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Judgment
V.K. Jain, J
The complainants in these matters booked residential apartments in a project, namely, "Manor One" which OP-1 Kashish Developers Ltd. was to develop in Sector 111 of Gurgaon. On allotment of residential apartments to them, they executed individual Apartment Buyers Agreement with the Kashish Developers Ltd., M/s Vinman Constructions Pvt. Ltd. and M/s Elite Villas Pvt. Ltd. on different dates incorporating their respective obligations in respect of the said transaction. The agreements were signed by M/s Vinman Constructions Pvt. Ltd. and M/s Elite Villas Pvt. Ltd. as the confirming parties. As per clause 3(a) of the said agreements, the possession of the apartments was proposed to be delivered to the allottees within 36 months from the date of execution of the said agreements, though the Developer also had a grace period of six months available to it for the said purpose. The following are the particulars of the agreements executed between the parties and the apartments allotted to them:-
S.No.
CC NO.
NAME
APPARTMENT DETAILS
BBA
DATE
TOTAL CONSIDERATION
AMOUNT PAID
1
1739/16
Ashima Sharma
UNIT NO. B2-2B ,TOWER B2, FLOOR 2
21/02/2013
1,27,24,115
1,00,61,540
2
510/17
Sandeep Sinhmar
UNIT NO. B1-2B, TOWER B1, FLOOR 2
17/12/2013
1,18,22,025
93,55,616
3
2058/17
SUGAM SHARMA / PREETI SHARMA
UNIT NO.C2-8A, TOWER C2, FLOOR 8
30/01/2013
1,22,80,675
91,13,231
4
2059/17
SUNIL KUMAR SAXENA
UNIT NO. B1-7D, TOWER B1, FLOOR 7
26/11/2012
1,03,81,030
81,64,498
5
2060/17
SANJEEV DALAL / SUNITA
UNIT NO.B2-16B, TOWER B2, FLOOR 16
16-08-13
1,22,47,345
96,20,054
6
2061/17
PRATAP SINGH KATARIA / Bhupender Singh
UNIT NO.C2-10A, TOWER C2, FLOOR 10
23/04/2013
1,63,49,425
1,20,50,881
7
2062/17
PRAVIN BEDI
UNIT NO. B4-8B, TOWER B4, FLOOR 08
06-04-13
1,19,93,525
88,57,683
8
2065/17
DINESH KUMAR PALIWAL
UNIT NO.B1-14A, TOWER B1, FLOOR 14
16/09/2015
1,17,36,275
92,33,074
9
2066/17
HARBANS LAL
UNIT NO.C5-10A, TOWER C5, FLOOR 10
04-03-13
88,60,600
85,70,939
10
2068/17
ASHISH ANT / ALKA ANAT
UNIT NO.D-12A, TOWER D, FLOOR 12
11-03-13
2,78,29,600
1,93,49,361
11
2071/17
RAHUL KUMAR
UNIT NO.B2-9D, TOWER B2, FLOOR 9
11-04-13
1,02,23,890
80,42,573/-
12
2072/17
SUDHA CHAK
UNIT NO. B2-14A, TOWER B2, FLOOR 14
14-02-13
1,15,64,775
79,95,497
13
2075/17
POOJA HINGORANI / NARESH HINGORANI
UNIT NO.C1-7B, TOWER C1, FLOOR 07
04-07-13
1,63,49,425
1,28,40,279
14
2076/17
RAMESH KUMAR / . Kavita Kiran
UNIT NO.B5-14B, TOWER B5, FLOOR 14
21-03-2013
1,03,29,975
78,98,216
15
2078/17
AJIT BHAL
UNIT NO.B2-7C, TOWER
B2, FLOOR 7
19/03/2013
99,19,795
77,83,813
16
2079/17
GITA DWIVEDI
UNIT NO. B1-11C, TOWER B1, FLOOR 11
19/03/2013
99,18,340
77,82,690
17
2080/17
GAURAV SAHGAL
UNIT NO. B2-6A, TOWER B2, FLOOR 6
19/03/2013
1,17,84,895
92,66,709
18
2081/17
V.L. NARAYANAN
UNIT NO.B1-10A, TOWER B1, FLOOR 10
18-02-13
1,17,29,415
92,29,662
19
2083/17
SATYAVIR SINGH / Sanjay Kalra
UNIT NO.B5-4C, TOWER B5, FLOOR 4
12-08-13
98,13,580
76,99,837
20
2084/17
T. CHANDAN
UNIT NO.B4-10D, TOWER B4, FLOOR 10
17-04-13
55,06,780
53,20,909
21
2085/17
SACHIN SHARMA/ RASHMI SHARMA
UNIT NO. C2-2A,TOWER C2, FLOOR 2
12-02-14
1,44,89,425
1,08,05,348
22
2086/17
POONAM SHIV
UNIT NO. B5-4D,TOWER B5, FLOOR 4
11-09-13
98,13,580
77,11,072
23
2087/17
RISHAB SONI
UNIT NO. B2-7A,TOWER B2, FLOOR 7
09-04-13
1,17,36,275
92,29,551
24
2089/17
RAJESH MALIK
UNIT NO. B1-14C, TOWER B1, FLOOR 14
25-02-13
1,00,11,460
78,86,995
25
2090/17
BRAHAM PAL SINGH
UNIT NO. B1-12B, TOWER B1, FLOOR 12
08-02-13
1,16,21,370
91,40,293
26
2092/17
VIKRAMJEET BAKSHI
UNIT NO. C1-7A, TOWER C1, FLOOR 7
18-03-13
15,684,475
1,23,75,787.
27
2095/17
USHA RANI KALRA
UNIT NO. B1-7C, TOWER B1, FLOOR 7
06/01/2014
98,71,780
7,746,683
28
2704/17
SUNIL YADAV
UNIT NO. B1-15B, TOWER 15, FLOOR 15
17-04-13
12,669,235
9,344,039
The grievance of the complainants is that the possession of the allotted flats has not even been offered to them despite they having made substantial payments to OP-1 - Kashish Developers Ltd. which has not disputed the allotments made to the aforesaid complainants, the agreements executed with them and the amount received from them. The learned counsel for the OP submits that the construction could not be completed within the time stipulated in the agreements as (i) more than 100 flat buyers did not make full payment as per their contractual obligations with the Developer and (ii) there was slump in the real estate on account of demonetization which led to the delay in completing the construction. The learned counsel for OP-1 also states that vide order dated 8.11.2016, the National Green Tribunal had stayed construction activity for a week following heavy smog in Delhi. No other ground is advanced by the learned counsel for the OP to justify the delay in completion of the construction.
As far as the stoppage of work for one week in terms of the order of the NGT is concerned, that would be hardly of any consequence, the duration of the said order being very very short whereas the delay in completion of the construction runs into several years if computed from the date committed by the Developer for the delivery of possession.
As regards the default on account of several flat buyers in making payment to the Developer, the complainants who admittedly did not commit any default cannot be penalised for the default on the part of the other flat buyers. This is more so when the delay in completing the construction is for an unreasonably long period. If there was default on part of other flat buyers, nothing prevented the Developer from cancelling their allotments in terms of the agreements it had with them and then selling those flats to other potential buyers in the market. The Developer could also have arranged the requisite finance from alternative sources but it cannot, in my view, penalise the flat buyers who believing the promise made by the Developer parted with their hard earned money and paid the same to the Developer in the hope of having a shelter on their head, within a reasonable time. Therefore, such alleged default, in my view, cannot justify the delay in completion of the construction.
As far as demonetisation of the currency is concerned, I fail to appreciate how the demonetisation could have in any manner affected the construction of the houses which the Developer was to construct for the allottees. The Developer is expected to account for every payment received by him from the flat buyers and, therefore, there is no way the demonetisation could have affected the pace of construction.
In terms of the date committed in the agreements, the possession of the apartments ought to have been delivered in the year 2016 in most of the cases, by July 2017 in a few cases and by September 2018 in one case. Only in CC/2065/2017 - Dinesh Kumar Paliwal, the possession can be delivered by 17.3.2019. However, his case is that the flat was booked by him in May 2012 and the Developer delayed the execution of the buyers agreement for a long period.
The construction of the apartments allotted to these complainants was not complete when these complaints were instituted. The concoction is not complete even today. The learned counsel for the Developer states on instructions that they will complete the construction within 9 months and deliver possession soon thereafter after obtaining the requisite occupancy certificate. However, in my view, these complainants cannot be compelled to wait any more for the possession of the flats. The learned counsel for the complainants states on instructions that the complainants are not agreeable to wait for 9 more months for the possession of the flats and having lost trust in the developer, they want immediate refund of the amount paid by them to the Developer along with appropriate compensation so that they are in a position to acquire some other accommodation to meet their respective requirements. In my view, considering the abnormal delay on the part of the Developer, in completing the construction, the complainants cannot be compelled to wait any more for the possession of the apartments allotted to them and therefore they are entitled to refund of the amount paid by them to the Developer along with appropriate compensation.
Relying upon the decision of the Hon'ble Supreme Court in Kailash Nath Associates Vs. Delhi Development Authority [(2015) 4 SSC 136] decided on 9.1.2015, the learned counsel for the Developer submits that the complainants having condoned the delay till the date of institution of the complaints by not coming to this Commission immediately after the date committed by the Developer to them for delivery of possession, they are entitled to compensation only as per the contractual rate of Rs.10/- per sq.ft. per month of the super area of the flat. I, however, find no merit in the contention. In para 26 of the Kailash Nath (supra) which is relied upon by the learned counsel for the Developer, the Hon'ble Supreme Court interalia observed as under:-
"26. Similarly in S. Brahmanand v. K.R. Muthugopal, (2005) 12 SCC 764 the Supreme Court held: "34. Thus, this was a situation where the original agreement of 10-3-1989 had a "fixed date" for performance, but by the subsequent letter of 18-6-1992 the defendants made a request for postponing the performance to a future date without fixing any further date for performance. This was accepted by the plaintiffs by their act of forbearance and not insisting on performance forthwith. There is nothing strange in time for performance being extended, even though originally the agreement had a fixed date. Section 63 of the Contract Act, 1872 provides that every promisee may extend time for the performance of the contract. Such an agreement to extend time need not necessarily be reduced to writing, but may be proved by oral evidence or, in some cases, even by evidence of conduct including forbearance on the part of the other party. [See in this connection the observations of this Court in Keshavlal Lallubhai Patel v. Lalbhai Trikumlal Mills Ltd., 1959 SCR 213 : AIR 1958 SC 512, para 8. See also in this connection Saraswathamma v. H. Sharad Shrikhande, AIR 2005 Kant 292 and K. Venkoji Rao v. M. Abdul Khuddur Kureshi, AIR 1991 Kant 119, following the judgment in Keshavlal Lallubhai Patel (supra).] Thus, in this case there was a variation in the date of performance by express representation by the defendants, agreed to by the act of forbearance on the part of the plaintiffs. What was originally covered by the first part of Article 54, now fell within the purview of the second part of the article. Pazhaniappa Chettiyar v. South Indian Planting and Industrial Co. Ltd. [AIR 1953 Trav Co 161] was a similar instance where the contract when initially made had a date fixed for the performance of the contract but the Court was of the view that "in the events that happened in this case, the agreement in question though started with fixation of a period for the completion of the transaction became one without such period on account of the peculiar facts and circumstances already explained and the contract, therefore, became one in which no time was fixed for its performance" and held that what was originally covered by the first part of Article 113 of the Limitation Act, 1908 would fall under the second part of the said article because of the supervening circumstances of the case."(at Page 777)"
It would thus be seen that the Hon'ble Supreme Court in S. Brahmanand (supra) was referring to a case where the promisor seeks postponement of the performance to a future date and the said offer is accepted by the promisee by its act of forbearance and by not insisting upon forthwith performance. However, in the present case, there is not even an allegation of the Developer having sought postponement of the date committed for delivery of possession of the apartments and the flat buyers having accepted such a request of the Developer. Therefore, the reliance upon the aforesaid judgement of the Hon'ble Supreme Court, in my opinion, is wholly misconceived.
Relying upon the decision of the Hon'ble Supreme Court in Bharathi Knitting Company Vs. DHL Worldwide Express Courier Division of Airfreight Ltd. [(1996) 4 SCC 704] decided on 9.5.1996, the learned counsel for the Developer submits that having not exercised the option to exit from the project in terms of the agreement executed between the parties, the complainants are bound by the terms of the contract and, therefore, are entitled only to the contractual compensation. Again, I find no merit in the contention. Such arguments have repeatedly been rejected by this Commission in numerous cases and it has been held that such a clause in a Builder Buyer Agreement amounts to an unfair trade practice when the Developer himself charges a hefty interest from the flat buyers in the event of default on his part in making payment and also retains the right to cancel the allotment itself after deducting the prescribed earnest money. Therefore, as far as this Commission is concerned, it is competent to award appropriate compensation in a case where the builder is found to be deficient in rendering services to the allottees by not delivering possession of the allotted flats on or before the date committed for this purpose and within a short period thereafter.
As noted earlier, in these cases, the booking of the flats started way back in 2012. The Developer has not been able to complete the construction of the flats even in more than six years. The construction is not complete even as on today. There is no guarantee that the builder will complete the construction and obtain the requisite occupancy certificate even if further time of nine months is given to it for the purpose. Considering all the facts and circumstances, the complainants in my view, are entitled to refund of the amount paid by them to OP-1 along with appropriate compensation in form of simple interest. The learned counsel for the complainants states on instructions that in order to avoid further litigation in the matter and considering the interest rates on FDR prevalent at the relevant time, the complainants are restricting their claim to the refund of the principal amount paid by them to OP-1 along with compensation in the form of simple interest @ 10% p.a. with effect from the date of each payment till the date of refund inclusive of compensation for the mental agony and harassment suffered by them at the hands of the Developer.
For the reasons stated hereinabove, the complaints are disposed of with the following directions:-
In all the above-referred consumer complaints except
In CC/2065/2017filed by Sh. Dinesh Kumar Paliwal, the OP-1 - Kashish Developers shall either deliver possession of the allotted flat complete in all respects, after obtaining the requisite occupancy certificate by 16.3.2019 or it shall refund the entire amount received by it from the aforesaid complainant along with simple interest @ 10% p.a. from the date of each payment till the date of refund.
The payment in terms of this order shall be made within three months from today except to the complainant in CC/2065/2017.
The payment to the complainant in CC/2065/2017 shall be made within three months from 16.3.2019 in case the possession of the allotted flat is not given to him by 16.3.2019 after completing the construction in all respects and receiving the requisite occupancy certificate
The OP-1 - Kashish Developers Ltd. shall pay Rs.25,000/- as the cost of litigation in each complaint.