NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
R.K. Agrawal, President and Dr. S.M. Kantikar, Member
Kshitij Jain and Anr. —Complainants
versus
Emaar MGF Land Ltd. —Opp. Party
Consumer Case No.386 of 2020
Decided on 4.2.2022

Headnote:

(A) Consumer Protection Act, 1986 – S.21 [Consumer Protection Act, 2019 – S.58] – Services – Real Estate – Compliant filed for alleged delay in handing over possession – Whether the Complainants are ‘Consumers’ as defined under 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. Therefore, Complainants are ‘Consumers’ as defined under Section 2 (1)(d) of the Consumer Protection Act, 1986. [Para 14].

(B) Consumer Protection Act, 1986 – S.21 [Consumer Protection Act, 2019 – S.58] – Services – Real Estate – Whether Complainants are liable to pay for the increased area – If for certain reason (restructuring of the Project) the area of the Unit in question is increased, it would certainly result into increase in the cost of the same and the Complainants may also have to incur some further amount therefor – Thus, fact remains that water in the river has already flown to a great extent and the Occupation Certificate has also been received by the Opposite Party on 25.01.2018. Once the Complainants take possession of the Unit in question, it will be used by them in toto. Now, the increased area cannot be split from the total area and, therefore, the Complainants are required to pay for the increased area. [Para 16].

(C) Consumer Protection Act, 1986 – S.21 [Consumer Protection Act, 2019 – S.58] – Services – Real Estate – Whether Complainants have right to seek compensation for delayed possession – Complainants are within their rights to claim compensation for the delay in delivery of possession. [Paras 17 and 23].

Held: The entire sale consideration already stands paid by the Complainants and if any other amount remains to be paid by the Complainants that shall be a petty amount and, therefore, it cannot be said that there was any major default on the part of the Complainants in making the payment and accordingly they are not entitled to claim any delay compensation.

(D) Consumer Protection Act, 1986 – S.21 [Consumer Protection Act, 2019 – S.58] – Services – Real Estate – Whether the Complainants should be granted interest @ 15% per annum on the amounts deposited by them for the delay in handing over possession as also the terms of Clause-16 of the Agreement dated 14.09.2010, wherein the Opposite Party is required to pay penalty in the nature of liquidated damages @ Rs.5/- per sq. ft. per month in case of delay in offering possession beyond the stipulated date – In view of the prevailing market condition as a result of Covid-19 Pandemic, while the interest claimed by the Complainants is too high, the delay compensation @ Rs.5/- per sq. ft. per month for the period of delay (which the Opposite Party has agreed to and given to the Complainants for the period from October, 2013 to March, 2018 along with Early Payment Rebate, as reflected in the Statement issued by the Opposite Party) is too meagre. [Para 18]

(E) Consumer Protection Act, 1986 – S.21 [Consumer Protection Act, 2019 – S.58] – Services – Real Estate – Force Majeure clause invoked on the ground that delay in construction work by the existing Contractors, appointment of new Contractors for completing the affected work, and various orders of the Courts/National Green Tribunals etc – the issues relating to disputes between the existing Contractors and the Opposite Party and the appointment of new Contractors for completing the affected work are the internal affairs of the Opposite Party, the Complainants have nothing to do with the same – Thus, it is for the Opposite Party to take steps for resolving the said internal issues and completing the Project in time – Further, no details of any of any order passed by any Court of law have been given by the Opposite Party, in the absence of which it cannot be ascertained how the Project was affected because of this reason. [Para 20].

(F) Consumer Protection Act, 1986 – S.21 [Consumer Protection Act, 2019 – S.58] – Services – Real Estate – Whether deficiency of service can be attributed on the part of OP having failed to handover possession within time stipulated – In the facts of the present case, there is deficiency in service on the part of the Opposite Party in not handing over possession by October, 2013. There is inordinate delay in handing over possession to the Complainants and they are entitled to a reasonable compensation therefor – Opposite Party has agreed to pay and already credited delay compensation to the Complainants for the period from October, 2013 to March, 2018, though @ Rs.5/- per sq. ft. per month, the Complainants shall be entitled to the delay compensation right from October, 2013 – Compliant is disposed off. [Paras 24, 25].

Result: Compliant is allowed.