Case: WG. CDR. ARIFUR RAHMAN KHAN AND ALEYA SULTANA Vs. DLF SOUTHERN HOMES PVT. LTD. (NOW KNOWN AS BEGUR OMR HOMES PVT. LTD.)

1. The National Consumer Disputes Redressal Commission dismissed a consumer complaint filed by 339 flat buyers, accepting the defence of DLF Southern Homes Pvt. Ltd. and Annabel Builders and Developers Pvt. Ltd. that there was no deficiency of service on their part in complying with their contractual obligations and, that despite a delay in handing over the possession of the residential flats, the purchasers were not entitled to compensation in excess of what was stipulated in the Apartment Buyers2. The complaint before the NCDRC was initially instituted by nine flat buyers. These nine complainants had booked residential flats in a project called Westend Heights at New Town, DLF, BTM Extension at Begu, Bengaluru. The project was being developed in an area admeasuring 27.5 acres and was to consist of 1980 units, spread across nineteen towers each consisting of a stilt and eighteen floors.3. The Brochure of the first respondent advertised the nature of the project and the amenities which would be provided to buyers. It held out the following representations on the basis of which buyers were induced to invest:New Town - the premier choice for Bangalore living. A premium residential enclave that celebrates life in all its resident splendor. Featuring spacious apartments and a rich selection of amenities, you will find in New Town, a residence specially appointed to maximize your comfort and convenience. In New Town premium high rise apartments are set against the backdrop of a vibrant living environment where fun, comfort, security, and serenity blend in perfect unison. Life at New Town satisfies all your needs and fulfils your hearts desire. Imagine a place where leisurely pursuits are always within reach. Imagine living where convenience is never more than around the corner.Westend Heights at New Tower DLF, BTM Extn.Designs, keeping in mind the modern day requirements and meeting them with apt amenities, Westend Heights is the first phase of New Town, with premium high-rise apartments at affordable prices. The complex brings you comfort living embodied in individual towers overlooking sprawling parks and vistas. This project is being developed in a land area of 27. 5 acres. The project consists of 1980 units spread across 19 towers that are Stilt+ 18 floors high.Fun, Fitness, Leisure, Right Next DoorThe most exclusive Club in Bangalore at New town, DLF BTM, EXTN,The Club set amidst a very comfortable setting is an impressive feature of New Town. It is specially designed to take care of all stresses brought on by the modern world. Altogether a beautiful composition, that blends seamlessly with your lifestyle.Gymnasium/ Aerobics CentreRestaurant & BarSpa, Massage & Beauty ParlourEase, Enjoyment, Convenience. Right Next DoorConvenient shopping facilities at New Town, DLF BTM EXTNShop with ease at our convenience shopping centre, well equipped to handle your everyday needs. The shopping centre will offer an array of outlets to make your life a trouble free affair.Experience convenience at your doorstepHope, Dreams, Future. Right Next DoorRenowned Early Learning School at New Town DLF BTM EXTN.Our play school airs to care for your child in a stimulating safe, fun-filled environment. It symbolizes our conviction that nurtured roots lay the foundation of a fully grown blossomed tree.Health, Wellbeing. Assurance, Right Next DoorState-of-the-art healthcare facilities at New Town DLF BTM EXTN.In these years of fast paced lives, your familys wellbeing is foremost in our minds. Our healthcare centre will better the latest in screening, diagnosis, and medical care with competent medical professionals by your side, we will make sure that you would always remain in the best of health.Comfort, Confidence, Peace of Mind Right Next Door.Keeping your loves ones safe and secure at New Town, DLF BTM EXTN.Let New Town set your mind at rest when it comes to security. Our advanced, state-of-the-art security system ensures comfort & peace of mind for you and your loved ones, with monitored gates, CCTV for parking and entrance lobby, video surveillance system and a rigorously screened 24-hour security guard workforce, New Town offers you a secure and a well-protected abode.4. Responding to the representation held out by the developer, the complainants booked flats in the residential project. The flat buyers entered into agreements with the developer. Clause 11(a) of the ABA indicated that the developer would endeavour to complete construction within a period of thirty-six months from the date of the execution of the agreement save and except for force majeure conditions. Clause 11(a) provided:11. (a) Schedule for Possession of the Said ApartmentThe Company/LOC based on the present plans and estimates and subject to all just exceptions, endeavors to complete construction of the Said Building /Said Apartment within a period of thirty six (36) months from the date of execution of this Agreement unless there shall be delay or failure due to Force Majeure conditions including but not limited to reasons mentioned in Clauses 11(b) and 11(c) or due to failure of Allottee to pay in time the Total Price and other charges taxes, securities etc. and dues/payments or any failure on the part of the Allottee to abide by all or any of the terms and conditions of this Agreement.5. Force majeure stipulations were illustrated in sub-clauses (b) and (c) of clause 11, which included delay due to the reasons beyond the control of the developer and failure to deliver possession due to Government rules, orders or notifications, respectively. Construction was behind schedule. The flat purchasers were informed on 12 January 2011 that possession of the apartments was expected to be completed by the middle of 2012. This assurance was not fulfilled. By a communication dated 18 June 2013, the developers issued a revised timeline intimating all flat buyers that the delivery of possession would commence from October 2013. However, on 8 August 2013 another communication was issued stating that the real estate industry was affected by an economic slow- down which had hampered the pace of construction. The date for handing over possession was extended to June 2014. A tentative schedule for delivery was indicated under which Towers D1 and D2 would be handed over by January 2014, and Towers A3 to A6, A7, B3 and B4 would be handed over by May 2014. On 8 August 2014, the timelines for handing over possession were again extended by the developers : under the revised schedule the flats in Towers D1 and D2 were to be handed over in August 2014, those in A1 to A-7 in February 2015, B1 to B6 in April 2015 and C1 to C4 in June 2015. On 4 May 2015, the developers issued another communication indicating the progress of the work and informed the purchasers that site visits had been initiated for the project till we receive the occupancy certificate for clusters A, B and C. This is an admission of the fact that until then the occupation certificate had not been received. The obligation to handover possession within a period of thirty-six months was not fulfilled.6. The first batch of nine flat purchasers moved a consumer complaint before the NCDRC complaining of a breach by the developer of the obligation, contractually assumed, under the terms of the ABA. Since the nine complainants purported to represent the entire group of flat purchasers, a notice of the complaint under Section 12(1)(c) of the Consumer Protection Act 1986 (CP Act 1986) was published in the newspapers.7. Numerous applications for impleadment were allowed by the NCDRC and an amended complaint was ordered to be filed. On the complainants moving an application under Section 12(1)(c), the NCDRC by its order dated 21 November 2017 permitted them to file the complaint on behalf or for the benefit of all the flat buyers who were interested in the reliefs. However, flat buyers who had (i) executed deeds of conveyance; or (ii) executed affidavits while accepting the agreed compensation in full and final satisfaction; or (iii) received possession within the stipulated time period; or (iv) had sold their flats after the execution of the conveyance; or (v) who were subsequent purchasers having purchased the flat after the execution of the conveyance deed were to remain outside the purview of the proceedings. Further, the buyers from whom Preferential Location Charges, charges for the preferential location of the apartment, were not charged and were not chargeable were to remain out of the class on whose behalf or benefit the complaint was instituted. On a challenge to the order, this Court by an 8 order dated 10 April 2018 directed:Since the complaint filed by the appellants was only by nine persons jointly for their benefit, the same could not be treated to be in representative capacity. Accordingly, the impugned order is set aside.Aggrieved parties are at liberty to file an appropriate fresh application under Section 12(1)(c) of the Consumer Protection Act, 1986 before the National Consumer Disputes Redressal Commission within two weeks from today. The same may be disposed of by the National Commission in accordance with law within three months from the date of filing of such an application.8. Pursuant to the liberty which was granted by this Court, an I.A. (IA No. 8083 of 2013) was filed before the NCDRC under Section 12(1)(c). The application was disposed of on 13 July 2018 which led to an appeal before this Court.9. On 28 September 2018, this Court set aside the order of the NCDRC with the following directions:Having heard learned counsel for the appellants, we are of the view that the impugned judgment dated 13.07.2018 needs to be set aside. We set it aside and direct the National Consumer Disputes Redressal Commission to treat the complaint, as amended, that has been filed, as a complaint filed on behalf of all 339 persons and to proceed on merits.It will be open for the respondents to give their say on the merits of each of the 339 complainants.The Commission will decide the matter within a period of six months from today.The Civil Appeals are disposed of accordingly.10. Procedural directions issued upon several impleadment applications resulted in a further order of this Court of 8 May 2019 reiterating that the complaint would be treated as having been filed on behalf of 339 persons. By its order dated 28 September 2018, which was reiterated again on 8 May 2019, this Court had laid down a peremptory time schedule of six months for the disposal of the complaint. Eventually, on 2 July 2019, the complaint was dismissed by the NCDRC.11. Civil Appeal No 6239 of 2019 comprises of 83 appellants. Civil Appeal No 6303 of 2019 comprises of 88 appellants. Thus, there are before this Court a total of 171 flat purchasers in the appeals. The complaint before the NCDRC, which was confined by the order of this Court dated 28 September 2018 to 339 complainants, now covers a more restricted field of 171 flat purchasers. Annexure-1 to Civil Appeal No 6239 of 2019 contains a tabulation of (i) names of the flat purchasers; (ii) dates on which the flats were booked; (iii) dates on which the ABAs were signed; (iv) dates by which possession was to be handed over under the ABAs; and (v) dates on which the letter for possession was issued by the developers.12. The NCDRC divided the group of 339 flat buyers into six groups based on whether or not they had taken possession, executed deeds of conveyance, settled the dispute or sold the flats before or during the pendency of the complaint or their applications for impleadment:
            
            Group A: Complainants who took possession of their flats before the filing of the complaint/impleadment applications.  
            Group B: Complainants who took possession and executed deeds of conveyance during the pendency of the complaint/impleadment applications. 
            Group C: Complainants who took possession during the pendency of the complaint/impleadment applications but have not executed deeds of conveyance. 
            Group D: Complainants who settled their dispute during the pendency of the complaint/ impleadment applications. 
            Group E: Complainants who sold their flats during the pendency of the complaint/impleadment applications. 
            Group F: Complainants who have not taken possession of the flats and have not executed a deed of conveyance.
           13. The NCDRC held that flat buyers in Groups A and B who had taken possession before the filing of the complaint / impleadment applications and those who took possession and executed deeds of conveyance before or during the pendency of the proceedings would not be entitled to pursue their claims. The execution of the deed of conveyance, according to the NCDRC, is a transfer of a right in property and it is not within the jurisdiction of the Commission to entertain a grievance that the conveyances have been entered into under coercion. Additionally, according to NCDRC, under the conveyance deed, such flat buyers had accorded their satisfaction to the services provided by the developer and voluntarily discharged the developer of all its liabilities under the ABA. As regards flat purchasers in Group C, the NCDRC noted that even those who have taken possession but have not executed a deed of conveyance have voluntarily discharged the developer. The NCDRC observed that flat buyers in Group C had taken possession without protest, without its permission and without lodging any complaint with it after taking the possession. Those in Group D who had settled their dispute during the pendency of the complaint were held to be estopped from pursuing their grievances. The NCDRC did not accept the contention of the flat buyers in Group D that that they had settled the matter under coercion and undue influence since, according to the NCDRC, no specific facts and circumstances were pleaded by such flat buyers which made them surrender their free will. The buyers in Group E who have sold their flats during the pendency of the complaint were held to have no subsisting right. The NCDRC noted that as regards Group F (complainants who had neither taken possession nor executed a conveyance), as many as 337 out of 339 flat purchasers had in fact taken possession. The NCDRC had to deal with the claims of two remaining complainants, who had accepted the delayed compensation but did not accept possession. Their complaints were dismissed.14. The primary grounds on which compensation have been sought before the NCDRC were:(i) Delay in handing over possession of the flats;(ii) Reimbursement of taxes and interest charged to the flat purchasers under clause 1.10 of the ABA;(iii) Deficiency in providing amenities;(iv) Levy of electricity charges by the developer; and(v) Failure to construct the club house.15. The NCDRC, in the course of its judgment, observed that delay in the handing over of flats to the flat purchasers was admitted. While recording a finding of fact that there was an admitted delay on the part of the developer, the NCDRC held that the agreements provided compensation at the rate of Rs 5 per square foot of the super area for every month of delay. The NCDRC held that the flat purchasers who agreed to this stipulation in the agreements were not entitled to seek any amount in addition. Paragraph 470 of the judgment of the NCDRC contains its finding:470. There is no dispute to the fact that the completion of the project had been delayed. Delay had been acknowledged by the opposite parties. They had also offered to these complainants the delayed compensation calculated @ Rs 5/- per sq. ft. of the supere NCDRC observed that the developer had while computing the final demand made an adjustment on account of delayed compensation at the rate stipulated in the ABA. The flat purchasers having been provided credit at the rate agreed by the developers, it was held that no further entitlement existed under the law. In the view of the NCDRC, the flat purchasers had failed to prove that the stipulation contained in the agreement for the payment of compensation at Rs 5 per square foot was unreasonable. In taking this view, the Commission has lent support to its decision by relying upon the decisions of this Court in DLF Homes Panchkula Pvt. Ltd. v. D S Dhanda, Etc. 2019 SCC OnLine SC 689 ( Dh an d a) and Ghaziabad Development Authority v. Balbir Singh (2004) 5 SCC 65 ( Balbir Singh ). On the merits of the other grievances, the NCDRC has held that(i) The charges recovered towards tax and interest are in terms of clause 1.10 of the ABA;(ii) Charges recovered for electricity are in terms of the ABA;(iii) The levy of parking charges is valid; and(iv) The club house has been constructed.

Court's reasoning:
19. Clause 11(a) of the ABA indicates that subject to all just exceptions the developer endeavoured to complete construction within a period of thirty-six months from the date of the execution of the agreement unless hindered by force majeure conditions. Undoubtedly, the expression endeavour indicates that the developer did not bind itself to an inflexible timeline of thirty-six months. But then again, the timeline of thirty-six moths was subject to just exceptions and could be excused in the event of force majeure conditions coming into operation. By the provisions of clause 14, the developer agreed to compensate the flat buyers at the rate of Rs. 5 per square feet of the super area of the apartment per month for the period of delay.21. The existence and extent of the delay constitute an admitted factual position. In fact, in the written submissions which have been filed by the developer, it has been admitted that out of 171 appellants, 145 were given compensation in terms of the rate prescribed in clause 14 of the ABA. Once the developer has accepted that there was a delay on his part which triggered of the liability to pay compensation (albeit, according to the developer, in terms of clause 14) there can be no manner of doubt that:(i) the developer assumed an obligation in terms of the ABA to endeavour to hand over possession in thirty-six months of the date of the execution of the agreement;(ii) there was a failure on the part of the developer to comply with the contractual obligation;(iii) the failure of the developer was neither relatable to a just exception or the prevalence of force majeure conditions referable to clause 11; and(iv) the payment of compensation to the flat buyers or at least 145 of the group of 171 represents an admission by the developer of its breach, thereby triggering a liability to pay compensation.In assessing the legal position, it is necessary to record that the ABA is clearly one-sided. Where a flat purchaser pays the instalments that are due in terms of the agreement with a delay, clause 39(a) stipulates that the developer would at its sole option and discretion waive a breach by the allottee of failing to make payments in accordance with the schedule, subject to the condition that the allottee would be charged interest at the rate of 15 per cent per month for the first ninety days and thereafter at an additional penal interest of 3 per cent per annum. In other words, a delay on the part of the flat buyer attracts interest at the rate of 18 per cent per annum beyond ninety days. On the other hand, where a developer delays in handing over possession the flat buyer is restricted to receiving interest at Rs 5 per square foot per month under clause 14 (which in the submission of Mr Prashant Bhushan works out to 1-1.5 per cent interest per annum). Would the condition which has been prescribed in clause 14 continue to bind the flat purchaser indefinitely irrespective of the length of the delay The agreement stipulates thirty-six months as the date for the handing over of possession. Evidently, the terms of the agreement have been drafted by the developer. They do not maintain a level platform as between the developer and purchaser. The stringency of the terms which bind the purchaser are not mirrored by the obligations for meeting times lines by the developer. The agreement does not reflect an even bargain.The agreement did not stipulate that the developer would pay any interest on the amount which had already been received. A large chunk of the purchase price was thus available to the developer to complete construction. The court must take a robust and common-sense based approach by taking judicial notice of the fact that flat purchasers obtain loans and are required to pay EMIs to financial institutions for servicing their debt. Delays on the part of the developer in handing over possession postpone the date on which purchasers will obtain a home. Besides servicing their loans, purchasers have to finance the expenses of living elsewhere. To postulate that a clause in the agreement confining the right of the purchaser to receive compensation at the rate of Rs 5 per square foot per month (Rs 7,500 per month for a flat of 1500 square feet) precludes any other claim would be a manifestly unreasonable construction of the rights and obligations of the parties. Where there is a delay of the nature that has taken place in the present case ranging between periods of two years and four years, the jurisdiction of the consumer forum to award reasonable compensation cannot be foreclosed by a term of the agreement.24. A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service. The expression service in Section 2 (1) (o) means a service of any description which is made available to potential users including the provision of facilities in connection with (among other things) housing construction. Under Section 14(1)(e), the jurisdiction of the consumer forum extends to directing the opposite party inter alia to remove the deficiency in the service in question. Intrinsic to the jurisdiction which has been conferred to direct the removal of a deficiency in service is the provision of compensation as a measure of restitution to a flat buyer for the delay which has been occasioned by the developer beyond the period within which possession was to be handed over to the purchaser. Flat purchasers suffer agony and harassment, as a result of the default of the developer. Flat purchasers make legitimate assessments in regard to the future course of their lives based on the flat which has been purchased being available for use and occupation. These legitimate expectations are belied when the developer as in the present case is guilty of a delay of years in the fulfilment of a contractual obligation. To uphold the contention of the developer that the flat buyer is constrained by the terms of the agreed rate irrespective of the nature or extent of delay would result in a miscarriage of justice. Undoubtedly, as this court held in Dhanda, courts ordinarily would hold parties down to a contractual bargain. Equally the court cannot be oblivious to the one-sided nature of ABAs which are drafted by and toprotect the interest of the developer. Parliament consciously designed remedies in the CP Act 1986 to protect consumers. Where, as in the present case, there has been a gross delay in the handing over of possession beyond the contractually stipulated debt, we are clearly of the view that the jurisdiction of the consumer forum to award just and reasonable compensation as an incident of its power to direct the removal of a deficiency in service is not constrained by the terms of a rate which is prescribed in an unfair bargain.Since the decision of this Court in Lucknow Development Authority v. M K Gupta (1994) 1 SCC 243 , it has been a settled principle of law that the jurisdiction of the consumer forum extends to the award of compensation to alleviate the harassment and agony to a consumer.31. The judgment in Dhanda s case does not prescribe an absolute embargo on the award of compensation beyond the rate stipulated in the flat buyers agreement where handing over of the possession of a flat has been delayed. Dh an d as case was preceded by consent terms which were presented before this Court in two earlier civil appeals under which interest at the rate of 9 per cent had been granted. The decision lays down that the award of interest cannot be arbitrary and without nexus to the default which has been committed. Hence, the award of interest at the maximum rate of interest charged by a nationalised bank for advancing home loans was construed to be arbitrary. It was in this context that the court observed that the parties having agreed to a consequence for delay, exceptional and strong reasons must exist for the consumer fora to depart from the agreed rate. The decision, in other words, does not lay down that there is an absence of jurisdiction in the adjudicatory fora constituted under the CP Act 1986 to award remedial compensation to a flat buyer for the delay of the developer in handing over possession on the agreed date.32. In the present case, there exist, clear and valid reasons for not holding down the flat buying consumers merely to the entitlement to receive compensation at the rate of 5 per square foot per month in terms of clause 14 of the ABA32. In the present case, there exist, clear and valid reasons for not holding down the flat buying consumers merely to the entitlement to receive compensation at the rate of 5 per square foot per month in terms of clause 14 of the(i) There has been a breach on the part of the developer in complying with the contractual obligation to hand over possession of the flats within a period of thirty-six months of the date of the agreement as stipulated in clause 11(a);(ii) The failure of the developer to hand over possession within the contractually stipulated period amounts to a deficiency of service within the meaning of Section 2 (1) (g), warranting the invocation of the jurisdiction vested in the NCDRC to issue a direction for the removal of the deficiency in service;(iii) The triggering of an obligation to pay compensation on the existence of delay in handing over possession is admitted by the developer for, even according to it, it has adjusted compensation at the agreed rate of Rs 5 per square foot per month to 145 out of the 171 appellants;(iv) The agreement is manifestly one-sided: the rights provided to the developer for a default on the part of the home buyer are not placed on an equal platform with the contractual right provided to the home buyer in the case of a default by the developer;(v) There has been a gross delay on the part of the developer in completing construction ranging between two and four years. Despite successive extensions of time to deliver possession sought by the developer, possession was not delivered on time;(vi) The nature and quantum of the delay on the part of the developer are of such a nature that the measure of compensation which is provided in clause 14 of the ABA would not provide sufficient recompense to the purchasers; and(vii) Judicial notice ought to be taken of the fact that a flat purchaser who is left in the lurch as a result of the failure of the developer to provide 33 possession within the contractually stipulated date suffers consequences in terms of agony and hardship, not the least of which is financial in nature. Having paid a substantial amount of the purchase price to the developer and being required to service the debt towards loan installments the purchaser is unable to obtain timely possession of the flat which is the subject matter of the ABA.The developer does not state that it was willing to offer the flat purchasers possession of their flats and the right to execute conveyance of the flats while reserving their claim for compensation for delay. On the contrary, the tenor of the communications indicates that while executing the Deeds of Conveyance, the flat buyers were informed that no form of protest or reservation would be acceptable. The flat buyers were essentially presented with an unfair choice of either retaining their right to pursue their claims (in which event they would not get possession or title in the meantime) or to forsake the claims in order to perfect their title to the flats for which they had paid valuable consideration. In this backdrop, the simple question which we need to address is whether a flat buyer who seeks to espouse a claim against the developer for delayed possession can as a consequence of doing so be compelled to defer the right to obtain a conveyance to perfect their title. It would, in our view, be manifestly unreasonable to expect that in order to pursue a claim for compensation for delayed handing over of possession, the purchaser must indefinitely defer obtaining a conveyance of the premises purchased or, if they seek to obtain a Deed of Conveyance to forsake the right to claim compensation. This basically is a position which the NCDRC has espoused. We cannot countenance that view.35. The flat purchasers invested hard earned money. It is only reasonable to presume that the next logical step is for the purchaser to perfect the title to the premises which have been allotted under the terms of the ABA. But the submission of the developer is that the purchaser forsakes the remedy before the 36 consumer forum by seeking a Deed of Conveyance. To accept such a construction would lead to an absurd consequence of requiring the purchaser either to abandon a just claim as a condition for obtaining the conveyance or to indefinitely delay the execution of the Deed of Conveyance pending protracted consumer litigation.The developer in the present case has undertaken to provide a service in the nature of developing residential flats with certain amenities and remains amenable to the jurisdiction of the Consumer Fora. Consequently, we are unable to subscribe to the view of the NCDRC that flat purchasers who obtained possession or executed Deeds of Conveyance have lost their right to make a claim for compensation for the delayed handing over of the flats.37. However, the cases of the eleven purchasers who entered into specific settlement deeds with the developers have to be segregated. In the case of these eleven persons, we are of the view that it would be appropriate if their cases are excluded from the purview of the present order. These eleven flat purchasers having entered into specific deeds of settlement, it would be only appropriate and proper if they are held down to the terms of the bargain. We are not inclined to accept the contention of the learned counsel of the appellants, Mr. Prashant Bhushan, that the settlement deeds were executed under coercion or undue influence since no specific material has been produced on record to demonstrate the same.38. Similarly, the three appellants who have transferred their title, right and interest in the apartments would not be entitled to the benefit of the present order since they have sold their interest in the apartments to third parties. The written submissions which have been filed before this Court indicate that the two buyers stepped into the shoes of the first buyers as a result of the assignment of rights and liabilities by the first buyer in favour of the second buyer.Even if the three appellants who had transferred their interest in the apartments had continued to agitate on the issue of delay of possession, we are not inclined to accept the submission that the subsequent transferees can step into the shoes of the original buyer for the purpose of benefiting from this order. The subsequent transferees in spite of being aware of the delay in delivery of possession the flats, had purchased the interest in the apartments from the original buyers. Further, it cannot be said that the subsequent transferees suffered any agony and harassment comparable to that of the first buyers, as a result of the delay in the delivery of possession in order to be entitled to compensation.40. The developer has stated before the court that a club house containing appurtenant facilities including a swimming pool, gymnasium, billiards room, tennis court, indoor badminton court, squash court and community hall has been fully constructed and an occupation certificate has been received on 13 May 2019. The developer has stated that under the building regulations, it has to handover 5 per cent of the area of the group housing complex to BDA as a civic amenities ( CA) area. The RWA has to apply to BDA for allotment of the CA area in its favour. Upon allotment, the RWA hands over the area to the builder for construction of the club. The developer relinquished the CA area in favour of the BDA, constituted an RWA and applied to BDA on 22 June 2010 for the allotment of the CA site in favour of the RWA. The written submissions indicate that a dispute over the charges demanded by BDA towards lease rent led to a writ petition before the Karnataka High Court being instituted both by the developer and the RWA which was allowed on 29 June 2015. The developer submitted a building plan to the municipal body. A second writ petition had to be filed in which the High Court on 18 October 2016 directed the municipal body to proceed with the approval of the building plans. Sanction for the building plan was received on 18 May 2017 and after construction of the club building, an occupation certificate was received on 13 May 2019. The developer has stated that it has been following up with BDA to permit them to hand over possession and management of the club to the RWA. Since permission of BDA has still not been received legal action is contemplated again. The developer has produced photographs depicting the amenities which have been provided within the precincts of the club house. Membership fees for the club are stated to have been received in the account of the RWA and not in the account of the developer. The position which has been stated before the court as elucidated above has not been disputed by counsel for the appellants. Hence, we find that there has been no breach by the developer of the obligation to provide a constructed facility of a club for the RWA.42. Now, it is correct as the developer contends that the flat purchasers have no right, title or interest in respect of the amenities which were to be constructed by the developer as a part of the larger township of New Town. The entire area comprised 80 acres of which Westend Heights was situated on 27 acres. The absence of a title or interest in the flat purchasers in the amenities to be provided outside the area of 27 acres begs the question as to whether there was a breach of a clear representation which was held out to the flat purchasers by the developer. A deficiency under Section 2(1)(g) means a fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance. This may be required to be maintained under law or may be undertaken to be performed in pursuance of a contract or otherwise in relation to any service. The builder invited prospective flat purchasers to invest in the project of Westend Heights on the basis of a clear representation that the surrounding area of New Town situated on 80 acres was being developed to provide a wide range of amenities including a shopping centre, health care facilities and an early learning school. The developer has failed to provide these amenities.43. In other words, what the developer holds out as a defence is that though there has been a failure on their part to provide the amenities, the flat buyers have the benefit of facilities in the surrounding area which has become urbanised. We cannot agree with this line of submissions. The reply of the developer seeks to explain the failure to construct the facilities on the ground that the existing population cannot sustain these facilities – a school, commercial complex and health care facilities. This is a case involving an experienced developer who knew the nature of the representation which was being held out to the flat purchasers. Developers sell dreams to home buyers. Implicit in their representations is that the facilities which will be developed by the developer will provide convenience of living and a certain lifestyle based on the existence of those amenities. Having sold the flats, the developer may find it economically unviable to provide the amenities. The flat purchasers cannot be left in the lurch or, as in the present case, be told that the absence of facilities which were to be provided by the developer is compensated by other amenities which are available in the area. The developer must be held accountable to its representation. A flat purchaser who invests in a flat does so on an assessment of its potential. The amenities which the builder has committed to provide impinge on the quality of life for the families of purchasers and the potential for appreciation in the value of the flat. The representation held out by the developer cannot be dismissed as chaff. True, in a situation such as the present it may be difficult for the court to quantify the exact nature of the compensation that should be provided to the flat buyers. The general appreciation in land values results in an increase in the value of the investment made by the buyers. Difficulties in determining the measure of compensation cannot however dilute the liability to pay. A developer who has breached a clear representation which has been made to the buyers of the amenities which will be provided to them should be held accountable to the process of law. To allow the developer to escape their obligation would put a premium on false assurances and representations made to the flat purchasers. Hence, in factoring in the compensation which should be provided to the flat buyers who are concerned in the present batch of appeals, we would necessarily have to bear this issue in mind.45. The two certificates of the Chartered Accountant issued on 26 July 2013 and 9 August 2014 indicate that taxes inclusive of interest have been recovered.47. The specific conditions contained in the ABA clearly imposed the liability to bear the proportionate share of taxes on the purchasers. Clauses 1.3 and 1.10 leave no manner of doubt in regard to the position. The developer has offered an explanation of why as a result of pending litigation, the dues towards works contract tax were not paid earlier. Indeed, if they were paid earlier, the purchasers would have been required to reimburse their proportionate share of taxes earlier as well. No part of the penalty imposed on the developer has been passed on to the purchasers. In view of the terms of the ABA and the explanation which has been submitted by the developer, there is no deficiency of service in regard to the demand of interest payable on the tax which was required to be deposited with the revenue.51. The NCDRC has upheld the collection of the charges towards electricity based on the terms of the ABA. There is no infirmity in the finding of the NCDRC, which is based on the provisions contained in clause 23(b) of the ABA. The charges recovered are not contrary to what was specified in the contract between the parties.53. We are unable to accede to the above submission. The ABA contained a break-up of the total price of the apartment. Parking charges for exclusive use of earmarked parking spaces were separately included in the break-up. The parking charges were revealed to the flat buyers in the brochure. The charges recovered are in terms of the agreement.54. The decision of this Court in Nahalchand Laloochand Private Limited v. Panchali Cooperative Housing Society Limited (2010) 9 SCC 536 turned on the provisions of the Maharashtra Ownership Flats Act 1971, as explained in the subsequent decision of this Court in DLF Limited v. Manmohan Lowe (2014) 12 SCC 231 . The demand of parking charges is in terms of the ABA and hence it is not possible to accede to the submission that there was a deficiency of service under this head.55. For the above reasons we have come to the conclusion that the dismissal of the complaint by the NCDRC was erroneous. The flat buyers are entitled to compensation for delayed handing over of possession and for the failure of the developer to fulfil the representations made to flat buyers in regard to the provision of amenities. The reasoning of the NCDRC on these facets suffers from a clear perversity and patent errors of law which have been noticed in the earlier part of this judgment.