JUDGMENT PRONOUNCED ON: 15.09.2021 COMPLAINT NO. 926/2016 IN THEMATTER OF RENU MITTAL & ANR. ....COMPLAINANTS VERSUS VARDHMANDEVELOPERS PVT. LTD. ....OPPOSITE PARTY CORAM: HONBLE DR. JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT) HONBLE SH. ANIL SRIVASTAVA, (MEMBER) Present: Mr. S.S. Mittal, Complainant No. 2 in person. Mr. Dharamveer Singh, Counsel for the Opposite Party. PER: HONBLE DR. JUSTICE SANGITA DHINGRA SEHGAL, PRESIDENT JUDGMENT [Via Video Conferencing]

1. The present Consumer Complaint has been filed before this Commission under Section 12 of the Consumer Protection Act, 1986, by Mrs. Renu Mittal & Mr. S.S. Mittal (hereinafter referred to as

Complainants) against Vardhman Developers Pvt. Ltd. (hereinafter referred to as Opposite Party) seeking the following reliefs:- CC 926/2016 Page 2 of 20 A. Direct the Respondent to refund the entire money amounting to Rs. 24,30,453.33 (Rs. Twenty Four Lakhs Thirty Thousand Four Hundred Fifty Three and paise Thirty Three only) as detailed above, along with up to date due interest (from respective dates of payment) @ 24% per annum. B. Direct the Respondent to pay a sum of Rs. 2,50,000/- (Rs. Two Lakhs Fifty Thousand only) on account of opportunity cost because in case the possession of the subject Flat/Floor would have been handed over to Complainants in time, than the same could be utilized for residential purpose or even the same could have been let out. C. Direct the Respondent to pay a sum of Rs. 5,00,000/- (Rs. Five Lakhs Only) on account of damages, mental agony & harassment caused to the Complainants. D. Pass any such other and further order(s) as this Honble Commission may deem, fit and proper in the facts and circumstances of the case.

2. Brief facts necessary for the adjudication of the present complaint are that the Complainants applied for booking of a flat in the Opposite Partys project by the name and style of Vardhman Gardenia located at National Highway No.1, Sector 10, Sonepat. Subsequently, the Complainants were allotted flat bearing No. 101 in Tower C-4, admeasuring 1250 sq.ft. in the Opposite Party s project. The Total sale consideration was agreed between the parties at Rs. 24,66,250/-. The Complainants opted for a time linked payment plan to discharge their liability towards the same.

3. Pursuant to the aforesaid, the Complainants and the Opposite Party entered into a Flat Buyers Agreement (hereinafter referred to as Agreement) on 10.07.2010. The terms of the Agreement provided CC 926/2016 Page 3 of 20 that the possession of the flat was to be delivered within 36 months from the date of start of the foundation of the particular tower along with a grace period of 6 months.

4. The Opposite Party vide email dated 04.03.2011 informed the Complainants about the commencement of construction of Tower C-

4. The terms of the agreement stipulated the possession shall be delivered within 42 months from commencement of construction, hence, the possession was to be delivered within 42 months from this date i.e. on or before 04.09.2014.

5. However, the Opposite Party failed to adhere to the stipulated time for delivery of possession, and hence the Complainants got served a legal notice dated 25.07.2016 upon the Opposite Party and sought refund of the amount deposited along with interest on the amount deposited. The Opposite Party, instead of complying to the aforesaid notice, sent a letter dated 25.07.2016 wherein they informed that the project is nearly completion and possession will be delivered shortly.

6. Thus, left with no other option, alleging deficiency of service and unfair trade practice on the part of the Opposite Party, the Complainants approached this commission.

7. The Opposite Party contested the present case and raised some preliminary objections as to the maintainability of the present complaint and contended (a) that the Complaint has been filed beyond the period of Limitation ; (b) that the present complaint involves complicated question of facts and law which need to be proved by leading detailed evidence, which could only be done before a Civil Court ; (c) that the said flat has been purchased solely for the purpose of investment, merely for Commercial Purpose, hence, the Complainants are not Consumers within the provisions of the CC 926/2016 Page 4 of 20 Consumer Protection Act, 1986 ; (d) that timely delivery of possession is not the essence of the contract ; (e) that the Complainants have failed to establish any kind of deficiency in providing services by the Opposite Party ; (f) that there exists a contract between the parties and both the parties are bound by the terms of the contract with respect to compensation payable. Pressing the aforesaid preliminary objections, the Opposite Party prayed that the present Consumer Complaint should be dismissed.

8. The Complainants filed their Rejoinder rebutting the written statement filed by the Opposite Party. The parties filed their Evidence by way of Affidavit in order to prove their averments on record. After the completion of the pleadings, the Final Arguments were heard.

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

10. The fact that the Complainants had booked a flat with the Opposite Party is not in dispute from the evidence on record. Moreover, in its written statement, the Opposite Party has not denied the receipt of an amount of Rs. 24, 30, 453.33/- paid by the Complainants, hence, the same stands unrebutted.

11. Before delving into the merits of the case, we deem it appropriate to adjudicate preliminary issues as to the maintainability of the Consumer Complaint. PERIOD OF LIMITATION

12. The first and foremost issue to be adjudicated is whether the complaint is within the period of limitation as prescribed in the Consumer Protection Act, 1986. It is imperative to refer to Section 24A of the Consumer Protection Act, 1986 wherein it is provided as under:- CC 926/2016 Page 5 of 20

24A. Limitation period.- (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. (2) Notwithstanding anything contained in sub- section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint as this such period: Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.

13. Analysis of Section 24A of the Consumer Protection Act, 1986 shows that this commission is empowered to admit a complaint if it is filed within a period of 2 years from the date on which cause of action has arisen. We deem it appropriate to refer to Mehnga Singh Khera and Ors. Vs. Unitech Ltd. reported at I (2020) CPJ 93 (NC) wherein the Honble National Commission has held as under:

13. The Opposite Party contested the complaint as being barred by limitation prescribed under section 24(a) of the Consumer Protection Act, 1986 since the last date stipulated in the buyers' agreement for giving possession of the flat expired more than 2 years ago. It is a settled legal proposition that failure to give possession of flat is continuous wrong and constitutes a recurrent cause of action and as long as the possession is not delivered to the buyers, they have every cause, grievance and right to approach the consumer courts. It is only when the seller virtually refused to give possession that the period of limitation prescribed under section 24(A) of the Consumer Protection Act, 1986 would start. The Complainant has to file a case within two years from the CC 926/2016 Page 6 of 20 date of refusal of delivery of possession to the buyer. In the present case, the Opposite Party has not refused possession of the flat to the complainants at any point of time. Therefore, the cause of action continues to subsist in favour of the Complainant.

14. Applying the aforesaid law, in the present case also, since the possession of the flat has not been delivered to the Complainants, the cause of action continues to subsist in favour of the Complainants and the present complaint is within the period of limitation. WHETHER THE CIVIL COURT HAS JURISDICTION - JURISDICTION OF CONSUMER COMMMISSION BARRED?

15. The Opposite Party has also contended that the jurisdiction of this Commission would be barred in view of the fact that the present complaint involves complicated question of facts and law which can only be decided before the Civil Court.

16. The Consumer Protection Act, 1986, came into being in order to protect the interests of Consumers who are effected by the acts of the service providers, who in order to attract the Consumers, tend to make lucrative offers but when it comes to actually providing the offered services, they take a step back.

17. The Consumer Protection Act, 1986 defines a Consumer as follows: (2) (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 CC 926/2016 Page 7 of 20 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 payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes; Explanation. For the purposes of this clause,

commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;

18. Deficiency has been defined under section 2 sub-clause (g) which reads as follows:

(2) (g)"deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;

19. Returning to the facts of the present complaint, the perusal of the record shows that the Complainants entered into an agreement to avail the services of the Opposite Party for a consideration. However, the Opposite Party failed to honour the terms of the agreement, aggrieved by which, the Complainants have sought refund of the amount, due to the delay caused in handing over the possession of CC 926/2016 Page 8 of 20 the flat. Hence, the Complainants are entitled to file the present complaint before this commission since the Complainants are aggrieved by the deficient services of the Opposite Party i.e. the failure of the Opposite Party to handover the possession within the prescribed period.

20. Our view is further fortified by the dicta of Honble Supreme Court in Narne Construction P. Ltd., etc. v. Union Of India and Ors. Etc., reported at AIR 2012 SC 2369, wherein it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression 'service' of any description. Housing construction or building activity carried on by a private or statutory body constitutes 'service' within the ambit of Section 2(1)(o) of the Act and any deficiency or defect in such service would make it accountable before the competent consumer forum at the instance of consumers.

21. Moreover, nothing cogent has been brought on record by the Opposite Party which would reflect that there are such complicated questions involved which could not be settled on the basis of the pleadings filed on behalf of the contesting parties.

22. Consequently, we are of the view that the complaint falls within the four corners of the jurisdiction of this commission and there is no bar with respect to the jurisdiction of this commission to entertain cases related to the refund of the amount paid, due to the delay caused in delivering possession by the Opposite Party. COMPLAINANTS- CONSUMERS OR NOT?

23. The Opposite Party has contended that the Complainants are not CC 926/2016 Page 9 of 20 Consumers as defined under the Consumer Protection Act, 1986 since the flat was purchased for investment, which constitutes commercial purpose.

24. It is imperative to refer to the dicta of the Honble National Commission in CC-1122/2018 titled Narinder Kumar Bairwal and Ors. vs. Ramprastha Promoters and Developers Pvt. Ltd. and Ors. decided on 01.11.2019, wherein, the Honble National Commission has held as under:

19. The contention of the Learned Counsel that the said Apartments were purchased for commercial purpose is not supported by any documentary evidence as the onus shifts to the Opposite Parties to establish that the Complainants have purchased the same to indulge in 'purchase and sale of flats' as was held by this Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31. The Opposite Parties failed to discharge their onus and we hence hold that the Complainants are 'Consumers' as defined under Section 2(1)(d) of the Act.

25. From the aforesaid dicta of the Honble National Commission, it flows that it is for the Opposite Party to prove that the flat purchased was for commercial purpose, by way of some documentary proof and a bald statement is not sufficient to raise adverse inference against the Complainants. It is a well-established principle of evidence that suspicion cannot take place of proof, which is also applicable to the present case.

26. On perusal of the record before us, we fail to find any material which shows that the Complainants are 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. Mere allegation, that the purchase of the property is for commercial purpose, cannot CC 926/2016 Page 10 of 20 be the ground to reject the present consumer complaint. Consequently, the objection raised on behalf of the Opposite Party in answered in the negative. TIME-ESSENCE OF CONTRACT OR NOT?

27. The Opposite Party has further contended that mere delay in handing over the possession of the flat cannot be a ground to repudiate the contract in its entirety since in construction cases, time is not the essence of the contract.

28. The issue as to whether time is the essence of contract or not is no more res integra and has been settled by the Honble National Commission in Mayur Sarafa vs. Raheja Developers Ltd. reported at 2019 SCC OnLine NCDRC 628, wherein, the Honble National Commission, taking into consideration the dicta of the Honble Apex Court in M/S Hind Construction Contractors (supra) has held as under:

6. It is next contended by the learned counsel for the opposite party that time was not the essence of the construction and in the event of delay the purchaser is entitled to the agreed compensation as stipulated in Clause 4.2 of the agreement but he cannot get out of the project and seek refund of the amount paid by him to the developer. I however find no merit in this contention as well. The question as to whether the time is essence of the contract in such cases or no, came up for consideration of this Commission in CC/315/2014 Pradeep Narula & Anr. Vs. M/s. Granite Gate Properties Pvt. Ltd. & Anr. Decided on 23.8.2016, and the following view was taken: "10. Relying upon the decision of the Hon'ble Supreme Court in Smt. Chand Rani Vs. Smt. Kamal Rani, Civil Appeal No. 3377 of 1979, it was contended by the learned counsel for the opposite party that time is not the essence of the contract in a transaction for the sale of an immovable property. In Chand Rani (supra), the Hon'ble Supreme Court inter-alia observed as under: It is a well-accepted principle that in the case of sale of immovable property, time is never regarded as the essence of CC 926/2016 Page 11 of 20 the contract. In fact, there is presumption against time being the essence of the contract. This principle is not in any way different from that obtainable in England. Under the law of equity which governs the rights of the parties in the case of specific performance of contract to sell real estate, law looks not at the letter but at the substance of the agreement. It is not merely because of specification of time at or before which the thing to be done under the contract is promised to be done and default in compliance therewith, that the other party may avoid the contract. Such an option arises only if it is intended by the parties that time is of the essence of the contract. Intention to make time of the essence, if expressed in writing, must be in language which is unmistakable: it may also be inferred from the nature of the property agreed to be sold, conduct of the parties and the surrounding circumstances at or before the contract. Specific performance of a contract will ordinarily be granted, notwithstanding default in carrying out the contract within the specified period, if having regard to the express stipulations of the parties, nature of the property and the surrounding circumstances, it is not inequitable to grant the relief. If the contract relates to sale of immovable property, it would normally be presumed that time was not of the essence of the contract. Mere incorporation in the written agreement of a clause imposing penalty in case of default does not by itself evidence an intention to make time of the essence. In Hind Construction Contractors Vs. State of Maharashtra MANU/SC/0031/1979 : (1979) 2 SCR 1147, the Hon'ble Supreme Court quoted the following extract from Halsbury's Laws of England (para 1179, Vol-IV): Other provisions of the contract may, on the construction of the contract, exclude an inference that the completion of the works by a particular date is fundamental, time is not of the essence where a sum is payable for each week that the work remains incomplete after the date fixed, nor where the parties contemplate a postponement of completion. The aforesaid contention, in my view, does not really rise for consideration in a case where the flat buyer is seeking possession of the flat booked by him and does not insist upon refund of the sale consideration paid by him, with or without compensation. Moreover, the decision in Chand Rani (supra) was rendered in the context of a suit for specific performance of CC 926/2016 Page 12 of 20 an agreement to sell the first floor of an existing house, whereas the decision in the Hind Construction (supra) was rendered in the context of a Government contract. In neither of these cases, the Hon'ble Supreme Court was called upon to decide as to whether an unjustified and explained delay on the part of the builder/service provider in construction of a residential flat booked by a person seeking to have a shelter over his head amount to a deficiency in the service rendered by him to the consumer, or not. The primary purpose of a consumer in booking a residential flat which the builder is to construct for him, is to start living in that house on or about the date committed to him by the builder for delivering possession of the flat booked by him. If the builder does not deliver upon his contractual obligation and at the same time, is unable to show that the delay in completion of the flat and offering its possession to the consumer was on account on circumstances beyond his control, this would constitute deficiency on the part of the builder/service provider in rendering services to the consumer. If I accept the contention that the builder can indefinitely postpone and delay the construction of the flat and the flat buyer has no option but to wait till the builder decides to complete the construction and offer possession to the buyer, that would be nothing but a travesty of justice and result in a situation where the flat buyer is left at the mercy of the builder, without recourse to an appropriate legal remedy. Such an interpretation, if taken, is bound to defeat the very objective behind the enactment of the Consumer Protection Act, as far as housing construction is concerned. Therefore, I am unable to accept the contention advanced by the learned counsel for the opposite party. In my view, wherever the builder commits a particular date or time frame for completion of the construction and offering possession to the buyer, he must necessarily honour the commitment made by him, though a minor delay may not constitute deficiency in the service rendered by him to the buyer. Of course, if the builder is able to how that the delay in completion of the construction and offering possession to the buyer is attributable wholly to the circumstances beyond his control, that may not be a case of deficiency in the services rendered to the consumer."

7. A reasonable delay in a large project of this nature can be very well understood. However in the present case, the delay cannot be said to be the usual delay which can be allowed even in large projects. In the presence case, the delay is more than three years AS the last date for delivery of possession, inclusive of the grace period expired on 05.1.2016 whereas construction is CC 926/2016 Page 13 of 20 not complete even today. Considering such an abnormal delay on the part of the developer, the complainant, in my view, cannot be compelled to wait indefinitely for the possession of the allotted flat. This is more so, when the opposite party is not even offering the possession of the allotted unit to the complainant in a time bound manner, after obtaining the requisite occupancy certificate. Though, the learned counsel for the opposite party submits that the period subsequent to institution of the complaint would not be relevant, I find no merit in the contention since the aforesaid delay would be a relevant circumstance for the purpose of enabling this Commission to decide whether to direct refund or to ask the complainant to wait for the possession of the allotted flat.

29. Returning to the facts of the present case, the perusal of Clause No.

10 (a) of the Flat Buyer Agreement reflects that the Opposite Party undertook to deliver the possession of the flat within 36 months of start of construction of that particular tower. However, the period was extendable up to 6 months as grace period. Once there is an express undertaking by the Opposite Party to deliver the possession within a stipulated time period, it cannot, at a later stage deny its liability and plead that the time period mentioned in the Flat Buyer Agreement was not actually the essence of the contract. The Complainants had made certain assessments on the basis of the promise made by the Opposite Party, to own a flat with the Opposite Party, having deposited their hard earned money, in the near future, which the Opposite Party failed to consider.

30. Consequently, in terms of the pronouncement of the Honble National Commission in Mayur Sarafs (supra) and taking into consideration the facts of the present case, we hold that time was of the essence of the contract in the present case and the Opposite Party was duty bound to handover the possession by September, 2014 (inclusive of the extended time period), which it failed to do. Hence, CC 926/2016 Page 14 of 20 the Complainants are not bound to wait indefinitely for the possession of the flat and was well within their rights to claim refund of the amount deposited by them with the Opposite Party. DEFICIENCY OF SERVICE

31. Having discussed the maintainability of the present complaint, the next issue to be adjudicated is whether the Opposite Party is actually deficient in providing its services to the Complainant. 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 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 CC 926/2016 Page 15 of 20 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.

32. Returning to the facts of the present case, Clause 10 (a) provides that the Opposite Party was duty bound to hand over the possession of the said Flat to the complainant within 42 months (inclusive of the grace period) of the commencement of construction of the particular tower in which the flat was situated. Clause 10(a) is reproduced below for ready reference:-

10(a) The construction of the Flat is likely to be completed within a period of thirty six (36) months from the date of start of foundation of the particular Tower in which the Flat is located with a grace period of six (06) months, on receipt of sanction of building plans/revised building plans and approvals of all concerned authorities including the Fire Service Deptt., Civil Aviation Deptt., Traffic Deptt., Pollution Control Deptt., as may be required for commencing and carrying on construction subject to force majeure, restraints or restrictions from any courts/authorities, non-availability of building materials, disputes with contractors/work force etc. and circumstances beyond the control of the Company and subject to timely payments by the Flat Buyer(s)s. .....

33. However, the Opposite Party has failed to aver in its written statement that the construction of the flat has been concluded. Further, it has been long settled that after the passage of the stipulated period, incorporated in the allotment letter/flat buyers agreement, the Consumer is not bound to accept the offer of possession and is entitled to refund of the amount deposited along with substantial compensation.

34. Consequently, we hold that the Opposite Party is deficient in providing its services to the Complainant since it has failed to CC 926/2016 Page 16 of 20 handover the possession of the flat within the stipulated time period and the Complainant is entitled for the refund of the money deposited by him with the Opposite Party. COMPENSATION PAYABLE- PARTIES BOUND BY CONTRACT?

35. The final contention raised by the Opposite Party is that if the compensation is payable to the Complainant, it should be as per the terms of the Contract entered into between the parties. The Opposite Party has contended that the Complainant is entitled for compensation only as per Clause 10 (C) of the Flat Buyers Agreement. For ready reference, the same has been reproduced as below:

10 (c). In case of delay in construction of the Flat beyond the period as stipulated subject to force majeure and other circumstances as aforesaid under sub-clause (a) above, the Company shall pay to the Buyer(s) compensation @ Rs.53.80 (Rupees Fifty Three & Paisa Eighty only) per sq. meter or @ Rs.5/-per sq.ft. of the super area of the Flat per Month for the period of delay. Likewise, if the Buyer(s) fails to settle the final account, execute sale deed and take possession of the Flat within 30 days of the final call notice by the Company, the Buyer(s) shall be liable to pay to the Company, Holding charges @ Rs. 53.80 per sq. meter or @ Rs.5/- per sq. ft. of the super area of the Flat per month on expiry of 30 days notice along with all other dues on the said Flat..

36. We also deem it appropriate to refer to Clauses 6(a) and (b) of the Flat Buyer Agreement, the same have been reproduced below:-

6(a). Timely payment of the installments of the basic price and other charges shall be the essence of this Agreement. It shall be incumbent on the Buyer(s) to make timely payments and to comply with other terms and conditions of this Agreement. If payment is not made within the period stipulated and or the Buyer(s) commits breach of any of the terms and conditions of this CC 926/2016 Page 17 of 20 Agreement, then this Agreement shall be liable to be cancelled and the Buyer shall be left with no lien on the said Premises/Flat. The company shall thereafter be free to deal with the said premises/ Flat in any manner, whatsoever, at its sole discretion. In the eventuality of cancellation, earnest money being 15% of the basic price would be forfeited and the balance, if any, would be refundable without interest. On cancellation of the Agreement, the Buyer(s) shall also be liable to reimburse to the Company the amount of brokerage paid, if any, by the Company towards the booking of the Flat by the Buyer(s). In any case, all the dues, whatsoever, including interest, if any, shall be payable before taking possession of the Flat by the Buyer(s). 6(b). In exceptional circumstances, the Company may, in their sole discretion, condone the delay in payment by charging interest at the rate of 24% per annum on the amount in default but shall not be bound to do so. In the event of the Company waiving the right of forfeiture and accepting payment with interest, no right, whatsoever, would accrue to any other defaulting Flat Buyer(s).

37. The reliance of the Opposite Party on the aforesaid clause for grant of compensation, limited to the extent as provided in it, is wholly misconstrued in terms of a series of judgments of the Honble Apex Court wherein it has been held that the Developer cannot compel the apartment buyers to be bound by the one-sided contractual terms contained in the Apartment Buyer's Agreement, the most recent on being Ireo Grace Realtech Pvt. Ltd. vs. Abhishek Khanna and Ors. reported at AIR 2021 SC 437 wherein it has been held as under:

19.5. In a similar case, this Court in Wg. Cdr. Arifur Rahman Khan and Ors. v. DLF Southern Homes Pvt. Ltd. affirmed the view taken in Pioneer (supra), and held that the terms of the agreement authored by the Developer does not maintain a level platform between the Developer and the flat purchaser. The stringent terms imposed on the flat CC 926/2016 Page 18 of 20 purchaser are not in consonance with the obligation of the Developer to meet the timelines for construction and handing over possession, and do not reflect an even bargain. The failure of the Developer to comply with the contractual obligation to provide the flat within the contractually stipulated period, would amount to a deficiency of service. Given the one-sided nature of the Apartment Buyer's Agreement, the consumer fora had the jurisdiction to award just and reasonable compensation as an incident of the power to direct removal of deficiency in service. 19.6. Section 14 of the 1986 Act empowers the Consumer Fora to redress the deficiency of service by issuing directions to the Builder, and compensate the consumer for the loss or injury caused by the opposite party, or discontinue the unfair or restrictive trade practices. 19.7. We are of the view that the incorporation of such one- sided and unreasonable clauses in the Apartment Buyer's Agreement constitutes an unfair trade practice Under Section 2(1)(r) of the Consumer Protection Act. Even under the 1986 Act, the powers of the consumer fora were in no manner constrained to declare a contractual term as unfair or one-sided as an incident of the power to discontinue unfair or restrictive trade practices. An "unfair contract" has been defined under the 2019 Act, and powers have been conferred on the State Consumer Fora and the National Commission to declare contractual terms which are unfair, as null and void. This is a statutory recognition of a power which was implicit under the 1986 Act. In view of the above, we hold that the Developer cannot compel the apartment buyers to be bound by the one-sided contractual terms contained in the Apartment Buyer's Agreement.

38. In the present case, the perusal of the Flat buyers Agreement reflects that nominal compensation @Rs. 5 per sq. ft. is payable to the Complainants by the Opposite Party if there is delay of any sort by the latter party. However, if the Complainants delay in the payment of the principle amount as well as the ancillary charges, the CC 926/2016 Page 19 of 20 Complainants are bound to pay an interest @ 24% p.a. for the period of delay. Hence, there is no parity between the quantum of compensation payable as per the Flat Buyers Agreement by the Complainants and the Opposite Party.

39. In terms of the aforesaid discussion, we are of the view that the Complainants cannot be made bound to a nominal compensation @ Rs. 5 per sq. ft. and the case calls for the payment of just and reasonable compensation as per the aforesaid dicta of the Honble Apex Court. CONCLUSION

40. Keeping in view the facts of the present case, we allow the following reliefs as prayed for by the Complainant:

I. We direct the Opposite Party No.1 to refund the amount of Rs. 24, 30, 453.33/- along with interest as per the following arrangement: A. An interest @ 6% p.a. calculated from the date on which each installment/payment was received by the Opposite Party till 15.09.2021 (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 30.11.2021; C. In case the Opposite Party No.1 fails to refund the amount as per the aforesaid clause (A) on or before 30.11.2021, the entire amount is to be refunded with an interest @ 9% p.a. calculated from the date on which each installment/payment was received by the Opposite Party till the actual realization of the amount. CC 926/2016 Page 20 of 20

II. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Party No.1 is also directed to pay to the Complainant A. A sum of Rs. 1,00,000/- as cost for mental agony and harassment; B. And the litigation cost to the extent of Rs. 50,000/-.

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 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: 15.09.2021