IMPORTANT POINT
Right to Compensation - The right of the consumer to be compensated for inordinate delay in the offer of possession of a residential apartment booked by them due to inordinate delays by builders when the complainants are bonafide consumers who have duly paid the instalments and waited for the promise of allotment to fructify.

ORDER

Subhash Chandra, Presiding Member—This complaint has been filed under Section 21 of the Consumer Protection Act, 1986 (in short, the ‘Act’) is filed by the complainants alleging deficiency in service and unfair trade practice on account of deficiency in service and unfair trade practices, seeking possession or in the alternative, refund of the amount deposited along with penal interest and other compensation in respect of the flat booked by them with the opposite party viz., M/s Cloud 9 Projects Pvt. Ltd., in a project promoted and developed by it.

2. Briefly, the facts of the case are that the complainants had booked a flat in a residential Group Housing project “Lotus Boulevard – Espacia Housing Project” (in short, ‘project’) promoted and developed by the Opposite party located at Sector 100, Noida, Uttar Pradesh for their residential purpose. The booking was originally in the name of their son (‘Original Allottee’) on 24.12.2009. An offer of allotment letter was issued by the opposite party to the original allottee on 10.03.2010 allotting apartment no. 1402 in Tower 37, admeasuring 237.83 sq ft for a total sale consideration of Rs.93,88,600/-. As per clause 5.1 of the Agreement, possession was promised to be given in 39 months with three months of grace i.e. by 10.06.2013.

3. Despite the complainants having regularly paid the instalments in time, there was inordinate delay on the part of the opposite party in handing over possession despite several efforts to contact him and the raising of various demands for payments. Dates promising possession was indicated from time to time which were not adhered to by the opposite party. The complainants finally approached this Commission on 11.11.2016 by of this complaint seeking the following relief:—

(a) Hold and declare that the opposite party guilty of following unfair trade practices and restrain them from following such activities;

(b) Direct the opposite party to immediately hand over the possession of the apartment worth Rs.93,88,600/- to the complainants on payment of the final instalment amount;

in the alternative

Direct the opposite party to pay the entire amount of Rs.90,68,300/- along with interest to be calculated from the respective date of deposits at the rate of 18% per annum;

(c) Direct the opposite party to pay interest at the rate of 18% per annum on account of delay, calculated from the due date, i.e., 10.06.2013 on the amount of Rs.90,68,300/- already paid by the complainants, till the time the possession of the apartment is handed over to the complainants;

(d) Direct the opposite party to pay delay charges of approximately Rs.9,66,400/- calculated upto 09.10.2016 in terms of clause 5.5 of the agreement for the delay caused in the completing the construction and handing over the peaceful and vacant possession of the apartment and to pay the delay charges at the rate of Rs.25,600/- per month for further delay post 09.10.2016 upto the actual handing over of the possession of the apartment;

(e) Direct the opposite party to give possession of the apartment without any enhanced additional charges for the increased area, that were not agreed between the parties and charge only for the agreed upon area of 2560 sq ft; and

(f) Any other order which this court may deem fit in the interest of justice and equity.

4. The opposite party contested the complaint by way of reply and evidence by way of affidavit. The opposite party in his reply stated that the complainants were not ‘consumers’ under the purview of section 2(g), that the complaint was without pecuniary jurisdiction, several allottees including complainants defaulted in making payments and that the delay was largely due to reasons not attributable to the opposite party, in view of (a) shortage of manpower and construction material due to Commonwealth Games, (b) National Green Tribunal’s order dated 11.01.2013 which injuncted builders from extracting ground water for construction purposes resulting in h