NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
R.K. Agrawal, President and Dr. S.M. Kantikar, Member
Nishant Saini and Anr. – Complainants
versus
SS Group Private Limited and Ors. – Opp. Parties
Consumer Case No.1306 of 2016
Decided on 18.3.2021

IMPORTANT POINT
For failure of delivery of possession of flats within the stipulated, refund of amount directed.

Headnote:

Consumer Protection Act, 1986 – Sections 21 and 2(1)(g) : [Consumer Protection Act, 2019 – Sections 58 and 2(11)] – Allotment of Flat – Delay in delivery of possession – Refund of amount – Scope – Complainants booked a flat on 5.6.2012 as developed by opposite parties – Possession was to be delivered to the complainants on or before 15.9.2015 – Opposite parties had failed to deliver the possession as committed despite receiving the amount of Rs. 1,11,32,379, out of total compensation of Rs. 1,26,72,000/- – Therefore, complainants found entitled to refund of amount deposited – Therefore, opposite parties directed to refund the entire principal amount received from the complainants alongwith compensation in the form of simple interest @ 9% p.a. – Further directions also issued.

Held: I have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties and examined the record. The admitted fact is that the possession was due on 30.5.2015 and the occupancy certificate has been obtained on 17.10.2018. Clearly, there is a huge delay in the project. Letter of offer of possession was issued on 22.11.2018. The complainants have not accepted offer of possession as the complainants have already given a notice for cancelling the agreement as per clause 8.3 (b) of the agreement. Now, the question arises as to when the opposite parties have agreed to have a clause like 8.3(b) in the agreement and if the complainants have acted in accordance with this clause, the opposite parties should also have acted in compliance of this clause. Even this Clause 8.3 (b) seems one sided because the complainants’ money is already blocked and if the same is not returned till the unit in question is sold to a third party, this is clearly prejudicial to the interest of the consumer. The interest @ 15% is only payable when the flat is sold to a third party and the money is not refunded within 90 days from that sale. All these conditions are totally one sided and they are the result of the dominant position of the builder at the time of signing the builder-buyer agreement because by that time lot of money of the complainants is already blocked with the builder.

The main reason for delay in completion of the project has been told to be due to delay in obtaining environmental clearance for the project. Though, this may not be directly within the control of the opposite parties to get the clearance, however, the clear procedures are laid down and it depends on the management of the builder company how efficiently and meticulously they pursue the environmental clearance with the competent authority. Thus, this cannot be considered as force majeure, therefore, the delay on account of this factor cannot be excluded from the total delay in the project. Hon’ble Supreme Court in Civil Appeal No.12238 of 2018 titled as “Pioneer Urban Land & Infrastructure Ltd. versus Govindan Raghavan” has upheld the order of this Commission.

It is submitted by the learned Counsel appearing for the Complainants that the order passed by the Co-ordinate Bench of this Commission has not been challenged by the Opposite Parties in Appeal before the Hon’ble Supreme Court and as such it has attained finality. Accordingly, following the decision rendered by a Coordinate Bench of this Commission in the aforesaid case, we dispose of both the Complaints and direct the Opposite Parties to refund the entire principal amount received from the Complainants alongwith compensation in the form of simple interest @ 9% p.a as awarded by the Coordinate Bench in the aforesaid case, from the respective dates of deposit till the actual date of payment together with costs of Rs.25,000/- to the Complainants in both the cases. The aforesaid directions shall be complied with within a period of eight weeks from the date of receipt of a copy of this order failing which the amount shall carry interest @ 11% p.a. for the same period. (Paras 12 to 15)

Result: Complaint Allowed.