Further, the Complaint is not maintainable in view of settled law in a plethora of decisions of the Hon’ble Supreme Court that the agreed clauses of Contract are binding on the parties.  Seeking relief beyond the scope of the Agreement is misconceived and shows the malafide intentions of the Complainants.  Whatever amounts have been deposited by the Complainants have been deposited as per the Construction Linked Payment Plan in consonance with the achievement of various stages of the construction.  If there is any delay, it has caused due to Force Majeure conditions beyond the control of the Opposite Party and the Opposite Party is liable to compensate only in terms of the relevant Clauses of the Agreement dated 28.12.2009.  There was no deficiency in service or failure in service or unfair/restrictive 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.     As far as challenge to the maintainability of the Complaint on the grounds mentioned in Para-8, referred to above, is concerned, in our considered view, none of the grounds are tenable.  In support of the plea that 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, the Opposite Party has not filed any documentary evidence.  The Opposite Party has not been able to establish 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.  As the Unit in question has been purchased by both the Complainants in their joint name and the Agreement has also been executed between both the Complainants on First Part and the Opposite Party on the other, the Complaint can be filed either by any one of the Complainants, if the facts and circumstances so warrant, or by both the Complainants and, therefore, there is no requirement on the part of Complainant No.1 to authorize Complainant No.2, who is his wife and co-buyer/allotee, to file the Complaint.  In view of the Reliefs/Prayers claimed in the Complaint, quoted above, it cannot be accepted that the claim of the Complainants is not more than Rs.1.00 Crore and they are bound to approach the Courts at Gurgaon.  The Complaint is maintainable before this Commission.  Further, in view of admission by the Opposite Party in its Written Statement/Reply that the Project is near completion and as soon as the Occupation Certificate is received by the Opposite Party, the offer shall be made to the Complainants, as also the information dated 01.11.2017 uploaded by the Opposite Party on its Website relating to construction update, which shows that the construction is still incomplete and houses are lying in unfinished state (see page 87-88 of the Complaint), it cannot be said that the Complaint has been filed beyond the prescribed period under Section 24A of the Consumer Protection Act, 1986 vis-à-vis the cause of action.  The Complainants, who have not been handed over possession of the Unit in question, are entitled to file the Complaint at any time before the possession is handed over to them.

14.     The contention of the Opposite Party that the Complaint is devoid of a valid cause of action is also misconceived.  The Project, having the Unit in question, being incomplete has not been denied by the Opposite Party and, therefore, the Complainants, who have not been handed over possession of the Unit despite lapse of considerable period over and above the period prescribed therefor and payment of huge money, are within their rights to approach this Commission by filing the present Complaint.

15.     Even if at the time of booking the Complainants were explained all the terms and conditions of the Agreement and they had signed the same with their own freewill and consent, it is not in dispute that till date possession has not been given to the Complainants, which was required to be handed over by June, 2012, going by the period of 30 months from the date of execution of the Agreement (28.12.2009), including the 3 months’ grace period available to the Opposite Party for applying and obtaining the Occupation Certificate, and there is inordinate delay of over 9 years in doing so. 

16.     Further, it is contended by the Opposite Party that Clause 13(a) of the Agreement, which deals with the period of handing over possession, extracted above, cannot be read in isolation and has to be read with other Sub-Clauses/Clauses of the Agreement, which contemplates for Force Majeure events/conditions or any other reason beyond the control of the Opposite Party.  We find that no such events/conditions/reasons have been given by the Opposite Party in its Written Statement/Reply and, therefore, it cannot take shelter of the stated plea.

17.     As per Clause-15 of the Agreement, the Opposite Party is required to pay delay compensation for the period of delay in handing over possession @ Rs.10/- per sq. ft. per month.  In our considered opinion, this compensation is too meagre and cannot be accepted as adequate compensation.  It is well settled by a catena of decisions that such Clauses are not applicable and the Complainants are to be adequately compensated.  In the Case of Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna & Ors., I (2021) CPJ 60 (SC), wherein delay compensation of Rs.7.50 per sq. ft. per month had been offered to be paid as delay compensation, the Hon’ble Supreme Court has been pleased to hold the compensation offered as inadequate.  We are of the conscious of the fact that in present case, delay compensation of Rs.10/- per sq. ft. per month, which as stated by the Complainants comes out to 1.4% per annum, has been stipulated in the Agreement but too cannot be treated as adequate.  Accordingly, the submission of the Opposite Party that the Complainants are entitled to the delay compensation of Rs.10/- per sq. ft. per month and cannot claim beyond the agreed terms and conditions of the Agreement cannot be accepted.  While it is well settled that one sided terms and conditions incorporated in the Agreement to Sale favouring the Seller only are not applicable and binding on the Purchaser, we also feel that in the present real estate market conditions as a result of Covid-19 Pandemic the claim of the Complainants for penal interest @ 12% per annum is also on the higher side.

18.     Insofar as contention of the Opposite Party that there was slow development and extraordinary delay in the Project on account of some Allottees of the Project not making the payments is concerned, this Commission recently in the Case of Kshitij Jain & Anr. Vs. Emaar MGF Land Ltd. (Consumer Complaint No. 386 of 2020), decided on 04.02.2020, while negating the said contention, has held as under:

“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.”

19.     As regards the contention of the Opposite Party that it has already provided the Allottees with the target completion schedule for the Project and shall also keep them updated of the progress regularly, we may note that it is not in dispute that even till today the possession has not been offered to the Complainants, perhaps for want of Occupation Certificate, which as stated by the Opposite Party is yet to be applied for.  In this view of the matter, the Opposite Party has not been able to establish that the Project is complete and Occupation Certificate has also been obtained by it.       

20.     It is not the case of the Opposite Party that there was any default on the part of the Complainants in making the payments demanded by it, inasmuch as it is stated by the Opposite Party that there was default on the part of the Allottees in making the payments.  Though it was a Construction Linked Payment Plan and the Complainants have already paid the aforesaid huge amount, which has not been denied by the Opposite Party, in the Written Statement/Reply no instance relating to any amount not paid by the Complainants has been given by the Opposite Party.  In such a situation, even if there was any default on the part of the Complainants in making some payment demanded by the Opposite Party, they cannot be blamed as the Project was not complete and it was a Construction Linked Payment Plan.

21.     In view of the foregoing discussion, we have no hesitation in holding that there is deficiency in service on the part of the Opposite Party in not handing over possession to the Complainants by June, 2012, by which time the period prescribed under Clause 13(a) of the Agreement for handing over possession of the Unit in question had expired.  Still, possession has not been offered to the Complainants and there is inordinate delay of over 9 years in handing over possession to the Complainants.  They are entitled to a reasonable compensation therefor.  In our considered opinion, delay compensation @ 8% simple interest per annum on the amounts deposited by the Complainants from July, 2012 till the date of handing over possession would meet the ends of justice.   Needless to state that in the Case of Amitava Shankar Guha Vs. Emaar MGF Land Ltd., IV (2019) CPJ 522 (NC), which involves similar facts and circumstances as also the Project in question, namely, “Emerald Hills”, 8% simple interest has been awarded by a Coordinate Bench of this Commission and, accordingly, respectfully following the said decision, same interest is being awarded in this case.         

22.     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, subject to payment of outstanding dues, if any, after obtaining Occupation Certificate, if not obtained by now, within a period of six weeks from today and pay 8% simple interest on the amounts deposited by the Complainants from July, 2012 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.     

23.     Pending Application, if any, stands disposed off.