Judicial Analysis Court Copy Headnote Facts Arguments Court observation

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
R.K. Agrawal, President
Ramesh Thangarajan and Ors. —Complainants
versus
Sylvanus Builders & Developers Ltd. and Ors. —Opp. Parties
Consumer Case No.2036 of 2017, Consumer Case No.2037 of 2017, Consumer Case No.2038 of 2017, Consumer Case No.2112 of 2017, Consumer Case No.2117 of 2017, Consumer Case No.2118 of 2017, Consumer Case No.2119 of 2017, Consumer Case No.2120 of 2017, Consumer Case No.2121 of 2017, Consumer Case No.2122 of 2017, Consumer Case No.2153 of 2017, Consumer Case No.2155 of 2017, Consumer Case No.3747 of 2017 and Consumer Case No.576 of 2018
Decided on 14.3.2022

Counsel for the Parties:
For the Complainants:Mr. Sushil Kaushik, Ms. Himanshi Singh and Mr. Karan S. Negi, Advocates
For the Opp. Parties:Mr. Gopal Jain, Sr. Advocate, Mr. Lakshmneesh S. Kamath, Ms. Jagruti D. and Ms. Nikhar Luthra, Advocates

IMPORTANT POINT
(1) Unreasonable delay – in a case of an unreasonable delay in offering possession of the allotted flat, the consumer cannot be compelled to accept possession at a belated stage and is entitled to seek refund of the amount paid by him to the builder with compensation.

Headnote:
(A) Consumer Protection Act, 1986 – S.21 [Consumer Protection Act, 2019 – S.58] – Services – Real Estate – Complaints have been filed alleging deficiency in service in not handing over the possession of the Villa within stipulated period and seeking either possession with delayed compensation or refund of amount deposited by them along with reasonable interest and compensation – Builder Buyer Agreement – as per Clause 6 of the Agreement, in case of delay the Opposite Party Builder is liable to pay 1% of the amount received per month for the period of delay subject to maximum of 3% in offering of possession, whereas in terms of Clause 21 in case of late payment, the Complainant/Buyer is liable to pay interest @18% p.a. – Whether agreement can be said to be one sided – On facts, the terms of the Agreement are wholly one-sided and unfair. Therefore, the Complainant cannot be made bound to the terms of the Agreement, which is one-sided and unfair. [Para 16].
(B) Consumer Protection Act, 1986 – S.21 [Consumer Protection Act, 2019 – S.58] – Services – Real Estate – Plea by OP builder that Complainant defaulted in making payment which resulted delay – Whether can be sustained – As far as the plea that the Complainants defaulted in making timely payment, which resulted delay in possession is concerned, the OP Builder could arrange the fund from the Open market and could have exercised options available under the terms of the Agreement, i.e., either to cancel the Agreement or charge delay interest. The OP Builder cannot take shelter under the lame excuse that the Complainant defaulted in making payment which resulted delay. [Para 17].
(C) Consumer Protection Act, 1986 – S.21 [Consumer Protection Act, 2019 – S.58] – Services – Real Estate – Complaints have been filed alleging deficiency in service in not handing over the possession of the Villa within stipulated period and seeking either possession with delayed compensation or refund of amount deposited by them along with reasonable interest and compensation – In the present cases, it is not in dispute that the Complainants were allotted the Villa in the year 2013 and the proposed date for delivery of the possession was December 2015. On perusal of the record, it is revealed that in certain cases, the intimation of possession has been sent only in the year 2017. From the perusal of the pictures and the report of the Architect, extracted above, it is evident that the Villas were not in habitable condition even by May 2017, hence, it can be safely concluded that the Villas were not ready for Possession by May, 2017 – Therefore, complaints are entitled for refund of the entire deposited amount along with damages and compensation in the form of simple interest @9% p.a. from the respective date of deposit till the date of payment – Thus, Opposite Parties are directed to refund the entire amount deposited by the respective Complainants along with simple interest @9% p.a. from the respective dates of deposit till the date of realization within three months. [Paras 22 to 25].
Result: Appeal allowed.

ORDER

R.K. Agrawal, President.—The bunch of present Consumer Complaints has been filed under Section 21 of the Consumer Protection Act, 1986 (for short “the Act) by the Complainants/Purchasers of the Villas under the name and style “Pacifica Aurm” proposed to be developed at Pacific Aurum Pandur, OMR Road, Chennai, Tamil Nadu (hereinafter to be referred as the Villa), by Sylvanus Builders and Developers Ltd., (hereinafter referred to as the Opposite Party Builder), inter alia, alleging deficiency in service in not handing over the possession of the Villa within stipulated period and seeking either possession with delayed compensation or refund of amount deposited by them along with reasonable interest and compensation.

2. Since all the Complainants have entered into identical Undivided Share of land and Construction Agreements (hereinafter referred to as the “Agreement”) with the Opposite Parties; the facts and question of law involved in all the cases are similar except minor variation in the dates, and almost similar reliefs have been prayed for, these Complaints are being disposed off by this Common Order. However, for the sake of convenience, CC No. 2118 of 2017 is treated as the lead case and the facts enumerated hereinafter are taken from CC No. 2118 of 2017.

3. It has been averred in the Complaint that in the year 2011, Opposite Party No. 1, Sylvanus Builders & Developer Limited and Opposite Party No. 2 Pacifica (Chennai) Infrastructure Company Private Ltd. (hereinafter referred to as the OP Builder) launched a Group Housing Colony under the name and style of “Pacifica Aurum” (hereinafter referred to as the Project) in Padur, OMR Road, Chennai, Tamil Nadu. Allured by the exaggerated advertisement and the assurances given by the authorised representatives of the OP Builder that there would be club, shopping complex, sports complex, amphitheater, hospital and every modern facilities in the Project and the physical Possession would be handed over within two years of the booking, the Complainant booked a Villa for residential purpose in the said Project for a total sale consideration of Rs.1,03,59,118.73ps. (Rupees One Crore Three Lacs Fifty Nine Thousand One Hundred Eighteen and paisa seventy three only) by paying a sum of Rs.1,00,000/- towards booking amount on 13.05.2013. The total sale consideration of the Villa was inclusive of (i) basic sale price, (ii) total sale consideration of UDS of land (iii) infrastructure charges, (iv) club membership charges, (v) TNEB/CMWSSB charges and (vi) maintenance charges in advance for two years. It was assured that the possession of the Villa would be delivered by 3.12.2015. Undivided Share of land Agreement/Agreement to sell and Construction Agreement (hereinafter referred to as the Agreements) were executed between the Parties on 10.09.2013. It was alleged that the terms and conditions of the Agreements were unfair, one-sided and only in favour of the OP Builder. Clause 22 of the Agreement reads as under:-

“22. In Case, the undivided share of the land in the Schedule “C” Property had already been conveyed to the customer(s) at such point in time, the customer(s) shall, at the Customer(s) cost and expense re-convey the same to the developer and/or to any person nominated by the Developer for a sale consideration equivalent to the amount for which the same was originally purchased by the Customer(s) or for the amount that is held by the Developer in the account of the Customer(s) in excess of the said liquidated damages, whichever is less. The Customer(s) agrees that in any event the first charge over the Property in schedule “D and E” shall be in favor of the Developer only. And the customer(s) shall not be entitled to claim anything by way of compensation, damage, liquidated or otherwise, or specific performance form the Developer.”

4. As per Clause 6 of the Construction Agreement, the construction of the Villa was to be completed by 30.06.2015 with a grace period of 6 months. Clau

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IMPORTANT POINT (1) Unreasonable delay – in a case of an unreasonable delay in offering possession of the allotted flat, the consumer cannot be compelled to accept possession at a belated stage and is entitled to seek refund of the amount paid by him to the builder with compensation.

Cases Referred (2)

IMPORTANT POINT
(1) Unreasonable delay – in a case of an unreasonable delay in offering possession of the allotted flat, the consumer cannot be compelled to accept possession at a belated stage and is entitled to seek refund of the amount paid by him to the builder with compensation.