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2016 (8) TMI 1457 - Commission - Indian LawsWhether the complainants are entitled to any compensation for the delay on the part of the opposite party in offering possession to them and if so, what should be the quantum of compensation which the opposite party needs to pay to them? HELD THAT - 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. Though in SHRI SATISH KUMAR PANDEY ANR. VERSUS M/S UNITECH LTD. AND OTHERS 2015 (6) TMI 330 - NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI , this Commission had awarded compensation in the form of interest @ 12% per annum, considering the recent decline in the cost of borrowing and return on the investments made with the banks, I am of the considered view that payment of an all inclusive compensation in the form of interest @ 10% per annum will meet the interest of justice. The opposite party shall complete the construction in all respects unless already complete, obtain all the requisite approvals including the occupancy certificate, at its own cost and responsibility and offer possession of the flat booked by the complainants, to them on or before 31.01.2017 - The opposite party shall pay, to the complainants, compensation in the form of simple interest @ 10% per annum w.e.f. from the committed date of possession as per the Buyers Agreement till the date possession is offered to them in terms of this order. The balance amount, if any, payable by the complainants, shall be adjusted while paying compensation in terms of this order. The compensation shall be paid on or before the date on which the possession in terms of this order is offered to the complainants. If the opposite party fails to deliver possession and pay compensation in terms of this order, the complainants shall be entitled to seek execution of this order under Section 25 27 of the Consumer Protection Act - The opposite party shall pay ₹ 10,000/- as cost of litigation to the complainants.
Issues Involved:
1. Delay in possession of the apartment. 2. Compensation for delay. 3. Unfair trade practices. 4. Clauses in the Apartment Buyers Agreement. 5. Time as the essence of the contract. 6. Justification for delay. 7. Compensation for mental harassment and rental accommodation. 8. Cost of litigation. Detailed Analysis: 1. Delay in Possession of the Apartment: The complainants booked a residential apartment in a project named 'Lotus Panache' and entered into an Apartment Buyers Agreement on 29.06.2010. The opposite party was to complete the construction within 39 months from the date of allotment, meaning possession was to be delivered by 27.09.2013. However, possession was not offered by this date, and the deadline was extended multiple times, causing the complainants to seek redressal for the delay. 2. Compensation for Delay: The complainants sought compensation for the delay in possession, including interest at 18% per annum on the amount already paid, delay charges as per the agreement, damages for mental harassment, and compensation for rental accommodation. The Commission held that the complainants are entitled to compensation for the delay. The opposite party was directed to pay compensation in the form of simple interest at 10% per annum from the committed date of possession until the date possession is offered. 3. Unfair Trade Practices: The complainants accused the opposite party of engaging in unfair trade practices. The Commission found merit in the complainants' submission that the term providing for nominal compensation in the event of delay was one-sided, unfair, and unreasonable. Such practices were deemed to constitute unfair trade practices under Section 2(r) of the Consumer Protection Act, 1986. 4. Clauses in the Apartment Buyers Agreement: The opposite party relied on clauses 5.1, 5.2, and 5.5 of the Buyers Agreement to argue that they were only to endeavor to complete the construction within the stipulated time and that delays due to reasons beyond their control should not attract damages. However, the Commission held that unless prevented by reasons beyond its control, the opposite party was under a contractual obligation to complete the construction and hand over possession within 39 months. 5. Time as the Essence of the Contract: The opposite party contended that time is not the essence of the contract in transactions involving the sale of immovable property, citing the Supreme Court's decision in Smt. Chand Rani Vs. Smt. Kamal Rani. The Commission, however, distinguished this case from the present context, emphasizing that the primary purpose of booking a residential flat is to start living in it on the committed date. Therefore, unjustified delays constitute a deficiency in service. 6. Justification for Delay: The opposite party cited several reasons for the delay, including a shortage of manpower and materials due to the Commonwealth Games, agitation by farmers, and restrictions by the National Green Tribunal. The Commission found that these reasons were not substantiated with adequate evidence. The delay could not be justified based on these grounds. 7. Compensation for Mental Harassment and Rental Accommodation: The complainants also sought damages for mental harassment and compensation for rental accommodation. The Commission directed the opposite party to pay ?10,000 as the cost of litigation but did not specifically address the quantum of damages for mental harassment and rental accommodation in the detailed order. 8. Cost of Litigation: The opposite party was directed to pay ?10,000 as the cost of litigation to the complainants. Conclusion: The complaint was disposed of with the following directions: - The opposite party shall complete the construction, obtain all requisite approvals, and offer possession of the flat by 31.01.2017. - The opposite party shall pay compensation in the form of simple interest at 10% per annum from the committed date of possession until the date possession is offered. - If the opposite party fails to deliver possession and pay compensation, the complainants can seek execution of the order under Section 25 & 27 of the Consumer Protection Act. - The opposite party shall pay ?10,000 as the cost of litigation to the complainants.
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