MRS. ABHAYA SRIVASTAVA & ANR. v. M/S SUPERTECH LTD.

JUDGMENT PRONOUNCED ON: 09.03.2021 COMPLAINT NO. 621/2016 IN THE MATTER OF MRS. ABHAYA SRIVASTAVA & ANR. ...COMPLAINANTS VERSUS M/S SUPERTECH LTD. ...OPPOSITE PARTY CORAM: HONBLE DR. JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT) HONBLE SH. ANIL SRIVASTAVA, (MEMBER) Present: Mr. Krishna Kumar, Counsel for Complainants. Mr. Piyush Aggarwal, Counsel for the Opposite Party. PER: HONBLE DR. JUSTICE SANGITA DHINGRA SEHGAL, PRESIDENT JUDGMENT [Via Video Conferencing]

1. The present complaint has been filed before this commission under Section 17 of the Consumer Protection Act, 1986 alleging deficiency of services and unfair trade practices by the opposite party, wherein the complainants have prayed as under:

a) Directing the opposite party to pay a sum of Rs.25,51,473/- towards the amount paid towards the booked flat till date; and/or CC 621/2016 Page 2 of 21

b) Directing the opposite party to pay a sum of Rs. 12,00,000/- towards the interest component borne by the complainants on account of loan taken for the purpose of payment of sale price of the flat as well as penal interest.

c) Directing the opposite party to pay compensation of Rs. 15,00,000/- towards the mental agony, harassment and other counts ; and/or

d) Directing the opposite party to pay compensation of Rs. 15,00,000/- towards deficiency of service on the part of the opposite party; and/or

e) Directing the opposite party to pay a sum of Rs. 25,000/- towards the cost of this complaint; and/or

f) And pass such other suitable orders as this Honble Court may deems fit and proper in the interest of justice.

2. Brief facts necessary for the adjudication of the present complaint are that the complainants booked a flat bearing Unit No. R003GXL1908 on 19th floor in GALAXY Towers at Supertech Livingston, Crossings Republic, Ghaziabad. The same was allotted to the complainants vide letter dated 30.08.2012. As per the allotment letter, the Opposite Party had to handover the possession of the said flat by June, 2014. The complainants had to make payment of the flat as per the following schedule:- Installments Due date % Amount Installment I 16.08.2012 10.0 Rs. 2,98,950.00/- Installment II 15.09.2012 30.0 Rs. 8,96,851.00/- Installment III 02.02.2013 15.0 Rs. 4,48,426.00/- Installment IV 17.07.2013 15.0 Rs. 4,48,426.00/- Installment V 01.12.2013 15.0 Rs. 4,48,426.00/- Installment VI 30.06.2014 15.0 Rs. 4,48,426.00/- Total Rs. 29,89,503.00

3. The complainants over the time had paid an amount of Rs. 25,51,473/- to the Opposite Party, for which they took home loan of Rs. 23,00,000/- from the Corporation Bank. The Opposite Party vide CC 621/2016 Page 3 of 21 email dated 25.06.2015 informed the complainants that the possession of the flat had been delayed and the same will be handed over to them by June, 2016. The Opposite Party vide email dated 25.06.2015 also offered the complainants either to take an alternative flat in another project at Noida Extension or the refund as per the terms and conditions of the allotment letter along with 12% p.a interest. The complainants choose for refund of the amount as the alternative flat offered was of poor construction quality and had lesser super area than the flat they booked in Galaxy Towers. A legal notice dated 31.03.2016 was sent to the Opposite Party by the complainants seeking refund of the amount paid by him, which is of no avail. The Opposite Party neither refunded the money to the complainants nor has the possession been offered to the complainants yet.

4. Alleging deficiency of service and unfair trade practice on the part of the Opposite Party, the complainants have approached this commission.

5. The Opposite Party has contested the present case and has raised some preliminary objections as to the maintainability of the complaint case. The counsel for the Opposite Party contended that the complainants are not Consumer as defined under the CPA, 1986 as the complainants have booked the said flat to earn profits on investment and therefore, the same amounts to commercial purpose. The counsel for the Opposite Party further contended that this commission does not have the jurisdiction to adjudicate the present case as the property in question is situated at Ghaziabad, U.P and also Clause 48 of the allotment agreement dated 30.08.2012 provides for resolution of disputes between the parties by Arbitration. CC 621/2016 Page 4 of 21

6. The counsel for opposite party contended that the present complaint is liable to be dismissed on the ground of non-joinder of necessary party as the complainants have not impleaded the bank i.e. Corporation Bank from which the said home loan was sanctioned. He further contended that the time is not the essence of the agreement and the compensation for delay in handing over the possession to the complainants is properly provided under the terms and conditions of the allotment letter dated 30.08.2012. Therefore, the parties are bound by the said agreement and this commission cannot go beyond the said agreement.

7. The complainants filed their Rejoinder rebutting the written statement filed by the Opposite Party. Both the parties filed their Evidence by way of Affidavit in order to prove their averments on record.

8. We have heard the counsel for both the parties and perused through the material on record.

9. The fact that the complainant had booked a flat with the Opposite Party is not in dispute from the evidence on record. Payment to the extent of Rs. 25,51,453- by the complainants to the Opposite Party is also evident from the receipts attached with the complaint..

10. Before delving into the merits of the case, we deem it appropriate to adjudicate preliminary issues of law as to the maintainability of the consumer complaint. WHETHER THIS COMMISSION HAS JURISDICTION TO ADJUDICATE THE PRESENT COMPLAINT?

11. The question of consideration before us is whether this commission has jurisdiction to decide the present complaint. We deem it appropriate to refer to Section 17 of the Consumer Protection Act, 1986 which provides as under: CC 621/2016 Page 5 of 21 (1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction (a) to entertain-

(i) complaints where the value of the goods or services and compensation, if any, claimed [exceeds rupees twenty lakhs but does not exceed rupees one crore]; and

(ii) appeals against the orders of any District Forum within the State; and (b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State, where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity. (2) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction- (a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or (b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is CC 621/2016 Page 6 of 21 given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises.

12. Analysis of Section 17 of the Consumer Protection Act, 1986 shows that this commission will have the pecuniary jurisdiction in cases where the total claim including the compensation is more than twenty lakhs and less than one crore. Moreover, clause 17(2) provides the extent of territorial jurisdiction wherein it has been provided that the state commission will have the jurisdiction to entertain cases where opposite party at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain.

13. Having discussed the statutory position, the facts of the present case reflect that the value of the apartment and the compensation prayed by the complainants is Rs. 73,00,000/- (approx) and the commission has the pecuniary jurisdiction to deal with the present complaint. So far as the territorial jurisdiction is concerned the registered office of the OP is at 1114, 11th Floor, Hemkunt Chambers, 89, Nehru Place, New Delhi. Since the registered office falls within the territory of Delhi, this commission has the territorial jurisdiction to finally adjudicate the case. To strength the above finding we rely on Rohit Srivastava v. Paramount Villas Pvt. Ltd. reported at 2017 SCC OnLine NCDRC 1198, wherein it was held that: It is not in dispute that the Registered Office of Opposite Party No. 1 Company is situated in Delhi, i.e., within the territorial jurisdiction of the State Commission at Delhi and therefore, in the light of clear CC 621/2016 Page 7 of 21 provision contained in Section 17(2)(a), which stipulates that a Complaint can be instituted in a State Commission, within the limits of whose jurisdiction, the Opposite Party actually carries on business. In view of the said provision, we have no hesitation in coming to the conclusion that since the Registered Office of the first Opposite Party is situated in Delhi, the State Commission did have the territorial jurisdiction to entertain the Complaint

14. The jurisdiction of consumer commissions to entertain cases of this nature has been settled via array of judgments. We tend to rely on the dicta of Honble Supreme Court in Narne Construction P. Ltd., etc.

v. Union Of India and Ors. Etc., reported at (2012) 5 SCC 359 :-

5. In the context of the housing construction and building activities carried on by a private or statutory body and whether such activity tantamounts to service within the meaning of clause (o) of Section 2(1) of the Act, the Court observed: (LDA case [(1994) 1 SCC 243] , SCC pp. 256-57, para 6)

6. As pointed out earlier the entire purpose of widening the definition is to include in it not only day-to-day buying and selling activity undertaken by a common man but even such activities which are otherwise not commercial in nature yet they partake of a character in which some benefit is conferred on the consumer. Construction of a house or flat is for the benefit of person for whom it is constructed. He may do it himself or hire services of a builder or contractor. The latter being for consideration is service as defined in the Act. Similarly when a statutory authority develops land or allots a site or constructs a house for the benefit of common man it is as much service as by a builder or contractor. The one is contractual service and CC 621/2016 Page 8 of 21 the other statutory service. If the service is defective or it is not what was represented then it would be unfair trade practice as defined in the Act. Any defect in construction activity would be denial of comfort and service to a consumer. When possession of property is not delivered within stipulated period the delay so caused is denial of service. Such disputes or claims are not in respect of immovable property as argued but deficiency in rendering of service of particular standard, quality or grade. Such deficiencies or omissions are defined in sub- clause (1)(ii) of clause (r) of Section 2(1) as unfair trade practice. If a builder of a house uses substandard material in construction of a building or makes false or misleading representation about the condition of the house then it is denial of the facility or benefit of which a consumer is entitled to claim value under the Act. When the contractor or builder undertakes to erect a house or flat then it is inherent in it that he shall perform his obligation as agreed to. A flat with a leaking roof, or cracking wall or substandard floor is denial of service. Similarly when a statutory authority undertakes to develop land and frame housing scheme, it, while performing statutory duty renders service to the society in general and individual in particular. (emphasis supplied)

6. This Court in LDA case [(1994) 1 SCC 243] further held that when a person applies for allotment of building site or for a flat constructed by the development authority and enters into an agreement with the developer or a contractor, the nature of the transaction is covered by the expression service of any description. The housing construction or building activity carried on by a private or statutory body was, therefore, held to be service within the meaning of clause (o) of Section 2(1) of the Act as it stood prior to the inclusion of the expression housing construction in the definition of service by Ordinance No. 24 of 1993. CC 621/2016 Page 9 of 21

15. Applying the above settled law, in the present complaint also the complainants entered into agreement with the developer for a flat and the dispute relates to deficiency of services on the part of opposite party. Therefore, we are of the view that this commission has both territorial and pecuniary jurisdiction to decide the present complaint. WHETHER THE COMPLAINANTS FALL UNDER THE CATEGORY OF CONSUMER UNDER THE CONSUMER PROTECTION ACT, 1986

16. Section 2(d) of the Consumer Protection Act, 1986 defines consumer as under:- (d) "consumer" means any person who-

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payments, when such services are availed of with the approval of the first-mentioned person; [Explanation: For the purposes of sub-clause (i), "commercial purpose" does not include use by a consumer CC 621/2016 Page 10 of 21 of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self- employment;]

17. We further deem it appropriate to refer to Mehnga Singh Khera and Ors. Vs. Unitech Ltd. as reported in I (2020) CPJ 93 (NC) on this issue, wherein the Honble National Commission has held as under: In the case of the purchase of houses which the service provider undertakes to construct for the purchaser, the purchase can be said to be for a commercial purpose only where it is shown that the purchaser is engaged in the business of purchasing and selling houses and/or plots on a regular basis, solely with a view to make profit by sale of such houses. If however, a house to be constructed by the service provider is purchased by him purely as an investment and he is not undertaking the trading of houses on a regular basis and in the normal course of the business profession or services in which he is engaged, it would be difficult to say that he had purchased houses for a commercial purpose. A person having surplus funds available with him would not like to keep such funds idle and would seek to invest them in such a manner that he gets maximum returns on his investment. He may invest such funds in a Bank Deposits, Shares, Mutual Funds and Bonds or Debentures etc. Likewise, he may also invest his surplus funds in purchase of one or more houses, which is/are proposed to be constructed by the service provider, in the hope that he would get better return on his investment by selling the said house(s) on a future date when the market value of such house (s) is higher than the price paid or agreed to be paid by him. That by itself would not mean that he was engaged in the commerce or business of purchasing and selling the house (s). CC 621/2016 Page 11 of 21

18. We further deem it appropriate to refer to Aashish Oberai Vs Emaar MGF Land Limited reported in I (2017) CPJ 17(NC) wherein it is held as under:

6. .A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house. Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose.

19. The OP has not led any evidence to show that the complainants are engaged in the business of purchasing and selling houses/ plots on a regular basis solely with a view to make profit by sale of such houses. The complainants has stated in Para 5 of the complaint that they are living in a rented accommodation in Jangpura, which is evasively denied by the Opposite Party and also failed to lead any evidence to prove the contrary.

20. In terms of aforesaid discussions, we are of the considered view that the complainants are consumer within the under the Consumer Protection Act, 1986. WHETHER THE PRESENT COMPLAINT IS BAD IN LAW FOR NON-JOINDER OF NECESSARY PARTY

21. The opposite party contended that the present complaint should be dismissed for non-joinder of necessary party as the complainants have CC 621/2016 Page 12 of 21 failed to implead the bank i.e. Corporation Bank from which the home loan was taken by the complainants.

22. On perusal of the record before us, it is clear that the complainants have not claimed any relief against the Corporation Bank in their complaint and the Corporation bank is not a party to the allotment letter executed on 30.08.2012 between the parties. Corporation bank granted home loan to the complainants and thereafter the complainants made payments to the opposite party to discharge its liability with respect to the flat in question. The corporation Bank is not involved in the present complaint as the dispute relates to a delay in handing over possession of the flat by the Opposite party.

23. In terms of aforesaid discussions, the Corporation Bank is not a necessary party in the present complaint and therefore, the complaint is not liable to be dismissed on the ground of non-joinder of necessary party. WHETHER ARBITRATION CLAUSE IN THE AGREEMENT BARS THE JURISDICTION OF THIS COMMISSION?

24. To deal with this issue, we deem it appropriate to refer to Emaar MGF Land Limited vs. Aftab Singh reported in I (2019) CPJ5(SC), wherein the Apex court has held as under:-

55. We may, however, hasten to add that in the event a person entitled to seek an additional special remedy provided under the statutes does not opt for the additional/special remedy and he is a party to an arbitration agreement, there is no inhibition in disputes being proceeded in arbitration. It is only the case where specific/special remedies are provided for CC 621/2016 Page 13 of 21 and which are opted by an aggrieved person that judicial authority can refuse to relegate the parties to the arbitration.

25. Perusing the above settled law, it is clear that if the parties opt for the special remedies provided under the Act, then the judicial authority can refuse to relegate the parties to arbitration. In the present case also, the complainants opted for the special remedies provided under the Consumer protection Act, 1986 and therefore, this commission can refuse to relegate the present case to the arbitration. Hence, there is no bar to the jurisdiction of this commission due to the presence of arbitration clause in the agreement executed between the parties. WHETHER TIME OF DELIVERY IS THE ESSENCE OF THE CONTRACT IN CONSTRUCTION AGREEMENTS

26. The Opposite Party further contended that in construction contracts, time for delivery is never the essence of the contract.

27. On this issue, we deem it appropriate to refer to the case of DLF Homes Panchkula Pvt. Ltd. and Ors. D.S. Dhanda and Ors. reported at I (2019) CPJ 218 NC [upheld by the Honble Supreme Court of India in the case of DLF Homes Panchkula Pvt. Ltd. and Ors. vs. D.S. Dhanda and Ors. Reported at 2019 SCC ONLINE 689] wherein the Honble National Commission has held as under:-

41. The clear sum and substance and import of "---- endeavors to complete construction of the Said Independent Floor within a period of twenty four (24) months from the date of execution of the Agreement---- " in clause 11(a) read in conjunction with "---- compensation @ Rs. 10/- per sq.ft. of the Saleable Area of the said Independent Floor per month for the period of such delay beyond twenty four months----" in clause

15 as evident to a reasonable man of normal CC 621/2016 Page 14 of 21 intelligence is that the builder co. would complete construction and hand over possession of the unit within a period of 24 months from the date of execution of the agreement, and, in case there is some short reasonable delay in offering possession, the builder co. would pay compensation for such short reasonable delay @ Rs. 10/- per sq. ft. of the saleable area of the independent floor per month. That in clause 11(a) the words "subject to all just exceptions" or "endeavours to complete" etc. etc. have been used or that other terms and conditions (albeit 'ifs and buts') have been built into clause 11(a) to (c), and/or clause 14, and/or clause 15, and/or other clauses, does not in any manner take away the import of the proposition intended to be conveyed and understood. And the compensation for delay provided for in clause

15 (Rs. 10 per sq.ft. p.m.) cannot be for an unreasonably protracted period or indefinite; at best it can be for a short period that would appear to be reasonable per se and would be acceptable as such to a reasonable man. The contention forwarded by the builder co. that the various terms and conditions of clause 11(a) to (c), clause 14 and clause 15, read together, imply that delay could for any period beyond 24 months, short or protracted, reasonable or otherwise, and the (self- evidently meagre) compensation for delay provided for in clause 15 could be paid indefinitely for any period above 24 months is misconceived and erroneous. As already stated, the clear import and intent of "--- endeavors to complete construction of the Said Independent Floor within a period of twenty four (24) months from the date of execution of the Agreement----" in clause 11(a) read with the compensation of "- - - @ Rs. 10/- per sq.ft. of the Saleable Area of the said Independent Floor per month for the period of such delay beyond twenty four months----" provided for in clause 15 is that the construction would be completed and the possession handed over not later than 24 months of the execution of the agreement and that for a short reasonable delay beyond 24 months a (somewhat token) compensation would be paid. CC 621/2016 Page 15 of 21 To say that the possession can be delayed indefinitely or unreasonably and a token compensation for delay can be paid indefinitely or for an unreasonably protracted period is misconceived and erroneous. Indefinite or unreasonable delay with token compensation for delay cannot continue ad nauseam, ad infinitum (such situation would be absurd). The builder co.'s contention that 'time is not the essence of the contract' is misconceived and erroneous.

28. We further deem it appropriate to refer to First Appeal No. 348 of 2016 titled as Ajay Enterprises Pvt. Ltd. and Ors. vs. Shobha Arora and Ors. wherein the Hon;ble NCDRC has held as under: under Section 46 of the Indian Contract Act, 1872, the following provision is there:

46. Time for performance of promise, where no application is to be made and no time is specified - Where, by the contract, a promisor is to perform his promise without application by the promisee, and no time for performance is specified, the engagement must be performed within a reasonable time. Explanation - The question "what is a reasonable time" is, in each particular case, a question of fact".

19. From the above provision it is clear that if there is no time limit for the performance of a particular promise given by one party, it is to be performed within a reasonable time. In most of the builder buyer agreements, the period ranges from 24 to 48 months and the most common agreement seems to be for 36 months plus grace period of six months for completion of construction and delivery of possession. If the possession is delivered CC 621/2016 Page 16 of 21 beyond 42 months or beyond 48 months, the deficiency in service on the part of the opposite party shall stand proved.

29. On perusing the aforesaid law, it is clear that there cannot be indefinite or unreasonable delay in handing over the possession of the flat and even if the time of delivery is not mentioned in the agreement, it should be performed within a reasonable time. Therefore, we are not in consonance with the stand taken by the Opposite Party that time of delivery is not essence in construction contracts. DEFICIENCY OF SERVICE

30. Having discussed the maintainability of the present complaint, the question left to adjudicate is whether the Opposite Party is actually deficient in providing its services to the complainants or not. The expression Deficiency of Service has been dealt with by the Honble Apex Court in Arifur Rahman Khan and Ors. vs. DLF Southern Homes Pvt. Ltd. and Ors. reported at 2020 (3) RCR (Civil) 544, wherein it has been 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 CC 621/2016 Page 17 of 21 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.

31. Returning to the facts of the present case, as per the Allotment latter dated 30.08.2012, the Opposite Party had to handover the possession of the said flat to the complainants by June, 2014. However, till date the possession of the flat is not given by the Opposite Party.

32. We deem it appropriate to refer to Aashish Oberai vs. Emaar MGF Land Limited reported in I (2017) CPJ 17 (NC), wherein the Honble National Commission has held as under: I am in agreement with the learned senior counsel for the complainant that considering the default on the part of the opposite party in performing its contractual obligation, the complainant cannot be compelled to accept the offer of possession at this belated stage and therefore, is entitled to refund the entire amount paid by him along with reasonable compensation, in the form of interest.

33. The complainants cannot be expected to wait for an indefinite time period to get the benefits of the hard earned money which they have spent in order to purchase the property in question. (Ref: Fortune Infrastructure v. Trevor D'Lima reported at (2018) 5 SCC 442).

34. Relying on the above settled law, we hold that the Opposite Party is deficient in providing its services to the Complainants as the Opposite CC 621/2016 Page 18 of 21 Party had given false assurance to the complainants with respect to the time for delivery of possession of the flat and kept the hard earned money of the complainant for about 8 years. Moreover, the Opposite Party failed to handover the possession of the said flat to the complainants within the stipulated time period and therefore, the complainants are not bound to take the possession of the said apartment after the stipulated period. The complainants due to the aforesaid default on the part of the Opposite Party prayed for refund of the amount already paid by them.

35. Having discussed the liability of the Opposite Party, the only question left to adjudicate is as to how the complainants are to be compensated for the deficient acts of the Opposite Party. The Opposite Party submitted that the allotment letter dated 30.08.2012 duly protects the rights of the complainants in case of delay in handing over the possession. We deem it appropriate to refer to the relevant clause of the Allotment letter , which states as under:- The company hereby agrees to compensate the Allottee(s) @ Rs. 5.00 psft of super area of unit per month for any delay in handing over the possession of the flat/shop beyond the given period plus grace period of 6 months to cover any unforeseen circumstances.

36. On this issue, we deem it appropriate to refer to Mehnga Singh Khera and Ors. Vs. Unitech Ltd. as reported in I (2020) CPJ 93 (NC), wherein the Honble National Commission has held as under: Payment of a nominal compensation such as Rs. 5/- per square feet of the super area has become the order of the day in contracts designed by big builders and a person seeking to buy an apartment is left with no option but to CC 621/2016 Page 19 of 21 sign on the dotted lines, since the rejection of such a term by him would mean cancellation of the allotment. No reasonable person would volunteer to accept compensation constituting about 2-3% of his investment in case of delay on the part of the builder, when he is made to pay compound interest @18% p.a. for delay on his part in making payment. It can hardly be disputed that a term of this nature is wholly one sided, unfair and unreasonable.

37. Relying on the above settled law, we are of the considered view that aforesaid clause of the Allotment letter dated 30.08.2012 with respect to the payment of compensation by the Opposite Party in case of delay in handing of possession of flat is wholly one sided and unfair to the complainants.

38. In order to adjudicate the quantum of the compensation payable to the complainants, we deem to appropriate to refer to the email dated 25.06.2015, wherein the OP has stated as under:- for those Allottee(s), who wish to shift from Galaxy Tower to the other project on the same terms and conditions for equivalent size unit, such as Eco- Village- I, II, and III, they can submit their request and preference, to our CRM team. Those customers who do not want to continue with the project, their refunds will be dealt as per the terms and conditions of the allotment letter. Refund will be processed along with interest @ 12 @ per Annum.

39. On perusing the aforesaid email, it is clear that the Opposite Party had promised the allottee(s) to refund their money with interest @ 12 % CC 621/2016 Page 20 of 21 p.a in case they dont want to continue with the project. Therefore, we direct the Opposite Party to refund the entire amount paid by the complainants i.e. Rs.25,51,453/- along with interest as per the following arrangement: A. An interest @ 12% p.a. calculated from the date on which each installment/payment was received by the Opposite Party till 09.03.2021 (being the date of the present judgment); B. The rate of interest payable as per the aforesaid clause (A) is subject to the condition that the Opposite Party pays the entire amount on or before 08.06.2021; C. Being guided by the principles as discussed above, in case the Opposite Party fails to refund the amount as per the aforesaid clause (A) on or before 08.06.2021, the entire amount is to be refunded along with an interest @ 15% p.a. calculated from the dat e on which each installment/payment was received by the Opposite Party till the actual realization of the amount.

40. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Party is directed to:- A. Pay the complainant a sum of Rs. 2,00,000/- as cost for mental agony and harassment to the complainant; B. Pay the complainant a sum of Rs. 50,000/- towards the litigation costs of pursuing the present complaint.

41. Applications pending, if any, stands disposed of in terms of the aforesaid judgment.

42. 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 CC 621/2016 Page 21 of 21 uploaded forthwith on the website of the commission for the perusal of the parties.

43. File be consigned to record room along with a copy of this Judgment. (DR. JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (ANIL SRIVASTAVA) MEMBER Pronounced On: 09.03.2021