NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
V.K. Jain, Presiding Member
Shri Satish Kumar Pandey and Anr. —Complainants
versus
M/s. UNITECH Ltd. Through its Managing Director —Opp Party
Consumer Complaint Nos. 427, 428, 430, 432-433, 435 to 440, 453 to 456, 465 to 468, 474-475, 490 & 502 of 2014
Decided on 8.6.2015

IMPORTANT POINT
Failure to deliver possession being a continuous wrong it constitutes a recurrent cause of action.

Headnote:(A) Consumer Protection Act, 1986—Sections 2(1)(r) and 12—Real estate—Booking of Apartments—Buyer’s Agreement—Unfair trade practice—Non-delivery of possession of flats—Delay in handing over possession of apartments could also be justified if there was to be a new legislation, regulation or order suspending, stopping or delaying construction of complex and apartments—Neither any new legislation was enacted nor an existing rule, regulation or order was amended stopping suspending or delaying construction of complex in which apartments were agreed to be sold to complainants—There is no allegation of any lock-out or strike by labour at the site of project—There is no allegation of any slow-down having been resorted to by labourers of opposite party or contractors engaged by it at the site of project—There was no civil commotion, war, enemy action, terrorist action, earthquake or any act of God which could have delayed completion of project within time stipulated in Buyers Agreement—No material has been placed on record by OP that despite trying, it could not be get labourers to complete construction of project within time stipulated in Buyers Agreement—Parties are bound by terms and conditions of contract voluntarily agreed by them and it is not for a Consumer Forum or even a Court to revise said terms—Since delay in construction of apartments could not be justified by OP, it is required to pay compensation to flat buyers—Opposite party has not even claimed that entire amount recovered by it from flat buyers was spent on this very project—This gives credence to allegation of the complainants that their money has been used elsewhere—Such a practice constitutes unfair trade practice—Instead of paying nominal compensation of Rs.5/- per square foot of super area, opposite party should pay adequate compensation to complainants which would not only take care of additional financial burden on them on account of delay in construction of flat but will also give some compensation to them for harassment and mental agony which they have suffered all along—In order to ensure that opposite party does honour revised date of delivery of possession; compensation in form of interest at a rate higher than 12% per annum should be paid by opposite party if revised date of delivery of possession is not honoured by opposite party. (Paras 7 to 11, 13, 22 and 23)

       (B) Consumer Protection Act, 1986—Section 12—Real estate—Booking of Apartments—Buyer’s Agreement—Non-delivery of possession of flats—A term of contract will not be final and binding if it is shown that consent to said term was not really voluntary but was given under a sort of compulsion on account of person giving consent being left with no other choice or if said term amounts to an unfair trade practice—No sensible person will volunteer to accept compensation constituting about 2-3% of his investment in case of delay on part of contractor when he is made to pay 18% compound interest if there is delay on his part in making payment—Term of this nature is wholly one sided, unfair and unreasonable—Builder charges compound interest @ 18% per annum in the event of delay on part of buyer in making payment to him but seeks to pay less than 3% per annum of capital investment in case he does not honour his part of contract by defaulting in giving timely possession of flat to buyer—Such term in Buyer’s Agreement also encourages builder to divert funds collected by him for one project, to another project being undertaken by him. (Paras 11 and 12)

       (C) Consumer Protection Act, 1986—Section 2(1)(d)—Consumer complaint—Maintainability—Commercial purpose—If a person is residing in a government accommodation and does not immediately need to occupy a residential flat and let it out in interregnum till he retires and has to vacate government accommodation it cannot be said that residential accommodation is acquired by him for a commercial purpose—Objective behind acquiring accommodation is to live in it, though on a future date—Mere postponement of date on which purchaser has to shift to residential accommodation does not convert the purpose for which accommodation is acquired to a commercial purpose. (Para 15)

       (D) Consumer Protection Act, 1986—Section 24-A—Consumer complaint—Limitation—Failure to deliver possession being a continuous wrong it constitutes a recurrent cause of action—So long as possession is not delivered to him buyers can always approach Consumer Forum—It is only when seller flatly refuses to give possession that period of limitation prescribed in Section 24A of Consumer Protection Act would began to run—In that case complaint has to be filed within two years from date on which seller refuses to deliver possession to buyer—Presently, opposite party did not refuse possession of flats to complainants at any point of time and cause of action continues to subsist in favour of complainants. (Para 17)

       (E) Consumer Protection Act, 1986—Section 3—Consumer complaint—Maintainability—Alternative remedy—Availability of arbitration as a remedy does not debar complainant from approaching consumer forum in a case of deficiency in services rendered to him by service provider or adoption of unfair trade practices by him—Provision of Consumer Protection Act are in addition to other remedies available to a consumer. (Para 18)