TMI Blog2019 (4) TMI 231X X X X Extracts X X X X X X X X Extracts X X X X ..... Buyer s Agreement by filing the Consumer Complaint, and cannot be compelled to accept the possession whenever it is offered by the Builder. The Respondent Purchaser was legally entitled to seek refund of the money deposited by him along with appropriate compensation. A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder - The contractual terms of the Agreement dated 08.05.2012 are ex-facie one-sided, unfair, and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder. There is no hesitation in holding that the terms of the Apartment Buyer s Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent Flat Purchaser. The Appellant Builder could not seek to bind the Respondent with such one-sided contractual terms - appeal dismissed. - CIVIL APPEAL NO. 12238 OF 2018, CIVIL APPEAL NO. 1677 OF 2019 - - - Dated:- 2-4-2019 - UDAY UMESH LAL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8377; 1,00,000/-. 3.4. On 06.02.2017, the National Commission passed an ex-parte Interim Order restraining the Appellant Builder from cancelling the allotment made in favour of the Respondent Flat Purchaser during the pendency of the Consumer Case. 3.5. During the pendency of the proceedings before the National Commission, the Appellant Builder obtained the Occupancy Certificate on 23.07.2018, and issued a Possession Letter to the Respondent Flat Purchaser on 28.08.2018. 3.6. The Appellant Builder submitted before the National Commission that since the construction of the apartment was complete, and the Occupancy Certificate had since been obtained, the Respondent Flat Purchaser must be directed to take possession of the apartment, instead of directing refund of the amount deposited. 3.7. The Respondent Flat Purchaser however submitted that he was not interested in taking possession of the apartment on account of the inordinate delay of almost 3 years. The Respondent Flat Purchaser stated that he had, in the meanwhile, taken an alternate property in Gurugram, and sought refund of the entire amount of ₹ 4,48,43,026/- deposited by him along with Inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt would be refunded. 3.9. Aggrieved by the Order dated 23.10.2018 passed by the National Commission, the Appellant Builder preferred the present statutory Appeal under Section 23 of the Consumer Protection Act, 1986. 4. Mr. C.A. Sundaram, Senior Counsel appeared for the Appellant Builder, and drew our attention to the following Clauses in the Apartment Buyer s Agreement dated 08.05.2012 viz. Clause 11.5 (ii), (iv) and (v) along with Clause 20 which read as under : 11.5. (ii) In the event of further delay by the Developer in handing over of the possession of the Unit even after 12 months from the end of grace period, then in such case, the intending Allottee shall have an additional option to terminate this Agreement by giving termination notice of 90 days to the Developer and refund of the actual installment paid by him against the Unit after adjusting the taxes paid / interest / penalty on delayed payments. (iv) Developer shall, within ninety (90) days from the date of receipt of termination notice of said Unit, refund to the intending Allottee, all the monies received excluding the service tax collected on various remittances, till the date of the refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Flat Purchaser had not terminated the Agreement by a written notice as per Clause 11.5, the Builder could not sell the apartment, and refund the money to the Respondent Flat Purchaser. On the contrary, the Respondent filed a Consumer Complaint and obtained an ex-parte Interim Order dated 06.02.2017 restraining the Builder from cancelling the allotment made in favour of the Respondent. 4.2. It was further submitted that if the filing of the Consumer Complaint is considered as an act of termination of the Agreement, then the same was pre-mature. As per Clause 11.5 (ii), the Respondent Flat Purchaser could have claimed refund only after the expiry of 12 months after the grace period came to an end i.e. after 04.03.2017. However, the Consumer Complaint was filed on 27.01.2017. In these circumstances, even if it is found that the Appellant Builder is liable to refund the amount deposited with Interest, then the date of the Impugned Order i.e. 23.10.2018, must be treated as the date of serving the Termination Notice as per Clause 11.5 (ii) of the Agreement, and the Appellant Builder should be held liable to pay Interest only after 90 days from the date of termination i.e. fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e National Commission had ordered payment of Interest as per the statutory Rules i.e. Rule 15 of the Haryana Real Estate (Regulation and Development) Rules, 2017 @10.7% S.I. p.a. The Respondent Flat Purchaser submitted that he had obtained a loan for ₹ 3,30,00,000/- from Standard Chartered Bank to purchase the flat in question, and had entered into a Tripartite Loan Agreement with the Bank and the Builder. The Respondent Flat Purchaser had to pay Interest @10% p.a. for servicing the loan for the entire period. Hence, Interest @10.7% S.I. p.a. awarded by the National Commission was just and fair. It was pointed out that even though the National Commission had not granted Interest for the period during which the Order of stay of cancellation of the allotment was in operation, the Respondent Flat Purchaser had to pay Interest to the Bank even for this period. 5.4. The Respondent Flat Purchaser submitted that the present Appeal be dismissed, and the Builder be directed to pay the amount awarded by the National Commission with Interest, within 1 week, so that the Respondent can discharge his loan liability. 6. We have heard the learned Counsel for both the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Apartment Buyer s Agreement dated 08.05.2012 reveals stark incongruities between the remedies available to both the parties. For instance, Clause 6.4 (ii) of the Agreement entitles the Appellant Builder to charge Interest @18% p.a. on account of any delay in payment of installments from the Respondent Flat Purchaser. Clause 6.4 (iii) of the Agreement entitles the Appellant Builder to cancel the allotment and terminate the Agreement, if any installment remains in arrears for more than 30 days. On the other hand, as per Clause 11.5 of the Agreement, if the Appellant Builder fails to deliver possession of the apartment within the stipulated period, the Respondent Flat Purchaser has to wait for a period of 12 months after the end of the grace period, before serving a Termination Notice of 90 days on the Appellant Builder, and even thereafter, the Appellant Builder gets 90 days to refund only the actual installment paid by the Respondent Flat Purchaser, after adjusting the taxes paid, interest and penalty on delayed payments. In case of any delay thereafter, the Appellant Builder is liable to pay Interest @9% p.a. only. 6.5. Another instance is Clau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction. These cases can neither be enumerated nor fully illustrated. The court must judge each case on its own facts and circumstances. (emphasis supplied) 6.7. A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the Agreement dated 08.05.2012 are ex-facie one-sided, un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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