R.K. Agrawal ORDER
R.K. Agrawal, J. (President)
1. All these Consumer Complaints, under Section 21 read with Section 12(1)(a) of the Consumer Protection Act, 1986 (for short "the Act"), have been filed by the Complainants, the Allottees of Residential Flats/Apartments in a Project, namely, "Mahagun Mezzaria"(for short "the Project"), to be developed and constructed by the Opposite Party at Plot No. GH-01/A, Sector 78, Noida, U.P., seeking possession of their respective booked Flats or refund of the amount paid with interest and compensation for the losses suffered by them on account of Unfair and Restrictive Trade Practices adopted and the deficient services rendered by the Opposite Party in not handing over the possession of the allotted Flats/Apartments within the stipulated time.
2. All the Complainants have been allotted their respective flats by the Opposite Party by executing identical "Allotment Letters"; the facts and question of law involved in their cases are similar, inasmuch as physical possession of the allotted Flats has not been handed over within the committed period and almost similar reliefs have been prayed for by all the Complainants.
3. For the sake of convenience, the material facts, enumerated hereinafter, are taken from the Consumer Complaint No. 1605 of 2018 titled as Anil Kumar Jain & Anr. Vs. M/s. Nexgen Infracon Pvt. Ltd. The brief facts as stated in the Complaint are that the Complainants applied for allotment of an Apartment in the Project by paying booking amount of Rs. 10,00,000/- on 31-07-2013, pursuant to which the Opposite Party allotted a Unit to the Complainants, bearing No. 2312 on 23rd Floor of Tower/Block-Milano admeasuring 3430 sq. ft. approximately (hereinafter referred to as the 'Flat'), for a total cost of 1,61,27,631/-, including all additional charges and taxes, vide their Allotment Letter dated 18-09-2013, which also contained the agreed terms & conditions in respect of the Flat. It was stated in the Allotment Letter that the Flat was having 3430 sq. ft. Super Area, but similar Flats were sold to other buyers quoting the Super Area to be 3200 sq. ft. and since the Flat does not have more area as has been shown in the Allotment Letter, the increase in the price of the Flat on account of such arbitrary increase, is liable to be refunded to the Complainants. The Clause 10.4 of the Allotment Letter stated that the Opposite Party shall endeavour to complete the construction of the Flat within a period of 38 months i.e. by 01-02-2016 from the date of completion of raft or on or before 31-12-2012, subject to Force Majeure circumstances as well as timely payment of the total price and other amounts, charges and dues as stated in the Allotment Letter, without any default. It was further stated in Clause 10.4 that if the Opposite Party fails to handover possession even after 48 months i.e. by 31-12-2016 from the date of completion of raft or on or before 31-12-2012, it will pay a sum of 5/- per sq. ft. per month to the Complainants for the delay in handing over the Flat beyond the expiry of 48 months. The Flat was booked by the Complainants under Flexi Payment Plan whereby demands for payments were to be raised by the Opposite Party on reaching specific construction milestones. Complainants paid all the demands, as and when raised, and for the purpose of making such payments, they also raised a Home Loan from the ICICI Bank for an amount of 1,13,00,000/-. It is; however, averred that the Opposite Party raised such demands without achieving certain construction milestones, but the Complainants paid the same to avoid the risk of being declared as defaulter which would have attracted an interest @18% p.a. on the defaulted payments. It is averred that by 16-08-2017, the Opposite Party collected an amount of 1,62,13,825/- from the Complainants, being the total consideration for the Flat. It is further averred that the Complainants booked the Flat on the basis of the commitment made by the Opposite Party that the Project would be developed as per Sanctioned Plan issued by Noida Authority vide their Letter No. Noida/MVN/III-272/504 dated 02-03-2012 in terms of which the Project was to have only 570 dwelling units with Floor Area Ratio (FAR) of 2.75. However, subsequently, the Opposite Party obtained, without taking consent of the buyers, a Revised Sanction Plan vide Letter No. Noida/Mu/Wa/Ni/III-272/553 dated 31-08-2012 and, thereafter, another Revised Sanction Plan vide Letter No. Noida/Mu/Wa/Ni/2016/III-272/888 dated 13-04-2016. Consequently, the FAR was increased from 2.75 to 3.54 in subsequent approvals and numbers of units were increased from 570 to 718, with no change in the area of the Project and promised amenities, thereby downgrading the Project which was declared as a luxury project at the time of booking to a common residential Project, in order to reap higher profits. It is also averred that a demand was raised allegedly on reaching the construction milestone of 'on flooring/internal plaster completion' vide letter dated 25.07.2017, which impliedly meant that the flooring/internal plaster work had been completed before 25.07.2017; however, after completing the said milestone, the Opposite Party alleged that the possession shall be delivered after more than three years from the stipulated date i.e. by 30-06-2019. Subsequently, Opposite Party paid an amount of 17,150/- to the Complainants towards penalty for the month of January, 2017, for the delay in giving possession, allegedly, in terms of Clause 10.4 of the Allotment Letter, which shows the voluntary acceptance on the part of the Opposite Party that it has failed to give possession of the Flat even by 31-12-2016.
4. Further averments has been made that due to change in the layout of the Project, the promised facilities/amenities have been compromised by decreasing the size of internal roads/paths, due to construction of commercial shops for outsiders, few roads/paths were blocked causing inconvenience to the Complainants and other Allottees, decrease in the number of entry and exit gates, reduction in the number of entry/exits to the basement parking, thereby raising issues of security. It is submitted that all these issues have reduced the value of the Flat of the Complainants and Complainants have suffered a loss in the value of the Flat. Raising all these issues, the Complainants along with other Buyers wrote several emails to the Opposite Party. The Opposite Party replied to the said emails on 09-10-2017 giving date of completion of Project as 30-06-2019 and, subsequently, had a meeting with the Allottees and discussed their issues. However, even after a delay of more than two years from the committed date for delivery of possession of the Flat, the possession is yet to be offered. It is also averred that since the construction is still underway, the purpose of the Complainants for booking the Flat has got frustrated. It is also averred that the Stamp Duty Charges for registration in Noida have recently been enhanced from 5% to 7% and had the Flat been offered to the Complainants within the stipulated time, the Complainants would have paid a Stamp Duty of only 5%. The increased Stamp Duty that would be levied now is only because the Opposite Party failed to complete the construction and delayed the completion by more than two years and, seeing the present construction status, the possession is not likely to be offered soon. It is also submitted that the Allotment Letter contained a provision for maintenance charges payable by the Complainants at the rate of 2/- per sq. ft. per month which shall be enhanced by 15% every year. It is averred that the same would give rise to exorbitant maintenance charges in future causing grave financial loss to the Complainants. With these averments, alleging the instances of failure of the Opposite Party to complete the construction and to deliver the possession of the Flat even after collecting total consideration of the Flat; that the Project has been intentionally delayed to gain profit at the cost of the buyers; that the funds collected from the Complainants have been diverted to the other projects by the Opposite Party, that no affirmative time schedule for completion and possession has been given, that the Complainants suffered loss in the value of their Flat, that the Complainants are devoid of their Flat even after paying all their savings for the booked Flat, as deficiency in service/unfair trade practice on the part of the Opposite Party, the Complainants have filed this Complaint praying following directions to the Opposite Party:
(i) to handover possession of the booked Flat to the Complainants, completely in conformity with the Allotment Letter/Brochure/Agreed Drawings/Specifications, for the consideration mentioned therein with all promised additional facilities and to execute the requisite documents within eight months in favour of the Complainants;
(II) to pay interest @12% p.a. on the amount deposited by the Complainants from the promised date of delivery given in the Allotment Letter till the date of actual possession with all necessary documents and common areas and facilities promised initially;
(iii) to pay 6,000/- per day to the Complainants in case of failure to give possession within the time as directed by this Hon'ble Commission;
(iv) to pay compensation to the Complainants if, at the time of giving possession, the Flat and the Project are not found to be in conformity with the Allotment Letter/Brochure/Agreed Drawing/Specification;
(v) to refund the price charged for wrongful and illegal increase in area from 3200 sq.ft. to 3430 sq.ft. of the Flat compared to other buyers of similar flats;
(vi) to refund the wrongfully charged taxes including GST with interest @12% from the date of receipt of such wrongfully charged tax till refund;
(vii) to compensate the Complainants for increase in Stamp Duty from 5% to 7%;
(viii) to increase the maintenance charges maximum by the inflation rate and not by 15% every year;
(ix) to pay compensation of Rs. 5,00,000/- towards mental agony, etc., and costs of litigation of Rs. 1,00,000/-.
5. An alternative prayer under the prayer for possession has been made in all other connected Complaints except the Complaint on hand, for refund of 100% of the total amount deposited with the Opposite Party with interest @18% p.a. from the dates of receipt of each payment till refund, in case the possession, as prayed for, cannot be handed over within eight months or as stipulated by this Hon'ble Commission.
6. Upon notice, the Complaint has been contested by the Opposite Party, Developer, by filing its Written Statement, raising preliminary objections that the real motive of instituting this Complaint by the Complainants is to seek more than the contractual benefits from the Opposite Party; that the Complainants were expecting high speculative gains from the booked Flat, but failed due to depressed Real Estate market; that the Complainants are estopped from pursuing the Complaint in view of regular interaction with the Opposite Party to resolve the issues many of which have been mutually resolved; that the work at Project Site is nearing completion for handing over possession by 30-06-2019, subject to Completion Certificates and Complainants are regularly apprised of the progress; the delay in handing over possession has been purely on account of Force Majeure factors; that the Complaint is not maintainable as Complainants are seeking contrary reliefs ranging from seeking possession of the Flat to refund of the amount paid with interest; that the Opposite Party has already invested the amounts received from the Complainants in the Project and, therefore, there cannot be any refund or cancellation other than as prescribed under the terms of Allotment; that the Opposite Party is most likely to handover possession on or before 30-06-2019 subject to part completion/completion certificates and, therefore, the Complaint is liable to be dismissed as based on no cause of action; that the demand to seek refund of principal amount along with interest when the Project is nearing completion is unjustified and untenable; that Complainants do not fall under the definition of 'Consumers' because they have purchased the Flat for the purpose of resale; that the Opposite Party, despite Force Majeure factors causing delay, offered penalty as per its contractual commitment and is bound to pay penalty as per agreed terms and the Complainants are equally bound to the same terms as they have accepted penalty for one month; that the remaining penalty shall be adjusted as per clause 10.4 of Allotment Letter at the time execution of sale/sub-lease deed.
7. On merits, it is contended that the photographs placed on record show that the Project is nearing completion and the Opposite Party is earnestly engaged to complete the allotted flats including that of the Complainants and have also assigned the date of 30-06-2019 for completion/handing over of possession, subject to unforeseen circumstances. The Opposite Party denied that it gave any assurances contrary to the terms & conditions agreed upon. It is contended that Clause 10.4 should be read in context of due compliance of the terms & conditions of Clause 2 of the terms of allotment which stipulates that time is essence in respect of all payments to be paid by the Allottees including total price and all other amounts, charges, dues, etc.. That there has been delay on the part of the Complainants and other Allottees to make payments as per the Plan opted by them due to which the schedule of progress of work got disturbed. The Project is escalation free and due to delay in timely payment by the Complainants and other Allottees, the material required for construction could not be procured in time, there was delay in making payment to Contractors which has an impact on the progress of work.
8. Attributing the delay to the Force Majeure factors, the Opposite Party contended that the National Green Tribunal vide its order dated 11-01-2013 in the matter of Vikrant Kumar Tongad Vs. Union of India, restricted all builders in Noida and Greater Noida from extracting any quantity of underground water for the purpose of construction which adversely impacted the progress of the Project. Further, the National Green Tribunal, vide its order dated 14-08-2013 in the matter of Amit Kumar Vs. Union of India restricted the construction within 10 kms radius of Okhla Bird Century. By further order dated 28-10-2013 in the said matter, the National Green Tribunal directed that such projects were to be examined by National Board of Wild Life (NBWL) and subject to the decision of NBWL and till the time the clearance of NBWL is obtained, the concerned Authority was directed not to issue Completion Certificates to the Projects. These orders were passed during the construction of the Project. It is further contended that the Contractor, M/s. JMC (India) Ltd., appointed by the Opposite Party for construction of civil structure and finishing work, who was to complete the work within 33 months from the date of commencement i.e. 15-12-2012 continued to cause delay on account of shortage of labour; however, the same Contractor was continued considering the nature of work involved as otherwise it would have led to abandonment of work. The progress of the Project also got delayed due to Government Demonetization policy posing restriction upon availability and distribution of cash, which impacted the payment of salary/wage to the labourers and, in turn, impacted the construction at the site as labourers returned to their native places since Contractors were unable to make payment to them. The delay was further caused due to introduction of GST in July, 2017. The supply of material was seriously disrupted due to imposition of GST and the prices/cost of material escalated due to their short supply. All these factors were beyond the control of the Opposite Party.
9. The Opposite Party has further contended that it is wrong that the Project has been downgraded by obtaining sanction of changes in the layout plan which led to increase in FAR from 2.75 to 3.54. It is submitted that the Allottees have given consent to the Opposite Party as per Clause 4(iv) of the Allotment Letter to carry out construction in case of any change in the FAR and Opposite Party is free to sell such areas without any objections from the Allottees. There has been only an increase of 18 flats as originally 700 flats were proposed/sanctioned by the authority on 31-08-2012 which it has increased to 718 flats on 31-04-2016. The Opposite Party denied that promised common facilities in the project have been compromised due to changes in the layout by decreasing the size of internal roads/paths, construction of shops for outsiders has blocked few roads/paths causing inconvenience to the Allottees raising issues of security. The numbers of entry and exit gates are the same as promised and are as per the approved Plans. There is no loss in the value of the Flat, rather it has been increased. It is submitted that the Project is an ongoing project and has been registered under the RERA Act where commitment of handing over possession is by 30-06-2019 subject to part completion/completion certificate. It is further submitted that had it not been for the Force Majeure factors there would not have been any delay and the Opposite Party is earnestly working to complete the Project which is most likely to be completed by 30-06-2019 subject to part completion/completion certificate. All other allegations made in the Complaint were specifically denied by the Opposite Party praying dismissal of the Complaint with costs.
10. The Complainants have filed their Rejoinder denying all the contentions raised by the Opposite Party in their Written Statement and reiterating the averments made in the Complaint.
11. The Complainants have filed their Evidence by way of Affidavit and Exhibits marked on their behalf are: a copy of the details available on the website of Ministry of Corporate Affairs about the Opposite Party marked as Exhibit C-1/OP, copies of the brochures titled 'Mahagun Mezzaria' by the Opposite Party given at the time of booking of the Flat and being provided to Buyers now marked as Exhibit C-2/OP and Exhibit C-3/OP, copy of the Application for booking of the Flat marked as Exhibit C-4/OP, copy of Allotment Letter dated 18-09-2013 marked as Exhibit C-5/OP, copies of loan documents and letter of the Opposite Party granting permission to mortgage marked as Exhibit C-6/OP, copies of the demand letters and their receipts marked as Exhibit C-7/OP, Exhibit C-8/OP, Exhibit C-9/OP, Exhibit C-10/OP, Exhibit C-11/OP, Exhibit C-12/OP, Exhibit C-13/OP, Exhibit C-14/OP, Exhibit C-15/OP, Exhibit C-16/OP, Exhibit C-17/OP, Exhibit C-18/OP, Exhibit C-19/OP, Exhibit C-20/OP, Exhibit C-21/OP, Exhibit C-22/OP, Exhibit C-23/OP, Exhibit C-24/OP, Exhibit C-25/OP, Exhibit C-26/OP, Exhibit C-27/OP, Exhibit C-28/OP, Exhibit C-29/OP, copy of Sanction Letter issued by Noida Authority vide letter No. Noida/MVN/III-272/504 dated 02-03-2012 marked as Exhibit C-30/OP, copy of second Revised Sanction Plan issued by Noida Authority vide letter No. Noida/Mu/Wa/Ni/III-272/553 dated 31-08-2012 marked as Exhibit C-31/OP, copy of third Revised Sanction Plan issued by Noida Authority vide letter No. Noida/Mu/Wa/Ni/III-272/888 dated 13-04-2016 marked as Exhibit C-32/OP, copy of letter dated 20-04-2017 regarding payment of penalty for the month of January, 2017 marked as Exhibit C-33/OP, copies of communications between the Complainants and the Opposite Party regarding the Project marked as Exhibit C-34/OP.
12. The exhibits marked on behalf of Opposite Party are: copies of bills & statement of sewage treated water lifted by Opposite Party for the period of 2013 to 2018 marked as Exhibit OP-1/1, copies of annexures along with a chart showing substantial price variation/increase in material, annexed with the Written Statement marked as Exhibit OP-1/2, copy of statement of account showing irregular payment made by the Complainants as Exhibit OP-1/3, copy of the certificate issued by IGBC as Exhibit OP-1/4, pictures of the site evidencing that the work at the Project site is nearing completion marked as Exhibit OP-1/5.
13. I have heard the Learned Counsel appearing for the parties at length and also perused the material available on record as well as the Written Arguments.
14. In brief, it is the case of the Complainant that despite payment of the entire sale consideration for the booked Flat, the possession of the same, which was to be delivered by 01-02-2016, has not materialized till date, that the penalty promised in the Allotment Letter for delay in construction beyond 31-12-2016 has also not been paid, that the layout Plan of the Project has been got amended twice on 31-08-2012 and 12-04-2016 making various changes to the Project including addition of commercial shops open to general public raising various concerns including safety and security, that the Complainants have to pay enhanced Stamp Duty from 5% to 7% due to delay in handing over of possession and that the Opposite Party has levied the maintenance charges which shall be enhanced @15% annually.
15. The preliminary objection of the Learned Counsel for the Opposite Party that the Complainants are not 'Consumers' and have booked the Flat for earning high speculative gains is not supported by any documentary evidence. As laid down by this Commission in a catena of judgments that the onus of proof shifts to the Opposite Party to prove that the Complainants have purchased the Flat for the purpose of resale and it is observed that the Opposite Party did not discharge its onus of proof regarding this aspect. Hence it is held that the Complainants are 'Consumer' as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986.
16. It is not in dispute that the construction of the Flat allotted to the Complainants was not complete when this Complaint was filed. The Opposite Party has itself revised the deadline of 30-06-2019 for delivery of possession of the Flat subject to issuance of part completion/completion certificate. In the written arguments filed by the Opposite Party on 10-10-2019, it has been submitted that possession is being handed over to the Allottees in three towers and also offer of possession is being issued to the remaining completed towers and the same has been taken by many of the Allottees and registry has been done for eight flats in the Project. The Opposite Party has also submitted photographs to substantiate the contention. Thus, Opposite Party has shown its willingness and readiness to handover possession to the Complainants as well. The Complainants, in their written arguments, have also sought relief of possession of the Flat along with interest @12% p.a. on the amounts deposited from the date of promised possession till realization. In view of this, the only question which survives for consideration in this case is as to whether the Complainants are entitled to any compensation for the delay on the part of the Opposite Party in offering possession to them and if so, what should be the quantum of compensation which the Opposite Party needs to pay to them.
17. Clauses 2.0, 7.0 and 10.4 of the Allotment Letter on which reliance is placed by the Opposite Party, read as under:
"2.0 The Allottee agrees that time is the essence in respect of all payments to be paid by the Allottee including price and all other amounts, charges, dues as mentioned in this Application/Agreement. No separate letter for payment of installments on the due dates will be issued. It will be obligatory on the part of the Allottee (s) to make the payment on or before the due dates.
7.0 The total price of the flat payable by the Allottee is inclusive of the applicable taxes/fees/levies/cess, etc., prevalent as on 29th February, 2012. The Allottee agrees and undertakes that in addition to total price, the Allottee shall be liable to pay all taxes/fees/levies/cess, etc., to the Company, which are imposed after 29th February, 2012, but before execution of the sub-lease deed in favour of the Allottee and the same shall be charged and paid as follows:-
1. A sum equivalent to the proportionate share of taxes/fees/levies/cess, etc., shall be paid by the Allottee to the Company. The proportionate share shall be the ratio of the saleable area of the Said Apartment to the total saleable area of the Complex, as a whole.
2. < >
The Company shall periodically intimate the Allottee, on the basis of certificates from a chartered engineer and/or a chartered accountant, the amount payable as stated above which shall be final and binding on the Allottee and the Allottee shall make payment of such amount within 30 days of such intimation.
3. Service Tax as applicable shall be paid extra by the Allottees. Any alteration in the Service Tax rates in future shall be accordingly accounted for.
4. Any taxes/fees/levies/cess, etc., on the Complex after execution of the sub-lease agreement shall be payable by the Allottee along with all other Allottees or their subsequent transferees and the Company shall not be responsible for the same. The Allottee shall be liable to pay all the levies and fees on prorate basis as determined by the Company and the determination of the share and demand shall be final and binding on the Allottee.
10.4 Subject to other terms of this Application and the Allotment Letter, including but not limited to Clause 7(b) and timely payment of the total price and other amounts, charges and dues as mentioned in the Application/Allotment Letter without any default, the Company shall endeavour to complete the construction of the said Apartment on or before the expiry of a period of 38 months i.e. by 01-02-2016 from the date of completion of raft or on or before December 31, 2012, whichever is earlier, subject to Force Majeure circumstances. However, if the Company fails to handover the possession even upon expiry of a period of 48 months i.e. by 31-12-2016 from the date of completion of raft or on or before December 31, 2012, whichever is earlier, the Company would pay the allottees a sum of Rs. 5/- per sq. ft./month for the delay attributable to the inability of the Company in handing over the Said Apartment beyond expiry of a period of 48 months i.e. by 31-12-2016 from the date of completion of raft or on or before December 31, 2012, whichever is earlier. Similarly, the Allottee would also be liable to pay holding charges @Rs. 5/- per sq.ft. per month if the Allottee fails to take possession within 45 days from the date of issuance of the offer of possession to the Allottee. Both parties agree and confirm to the rate of Rs. 5/- per sq. ft. per month as just and equitable estimate of the damages provided to the Allottee/Company may suffer and the Allottee agrees that it shall have no other rights/claims whatsoever, provided the Allottee is not in breach of any of the terms of this Application. The adjustment of such compensation shall be made only at the time of execution of sub lease deeds.
That the penalty detailed and stipulated in this para shall be payable only in case the allottee (s) has made timely payment of all due installments as stipulated in the agreed payment schedule. However, in case of any non compliance of agreed payment schedule by the concerned allottees, the stipulated with regard to the payment of the agreed penalty by the developer shall be deemed to have waived off by the allottee (s) and he shall not be entitled to any such payment under and in terms of this allotment letter."
18. Despite use of the words "the Company shall endeavour to complete the construction", I am of the considered opinion that unless prevented by reasons beyond its control, the Opposite Party was under a contractual obligation to complete the construction and handover possession of the apartments within 38 months from the date of completion of raft or on or before December 31, 2012, whichever is earlier. Therefore, the question which arises for consideration in this Complaint is as to whether the completion of the construction of the Flats and offer of possession has been delayed for the reasons beyond the control of the Opposite Party or not.
19. Vide interim order dated 11-01-2013, the National Green Tribunal restrained all the builders of Noida and Greater Noida from extracting any quantity of ground water for the purpose of construction, till the next date of hearing before it. The next date of hearing before the National Green Tribunal fixed was 24-01-2013. The aforesaid order shows that the builders raising construction of 20,000 Sq.Mtr. and above were required to take Environmental Clearance (EC) under the relevant Rules from the Competent Authority in the State Government but said permission had not been taken. If the requisite EC was taken by the Opposite Party, the order passed by the National Green Tribunal did not apply to it. If the Opposite Party was required to take permission from the Competent Authority in the State Government but had not taken such a permission before selling Flats in the aforesaid Project, it is only itself to blame for creating a situation in which the order passed by the National Green Tribunal on 11-01-2013 came to be applied to the Project. Moreover, there is no evidence of the Opposite Party having tried to obtain water for construction purpose from alternative source. If the National Green Tribunal had restrained the Builders from extracting the underground water in Noida/Greater Noida, they were expected to arrange water from the alternative source so as to fulfill their contractual obligation to the flat Buyers. It is not as if no construction took place in Noida and Greater Noida during the period the interim order passed by the National Green Tribunal remained in force. Therefore, if the Opposite Party so wanted, it could have arranged water for construction purpose from the alternative source. There is no evidence of the aforesaid interim order dated 11-01-2013 having been continued by the National Green Tribunal after 24-01-2013 which was the next date of hearing in the aforesaid matter. In any case, it cannot be said that the delay in completion of the project was justified on account of above referred interim order of the National Green Tribunal.
20. The Opposite Party has filed copies of order dated 14-08-2013 and 28-10-2013 passed by the National Green Tribunal in M.A. No. 890 of 2013 and connected matters. Vide order dated 14-08-2013, NOIDA was directed to stop the construction work going on within a radius of 10 kms from Okhla Bird Sanctuary, without prior Environmental clearance or in contravention of the same. The order dated 28-10-2013 shows that the aforesaid order applied to 49 Projects out of which, 15 had already been completed and 7 had not begun. The Tribunal made it clear that its intention on 17-09-2013 was to extend the interim order dated 14-09-2013 to the persons or Builders carrying on construction activity without Environmental clearance or against the provisions of the Environmental clearance. This is not the case of the Opposite Party that no Environmental clearance was required or that it had not obtained such a clearance before it started the construction in this Project. In such a case, the order passed by the National Green Tribunal would not apply to this Project since the scope of the said order was limited to the construction activity being carried out without requisite Environmental clearance or in contravention of the Environmental clearance. If the Opposite Party had commenced construction of the Project in question without obtaining the requisite Environmental clearance or the said construction was in contravention of the Environmental clearance, it has only itself to blame for the said construction being stopped by the National Green Tribunal.
21. Vide above referred order dated 28-10-2013, National Green Tribunal directed that all the Projects within an area of 10 kms radius of the Okhla Bird Sanctuary be examined by National Board for Wild Life. The Ministry of Environment & Forests was directed to refer all the aforesaid Projects to National Board for Wild Life, within four weeks. The Government of UP. was directed to send the particulars relating to the Environmental clearance given to the aforesaid Projects to the Ministry of Environment & Forests within four weeks from the order. Within four weeks thereafter, Ministry of Environment & Forests was to refer the same to the Standing Committee of National Board for Wild Life, which was to verify the correctness of the statement made by the Project Proponent. The order passed by the aforesaid Board was to indicate whether the Project should be permitted or not. It was made clear that the building construction within 10 kms radius of Okhla Bird Sanctuary or within distance of Eco-Sensitive Zone to be prescribed by Ministry of Environment & Forests shall be subject to decision of National Board for Wild Life and till clearance from the said Board, the Authority shall not issue Completion certificate to the Project. Thus, in the aforesaid order dated 28-10-2013, the National Green Tribunal did not stay further construction of the Projects where requisite Environmental clearance had been obtained, and only Completion certificate was withheld till clearance from the National Board for Wild Life.
22. The order of the Tribunal to the extent the issue of Completion certificate was withheld till the clearance from NBWL could not have contributed to the delay in offering possession to the Complainants since the construction not being complete, the stage to obtain the requisite Completion certificate had not reached, by the time the aforesaid order dated 28-10-2013 came to be passed by the National Green Tribunal. In fact, even in the cases where the construction was complete and the Completion certificate had been applied, the Builder could obtain the completion certificate on the Project being cleared by NBWL. If there was a delay on the part of the Government of UP. in sending the particulars relating to the Environmental clearance given to the Project, to the Ministry of Environment & Forests or there was delay on the part of Ministry of Environment & Forests in forwarding the matter to National Board for Wild Life or there was delay on the part of the National Board for Wild Life in completing its enquiry in terms of the order of the National Green Tribunal, the Builder could always approach the said Tribunal for giving appropriate directions to the Government of UP. or Ministry of Environment & Forests or National Board for Wild Life as the case might be. There is no material or even an allegation that the Completion certificate applied by the Opposite Party was delayed or withheld on account of the order of the National Green Tribunal dated 28-10-2013 or 03-04-2014. Therefore, the orders passed by the National Green Tribunal from time to time do not justify the delay in handing over possession to the Complainants.
23. As regards the default of the Contractor, impact of demonetization and implementation of GST, to cause delay on account of shortage of cash for payment to the labour, shortage of labour and material, no documents have been placed on record by the Opposite Party to show that it could not get adequate work force or sufficient building material to complete the construction of the Project within the time stipulated in the Allotment Letter. There is no evidence that the building material or the manpower not being available in the market. There may be a cash crunch for few days, but payments can always be made by direct transfer to the labour or to the materials supplier, through their Bank accounts. It cannot be accepted that the Contractor was unable to make payment to the labour or to the materials supplier since option was available to the Contractor to transfer the payments in the Bank accounts of the labour and materials supplier. Therefore, it cannot be accepted that due to default on the part of the Contractor, demonetization or implementation of GST, the Opposite Party could not arrange adequate labour or building material required for timely completion of the Project.
24. Though the Opposite Party is still ready and willing to hand over the possession of the allotted Flats to the Complainants with the compensation in terms of Clause 10.4 but some of the Complainants are not interested to take possession of the Flats due to delay of more than four years in delivering the possession, change in layout Plan and there being no committed date in the near future of completion of the Project. Therefore, they have sought the refund of the amount paid along with interest and compensation. In Emmar MGF Land Ltd. &Ors. vs. Amit Puri - MANU/CF/0317/2015 : II (2015) CPJ 568 NC, this Commission has held that after the promised date of delivery, it is the discretion of the Complainant whether he wants to accept the offer of possession, if any, or seek refund of the amounts paid with reasonable interest. I am of the view that the Complainants cannot be made to wait indefinitely for the delivery of the possession when they had already paid the almost entire consideration. In such circumstances, it is well within the Complainant's right to seek for refund of the principal amount with interest and compensation.
25. At this juncture, I find it a fit case to place reliance on the recent judgment of the Hon'ble Apex Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan - II (2009) CPJ 34 (SC), wherein the Apex Court has observed as follows:
"6.7. A terms of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the Agreement dated 08.05.2012 are ex-facie one sided, unfair and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder.
7. In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyer's Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent-Flat Purchaser. The Appellant-Builder cannot seek to bind the Respondent with such one-sided contractual terms."
26. I further place reliance on the judgment of the Hon'ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra - MANU/SC/0429/2019 : II (2019) CPJ 29 SC, in which the Hon'ble Apex Court has observed as hereunder:-
".....It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years in beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund.
In the circumstances, we are of the view that the orders passed by the SCDRC and by the NCDRC for refund of moneys were justified."
27. In the instant case also the Complainants cannot be made to wait indefinitely as the possession of the Unit has not been handed over to them so far and the Opposite Party is enjoying the benefits of their hard-earning money deposited with it. Therefore, the Complainants are also entitled for refund of the principal amount with reasonable interest and compensation.
28. The last contention of the learned Counsel for the Opposite Party is that in view of Clause 10.4 of the Allotment Letter, the Opposite Party is required to pay only the agreed compensation to the Complainants and the demand for a higher compensation is contrary to the terms of the Allotment Letter. Relying upon the decision of the Hon'ble Supreme Court in GDA Vs. Balbir Singh - MANU/SC/0282/2004 : 2004 (5) SCC 65, Fortune Infrastructure & Anr. Vs. Trevor D-Lima & Ors - MANU/SC/0253/2018 : 2018 (5) SCC 442 and DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda & Ors.- MANU/SC/0744/2019, it was contended by the Learned Counsel for the Opposite Party that the compensatory reliefs cannot be granted beyond contractual terms. There is no intentional delay in handing over the possession but for the excepted factors because of which the delay cannot be counted and there cannot be introduction of unjustified amounts. The possession is underway which by itself a testimony to the fulfillment of the terms of the contract. Recital of the observation relied upon by the Opposite Party in GDA (supra), is given as hereunder:
"that compensation cannot be uniform and in cases where possession is directed to be delivered the compensation is to be less because in a way that party is being compensated by increase in the value of the property he is getting".
29. In Fortune Infrastructure (supra), the Opposite Party has relied upon the following observation:
"16. Even under the Consumer Protection Act the damages for commercial contracts need to be determined as per the Contract Act.
17. Even under the Consumer Protection Act 1986, the damage for commercial contracts needs to be determined as per the Contract Act. It would be pertinent to know that in common law, claim for damages is the rule and specific performance is an exception while in Civil Law front specific performance has traditionally been a prime remedy for the breach of the contract."
30. The relevant observations relied upon by the Opposite Party in DLF Homes (supra), is reproduced as hereunder:
"the forums under the Act cannot award interest and/or compensation by applying Rule of thumb. The order to grant interest at the maximum rate of interest charged by Nationalised Bank for advancing home loan is arbitrary and no nexus with the default committed. The Appellant has agreed to deliver constructed flats. For delay in handing over possession, the consumer is entitled to the consequences agreed at the time of executing buyer's agreement. There cannot be multiple heads to grant of damages and interest when the parties have agreed for payment of damages at the rate of Rs. 10/- pe sq. ft. per month. Once the parties agreed for a particular consequence of delay in handing over of possession then, there has to be exceptional and strong reasons for the SCDRC/NCDRC to award compensation at more than the agreed rate."
31. The aforesaid contention, in my view, does not really arise for consideration in a case where the Flat Buyer is seeking possession of the Flat booked by him and, alternatively, prays for refund of the sale consideration paid by him, with or without compensation. The primary purpose of a Consumer in booking a residential Flat which the Builder is to construct for him, is to start living in that house on or about the date committed to him by the Builder for delivering possession of the Flat booked by him. If the Builder fails to comply with the contractual obligation and at the same time, is unable to show that the delay in completion of the Flat and offering its possession to the Consumer is on account of circumstances beyond his control, this would constitute deficiency on the part of the Builder/Service Provider in rendering services to the Consumer. If I accept the contention that the Builder can indefinitely postpone and delay the construction of the Flat and the Flat Buyer has no option but to wait till the Builder decides to complete the construction and offer possession to the Buyer, that would be nothing but a travesty of justice and result in a situation where the Flat Buyer is left at the mercy of the Builder, without recourse to an appropriate legal remedy. Such an interpretation, if taken, is bound to defeat the very objective behind the enactment of the Consumer Protection Act, as far as housing construction is concerned. Therefore, I am unable to accept the contention advanced by the learned Counsel for the Opposite Party. In my view, wherever the Builder commits a particular date or time frame for completion of the construction and offering possession to the Buyer, they must necessarily honour the commitment made by them, though a minor delay may not constitute deficiency in the service rendered by them to the Buyer. Of course, if the Builder is able to show that the delay in completion of the construction and offering possession to the Buyer is attributable wholly to the circumstances beyond its control, that may not be a case of deficiency in the services rendered to the Consumer.
32. Even though in the main relief, the Complainants have sought for possession of the Flats/Apartments in these Complaints and alternatively they have claimed refund of the amount deposited by them along with interest and compensation, but as the Builder Opposite Party has failed to deliver the possession of the Flats to the Complainants latest by 31.12.2016, i.e. the stipulated period with grace period in the Agreement and approximately 3 years have passed but the possession has not been given and the Complainants cannot be made to wait for such a long period, they are entitled for refund of the deposited amount along with compensation. Hence, for all the afore-noted reasons, all these Complaints are partly allowed and disposed of along with pending IAs, if any, with the following directions to the Developer to:-
(i) refund the entire amount deposited by the Complainants along with compensation @ 12% p.a. from the respective dates of deposits till the date of realisation, within a period of one month from today failing which the Builder/Opposite Party shall be liable to pay compensation @ 14% p.a. The compensation @ 12% p.a. has been directed to be paid for the reason that the Complainants have taken home loans from the Banks/Financial Institutions for making payment to the Builder/Opposite Party for purchasing the Flats/Apartments in question.
(ii) pay 10,000/- as costs of litigation to the Complainants in each of the Complaints.
33. Before parting, I may make it clear that the interest @12% p.a. on the refund of the amount which has been awarded as compensation is not factually interest on refund and, therefore, there is no question of deducting any tax on source.
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