TaxTMI 
TaxTMI 
2015 (6) TMI 330
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....2014, 474/2014, 475/2014 and 502/2014, the apartments were initially allotted to some other persons, from whom they were later purchased by the concerned complainants. However, there was no change in the date stipulated in the Buyers Agreement for delivery of possession of the flat. The grievance of the complainants is that neither the possession of the apartments has been given to them nor is the construction complete though the last date stipulated in the Buyer's Agreement for delivery of the possession to them has already expired more than 2 years ago. The complainants are, therefore, before this Commission seeking delivery of the possession of the flats agreed to be sold to them or in the alternative payment of current market value of such houses which is stated to be Rs. 10,000/- per sq. ft. They are also seeking payment of compensation on account of loss of rental income to them with effect from the stipulated date of possession, compensation @Rs. 5/- per sq. ft. as per the agreement entered between the parties and compound interest @18% p.a. with effect from the stipulated date of possession. The complainants are also seeking compensation on account of their mental torture, ....
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....31st Jul-17 D-1 - D-2 31st Oct -17 31st Dec-17 C-1 to C-3 31st Dec-17 28th Feb.-18 The opposite party also offered to pay compensation at the revised rate, i.e., Rs. 13/- per sq. ft., after expiry of the revised date of possession. Yet another condition imposed in the said letter is that post-15.06.2015, the transfree or nominees of the existing allottees shall not be eligible for the revised penalty of Rs. 13/- per sq. ft. per month. It is also stated in the aforesaid letter that if possession is delayed beyond the above-mentioned time limits, revised penalty shall be Rs. 13/- per sq. ft. per month. 5. During the course of hearing, the learned counsel for the complainants stated, on instructions, that the complainants are not interested in taking refund of the money paid by them to the opposite party and they want to have possession of their respective flats even if the said possession is to be delivered in terms of the revised date of possession indicated in the above-referred letter of opposite party. In view of the aforesaid statement, the only question which survives for consideration in these complaints is as to what interest/compensation sho....
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.... developer, the developer shall be liable to pay." 7. It would thus be seen that but for the exceptional circumstances mentioned in Clause 4.a.ii, the opposite party was required to hand over the possession of the apartment to the flat buyers within 36 months from the date of signing the agreement with them. The exceptional circumstances which could justify delay in hand over the possession of the apartments were:- (a) Lock-out (b) Strike (c) Slow-down (d) Civil Commotion (e) War, enemy action, terrorist action, earthquake or act of God and (f) any reason or circumstance beyond the control of the developer. The delay in handing over the possession of the apartments could also be justified if there was to be a new legislation, regulation or order suspending, stopping or delaying the construction of the complex and the apartments. 8. Neither any new legislation was enacted nor an existing rule, regulation or order was amended stopping suspending or delaying the construction of the complex in which apartments were agreed to be sold to the complainants. There is no allegation of any lock-out or strike by the labour at the s....
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....he opposite party promised possession in 36 months. There is no evidence of the opposite party having invited tenders for supply of bricks and water and there being no response to such tenders. In fact, if the work is to be executed through contractors/sub-contractors, the material such as bricks, sand and even water will be arranged by the contractor/sub-contractor and not by the opposite party. As noted earlier, there is no evidence of the opposite party having invited tenders after awarding the work of project in question to the contractors/sub-contractors and there being no response to such tenders. Therefore, I find no merit in the plea that the completion of the project was delayed due to non-availability of water, sand and bricks in adequate quantity. As regards common-wealth games projects work, on those projects was complete before the games were held in October 2010. The project in question on the other hand was required to be completed in phases, beginning end of 2012, i.e., more than 2 years after the aforesaid games were concluded. In any case, it has been more than 4 ½ years since common-wealth games were held and even today the project in question is far from ....
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....y to establish exception in a suit. When a party to the contract disputes the binding nature of the signed document, it is for him to prove the terms in the contract or circumstances in which he came to sign the documents need to be established. It is true, as contended by Mr. M.N. Krishnamani, that in an appropriate case the Tribunal without trenching upon acute disputed question of facts may decide the validity of the terms of the contract based upon the fact situation and may grant remedy. But each case depends upon its own facts". In PUDA Vs. Mrs. Shabnam Virk II (2006) CPJ 1(SC), it was stated in an advertisement issued by PUDA that the price quoted therein was purely tentative based on the then cost of construction and was likely to be revised on the higher side by the time houses were completed. The respondent before the Hon'ble Supreme Court challenged the demand of the additional cost raised by PUDA. The demand however, was upheld noticing the aforesaid clause in the advertisement. However, a term of a contract, in my view will not be final and binding if it is shown that the consent to the said term was not really voluntary but was given under a sort of compulsion o....
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.... that a term of this nature is wholly one sided, unfair and unreasonable. The builder charges compound interest @ 18% per annum in the event of the delay on the part of the buyer in making payment to him but seeks to pay less than 3% per annum of the capital investment, in case he does not honour his part of the contract by defaulting in giving timely possession of the flat to the buyer. Such a term in the Buyer's Agreement also encourages the builder to divert the funds collected by him for one project, to another project being undertaken by him. He thus, is able to finance a new project at the cost of the buyers of the existing project and that too at a very low cost of finance. If the builder is to take loan from Banks or Financial Institutions, it will have to pay the interest which the Banks and Financial Institutions charge on term loan or cash credit facilities etc. The interest being charged by the Banks and Financial Institutions for financing projects of the builders is many times more than the nominal compensation which the builder would pay to the flat buyers in the form of flat compensation. In fact, the opposite party has not even claimed that the entire amount recove....
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.... Rs. 5/- per square foot of the super area is unjust and exploits the complainants. It is also alleged that the opposite party has been utilizing the money of the complainants for its own purposes. Therefore, it would not be correct to say that the complaints lack pleadings which would make out a case of adoption of unfair trade practice on the part of the opposite party. I therefore, have no hesitation in holding that instead of paying nominal compensation of Rs. 5/- per square foot of the super area, the opposite party should pay adequate compensation to the complainants which would not only take care of the additional financial burden on them on account of the delay in construction of the flat but will also give some compensation to them for the harassment and mental agony which they have suffered all along and are likely to suffer atleast for some more time on account of the opposite party having not delivered the possession of the flat to them by the date stipulated in the Buyer's Agreement. 14. As noted earlier, the cost of the borrowing for individual home buyers is about 10% per annum though it had gone upto 11.5% in last few years. In my view, if the opposite party, pay....
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....g, trading or rendering services. In the case of the purchase of houses which the service provider undertakes to construct for the purchaser, the purchase can be said to be for a commercial purpose only where it is shown that the purchaser is engaged in the business of purchasing and selling houses and / or plots on a regular basis, solely with a view to make profit by sale of such houses. If however, a house to be constructed by the service provider is purchased by him purely as an investment and he is not undertaking the trading of houses on a regular basis and in the normal course of the business profession or services in which he is engaged, it would be difficult to say that he had purchased houses for a commercial purpose. A person having surplus funds available with him would not like to keep such funds idle and would seek to invest them in such a manner that he gets maximum returns on his investment. He may invest such funds in a Bank Deposits, Shares, Mutual Funds and Bonds or Debentures etc. Likewise, he may also invest his surplus funds in purchase of one or more houses, which is/are proposed to be constructed by the service provider, in the hope that he would get better ....
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....ement for giving possession of the flat to them expired more than two years ago the complaint is barred by limitation prescribed in Section 24A of the Consumer Protection Act. It is by now settled legal proposition that failure to deliver possession being a continuous wrong it constitutes a recurrent cause of action and, therefore, so long as the possession is not delivered to him the buyers can always approach a Consumer Forum. It is only when the seller flatly refuses to give possession that the period of limitation prescribed in Section 24A of the Consumer Protection Act would began to run. In that case the complaint has to be filed within two years from the date on which the seller refuses to deliver possession to the buyer. However, in the present cases the opposite party did not refuse possession of the flats to the complainants at any point of time and, therefore, the cause of action continues to subsist in favour of the complainants. Reliance in this regard may be place upon the decision of the Hon'ble Supreme Court in Meerut Development Authority Vs. M.K. Gupta, IV(2012) CPJ 12 where the Hon'ble Supreme Court held that in such a case the buyer has a recurrent cause for fil....
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....e date on which the possession is actually handed over to them. The persons who purchased the flats within one year of the initial allotment, ought to be treated at par with the initial allottees, because atleast two more years being still available to the opposite party at the time of purchase by them, they could not have anticipated that the builder will not be able to honour its commitment, as regards the stipulated date of delivery of possession. No separate compensation for the mental agony, harassment and suffering needs to be paid by the opposite party to the complainants. However, in the case of those complainants who acquire the flats by way of resale more than one year after the initial allotment, the opposite party should pay compensation in the form of simple interest at the rate of 12% per annum with effect from three years from the date of the repurchase till the date on which the possession is delivered to them. As in other cases no compensation would be payable for the first three years from the date of initial allotment of the flat. For the interregnum i.e. between three years from the date of initial allotment and three years from the date of repurchase by them, c....
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....sured them that it would give possession to them by the original date stipulated in the agreement. Such persons therefore cannot be treated at par with the original allottees or those who acquired the allotment within one year of the initial allotment. 20. It was contended on behalf of the complainants that they should be awarded compound interest at the rate of 18% per annum, which was the rate at which they were to pay interest to the builder, in the event of default on their part in making timely payment. I however, find no merit in the contention. The opposite parties admittedly did not agree to pay compounded interest to the complainants @ 18% per annum in case they were not able to hand over possession of the apartments within the time stipulated in the agreement. In such a case, the complainants would be entitled only to compensation commensurate with the financial loss actually suffered by them on account of the delay on the part of the opposite parties in handing over possession of the apartments to them and some compensation for the mental agony claimed by them on account of the delay in getting possession of the flats, but, they cannot seek to make a windfall over and....