JUSTICE SUDIP AHLUWALIA, MEMBER

2. The factual background, in brief, is that on 12.01.2012, the Complainants booked Unit No. B-501 in Tower B of the project “Araya,” developed by the Opposite Party at Village Ghata, Sector 62, Gurgaon, Haryana for a total sale consideration of Rs. 4,59,80,280/- and paid an initial booking amount of Rs. 40,00,000/-. The decision to book the unit was based on the assurances given by the Opposite Party, portraying the project as an ultra-luxurious housing development with state-of-the-art amenities, including landscaped gardens, a clubhouse, sports facilities, and home automation systems. Subsequently, an allotment letter dated 02.02.2012 was issued, followed by the execution of an Apartment Buyer’s Agreement on 06.03.2012. It is the case of the Complainants that the Apartment Buyer’s Agreement was heavily skewed in favour of the Opposite Party and contained several arbitrary clauses. While it imposed an 18% p.a. interest for delayed payments by the buyer, it limited the Opposite Party’s liability for delay in possession to a nominal compensation of Rs. 10/- per square foot per month. Despite this inequitable arrangement, the Complainants diligently complied with the terms of the Agreement and made timely payments in accordance with the construction-linked plan. By February 2022, the Complainants had paid a total amount of Rs. 4,97,66,063/-, exceeding the agreed sale consideration.

3. As per the Apartment Buyer’s Agreement, the possession of the unit was to be delivered within 39 months from the date of excavation, with an additional grace period of 180 days for obtaining the Occupancy Certificate. Given that the excavation had begun on 04.06.2012, the possession was to be delivered latest by March 2016. However, despite receiving almost the entire sale consideration from the Complainants, the Opposite Party failed to meet the promised timeline. The possession was finally offered on 03.04.2019, after a delay of more than three years. Even then, the Opposite Party offered a meagre compensation of Rs. 17,62,210/- for the delay, calculated at the nominal rate of Rs. 10/- per square foot per month, which the Complainants contend is grossly inadequate. The offer of possession, when it finally came, was accompanied by arbitrary additional charges, and the Opposite Party failed to provide the promised amenities and facilities in the project. Aggrieved with the deficiency in service due to delay in possession, the Complainants filed the present Complaint seeking the following reliefs -

“a) Direct the Opposite Party to handover possession of the Unit to the Complainants complete in all respects and in conformity with the Agreement and for the consideration mentioned therein, with all additional facilities with warranties and as per quality standards promised and execute all necessary and required documents in respect of the said Unit in favour of the Complainants immediately upon this Complaint being filed before this Hon'ble Commission or as this Hon'ble Commission deems fit and appropriate;

 

b) Direct the Opposite Party to pay interest @ 12% p.a. on the amount deposited by the Complainants with effect from the date of delivery promised in the Agreement, till the date of actual physical possession as per clause (a) above is handed over by the Opposite Party;

 

c) Direct the Opposite Party to pay compensation of Rs. 5,00,000/- (Rupees Five Lacs Only) to the Complainants for mental agony, harassment, discomfort and undue hardships caused to the Complainants as a result of the above acts and omissions on the part of the Opposite Party;

 

d) Direct the Opposite Party to pay a sum of Rs. 3,00,000/- (Rupees One Lacs Only) to the Complainants towards litigation costs;”

 

4. The Opposite Party has filed its Written Statement and resisted the Complaint in which it has denied all the material averments made by the Complainants; The Opposite Party contends that the present Consumer Complaint has been filed after a considerable delay, specifically over two years after the offer of possession of the unit. The Complainants have sought possession of Unit No. 501 in Tower ‘B’ of the project “Araya” along with interest at 12% p.a. for the delay in possession. However, the prayers of the Complainants are without merit, given that possession of the unit was offered on 03.04.2019, and a Conveyance Deed was executed in their favour on 22.10.2021. These material facts have been conveniently omitted in the complaint, thereby warranting its dismissal. Further, Clause 41 of the application form clearly provides that in the event of delays attributable to factors beyond the control of the builder, compensation would be limited to Rs. 10/- per square foot per month. This condition, agreed upon by the Complainants at the time of application, has never been challenged.

5. The Opposite Party vide its Written Statement further averred that the delay in the completion of the project was due to factors beyond the control of the Opposite Party, including market conditions, delays in obtaining necessary approvals, and disruptions caused by external circumstances. The Opposite Party received the Occupation Certificate for Tower ‘B’ on 03.04.2019, and possession of the unit was offered on the same day. Further, Rs. 17,62,210/- was credited to the Complainants’ account as compensation for the delay, calculated as per Clause 11.5 of the Apartment Buyer’s Agreement. Despite the offer of possession, the Complainants delayed the registration of the Conveyance Deed, citing reasons such as the loss of a bank NOC and the time required to procure a revised NOC. Consequently, the Conveyance Deed was executed on 22.10.2021, and physical possession of the unit was taken by the Complainants on 17.02.2022. The delays in registration and possession were solely attributable to the Complainants’ own actions. The Opposite Party has completed all four towers and the associated clubhouse within the project. Occupation Certificates have been issued for each tower and the clubhouse, and possession has been handed over to several residents.

6. Rejoinder on behalf of the Complainant to the Written Statement by the Opposite Party has been filed; It has been averred in the rejoinder that the present dispute is substantially similar to those already adjudicated upon by this Commission concerning the same project and the same Opposite Party, as seen in the case of “Geetu Gidwani Verma and Anr. vs. Pioneer Urban Land and Infrastructure Ltd., CC No. 238 of 2017”, which was upheld by the Hon’ble Supreme Court. The Complainants allege that the Agreement contained several one-sided and arbitrary clauses, which they could not contest due to the Opposite Party's leverage, having already collected a significant portion of the payment. While the Agreement imposed an 18% p.a.  interest on delayed payments by the buyers, it offered a paltry compensation of Rs. 10/- per square foot per month for delays in possession by the developer, which is unfair.

7. Further as per rejoinder, it is the contention of the Complainants that according to the Agreement, the possession was to be delivered within 39 months from the start of excavation, along with a grace period of 180 days. The excavation began on 04.06.2012, implying a delivery deadline of 02.03.2016. However, despite diligently adhering to the construction-linked payment schedule and paying a total of Rs. 4,97,66,063.21/- by 01.02.2022, the Complainants did not receive possession within the promised timeframe. Repeated follow-ups by the Complainants yielded only false assurances from the Opposite Party, and payment demands continued even after the committed possession date had lapsed. It was only on 03.04.2019, over three years after the promised deadline that possession was offered. However, this came with a minimal compensation of Rs. 17,62,210/- for the delay, calculated at Rs. 10/- per square foot per month, which is wholly inadequate given the extent of the delay and the financial strain caused.

8. Evidence by way of Affidavit has been filed by the Complainant No. 1 Mr. Ajai Puri and the Complainant No. 2 Mrs. Madhu Puri; Evidence by way of Affidavit has been filed on behalf of Opposite Party by Mr. Vijay Patel, Authorized Representative of M/s Pioneer Urban Land & Infrastructure Ltd.

9. This Commission has heard both the Ld. Counsel for Complainants and the Opposite Party, and perused the material available on record.

10. The delay in handing over possession of the unit is an undisputed fact and constitutes a clear deficiency in service on the part of the Opposite Party. As per the terms of the Apartment Buyer’s Agreement, possession was to be delivered by March 2016, inclusive of the grace period. However, possession was offered only on 03.04.2019, resulting in a delay of over three years. Such a delay, despite the Complainants having fulfilled their financial obligations well in advance, fundamentally breaches the terms of the Agreement and the Complainants’ legitimate expectations. While possession of the unit was eventually offered and taken by the Complainants during the pendency of the proceedings, rendering the prayer for possession infructuous, this does not absolve the Opposite Party of its liability for the delay. The Complainants are entitled to adequate compensation for the financial and emotional distress caused by the delay, over and above the nominal compensation stipulated in the Agreement. 

11. The Apartment Buyer’s Agreement provides for a nominal compensation of Rs. 10/- per Sq. Ft. per month for delays, which is grossly inadequate given the extent of the delay and its financial implications. This compensation fails to reflect the financial burden, loss of opportunity, and mental stress endured by the Complainants due to the Opposite Party’s failure to adhere to the agreed timeline. It has been held by the Hon’ble Supreme Court as well as this Commission that such one-sided clauses, which disproportionately benefit the builders, are unconscionable and cannot override the statutory rights of consumers under the Consumer Protection Act, 2019. The Complainants have made a valid claim for additional delay compensation at a reasonable rate of interest, commensurate with the financial strain and opportunity costs incurred during the delay. 

12. The Complainants’ right to relief is well-founded in law, irrespective of the eventual possession of the unit.  In similar cases, including “Geetu Gidwani Verma and Anr. vs. Pioneer Urban Land and Infrastructure Ltd., CC No. 238 of 2017”, this Commission had recognized the inadequacy of nominal compensation clauses and awarded additional compensation to buyers for delays in possession. Such decisions reinforce the principle that builders must be held accountable for delays, and consumers must be fairly compensated for the hardships caused. The possession of the unit during the pendency of this Complaint does not negate the Complainants’ right to claim compensation for the period of delay. The claims for interest on the delayed possession, mental agony, and litigation costs are reasonable and justified in light of the significant delay and the one-sided terms of the Agreement.  Upholding these claims is necessary to ensure justice,  accountability, and consumer protection in similar disputes.

13. As for the quantum of compensation that the Complainants are entitled to, the decision of the Hon'ble Supreme Court in “Arifur Rahman Khan v. DLF Southern Homes (P) Ltd., 2020 SCC OnLine SC 667” is being relied upon. The relevant extracts of the judgment are as under - 

 “69. For the above reasons we have come to the conclusion that the dismissal of the complaint by Ncdrc was erroneous. The flat buyers are entitled to compensation for delayed handing over of possession and for the failure of the developer to fulfil the representations made to flat buyers in regard to the provision of amenities. The reasoning of Ncdrc on these facets suffers from a clear perversity and patent errors of law which have been noticed in the earlier part of this judgment. Allowing the appeals in part, we set aside the impugned judgment and order of Ncdrc dated 2-7-2019 [Rasheed Ahmad Usmani v. DLF Ltd., 2019 SCC OnLine NCDRC 84] dismissing the consumer complaint. While doing so, we issue the following directions:

 

69.1. Save and except for eleven appellants who entered into specific settlements with the developer and three appellants who have sold their right, title and interest under the ABA, the first and second respondents shall, as a measure of compensation, pay an amount calculated @ 6 per cent simple interest per annum to each of the appellants. The amount shall be computed on the total amounts paid towards the purchase of the respective flats with effect from the date of expiry of thirty-six months from the execution of the respective ABAs until the date of the offer of possession after the receipt of the occupation certificate.

 

69.2. The above amount shall be in addition to the amounts which have been paid over or credited by the developer @ Rs 5 per square feet per month at the time of the drawing of final accounts.

 

69.3. The amounts due and payable in terms of Directions 69.1 and 69.2 above shall be paid over within a period of one month from the date of this judgment failing which they shall carry interest @ 9% p.a. until payment.”

 

14. In view of the aforesaid discussion and in the light of the decision of the Hon’ble Supreme Court in “Arifur Rahman Khan” (supra), the Opposite Party is directed to pay to the Complainants delay compensation @ 6% p.a. on the total consideration price paid by the Complainants from the promised date of possession till the date the possession was offered within two months of the date of this Order.  This delay compensation shall be over and above the compensation provided under the Agreement. In the event of non-compliance by the Opposite Party within the time as directed, any outstanding amounts shall attract interest @ 9% p.a. till the date of final realization.

15. The Opposite Party shall also pay to the Complainants an amount of Rs. 50,000/- towards litigation costs.

16. Pending application(s), if any, also stand disposed off having been rendered infructuous.