IMPORTANT POINT
One sided contract term – The Builder cannot seek to bind the Buyers with such one-sided contractual terms.

ORDER

Binoy Kumar, Member.—The First Appeal No. 34 of 2020 has been filed by M/S Shipra Estate Limited and Jai Krishan Estate Developers Private Limited (hereinafter referred to as “the Opposite Parties”) under Section 19 of the Consumer Protection Act, 1986 (for short “the Act”) assailing Order dated 11.11.2019 passed by the Hon’ble State Consumer Disputes Redressal Commission, Lucknow (hereinafter to referred as “the State Commission”), in the Complaint No. 108 of 2011, whereby the Complaint filed by the Complainant was partly allowed.

2. Brief facts of the case as narrated in the Complaint are that the Complainants/Respondents (Mr. R.S. Talwar and Mrs. Nimmi Talwar and Others) booked a Flat (hereinafter referred to as “the Unit”) on 05.01.2007 in the Project ‘Shipra Krishna’ of the Opposite Parties/Appellants situated in Ahinsa khand, indirapuram, Ghaziabad, Uttar Pradesh by depositing Rs.1,00,000/- as booking amount. Thereafter, the Appellants vide allotment letter dated 13.02.2007 allotted flat no. Maulsari-101, 1st floor to the Complainants. The total consideration of the Unit was fixed at Rs.47,06,500/- which included the costs of parking as well. The Appellants demanded additional amount of Rs.8,41,300/- as allotment money to be deposited within 30 days from the date of issue of allotment letter.

3. The Complainants/Respondents submitted that as per clause 9 of the allotment letter dated 13.02.2007, the Opposite Parties/Appellants undertook to complete the construction within 22 months from the commencement of construction. The relevant portion of clause 9 of the allotment letter reads as under:

“the construction of the building is likely to be completed within 22 (Twenty two) months from the date of commencement of construction. The date of commencement of construction shall be informed by the Developer”

4. The Complainants/Respondents stated that the Opposite Parties/Appellants have not intimated them about the date of commencement of construction work. The Appellants verbally informed them that the construction commenced in January 2007. The Respondents stated that they have always been very regular in making payments of the installments except in one payment of Rs.1,25,000/- which was returned due to return of cheque by the bank for the reason “Drawer’s Signature Differ”. The Respondents replaced the same with another cheque dated 26.06.2007.

5. The Complainants/Respondents stated that after having paid the entire sale consideration to Opposite Parties/Appellants, they visited the site in September 2008 and were shocked to see that the construction was not completed even after lapse of 33 months from the promised date of possession i.e. October, 2008. In view of delay in delivery of possession of the Unit the Respondents sent legal notice dated 08.10.2008, notice dated 04.11.2009 and notice dated 12.02.2011 and demanded the Appellants to pay delay compensation but the Opposite Parties failed to pay the delay compensation.

6. The Complainants/Respondents submitted that the Opposite Parties/Appellants, vide letter dated 22.08.2009 admitted to the delay in construction and informed them that they will pay discount @5 per sq. ft. from January, 2009 to July, 2009 and @7% per annum from August, 2009 onwards on the amount paid by them to the Appellants.

7. As per the Complainants/Respondents averments, the aforesaid acts, on the part of the Opposite Parties/Appellants, amounted to deficiency in service. When the grievance was not redressed, the Complainants/Respondents filed a Complaint before the State Commission, Lucknow, with the following prayer to direct the Opposite Parties :-

Part I

i. to pay Compensation @5/- per sq.ft. of the super area of the flat per month as provided in clause 11 of the Allotment Latter No. 461 dated 13.02.2007 together with cumulative interest @21% per annum since 01.11.2011 for the period of delay in handing over possession of the flat to the Complainants till the time that the possessio