IMPORTANT POINT
Builder cannot be penalised when there is no fault, shortcoming or inadequacy in quality, nature and manner of performance on his part.

JUDGMENT :

Abhay S. Oka, J.

FACTUAL MATRIX

1. This is a statutory appeal under Section 23 of the Consumer Protection Act, 1986. This appeal takes exception to the final judgment and order dated 29th April 2021 of the National Consumer Disputes Redressal Commission, New Delhi (for short, ‘the National Commission’). The appellants are the complainants before the National Commission. By the impugned judgment and order, the National Commission has dismissed their complaint.

2. It is necessary to set out relevant factual aspects which are necessary for the disposal of the appeal.

3. The third appellant is a member of the Bar. On 27th January 2013, the third appellant booked a two-bedroom flat in the project of the respondent-Company, called Garden Isles. According to the case of the appellants, the construction of the flat was inordinately delayed. When the appellants visited the office of the respondent-Company in January 2015, the officials of the respondent-Company suggested to the appellants that the booking of the said flat can be cancelled and the appellants can book an apartment in Imperial Court – Tower-1 in the project known as Jaypee Greens, NOIDA. The officials of the respondent-Company suggested to the appellants that the amount of consideration paid by the third appellant while booking the earlier flat can be adjusted towards the consideration of a flat in Jaypee Greens. The appellants accepted the suggestion. Accordingly, an allotment letter dated 11th July 2015 was issued by the respondent-Company in the name of the appellants in respect of Unit Reference No.IMP0128A4, having an approximate covered area of 3072.48 sq. ft. (for short, ‘the said apartment’). The agreed consideration was Rs.2,77,91,313/- (Rupees two crore seventy-seven lakh ninety-one thousand three hundred and thirteen). According to the case of the appellants, the possession of the said apartment was agreed to be handed over to them within a period of 24 months from the date of the allotment letter.

4. The case of the appellants is that they were granted a loan by ICICI Bank (for short, ‘the said Bank’). Apart from the other documents, the said Bank executed Quadripartite Agreement dated 9th December 2016. The appellants, the respondent-Company, Jaypee Infratech Limited (as the confirming party), and the said Bank were parties to the said agreement. The agreement records that the loan amount shall be disbursed by the said Bank directly to the respondent-Company, which will be adjusted towards the consideration payable in respect of the said apartment. Accordingly, the consideration earlier paid by the third appellant in respect of the apartment booked in the Garden Isles project was transferred towards the consideration payable in respect of the said apartment to the respondent-Company. The respondent-Company addressed a letter to the appellants on 24th October 2016 stating therein that the said apartment was ready for pre-possession formalities and for handing over the possession to the appellants. In the said letter, the respondent-Company mentioned that the completion certificate dated 20th July 2016 has been issued by the concerned authority. The letter recorded that though the area of the apartment mentioned in the allotment letter was 3724.67 sq. ft of super area, in fact, the area of the said apartment has been increased by 3.98 sq. ft of super area. By the said letter, the appellants were called upon to deposit a sum of Rs.1,82,26,309.30. The respondent-Company, by the said letter, called upon the appellants to make the payment of the said amount on or before 23rd November 2016 and complete all the pre-possession formalities, which would enable the respondent-Company to carry out final finishing work and to handover possession of the said apartment within a period of 45 days from the date of making the payment. Annexure-A to the said letter incorporated details of the pre-possession formalities required to be completed by the appellants for the exec