Case: PIONEER URBAN LAND AND INFRASTRUCTURE LTD Vs. GOVINDAN RAGHAVAN

The Appellant – Builder launched a residential project by the name ?Araya Complex? in Sector 62, Golf Course Extension Road,Respondent – Flat Purchaser entered into an Apartment Buyer?s Agreement dated 08.05.2012 with the Appellant – Builder to purchase an apartment in the said project for a total sale consideration of Rs.The excavation of the project commenced on 04.06.2012. As per Clause 11.2 of the Agreement, the Builder was required to apply for the Occupancy Certificate by 04.09.2015, or within a further grace period of 6 months i.e. by 04.03.2016, and offer possession of the flat to the Respondent – FlatThe Respondent – Flat Purchaser filed a Consumer Complaint before the National Commission on 27.01.2017 alleging deficiency of service on the part of the Appellant – Builder for failure to obtain the Occupancy Certificate, and hand over possession of the flat. The Respondent prayed inter-alia forThe 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 belatedgrounds 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 – FlatAppellant – 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. The rate of Interest @10.7% S.I. p.a. was fixed in accordance with Rule 15 of the Haryana Real Estate (Regulation and Development) Rules, 2017 which reads as followsAn allottee shall be compensated by the promoter for loss or damage sustained due to incorrect or false statement in the notice, advertisement, prospectus or brochure in the terms of Section 12. In case, allottee wishes to withdraw from the project due to discontinuance of promoter?s business as developers on account of suspension or revocation of the registration or any other reason(s) in terms of clause (b) sub- section (I) of Section 18 or the promoter fails to give possession of the apartment/ plot in accordance with terms and conditions of agreement for sale in terms of sub-section (4) of section 19. The promoter shall return the entire amount with interest as well as the compensation payable. The rate of interest payable by the promoter to the allottee or by the allottee to the promoter, as the case may be, shall be the State Bank of India highest marginal cost of lending rate plus two percent.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.

Reasoning:
7. In view of the above discussion, we have 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.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 inIn the present case, the National Commission has passed an equitable Order. The Commission has not awarded any Interest for the period during which the Order of stay of cancellation of the allotment was in operation on the request of the Respondent – FlatNational Commission has rightly awarded Interest @10.7% S.I. p.a. by applying Rule 15 of the Haryana Real. Estate (Regulation And Development) Rules, 2017 from the date of each installment till 05.02.2017 i.e. till the date after which the Order of stay of cancellation of the allotment was passed; and thereafter, from the date of the Commission?s final Order till the date on which the amount is refunded with Interest.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.