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TMI Blog2016 (8) TMI 1457X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplainants; and f) Direct the opposite parties to pay damages to the tune of ₹ 6,00,000/- as compensation for the rental accommodation of the complainants paid till the date of filing of the complaint and also commutation costs incurred by the complainants till the date of filing of the complaint; g) Direct the opposite parties to compensate the complainants for the rent and also the commutation cost which the complainants shall have to pay in future, till the time peaceful and vacant possession of the apartment is handed over to the complainants; h) Direct the opposite parties to pay the cost of litigation to the tune of ₹ 1,00,000/- to the complainants; 2. The complaint has been resisted by the opposite party which has inter-alia claimed that it was only to make endeavor to complete the construction but did not make any firm commitment to deliver possession within 39 months from the date of the allotment. It was further alleged that the delay in handing over possession of the flat happened for the reasons that (a) there was shortage of manpower and construction material due to Commonwealth Games, (b) National Green Tribunal, vide its order dated 11.01.2013, inj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er possession of the said apartment to the buyer. 5.5 Subject to the buyer having complied with its obligations under this Agreement, as well as the allotment letter, including but not limited to timely payment of the consideration and other charges as per the payment plan opted by the buyer, in the event of any willful delay in construction of the apartment for reasons attributable solely to the company, delay charges would be payable to the buyer, in the manner and to the extent specified herein below: Period of Delay (Months) Penalty per Month (Rs. Per Sq. Ft.) 1-3 5.00 4-6 7.50 7 onwards 10.00 5. Despite use of the words "the company shall endeavor to complete the construction", I am of the view that unless prevented by reasons beyond its control, the opposite party was under a contractual obligation to complete the construction and hand over possession of the apartments to the complainants within 39 months from the date of allotment. Therefore, the first question which arises for consideration in this complaint is as to whether the completion of the construction of the flats and offer of possession has been delayed for the reasons beyond the control of the oppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the opposite party, the order passed by the National Green Tribunal did not apply to it. If the opposite party was required to take permission from the competent authority in the State Government but had not taken such a permission before selling flats in the aforesaid project, it is only itself to blame for creating a situation in which the order passed by the National Green Tribunal on 11.01.2013 came to be applied to this project. Moreover, there is no evidence of the opposite party having tried to obtain water for construction purpose from alternative source. If the National Green Tribunal had restrained the builders from extracting the underground water in Noida/Greater Noida, they were expected to arrange water from the alternative source so as to fulfill their contractual obligation to the flat buyers. It is not as if no construction took place in Noida and Greater Noida during the period the interim order passed by the National Green Tribunal remained in force. Therefore, if the opposite party so wanted, it could have arranged water for construction purpose from the alternative source. There is no evidence of the aforesaid interim order dated 11.01.2013 having been cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jects to the Ministry of Environment & Forests within four weeks from the order. Within four weeks thereafter, Ministry of Environment & Forests was to refer the same to the standing Committee of National Board for Wild Life, which was to verify the correctness of the statement made by the project proponent. The order passed by the aforesaid Board was to indicate whether the project should be permitted or not. It was made clear that the building construction within 10 kms radius of Okhla Bird Sanctuary or within distance of Eco-Sensitive Zone to be prescribed by Ministry of Environment & Forests shall be subject to decision of National Board for Wild Life and till clearance from the said Board, the Authority shall not issue completion certificate to the project. Thus, in the aforesaid order dated 28.10.2013, the National Green Tribunal did not stay further construction of the projects where requisite environmental clearance had been obtained, and only completion certificate was withheld till clearance from the National Board for Wild Life. The order of the Tribunal to the extent the issue of completion certificate was withheld till the clearance from NBWL could not have contribut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of the parties in the case of specific performance of contract to sell real estate, law looks not at the letter but at the substance of the agreement. It is not merely because of specification of time at or before which the thing to be done under the contract is promised to be done and default in compliance therewith, that the other party may avoid the contract. Such an option arises only if it is intended by the parties that time is of the essence of the contract. Intention to make time of the essence, if expressed in writing, must be in language which is unmistakable: it may also be inferred from the nature of the property agreed to be sold, conduct of the parties and the surrounding circumstances at or before the contract. Specific performance of a contract will ordinarily be granted, notwithstanding default in carrying out the contract within the specified period, if having regard to the express stipulations of the parties, nature of the property and the surrounding circumstances, it is not inequitable to grant the relief. If the contract relates to sale of immovable property, it would normally be presumed that time was not of the essence of the contract. Mere incorporatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r possession to the buyer, that would be nothing but a travesty of justice and result in a situation where the flat buyer is left at the mercy of the builder, without recourse to an appropriate legal remedy. Such an interpretation, if taken, is bound to defeat the very objective behind the enactment of the Consumer Protection Act, as far as housing construction is concerned. Therefore, I am unable to accept the contention advanced by the learned counsel for the opposite party. In my view, wherever the builder commits a particular date or time frame for completion of the construction and offering possession to the buyer, he must necessarily honour the commitment made by him, though a minor delay may not constitute deficiency in the service rendered by him to the buyer. Of course, if the builder is able to how that the delay in completion of the construction and offering possession to the buyer is attributable wholly to the circumstances beyond his control, that may not be a case of deficiency in the services rendered to the consumer. 11. As regards the delay on the part of the complainants in making certain payments to the opposite party, admittedly, the late payment has already be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0% p.a. 11. 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. The following view taken by the Hon'ble Supreme Court in this regard in Bharathi Knitting Company Vs. DHL Worldwide Express JT 1996 (6) SC 254 is pertinent: "It is seen that when a person signs a document which contains certain contractual terms, as rightly pointed out by Mr. R.F. Nariman, learned senior counsel, that normally parties are bound by such contract; it is for the party to establish exception in a suit. When a party to the contract disputes the binding nature of the signed document, it is for him to prove the terms in the contract or circumstances in which he came to sign the documents need to be established. It is true, as contended by Mr. M.N. Krishnamani, that in an appropriate case the Tribunal without trenching upon acute disputed question of facts may decide the validity of the terms of the contract based upon the fact situation and may grant remedy. But each case depends upon its own facts". In PUDA Vs. Mrs. Sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompensation in the event of default on the part of the builder in handing over possession of the flat to the buyer and the flat compensation offered by all big builders is almost a nominal compensation being less than .25% of the estimated cost of construction per month, the flat buyer is left with no option but to sign the Buyer's Agreement in the format provided by the builder. No sensible person will volunteer to accept compensation constituting about 2-3% of his investment in case of delay on the part of the contractor, when he is made to pay 18% compound interest if there is delay on his part in making payment. It can hardly be disputed that a term of this nature is wholly one sided, unfair and unreasonable. The builder charges compound interest @ 18% per annum in the event of the delay on the part of the buyer in making payment to him but seeks to pay less than 3% per annum of the capital investment, in case he does not honour his part of the contract by defaulting in giving timely possession of the flat to the buyer. Such a term in the Buyer's Agreement also encourages the builder to divert the funds collected by him for one project, to another project being under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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