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Judgment
R.K. Agrawal, J., President
The Complaint, under Section 12(1)(c) read with Section 21 (a) (i) read with Section 22 of the Consumer Protection Act, 1986 (for short "the Act"), was initially filed by 14 Complainants on their own behalf and that of other Allottees of "Avenue 71" (for short "the Project"), launched by the sole Opposite Party, namely, CHD Developers Ltd. (for short, "the Developers") in Sector-71, Gurgaon, Haryana. During the proceedings in the Complaint, out of 14 Complainants, Complainant Nos. 3-4, 5-6 and 9-10, namely, Mr. Shrikant Moreshwar Kulkarni & Mrs. Jai Joshi Kulkarni, Mr. Gurmeet Singh Bhutani & Mrs. Jasminder Kaur and Mrs. Aruna Surana & Mr. Ramesh Chand Surana respectively signed the settlement deeds with the Developer on 08.09.2017, 08.09.2017 and 16.11.2017. Accordingly, vide order dated 12.01.2018, these Complainants were deleted from the array of the parties. However, despite the specific direction, the amended Memo of Parties has not been filed so far.
According to the Complainants, since all the Complainants have booked their respective flats in the same Project of the Opposite Party; entered into identical agreements to sell with them and the issues regarding their allotment such as delay in handing over possession, deficiency in construction, illegal demands by the Developer and huge gap in super area and carpet area, are identical and resultantly almost same reliefs have been prayed for by all the Complainants; the Complaint is proposed to have been filed in a representative capacity under the aforesaid provision.
For the sake of convenience, the material facts, enumerated hereinafter, are taken from the case of Complainant No.1 & 2, namely, Barun Jolly and Mrs. Mohni Jolly.
The Opposite Party Developer is engaged in the business of Construction and Real Estate. Allured by the representations and assurances given by the Developer that they have the international repute of developing and selling Residential and Commercial Complexes; they had successfully launched several Residential and Commercial Complexes in different part of the Country; they deliver high quality structures with superior functionality within the agreed time frame; necessary approvals for the Project have been arranged and the Project will be developed with assistance of Internationally Renowned Architects, Complainant No. 1 & 2, the son and mother, jointly booked an Apartment in "Signature Tower", Avenue 71 at Sector 71 Gurgaon with the Developer vide Booking No. CC0000849 dated 26.12.2011 for area of 2350 Sq. Ft. plus 793 sq. ft. lawn for a total consideration of 1,40,14,375/-. On 21.01.2012, the Developer issued the allotment letter, whereby apartment No. ST 00/01 (4 BHK + S) was allotted to them under "No Pre-EMI Plan". Accordingly, a Flat Buyer Agreement was also executed between the Parties. The Complainant Nos.1 & 2 paid a total sum of 1,36,72,910/- to the Developer. According to them, the possession of the Apartment was proposed to be delivered in March, 2014. The Developer also assured them that the Project will be developed as a State of Art Project as per the sanctions and permissions granted by the Competent Authorities and there will be no enhancement of Floor Area Ratio (FAR). It is also stated in the Complaint that the Developer has a team of Marketing Experts to lure the Customers and induce them to purchase units in their Projects by resorting to deceit and fraudulent representation; the Developer has failed to deliver possession of the Apartment within the prescribed time despite repeating promises and commitments; they have paid the huge payments to the Developer after taking financial assistances from various sources and are subject to huge financial liabilities on account of delay in completing the Project; the Developer has sold the Apartments by concealing vital facts about the Project; the Punjab & Haryana High Court at Chandigarh had granted certain restraint orders against the Developer in relation to the said Project on account of their deliberate and wilful acts of omissions and commissions. In July, 2015, the Developer informed the Complainants that the injunction granted by the High Court has been vacated and they shall be able to hand over the possession of the Apartment as the Construction of the Project is complete and they are waiting for Occupancy Certificate. But, in fact, the construction was never near the completion. Further, the actual Carpet Area of the Apartment was only approximately 1350 Sq. Ft. but the Developer had charged for Super Area of 2350 Sq. Ft. which led to a fraud. Despite the promise to not to increase the FAR, the Developer utilized additional FAR against the concept of Project and earned huge money. The Developer has lastly conveyed that the date of possession of the Apartment has been shifted to June, 2016 and that too was tentative. Consequently, a legal notice dated 05.04.2016 was sent to them calling upon to provide the exact date of possession; the status of the occupation certificate and the actual carpet area of the Apartment. They were also called upon to provide the copy of the sanctioned plan and the details of the FAR initially offered and actually utilised at site. However, the said notice was not replied by the Developer.
Same is the grievance of other Complainants. For ready reference, the necessary details of all the Complainants relating to Allotment letter, Apartment allotted, area of the Apartment; total sale consideration, amount paid, date of delivery of possession etc., are given below:-
Complainant No.
Name of Complain
Detail of Apartme
Area of Apptt. (in Sq. Ft.
Date of Allotment Lett
Date of Execution OF Agreeme
Date of Possession As per Flat Buyer Agreeme
Total Sale Considerati
Payment ma
1 & 2
Barun Jolly and Mohini Jol
ST-00/01
2350
21.01.12
2 2012/2013
3 31.03.14
1,40,14,375
5 1,36,72,910
7&8
Namrata Sinha &Ranjeet Kumar Sinha
ST-04/04
2350
09.03.12
09.03.12
2 31.03.14
1,27,06,750
0 1,23,69,666
11 &12
Puneet Bhatia & Neeraj Bhatia
ST-21/04
2350
09.10.13
3 31.03.14
1,35,99,75
1,27,06,750
1,31,28,128
13&14
Ranjivjit Singh & Suzy Singh
ST-08/01
2350
14.03.12
31.03.14
1,28,60,675/
1,28,60,675/-
1,25,20,287
The Complainants have alleged that on account of possession of the Apartments not being handed over to the Complainants within the committed period, they are suffering extreme kind of mental distress, pain and agony. The harassment is two-fold as on one hand, they are paying huge interest on the money paid to the Developer while on the other hand, they are incurring huge cost/rent/loss of rent due to non-availability of the said residential apartments. The Developer made the false statements only with a malafide intention to extract the remaining 5% amount which is due at the time of possession. The Developer secured for itself favourable terms by reserving claim of 18% interest on delayed payments, whereas for paying compensation for delay in possession they has only offered to pay @ 5/- per sq. ft. per month of the super area of the flat, that too in case delay is beyond six months. The Developer has made the flat owners to sign the Flat Buyer's Agreement which contain one sided terms and conditions. The Occupation Certificate has not been granted by the Concerned Authorities so far and there is no possibility that the Developer will be able to fulfil its commitment. Thus, holding the Developer guilty of deficiency in service in not handing over the possession of allotted apartments in time and adopting the unfair trade practice by making false statements and diverting the huge money collected from the Complainants to other projects, they filed the present complaint with the following relief:-
(a) direct the Respondent to deliver the apartments of the Complainants, complete in all respects, within such reasonable time as this Hon'ble Commission may deem fit and proper;
(b) direct the Respondent to pay interest at the rate of 18% per annum on the total amount paid by Complainants to Respondents towards their respective apartments, from the date of payment until actual physical possession of the respective apartments is given to the Complainants;
(c) Grant a compensation of 25 lakh to the Complainants for each of the apartment (or such enhanced compensation as this Hon'ble Commission may deem fit and proper upon appropriate inquiry/inspection) against the damages and mental agony caused due to the acts of the Respondent, inter-alia, exceeding the FAR originally fixed; misrepresentation regarding carpet area etc.
(d) direct the Respondent to pay a sum of 10 lacs to each of the Complainants towards undue hardship and injury, both physical and mental, caused to each of the Complainants on account of act of omission and commission on part of the Respondent;
(e) direct the respondent to pay at least a sum of 10 lakh to the Complainants towards cost of litigation;
(f) pass any such other/further order as this Hon'ble Commission may deem fit and proper.
In view of the decision of the larger Bench of this Commission in the case of Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd. - I (2017) CPJ 1 (NC) wherein certain guidelines with regard to joint complaint were laid down, the Complainants moved I.A. No. 12959 of 2016 seeking amendment in the Memo of parties adding after the Complainant No.14 the words, "Any other Flat Owners of the Project "Avenue 71" at Sector 71, Gurgaon" and amendment in the prayer clause. In the amended Complaint, the above reliefs were sought in favour of all the Flat Owners of the Project "Avenue 71" at Sector 71, Gurgaon in addition to the following prayers:-
"ALTERNATIVELY:
In alternative to prayer (a) to (c), this Hon'ble Commission may direct that in case the Respondent is unable to complete the Project as a whole and obtain Completion Certificate within maximum period of six months from the date of this Complaint or within such time as this Hon'ble Commission may deem reasonable, in the facts and circumstances of this case, the Customers shall have option to take refund of the payments and dues made to the Respondent along with interest @ 18% p.a. with quarterly rests on the amount paid by the Customers, till date of actual payment made to the Customers and accordingly, appropriate directions may be passed in such event for the refund along with interest as mentioned above.
*****
(f) Issue notice to all the Flat Owners, other than Complainants, in the Project "Avenue 71" at Sector 71, Gurgaon, in such manner as this Hon'ble Court may deem fit and proper in terms of the judgment titled Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd. :"
The application was allowed by this Commission, vide order dated 30.01.2017.
Upon notice, the Opposite Party has filed its reply to the Complaint. It is, inter-alia, contended that they were facing severe water supply problem on the said Project which could not be solved despite writing letters to the Competent Authorities; there was restriction on using underground water and due to that a Writ Petition was filed before the High Court of Punjab and Haryana at Chandigarh; all the requisite clearances were obtained before commencement of the Project; NOC was obtained from Administrator HUDA, Gurgaon for carrying out Construction Activities; a request was made to the Competent Authorities on 26.09.2013 to de-seal existing two tube wells for supply of water and an assurance was received by the Opposite Party from HUDA to provide water supply; the Opposite Party received a letter dated 22.11.13 from the Hydrologist Ground Water Cell, Gurgaon stating that the tube well in Sector 71 (Licence No.50 of 2008) was sealed in compliance of the order of the Hon'ble High Court of Punjab and Haryana at Chandigarh [Mukesh Sharma Vs. State of Haryana & Ors. - W.P. (C) No. 23839 of 2014]; due to non-availability of water, the construction activities were standstill and possession of the apartments could not be delivered; despite several letters written to various State Authorities and payment of External Development Charges, there was no development by the State to provide basic amenities to them; a sum of 66,50,994/- was spent by them to provide pipeline for water connection to the Flat Owners; applications dated 12.06.2015 and 27.09.2016 were filed before the Office of the Directorate of Town and Country Planning for issuance of the Occupation Certificate but despite their persuasive efforts the same was not issued by the Authorities; Vide its order dated 09.01.2015, the Hon'ble Punjab and Haryana High Court restricted the Director General, Town and Country Planning to grant fresh occupation certificates in Sector 68 to 80, Gurgaon; the delay in offering possession to the Flat Owners has been caused solely on account of Departmental delay and delay caused by the State along with other circumstances including stay order by the Hon'ble High Court and as such it was beyond their control; they are not liable to pay any compensation to the Flat Owners for the delay caused due to Force Majeure events; no illegal demands were made from the Flat Owners and there was no gap in super area and carpet area; the Flat Owners had booked the flat in the said Project out of their will and volition without any inducement on their part and they were aware of all the sanctions including Building Plans of the Project; as per clause 15 of the Buyer's agreement the Apartments should be ready for occupation by 31.03.2014 and the said duration could be extended by another 6 months thereafter; they were not liable to pay compensation @ 5/- per month per sq. ft. of the super build up area of the Apartment due to the facts stated above; after the vacation of the stay order, they immediately applied for Occupation Certificate from the DTCP; there was no deficiency in service on their part and they have not adopted any unfair trade practice; the Complaint is liable to be dismissed.
Vide order, dated 20.09.2016, the Complaint was admitted as a Joint Complaint u/s 12 (1) (c) and further by order, dated 30.01.2017 the Public Notice under Order I Rule 8 of the Code of Civil Procedure, 1908 was directed to be issued.
I have heard the learned Counsels for the parties and perused the material available on record.
In brief, it is the case of the Complainants that despite paying about 95% of the total sale consideration to the Developer, as extracted in the above table, and executing the Flat Buyer Agreement in the year 2012/2013, with the promise to deliver the possession on 31.03.2014, till date the Opposite Party did not complete the construction nor offered possession and hence they are entitled for relief claimed in the prayer clause of the Complaint.
The main contention of the learned counsel appearing for the Opposite Party is that the construction of the Project was affected due to shortage of water since the Hon'ble Punjab and Haryana High Court stopped the usage of underground water. Number of requests made to the concerned authorities to de-seal the existing tube wells for supply of water, were not acceded to. They had to invest huge amounts in the installation of water treatment in order to resume the construction. Despite payment of External Development Charges and persuasive efforts with the State Authorities, there was no development by the State to provide the basic amenities at the Project and there was also delay on their part in issuing the Occupation Certificate. In terms of clause 15 of the Flat Buyer Agreement, they were entitled to extension of time from the tentative completion date for the issuance of possession notice, if the delay was on account of any stay or prohibitory order passed by any competent Authority or Force Majeure events. The Clause 15 of the said agreement is reproduced herein for ready reference:-
" Barring unforeseen circumstances and Force Majeure events as stipulated hereunder the possession of the said apartment is proposed to be delivered by the Company to the Allottee till 31.03.2014 (hereinafter referred to as the "stipulated date") from the date of execution of Apartment Buyer's Agreement, subject to timely payment by the Allottee(s) towards the basic sale price and other charges, as demanded in terms of the Agreement. The time frame for delivery of possession provided hereinafter is tentative and shall be subject to force majeure and timely and prompt payment of all instalments and the completion of formalities required. The Company shall be entitled to avail execution of time for completion of project if delay in completion of the same occurs due to departmental delay or any other circumstances beyond the power and control of the developers. The Company shall be entitled to six (6) months additional period in the even there is delay in handing over possession".
It would be seen that in terms of Clause 15 of the Agreement, the possession of the Apartments to the Complainants was proposed to be delivered till 31.03.2014 from the date of execution of the Apartment Buyer's Agreement. Even if, the benefit of the grace period of six months is given to the Developer, the possession of the apartments, complete in all respects, therefore, ought to have been delivered to the Complainants by 31.09.2014. However, the construction was not complete till the said date as the Developer itself vide its email dated 09.02.2016, informed the Complainants that possession date has been shifted to June, 2016 and that too was tentative.
As far as the prohibition on use of underground water in construction is concerned, there is no evidence on record to prove that no water was actually available in the market at the relevant time to carry out construction. The delay cannot be justified on such bald allegation without substantiating the same by any substantial evidence showing actual non-availability of water in the market. As far as the alleged delay on the part of the Government Agencies in not providing external development and other facilities are concerned, there is no evidence of any particular time period having been committed by such Agencies to the Developer for providing external development and other facilities and having not maintained the said time period.
During the proceedings of the case, I.A.No. 10987 of 2017 was filed by the Complainants for appointment of an appropriate audit/expert agency to carry out safety audit of the project including structural stability test, audit of super area and carpet area of the project and audit of the quality standards of the Project to determine whether the same are suitable for residential purpose and comply with the best industry standards. On 28.05.2018, the following order was passed on the application:-
"I.A. 10987 of 2017"
" By this Application, the Complainants pray for appointment of an independent Expert to inspect the entire project, christened as "Signature Tower" located at Avenue 71, Sector 71, Gurgaon, in order to ascertain the internal and external condition of each of the flats in question, in the said Tower.
Initially, when the Application had come up for consideration on 03.05.2018, learned Counsel for the parties had agreed that in order to ascertain the state of the flats, particularly on the aspect of the quality of the material used in the construction of these flats and development of the surrounding areas, including the access road, a joint inspection of the Tower shall be carried out in the presence of the parties or their Authorised Representatives. The date and the time for inspection was also fixed.
In furtherance of the said order, a joint inspection is stated to have been carried out.
Certain photographs taken at the time of inspection have been placed before us.
Having looked at the said photographs, we are convinced that the prayer made in the Application deserves to be allowed. We feel that such inspection by an independent Expert would be necessary for effectual adjudication on the rival stands on behalf of the parties with regard to the quality of construction of the flats etc.
Accordingly, without expressing any final opinion on the state of condition of the flats/building, as is sought to be projected on the basis of the photographs placed before us, we appoint Mr.-Vijay Motwani, Special D.G. (DR) retired, CPWD, R/o D-II/153, Chanakyapuri, New Delhi (Mob.No.9811793440), as Court Commissioner to carry out the inspection of the entire Tower; all the flats, vacant or occupied and the surrounding areas and submit the report on the quality of the material used in the construction of the flats, fittings provided therein and the extent of repairs each flat would require to make it habitable; the time required to carry out the repairs in the flats and the building as a whole; whether the flats have been constructed as per the specifications stated in the brochure at the time of booking of the flats, as well as in the Flat Buyer's Agreement. We may note at this juncture itself that learned Counsel appearing for the Opposite Party has very fairly stated that whatever deficiencies in the project/flats are pointed out by the Expert, the same shall be carried out to his satisfaction."
Attested copies of the Agreement, Brochure, Sanctioned Plans, Specifications of Materials used and any other relevant records relevant to the case, were made available to the Local Commissioner by the parties. The Local Commissioner carried out the inspections on 30.07.2018, 17.08.2018 and on 05.09.2018 and concluded as under:-.
"Conclusions:-
QUALITY OF MATERIALS USED IN THE CONSTRUCTION OF FLATS, FITTINGS PROVIDED THEREIN:
The quality of materials used in the construction of flats, fittings provided therein, though generally as per the specifications given in the FLAT BUYER AGREEMENT are not according to features advertised by the builder in the Brochure given at the time of the booking. It may be pertinent to mention here that the specifications are cleverly worded to leave scope for using low grade to high grade materials and fixtures. For example in the specifications for the present project, "Designer Imported Vitrified Tiles" for Living/Dining can mean high grade designer tiles imported from Europe or cheap and low grade designer tiles imported from China. Similarly, "Laminated wooden tiles" for bedrooms can be from 40 Rupees per sq. ft. to 350 Rupees per sq. ft. And so on.....
EXTENT OF REPAIR EACH FLAT WILL REQUIRE TO MAKE IT HABITABLE
Each flat and the Tower -22 in general will require the following repairs to make them habitable as per the specifications, though falling short of the Brochure claims:
i) The weak internal plaster in all the flats to be replaced (option of paying compensation in lieu of same given to the buyers who have already moved in);
(ii) UPVC doors and windows need to be rectified by replacing the broken or cracked components, checking the alignment and rectifying wherever found crooked, checking the handles and locking mechanism and rectify/replace faulty elements and servicing and cleaning all UPVC doors and windows in all flats to be achieve desired ease of operation;
(iii) In all the bathrooms of all the flats the false ceiling tiles to be replaced with superior ones. Pointing of floor and wall tiles be re-done in all bathrooms. Slope in bathroom floors, wherever defective to be corrected. The brackets and nut bolts supporting the washbasins be scraped clean of rust and anti-corrosive pain applied in all bathrooms of all the flats. The granite top on the cistern be neatly polished in all bathrooms of all the flats;
(iv) In the kitchen, the granite counter tops, wherever cracked, should be replaced. All counter tops to be properly polished. Loose and cracked tiles in floor and walls be replaced. Pointing of floor and wall tiles be redone. Drain pipes of sinks be replaced with proper quality ones. Sanitary fittings may be properly fitted so that no cut tiles are seen behind them.
(v) In all the rooms (except bedrooms) in all the flats, the junction of skirting and plaster be properly finished with a neat groove in between. All breakages and cuts in the false ceiling be repaired in all the rooms in all the flats. The electric switch plates be accurately aligned. The floor sub-surface which will receive the laminated wooden flooring be made smooth and uniform. Loose vitrified tiles in the floor be replaced and pointing of tiles be redone. All doors in all the flats to be properly and smoothly finished.
(vi) In all the shafts of Tower T 22 the balance work be completed. Plumbing, gas, fire-fighting and other pipes properly colour-coded and the shafts be cleaned and properly painted.
(vii) In common areas all the work mentioned in para (VII) pages 16-17 in this report be attended.
(viii) From the roof of the Tower 22, all debris and dismantled material to be removed. The solar water heating system and mechanical ventilation system be made smoothly operational. All the roof structures be neatly painted.
(ix) The points of leakage in the basement to be plugged and all debris and other material removed.
(x) The external plaster of Tower 22 is weak and vulnerable. The Opposite Party may prepare a sample of minimum 10' x 10' size using the method they have suggested. If successful they may strengthen the entire external plaster using this method.
(xi) Tower T-22 be properly repainted externally and common areas after completing the works under items vii and x above. The broken kerb stones may be replaced and entire surroundings spruced up. Plinth Protection, wherever missing may be provided now.
(xii) The Opposite Party may expedite the construction of the access road as early as possible by entrusting the job to a crack team with a set target date. The Management may monitor the work along with RWA to ensure its timely completion.
TIME REQUIRED FOR REPAIR IN THE FLATS AND THE BUILDING AS A WHOLE:
Though the time required to carry out any construction work largely depends on the quantum of resources employed, but looking at the fact that the work inside the flats and buildings as a whole will run concurrently and considering that the Opposite Party will employ sufficient resources, the entire work, in the opinion of the Court Commissioner, should take about 180 working days to complete."
On 17.12.2018, the Developer submitted the Compliance-cum- Objections to the Report of the Local Commissioner. In paragraph "J", it is submitted as under:-
" All the 29 items under the 8 heads above at (i) have been attended to at the time of the filing of these objections, all deficiencies removed and no complaint of any kind survives. The areas complained of and repaired have been photographed after the repairs. The photographs attached correspond seriatim to the deficiencies pointed out. The photographs are annexed and marked Annexure Opposite Party No.1 (Colly) hereto. The flats are, therefore, habitable."
Even though a stand has been taken by the Developer that the defects pointed out by the Local Commissioner have been removed/rectified, I am unable to accept the plea taken in the objections filed by the Developer as the defects/shortcomings in the construction are substantial in nature and could not have been removed/rectified in such a short time and that too without material alteration/demolition.
At the cost of repetition, as no material has been adduced by the Developer to establish that the completion of Construction and Offer of Possession has been delayed on account of Force Majeure or reasons beyond their control, there is no justification for the delay in completing the Construction and handing over the Possession. Except for stating that there was, shortage of water due to the order of the Hon'ble Punjab and Haryana High Court at Chandigarh and basic amenities were not provided by the State Government, which led to delay, which submissions, viewed from any angle cannot be said to be a "Force Majeure Event" as the Developer itself informed the Complainants in July 2015 that the injunction granted by the High Court has been vacated and they shall be able to hand over the Possession of the Apartment. As per the Flat Buyer Agreement, the possession was promised to be delivered on 31.03.2014 and more than five years have passed, the Complainants are still waiting for possession. If a Builder/Developer fails to deliver possession of the flat/apartment booked with them, within the time period committed for this purpose and is unable to justify the delay in construction or handing over the possession, this, in my opinion, would constitute a defect or deficiency in the services rendered by them to the Buyer and in such a case, this Commission, in exercise of the powers conferred upon it by the Act would be competent to direct refund of the amount paid by the buyer to the builder, along with appropriate compensation for the loss or injury suffered by the buyer due to the defect/deficiency in the services rendered to them or to hand over the possession of the booked flat/apartment in all respect with compensation for the delayed possession.
In the present Complaint, even though the Flat Owners have sought a direction to the Developer to deliver the possession of the allotted apartments to them, complete in all respect along with interest @ 18% p.a. on the total amount paid by them from the date of payment until actual physical possession is delivered and compensation for damages and mental agony caused to them or alternatively if the Developer is unable to complete the Project and hand over possession of the Apartments in habitable condition, they have to refund the deposited amounts to them along with interest @ 18% p.a. till actual date of payment. The Complainants/Purchasers who have not accepted possession of the Apartments are entitled for refund of the entire amount paid by them to the Developer along with reasonable compensation. A prayer has also been made to pay to 10 lakhs to each of the flat owners towards undue hardship and injury and 10 lakh towards costs of litigation. I find it a fit case to place reliance on the judgment of this Commission in Emmar MGF Land Ltd. & Ors. vs. Amit Puri [II (2015) CPJ 568 NC], wherein it was laid down that after the promised date of delivery it is the discretion of the Complainant whether he/she wants to accept the offer of possession, if any, or seek refund of the amounts paid with reasonable interest. I am of the view that the Complainants cannot be made to wait indefinitely for the delivery of Possession and the act of the Developer in relying on Force Majeure clause while retaining the amounts deposited by the Complainants, is not only an act of Deficiency of Service but also of Unfair Trade Practice, especially in light of the view and the fact that the Developer charges interest @ 18% p.a. for any delay in the payments made by the Flat Purchasers and Clause 15 stipulates that compensation would be paid at 5/- per sq. ft. per month of the super area for the period of delay beyond 31.03.2014 plus six months grace period. In my view, such terms in Clauses are extremely unfair and one-sided and fall within the definition of 'Unfair Trade Practice' as defined under Section 2(r) of the Act. At this juncture, I find it a fit case to place reliance on the recent judgment of the Hon'ble Apex Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan,- II (2009) CPJ 34 (SC), wherein the Apex Court has observed as follows:
"6.7. A term 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. The contractual terms of the Agreement dated 08.05.2012 are ex-facie one-sided, unfair, and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder.
In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyer's Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent - Flat Purchaser. The Appellant - Builder could not seek to bind the Respondent with such one-sided contractual terms."
This judgment squarely applies to the facts and circumstances of this case for all the aforenoted reasons.
Further, the principles of law laid down by the Hon'ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, II (2019) CPJ 29 (SC), will also be applicable in the present case. For ready reference the relevant portion of the order is reproduced below:-
"..........It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years is beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund.
In the circumstances, we are of the view that the orders passed by the SCDRC and by the NCDRC for refund of moneys were justified."
In the instant case also the Flat Purchasers cannot be made to wait indefinitely for possession of the unit as a period of more than 6 years has lapsed from the date of execution of Flat Buyer Agreements.
For the aforesaid discussions, I am of the considered view that the Complainants are entitled for refund of the principal amount with reasonable compensation.
Now, the question which arises for consideration is how much compensation is to be paid to the Complainants on the amount deposited by them with the Developer. Though, it is the Complainant's case that for any default, the Developer charged interest @ 18% p.a. from the buyers, having regard to the fact that the Complainants have paid about 95% of the total sale consideration of the Apartments as far back as in the year 2013/2014 which runs more than Rupees One Crore in each of the case and have to pay huge amount towards interest on the amount taken as loan/financial arrangement and have not got the possession of the Apartments within the stipulated period or even within a reasonable period and almost 5 years have passed, the amount of compensation be calculated @ 12% p.a. to be paid by the Opposite Party Developer to the Complainants/Flat Purchasers who have not taken possession of the Apartments from the date of respective deposits till the date of actual payment. This would meet the ends of justice.
Hence, this Complaint is allowed with following directions:-
(i) the Developer has to refund the entire amount deposited by the Complainants/Flat Purchasers who have not taken possession of the Apartments along with compensation @ 12% p.a. from the date of deposit till the actual date of payment;
(ii) The Developer is also liable to pay 50,000/- as cost of litigation to each of the Complainants/Flat Purchasers who have not taken possession of the Apartments and to whom the refund is being made.
Time for compliance of the above directions is four weeks from the date of this order, failing which the amount of compensation shall be increased to 15% p.a.