Back
2025 Supreme(Online)(NCDRC) 3402
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
A.P. Sahi, PRESIDENT, Inder Jit Singh, MEMBER
Mayank Selhi – Appellant
Versus
Saya Homes Private Limited – Respondent
NC/FA/572/2023 | NC/IA/6875/2023 | NC/IA/9076/2024 | NC/IA/5235/2025
For the Appellants/Petitioners: Mr. Tanay Ayde
For the Respondents: Ms. Shruti
Contractual terms favoring the developer constitute an unfair trade practice under consumer protection laws, necessitating modification of compensation for delayed possession.
Headnote:(A) Consumer Protection Act, 1986 - Sections 2(1)(r), 14 - Delay in possession of an apartment - Appellants sought delay compensation due to failure of the builder to deliver possession timely while making timely payments - The Court addressed issues regarding calculation of penalty for delayed possession, highlighting the importance of contractual terms and the principle of unfair trade practices - 'The offer of possession was held unlawful as it was made without completion certificate' (Paras 12, 24).
(B) Fairness in contract terms - The court contradicted lower commission's award of delay penalty and established a rate of 6% on the deposited amount due to unfair contractual conditions favoring the builder (Paras 26, 50).
Facts of the case:
The appellants raised concern over the rate of penalty awarded for delayed possession, alleging inadequacies in the State Commission's reasoning (Paragraphs 6-8).
Findings of Court:
The issue of delay compensation was extensively discussed, leading to the conclusion that the compensation awarded by the State Commission was inadequate and required adjustment (Paragraphs 24-25).
Issues: The primary issues revolved around the appropriate penalty for delayed possession, particularly the contractually agreed terms and their implications under consumer protection law.
Ratio Decidendi: The court emphasized that the terms of the apartment buyer's agreement were one-sided, placing an unjust burden on consumers, thus allowing for the modification of the State Commission's order regarding compensation for delayed possession.
Result: Appeal partly allowed; modification of penalty terms affirmed.
| Table of Content |
|---|
| 1. procedure for entertaining appeals and addressing delays. (Para 1 , 3) |
| 2. delay compensation awarded for late possession and related penalties. (Para 6 , 12) |
| 3. one-sided agreements and their implications under consumer protection law. (Para 14 , 16 , 18) |
| 4. final modification of the appeal regarding compensation for delayed possession. (Para 25) |
ORDER
JUSTICE A.P. SAHI, PRESIDENT
1. This appeal was entertained on 11.08.2023, when the delay was condoned and the notices were issued. The order passed on 11.08.2023, records the issues raised in the appeal and is accordingly extracted herein under:
“Heard Mr. Tanay Ayde, learned Counsel for the Appellant. There is a stated delay of 19 days but the Registry has reported that there is a delay of 27 days.
Be that as it may, keeping in view the issues raised and even otherwise cause shown is sufficient and therefore deserves to be condoned, subject to the objection by the other side.
The contention raised is just two-fold. The State Commission has rendered the decision in favour of the Appellant, but learned Counsel for the Appellant contends that the Commission has ignored very vital aspects while extending relief, namely, the penalty for delayed possession that admittedly as per clause 14 is as follows:
14. Failure to deliver possession : Remedy Subject to the terms and conditions of the Agreement, in case of any delay (except for Force Majeure Clause 39 and conditions as mentioned in Clause 11(ii) and 11(iii) by the Company in completion of construction of said Apartment and the Allottee(s) not being in default/breach of the terms and conditions set out in Application Form / Agreement, the Company shall pay to the Allottee(s) delayed possession charges @ Rs.53.82 per sq. mt. (Rs.5/- per sq. ft.) / Rs.161.46 per sq. mt. (Rs.15 per sq. ft.) and Rs322.92 per sq. mt. (Rs.30 per sq. ft.) per month in respect of the Saleable area of the said Agreement for delayed period upto 4 months / more than 4 and up to 8 months and more than 8 months respectively (commencing after 36 months from the date of Agreement + 6 months’ fit out period on such extended periods) provided that all due instalments from the Allottee (s) were received in time or paid by the Allottee(s) along with interest for late payment within extended time frame allowed by the Company. The Allottee(s) agree and confirms that the compensation herein is a just and equitable estimate of the damages, which the Allottee(s) may suffer and the Allottee(s) agrees that he shall have no other right claims whatsoever. The adjustment of such compensation shall be done only at the time of execution of Sale deed of the said Apartment to the Allottee(s) first named.
Learned Counsel submits that while extending relief, the flat rate of Rs.5 per sq. ft has been pronounced, which is totally against the aforesaid admitted position in the agreement. Hence, the direction given is perverse. It deserves to be modified in accordance with Clause 14 of the agreement.
The second contention is also with regard to the date upto which the said calculation has to be made.
It is also urged, that even otherwise there are judgments indicating that when penalty on delayed possession is to be given, a certain proportion has to be maintained but looking to the nature of the relief claim, it is urged that the State Commission has completely ignored these aspects and has thus arrived at a wrong conclusion.
Prima facie the contentions appear to be entertainable.
Admit. Issue notice.
List the matter on 13.02.2024.”
2. The complaint filed by the complainants was allowed after contest holding that there was deficiency in service in delivering the flat in spite of the fact that the complainants had made timely payments. Accordingly the State Commission observed as under:
“11. Consequently, we hold that the Opposite Party no. 1 is deficient in providing its services to the Complainants as the Opposite Party no.1 had given false assurance to the Complainants with respect
