PER MR SUBHASH CHANDRA, MEMBER

1.     This complaint is filed under section 21 (a) (i) of the Consumer Protection Act, 1986 (hereinafter ‘Act’) alleging deficiency in service and unfair trade practice by M/s Parasvnath Developers Ltd, New Delhi, the opposite party, in respect of a residential flat booked by the complainants in project ‘Parasvnath Exotica’, Gurgaon, Haryana (in short ‘the project’) promoted and developed by the opposite party.

2.     The brief facts of the case are that the complainants had booked a residential flat with the opposite party in the project on 04.04.2006 by paying a booking amount of Rs 11,53,200/- under a Construction Linked payment Plan. As per Flat Buyer Agreement (hereinafter ‘Agreement’) executed on 04.04.2006 between the parties, Flat No. D5-403 admeasuring approximately 2810 sq ft was allotted to the complainants for a total sale consideration of Rs 1,15,32,000/- and then the area was revised and increased to 2895 sq ft. Possession of the flat was promised as per clause 10 (a) of the Agreement within a period of 36 months with a grace period of 6 months, i.e. by April 2009. Between 26.04.2006 and 28.02.2008 a total sum of Rs 1,11,55,630/- was deposited by the complainants in various instalments with the opposite party under the payment plan. However, despite timely payments, the construction of the flat has not been completed or any offer of possession been made by the opposite party despite the lapse of nearly 6 years as on the date of filing of this complaint, i.e., 04.08.2015.  It is averred that the opposite party has been making false promises of completion of the tower and have revised the date of completion from 2008 to April 2010 and further to September 2010 citing reasons ‘beyond their control’. On 12.03,2015 a demand of Rs 6,07,140.58/- was made by the opposite party including Rs 46,958/- towards interest on delayed payment @ 24% despite all payments having been made timely. Rebate for delay in possession was given for 19 months whereas the same was to be provided for 76 months. As the project has been inordinately delayed, complainants have claimed compensation for having stayed in rented accommodation in addition to compensation by way of compound interest @ 18% on the payment made and other reliefs. The complainants are before us with the following prayer seeking:

1. Compound Interest @ 18% per annum amounting to Rs.2,06,67,287/- on the total booking amount and payments as per CLP amounting to Rs.1,11,55,360/- plus further such interest till the time such actual payment is made;
2. Total rent paid by complainants from April 2009 till July 2015 amounting to a total of Rs.,42,40,000/- plus further rent which the complainants would be paying till the time the possession is handed over to them;
3. Compound interest @ 18% per annum on the total rent paid amounting to a total of Rs.29,27,142/- plus further such amount with compound interest @ 18% per annum till the time the possession is handed over to the complainants;
4. Compensation on account of delayed possession for the past 76 months @ Rs.28,950/- per month as per the terms of Clause 10 (c ) of the Flat Buyer Agreement amounting to a total of Rs.22,00,000/- plus future compensation at the same rate till the time of the handing over of the possession of the said flat to the complainants;
5. Award compensation of Rs.10,00,000/- on account of harassment, mental agony, anguish, frustration and anger plus further compensation at the same rate till the time of the handing over of the possession of the said flat to the complainants;
6. Award litigation cost of Rs.5,00,000/-;
7. Award pendent lite and future interests on the above amounts;
8. Award such other and further compensation that this Hon’ble Commission deems fit a proper under the facts and circumstances of the present case.

The complainants have relied upon this Commission’s orders in Subhash Chandra Mahajan & Anr. Vs. Parasvnath Developers Ltd in CC No. 144 of 2011 and in Abhishek Kumar Diwedi Vs Parasvnath Developers Ltd in CC No. 200 of 2011 wherein compensation per annum on account of harassment, mental agony and cost of litigation was awarded.

3.     The complaint has been resisted by the opposite party by way of written submission. It is contended by the opposite party that delay is due to reasons not attributable to the opposite party in view of the global economic slowdown which also impacted the real estate sector. It entered into agreements with landowners on various dates for development of construction and development rights in 2005 and 2009 and after receipt of building licence, applications for building plan approval were made on 11.12.2004 and on 29.11.2007 respectively which included approval on 10.04.2009 for Pocket B. Out of the 18 multi-storied towers, 11 have been completed and more than 450 flats have been handed over. Occupation Certificate in respect of 5 towers has been applied for, including the tower in which the complainants’ flat is located. However, the complainants did not agree to the additional amount of Rs 3,48,832.35 for the additional super built up area of 85 sq ft and to fit outs for which letter dated 12.03.2015 was sent. It is submitted that the complainants have no cause of action and are seeking to profit from the booking. They have also not been able to establish any cause of action or deficiency in service. The opposite party has relied upon the judgement of the Hon’ble Supreme Court in Bharathi Knitting Vs DHL Courier World Wide Express Courier (1996) 4 SCC  704 wherein it was held that an agreement between parties was binding and could not be described as being one-sided. Opposite side has also relied upon Hon’ble Supreme Court’s judgement in DLF Universal Ltd Vs Ekta Seth (2008) 7 SCC 585 where it was held that not having exercised the specific right to cancel the agreement, no grievance can be made by the complainant on account of delay in handing over possession.

4.     The case of the complainants is that there has been an inordinate delay in handing over possession of a flat for which they have deposited instalments as per the construction linked plan and that they are entitled to compensation. It is his case that the delay is inordinate and amounts to deficiency in service and that the one-sided clauses in the Agreement constitute an unfair trade practice as they were unable to contest the said agreement having already deposited a substantial amount of money with the opposite party. Despite the prayer for various compensations as relief in the original prayer, during arguments the learned counsel for complainants limited his prayer to repayment of principal amount deposited with interest. The opposite party has denied making false or misleading promises and averred that the reasons for the delay in completing the project and obtaining an occupation certificate were not in its control. It is not denied that an offer of possession has not been made so far. Opposite party has relied upon judgements of the Hon’ble Supreme Court (supra) to deny any unfair trade practice on its part.

5.     Parties filed their written synopsis. We have heard the learned counsels for the parties and perused the records carefully.  Admittedly, there has been a delay of six years in the handing over the subject flat. The opposite party has not denied the receipt of Rs.1,11,55,360/-  towards the sale consideration of the subject flat.

6.      The contention of the opposite party that the Agreement between the parties was binding on the basis of Bharathi Knitting (supra) cannot be accepted in light of the judgement of the Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd., Vs. Govindan Raghavan – II (2009) CPJ 34 (SC) wherein it has been categorically held that

“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” (para 6.7) and that

“The Appellant-Builder cannot seek to bind the Respondent with such one-sided contractual terms” (para 7).

The reliance of the opposite party on Ekta Seth (supra) also does not merit consideration since it has been held in Pioneer Urban Land and Infrastructure Ltd., (Supra) that in case there is inordinate delay in the handing over of the flat booked, the complainant/consumer is entitled to seek full refund with interest.

7.     The reasons for the delay advanced by the opposite party are not specific or supported by any documents except to claim that it is on account of reasons beyond their control. The general recession in the real estate business as the reason for the delay cited by him as a primary reason is not supported by any documentary evidence that impacted the project in which the complainants have booked their residential apartment. The reason advanced by the opposite party as a force majeure ground for the delay in completion of the construction cannot be considered as a valid ground in view of the fact that it was his risk to manage having collected deposits against the booking made and the agreement having been signed. The arguments against such force majeure arguments have been considered and addressed at length in Ashish Gupta Vs. Unitech Ltd. in CC No. 594 of 2016 dated 28.11.2016 wherein this Commission held that:

“As regards the alleged economic slowdown and consequent recession in the real estate market, the same cannot be a valid ground sfor delaying the possession of the flats to the  complainant since some of the buyers made advance payment of almost 95% of the sale consideration whereas the other buyers were to make payment linked with the progress of construction and this is not the case of the opposite party that they had defaulted in performing their contractual obligations as regards the payment of the sale consideration. Therefore, it cannot be said, as far as this project is concerned, that the construction was delayed on account of funds not being available with the opposite party.”

8.      The contention of the opposite party on force majeure grounds of demonetisation and restrictions on account of orders of the NGT cannot be considered as valid in the present case. There has been no documentary evidence adduced by the opposite party to substantiate its claim for relief on the basis of these reasons. These issues have also been extensively considered in this Commission’s orders in Anil Kumar Jain & Anr. Vs. M/s Nexgen Infracon Private Limited CC No. 1605 of 2018 dated 23.12.2019 wherein it was held that in the absence of any proof to substantiate the claims of demonetisation and NGT adversely causing delay in completion of the project and impacting the date of handing over of flats, such reliance on force majeure conditions was not justifiable. We are, therefore, of the view that the contention of the opposite party is without merit and cannot be sustained.

9.     The contention of the opposite party that the delay in the project is not due to reasons attributable to them and that the project is underway is an admission of the delay. The complainant cannot be expected to wait indefinitely for being offered possession of the flat. The Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra – II (2019) CPJ 29 SC held that

 “…it would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession…A buyer can be expected to wait for a reasonable period. A period of seven years is beyond what is reasonable”.

In Fortune Infrastructure & Anr. Vs. Trevor D’Lima & Ors. - 2018 (5) SCC 442 also the Hon’ble Apex Court held that a person cannot be made to wait indefinitely for possession of the flat allotted and is entitled to refund along with compensation. The prayer of the complainant for refund with compensation in the form of interest is therefore justified and sustained.

10.    As regards the contention of the opposite party that the complainants are seeking to profit from the booking of the flat, the opposite party has not produced any evidence to substantiate the contention that the complainants are not consumers within the ambit of section 2 (i) (d) of the Act as being dealers in real estate or being merely investors. The onus of proving this lies squarely upon the opposite party. This Commission in Kavita Ahuja vs Shipra Estates – I (2016) CPJ 31, held that the onus of establishing that the complainant was dealing in real estate, i.e., in the purchase and sale of plots/ flats for commercial purposes to earn profits lies upon the opposite party. Further, in Rajnish Bhardwaj and Ors vs M/s CHD Developers Ltd., and Ors in CC no. 3775 of 2017 decided on 26.11.2019, this Commission also held that the onus of proof to prove that the complainant is an ‘investor’ also lies upon the opposite party as below:

“13.      The first contention of the Learned Counsel for the Opposite Party that the Complainants are not “Consumers” and only “investors” is not supported by any documentary evidence. In a catena of judgments, this Commission has laid down that the onus of proof shifts to the Opposite Party to prove that the Complainant is “investor” and it is observed that the Opposite Party did not discharge their onus of proof regarding this aspect. Hence, we are of the considered view that the Complainants are “Consumers” as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986”.

11.   The date of booking was 04.04.2006 and the Agreement was signed on the same date. Despite payment of Rs 1,11,55,360/- against a sale consideration of Rs 1,15,32,000/- amounting to nearly 97% of the sale consideration, there is neither an occupation certificate or offer of possession by the opposite party. The inordinate delay in handing over possession is admitted even after acceptance of the deposit of the amount of is clearly a deficiency in service.

12.   In view of the foregoing we are of the considered view that there has been deficiency in service as well as unfair trade practice on part of the opposite party in respect of the flat booked by the complainants. For the aforesaid reasons, we are inclined to accept the contentions of the complainants and allow complaint with the following directions:

(i)     Opposite party shall refund the amount of Rs 1,11,55,360/- deposited by the complainant towards the sale consideration of the flat with interest @ 9% from the respective dates of deposit till the date of payment;

 (ii)   This order be complied with within 8 weeks failing which the amount to be repaid shall be repaid with 12% rate of interest.

13.   The complaint is disposed of with these directions.