The 'as is where is' clause in the brochure was deemed unconscionable and void under Section 23 of the Indian Contract Act, 1872. The allottee is entitled to interest for every month of delay in possession under Section 18 of the 2016 Act.

JUDGMENT

Anil Kshetarpal, J. -The above noted two connected cross appeals have come up for final disposal.

2. As per Section 58 of the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as 2016 Act'), appeal to the High Court is maintainable only on a question of law as specified in Section 100 of the Code of Civil Procedure, 1908. In the considered opinion of the Court, the following questions require adjudication:-

(i) If the brochure inviting applications for allotment of residential plots, states that the plots will be allotted on 'as is where is' basis, does this absolve the promoter of their responsibility to deliver possession of the plots without any obstruction or hindrance during the completion of construction? Alternatively, should such a clause be considered unconscionable and unacceptable being against the public policy?

(ii) If the answer to the first question is in the affirmative, then whether the promoter is liable to pay the amount of interest to the allottee on the deposited amount from the stipulated date of delivery of possession.

3. Before addressing the aforementioned questions, it is pertinent to consider and take note of the following relevant facts:-

4. The Punjab Urban Planning and Development Authority, Patiala (hereinafter referred to as PUDA/ the Patiala Development Authority), is a wholly owned Government body, constituted under the Punjab Regional and Town Planning and Development Act, 1995. PUDA issued a brochure inviting the applications for allotment of 309 residential plots at Nabha Road, Patiala. The said scheme opened on 12.10.2015 whereas it closed on 20.11.2015. A note appended in the brochure reads as under:-

'Note: The plots shall be allotted on 'as is where is' basis. No person shall have any claim to an alternative plot due to any reason."

5. The relevant clauses of the brochure read as under:-

'The possession of the said plot shall be handed over to the allottee after completion of development works at site or 18 months from the date of issuance of allotment letter, whichever is earlier. If possession is not taken by the allottee within the stipulated period, it shall be deemd to have been handed over on the expiry of said date.

Construction on plot shall be completed within a period of 3 years from the date of possession after getting the building plans duly sanctioned from the Estate Officer, PUDA, Patiala.

Construction shall be carried out as per sanctioned building plans and as per the provisions of PUDA (Building) Rules, 2013, as amended from time to time.

Subject to the provisions of the Act all the disputes and/or differences which arise in any manner touching or concerning this allotment shall be referred to the Sole Chief Arbitrator, Administrator, Punjab Urban Planning and Development Authority (PUDA) of any person appointed/nominated by him in this behalf. The award of such Arbitrator shall be final and binding on the parties. Arbitration shall be governed by the Arbitration and Conciliation Act, 1996, as amended from time to time."

'PAYMENT SCHEDULE:-

For initial 25%:

i) 10% price of plot is to be deposited along with application.

ii) 15% price of the plot is to be paid within 30 days of issue of the Letter of Intent to complete 25% of plot. 2% cancer cess is also payable at the time of depositing 15% amuont.

Iii) In case of failure to make the 15% payment within stipulated period, allotment is liable to be cancelled. However, this period can be extended up to 180 days on making a written request within 30 days from the date of issue of Letter of Intent. Surcharge and penal interest for the delayed period will be charged.

iv) Surcharge shall be @ 1.5% for 30 days, 2% for 60 days, 2.5% for 90 days and 3% for 180 days of delayed payment in addition, penal intereset shall also be charged 18% for the delayed period.

For balance payment of 75%:-

i) The balance 75% of the tentative price of plot can either be paid in lump sum without any interest within 60 days from issue