The Builder Buyer Agreement is binding, and failure to deliver possession constitutes deficiency in service, entitling the complainant to compensation.

Headnote:(A) Consumer Protection Act, 2019 - Sections 2(1)(d), 14, and 21 - Builder Buyer Agreement - Complainant booked a flat but did not receive possession within the stipulated time, leading to claims of deficiency in service and unfair trade practices - OP admitted to receiving substantial payments but cited financial issues for delay - Court found OP's reasons insufficient and ruled in favor of the complainant. (Paras 1-7)

(B) Deficiency in Service - The court emphasized that the Builder Buyer Agreement constitutes a binding contract, and failure to adhere to its terms constitutes deficiency in service. (Paras 6-7)

Facts of the case:
The complainant booked a flat and paid a total of Rs.71,25,312/- but did not receive possession by the agreed date, leading to a complaint for possession and compensation. (Paras 1-5)

Findings of Court:
The court found that OP failed to justify the delay in possession and ruled that the complainant is entitled to possession and compensation for the delay. (Paras 7)

Issues: The main issues were whether the OP had committed deficiency in service and whether the complainant was entitled to compensation for the delay in possession. (Paras 5-6)

Ratio Decidendi: The court ruled that the OP could not evade its contractual obligations under the Builder Buyer Agreement and that the complainant's rights were paramount. (Paras 6-7)

Result: Complaint allowed with directions for possession and compensation.

ORDER

NARESH KATYAL, JUDICIAL MEMBER:-

Brief facts are:

Complainant-Smt. Raj Kumari along with her husband-Anil Kumar jointly booked flat bearing No.18-C, 17^th Floor, Unit Type 3 BR, measuring 1789 sq. feet in Skylark Tower at ILD Grand, Sector 37-Gurugram. Amount payable by complainant for subject flat was Rs.74,39,715/-, to be paid as per schedule of payment (Annexure-D) which is part of Apartment Buyer Agreement executed between parties at Gurugram on 14.01.2013. Complainant had paid booking amount of Rs.6,00,000/- on 20.11.2012; further deposited Rs.11,25,312/- vide receipt dated 09.01.2013 and Rs.54,00,000/- vide cheque No. 310847 dated 30.01.2013. In this way, total cost of subject flat supposed to be paid was paid, prior to handing over its possession to complainant by OP. As per clause 9 of agreement, OP was supposed to complete construction within 36 months computed from date of execution of agreement with further grace period of 180 days. Agreement was executed on 14.01.2013 and period of 36 months had expired on 13.01.2016 and further grace period of 180 days also expired on 13.07.2016; however possession of subject flat (bearing No.18-C) has/had not been handed over to her, till date, by OP, who kept on delaying to handover possession perpetually and gave false dates persistently. As per plea; complainant has noticed that unit and tertiary facilitations are not going to be ready to move in near future. Completion of promised amenities along with subject unit would take sufficiently long time. Inter-alia on these pleas; by alleging deficiency in service of OP and adoption of unfair trade practice by it, complaint has been filed for issuance of directions to OPs to handover possession of subject flat; to pay Rs.5/- sq. yards of super area (1789 sq. feet) of subject flat per month for period of delay after expiry of period (36 months) and grace period (180 days). Compensation of Rs.2.00 lacs for mental agony, physical harassment and Rs.1.00 lacs for litigation has also been claimed. Text of complaint is supported by affidavit of Raj Kumari.

2. Upon notice, insurer raised contest. In its written defense, it is pleaded that complaint is not maintainable. It is admitted that agreement dated 14.01.2013 was entered into. It is pleaded that agreement provides for arbitration of dispute between the parties and so Consumer Commission has no jurisdiction. It is pleaded that complainant is not a consumer. They have booked subject flat not for bona fide personal use but for investment/commercial purpose. They have not hired any services from OP. In this regard, it is pleaded that whatever amount is agreed to be paid under agreement, it is towards sale consideration price alone and no part of it for hiring any service. Complainant booked two flats in same project. There is no deficiency in service of OP. By admitting that total sale consideration of flat is Rs.74,39,715/- it is pleaded that complainant made total payment of Rs.70,91,168/- towards sale consideration and Rs.2,16,701/- towards GST/service tax and Rs.57,84,890/- paid by bank on behalf of complainant. It is admitted that OP has proposed to complete construction within 36 months from date of execution of agreement with further grace period of 180 days under normal circumstances. As per plea; delay in handing over possession, as per agreement, was due to financial crises faced by OP, down market in real estate sector. Somehow, OP is managing and construction of project is underway and it will be completed soon. Completion Certificate is yet to be obtained by OP and non-grant of it is the main reason behind non-delivery of possession to complainant. In such circumstances, OP is entitled to extended due date of delivery of possession. It would soon obtain Completion Certificate and hand over possession to respective allottees’ as expeditiously as possible. In this regard, it is also pleaded that construction at site had never stopped. On these pleas; dismissal of complaint ha

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2025 Supreme(Online)(SCDRC) 126

The Builder Buyer Agreement is binding, and failure to deliver possession constitutes deficiency in service, entitling the complainant to compensation.

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