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National Consumer Disputes Redressal Commission (NCDRC): R.K. Agrawal (President) while deciding the present consumer case held that,

“Wherever the Builder commits a particular date or time frame for completion of the construction and offering possession to the Buyer, they must necessarily honour the commitment made by them.”

In the present matter, Consumer Complaints, under Section 21 read with Section 12(1)(a) of the Consumer Protection Act, 1986  have been filed by the Complainants, the Allottees of Residential Flats/Apartments in a Project, namely, “Mahagun Mezzaria” to be developed and constructed by the Opposite Party, seeking possession of their respective booked Flats or refund of the amount paid with interest and compensation for the losses suffered by them on account of Unfair and Restrictive Trade Practices adopted and the deficient services rendered by the Opposite Party in not handing over the possession of the allotted Flats/Apartments within the stipulated time.

Complainant stated that despite paying the entire sale consideration for the booked flat, the possession of the same, which was to be delivered has not materialized till date, penalty promised in the Allotment Letter for the delay in construction has also not been paid, layout plan of the project has been got amended twice making various changes to the Project including addition of commercial shops open to general public raising various concerns including safety and security, that the Complainants have to pay enhanced Samp duty due to delay in handing over of possession and that the OP has levied the maintenance charges that would be enhanced @15% annually.

Analysis & Decision

Counsel for OP’s contention that Complainants are not ‘Consumers’ and have booked the Flat for earning high speculative gains is not supported by any documentary evidence. Court also noted that Complainants are ‘Consumer’ as defined under Section 2(1) (d) of the Consumer Protection Act, 1986.

Tribunal further stated that the only question for consideration in the present case is, as to whether the Complainants are entitled to any compensation for the delay on the part of the OP in offering possession to them and if so, what should be the quantum of compensation that OP needs to pay to them.

With respect to delay in completion of the construction, the tribunal stated that unless prevented by reasons beyond it control, the OP was under a contractual obligation to complete the construction and handover possession of the apartments within 38 months from the date of completion of raft or on or before 31-12-2012.

The reasons for the delay as stated by the Developer amounted to demonetization and implementation of GST, which ultimately resulted to cause delay on account of the shortage of cash for payment to the labour, shortage of labour and material, no documents were placed on record by the OP. Therefore the said contention cannot be accepted.

OP is ready and willing to hand over possession of the allotted flats with compensation to the Complainants, but some Complainants are not interested in the same due to delay of more than 4 years in delivering the possession change in layout plan and there being no committed date in the near future of completion of the Project. Therefore, they have sought a refund of the amount along with interest and compensation.

Tribunal in view of the stated that, Complainants cannot be made to wait indefinitely for the delivery of the possession when they had already paid almost entire consideration. In such circumstances, it is well within the Complainant’s right to seek for refund of the principal amount with interest and compensation.

In the present case, Tribunal in favour of the Complainants also stated that, Complainants cannot be made to wait indefinitely as the possession of the Unit has not been handed over to them so far and the Opposite Party is enjoying the benefits of their hard-earning money deposited with it.

“If the Builder fails to comply with the contractual obligation and at the same time, is unable to show that the delay in completion of the Flat and offering its possession to the Consumer is on account of circumstances beyond his control, this would constitute deficiency on the part of the Builder/Service Provider in rendering services to the Consumer.”

Hence, Complainants cannot be made to wait for such a long period, they are entitled to refund of the deposited amount along with compensation @12%. [Anil Kumar Jain v. Nexgen Infracon (P) Ltd., 2019 SCC OnLine NCDRC 716, decided on 23-12-2019]

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National Consumer Disputes Redressal Commission (NCDRC): The Bench comprising of Justice R.K. Agrawal (President) and M. Shreesha (Member) while addressing a complaint with respect to “deficiency of services” by the developer granted compensation keeping in view of the “Principles of Natural Justice”.

In the present case, aggrieved preferred the first appeal against the order passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai under Section 19 of the Consumer Protection Act, 1986.

Complainant stated that there was a deficiency of service against the Developer since an amount of Rs 37, 00,000 was paid towards sale consideration for Flat No. 601 situated at Vijaya and on account of non-providing of certain amenities the Complainant cancelled the booking and sought for a refund of the amount paid. Despite the complainant having requested for interest several times as the Developer had retained her amount from 14-05-2010 till 31-01-2011, there was no response.

State Commission allowed the complainant in part with the aforenoted directions.

According to the respondent’s, though the ‘developer’ had offered the payment of the amount, the complainant refused the same as her stand was that since the ‘developer’ had taken the money, the ‘developer’ alone should come to her doorstep and handover the money. Though, the Complainant stated that the amount was never offered to her.

Appellant submitted that some amount of compensation was to be awarded to meet the ends of justice as the compensation amount awarded by the State Commission was paid subsequently after 5 years.

Reliance was placed on Ghaziabad Development Authority v. Balbir Singh, (2004) 5 SCC 65, wherein the Court discussed the grounds on which the compensation be awarded in matters of delayed possession.

In the present matter, interest @18% has been awarded by the State Commission. The fact that the respondents did not challenge the impugned order, but also complied with the order only after 4 years, the order dated 12-05-2012 and as per the submission of the appellant/complainant the cheque was handed over on 3-05-2016.

Thus, keeping in view the “Principles of Natural Justice”, Commission awarded Rs 75,000 towards compensation within 4 weeks. The appeal is allowed in part with aforenoted directions. [Leela Narasimhan v. Vijay Grihanirman (P) Ltd., 2019 SCC OnLine NCDRC 328, decided on 16-10-2019]

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National Consumers Disputes Redressal Commission (NCDRC): The Bench comprising of Justice R.K. Agrawal (President) and M. Shreesha (Member) while addressing a complaint filed under the Consumer Protection Act stated that:

“Complainants cannot be made to wait indefinitely for possession of the unit, as the construction is yet to be completed even after a period of more than 6 years has lapsed from the date of booking.”

The present complaint was filed against the “Developer” and “Construction Company” under Section 21(a)(i) of the Consumer Protection Act, 1986.

In accordance with the facts of the case, Complainant had been looking for residential accommodation in Gurgaon, wherein he wanted to reside after his return from Tokyo, Japan. Complainant on his return to India booked a residential apartment of 5450 sq. ft. and paid an amount of Rs 4,12,98,926 by 03-09-2015.

It has been averred that, Flat Buyer’s Agreement was executed between the Developer and Complainant on 19-02-2013 and as per Clause 12 of the agreement, the possession of the apartment was to be delivered within 36 months with an additional grace period of 6 months, which ended on 19-08-2016.

Adding to the above, in December 2015, the complainant visited the site to see the development work and was shocked to see that the construction work had been completely stopped since January 2015. Complainant visited the corporate office of the developer and was informed that due to disputes with Construction Company, they had terminated the contract with them. The complainant was further assured that a new construction company would complete the balance work and the complainant shall receive the possession in terms of the agreement by February 2016 or at least within the extended period.

Again in January, 2017 complainant was disappointed to observe that no work was being carried out and he was assured by the officials of the “Developer” that the new construction company would complete the balance work. Once again in April 2018, on visiting the construction site he found that the site office was locked.

Thus, on multiple failures by the developer to respect the agreement in regard to the construction of the flat, Complainant had to send a legal notice to the Opposite Parties and further vexed with the attitude of the OP’s, the complainant approached the Commission.

Siddharth Yadav and Wasim Ashraf, Counsel appearing on behalf of the Complainants argued that despite repeated attempts to contact the “Developer” and seeking information regarding the progress of construction, there was no response for the same.

Commission in view of the above, relied on the decisions of the Supreme Court case in Pioneer Urban Land & Infrastructure Ltd. v. Govindan Raghavan, (2019) 5 SCC 725 and Kolkata West International City (P) Ltd. v. Devasis Rudra, (2019) CPJ 29 (SC), and opined in regard to the instant case that, “Complainants cannot be made to wait indefinitely for possession of the unit, as the construction is yet to be completed even after a period of more than 6 years has lapsed from the date of booking.”

Further, the Commission added to its observation that, there has been a deficiency of service on behalf of the OP’s. However, since the amounts were paid to the “Developer” the liability is fastened on the developer and not the “Construction Company”.

With the above, Complainant is allowed in part directing the “Developer” to refund 4,12,98,926 with interest at 12% p.a. from the respective dates of deposit till the date of realisation. [Alok Kumar v. Golden Peacock Residency (P) Ltd., 2019 SCC OnLine NCDRC 314, decided on 06-09-2019]