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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
R.K. Agrawal, President and Dr. S.M. Kantikar, Member
Sanjay Manidhar and Anr. —Complainants
versus
M/s. Emaar MGF Land Ltd. —Opp. Party
Consumer Case No.3525 of 2017
Decided on 15.2.2022
(A) Consumer Protection Act, 1986 – S.21(1)(a)(i) [Consumer Protection Act, 2019 – S.58(1)(a)(i)] – Services – Real Estate – Complaints have been filed for inordinate delay in handing over possession – Complainant booked flat in joint name, whether the Unit in question for commercial purposes and, therefore, do not fall within the purview of Section 2(1)(d) of the Consumer Protection Act, 1986 – Merely stating that the Complainants have purchased the Unit in question for commercial purposes is not sufficient to hold so – Thus, Unit in question has been purchased by both the Complainants in their joint name and the Agreement has also been executed between both the Complainants on First Part and the Opposite Party on the other, the Complaint can be filed either by any one of the Complainants, if the facts and circumstances so warrant, or by both the Complainants and, therefore, there is no requirement on the part of Complainant No.1 to authorize Complainant No.2, who is his wife and co-buyer/allotee, to file the Complaint – Therefore, the Complainants, who have not been handed over possession of the Unit in question, are entitled to file the Complaint at any time before the possession is handed over to them. [Para 11].
(B) Consumer Protection Act, 1986 – S.21(1)(a)(i) [Consumer Protection Act, 2019 – S.58(1)(a)(i)] – Services – Real Estate – Builder Buyer Agreement – as per Clause-15 of the Agreement, the Opposite Party is required to pay delay compensation for the period of delay in handing over possession @ Rs.10/- per sq. ft. per month, whether such clause can be termed as adequate compensation clause – In the facts of present case, compensation is too meagre and cannot be accepted as adequate compensation – Thus, it is well settled by a catena of decisions that such Clauses are not applicable and the Complainants are to be adequately compensated – Therefore, delay compensation of Rs.10/- per sq. ft. per month, which as stated by the Complainants comes out to 1.4% per annum, has been stipulated in the Agreement but too cannot be treated as adequate. Accordingly, the submission of the Opposite Party that the Complainants are entitled to the delay compensation of Rs.10/- per sq. ft. per month and cannot claim beyond the agreed terms and conditions of the Agreement cannot be accepted. While it is well settled that one sided terms and conditions incorporated in the Agreement to Sale favouring the Seller only are not applicable and binding on the Purchaser, we also feel that in the present real estate market conditions as a result of Covid-19 Pandemic the claim of the Complainants for penal interest @ 12% per annum is also on the higher side. [Para 15].
(C) Consumer Protection Act, 1986 – S.21(1)(a)(i) [Consumer Protection Act, 2019 – S.58(1)(a)(i)] – Services – Real Estate – Whether there is deficiency on part of Opposite Party for delay in handing over possession of flats – On facts, there is deficiency in service on the part of the Opposite Party in not handing over possession to the Complainants, as on date possession has not been offered to the Complainants and there is inordinate delay of over 9 years in handing over possession to the Complainants – Hence, they are entitled to a reasonable compensation therefor – Thus, delay compensation is assessed @ 8% simple interest per annum on the amounts deposited by the Complainants from July, 2012 till the date of handing over possession would meet the ends of justice – Complaint is disposed of with a direction to the Opposite Party to handover physical possession of the Unit in question to the Complainants. [Paras 20, 21]
Result: Application disposed off.
ORDER
This Complaint, under Section 21(a)(i) of the Consumer Protection Act, 1986, has been filed by the Complainants, who are the Resale Purchasers/Buyers and have purchased a Residential Unit for their own use from the Original Allottee, against the Opposite Party, namely, Emaar MGF Land Ltd. Though a considerable part-payment of Rs.50,92,397/- towards sale consideration as against the total sale consideration of Rs.72,25,858/- already stands paid by the Complainants and there is inordinate delay over and above the period prescribed for handing over the possession of the Unit in question but they have not been given possession by the Opposite Party.
2. In brief, the facts are that in a Project, namely, “Emerald Hills” of the Opposite Party, which had been launched pursuant to a License, bearing No. 10 dated 21.05.2009, purported to have been obtained by it from the Director, Town and Country Planning, Haryana, for construction and developing a Residential Gated Colony in Sector-65, Gurgaon, Haryana, the Complainants had purchased a Residential Unit, being Unit No. EHF-350-C-GF-017, admeasuring 1750 sq. ft., from the Original Buyer/Allottee. At that time, the Complainants were assured by the Representatives and Brokers of the Opposite Party that the Project would be completed within time and the date committed to the Original Buyer/Allottee for handing over the possession would remain unchanged. The total sale consideration of the Unit was Rs.72,25,858/-, out of which a sum of Rs.50,92,397/- already stands paid by the Complainants. The Opposite Party had acknowledged the Transfer of the Unit to the Complainants and also issued Acknowledgment Letter, authenticating the transfer and crediting/transferring the amount received by the Opposite Party from the Original Allottee/Buyer in the name of the Complainants. The Builder Buyer Agreement dated 28.03.2012 was also executed between the Parties.
3. It is averred that as per the payment plan, which was a Construction Linked Payment Plan, the Complainants have paid regular instalments, which includes extra charges like service tax and interest on delayed payment @ 24% per annum compounded quarterly. While the date of Application was 06.06.2009, the Builder Buyer Agreement was executed between the Parties on 28.12.2009 and, as per the same, the proposed date of possession was 28.03.2012. Some of the Clauses of the Agreement, which the Buyers were made to sign without any modification, were unreasonable and one-sided in favour of the Opposite Party only. There was a substantial gap between the date of application (06.06.2009) and signing of the Agreement (28.12.2009), which had been sent to the Complainants for signature only after paying the application money. The Complainants were told that the Agreement has to be signed as it is and in case it is not acceptable then the allotment will stand cancelled and earnest money will be forfeited.
4. As per Clause 13(a) of the Agreement, the possession was required to be handed over to the Complainants within 27 months from the date of execution of the Agreement and further 3 months’ grace period, provided to the Opposite Party for applying and obtaining the Occupation Certificate, but it has not been delivered till now. The said Clause reads as under:-
“13. Possession
(a) Time of handing over the Possession
Subject to terms of this clause and subject to the Allottee(s) having complied with all the terms and conditions of this Agreement, and not being in default under any of the provisions of this Agreement and compliance with all provisions, formalities, documentation etc., as prescribed by the Company, the Company proposes to hand over the possession of the Independent Floor within 27 months from the date of execution of this Agreement. The Allottee(s) agrees and understands that the Company shall be entitled to a grace period of 3 months, for applying and obtaining the occupation certificate in respect of the Independent Floor and/or
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