HONBLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL) CC No. 511/2015 & CC No. 1046/2015
1. The complainants in these two matters booked residential apartments with the opposite party in a project namely Vistas which the opposite party is developing in Sector-70 of Gurgaon. The parties entered into a buyers agreement dated 16.04.2010 in CC No. 511/2015 and dated 07.01.2010 in CC No. 1046/2015. As per clause 4 (a) of the said agreement, the opposite party was required to deliver possession of the flat to the complainants within 36 months from the date of the agreement. In one case, the flat buyer paid about 90% of the agreed sale consideration whereas in the other case, the buyer claims to have paid more than the agreed sale consideration to the opposite party. CC No. 503/2015, 510/2015, 513/2015, 514/2015, 945/2015 & 1047/2015
2. The complainants before this Commission purchased flats which their predecessors in interest had agreed to purchase from the opposite party. The agreement with the predecessors in interest of the complainants were executed on 09.11.2012, 18.10.2010, 24.11.2011, 27.10.2010, 18.06.2010 and 22.04.2011 in CC No. 503/2015, 510/2015, 513/2015, 514/2015, 945/2015 and 1047/2015 respectively. The flats were purchased within one year of the initial flat buyers agreement by the complainants in CC No. 510/2015, 514/2015, 945/2015 and 1047/2015 whereas the complainants in CC No. 503/2015 and 513/2015 purchased the flat after two years of the initial flat buyers agreement. In CC No. 503/2015, 510/2015, 513/2015, 514/2015, 945/2015 and 1047/2015, 39%, 38%, 93%, 38%, 96% and 37% respectively of the cost of the flats stands paid to the opposite party.
3. The earliest buyers agreement in these complaints was executed on 13.11.2009 and the last buyers agreement in these complaints was executed on 02.04.2011. The grievance of the complainants is that the opposite party has failed to offer possession of the flats to them within the time period stipulated in the buyers agreement and in fact, except in Block A & B, the construction has not even started. The complaints are therefore, before this Commission seeking possession of the flats booked by them or in the alternative, another property of the same/similar specifications in the same locality. The second alternative prayer made by the complainants is for refund of the amount paid by them to the opposite party alongwith 18% interest compounded quarterly on the amount paid by them. They are also seeking compensation in the form of interest @ 18% per annum compounded quarterly, from the committed date of possession till the date the possession is offered, in case the opposite party offers possession of the flats booked by them.
4. The opposite party has filed reply/written version contesting the complaints on several grounds which have been the subject matter of adjudication by this Commission in a number of consumer complaints including CC No. 427/2014 Satish Kumar Pandey & Anr. Vs. M/s. Unitech Ltd. and connected matters and CC No. 487/2014 Manoj Kumar Jha & Anr. Vs. M/s. Unitech Ltd., decided on 18.01.2016. All the above referred matters related to this very project i.e. Vistas in Sector-70 of Gurgaon. The order passed by this Commission in Satish Kumar Pandey & Anr. (supra) to the extent it is relevant, reads as under:
8. Neither any new legislation was enacted nor an existing rule, regulation or order was amended stopping suspending or delaying the construction of the complex in which apartments were agreed to be sold to the complainants. There is no allegation of any lock-out or strike by the labour at the site of the project. There is no allegation of any slow-down having been resorted to by the labourers of the opposite party or the contractors engaged by it at the site of the project. There was no civil commotion, war, enemy action, terrorist action, earthquake or any act of God which could have delayed the completion of the project within the time stipulated in the Buyers Agreement. It was contended by the counsel for the OP that the expression slow down would include economic slow-down or recession in the Real Estate sector. I, however, find no merit in this contention. The word slow down having been used alongwith the words lock-out and strike, I has to be read ejusdem generis with the words lock-out and strike and therefore, can mean only a slow down if resorted by the labourers engaged in construction of the project.9. As regards, alleged shortage of labour, I find that no material has been placed on record by the OP that despite trying, it could not be get labourers to complete the construction of the project within the time stipulated in the Buyers Agreement. It was submitted by the learned counsel for the complainants that ordinarily big builders such as the OP in these cases, are contracting/sub-contracting the construction work to the contractors engaged by them, instead of employing their own labourers on a regular basis, the purpose being to ensure that they are not saddled with the wage bill of those regular labourers, in case the opposite party does not have adequate work for them. There is no evidence of the OP having been invited tenders for appointment of contractors / sub-contractors for executing the work at the site of those projects and no contractor/ sub-contractor having come forward to execute the project on the ground that adequate labour was not available in the market. Therefore, it cannot be accepted that the opposite party could not have arranged adequate labour, either directly or through contractors/sub-contractors, for timely completion of the project. As regards the alleged shortage of water, bricks and sand in the market, I find that there is no evidence filed by the OP, to prove that it was unable to procure water, sand and brick in adequate quantity. This is also their case that the notification of the Government, being relied upon by the opposite party, is an old notification, which was in force even at the time the opposite party promised possession in 36 months. There is no evidence of the opposite party having invited tenders for supply of bricks and water and there being no response to such tenders. In fact, if the work is to be executed through contractors/sub-contractors, the material such as bricks, sand and even water will be arranged by the contractor/sub-contractor and not by the opposite party. As noted earlier, there is no evidence of the opposite party having invited tenders after awarding the work of project in question to the contractors/sub-contractors and there being no response to such tenders. Therefore, I find no merit in the plea that the completion of the project was delayed due to non-availability of water, sand and bricks in adequate quantity. It is an undisputed proposition of law that ordinarily the parties are bound by the terms and conditions of the contract voluntarily agreed by them and it is not for a Consumer Forum or even a Court to revise the said terms. However, a term of a contract, in my view will not be final and binding if it is shown that the consent to the said term was not really voluntary but was given under a sort of compulsion on account of the person giving consent being left with no other choice or if the said term amounts to an unfair trade practice. It was submitted by the learned counsel for the complainants that the term providing for payment of a nominal compensation such as Rs.5/- per square foot of the super area having become the order of the day in the contracts designed by big builders, a person seeking to buy an apartment is left with no option but to sign on the dotted lines since the rejection of such term by him would mean cancellation of the allotment. He further submitted that a person seeking to acquire a built up flat instead of purchasing a plot and then raising construction on it, therefore, is not in a position to protest resist the inclusion of such a term in the Buyers Agreement, and has to rely upon the reputation of the builder, particularly if he is a big builder such as Unitech Ltd. He also submitted that the format of the Buyers Agreement is never shown to the purchasers at the time of booking the apartment and if he refuses to sign the Buyers Agreement on the format provided by the builder, not only will he lose the booking, even the booking amount/earnest money paid by him will be forfeited by the builder. I find merit in the above referred submissions of the learned counsel. A person who, for one reason or the other, either cannot or does not want to buy a plot and raise construction of his own, has to necessarily go in for purchase of the built up flat. It is only natural and logical for him to look for an apartment in a project being developed by a big builder such as the opposite party in these complaints. Since the contracts of all the big builders contain a term for payment of a specified sum as compensation in the event of default on the part of the builder in handing over possession of the flat to the buyer and the flat compensation offered by all big builders is almost a nominal compensation being less than 25% of the estimated cost of construction per month, the flat buyer is left with no option but to sign the Buyers Agreement in the format provided by the builder. No sensible person will volunteer to accept compensation constituting about 2-3% of his investment in case of delay on the part of the contractor, when he is made to pay 18% compound interest if there is delay on his part in making payment.
12. It can hardly be disputed that a term of this nature is wholly one sided, unfair and unreasonable. The builder charges compound interest @ 18% per annum in the event of the delay on the part of the buyer in making payment to him but seeks to pay less than 3% per annum of the capital investment, in case he does not honour his part of the contract by defaulting in giving timely possession of the flat to the buyer. Such a term in the Buyers Agreement also encourages the builder to divert the funds collected by him for one project, to another project being undertaken by him. He thus, is able to finance a new project at the cost of the buyers of the existing project and that too at a very low cost of finance. If the builder is to take loan from Banks or Financial Institutions, it will have to pay the interest which the Banks and Financial Institutions charge on term loan or cash credit facilities etc. The interest being charged by the Banks and Financial Institutions for financing projects of the builders is many times more than the nominal compensation which the builder would pay to the flat buyers in the form of flat compensation. In fact, the opposite party has not even claimed that the entire amount recovered by it from the flat buyers was spent on this very project. This gives credence to the allegation of the complainants that their money has been used elsewhere. Such a practice, in my view, constitutes unfair trade practice within the meaning of Section 2(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practice for the purpose of selling the product of the builder. Though, such a practice does not specifically fall under any of the Clauses of Section 2(r) (1) of the Act that would be immaterial considering that the unfair trades, methods and practices enumerated in Section 2(r) (1) of the Act are inclusive and not exhaustive, as would be evident from the use of word including before the words any of the following practices.
5. In Suman Nandi & Anr. Vs. Unitech Limited & Anr., CC No.277/2013 decided on , a Co-ordinate Bench of this Commission rejected the identical pleas taken by the17.12.2015 opposite parties-Unitech and Pioneer Urban Land & Infrastructure Ltd. The aforesaid judgment to the extent it is relevant reads as under:-
8. On careful perusal of the evidence, we find that opposite parties have not led any evidence to show any new legislation, regulation or order suspending, stopping or delaying the construction of complex in which the subject apartments were agreed to be sold to the complainants. Neither there is an allegation of strike, slow-down, civil commotion, war, enemy action, terrorist action etc. or any other act of god which might have caused delay in completion of project within time stipulated in the Buyers Agreement nor evidence in this regard has been adduced. Learned counsel for the opposite parties have tried to get out of the situation by arguing that expression slow-down in clause 9.b. of the Buyers Agreement would also include economic slowdown or recession in real estate sector. We do not find merit in this contention. The economic constraints ordinarily cannot be taken as a defence for non- compliance of the contract. The term slow down in clause 9.b. has been used alongwith word strike and it has to be read ejusdem generis with the aforesaid words and can only mean a slow down resorted by the labourers engaged in the construction of the project in support of their demands.9. As regards shortage of labour, but for the bald plea of the opposite parties in their written statement and the affidavits which are more or less reproduction of the written statement, there is no material or convincing evidence on record that despite of making efforts, the opposite parties could not get labours to complete the construction of project within the stipulated time. Therefore, it cannot be accepted that opposite party because of market conditions could not manage to arrange adequate labour for timely completion of project. As regards the alleged shortage of water, bricks and sand in the market, no cogent evidence has been produced by the opposite party to establish that it was unable to procure water, sand and bricks in adequate quantity. No evidence has been adduced to establish that from the date of signing of Buyers Agreement from 2006-2010, there was shortage of those materials in the market. The opposite parties have also taken a plea that there was a notification of government imposing restriction on the production of bricks by brick klins. The aforesaid argument is without any force because the notification relied upon by the opposite party was in force even at the time the opposite party promised possession of the apartments within 30 -36 months. The opposite parties having entered into an agreement knowing the aforesaid constraints because of government notification now cannot get rid of its obligation to justify the delay in construction. As regards the scarcity of water, plea of the opposite party is without any basis because the order of High Court stopping use of ground water for construction activity came much later. If the opposite parties actually intended to complete the construction within the stipulated time, they would have completed the super structure which does not take much time within initial 24 months of the date of Buyers Agreement.
10. As regards the plea of shortage of labour etc. due to common wealth game is concerned, that plea is also not acceptable for the reason that Buyers Agreement are of the year 2006 to 2010 and if the opposite parties intended to comply with the terms of agreement, they would have raised substantial construction before common wealth games. Had there been truth in the defence taken by the opposite party, the opposite party after the completion of construction activities pertaining to commonwealth games would have completed the project within the period of five years since the common wealth games were held. Till date, the possession of the apartments have not been handed over to the complainants which clearly indicate the deliberate delay and negligence on the part of the opposite party and opposite party cannot be permitted to hide behind a bogus plea of force majeure or exceptions provided in clause 9.b of the Buyers Agreement.
18. On reading of clause 2 (r) (i) (ii) & (vi), it is clear that if a service provider in order to increase his business makes a false representation regarding the standard and quality of the proposed service or its usefulness, it would amount to the unfair trade practice. On careful reading of the Buyers Agreement it is clear that in the said agreement, the opposite party service provider has extended a clear promise/representation to the complainants that in the event of their paying consideration amount, they would be given possession of the booked apartments complete in all respect within 30-36 months or reasonable period thereof. However, in the above-noted case, the stipulated period has expired way back and even almost five years have gone by but the possession of the apartments have not been delivered. There is no evidence from the side of the opposite party as to how and where the money paid by the complainants and the other buyers of
iii. apartments in the project has been utilised. From this can be safely inferred that the opposite party has diverted the funds and instead of utilising the funds paid by the complainants/buyers for completing the project within the promised period. Therefore, in our considered view, this is a case of soliciting business by the opposite party service provider by making false representation. Therefore, in our view, this is a clear case of unfair trade practice. The opposite party, thus, cannot take shelter of clause 4.a of the contract to avoid its liability to pay reasonable compensation for the delay caused due to its intentional act in not making sincere efforts to complete the construction within a reasonable period.
19. In view of the above, since the opposite party has utilised the money paid by the complainants against consideration amount, the complainants are entitled to interest on the payment made by them for the period of delay as compensation instead of meagre compensation computed on the basis of clause 4.c. of the Buyers Agreement, which is highly unfair. Looking into overall facts and circumstances of the case, we are of the opinion that 12% interest p.a. from the date of default in delivery of the subject apartments would meet the interest of justice.
6. In a recent decision CC No. 368/2014, Shweta Kapoor & Anr. Vs. M/s. Unitech Ltd. & , decided on 14.01.2016, the complainants had agreed to purchase a residential flat from theAnr. opposite party Unitech Ltd. in a project which it was developing in Sector-50 of Gurgaon and had made payment of Rs. 95.5% of the total sale consideration. The Buyers Agreement executed between the parties in that case stipulated delivery of possession by September 30, 2009. Since the possession was not delivered by the stipulated date, the complainants approached this Commission by way of a complaint. The grounds on which the aforesaid complaint was resisted were summarized as under: A preliminary objection has been taken that as per the terms and conditions of the agreement between the parties, in case of delay on the part of the opposite party in delivering possession, the complainants are entitled only to compensation @ 5 per square feet per month of the super area, for the period the possession is delayed and in case the developers are not in a position to offer the property, they may offer an alternative property or refund the amount received from the flat buyers with interest @ 10% per annum. On merits, the opposite parties have admitted the agreement with the complainants as well as the receipt of the amount alleged by them. The delay in offering possession is sought to be justified on the following grounds:- Common Wealth Games during April, 2010 to March, 2011 the Common Wealth Games were organized in the NCR region which resulted into an extreme shortage of labours in the region as most of the labour force was employed and / or was engaged by the Government to expedite the completion of the pending projects required for the Common Wealth Games. Active implementation of social schemes like NREGA and JNNURM In addition to the above due to active implementation of alluring and promising schemes floated by the Central and State Government, there was a sudden shortage of labour / workforce especially in the real estate market. The workforce / labour forces were tempted to return to their respective states due to the guaranteed employment. Order dated 16.7.2012 passed by the Honble High Court of Punjab & Haryana (hereinafter referred to as the The above mentioned Order strictly restrained theOrder usage of ground water and directed to use only treated water from available Sewerage Treatment Plants (hereinafter referred to as ). As the availability of STP, basicSTP
iii.
iii. infrastructure and availability of water from STP, was very limited in comparison to the requirement of water in the ongoing constructions activities in NCR region. This scarcity of an essential commodity for construction purposes made it difficult for the Opposite Parties to cope up with the pre-decided schedules as the availability of treated water became very limited and against the total requirement of water. It is to be highlighted here that only approx. 10-15% of required quantity was available at construction sites to continue with the planned construction activities. In addition to the above, the Opposite Parties were later completely banned to use underground water for construction purposes and were vehemently directed to use recycled water only. Notification dated 14.9.1999 published by Ministry of Environment and Forest The Notification dated 14.09.1999 barred the excavation of top soil for the manufacture of bricks and further directed that no manufacturing of clay bricks or tiles or blocks be done within a radius of 50 (fifty) kilometres from coal and lignite based thermal power plants without mixing atleast 25% of ash with soil. As a consequence of this Notification dated 14.09.1999 various brick kiln were shut creating shortage of essential commodity bricks for construction purposes. Further, another raw material i.e. the sand which is used as mixture along with cement was also not available in the vicinity of the Complex due to restrictions from Mining Department imposed in the entire Aravali region and the same had to be procured from neighbouring State of Rajasthan. Later in a completely unforeseeable ruling by the Honble Supreme Court of India dated 08.05.2009 the Honble Court suspended all the mining operations in the Aravalli Hill range falling in State of Haryana within the area of approx.. 448 sq. kms. In the district of Faridabad and Gurgaon including Mewat which directly affected the construction schedules and activities of the Respondents herein. Notification dated 14.09.2006 published by the office of Director, Town and Country Planning, Haryana This Notification dated 14.09.2006 imposed certain restrictions and prohibitions on new projects or activities, or on the expansion or modernization of existing projects or activities based on their potential environmental impact being undertaken in any part of India unless prior environmental clearances are obtained. Therefore, due to the said Notification dated 14.09.2006, the procedure of obtaining approvals and sanctions by the opposite parties led to the delay in the present construction schedule. Recession in the economy That since the real estate industry is a cyclical industry that is affected by both local and national economic conditions. While macroeconomic conditions affect the overall state of the real estate industry, local supply and demand conditions are by far more important factors affecting the real estate markets as a result of which the availability of essential resources namely the labour and various raw materials became scarce. Rejecting all the pleas taken by the opposite party and allowing the complaint, this Commission inter-alia observed and held as under:
4. We find that the pleas taken in the reply filed by the opposite party are same which this Commission has already rejected in a number of complaints filed against the said opposite party. In Swarn Talwar & Ors. vs. Unitech Ltd., C.C. No.347 of 2014 decided wherein the opposite party had failed to construct flats in a project knownon 14.08.2015 as Unitech Habitat in Greater Noida, this Commission while directing the opposite party to refund of the amount deposited by the flat buyers along with interest on that amount @ 18% per annum inter-alia held as under:-
8. As regards the plea that in terms of Clause (c) of the allotment letter the opposite party is required to pay only the holding charges calculated at the rate of Rs.5/- per sq.ft. per month of the super area for the period the possession is delayed, such a contention was expressly rejected by us in Puneet Malhotra (supra) holding that such clause applies only in a case where construction of the flat is delayed but despite delay the buyer accepts the possession of the flat from the seller and consequently the accounts have to be settled between the parties. We observed in this regard that the buyer would have to pay the agreed holding charges to the seller and the seller to pay the agreed compensation on account of delaying the construction of the flat. The said clause, however, does not apply to a case where the buyer on account of delay on the part of the seller in constructing the flat is left with no option but to seek refund of the amount which he had paid to the seller. We further held that such a clause where the seller in case of default on the part of the buyer seeks to recover interest from him at the rate of 24% per annum will amount to an unfair trade practice since it gives an unfair advantage to the seller over the buyer. We also noted in this regard that enumeration of the unfair trade practices in Section 2(r) of the Act is inclusive and not exhaustive. This plea was also negatived by us in a batch of complaints CC No.427 of 2014, Satish Kumar Pandey & Anr. Vs. Unitech Ltd. and connected matter, decided on 08-06-2015. All those complaints were filed against none other than the opposite party in these matters, namely, Unitech Ltd.
9. Coming to the pleas that there was recession in the economy and a disruption due to agitation by farmers and acute shortage of labour, etc., the following view taken by us In Satish Kumar Pandey (Supra) is relevant. It would also be pertinent to note here that as pointed out by the complainants the agitation of the farmers was on account of acquisition of land in Noida Extension and not on account of acquisition of land on which the project in which the flats were to be constructed for the complainants. As regards the alleged delay in obtaining environmental clearances there is no material on record to show when the opposite party applied for such clearances, where they submitted all the requisite documents etc. while applying for such clearances and how much was the time taken by the concerned authorities in granting the said clearances. In the absence of such particulars, it would be difficult for us to accept that development of the project was delayed on account of any notification imposing restrictions on new projects. In any case, the opposite party has failed to produce before us any notification imposing restriction or prohibition on development of the project in which the flats were to be constructed for the complainants.
7. This Commission further observed and held as under in : Shweta Kapoor & Anr. (Supra)
6. In the case before us, there is no evidence of the opposite parties having been prevented from completing the construction due to an Act of God or reasons beyond their control. There is no evidence of any Tribunal or Authority having restrained them going ahead with construction of this particular project, which could not be completed even after more than 6 years after the date stipulated for this purpose in buyers agreement. The averments made in the reply are vague and general in nature, without even specifying when, by which order and for how much period a Tribunal or Authority had stopped the opposite parties from completing the construction. The opposite parties ought to have obtained all the requisite approvals and clearances before coming in the market for accepting booking of the flats. If some building material or water was not available in Gurgaon (though there is no evidence of the opposite parties having been unable to get building material and water in Gurgaon) it was for them to arrange building material and water from alternative sources, wherever it could be available. The shortage of labour, building material or the water required for construction cannot be said to be Acts of God or reasons beyond the control of the opposite parties. This is not the case of the opposite parties that no construction came up in Gurgaon in last 7-8 years. If others could construct buildings during this period, the opposite parties also could have done so, if they so intended. This is not the case of the opposite parties that the entire money collected by them from the flats buyers in this project was used only for this project. Hence, there seems to be truth in the contention of the complainants that the opposite parties have diverted the money collected from them to other projects or for other purpose, thereby financing their other business activities at the cost of the flat buyers in this project. In these circumstances, the aforesaid pleas are accordingly rejected.
8. In Manoj Kumar Jha (supra), it was contended before this Commission that since the apartment in question was purchased for less than Rs.1 Crore, this Commission lacks pecuniary jurisdiction to entertain this complaint and the complainants should be relegated to the concerned State Commission for the redressal of their grievance. Rejecting the complaint, this Commission inter-alia observed and held as under: (13) The learned counsel for the opposite party submits that since the apartment in question was purchased for less than Rs.1 Crore, this Commission lacks pecuniary jurisdiction to entertain this complaint and the complainants should be relegated to the concerned State Commission for the redressal of their grievance. We however find no merit in this contention. This issue was raised by the opposite party in Swarn Talwar and was rejected.(Supra) In the cases where the complainant does not want refund and is seeking possession, alongwith compensation for the delayed possession, this Commission would have jurisdiction to entertain the complaint, if the aggregate of the value of the flat, on the date of filing of the complaint and the compensation claimed for the delay in delivering possession, exceeds Rs. 1 Crore. In terms of Section 21(a) of the Consumer Protection Act, this Commission can entertain complaints where the value of the goods or services and compensation exceeds Rs. 1 Crore. Since the buyer is seeking possession of the flat booked by him, the value of the service, in such a case in our opinion, in terms of Section 21(a) of the Consumer Protection Act means the value of the flat as on the date of filing of the complaint and not the value on the date the flats were booked.
9. In some of the complainants before this Commission were Satish Kumar Pandey (Supra) subsequent purchasers who had purchased the apartment from the original allottees of the opposite party. The possession in those cases was to be delivered within three years. It was directed by this Commission that those who had purchased the apartment after more than one year from the initial allotment should be paid compensation in the form of simple interest @ 12% per -10- annum w.e.f. three years from the date of repurchase till the date the possession is delivered to them, no compensation shall be payable to them from first three years from the initial allotment and for the period between three years from the date of initial agreement/allotment and three years from the date of repurchase by them compensation shall be paid to them @ Rs.5/- per sq. ft. of the super area in terms of the clause 4 (c) of the buyers agreement. Lesser compensation to the subsequent purchaser was awarded considering the decision of the Honble Supreme Court in Haryana Urban Development Authority vs. Raje Ram, AIR 2009 SC 2030. The persons who had purchased flats within one year from the date of the agreement with/allotment to the original allottee were treated by this Commission at par with the original allottee in Satish Kumar Pandey (Supra) and therefore such complainants would be entitled to same compensation for the period the possession is delayed, as has been awarded to the original allottees.
10. In Satish Kumar Pandey & Anr. (supra), the opposite party placed on record a letter dated 27.05.2015 offering possession to the flat buyers in the project Vistas as per the following schedule:- Block Completion of construction & application of OC Offer of possession of apartments A-9 to A-11 31 December- 2015st 28 Feb. 2016th A-1 to A-4 31 May - 2016st 31 July 2016st A-5 to A-8 30 September 2016th 30 Nov 2016th B-1 to B-5 31 December -2016st 28 Feb 2017th E-1 E-2 30 May 2017th 31 July 2017st D-1 D-2 31 October 2017st 31 December 2017st C-1 to C-3 31 December -2017st 28 February 2018th -11- The learned counsel for the opposite party submits that the aforesaid schedule was sent to all the allottees in the project Vistas which they are developing in Sector 70 of Gurgaon.
11. The complainants in CC No. 513/2015 and CC No. 945/2015 state that they would like to wait for delivery of possession in terms of the letter dated 27.05.2015 sent by the opposite party to the flat buyers but would press for grant of compensation for the period the possession is delayed. The complainants in the other matters however, do not want to wait any more having no faith in the schedule given in the letter dated 27.05.2015. The complainant in CC No. 1046/2015 namely Sh. Vikas Kaul who is present in the court, states that he is an original allottee who had entered into the buyers agreement way back in January, 2010 making more than 100% payment to the opposite party and he is not in a position to keep on paying rent and therefore, would like to purchase another apartment after taking refund of the money which he has paid to the opposite party alongwith compensation on account of escalation in the market value of the similar flats in the last six years or so. The same is the plea taken by Sh. Tripun Dhiman, complainant in CC No. 511/2015, who executed the buyers agreement in April 2010. The other complainants who want to take refund with compensation submit that the construction in the towers in which allotment have been made to them, has not even started and therefore, there is no way the opposite party can abide by the schedule given in the letter dated 27.05.2015. In our opinion, considering the abnormal delay on the part of the opposite party in completing construction and their inability to offer possession even as on today, the complainants cannot be compelled to accept the possession whenever it is offered by the opposite party. They, in our opinion, are legally entitled to seek refund of the money which they have paid to the opposite party alongwith appropriate compensation. We would also like to note here that as per the schedule contained in the letter dated 27.05.2015, the opposite party was to complete construction and apply for occupancy certificate for the Blocks A-9 to A-11 by 31.12.2011. Probably, even that time limit has not been maintained. Therefore, there is a likelihood of the opposite party not maintaining the time schedule given in the letter dated 27.05.2015 at least as far as blocks A-1 to A-4 and A-9 to A-11 are concerned.
12. For the reasons stated hereinabove, the complaints are disposed of with the following directions: (a) The opposite party shall deliver possession of the flats booked by the complainants in CC No. 513/2015 and CC No. 945/2015 to them on or before the last date stipulated in its letter dated 27.05.2015. (b) The opposite party shall pay, to the complainant in CC No. 945/2015 namely Mr. Neelesh Goyal, compensation in the form of simple interest @ 12% per annum w.e.f. 36 months from the date of the initial buyers agreement till the date the possession is delivered to him. The interest payable till 29.02.2016 shall be paid by 31.03.2016. Thereafter, compensation in the form of interest, in terms of this order, shall be paid by the tenth of each succeeding month. (c) In CC No. 513/2015, the opposite party shall pay compensation in the form of simple interest @ 12% per annum w.e.f. 36 months from the date of purchase by the complainant till possession is delivered to him. He shall also be paid contractual compensation @ 5 per sq. feet of the super area for the period between the committed date of possession and 36 months from the date of purchase by him. -12- (d) If the opposite party fails to deliver the possession of the flats to the aforesaid two complainants within the time stipulated in this order, it shall pay higher compensation to them in the form of interest @ 18% per annum for each day of delay beyond the time stipulated in this order for delivering possession of the flats to them. The purpose behind directing higher compensation, in the event of the opposite party not maintaining the time schedule given by it, is to ensure that the completion of the construction is not unduly delayed, on account of the money collected from the complainants being deployed elsewhere. We however, hope that such a situation attracting the aforesaid higher compensation will not arise and the opposite party will honour the time schedule given in the letter dated 27.05.2015. (e) The opposite party is directed to refund the amount paid to it by the complainants in CC No. 503/2015, 510/2015, 511/2015, 514/2015, 1046/2015 & 1047/2015 alongwith compensation in the form of simple interest @ 18% per annum calculated from the date of each payment till the date on which the said amount is paid to them alongwith the interest in terms of this order. (f) The opposite party shall also pay a sum of Rs. 5000/- each as cost of litigation in each complaint. ......................J
V.K. JAIN PRESIDING MEMBER ...................... DR. B.C. GUPTA MEMBER -13-
Comments