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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Ram Surat Ram Maurya, Presiding Member
Arun Kumar Mishra —Appellant
versus
Gtm Builders & Promoters
Pvt. Ltd. and Ors. —Respondents
First Appeal No.27 of 2014, First Appeal No.1335 of 2016, First Appeal No.21 of 2014, First Appeal No.22 of 2014, First Appeal No.23 of 2014, First Appeal No.24 of 2014, First Appeal No.25-26 of 2014, First Appeal No.28 of 2014, First Appeal No.29 of 2014, First Appeal No.335 of 2013, First Appeal No.336 of 2013, First Appeal No.337 of 2013, First Appeal No.338 of 2013, First Appeal No.34 of 2014, First Appeal No.345 of 2013, First Appeal No.346 of 2013, First Appeal No.347 of 2013, First Appeal No.35 of 2014, First Appeal No.357 of 2013, First Appeal No.36 of 2014, First Appeal No.37 of 2014, First Appeal No.38 of 2014, First Appeal No.384 of 2013, First Appeal No.39 of 2014, First Appeal No.40 of 2014, First Appeal No.402 of 2013, First Appeal No.41 of 2014, First Appeal No.436 of 2013, First Appeal No.437 of 2013, First Appeal No.438 of 2013, First Appeal No.439 of 2013, First Appeal No.440 of 2013, First Appeal No.441 of 2013, First Appeal No.442 of 2013, First Appeal No.443 of 2013, First Appeal No.444 of 2013, First Appeal No.445 of 2013
Decided on 27.9.2022
Counsel for the Parties:
For the Appellant:Mr. Arun Kumar Mishra, Dr. Abhishek Atrey, Dr. H.B. Mishra, Mr. Sandeep Bisht, Advocate, Mr. Apratim Animesh Thakur, Advocate, Mr. Amrit Koul, Advocate, Mr. Bikas Mohanti, Advocate, Mr. Shashwat Prateek Panda, Advocate, Mr. Rajiv Pathak, In person, Mr. Sunil Murti Anchal, In person, Ms. Prama Chopra, In person
For the GTM Builders:Mr. Aditya Narain, Advocate, Mr. Rahul Malhotra, Advocate, Mr. Fanish Rai, Advocate, Ms. Pallavi Tayal, Advocate, Mr. Gaurav Sahdev, Advocate, Mr. Raj Shekhar, Advocate, Mr. Ashikesh Gupta, Advocate, Ms. Himanshi Madaan, Advocate
IMPORTANT POINTS
(1) Force Majeure - Force Majeure is a clause that is included in contract to save from the liability for unforeseen and unavoidable catastrophic that interrupt.
(2) “Occupation Certificate” - Issue of “Occupation Certificate” is concerned although it is sign qua non for delivery of possession.
(3) Home Buyer - The home buyer cannot be compelled to take possession in illegal manner.
Headnote:
Consumer Protection Act, 1986 —S.19 [Consumer Protection Act, 2019 —S.51] – Appeal against order of State Commission - Services – Real Estate – Allotment of Flat – Delayed Possession - Force Majeure - “Occupation Certificate” - Home Buyer - Issue of “Occupation Certificate” is concerned although it is sign qua non for delivery of possession but admittedly that all the home buyers have taken possession, either in year 2014 or on 02.05.2016 - The builder, vide letter dated 12.12.2004 (page-118) committed to pay compensation at the rate of Rs.5/- per sq.ft. per month, if possession is not delivered on due date. The home buyers have prayed for compensation for delay in possession at the same rate. The builder took plea that possession was offered to the home buyers vide letter dated 27.04.2011. From the record it is proved that the builder applied for issue of “Occupation Certificate” in 03.10.2011. As such on 27.04.2011, the construction was not complete nor “Occupation Certificate” was obtained. In the absence of “Occupation Certificate” no one can be permitted to occupy in the group housing project. The home buyer cannot be compelled to take possession in illegal manner. Thereafter, the builder by issuing illegal demand has raised disputes. As such the date 27.04.2011 cannot be taken as date for offer of possession for the purposes of the compensation for delay in possession. Since the delivery of possession has been delayed as such, the home buyers are entitled for delayed compensation as prayed from due date of possession i.e. from January, 2010 till the date of delivery of possession – Appeals disposed off with directions. [Paras 26, 27]
Result: Appels disposed off.
ORDER
Heard Mr. Arun Kumar Mishra, other Advocates and the buyers (In person), for the buyers and Mr. Aditya Narain, and Mr. Rahul Malhotra, Advocates, for GTM Builders & Promoters, in the appeals.
2. Some of the appeals are reported as time barred. The appellants have filed delay condonation application, giving cause for delay. Delay in filing the appeal is condoned. All such appeals are treated as filed within time. Some details of the appeals are given below:—
| First Appeal | Consumer Complaint | Home Buyer | Date of application | Rate (per sq. ft.) |
| FA/335/2013 | CC/100/2010 | Girish Omprakash Dadheech | 01.05.2006 | 2290 |
| FA/336/2013 | CC/278/2011 | Vipul Sachdeva | 23.02.2005 | 1500 |
| FA/337/2013 | CC/279/2011 | Prama Chopra | 19.02.2006 | 2221 |
| FA/338/2013 | CC/282/2011 | Randhir Kumar | 2006 (by ex-owner) | 2225 |
| FA/345/2013 | CC/222/2009 | Kabir Khathuria & Farima Kalani | 30.05.2006 | 2400 |
| FA/346/2013 | CC/221/2009 | Nishant Anchal and Sunil Murti Anchal | In the year 2006 | 1800 |
| FA/347/2013 | CC/342/2009 | Rajiv Pathak & Pooja Bajpaee | April, 2007 | 2625 |
| FA/357/2013 | CC/354/2011 | Bharti Rampal | 25.12.2005 | 1820 |
| FA/384/2013 | CC/43/2012 | Neeraj Gill | 14.07.2006 | 2374 |
| FA/402/2013 | CC/239/2011 | Vineet Kumar Topa | 09.06.2005 | 1929.70 |
| FA/436/2013 | CC/221/2009 | Nishant Anchal & Sunil Murti Anchal | 14.10.2006 | 1800 |
| FA/437/2013 | CC/342/2009 | Rajiv Pathak & Pooja Bajpayee | 00.02.2007 | 2625 |
| FA/438/2013 | CC/222/2009 | Kabir Kathuria & Garima Kalini | 30.05.2006 | 2400 |
| FA/439/2013 | CC/100/2010 | Girish Omprakash Dadheech | 01.05.2006 | 2290 |
| FA/440/2013 | CC/239/2011 | Vineet Kumar Topa | 09.06.2005 | 1930 |
| FA/441/2013 | CC/278/2011 | Vipul Sachdeva | 23.02.2005 | 1500 |
| FA/442/2013 | CC/279/2011 | Prama Chopra | 08.04.2006 | 2221 |
| FA/443/2013 | CC/282/2011 | Randhir Kumar | 18.04.2006 | 2225 |
| FA/444/2013 | CC354/2011 | Bharti Rampal | 30.11.2005 | 1820 |
| FA/445/2013 | CC/43/2012 | Neeraj Gill | 00.05.2006 | 2420 |
| FA/21/2014 | CC/27/2010 | Ramankant Aggarwal | 26.12.2005 | 1500 |
| FA/22/2014 | CC/65/2010 | Geeta Malik | 01.04.2006 | 2195 |
| FA/23/2014 | CC/66/2010 | Akshay Rathee | 01.04.2006 | 2195 |
| FA/24/2014, FA/37/2014 | CC/129/2010 | Richa Singh | 02.03.2006 | 2042 |
| FA/25/2014, FA/41/2014 | CC/04/2011 | Mukesh Kumar Jain | 29.11.2004 | 1500 |
| FA/26/2014, FA/41/2014 | CC/41/2012 | Mukesh Kumar Jain | 29.11.2004 | 1500 |
| FA/27/2014, FA/38/2014 | CC/149/2011 | Arun K Mishra | 28.11.2004 | 1500 |
| FA/28/2014, FA/39/2014 | CC/269/2011 | Vinod K. Gupta | 11.01.2006 | 1600 |
| FA/29/2014, FA/40/2014 | CC/319/2011 | Amit Mittal | 01.08.2005 | 1950 |
| FA/34/2014 | CC/27/2010 | Dr. Raman Kant Aggarwal | 26.12.2005 | 1500 |
| FA/35/2014 | CC/65/2010 | Geeta Malik | 01.04.2006 | 2195 |
| FA/36/2014 | CC/66/2010 | Akshay Rathee | 01.04.2006 | 2195 |
| FA/1335/2016 | CC/54/2012 | Asha Sinha | 12.04.2006 | 2304 |
3. The home buyers have filed some of the appeals from the orders of State Consumer Disputes Redressal Commission, Delhi, dated 02.04.2013, 29.10.2013 and 01.08.2016 passed in their consumer complaints, alleging deficiency in service committed by GTM Builders & Promoters Pvt. Ltd. (the builder), in delaying possession of their flats, not allowing delayed compensation and illegally charging money in different heads, in Tower No.11, GTM Residency Tower, Valley View Estate, Gwal Pahadi, Gurgaon. The builder has also filed various appeals, from the above orders, granting some relief to the home buyers. In all these appeals, common issues of law and fact are involved, as such, these appeals have been consolidated and heard together and are being decided by a common order. For appreciating controv
