Anil Kumar Jain and Ors. Vs. Nexgen Infracon Private Limited - (National Consumer Disputes Redressal Commission) (23 Dec 2019)

Complainants cannot be made to wait indefinitely for delivery of possession, when they had already paid almost entire consideration

MANU/CF/0935/2019

Consumer

Instant Consumer Complaints, under Section 21 read with Section 12(1)(a) of the Consumer Protection Act, 1986 have been filed by the Complainants, the Allottees of Residential Flats/Apartments in a Project to be developed and constructed by the Opposite Party 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.

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 1st February, 2016, has not materialized till date, that the penalty promised in the Allotment Letter for delay in construction beyond 31st December, 2016 has also not been paid, the layout Plan of the Project has been got amended twice making various changes to the Project.

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 re-sale 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 Act, 1986.

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. 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.

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, 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 or seek refund of the amounts paid with reasonable interest. 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.

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. 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.

As the Builder Opposite Party has failed to deliver the possession of the Flats to the Complainants latest by 31st December, 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. Developer are directed to 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 failing which the Builder/Opposite Party shall be liable to pay compensation @ 14% p.a.

Relevant : Emmar MGF Land Ltd. &Ors. vs. Amit Puri - MANU/CF/0317/2015

Tags : DEFICIENCY COMPENSATION ENTITLEMENT