JUSTICE V.K. JAIN, PRESIDING MEMBER
1. The complainants in these matters, booked apartments with the opposite party in a complex known as ‘vistas’ which it is developing in sector 70 of Gurgaon, and they entered into individual “Buyers Agreement” with the opposite party. The possession of the apartments was agreed to be delivered to them within 36 months from the date of their respective agreements. In CC No. 433/2014, 434/2014, 466/2014, 474/2014, 475/2014 and 502/2014, the apartments were initially allotted to some other persons, from whom they were later purchased by the concerned complainants. However, there was no change in the date stipulated in the Buyers Agreement for delivery of possession of the flat. The grievance of the complainants is that neither the possession of the apartments has been given to them nor is the construction complete though the last date stipulated in the Buyer’s Agreement for delivery of the possession to them has already expired more than 2 years ago. The complainants are, therefore, before this Commission seeking delivery of the possession of the flats agreed to be sold to them or in the alternative payment of current market value of such houses which is stated to be ₹10,000/- per sq. ft. They are also seeking payment of compensation on account of loss of rental income to them with effect from the stipulated date of possession, compensation @₹5/- per sq. ft. as per the agreement entered between the parties and compound interest @18% p.a. with effect from the stipulated date of possession. The complainants are also seeking compensation on account of their mental torture, agony etc.
2. The complaints have been resisted by the OP on several grounds though it has admitted the agreement for sale of apartments to them. It is also stated in the reply that though the possession of the apartments was proposed to be delivered to the purchasers within 36 months, the said date could be extended if the completion of the project was delayed due to non-availability of essential building material, water supply, slow down, civil commotion and other reasons beyond the control of the opposite party. It is claimed that :-
(a) Real Estate Industry is adversely affected due to local and national economic conditions,
(b) There is recession in the economy resulting in the availability of labour and raw-materials becoming scarce.
(c) Common-wealth games organised in October 2010 resulted in extreme shortage of labour in the NCR region.
(d) There was shortage of labour due to implementation of social schemes like National Rural Employment Guarantee Act (NREGA) and Jawaharlal Nehru Urban Renewal Mission (JNNURM).
(e) There was extreme shortage of water in NCR region, which was further accentuated due to orders of Punjab and Haryana High Court stopping of use of ground water for construction activities.
(f) There was shortage of bricks due to restrictions imposed by Ministry of Environment and Forest on brick klins.
(g) There was shortage of sand due to mining having been suspended in Aravali Hill Range.
3. It is also claimed in the reply that in view of clause 4.c.ii) of the agreement, the opposite party is required to pay only the compensation @₹5/- per sq. ft. per month for the delay in offering possession. Yet, another plea taken in the reply is that since the cost of the flat was less than ₹ 1 crore, the complaint is maintainable only before the concerned State Commission and not before this Commission.
4. During the course of hearing, the learned counsel for the opposite party placed on record a letter dated 27.05.2015 offering possession as per the following schedule:-
| Block | Completion of construction & application of OC
| Offer of possession of apartments |
| A-9 to A-11 | 31st Dec-15 | 28th Feb-16 |
| A-1 to A-4 | 31st May-16 | 31st Jul-16 |
| A-5 to A-8 | 30th Sep.-16 | 30th Nov-16 |
| B-1 to B-5 | 31st Dec-16 | 28th Feb-17 |
| E-1 – E-2 | 30th May-17 | 31st Jul-17 |
| D-1 – D-2 | 31st Oct -17 | 31st Dec-17 |
| C-1 to C-3 | 31st Dec-17 | 28th Feb.-18 |
The opposite party also offered to pay compensation at the revised rate, i.e., ₹13/- per sq. ft., after expiry of the revised date of possession. Yet another condition imposed in the said letter is that post-15.06.2015, the transfree or nominees of the existing allottees shall not be eligible for the revised penalty of ₹13/- per sq. ft. per month. It is also stated in the aforesaid letter that if possession is delayed beyond the above-mentioned time limits, revised penalty shall be ₹13/- per sq. ft. per month.
5. During the course of hearing, the learned counsel for the complainants stated, on instructions, that the complainants are not interested in taking refund of the money paid by them to the opposite party and they want to have possession of their respective flats even if the said possession is to be delivered in terms of the revised date of possession indicated in the above-referred letter of opposite party. In view of the aforesaid statement, the only question which survives for consideration in these complaints is as to what interest/compensation should be paid to the complainants by the opposite party, till the date the possession is delivered to them.
6. Clause 4.a of the Buyers Agreement reads as under:-
“4.a Delivery of Possession:
(i) Subject to the Apartment Allottee (s) complying with various terms and conditions of this agreement and other requirements as indicated by the Developer, the Developer proposes to offer possession of the Apartment within a period of 36 months from the date of signing of this agreement and upon execution and registration of Conveyance Deed in favour of the Apartment Allottee (s). It is understood by the Allottee that the possession of various Towers/ Blocks comprised in the complex shall be ready and shall be completed by the Developer in phases and handed over to the allottees of the completed Tower/ Block according.
(ii) It is agreed by the Apartment Allottee (s) that in the following circumstances the date of possession shall stand extended:
In the event of any default or negligence attributable to the Apartment Allottee(s) in compliance and fulfilment of conditions of this agreement and the letter of allotment issued by the Developer.
Completion of the Group Housing Complex and the apartment is delayed by reasons of lock-out, strike, slow down or civil commotion or by reasons of war or enemy action or terrorist action or earthquake or by any act of GOD or due to any reasons or circumstances beyond the control of the Developer.
If consequent upon any new legislation or amendment of existing rules, regulations or orders issued by the Government or any statutory authority the construction of the complex and the Apartment is suspended or stopped or delayed.”
Clause 4.c.ii) of the aforesaid Agreement reads as under:-
“(ii) Similarly, the Developer shall be liable to pay compensation calculated @ Rs.5/- per sq.ft. per month of the Super Area of the Apartment for the period of delay in offering the possession of the said apartment beyond the period indicated in clause 4.a.i, save and except for reasons beyond the reasonable control of the developer. These charges shall be adjusted at the time of issuance of Notice of Possession issued by the Developer under clause 4.b. above subject to the apartment allottee (s) having complied with the provisions of this agreement. In case the delay is occasioned in offering possession by the developer, the developer shall be liable to pay.”
7. It would thus be seen that but for the exceptional circumstances mentioned in Clause 4.a.ii, the opposite party was required to hand over the possession of the apartment to the flat buyers within 36 months from the date of signing the agreement with them. The exceptional circumstances which could justify delay in hand over the possession of the apartments were:-
(a) Lock-out
(b) Strike
(c) Slow-down
(d) Civil Commotion
(e) War, enemy action, terrorist action, earthquake or act of God and
(f) any reason or circumstance beyond the control of the developer.
The delay in handing over the possession of the apartments could also be justified if there was to be a new legislation, regulation or order suspending, stopping or delaying the construction of the complex and the apartments.
8. Neither any new legislation was enacted nor an existing rule, regulation or order was amended stopping suspending or delaying the construction of the complex in which apartments were agreed to be sold to the complainants. There is no allegation of any lock-out or strike by the labour at the site of the project. There is no allegation of any slow-down having been resorted to by the labourers of the opposite party or the contractors engaged by it at the site of the project. There was no civil commotion, war, enemy action, terrorist action, earthquake or any act of God which could have delayed the completion of the project within the time stipulated in the Buyers Agreement. It was contended by the counsel for the OP that the expression ‘slow down’ would include economic slow-down or recession in the Real Estate sector. I, however, find no merit in this contention. The word ‘slow down’ having been used alongwith the words lock-out and strike, I has to be read ejusdem generis with the words lock-out and strike and therefore, can mean only a slow down if resorted by the labourers engaged in construction of the project.
9. As regards, alleged shortage of labour, I find that no material has been placed on record by the OP that despite trying, it could not be get labourers to complete the construction of the project within the time stipulated in the Buyers Agreement. It was submitted by the learned counsel for the complainants that ordinarily big builders such as the OP in these cases, are contracting/sub-contracting the construction work to the contractors engaged by them, instead of employing their own labourers on a regular basis, the purpose being to ensure that they are not saddled with the wage bill of those regular labourers, in case the opposite party does not have adequate work for them. There is no evidence of the OP having been invited tenders for appointment of contractors / sub-contractors for executing the work at the site of those projects and no contractor/ sub-contractor having come forward to execute the project on the ground that adequate labour was not available in the market. Therefore, it cannot be accepted that the opposite party could not have arranged adequate labour, either directly or through contractors/sub-contractors, for timely completion of the project. As regards the alleged shortage of water, bricks and sand in the market, I find that there is no evidence filed by the OP, to prove that it was unable to procure water, sand and brick in adequate quantity. This is also their case that the notification of the Government, being relied upon by the opposite party, is an old notification, which was in force even at the time the opposite party promised possession in 36 months. There is no evidence of the opposite party having invited tenders for supply of bricks and water and there being no response to such tenders. In fact, if the work is to be executed through contractors/sub-contractors, the material such as bricks, sand and even water will be arranged by the contractor/sub-contractor and not by the opposite party. As noted earlier, there is no evidence of the opposite party having invited tenders after awarding the work of project in question to the contractors/sub-contractors and there being no response to such tenders. Therefore, I find no merit in the plea that the completion of the project was delayed due to non-availability of water, sand and bricks in adequate quantity. As regards common-wealth games projects work, on those projects was complete before the games were held in October 2010. The project in question on the other hand was required to be completed in phases, beginning end of 2012, i.e., more than 2 years after the aforesaid games were concluded. In any case, it has been more than 4 ½ years since common-wealth games were held and even today the project in question is far from complete. Therefore, there is no merit in the contention that the completion of the project was delayed on account of commonwealth games. Consequently, there is no escape from the conclusion that the delay in construction of the apartments cannot be attributed to any of the reasons mentioned in clause 4.a.ii of the Buyers Agreement.
10. Since the delay in construction of the apartments could not be justified by the OP, it is required to pay compensation to the flat buyers. The contention of the learned counsel for the OP is that such compensation has to be calculated @ ₹5/- per sq. ft. of the super area of the apartment for the period of delay in offering the possession beyond the period indicated in clause 4.a.i of the Buyers Agreement, the complainants having agreed to the aforesaid term while agreeing to purchase the apartments. This was also the contention of the learned counsel for the OP that the terms of the contract are binding on the parties and cannot be altered by a consumer forum.
The learned counsel for the complainant on the other hand, submitted that since they are required to pay interest to the OP @18% p.a. compounding quarterly, in the event of delay in making payment as stipulated in clause 2.c of the Buyers Agreement, there is no reason why the opposite party should not pay interest at the same rate to them, as compensation. The learned counsel for the parties, however, admitted that the current interest of taking housing loans from the banks is about 10% p.a. though it had shot up to 11.5% per annum in last few years. It is also an admitted position that had the complainants deposited their money with a bank in a FDR instead of investing in the project of the OP, they would have earned interest @ about10% p.a.
11. It is an undisputed proposition of law that ordinarily the parties are bound by the terms and conditions of the contract voluntarily agreed by them and it is not for a Consumer Forum or even a Court to revise the said terms. The following view taken by the Hon’ble Supreme Court in this regard in Bharathi Knitting Company Vs. DHL Worldwide Express JT 1996 (6) SC 254 is pertinent:
“It is seen that when a person signs a document which contains certain contractual terms, as rightly pointed out by Mr. R.F. Nariman, learned senior counsel, that normally parties are bound by such contract; it is for the party to establish exception in a suit. When a party to the contract disputes the binding nature of the signed document, it is for him to prove the terms in the contract or circumstances in which he came to sign the documents need to be established. It is true, as contended by Mr. M.N. Krishnamani, that in an appropriate case the Tribunal without trenching upon acute disputed question of facts may decide the validity of the terms of the contract based upon the fact situation and may grant remedy. But each case depends upon its own facts”.
In PUDA Vs. Mrs. Shabnam Virk II (2006) CPJ 1(SC), it was stated in an advertisement issued by PUDA that the price quoted therein was purely tentative based on the then cost of construction and was likely to be revised on the higher side by the time houses were completed. The respondent before the Hon’ble Supreme Court challenged the demand of the additional cost raised by PUDA. The demand however, was upheld noticing the aforesaid clause in the advertisement.
However, a term of a contract, in my view will not be final and binding if it is shown that the consent to the said term was not really voluntary but was given under a sort of compulsion on account of the person giving consent being left with no other choice or if the said term amounts to an unfair trade practice. It was submitted by the learned counsel for the complainants that the term providing for payment of a nominal compensation such as Rs.5/- per square foot of the super area having become the order of the day in the contracts designed by big builders, a person seeking to buy an apartment is left with no option but to sign on the dotted lines since the rejection of such term by him would mean cancellation of the allotment. He further submitted that a person seeking to acquire a built up flat instead of purchasing a plot and then raising construction on it, therefore, is not in a position to protest resist the inclusion of such a term in the Buyer’s Agreement, and has to rely upon the reputation of the builder, particularly if he is a big builder such as Unitech Ltd. He also submitted that the format of the Buyer’s Agreement is never shown to the purchasers at the time of booking the apartment and if he refuses to sign the Buyer’s Agreement on the format provided by the builder, not only will he lose the booking, even the booking amount/earnest money paid by him will be forfeited by the builder. I find merit in the above referred submissions of the learned counsel. A person who, for one reason or the other, either cannot or does not want to buy a plot and raise construction of his own, has to necessarily go in for purchase of the built up flat. It is only natural and logical for him to look for an apartment in a project being developed by a big builder such as the opposite party in these complaints. Since the contracts of all the big builders contain a term for payment of a specified sum as compensation in the event of default on the part of the builder in handing over possession of the flat to the buyer and the flat compensation offered by all big builders is almost a nominal compensation being less than .25% of the estimated cost of construction per month, the flat buyer is left with no option but to sign the Buyer’s Agreement in the format provided by the builder. No sensible person will volunteer to accept compensation constituting about 2-3% of his investment in case of delay on the part of the contractor, when he is made to pay 18% compound interest if there is delay on his part in making payment.
12. It can hardly be disputed that a term of this nature is wholly one sided, unfair and unreasonable. The builder charges compound interest @ 18% per annum in the event of the delay on the part of the buyer in making payment to him but seeks to pay less than 3% per annum of the capital investment, in case he does not honour his part of the contract by defaulting in giving timely possession of the flat to the buyer. Such a term in the Buyer’s Agreement also encourages the builder to divert the funds collected by him for one project, to another project being undertaken by him. He thus, is able to finance a new project at the cost of the buyers of the existing project and that too at a very low cost of finance. If the builder is to take loan from Banks or Financial Institutions, it will have to pay the interest which the Banks and Financial Institutions charge on term loan or cash credit facilities etc. The interest being charged by the Banks and Financial Institutions for financing projects of the builders is many times more than the nominal compensation which the builder would pay to the flat buyers in the form of flat compensation. In fact, the opposite party has not even claimed that the entire amount recovered by it from the flat buyers was spent on this very project. This gives credence to the allegation of the complainants that their money has been used elsewhere. Such a practice, in my view, constitutes unfair trade practice within the meaning of Section 2(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practice for the purpose of selling the product of the builder. Though, such a practice does not specifically fall under any of the Clauses of Section 2(r) (1) of the Act that would be immaterial considering that the unfair trades, methods and practices enumerated in Section 2(r) (1) of the Act are inclusive and not exhaustive, as would be evident from the use of word “including” before the words “any of the following practices”.
13. It was contended by the learned counsel for the opposite party that there are no specific pleadings alleging unfair trade practices and therefore this Commission should not go into the question as to whether the inclusion of such a clause in the Buyer’s Agreement amounts to unfair trade practice or not. In support of his contention he relies upon the following observations made by the Hon’ble Supreme Court in Secretary, Bhubneshwar Development Authority Vs. Susanta Kumar Mishra, (2009) 4 SCC 684:
“Further, any fora under the Consumer Protection Act, 1986 (“the Act”, for short) before granting any relief to a complainant, should be satisfied that the complaint relates to any of the matters specified in Section 2(1)(c) of the Act, and that the complainant has alleged and made out either unfair or restrictive trade practice by a trader, or defects in the goods sold or any deficiency in a service rendered, or charging of excessive price for the goods sold, or offering of any goods hazardous to life and safety without displaying information regarding contents, etc. If none of these is alleged and made out, the complaint will have to be rejected”.
However, on fact, I find no merit in this contention. The complainants have specifically alleged that some of the clauses in the Buyer’s Agreement were one side and they were made to sign already prepared documents. It is also alleged that some of the clauses contained in the Buyer’s Agreement are totally unreasonable and in favour of the opposite party only. It is further alleged that the clause providing for compensation at the nominal rate at Rs.5/- per square foot of the super area is unjust and exploits the complainants. It is also alleged that the opposite party has been utilizing the money of the complainants for its own purposes. Therefore, it would not be correct to say that the complaints lack pleadings which would make out a case of adoption of unfair trade practice on the part of the opposite party. I therefore, have no hesitation in holding that instead of paying nominal compensation of Rs.5/- per square foot of the super area, the opposite party should pay adequate compensation to the complainants which would not only take care of the additional financial burden on them on account of the delay in construction of the flat but will also give some compensation to them for the harassment and mental agony which they have suffered all along and are likely to suffer atleast for some more time on account of the opposite party having not delivered the possession of the flat to them by the date stipulated in the Buyer’s Agreement.
14. As noted earlier, the cost of the borrowing for individual home buyers is about 10% per annum though it had gone upto 11.5% in last few years. In my view, if the opposite party, pays simple interest @ 12% per annum to the complainants, that would not only take care of the additional financial burden on them but also give some monetary compensation to them for their sufferings on account of the delay in handing over possession of the flat purchased by them.
15. It was contended by the learned counsel for the opposite party that some of the complainants plan to shift to the flats booked by them only after their retirement, meaning thereby that right now they do not need a flat for their personal residence and they will let out the flat on taking possession from the opposite party. The contention is that that purchase of the flat by such persons would be for a commercial purpose and, therefore, they are not consumers within the meaning of Section 2(1)(d) of the Consumer Protection Act. I, however, find no merit in this contention. The expression commercial purpose used in Section 2(1)(d) of the Act came up for consideration of this Commission in Kavita Ahuja Vs. Shipra Estates Ltd., CC 137 of 2010 decided on 12-02-2015 and the following view was taken:
“The expression ‘commercial purpose’ has not been defined in the Act and therefore, as held herein below by the Hon’ble Supreme Court in Laxmi Engineering Works Vs. P.S.G. Industrial Institute (1995) 3 SCC 583, we have to go by the dictionary meanings,
“In the absence of a definition, we have to go by its ordinary meaning ‘Commercial’ denotes “pertaining to commerce” (Chamber’s Twentieth Century Dictionary); it means “connected with, or engaged in commerce; mercantile, having profit as the main aim” (Collins English Dictionary) whereas the word ‘commerce’ means “financial transactions especially buying and selling of merchandise on a large scale” (Concise Oxford Dictionary)”.
6. Going by the Dictionary meaning of the expression ‘Commerce’ as far as hiring or availing services are concerned, a person can be said to have hired or availed services only if they are connected or related to the business or commerce in which he is engaged. In other words, the services in order to exclude the hirer from the ambit of Section 2(1)(d) of the Act should be availed for the purpose of promoting, advancing or augmenting an activity, the primary aim of which is to earn profit with use of the said services. It would ordinarily include activities such as manufacturing, trading or rendering services. In the case of the purchase of houses which the service provider undertakes to construct for the purchaser, the purchase can be said to be for a commercial purpose only where it is shown that the purchaser is engaged in the business of purchasing and selling houses and / or plots on a regular basis, solely with a view to make profit by sale of such houses. If however, a house to be constructed by the service provider is purchased by him purely as an investment and he is not undertaking the trading of houses on a regular basis and in the normal course of the business profession or services in which he is engaged, it would be difficult to say that he had purchased houses for a commercial purpose. A person having surplus funds available with him would not like to keep such funds idle and would seek to invest them in such a manner that he gets maximum returns on his investment. He may invest such funds in a Bank Deposits, Shares, Mutual Funds and Bonds or Debentures etc. Likewise, he may also invest his surplus funds in purchase of one or more houses, which is/are proposed to be constructed by the service provider, in the hope that he would get better return on his investment by selling the said house(s) on a future date when the market value of such house (s) is higher than the price paid or agreed to be paid by him. That by itself would not mean that he was engaged in the commerce or business of purchasing and selling the house (s).
7. Generating profit by way of trading, in my view is altogether different from earning capital gains on account of appreciation in the market value of the property unless it is shown that the person acquiring the property was engaged in such acquisition on a regular basis and it was by way of a business activity.”
If a person is residing, say, in a government accommodation and, therefore, does not immediately need to occupy a residential flat and, hence let it out in the interregnum till he retires and has to vacate the government accommodation it cannot be said that the residential accommodation is acquired by him for a commercial purpose. The objective behind acquiring accommodation is to live in it, though on a future date. Mere postponement of the date on which the purchaser has to shift to the residential accommodation does not convert the purpose for which accommodation is acquired to a commercial purpose. I, therefore, find no merit in the contention.
16. It was next contended by the learned counsel for the opposite party that since the sale consideration paid by the complainants was less than Rs.1,00,00,000/- the complaint is maintainable before the concerned State Commission and not before this Commission. Again, I find no merit in the contention. The case of the complainants is that current market value of such apartments is not less than Rs.10,000/- per sq. ft. calculated accordingly the current market value of the individual flats booked by the complainants comes to more than Rs.1,00,00,000/- in every complaint. One of the prayers made in the complaint is to direct the opposite party to handover possession of the flat to the complainants. For the purpose of this relief, the current market value of the flat would be the pecuniary value of the service and since the said value is more than Rs.1,00,00,000/- in each case, it cannot be disputed that only this Commission has the jurisdiction to entertain this complaint.
17. It was next contended by the learned counsel for the complainant that since the last date stipulated in the buyers agreement for giving possession of the flat to them expired more than two years ago the complaint is barred by limitation prescribed in Section 24A of the Consumer Protection Act. It is by now settled legal proposition that failure to deliver possession being a continuous wrong it constitutes a recurrent cause of action and, therefore, so long as the possession is not delivered to him the buyers can always approach a Consumer Forum. It is only when the seller flatly refuses to give possession that the period of limitation prescribed in Section 24A of the Consumer Protection Act would began to run. In that case the complaint has to be filed within two years from the date on which the seller refuses to deliver possession to the buyer. However, in the present cases the opposite party did not refuse possession of the flats to the complainants at any point of time and, therefore, the cause of action continues to subsist in favour of the complainants. Reliance in this regard may be place upon the decision of the Hon’ble Supreme Court in Meerut Development Authority Vs. M.K. Gupta, IV(2012) CPJ 12 where the Hon’ble Supreme Court held that in such a case the buyer has a recurrent cause for filing a complaint for non-delivery of possession of the plot.
18. It was also contended by the learned counsel for the opposite party that since the agreements between the parties contains arbitration clause, arbitration and not a complaint before this Commission is the appropriate remedy. I, however, find no merit in this contention. As provided in Section 3 of the Consumer Protection Act, the provision of this Act are in addition to the other remedies available to a consumer. Therefore, the availability of arbitration as a remedy does not debar the complainant from approaching a consumer forum in a case of deficiency in the services rendered to him by the service provider or adoption of unfair trade practices by him. This issue came up for consideration of the Hon’ble Supreme Court in National Seeds Corporation Vs. M. Madhusudhan Reddy & Anr. (2012)2 SCC 506 and after taking into consideration the provisions of the Section 8 of the Arbitration Act of 1996 and the Section 3 of the C.P. Act it was held that the plain language of Section 3 of the C.P. Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force. The Hon’ble Supreme Court has also held that the complaint filed by a consumer before the consumer fora would be maintainable despite their being an arbitration clause in the agreement to refer the dispute to the Arbitrator. In view of the above referred authoritative pronouncement of the Hon’ble Supreme Court which was later followed by a Three Members Bench of this Commission in DLF Ltd. Vs. Mridul Estate Pvt. Ltd., R.P. No.412 of 2011 decided on 13-05-2013, the aforesaid contention advanced by the learned counsel for the opposite party is liable to be rejected.
19. For the reasons stated hereinabove, I am of the considered view that the opposite party should handover possession of the apartments booked by the complainants on or before the last date stipulated in the letter of the opposite party dated 27-05-2015. In the cases of those complainants who are the initial allottees of the apartments or who acquired the same within one year of the initial allotment, the opposite party should also pay compensation to them in the form of simple interest at the rate of 12% per annum with effect from the date of possession stipulated in the agreement till the date on which the possession is actually handed over to them. The persons who purchased the flats within one year of the initial allotment, ought to be treated at par with the initial allottees, because atleast two more years being still available to the opposite party at the time of purchase by them, they could not have anticipated that the builder will not be able to honour its commitment, as regards the stipulated date of delivery of possession. No separate compensation for the mental agony, harassment and suffering needs to be paid by the opposite party to the complainants. However, in the case of those complainants who acquire the flats by way of resale more than one year after the initial allotment, the opposite party should pay compensation in the form of simple interest at the rate of 12% per annum with effect from three years from the date of the repurchase till the date on which the possession is delivered to them. As in other cases no compensation would be payable for the first three years from the date of initial allotment of the flat. For the interregnum i.e. between three years from the date of initial allotment and three years from the date of repurchase by them, compensation shall be paid by the opposite party at the rate of Rs.5/- per sq. ft. of the super area in terms of clause 4.c of the buyers agreement. I am awarding lesser compensation to those purchased the flat from the initial allottee more than one year after the date of initial allotment, considering the decision of the Hon’ble Supreme Court in Haryana Urban Development Authority Vs. Raje Ram, AIR 2009 SC 2030. In that case, HUDA allotted a plot of land to one Madan Lal who deposited the 25% of the cost of the plot. Later, HUDA notified revision of the price and gave an option to the allottees to either accept the revision or receive back the initial deposit with interest. Onn the request of the allottee and the respondent the allotment was transferred in favour of the respondent. Since HUDA failed to deliver possession of the plot within the stipulated time, the respondent approached the concerned District Forum expressing grievance against non-delivery of the possession within the stipulate time. HUDA then offered possession of the plot to him and the District Forum disposed of the complaint with a direction to HUDA to pay interest to the respondent at the rate of 18% per annum from the date of deposit till the date of offer of possession. Having been unsuccessful before the State Commission and this Commission, HUDA approached the Hon’ble Supreme Court by way of special leave. It was held by the Hon’ble Supreme Court that the respondent knew at the time the plot was realloted to him that there was delay and in spite of that he took the re-allotment. It was held that the case of the respondent could not be compared to the case of the original allottees. The respondents were aware at the time of purchase that the time for performance was not stipulated as the essence of the contract and the original allottee had accepted the delay. It was, therefore, held that the respondents were not entitled to interest on the amount deposited by them. The persons who purchased flats more than one year after the date of initial allotment, could foresee that the builder will not be able to deliver the possession of the flat by the stipulated date. This is not their case that when they acquired the allotment by way of repurchase, they had found that the builder had already completed the development which it was expected to complete by that time or that the builder had assured them that it would give possession to them by the original date stipulated in the agreement. Such persons therefore cannot be treated at par with the original allottees or those who acquired the allotment within one year of the initial allotment.
20. It was contended on behalf of the complainants that they should be awarded compound interest at the rate of 18% per annum, which was the rate at which they were to pay interest to the builder, in the event of default on their part in making timely payment. I however, find no merit in the contention. The opposite parties admittedly did not agree to pay compounded interest to the complainants @ 18% per annum in case they were not able to hand over possession of the apartments within the time stipulated in the agreement. In such a case, the complainants would be entitled only to compensation commensurate with the financial loss actually suffered by them on account of the delay on the part of the opposite parties in handing over possession of the apartments to them and some compensation for the mental agony claimed by them on account of the delay in getting possession of the flats, but, they cannot seek to make a windfall over and above the actual financial loss suffered by them. A consumer coming to the Consumer Forum alleging deficiency on the part of the opposite party in rendering services to him can seek and recover a just and fair compensation but cannot seek to earn profit like in a commercial venture.
21. It transpired during the course of arguments that the service tax has increased with effect from 01.06.015. Had the opposite party delivered possession in time, the complainants would have paid service tax at the pre-revised rate. I therefore, hold that the increase in service tax with effect from 01.6.2015 should be borne by the opposite party.
22. I also feel that in order to ensure that the opposite party does honour the revised date of delivery of possession; compensation in the form of interest at a rate higher than 12% per annum should be paid by the opposite party, if the revised date of delivery of possession is not honoured by the opposite party.
23. For the reasons stated herein above, the complaints are disposed of with the following directions:-
(a) The opposite party shall deliver possession of the respective flats of the complainants to them on or before the last date stipulated in its letter dated 27.05.2015;
(b) The opposite party shall pay to (i) the original allottees and (ii) to those who acquired the allotment by way of repurchase, within one year of the date of the initial Agreement of their respective flats, compensation in the form of simple interest at the rate of 12% per annum with effect from 36 months from the date of the initial Agreement till the date possession is delivered to them. The interest payable till 31.08.2015 shall be paid by 10.09.2015, in three equal instalments, by the 10th of each month i.e. by 10th July, 2015, 10th August, 2015 and 10th September, 2015. Thereafter, compensation in the form of interest, in terms of this order, shall be paid on monthly basis by the 10th of each succeeding month.
(c) Such of the complainants, who acquired allotment of the flat by way of repurchase more than one year after the date of the initial allotment of their respective flats, shall be paid compensation by way of simple interest at the rate of 12% per annum, with effect from 36 months from the date of repurchase by them, till possession is delivered to them. They will also be paid compensation at the rate of Rs.5/- per square foot of the super area of their respective flat for the period between 36 months from the date of the initial Buyers Agreement of their respective flats and 36 months from the date of repurchase of the flat by them.
(d) The increase in service tax with effect from 01.06.2015 shall be borne by the opposite party, in all these cases.
(e) If the opposite party fails to deliver possession by the last date stipulated in its letter dated 27.05.2015, it shall pay compensation to all the complainants in the form of simple interest at the rate of 18% per annum, for each day there is delay, beyond the date stipulated in the said letter dated 27.05.2015, in delivering possession to the complainants.
(f) The opposite party shall pay Rs.5,000/- as the cost of litigation in each complaint.
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