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Judgment
R.K. Agrawal, J., President
The brief facts as set out in the Complaint are that the Complainants, lured by advertisements made by the Opposite Party in various daily newspapers having circulation in the NCR, including oral representations by the representatives of the Opposite Party regarding its project "Prateek Edifice" located at Plot No.GH-01/A (Beta-2) Sector 107, Noida District Gautam Budhnagar (U.P.) (hereinafter referred to as the 'Project'), had booked a residential flat bearing No.E-1510 on 14th Floor, in Tower E, having super covered area 4300 sq. ft. (built up area 3530 sq. ft.) including two Double Deck Mechanical Parking and power back up upto 10 KVA, etc., in the said Project, for a total consideration of Rs.3,30,65,800/- on 01-03-2015. It is averred that the Opposite Party had also proposed a subvention scheme in respect of the Project, whereby the Opposite Party was to arrange housing loan upto the extent of 80% of the total sale consideration from HDFC Ltd. and balance was to be paid by the Buyer. The Opposite Party made an offer to the Complainants that it would arrange a housing loan from the HDFC Ltd. which was associated with the Opposite Party and also bear the interest liability on the loan amount of Rs.2.49 Crores, to be obtained by the Complainants from the bank, for the next 24 months, i.e., for a period of three months beyond the proposed date of handing over of possession of the flat in December, 2016.
It was represented by the Opposite Party that pursuant to all the necessary permissions and sanctions obtained by it, they had been constructing Blocks Nos.A, B, C, D, E, F, G and H in the Project. Subsequently, vide Allotment Letter dated 19-03-2015 the afore-said flat was allotted to the Complainants by the Opposite Party.
It is averred that the terms & conditions stipulated in the said Allotment Letter dated 19-03-2015 were completely in favour of the Opposite Party. As per Clause 43 of the Allotment Letter, the possession of the flat was to be given to the Complainants in December 2016 with a grace period of five months; however, in case of non-handing over of the possession, even during the grace period, the damages were to be paid from the committed date of possession i.e. December 2016. The Complainants averred that the amount of Rs.5/- per sq. ft. fixed by the Opposite Party in the Allotment Letter touted to be as 'damages', were not actually damages but an incentive to the Opposite Party since calculating the so-called damages at the rate of Rs.5/- per sq. ft. would come to a meagre amount of Rs.21,500/- on monthly basis on an amount of Rs.3.30 Crores to be paid to the Opposite Party by the Complainants.
Pursuant to the Allotment Letter, a Tripartite Agreement was entered into between the Opposite Party, the Complainants and the HDFC Ltd., wherein the Opposite Party made a commitment to pay interest to the HDFC Ltd. till December 2016.
The Complainants paid all the instalments in time as per Allotment Letter dated 19-03-2015 and there was no default of any instalment by them at any point of time. They complied with all the terms & conditions of the Allotment Letter and paid an amount of Rs.2,96,89,370/- to the Opposite Party by 09-08-2016. In terms of the allotment, the balance amount was to be paid at the time of handing over of possession of the flat. The Complainants were ready and willing to perform their part of the contract under the Allotment Letter dated 19-03-2015 by making payment of balance sale consideration payable at the time of handing over of possession and to take over the possession on the due date of possession of the said flat i.e. on or before 31-12-2016. However, the Opposite Party failed to complete the Project and to deliver the possession of the subject flat to the Complainants on or before 31-12-2016 as promised in the Allotment Letter dated 19-03-2015. The Complainants made several visits to the site of the Project and interacted with the representatives of the Opposite Party regarding handing over of the possession of the flat in question and also went through a number of advertisements subsequently issued by the Opposite Party promising that the possession of the flats will definitely be handed over in 2017. By sending an email on 01-03-2017 to the Opposite Party, the Complainants informed their plight to the Opposite Party, while clearly stating that there is absolutely no possibility of completion of construction in near future. The Opposite Party by its reply email dated 22-03-2017 stated that the case will be discussed with the management. However, no reply came and the Opposite Party failed to address any grievance of the Complainants. The Complainants kept on following up with the Opposite Party; however, to no avail and no concrete answer was given by the Opposite Party to any of the queries raised by the Complainants.
Complainants sent another email dated 14-03-2018 to the Opposite Party and brought it to the notice of the Opposite Party that the construction was going on at extremely slow pace and it may take more than a year to complete the construction, but no reply came from the Opposite Party. Thereafter, another email dated 10-05-2018 was written by the Complainants calling for reply from the Opposite Party regarding the possible date of completion of the Project. The Complainants also enquired about the date of handing over of the possession and execution of Sale Deed after obtaining Completion Certificate from the competent authority, but no reply was received from the Opposite Party. Feeling aggrieved, Complainants have filed this Consumer Complaint praying directions to the Opposite Party:
(i) to complete the Project expeditiously, complete in all respects, and to obtain Competition Certificate from the Competent Authority as well as to execute the conveyance deed and hand over vacant and peaceful possession to the Complainants within such period as may be fixed by this Hon'ble Commission;
(ii) to pay an amount of Rs.66,47,165/- to the Complainants towards interest at the rate of 18% per annum, accrued since 01-04-2017 till the date of filing of Complaint on the amount paid by the Complainants from time to time together with pendente lite and future interest at the rate of 18% per annum, till the date of actual payment by the Opposite Party;
(iii) to continue to pay interest @18% p.a. on an amount of Rs.2,96,89,370/- from 29-06-2018 (date of filing of Complaint) till the date of execution of conveyance deed and handing over of possession;
(iv) to pay damages to the Complainants to the tune of Rs.50,00,000/- for mental agony and harassment;
(v) to pay further interest @15% p.a. on the amounts calculated under prayer (iii) and (iv), in case of non-compliance of the said prayers within the time frame fixed by this Hon'ble Commission, till the date of actual payment/realization; or, in the alternative,
(i) to refund to the Complainants the amount of Rs.2,96,89,370/- together with pendente lite and future interest @18% per annum from the date of respective payments till the date of actual payment or realization thereof and
(ii) costs of the present Complaint be awarded in favour of Complainants and against the Opposite Party.
Upon notice, the Opposite Party contested the Complaint by filing its Written Version contending that the Complainants were entitled to the possession of the flat by December, 2016 with a grace period of five months, i.e. May, 2017, subject to the Force Majeure events. The Project got delayed due to the order of the Government authorities. The State of U.P. had issued a Notification under Section 4(1) of the Land Acquisition Act, 1894 on 11-09-2008 pursuant to which the land measuring 227.077 hectare of Village Salarpur Khadar, Pargana- Dadri, Tehsil Dadri, District Gautam Budh Nagar was notified for acquisition. Subsequently on 30-09-2008 a Declaration under Section 6 (1) was issued in this regard. Thereafter, in the year 2010, NOIDA floated a Scheme [Scheme Code-GH-2010-(I)] for allotment of land for development of Group Housing Complexes. Plot No. GH-01, Sector-107, Noida, admeasuring 2,27,941.95 sq. mtr. was allotted to a consortium out of which a sub-divided part admeasuring 27,941.95 sq. mtr. and numbered as GH-01/A (Beta-2) was allotted/transferred in favour of M/s. Three C Realtors Pvt. Ltd. on 15-02-2012. Subsequently, on 06-08-2012, share holding of M/s Three C Realtors Pvt. Ltd. was acquired by M/s. Prateek Buildtech (India) Pvt. Ltd. & M/s Prateek Infraprojects India Pvt. Ltd.. The Opposite Party had since initiated the development of the Project from the year 2012.
It is further contended in the Written Version that the Opposite Party came to know in July 2014 that a Writ Petition bearing No.66604/2009 titled as Rajendra Estate Pvt. Ltd. vs. State of UP & Ors. was filed in the High Court of Judicature at Allahabad, whereby the above Notification issued under Section 4(1) dated 11-09-2008 & declaration dated 30-09-2008 were challenged. The said Writ Petition was dismissed on 24-09-2010 by the Hon'ble Allahabad High Court and interim order was vacated. On 05-08-2013, a Civil Appeal No.6353 of 2013 [Arising out of SLP (Civil) No.29318 of 2010] directed against order dated 24-09-2010 passed by the Division Bench of the Allahabad High Court in the above said Writ Petition was allowed. The impugned order dated 24-09-2010 was set aside and Notifications dated 11-09-2008 & 30-09-2009 in respect of land acquisition in Village Salarpur, Gautam Budh Nagar were quashed.
Based on the aforesaid orders, further Writ Petitions were filed on 30-06-2014. The Hon'ble Allahabad High Court directed all the parties to maintain status quo in respect of the land where acquisition proceedings had already been quashed by the Apex Court vide judgment dated 30-09-2013 passed in Civil Appeal No.6353 of 2013. It is contended that the Opposite Party was never a party to the aforesaid order either before Hon'ble High Court or before the Hon'ble Supreme Court of India. The NOIDA officials in the end of July, 2014, communicated the said order to the Complainants, which had put a blanket ban on the construction and, owing to some misunderstanding, the NOIDA Authority asked the Opposite Party to stop construction on the Project site. The understanding of NOIDA Authority was faulty inasmuch as the land of the Opposite Party neither formed part of any Notification, which was quashed by the Hon'ble Supreme Court nor did the land form part of the subject matter of dispute before the Allahabad High Court. For this reason, the construction activities from July, 2014 had to be slowed down tremendously as the Opposite Party faced threat of violation of Stay order as well as the action by NOIDA Authority, while the Opposite Party Company tried its level best to convince the NOIDA Authority that their understanding of the matter was faulty.
On 17-11-2014, the NOIDA Authority, in a communication sent to one of the allottees, reiterated its faulty stand and informed that the Plot in question was partially affected by the Supreme Court Judgment dated 05-08-2013 passed in Civil Appeal No.6353 of 2013 as well as subsequent order of the Hon'ble Allahabad High Court. It was informed that the Plots Nos.763, 762 & 761, forming part of the Project land were also part of the quashed acquisition Notification. Subsequently, the NOIDA Authority vide public notice dated 23-06-2015, informed the general public that the Project of the Opposite Party was affected by the order of Hon'ble Supreme Court passed in Rajendra Estate Pvt. Ltd. Vs. State of UP & Ors.. This action of NOIDA Authority affected the pace of work as the Opposite Party was both under the threat of action by Allahabad High Court and the NOIDA Authority and, therefore, a cautious approach with limited activities had to be adopted in construction, which ultimately lead to delay in completion of the Project.
It is also contended by the Opposite Party that in view of these Force Majeure events, the Project got delayed for the period starting from July 2014 to July 2016, more particularly from June 2015 till July 2016, when the issues were put in public domain. The Opposite Party in terms of the Allotment Letter is entitled to adjustment of the said period in delivering the flat. In view of the Force Majeure events, the Opposite Party shall deliver the flats within upcoming months, in fact, part Completion Certificate of Towers A, B, C, G & H has already been obtained on 20-07-2018. It is also contended by the Opposite Party that Clause 51 of the Allotment Agreement automatically extends the total period of construction as envisaged in Clause 43 by the period during which the Force Majeure events occur. Though in terms of the Clause, the Opposite Party was entitled to extension till December 2018 without grace period, however, keeping in terms with the commitment, the Opposite Party intended to finish and handover the Project at the earliest.
As part of its contentions made in the Written Version the Opposite Party submitted that the relief claimed in the Complaint cannot be entertained inasmuch as the relief seeking interest @18% is contrary to the terms of the allotment duly agreed between the parties. The delay in possession is duly envisaged by the Allotment Letter and the same entails compensation @Rs.5/- per sq. ft.. The Complaint is liable to be dismissed inasmuch as the relief claimed in the Complaint cannot be granted.
The Complainants filed their Rejoinder, denied all the rival contentions advanced by the Opposite Party in their Written Version and reiterated the averments made in the Complaint.
The Learned Counsel for the Complainants filed Evidence by way of Affidavit and marked the copy of the Allotment Letter as Exhibit CW-1/1, copy of the Tripartite Agreement dated 26-03-2015 as Exhibit CW-1/2, copies of email dated 20-04-2015 and letter dated 24-08-2015 as Exhibit CW-1/3, copies of proof of payment/receipt/demand letters including the relevant extract of the disbursement details of loan account, relevant extract of statement of account of Complainants as Exhibit CW-1/4, copies of advertisements promising handing over of possession of Project in 2017 as Exhibit CW-1/5, copy of email dated 01-03-2017 as Exhibit CW-1/6, copy of reply dated 22-03-2016 as Exhibit CW-1/7, copy of email dated 14-03-2018 as Exhibit CW-1/8, copy of email dated 10-05-2018 as Exhibit CW-1/9 on their behalf. The Learned Counsel for the Opposite Party also filed Evidence by way of Affidavit and marked the copy of the order dated 30-09-2013 of the High Court of Allahabad as Mark-A, copy of reply to RTI as Mark-B, copy of public notice dated 23-06-2015 as Mark-C, copy of representation dated 21-07-2015 as Mark-D, copy of order dated 11-07-2016 of Allahabad High Court as Mark-E, copy of completion certificate of towers A, B, C, G & H as Mark-F.
I have heard the parties' counsel at length, perused the material on record as well as the Written Submissions filed by the parties' counsel.
The Learned Counsel for the Complainants vehemently contended that the Opposite Party has attempted to commit fraud by conveniently ignoring the fact that the allotment in favour of the Complainants was made by the Opposite Party on 19-03-2015, i.e, after almost nine months of its knowledge about the order of the Hon'ble Allahabad High Court directing all the parties to maintain status quo in respect of the land whereto acquisition proceedings have already been quashed by Apex Court vide judgment dated 05-08-2013 in CA No.6353 of 2013 as also by the Allahabad High Court vide its judgement dated 30-09-2013 in WP No.59931 of 2011, until further orders. This fact which is now being pleaded by the Opposite Party as an event of Force Majeure was never brought to the notice of the Complainants, nor stated in the Allotment Letter nor any shred of correspondence has been made by the Opposite Party in this regard till date. In pursuance of the demand letter dated 01-11-2018 issued by the Opposite Party demanding balance consideration of 15% alleging that the construction of the flat has been completed and it was ready for possession and that the NOIDA Authority has issued Completion Certificate dated 29-10-2018 in this regard, the Complainants inspected the flat on 05-11-2018, took various photographs which are filed on record, and found that the construction was still far from completion as the work of interior and fittings including almirah's, false ceilings, flooring, doors, windows, sanitary ware, electrical fittings, wooden work, etc., was still not done and the flat was not even having a basic shell structure. On an application filed by the Complainants, the said demand letter was stayed by this Hon'ble Commission on 20-11-2018. It is further contended that the Complainants demanded a copy of the alleged Completion Certificate dated 29-10-2018 from the Opposite Party on 09-11-2018, but instead of providing the document, the Opposite Party threatened the Complainant No.2 to take possession failing which the allotment was to be cancelled.
Placing reliance upon various judgments of the Hon'ble National Commission in DLF Homes Panchkula Pvt. Ltd. Vs. D. S. Dhanda (Manu/CF/0837/2018), Ravi Marwah Vs. Unitech Reliable Projects (Manu/CF/0159/2016), Swarn Talwar Vs. Unitech Ltd. (Manu/CF/0586/2015), Prakash Vishwanath Vs. Monarch & Qureshi Builders, CC No.1833 of 2016 decided on 22-04-2019, Navedita Dhawan Vs. Unitech Ltd. (Manu/CF/0276/2016) and that of the Hon'ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghvan (Manu/SC/0463/2019), the Learned Counsel for the Complainants, though they have initially made a prayer in the Complaint for possession of the booked flat with all requisite documents, has now prayed for refund of the amount of Rs.2,96,89,370/- with interest @18% p.a. from the date of respective payments till the date of actual realization thereof along with damages of Rs.50,00,000/-.
The Learned Counsel for the Opposite Party, on the other hand, has advanced rival contentions in their Written Submissions and vehemently submitted that the plot subject matter of the Project came to be affected by order dated 30-06-2014 of the Hon'ble Allahabad High Court whereby all projects in respect of the land where acquisition proceedings had been quashed by the Apex Court vide its judgment dated 30-09-2013 in CA No.6353 of 2013 were directed to maintain status quo. The NOIDA officials, owing to some misunderstanding, had asked the Opposite Party to stop construction at the Project site because the land under the Project neither formed part of any Notification which was quashed by the Hon'ble Supreme Court nor did it form part of the subject matter before Allahabad High Court. The faulty stand taken by the NOIDA Authority was reiterated by the said Authority on 17-11-2014 informing one of the allottees of the Project that the Plots Nos.763, 762 and 761 formed part of the Project land as also formed part of quashed acquisition Notifications. That general public was informed by the NOIDA Authority by issuing a public notice on 23-06-2015 in this regard. The Complainants were aware of the aforesaid developments, particularly the public notice dated 23-06-2015; however, they continued with the Project, thereby acquiescence to the Force Majeure event and ultimately delay in construction. The stay order was eventually lifted by the Hon'ble Allahabad High Court on 11-07-2016 in WP (C) No.33341 of 2014. The Opposite Party is entitled to extension of time till December, 2018 due to these Force Majeure events with grace period; however, keeping in terms with commitment, the Opposite Party has offered possession on 05-11-2018 after obtaining completion certificate on 30-10-2018. The Learned Counsel further argued that the Complainant, even after being aware of the Public Notice from NOIDA Authority dated 23-06-2015 informing stay on construction, never sought to cancel the allotment or refund, but through emails dated 14-03-2018 and 10-05-2018 they sought time frame for completion of the Project and execution of Sale Deed. Thus, time was never essence of the contract, but it was extended by the Complainants by their own acts and conducts. Even in the Complaint, filed in June 2018, the Complainants did not pray refund as primary relief but merely completion of the apartment within reasonable time frame as may be decided by this Hon'ble Commission. The Opposite Party has offered possession within four months of filing of the Complaint i.e. on 01-11-2018 and the same is reasonable time considering that the Project was affected by Force Majeure from July 2014 till July 2016, more particularly May 2015 till July 2016.
I have given my thoughtful consideration to the issue at hand. In brief, it is the Complainants' case that despite paying an amount of Rs.2,96,89,370/- out of the total sale consideration of Rs.3,30,65,800/- for Flat No.E-1510 on 14th Floor, in Tower E of the Project, the Opposite Party did not complete the construction nor offered possession within the stipulated time period i.e. by December, 2016 and not even paid any amount towards delayed delivery.
Admittedly, the litigation apropos land acquisition had initiated prior to entering into the transaction by the Complainants. The facts and consequences thereof were not brought to the notice of the Complainants at the time of entering into the transaction or at the time of issuance of Allotment Letter on 19-03-2015. The Complainants came to know only when a public notice was issued by the NOIDA Authority on 23-06-2015. I may make it explicit that having induced the Complainants to enter into a transaction, being fully aware of the consequences relating to availability of land or quashing of notification of acquisition of land and the communications made pursuant thereto by the NOIDA Authority, the efforts of the Opposite Party to take shelter of these well predictable consequences as Force Majeure events did not in any manner dilute the Opposite Party's responsibilities towards the project planning, execution and completion, including availability of land (acquisition of land) and approvals at the due time, without cost or time overruns and which responsibilities arose on the date of entering into the transaction with the Complainants and receiving the first payment towards the total cost of the subject flat from the Complainants. It is, therefore, clear that if the event of the stay order dated 30-06-2014 was such an important event, to constitute it as an event of Force Majeure, including subsequent correspondence of the Noida authority on the subject, if the assertion pleaded by the Opposite Party is to be taken on its face value, and the Opposite Party actually believed that on account of such events, there is likelihood of delay in construction project, it still went ahead and suggested the date of December, 2016 for handing over of project, to lure the Complainants into purchasing the flat in question, which date the Opposite Party was fully aware as not a possible date for handing over the possession. It is, thus, clear that the Opposite Party had played unfair and deceptive practices upon the Complainants by deliberately and actively concealing the facts in the Allotment Letter or any other correspondence on the subject, and induced the Complainants to enter into the contract.
The Opposite Party has not clarified anywhere about the location of the three Khasra numbers, being Khasra number 761, 762 and 763, which were allegedly wrongly construed by the NOIDA Authority as falling under the stay order granted by the Hon'ble Allahabad High Court. The Opposite Party has failed to point out a single correspondence or any order passed by any Government authority, including the NOIDA authority, whereby the Opposite Party was asked to stop construction activity. The Opposite Party, on its own, has set up a case that the lands forming part of the Project were never part of the acquisition proceedings, which were under challenge before the Hon'ble Allahabad High Court or the Hon'ble Supreme Court and whose acquisition were quashed. Even in respect of Khasra number 761, 762 and 763, the stand of Opposite Party is very clear that the concerned lands never formed part of the land acquisition proceedings, which were quashed. This is also reflected in the representation dated 21-07-2015 allegedly sent by the Opposite Party to the NOIDA Authority. A perusal of the said representation would reveal that nowhere in the entire representation, it has been pleaded that the construction activity is lying stopped on account of fault of the NOIDA Authority. As such, it is clear that the construction activity was never stopped, and the defence has only been raised to avoid the payment of compensation.
It is amply clear from the material on record as well as the own admission of the Opposite Party in its Written Version that the Opposite Party deliberately kept the Complainants in dark by not making them aware about the Stay order dated 30-06-2014 passed by the Hon'ble Allahabad High Court, which was allegedly wrongly construed by the NOIDA Authority as being granted against some portion of the land (Khasra No. 761, 762 and 763) belonging to Opposite Party. The NOIDA Authority had communicated the said order in July, 2014 and November 17, 2014 to the Opposite Party and the Opposite Party was fully aware that the construction work at the Project site would be affected by the said order. However, the Opposite Party without bringing to the notice of the Complainants the consequences relating to availability of land or quashing of notification of acquisition of land and the communications made pursuant thereto by the NOIDA Authority, lured the Complainants to enter into the transaction with the Opposite Party and, subsequently, made allotment in favour of the Complainants on 19-03-2015, almost after nine months of its knowledge about the stand of NOIDA Authority. In the absence of the facts and the consequences thereof being specifically and explicitly brought to their notice, the buyers would reasonably and correctly understand that all aspects of project planning, execution and completion, inclusive of availability of land (acquisition of land) and approvals from concerned authorities at the due time, are the responsibility of the builder and would be duly taken care of by the builder without cost or time overruns.
In my considered view, not bringing the material facts and consequences relating to availability of land (acquisition of land) and approvals from the concerned authorities at the due time to the notice of the Complainants while entering into a transaction with the Complainants are unfair and deceptive practices on the part of the Opposite Party within the meaning of Section 2(1)(r) of the Consumer Protection Act, 1986.
Be that as it may, though the Opposite Party is still ready and willing to hand over the possession of the allotted flat to the Complainants, a valuable right has arisen in favour of the Complainants by efflux of time and due to failure of the Opposite Party to give possession for about three years from the stipulated date of possession, to take possession of the subject flat at this belated stage or to seek refund of the entire amount deposited with reasonable compensation. In Emmar MGF Land Ltd. & Ors. vs. Amit Puri - II (2015) CPJ 568 NC, this Commission has held that after the promised date of delivery, it is the discretion of the Complainant whether he 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 the possession when they had already paid almost the entire consideration. In such circumstances, it is well within the Complainant's right to seek for refund of the principal amount with interest and compensation.
The Learned Counsel for the Complainants has submitted that the Complainants are not interested to take possession of the subject flat due to delay of about three years in delivering the possession. Therefore, they have sought the refund of the amount paid along with interest and compensation.
The last contention argued by the Learned Counsel for the Opposite Party is that the relief sought for refund with interest @18% p.a. is contrary to the terms of the Allotment Letter and is in a way of re-writing the terms of the allotment which is not permissible, more so, when the Complainant neither disputed the terms of allotment nor challenged them in any of the reliefs. It is also submitted by the Learned Counsel that the Opposite Party has contributed an amount of Rs.36,32,297/- towards the EMIs for 24 months out of the entire sale consideration paid i.e. Rs.2,96,89,370/- and the Complainants cannot enrich themselves by claiming interest on the total amount of Rs.2,96,89,370/-.
The aforesaid contention, in my view, does not really arise for consideration in this case. The primary purpose of a Consumer in booking a residential Flat which the Builder is to construct for him, is to start living in that house on or about the date committed to him by the Builder for delivering possession of the Flat booked by him. If the Builder fails to comply with the contractual obligation and at the same time, is unable to show that the delay in completion of the Flat and offering its possession to the Consumer is on account of circumstances beyond his control, this would constitute deficiency on the part of the Builder/Service Provider in rendering services to the Consumer. If I accept the contention that the Builder can indefinitely postpone and delay the construction of the Flat and the Flat Buyer has no option but to wait till the Builder decides to complete the construction and offer possession to the Buyer, that would be nothing but a travesty of justice and result in a situation where the Flat Buyer is left at the mercy of the Builder, without recourse to an appropriate legal remedy. Such an interpretation, if taken, is bound to defeat the very objective behind the enactment of the Consumer Protection Act, as far as housing construction is concerned. Therefore, I am unable to accept the contention advanced by the learned Counsel for the Opposite Party. In my view, wherever the Builder commits a particular date or time frame for completion of the construction and offering possession to the Buyer, they must necessarily honour the commitment made by them, though a minor delay may not constitute deficiency in the service rendered by them to the Buyer. Of course, if the Builder is able to show that the delay in completion of the construction and offering possession to the Buyer is attributable wholly to the circumstances beyond its control, that may not be a case of deficiency in the services rendered to the Consumer.
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 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. 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 cannot seek to bind the Respondent with such one-sided contractual terms."
I further place reliance on the judgment of the Hon'ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra - II (2019) CPJ 29 SC, in which the Hon'ble Apex Court has observed as hereunder:-
".....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 in 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 Complainants cannot be made to wait indefinitely as the possession of the flat has not been handed over to them so far and the Opposite Party is enjoying the benefits of their hard-earning money deposited with it. Therefore, the Complainants are also entitled for refund of the principal amount with reasonable interest and compensation.
Even though in the main relief, the Complainants have sought for possession of the Flats/Apartments in these Complaints and alternatively they have claimed refund of the amount deposited by them along with interest and compensation, but as the Builder Opposite Party has failed to deliver the possession of the Flats to the Complainants latest by 31-12-2016, i.e. the stipulated period with grace period in the Agreement and approximately 3 years have passed but the possession has not been given and the Complainants cannot be made to wait for such a long period, they are entitled for refund of the deposited amount along with compensation. Hence, for all the afore-noted reasons, the Complaint is partly allowed and disposed of along with pending IAs, if any, with the following directions:
(i) the Opposite Party shall refund the entire amount deposited by the Complainants along with interest @ 12% p.a. from the respective dates of deposits till the date of realisation, within a period of one month from today failing which the Opposite Party shall be liable to pay interest @ 14% p.a.. The interest @ 12% p.a. has been directed to be paid for the reason that the Complainants have taken home loans from the Banks/Financial Institutions for making payment to the Builder/Opposite Party for purchasing the Flats/Apartments in question;
(ii) the Opposite Party shall also pay Rs.10,000/- as costs of litigation to the Complainants.
Before parting, I may make it clear that the interest @12% p.a. on the refund of the amount which has been awarded as compensation is not factually interest on refund and, therefore, there is no question of deducting any tax on source.