TaxTMI 
TaxTMI 
2016 (8) TMI 1457
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.... within 39 months from the date of allotment, meaning thereby that the possession was to be delivered to them by 27.09.2013. The possession however, was not offered to the complainants by that date and they were informed that the possession will not be given before July 2014. The aforesaid deadline was later extended till 31.12.2014. Being aggrieved from the failure of the opposite party to honour its contractual obligation and alleging deficiency on its part in rendering services to them, the complainants are before this Commission seeking the following reliefs: a) Hold the opposite parties guilty of following unfair trade practices and restrain them from following such activities; and b) Direct the opposite parties to immediately hand over possession of the apartment worth Rs. 91,05,278/- to the complainants on payment of the final installment amount; and c) Direct the opposite parties to pay interest @ 18% per annum on the account of delay, calculated on the amount already paid by the complainants (i.e. Rs. 88,52,757/-), till the time the possession of the apartment is handed over to the complainants; and d) Direct the opposite parties to pay delay charges of approximate....
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....nts are ready to wait even till January 2017, and are not seeking refund of the amount paid by them, the only question which arises 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. 4. Clause 5.1, 5.2 and 5.5 of the Buyers Agreement on which reliance is placed by the opposite party, reads as under: 5.1 Subject to Clause 5.2, the sanction of the building plans for the Housing Project (including revisions thereof), and to all the buyers of the apartments in the Housing Project making timely payment the company shall endeavor to complete the construction of the apartment within 39 months from the date of the allotment of the apartment as per the allotment letter. 5.2 The parties agree and acknowledge that where the completion of the construction of the apartment and/or the handing over of the possession of the apartment is delayed by any reasons, beyond the control of the company, including without limitation force majeure, then no claim whatsoever by way ....
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....onwealth Games the opposite party could not arrange adequate labour or building material required for the timely completion of the project. In any case, the said games concluded in the year 2010 itself. 6. As regards delay of about two months on account of agitation by farmers, there is no evidence of the work at this particular site having been halted by the farmers. No affidavit of the contractor engaged by the opposite party for the construction of Tower-29 of the project has been filed to prove that he had to halt the work for about two months on account of agitation by farmers. No affidavit by any construction labourer has been filed to prove that the labourers were provided by farmers from carrying out construction on the site of Tower-29, for about two months. Therefore, the delay in completion of the construction on account of the alleged agitation by the farmers could not be substantiated by the opposite party. 7. 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 heari....
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....een 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. 9. Vide above referred order dated 28.10.2013, National Green Tribunal directed that all the projects within an area of 10 kms....
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....ional 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 U.P. or Ministry of Environment & Forests or National Board for Wild Life as the case might be. In its affidavit dated 20.07.2016, the opposite party has inter-alia stated that they had applied for completion certificate in respect of Tower-29 on 09.12.2014. However, 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. 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 proper....
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....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 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 unab....
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....rms of the Buyers Agreement, to which the complainants had voluntarily agreed. A similar contention came to be considered by this Commission in CC No. 427 of 2014, Satish Kumar Pandey & Anr. Vs. Unitech Ltd. and connected matters decided on 08.06.2015 and the following view was taken : 10. Since the delay in construction of the apartments could not be justified by the OP, it is required to pay compensation to the flat buyers. The contention of the learned counsel for the OP is that such compensation has to be calculated @ Rs.5/- per sq. ft. of the super area of the apartment for the period of delay in offering the possession beyond the period indicated in clause 4.a.i of the Buyers Agreement, the complainants having agreed to the aforesaid term while agreeing to purchase the apartments. This was also the contention of the learned counsel for the OP that the terms of the contract are binding on the parties and cannot be altered by a consumer forum. The learned counsel for the complainant on the other hand, submitted that since they are required to pay interest to the OP @18% p.a. compounding quarterly, in the event of delay ....
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....ot really voluntary but was given under a sort of compulsion on account of the person giving consent being left with no other choice or if the said term amounts to an unfair trade practice. It was submitted by the learned counsel for the complainants that the term providing for payment of a nominal compensation such as Rs. 5/- per square foot of the super area having become the order of the day in the contracts designed by big builders, a person seeking to buy an apartment is left with no option but to sign on the dotted lines since the rejection of such term by him would mean cancellation of the allotment. He further submitted that a person seeking to acquire a built up flat instead of purchasing a plot and then raising construction on it, therefore, is not in a position to protest resist the inclusion of such a term in the Buyer's Agreement, and has to rely upon the reputation of the builder, particularly if he is a big builder such as Unitech Ltd. He also submitted that the format of the Buyer's Agreement is never shown to the purchasers at the time of booking the apartment and if he refuses to sign the Buyer's Agreement on the format provided by th....
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.... 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 recovered by it from the flat buyers was spent on this very project. This gives credence to the allegation of the complainants that their money has been used elsewhere. Such a practice, in my view, constitutes unfair trade practice within the meaning of Section 2(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practice for the purpose of selling the product of the builder. Though, such a practice does not specifically fall under any of the Clauses of Section 2(r) (1) of the Act that would be immaterial considering that the unfair trades, methods and practices enumerated in Section 2(r) (1) of the Act are inclusive and not exhaustive, as would be evident from the use of word "including" before the words "any of the following practices". 13. Though in Satish Kumar Pandey (supra), this Commission had awarded compensation in the form of interest @ 12% per annum, considering the recent decline in the cost of borrowing and return on the inves....