JUDGMENT PRONOUNCED ON: 28.09.2020 CONSUMER COMPLAINT No.1606/2017 IN THE MATTER OF MR. TENZIN THARDOE .COMPLAINANT VERSUS M/S BASELINE INFRADEVELOPERS PVT. LTD. ..OP CORAM: HONBLE DR. JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT) HONBLE SH. ANIL SRIVASTAVA, (MEMBER) Present: Vidit Gupta, Advocate, Counsel for Complainant. Opposite Party Ex-Parte. PER: HONBLE DR. JUSTICE SANGITA DHINGRA SEHGAL, PRESIDENT JUDGMENT [Via VIDEO CONFERENCING]

1. Present Consumer Complaint has been filed under Section 17 of the Consumer Protection Act, 1986 by one Mr. Tenzin Thardoe (hereinafter referred to as Complainant) against M/s Baseline Infra developers Pvt. Ltd. (hereinafter referred to as Opposite Party/OP) seeking the following reliefs:

a) Direct the opposite party to render the services as agreed and promised which includes handover the possession of Unit No. H-1704, (F-Block) measuring area 1075.00 sq. ft. (including 2 beds + 2 toilet + study + terrace (1075), one car parking in C/1606/2017 Page 2 of 13 Amrapali Hanging Gardens society, Noida. Otherwise, direct the opposite party to pay a sum of Rs.7,59,546/- alongwith interest thereon @24% p.a. from the date of payment to the complainant.

b) Award the compensation amount Rs.15,00,000/- in favour of complainant and against of the opposite party for the mental stress and agony suffered by the complainant alongwith interest thereon @ 24% p.a.

c) Award cost of litigation of in favour the complainant and against the opposite party.

2. The facts of the case are that the Complainant had booked a flat with the Opposite Party in its project title Amrapali Hanging Gardens at Noida, UP. The basic sale price of the project was stipulated to be Rs.36,92,625/- and on 22.11.2011 the Complainant deposited a booking amount of Rs.3,58,500/- via cheque bearing no. 103479 dated 21.11.2011 vide receipt no. 0388. Further, on demand raised by the opposite party, the complainant on 08.09.2012 made further payment of Rs.4,01,046/- via cheque bearing no.103496 dated 08.09.2012 vide receipt no.1771. Subsequently, the Complainant was allotted a flat bearing no. H-1704 (hereinafter referred to as said flat) in the aforesaid project and an allotment letter dated 05.10.2012 was issued in favour of the complainant by the opposite party. In addition to the aforesaid, the Opposite Party reserved the total price as Rs. 42,01,375/- which included the basic sale price and other charges. The Complainant had paid a total of Rs.7,59,546 /- over the period of time in order to satisfy the demands of the opposite party, with the last payment/instalment being made on 08.09.2012.

3. It is the case of the Complainant, that despite making the timely payments for the allotted flat in the Opposite Partys project, he has still not been provided the actual possession of the said flat. C/1606/2017 Page 3 of 13

4. During the course of the proceedings, the Opposite Party was given the opportunity to file its written statement, however, it failed to file the written statement within the stipulated period of

30 days and also, the extended period of 15 days, consequently, vide order dated 26.09.2018, the right of the Opposite Party to file Written Statement was closed. The Opposite Party was given the liberty to file written arguments within 8 weeks, however, the opportunity granted was not availed by it. Evidence by way of Affidavit and Written Synopsis has been filed by the complainant.

5. The matter was listed for final arguments on 22.09.2020. None appeared on behalf of the Opposite Party. Clearly, multiple opportunities were given to the Opposite Party time and again, however, the Opposite Party failed to avail all the opportunities granted to it by this Commission till date. Without causing any further delay and in the interest of justice, it became imperative to proceed ex-parte against the Opposite Party.

6. We have perused the material available on record. The short question which needs to be adjudicated is whether the Opposite Party is deficient in providing its services to the complainant.

7. As per the allotment letter dated 05.10.2012, the Opposite Party was required to hand over the possession of the said flat to the Complainant within 36 months from the date of issuance of the allotment letter and the opposite was also entitled to an additional period of 9 months as grace period in handing over the allotment. The relevant portion of the allotment letter has been reproduced below:

19. (a) That the Developer shall complete the development/construction of the Flat within 36 months from the date of starting of excavation which may vary for 9 months. The completion date is subject to force majeure conditions. No claim by way of C/1606/2017 Page 4 of 13 damages/compensation shall lie against the Developer in case of delay in handing over the possession on account of the force majeure condition and the Developer shall be entitled to a reasonable extension of time for the delivery of possession of the flat to the Allottee.

8. A perusal of the aforesaid clause clearly reflects that the Opposite Party was duty bound to handover the actual possession of the said flat to the Complainant within 36 months with an extended grace period of 9 months. Taking into consideration the fact that the allotment letter was issued on 05.10.2012, the last date till which the Opposite Party was bound to handover the possession of the said flat falls on 05.07.2016, even after the grace period of 9 months is exhausted.

9. The record is crystal clear that the possession has not been handed over to the complainant till date. Moreover, the counsel for the complainant further apprised us of the fact that till the first week of April, 2017 the construction of the flat had not even begun and till date no construction has commenced.

10. Even after receiving the amount as mutually agreed, the Opposite Party failed to comply with their part of the agreement. This non-compliance of the agreement on the part of the Opposite Party, to handover the possession within stipulated time period, clearly reflects the malafide intention of the Opposite Party to lure the honest citizens of this country including the present complainant into trap, in order to benefit out of the hard earned money of the citizens and also to feed upon such amount without being liable to pay any sort of return or interest, which they would have to, if the amount is borrowed from a financial/lending institution. We cannot allow such malpractice to exist at such a C/1606/2017 Page 5 of 13 large scale, consequently, we hold the Opposite Party liable for deficiency of service.

11. Having arrived at the said conclusion, the point for consideration is as to how the Complainant is to be compensated for the monetary loss, mental and physical harassment that he had to suffer at the hands of the Opposite Party.

12. We had the opportunity to discuss the law related to the payment of compensation in cases of default of the builder to handover the possession in a timely manner, in CC-87/2018 titled as MRS. SOSAMMA MATHEW & ANR. vs. M/S ANSAL HI-TECH TOWNSHIPS LTD., wherein it has been held as under:

7. Having discussed the liability of the OP in the preceding paragraphs, the question to be determined is how the complainant is to be compensated for the deficiency of the OP. At this juncture, we deem it appropriate to refer to the legal position as it stands today in terms of the compensation payable for the deficient services of a builder/OP. In Ghaziabad Development Authority vs. Balbir Singh reported at AIR 2004 SC 2141, the Honble Supreme Court while discussing the duty of the commission to compensate for the oppressive acts of the OPs has held as under: Thus the law is that the Consumer Protection Act has a wide reach and the Commission has jurisdiction even in cases of service rendered by statutory and public authorities. Such authorities become liable to compensate for misfeasance in public office i.e. an act which is oppressive or capricious or arbitrary or negligent provided loss or injury is suffered by a citizen. The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enables a consumer to claim and empower the Commission to C/1606/2017 Page 6 of 13 redress any injustice done. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The Commission/Forum must determine that such sufferance is due to mala fide or capricious or oppressive act. It can then determine amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers. Such compensation is for vindicating the strength of law. It acts as a check on arbitrary and capricious exercise of power. It helps in curing social evil. It will hopefully result in improving the work culture and in changing the outlook of the office/public servant. No authority can arrogate to itself the power to act in a manner which is arbitrary. Matters which require immediate attention should not be allowed to linger on. The consumer must not be made to run from pillar to post. Where there has been capricious or arbitrary or negligent exercise or non-exercise of power by an officer of the authority, the Commission/Forum has a statutory obligation to award compensation. If the Commission/Forum is satisfied that a complainant is entitled to compensation for loss or injury or for harassment or mental agony or oppression, then after recording a finding it must direct the authority to pay compensation and then also direct recovery from those found responsible for such unpardonable behavior.

8. In Bangalore Development Authority vs. Syndicate Bank reported at AIR 2007 SC 2198, the Honble Apex Court has consolidated the principles regulating the granting of relief to a consumer and has held as under:

10. Where a Development Authority forms layouts and allots plots/flats (or houses) by inviting applications, the following general principles regulate the granting of relief to a consumer (applicant for allotment) who complains of delay in delivery or non- C/1606/2017 Page 7 of 13 delivery and seeks redressal under the Consumer Protection Act, 1986 ('Act' for short) - [vide : Lucknow Development Authority v. M.K Gupta . AIR 1994 SC

787 , Ghaziabad Development Authority v. Balbir Singh AIR 2004 SC 2141 , and Haryana Development Authority v. Darsh Kumar (2005) 9 SCC 449 , as also Ghaziabad Development Authority v. Union of India (2000) 6 SCC 113 ]: (a) Where the development authority having received the full price, does not deliver possession of the allotted plot/flat/house within the time stipulated or within a reasonable time, or where the allotment is cancelled or possession is refused without any justifiable cause, the allottee is entitled for refund of the amount paid, with reasonable interest thereon from the date of payment to date of refund. In addition, the allottee may also be entitled to compensation, as may be decided with reference to the facts of each case. (b) Where no time is stipulated for performance of the contract (that is for delivery), or where time is not the essence of the contract and the buyer does not issue a notice making time the essence by fixing a reasonable time for performance, if the buyer, instead of rescinding the contract on the ground of non-performance, accepts the belated performance in terms of the contract, there is no question of any breach or payment of damages under the general law governing contracts. However, if some statute steps in and creates any statutory obligations on the part of the development authority in the contractual field, the matter will be governed by the provisions of that statute. (c) Where an alternative site is offered or delivered (at the agreed price) in view of its inability to deliver the earlier allotted plot/flat/house, or where the delay in delivering possession of the allotted C/1606/2017 Page 8 of 13 plot/flat/house is for justifiable reasons, ordinarily the allottee will not be entitled to any interest or compensation. This is because the buyer has the benefit of appreciation in value. (d) Though the relationship between Development Authority and an applicant for allotment is that of a seller and buyer, and therefore governed by law of contracts, (which does not recognise mental agony and suffering as a head of damages for breach), compensation can be awarded to the consumer under the head of mental agony and suffering, by applying the principle of Administrative Law, where the seller being a statutory authority acts negligently, arbitrarily or capriciously. (e) Where an alternative plot/flat/house is allotted and delivered, not at the original agreed price, but by charging current market rate which is much higher, the allottee will be entitled to interest at a reasonable rate on the amount paid towards the earlier allotment, from the date of deposit to date of delivery of the alternative plot/flat/house. In addition, he may be entitled to compensation also, determined with reference to the facts of the case, if there are no justifiable reasons for non-delivery of the first allotted plot/flat/house. (f) Where the plot/flat/house has been allotted at a tentative or provisional price, subject to final determination of price on completion of the project (that is acquisition proceedings and development activities), the Development Authority will be entitled to revise or increase the price. But where the allotment is at a fixed price, and a higher price or extra payments are illegally or unjustifiably demanded and collected, the allottee will be entitled to refund of such excess with such interest, as may be determined with reference to the facts of the case. C/1606/2017 Page 9 of 13 (g) Where full payment is made and possession is delivered, but title deed is not executed without any justifiable cause, the allottee may be awarded compensation, for harassment and mental agony, in addition to appropriate direction for execution and delivery of title deed. (h) Where the allotment relates to a flat/house and construction is incomplete or not in accordance with the agreed specifications, when it is delivered, the allottee will be entitled to compensation equivalent to the cost of completing the building or rectifying the defects.

(i) The quantum of compensation to be awarded, if it is to be awarded, will depend on the facts of each case, nature of harassment, the period of harassment and the nature of arbitrary or capricious or negligent action of the authority which led to such harassment. (j) While deciding whether the allottee is entitled to any relief and in moulding the relief, the following among other relevant factors should be considered:

(i) whether the layout is developed on 'no profit no loss' basis, or with commercial or profit motive; (ii) whether there is any assurance or commitment in regard to date of delivery of possession; (iii) whether there were any justifiable reasons for the delay or failure to deliver possession; (iv) whether the complainant has alleged and proved that there has been any negligence, shortcoming or inadequacy on the part of the developing authority or its officials in the performance of the functions or obligations in regard to delivery; and (v) whether the allottee has been subjected to avoidable harassment and mental agony. C/1606/2017 Page 10 of 13

9. The Honble Supreme Court in Civil Appeal No. 6239 of 2019 titled as Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. vs DLF Southern Homes Pvt Ltd. decided on 24.08.2020, the Apex Court has held as follows:

24. A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service. The expression service in Section 2 (1) (o) means a service of any description which is made available to potential users including the provision of facilities in connection with (among other things) housing construction. Under Section 14(1)(e), the jurisdiction of the consumer forum extends to directing the opposite party inter alia to remove the deficiency in the service in question. Intrinsic to the jurisdiction which has been conferred to direct the removal of a deficiency in service is the provision of compensation as a measure of restitution to a flat buyer for the delay which has been occasioned by the developer beyond the period within which possession was to be handed over to the purchaser. Flat purchasers suffer agony and harassment, as a result of the default of the developer. Flat purchasers make legitimate assessments in regard to the future course of their lives based on the flat which has been purchased being available for use and occupation. These legitimate expectations are belied when the developer as in the present case is guilty of a delay of years in the fulfilment of a contractual obligation. To uphold the contention of the developer that the flat buyer is constrained by the terms of the agreed rate irrespective of the nature or extent of delay would C/1606/2017 Page 11 of 13 result in a miscarriage of justice. Undoubtedly, as this court held in Dhanda, courts ordinarily would hold parties down to a contractual bargain. Equally the court cannot be oblivious to the one-sided nature of ABAs which are drafted by and to protect the interest of the developer. Parliament consciously designed remedies in the CP Act 1986 to protect consumers. Where, as in the present case, there has been a gross delay in the handing over of possession beyond the contractually stipulated debt, we are clearly of the view that the jurisdiction of the consumer forum to award just and reasonable compensation as an incident of its power to direct the removal of a deficiency in service is not constrained by the terms of a rate which is prescribed in an unfair bargain.

10. Returning to the facts of the present case, it is not in dispute that an amount of Rs. Rs. 9,71,200/- was paid by the complainant towards price of the said plot. The said amount has been utilized by the opposite parties, for their own benefits and on the other hand, the complainant was not provided anything in return of the said amount paid. The circumstances clearly show that the opposite parties made false statement of facts about the goods and services i.e. allotment of the flat in a stipulated period and ultimate delivery of possession. The act and conduct of the opposite parties is a clear case of misrepresentation and deception, which resulted in the injury and loss of opportunity to the complainant. As has been discussed in the preceding paragraphs, the compensation should be commensurate with the loss suffered and it should be just, fair and reasonable and not arbitrary. The amount paid by the complainant is a deposit held by the opposite parties in trust of complainant and it should be used for the purpose of building the flats and not for any other purpose. The builder is bound to compensate for the loss and injury suffered by the complainant for failure to deliver the possession. To get the relief, the complainant had to wage C/1606/2017 Page 12 of 13 a long drawn and tedious legal battle. As such, the complainant was at loss of opportunities. In such circumstances, ever increasing cost of construction and the damages for loss of opportunities caused which resulted in injury to the complainant, are also required to be taken into consideration for awarding compensation. In addition to that the complainant is also entitled to the compensation for the harassment, mental agony and wasting of time and money in litigation for redressal of grievance suffered by him on account of the betrayal by the opposite parties in shattering their hope of getting the flat by waiting for all this period. In these circumstances, the complainant deserves suitable compensation.

13. Keeping in view the principles as discussed above, we direct the OP to refund the entire amount paid by the complainant i.e. Rs. 7,59,546/- along with interest as per the following arrangement: A. An interest @ 6% p.a. from 22.11.2011 (the first payment received by the OP) till 28.09.2020 (the date of the present order); B. The rate of interest as payable as per aforesaid clause (A) is subject to the condition that the OP pays the entire amount on or before 24.12.2020; C. However, in case the OP fails to refund the amount as per the aforesaid clause (A), on or before 24.12.2020, the entire amount is to be refunded with an interest @ 7% p.a. calculated from 22.11.2011 till the actual realization of the amount.

14. In addition to the aforesaid and taking into consideration the facts of the present case, the OP is directed to pay a sum of A. Rs. 2,50,000/- as cost for mental agony and harassment to the complainant; and C/1606/2017 Page 13 of 13 B. The litigation cost to the extent of Rs. 50,000/-.

15. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.

16. File be consigned to record room along with a copy of this Judgment. (JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (ANIL SRIVASTAVA) MEMBER Pronounced On: 28.09.2020