Back
SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, M.R. SHAH, JJ.
NBCC (India) Limited - Appellant
Versus
Shri Ram Trivedi - Respondent
Civil Appeal No 274 of 2020
Decided on : 08-03-2021
Consumer Protection Act, 1986[Now Consumer Protection Act, 2019] – Section 23 – Real estate – Flat-Buyers Agreement – Denial of possession despite payment – NCDRC directed appellant to pay compensation computed at 10% per annum on amount deposited by respondent from June 2015 till actual date of possession – Respondent was also awarded amount of Rs 2,00,000/- towards loss of rent and costs of Rs 25,000/- – Even if expression ‘endeavour’ does not mean an absolute commitment to hand over possession on or before a specified date, this expression has to be read in context of entirety of clause – To construe expression as leaving date for handing over possession indefinite and at absolute discretion of developer would leave purchaser at mercy of builder – Burden would lie on developer to explain steps taken to comply with contractual stipulation – Three and a half years was by all accounts period for handing over possession beyond which purchaser was entitled to compensation – There is absolutely no substance in force majeure defence – Appellant, being an experienced developer, must be conscious of routine delays caused by business exigencies – This would not frustrate contract or absolve appellant of obligations assumed under terms of agreement – NCDRC has, in addition to award of interest, granted compensation of Rs 2,00,000/- for loss of rent – Once NCDRC awarded interest for delayed handing over of possession, there would be no justification to award additional amount of Rs 2,00,000/- – Principal findings of NCDRC in regard to entitlement of respondent to receive compensation for delayed handing over of possession upheld – In substitution of direction issued by NCDRC, appellant shall pay simple interest to respondent at the rate of 7% per annum from 1 January 2016 until date on which possession was handed over to respondent – Direction in regard to payment of an amount of Rs 2,00,000/- towards loss of rent set aside. (Paras 4, 7, 10, 12 and 13)
Facts of the case:
Present appeal arises from a judgment of National Consumer Disputes Redressal Commission1 dated 20 September 2019. appellant floated a group housing project at Sector 89, Gurgaon. An advertisement was issued, inviting prospective flat buyers. The respondent submitted an application on 14 March 2012 for the allotment of a dwelling unit in project described as “NBCC Heights”. The terms and conditions for allotment were set out in a standard form. Instalments towards the purchase price were payable under a time-linked plan. An allotment letter was issued to respondent on 30 June 2012 for dwelling unit F-402 in the project. The terms of allotment envisaged that the appellant would “endeavour” to hand over possession within two and a half years from the date of allotment. respondent instituted a consumer complaint before NCDRC since possession of the unit had not been handed over. NCDRC, in its impugned order dated 20th September 2018, directed the appellant to pay compensation computed at 10% per annum on amount deposited by the respondent from June 2015 till the actual date of possession. In addition to this, the respondent was awarded an amount of Rs 2,00,000 towards loss of rent and costs of Rs 25,000. Time for payment was fixed at four weeks from the date of receipt of a copy of the order, failing which interest was to be payable at 12%.
Findings of Court:
The appellant shall cooperate in completing all necessary formalities for completing the documentation (including formalities for registration) in respect of the dwelling unit which has been sold to the respondent, if not already completed, within a period of one month from the date of receipt of a certified copy of this order. The payment of interest shall also be effected within one month.
Result : Appeal Partially allowed.
JUDGMENT :
Dr. Dhananjaya Y. Chandrachud, J.
1. Admit.
2. This appeal arises from a judgment of the National Consumer Disputes Redressal Commission1[“NCDRC”] dated 20 September 2019.
3. In 2012, the appellant floated a group housing project at Sector 89, Gurgaon. An advertisement was issued, inviting prospective flat buyers. The respondent submitted an application on 14 March 2012 for the allotment of a dwelling unit in the project described as “NBCC Heights”. The terms and conditions for allotment were set out in a standard form. Instalments towards the purchase price were payable under a time-linked plan. An allotment letter was issued to the respondent on 30 June 2012 for dwelling unit F-402 in the project. The terms of allotment envisaged that the appellant would “endeavour” to hand over possession within two and a half years from the date of allotment. Clause 20 provides as follows:
In the event of the Applicant failure to clear all the outstanding dues including interest, if any and/or takeover/occupy the Dwelling Unit within 30 days from the date of intimation in writing by NBCC, then the same shall lie at the Applicant's risk and cost and the Applicant shall be liable to pay a compensation to NBCC (for maintaining the complex) @ Rs. 2/-per sq. ft. of the super area per month for the entire period of such delay. This compensation shall be in addition to the other dues/claims of interest etc. as per terms of sale/allotment.
The applicant agrees that if however the completion of the said Complex is delayed due to force majeure (such as acts of god or the public enemy, expropriation, compliance with any order or request of government authorizes, act of war, rebellions, sabotage, fire, floods illegal strikes, or riots etc.) then NBCC shall be entitled to extension of time for delivery of possession of the Dwelling Unit. NBCC agrees to pay to the allottee and subject to the applicant not being in default under any terms of this Application/agreement Compensation @ Rs. 2/-per sq ft of the use super area of the Dwelling Unit per month for the period of such delay beyond One year (plus valid extend period due to force majeure reasons) from the stipulated date of completion of the complex. Thus the compensation, if any shall be payable only after four years plus valid extension due to force majeure reasons from date of alIotment. The adjustment of such compensation shall be done only at the time of execution of conveyance deed of the Dwelling Unit.” (emphasis supplied)
4. In January 2017, the respondent instituted a consumer complaint before the NCDRC2[Consumer Case No 84 of 2017] since possession of the unit had not been handed over. The appellant obtained an occupation certificate from the Town and Country Planning Department of Haryana on 19 July 2017. Upon receiving the occupation certificate, the appellant issued a notice to allottees on the same day, informing them of the receipt of the occupation certificate and requesting them to clear all their dues before taking possession. A letter of possession was issued to the respondent on 9 February 2018. The respondent made part payment towards the fifth and sixth instalments on 28 February 2018 and the balance payment on 6 March 2018. Possession was
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
