8. We have given
a thoughtful consideration to the arguments advanced by the learned counsel for
the parties and have examined the record. So far as the question of
complainants being consumer is concerned, it is seen that the opposite party
has not filed any evidence to prove that the flat has been booked for earning
profit. The opposite party has raised this issue only to avoid their
liability towards the complainants. The complainants have paid the major
portion of the consideration to the opposite party and neither the possession
has been offered in time nor the amount has been refunded, therefore, the
complainants are clearly the consumers as per Section 2(1)(d) of the Consumer
Protection Act 1986.
9. It is not clear when the complainants had given legal notice for refund of their paid amount, why have they filed the complaint for seeking possession of the flat in question?. However the learned counsel for the complainants has now clarified that the complainants have obtained another residential unit and therefore they require only refund in the matter because there has been inordinate delay in offering possession of the said flat by the opposite party. Hon’ble Supreme Court in Civil Appeal No.12238 of 2018 titled as “Pioneer Urban Land & Infrastructure Ltd. versus Govindan Raghavan” has observed that a complainant cannot be compelled to take possession after a long delay from the due date of possession as per the agreement even if the occupancy certificate has been obtained.
10. This Commission in consumer complaint No. 2135 of 2016 Deepanshu Saini and Anr. versus SS Group Private Limited and 3 Ors decided on 04.09.2019 has observed the following:-
“12. I have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties and examined the record. The admitted fact is that the possession was due on 30.5.2015 and the occupancy certificate has been obtained on 17.10.2018. Clearly, there is a huge delay in the project. Letter of offer of possession was issued on 22.11.2018. The complainants have not accepted offer of possession as the complainants have already given a notice for cancelling the agreement as per clause 8.3 (b) of the agreement. Now, the question arises as to when the opposite parties have agreed to have a clause like 8.3(b) in the agreement and if the complainants have acted in accordance with this clause, the opposite parties should also have acted in compliance of this clause. Even this Clause 8.3 (b) seems one sided because the complainants’ money is already blocked and if the same is not returned till the unit in question is sold to a third party, this is clearly prejudicial to the interest of the consumer. The interest @ 15% is only payable when the flat is sold to a third party and the money is not refunded within 90 days from that sale. All these conditions are totally one sided and they are the result of the dominant position of the builder at the time of signing the builder-buyer agreement because by that time lot of money of the complainants is already blocked with the builder.
13. The main reason for delay in completion of the project has been told to be due to delay in obtaining environmental clearance for the project. Though, this may not be directly within the control of the opposite parties to get the clearance, however, the clear procedures are laid down and it depends on the management of the builder company how efficiently and meticulously they pursue the environmental clearance with the competent authority. Thus, this cannot be considered as force majeure, therefore, the delay on account of this factor cannot be excluded from the total delay in the project. Hon’ble Supreme Court in Civil Appeal No.12238 of 2018 titled as “Pioneer Urban Land & Infrastructure Ltd. versus Govindan Raghavan” has upheld the order of this Commission by observing the following:
“3.8. The National Commission vide Final Judgment and Order dated 23.10.2018 allowed the Consumer Complaint filed by the Respondent - Flat Purchaser, and held that since the last date stipulated for construction had expired about 3 years before the Occupancy Certificate was obtained, the Respondent - Flat Purchaser could not be compelled to take possession at such a belated stage. The grounds urged by the Appellant - Builder for delay in handing over possession were not justified, so as to deny awarding compensation to the Respondent - Flat Purchaser. The clauses in the Agreement were held to be wholly one - sided, unfair, and not binding on the Respondent - Flat Purchaser. 6 The Appellant - Builder was directed to refund Rs. 4,48,43,026/- i.e. the amount deposited by the Respondent - Flat Purchaser, along with Interest @10.7% S.I. p.a. towards compensation.
9. We see no illegality in the Impugned Order dated 23.10.2018 passed by the National Commission. The Appellant - Builder failed to fulfill his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent - Purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter. The Respondent - Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired. During this period, the Respondent - Flat Purchaser had to service a loan that he had obtained for purchasing the flat, by paying Interest @10% to the Bank. In the meanwhile, the Respondent - Flat Purchaser also located an alternate property in Gurugram. In these circumstances, the Respondent - Flat Purchaser was entitled to be granted the relief prayed for i.e. refund of the entire amount deposited by him with Interest.
10. The Civil Appeals are accordingly dismissed, and the Final Judgment and Order dated 23.10.2018 passed by the National Consumer Disputes Redressal Commission is affirmed.”
14. On the basis of the above observations of the Hon’ble Supreme Court, it is clear that if the occupancy certificate is sufficiently delayed say beyond two years then the complainants cannot be compelled to take possession of the property and they are entitled to refund. In the present case also, the occupancy certificate has been delayed by roughly three years, therefore, complainants cannot be compelled to take the possession. As the learned counsel offered certain concessions at the time of argument, learned counsel for the complainants was asked whether the complainants would consider offer given by the learned counsel for the opposite parties. It was categorically denied by the learned counsel for the complainants. The learned counsel for the complainants stated that the complainants are now only interested in refund of the amount as they have lost faith in the opposite parties. Learned counsel for the complainants further stated that he has no objection if the amount due to IHFL is directly remitted to IHFL by the opposite parties/ builder and the remaining amount be given to the complainants.”
11. The above observations are equally applicable in the present case as the present complaint is also against the same opposite party and under the same project. In the present case, clearly the possession was due by June 2015 and the occupation certificate has been obtained in October 2018, thus there being a delay of more than two years in obtaining the occupation certificate. In these circumstances, the complainants cannot be compelled to take the possession of the said flat as observed by the Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. versus Govindan Raghavan (supra). Clearly, the complainants are entitled to get refund of their paid amount from the opposite party.
| Case No. | Complainant | Respondent |
|---|
| CC/1632/2017 | RIA GUPTA (EARLIER AS RUNJHUN GUPTA) & ANR. | SS GROUP PRIVATE LIMITED |