Compensation awarded for delayed possession of apartment, unfair practices found. Justifications for delay deemed insufficient.

The complainants sought compensation for delay in possession of a residential apartment. The Commission held the opposite party liable for delay and directed payment of compensation at 10% per annum from the committed possession date until actual possession. Unfair trade practices were found due to one-sided clauses in the agreement. The opposite party's justifications for delay were deemed insufficient. The complainants were awarded a cost of litigation. The opposite party was instructed to complete construction and offer possession by a specified date, failing which execution could be sought under the Consumer Protection Act.

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Issues Involved:
1. Delay in possession of the apartment.
2. Compensation for delay.
3. Unfair trade practices.
4. Clauses in the Apartment Buyers Agreement.
5. Time as the essence of the contract.
6. Justification for delay.
7. Compensation for mental harassment and rental accommodation.
8. Cost of litigation.

Detailed Analysis:

1. Delay in Possession of the Apartment:
The complainants booked a residential apartment in a project named 'Lotus Panache' and entered into an Apartment Buyers Agreement on 29.06.2010. The opposite party was to complete the construction within 39 months from the date of allotment, meaning possession was to be delivered by 27.09.2013. However, possession was not offered by this date, and the deadline was extended multiple times, causing the complainants to seek redressal for the delay.

2. Compensation for Delay:
The complainants sought compensation for the delay in possession, including interest at 18% per annum on the amount already paid, delay charges as per the agreement, damages for mental harassment, and compensation for rental accommodation. The Commission held that the complainants are entitled to compensation for the delay. The opposite party was directed to pay compensation in the form of simple interest at 10% per annum from the committed date of possession until the date possession is offered.

3. Unfair Trade Practices:
The complainants accused the opposite party of engaging in unfair trade practices. The Commission found merit in the complainants' submission that the term providing for nominal compensation in the event of delay was one-sided, unfair, and unreasonable. Such practices were deemed to constitute unfair trade practices under Section 2(r) of the Consumer Protection Act, 1986.

4. Clauses in the Apartment Buyers Agreement:
The opposite party relied on clauses 5.1, 5.2, and 5.5 of the Buyers Agreement to argue that they were only to endeavor to complete the construction within the stipulated time and that delays due to reasons beyond their control should not attract damages. However, the Commission held that unless prevented by reasons beyond its control, the opposite party was under a contractual obligation to complete the construction and hand over possession within 39 months.

5. Time as the Essence of the Contract:
The opposite party contended that time is not the essence of the contract in transactions involving the sale of immovable property, citing the Supreme Court's decision in Smt. Chand Rani Vs. Smt. Kamal Rani. The Commission, however, distinguished this case from the present context, emphasizing that the primary purpose of booking a residential flat is to start living in it on the committed date. Therefore, unjustified delays constitute a deficiency in service.

6. Justification for Delay:
The opposite party cited several reasons for the delay, including a shortage of manpower and materials due to the Commonwealth Games, agitation by farmers, and restrictions by the National Green Tribunal. The Commission found that these reasons were not substantiated with adequate evidence. The delay could not be justified based on these grounds.

7. Compensation for Mental Harassment and Rental Accommodation:
The complainants also sought damages for mental harassment and compensation for rental accommodation. The Commission directed the opposite party to pay Rs. 10,000 as the cost of litigation but did not specifically address the quantum of damages for mental harassment and rental accommodation in the detailed order.

8. Cost of Litigation:
The opposite party was directed to pay Rs. 10,000 as the cost of litigation to the complainants.

Conclusion:
The complaint was disposed of with the following directions:
- The opposite party shall complete the construction, obtain all requisite approvals, and offer possession of the flat by 31.01.2017.
- The opposite party shall pay compensation in the form of simple interest at 10% per annum from the committed date of possession until the date possession is offered.
- If the opposite party fails to deliver possession and pay compensation, the complainants can seek execution of the order under Section 25 & 27 of the Consumer Protection Act.
- The opposite party shall pay Rs. 10,000 as the cost of litigation to the complainants.

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