JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL) The complainants booked a residential unit with the OP in a project namely Ansal Crown Heights which the OP was to develop in Faridabad. Vide allotment letter dated 22.10.2012, flat no.1803 in Tower-I of the said project was allotted to the complainants. The parties then executed a Flat Buyers Agreement on 22.10.2012 incorporating their respective obligations in respect of the said allotment. As per clause 4 of the agreement, the possession was to be delivered within 36 months of its execution subject to force majeure circumstances. The possession therefore, ought to have been delivered to the complainant by 22.10.2015. The grievance of the complainants is that the possession has not been offered to them and even the construction is not complete despite they having paid as much as Rs.88,29,340/- to the OP. The complainants therefore, approached this Commission, seeking either delivery of possession of the allotted flat within six months of the filing of the complaint or refund of the amount paid by them to the OP alongwith compensation etc.

2. The complaint was resisted by the OP primarily on the ground on which CC No.567 of 2017 was Rakesh Hans & Anr. Vs. M/s Ansal Crown Infrabuilt Pvt. Ltd. decided on 12.07.2018 contested. The said grounds, as noted in the above referred decision, are as under: The complaint has been resisted by the opposite party which has taken a preliminary objection that since the sale price of the flat was below Rs.1.00 crores, this Commission lacks pecuniary jurisdiction to entertain the complaint. It is also alleged that since the flat was purchased by the complainants for making profit, they do not qualify as consumers. On merits, the transfer of the allotment in favour of the complainants has not been disputed. The delay in completion of the construction is sought to be justified on the grounds that (i) there was delay on the part of the Directorate of Town & Country Planning Haryana in renewing the license of the opposite party, (ii) There was delay by Directorate of Town & Country Planning Haryana in revalidating the building plans, (iii) The work was affected on account of the contractor appointed by the OP having not completed the construction in time and thereafter having created hindrance in completion of the project by another contractor. It is also alleged that out of ten towers, construction work is going on in eight towers and 95% work is completed in four towers whereas 70% work is complete in remaining towers. It is also alleged that during the intervening period, majority of the buyers defaulted in making payments in terms of their agreement and a sum of Rs.50.00 crores is outstanding from the flat buyers to the OP, leading to a financial crunch. It is also alleged that as per the agreement between the parties, in the event of delay in construction, compensation quantified at Rs.5/- per sq.ft. per month for the period of delay was payable to the flat buyers, provided the delay can be attributed to the builder and no claim by way of damages or compensation is payable if the delay is on account of reasons beyond the control of the promoter.

3. As far as pecuniary jurisdiction is concerned, in terms of Section 21 of the Consumer Protection Act, this Commission possesses the requisite pecuniary jurisdiction where the value of the goods or services as the case may be and the compensation claimed exceeds Rs.1 Crore. As held by a three Members Bench of this Commission in CC No.97 of 2016 Ambrish Kumar decided on 07.10.2016, the value of the Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd., services in such a case would mean the sale amount agreed to be paid by the flat buyer to the developer. In the present case, the agreed sale consideration was Rs.94,43,172/-. If even a part of the compensation claimed by the complainants is added to the said sale consideration, the aggregate would be much above Rs.1 Crore. Therefore, it would be difficult to say that this Commission does not possess the requisite pecuniary jurisdiction.

4. A perusal of the letter dated 21.09.2017 sent by the OP to the Director, Town and Country Planning, Haryana would show that the license issued to the company expired on 17.09.2017. Though it is alleged that there was delay on the part of the DTCP in renewing the licence, the written version does not explain on which date the licence was renewed. In any case, since the opposite party knew well in advance that the licence would expire on 17.9.2017 they ought to have applied for its renewal well in time. Therefore, the alleged delay in the renewal of the licence does not justify the delay in completion of the construction.

5. As far as the delay on account of the contractor appointed by the opposite party having not completed the construction in time is concerned, that would hardly be relevant from the point of view of the complainant. If the contractor appointed by the opposite party had delayed the construction, the opposite party can take such action as may be open to it in law against the said contractor including the recovery of damages from him but, the allottee is not at all concerned with the delay on the part of the private contractor appointed by the developer.

6. As far as the alleged delay on the part of other flat buyers in making payment is concerned, again a person who has not defaulted in performance of his contractual obligation cannot be penalized for the default on the part of the other flat buyers. If other flat buyers were in default, it was for the opposite party to take such action as was open to it in terms of the contract it had executed with them including cancellation of their allotments and sale of the flats allotted to such defaulting buyers in the market and to arrange finance from alternative sources in the meanwhile.

8. As far as the term envisaging payment of compensation @ Rs.5/- per sq.ft. per month in the event of delay in completion of the construction is concerned, such clauses have consistently been held to be unfair and wholly one sided and therefore, cannot be enforced. A reference in this regard can be made to the decision of the Honble Supreme Court in Pioneer Urban Land & which to the extent it is Infrastructure Ltd. Vs. Govindan Raghavan (2019) 5 SCC 725 , [LQ/SC/2019/611] relevant, reads as under: 6.4. A perusal of the Apartment Buyers 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 Clause 23.4 of the Agreement which entitles the Appellant Builder to serve a Termination Notice upon the Respondent Flat Purchaser for breach of any contractual obligation. If the Respondent Flat Purchaser fails to rectify the default within 30 days of the Termination Notice, then the Agreement automatically stands cancelled, and the Appellant Builder has the right to forfeit the entire amount of Earnest Money towards liquidated damages. On the other hand, as Clause 11.5 (v) of the Agreement, if the Respondent Flat Purchaser fails to exercise his right of termination within the time limit provided in Clause 11.5, then he shall not be entitled to terminate the Agreement thereafter, and shall be bound by the provisions of the Agreement.

6.6. Section 2 (r) of the Consumer Protection Act, 1986 defines unfair trade practices in the following words :

unfair trade practice means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice

, and includes any of the practices enumerated therein. The provision is illustrative, and not exhaustive.

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, 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.

8. For the reasons stated hereinabove, I find no justification for the abnormal delay in completion of the construction and delivery of possession of the allotted flat to the complainant. The admitted position is that even as on today, the OP has not completed the construction of the flat allotted to the complainant and is not in a position to offer its possession to him. Therefore, the complainant cannot be made to wait indefinitely for the possession of the allotted flat and is entitled to seek refund of the amount paid by him to the Developer alongwith appropriate compensation. A reference in this regard can be made to the decision of the Honble Supreme Court in Civil Appeal No. 12238 of 2018 Pioneer Urban Land & Infrastructure Ltd. Vs. decided on 02.04.2019 and the decision of the Govindan Raghavan & Connected Matter Honble Supreme Court in Civil Appeal No. 3182 of 2019 Kolkata West International City decided on 25.03.2019, in taking the view that in a case of an Pvt. Ltd. Vs. Devasis Rudra unreasonable delay in offering possession of the allotted flat, the consumer cannot be compelled to accept possession at a belated stage and is entitled to seek refund of the amount paid by him to the builder with compensation.

9. In the possession was offered to the complainant/appellant during Devasis Rudra (supra), the pendency of the complaint before the State Commission and it was contended that the said builder having made substantial investment in terms of the agreement, a direction for refund was not warranted. In the Consumer Complaint filed in the Devasis Rudra (supra), complainant/appellant had prayed for possession of the house and in the alternative, for refund of the amount paid by him to the developer. In view of the said prayer made in the Consumer Complaint, it was argued on behalf of the builder that he should be made to accept possession of the allotted house and refund and not be allowed to him. The complainant, on the other hand, contended that at the time the Consumer Complaint was filed, he was ready and willing to accept the possession, but seven years having elapsed, he was not more willing to accept possession. Allowing the appeal, the Honble Supreme Court inter-alia held as under:

It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years is beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund.

10. In the builder submitted before this Pioneer Urban Land & Infrastructure Ltd. (supra), Commission itself that since the construction of the apartment was complete and Occupancy Certificate had been obtained, the flat purchaser must be directed to accept the possession instead of directing refund of the amount deposited. In that case, there was a delay of about three years in offering possession and the flat purchaser had submitted that he was not interested in taking possession after delay of about three years. He also stated that he had taken an alternative property in Gurgaon. This Commission having allowed refund to the complainant/respondent, the appellant before the Honble Supreme Court inter-alia contended that as per the terms of the agreement executed between the parties, the flat purchaser could claim refund only after expiry of twelve months from the grace period by terminating the agreement but the Consumer Complaint had been filed even before the said twelve months period after the grace period had come to an end. It was also submitted on behalf of the builder that this Commission had erred in granting interest at the rate of 10.7% per annum to the complainant when the agreement between the parties provided for payment of interest @ 6% per annum in case of delay in handing over possession. Rejecting the contentions advanced by the builder, the Honble Supreme Court inter-alia held as under:

6.1. In the present case, admittedly the Appellant Builder obtained the Occupancy Certificate almost 2 years after the date stipulated in the Apartment Buyers Agreement. As a consequence, there was a failure to hand over possession of the flat to the Respondent Flat Purchaser within a reasonable period. The Occupancy Certificate was obtained after a delay of more than 2 years on

28.08.2018 during the pendency of the proceedings before the National Commission. In Lucknow Development Authority v. M.K. Gupta, 2 this Court held that when a person hires the services of a builder, or a contractor, for the construction of a house or a flat, and the same is for a consideration, it is a service as defined by Section 2 (o) of the Consumer Protection Act,

1986. The inordinate delay in handing over possession of the flat clearly amounts to deficiency of service. In Fortune Infrastructure & Anr. v. Trevor DLima & Ors.,3 this Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation.

6.2. The Respondent Flat Purchaser has made out a clear case of deficiency of service on the part of the Appellant Builder. The Respondent Flat Purchaser was justified in terminating the Apartment Buyers 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.

6.3. The National Commission in the Impugned Order dated 23.10.2018 held that the Clauses relied upon by the Builder were wholly one-sided, unfair and unreasonable, and could not be relied upon. The Law Commission of India in its 199th Report, addressed the issue of Unfair (Procedural & Substantive) Terms in Contract. The Law Commission inter-alia recommended that a legislation be enacted to counter such unfair terms in contracts. In the draft legislation provided in the Report, it was stated that :

A contract or a term thereof is substantively unfair if such contract or the term thereof is in itself harsh, oppressive or unconscionable to one of the parties.

6.6. Section 2 (r) of the Consumer Protection Act, 1986 defines unfair trade practices in the following words :

unfair trade practice means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice

, and includes any of the practices enumerated therein. The provision is illustrative, and not exhaustive.

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, 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.

7. In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyers 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.

8. We also reject the submission made by the Appellant Builder that the National Commission was not justified in awarding Interest @10.7% S.I. p.a. for the period commencing from the date of payment of each installment, till the date on which the amount was paid, excluding only the period during which the stay of cancellation of the allotment was in operation. 1. 2. 3. In Bangalore Development Authority v. Syndicate Bank, a Coordinate Bench of this Court held that when possession of the allotted plot/flat/house is not delivered within the specified time, the allottee is entitled to a refund of the amount paid, with reasonable Interest thereon from the date of payment till the date of refund.

11. For the reasons stated hereinabove, the complaint is disposed of in terms of the following directions:- The opposite party shall refund the entire principal amount of Rs.8829340/- to the complainant along with compensation, in the form of simple interest @ 10.25% per annum which is stated to be the interest rate prescribed in Haryana under the provisions of RERA for the cases in which refund is made to the allottee on account of delay on the part of the builder in completion of the construction. The opposite party shall pay a sum of Rs.25,000/- as the cost of litigation to the complainant. The payment in terms of this order shall be made within three months from today. However, if the opposite party files an affidavit of its Managing Director within two weeks, undertaking therein to make entire payment in terms of this order within nine months, it shall be entitled to make said payment within nine months from today. ......................J V.K. JAIN PRESIDING MEMBER