MANU/CF/0369/2020

IN THE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI
Consumer Case No. 1430 of 2017
Decided On: 23.07.2020
Appellants: Smita Uban and Ors.
Vs.
Respondent: Pioneer Urban Land & Infrastructure Ltd.
Hon'ble Judges/Coram:
R.K. Agrawal, J. (President) and Dr. S.M. Kantikar, Member
Counsels:
For Appellant/Petitioner/Plaintiff: Aditya Parolia, Advocate
For Respondents/Defendant: T.V.S. Raghavendra Sreyas, Advocate
ORDER
R.K. Agrawal, J. (President)
1. This Consumer Complaint, under Section 21(a)(i) of the Consumer Protection Act,
1986 (for short "the Act"), has been filed by the Complainants against M/s. Pioneer
Urban Land & Infrastructure Ltd. (hereinafter referred to as "the Developer"), seeking
the following reliefs:-
(a) to direct the Opposite Party to refund the entire amount of 3,22,18,954/-
collected from the Complainants towards the consideration of the house
along with interest @ 18% p.a. on the amount paid by them from the date of
collection of the amounts till it is actually returned to the Complainants;
(b) to direct the Opposite Party to pay a sum of 75,000/- (Rupees Seventy
Five Thousand only) to the Complainants towards the cost of litigation;
(c) Any other order(s) as may be deemed fit and appropriate may also kindly
be passed;
2 . The brief facts as set out in the Complaint are that on 22.11.2011, the
Complainants applied for a house in the Pioneer Group Housing Project called "Araya"
to be developed by the Opposite Party Developer in Sector 62, Gurgaon, Haryana, by
paying an booking amount of 30,00,000/-. The Apartment Buyer's Agreement was
executed between the parties on 07.03.2012 and the Complainants were allotted Unit
No. 1202 A, Floor 13, Tower C admeasuring super area of approx. 3498 Sq. Ft. in the
said housing Project, for a total consideration of 3,45,22,779/-. The total sale
consideration was to be paid as per Payment Plan given in the Buyer's Agreement.
3 . It is averred in the Compliant that as per Clause 11.2 of the Apartment Buyer's
Agreement dated 07.03.2012, the Developer was under an obligation to make all
efforts to apply for the Occupation Certificate of the proposed residential Project
within thirty nine (39) months from the date of excavation i.e. by October 2015. The
Developer was also entitled to a grace period of one hundred and eighty (180) days,

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after expiry of the said 39 months period for applying and obtaining the requisite
Occupancy Certificate in respect of the said Housing Complex. The demand for the
start of excavation was raised by the Opposite Party and was duly paid by the
Complainants in June, 2012 and as such, the possession of the allotted Unit was to
be handed over to the Complainants by October, 2015.
4. It is stated by the Complainants that they have regularly visited the site but they
were utter surprised and shocked to see that the construction was never in progress.
The entire site was seemed to be an abandoned piece of land with semi constructed
structure. Even, no one was present on the site to address their queries about the
completion of construction. According to them, till 16.12.2015 they had paid a sum
of 3,22,18,954/- out of the total consideration of 3,45,22,779/- i.e. almost 95% of
the total Consideration towards the cost of the apartment. However, the Developer
has failed to deliver the possession of the Unit, complete in all respect, even after
expiry of a long period of approx. five years despite repeated requests and remedies
over letters, email, phone calls and personal visits.
5. It is further stated in the Complaint that the Complainants were forced to sign the
one-sided Flat Buyer Agreement in the year 2012 on the dotted lines; as per Clause
11.5 of the Buyer's Agreement, the Developer has agreed to pay to the Complainants
a compensation @10/- per sq. ft. per month for the period of delay in handing over
possession. But, if it is calculated in terms of financial charges, it comes to
approximate @1.4% p.a. rate of interest and even these charges are to be paid after
39 months which is period for completion of construction. This shows that the
Developer has found a cheap source of funding the Commercial Projects from the
hard earned savings of the Complainants. The Complainants have lost all faith in the
Project of the Developer and they want refund of the deposited amount with interest
and reasonable compensation. As per Clause 6.3 (ii) of the Buyer's Agreement, the
Developer was charging interest @ 18% from the Purchasers for delay in payment of
any of the instalments and as such on parity and equity they are liable to pay interest
@18% p.a. on refund of the deposited amount.
6 . Hence, alleging deficiency in service on the part of the Developer in not
completing the construction of the Project in time and not handing over the
possession within the prescribed time as per Apartment Buyer's Agreement dated
07.03.2012, the Complainants filed the present Complaint seeking aforesaid reliefs.
7. Upon notice, the Complaint has been contested by the Opposite Party, Developer,
by filing its Written Statement, raising preliminary objections that the real motive of
instituting this Complaint by the Complainants is to seek more than the contractual
benefits from the Developer and that the Complainants were expecting high
speculative gains from the booked Unit, but failed due to depressed Real Estate
market.
8 . On merits, it is contended that the time of 45 months (including grace period)
from the date of excavation, to deliver the possession of the Unit, was tentative and
the delay in handing over possession has been purely on account of Force Majeure
factors which are as under:-
(i) Delay in payments by many Customers:- The most important factor in the
delay of the Project is that the Complainants have not adhered to the
payment schedule and the Developer waived off the option to cancel the
Agreement for non-payment; in terms of Clauses 5, 6 and 23 of the

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 Agreement, the Developer was entitled to forfeit the earnest money or to
cancel/terminate the agreement in case there was any fault on the part of the
Complainants to fulfil the terms and conditions of the agreement, however,
the Developer has not exercised this option in the interest of customers;
(ii) Dispute with Contractors:- The contract to complete the construction of
the towers (Structural and Finishing Works) within 30 months, was given to
M/s. Urban Ecoinfra Pvt. Ltd. However, as the progress of the work was very
slow, the contract was foreclosed and terminated when the Contractor had
left behind half of the work.
(iii) Labour and Water Shortage: There was also shortage of labour and
water in the NCR Region which affected the construction directly.
(iv) Lack of Infrastructural support from State Government:- Despite
payment of External Development Charges, the State Government did not
provide the basic amenities such as drinking water, sewerage, drainage
including storm water line, road etc. in time.
(v) Storage of Raw Material:- The Hon'ble Supreme Court vide order dated
08.05.2009, suspended all the mining operations in the Aravalli Hill range
falling in the State of Haryana which led to a situation of scarcity of the sand
and other raw materials for the construction.
(vi) Delay in approvals by the State Government:- There was a substantial
delay on the part of the Government Departments in granting
approval/sanctions for which the Developer cannot be held solely
responsible.
(vi) Jat Reservation Agitation:- The Jat Reservation Agitation in February,
2016 paralyzed the Construction activities badly in the State of Haryana. The
instant stoppage of work on the fear of riots and remobilization of work force
took considerable time of 3-4 months.
(vii) NGT Order:- In compliance with the order passed by the National Green
Tribunal, all the development/construction activities were stopped by the
Developer in April 2015 and November, 2016 due to emission of dust and
unprecedented pollution.
(viii) Demonetization of Rs. 500/- and Rs. 1000/- currency notes:- On 8th
November, 2016, the Government of India demonetized the currency notes of
Rs. 500/- and Rs. 1000/- due to which there was crunch of funds for the
material and labour for 4 to 5 months.
9. It is further submitted that as the delay in completing the Project was due to the
reasons beyond their control, the prayer by the Complainants for refund of the
deposited amount is not tenable and even if, the Complainants are entitled for refund,
they would not ask for interest for the time period between the last date of payment
and date of filing of Complaint. It is strenuously stated that the parties are bound by
the terms of contract and entitled to a compensation, if any, in terms of the contract
only. Further, for refund and compensation, the Complainants have to adhere to the
provisions made in Clause 11.5 of the Agreement.
10. All other averments made in the Complaint have been specifically denied by the

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Developer and prayed dismissal of the Complaint with exemplary costs. The
Complainants filed their Rejoinder denying all the rival contentions raised by the
Opposite Party in its Reply and reiterating the averments made in the Complaint.
1 1 . We have heard the Learned Counsel for the parties at some length and also
perused the material available on record as well as the Written Arguments.
12. In brief, it is the Complainants' case that they booked the Unit No. 1202A, 13th
Floor, Tower C admeasuring 3489 sq. ft. and the Apartment Buyer's Agreement with
regard to the said Unit was executed between the parties on 07.03.12. In terms of
Clause 11.2 of the Agreement, the Developer was committed to deliver the
possession of the Apartment to the Complainants, complete in all respect, within 39
months from the date of excavation with grace period of 180 days. Admittedly, the
excavation started on 04.06.2012. The construction, therefore, ought to have been
completed and the Developer ought to have applied for Occupancy Certificate on or
before 04.09.2015. However, till date, the possession of the booked Unit has not
been offered by the Developer despite making 95% payment of the total
consideration till December, 2015.
1 3 . In support of his case, Learned Counsel appearing for the Complainants has
placed reliance on the decision dated 23.10.2018 rendered by a Coordinate Bench of
this Commission in Consumer Complaint No. 238 of 2017 (Mrs. Geetu Gidwani Verma
Vs. Pioneer Urban Land and Infrastructure Ltd. And Consumer Complaint Nos. 239 of
2017 (Mr. Govindan Raghavan Vs. Pioneer Urban Land and Infrastructure Ltd.) which
relates to the same Project, i.e. "The Araya". We find that the defence taken by the
Developer in the present Complainant is more or less similar to that taken in the
abovesaid Consumer Complaints. While dealing with the similar reasons taken by the
Developer for delay in handing over the possession in the afore referred Complaints,
the Coordinate Bench of this Commission has observed as under:-
"3. The complaints have been resisted by the OP which had admitted the
allotment made to the complainants as well as the payment received from
them. It is inter-alia stated in the written version filed by the OP that the
construction could not be completed within the stipulated time on account of
reasons beyond its control The said reasons, according to the OP, are as
under:
(a) The delay on the part of several flat buyers in making timely
payment, (b) the dispute of the developer with the contractor, (c)
shortage of water, (d) Lack of infrastructural support from the State
Government, (e) Shortage of raw material, (f) Delay in approvals,
(g) Jat reservation agitation, (h) NGT order stopping construction
and (i) Demonetization of the currency.
4 . As far as the delay on the part of the several flat buyers is
concerned, admittedly, the OP had a right to cancel the allotment due
to the alleged non-payments. After cancelling the allotments made to
the defaulting customers, the OP could have sold those flats in the
open market to other willing buyers. Having not exercised the right
available to it, to cancel the allotment on account of the alleged non-
payment, the OP, in my view, cannot deny refund and compensation
to the flat buyers who have been making payments in time or from
whom interest for delay in payment has been charged. Therefore, I

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 find no merit in the aforesaid ground.
xxxxxx
6. As far as the alleged dispute with the contractor is concerned, the
case of the OP is that initially, the work was awarded to M/s. Urban
Eco Infra Pvt. Ltd. which did not maintain the assured timeline and
therefore, the OP took over the construction work from the said
contactor and awarded the same to another contractor M/s. Leighton
Contractors Pvt. Ltd. In my view, the dispute if any, between OP and
the contractor engaged by it, cannot justify the delay in completion
of the construction. If the OP suffers any loss or has to pay
compensation/damages on account of the delay committed by the
contractor engaged by it, it will be entitled to avail such remedy as
may be available to it in law against the contractor responsible for
the delay, but it cannot deny refund and a fair compensation to a flat
buyer who does not wish to wait any more for the possession of the
alleged flat and wants refund of the money paid by him alongwith
compensation.
7 . As far as the alleged water shortage and labour shortage is
concerned, there is no evidence on record to prove that no water or
labour was actually available in the market at the relevant time to
carry out construction. The delay cannot be justified on such bald
allegations without substantiating the same by hard evidence
showing actual non-availability of water and labour in the market.
8 . As far as the alleged delay on the part of the Government
agencies in laying infrastructure is concerned, there is no evidence of
any particular timeline having been committed by such agencies to
the developer for laying infrastructure and having not maintained the
said timeline. As far as the alleged shortage of raw material is
concerned, the case of the OP is that sand was not available in the
vicinity of the complex due to restriction on mining imposed in
Aravali region and therefore, they had to procure sand from the
neighbouring city of Rajasthan. In its written version, the OP has
referred to an order dated 08.05.2009 stated to have been passed by
the Hon'ble Supreme Court stopping the mining operations in Aravali
range. The agreement with the complainant having been executed
much much later on 04.06.2012, the said order was already in the
knowledge of the developer and therefore, it knew that it will have to
procure sand from other places, on account of mining having been
stopped in Aravali region. Therefore, shortage of sand in Aravali
region cannot be a good ground for delaying the construction.
9 . As regards the delay in grant of approvals from the State
Government is concerned, neither any particulars of the alleged
delay have been given nor any evidence has been led to prove that
there was abnormal delay on the part of Government Authorities in
granting approval and the said delay had contributed to the delay in
completion of the construction.
10. As regards the Jat reservation agitation, there is no evidence of

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 the said agitation having actually resulted in stoppage of work at the
site of the project. More importantly, the aforesaid protest is stated
to have started in February 2016 whereas the construction was
required to be completed by September 2015, much before the said
agitation started in Gurgaon.
11. As regards NGT having stopped construction in April 2015 and
November 2016, no order of NGT passed in April 2015 and stopping
construction on the project in question has been placed on record.
As far as the order of NGT dated 08.11.2016 is concerned, that came
to be passed much later than the last date stipulated in the Buyers
Agreement for completion of the construction. Moreover, the said
order was operative only for a period of one week.
12. As far as demonetization is concerned, I fail to appreciate how it
could have affected the construction since there was no restriction on
payment by means of cheques/demand drafts and through other
modes of banking transactions. Moreover, the demonetization came
to force on 08.11.2016, much after the last date stipulated for
completion of the construction had already expired."
14. With regard to Clause 11.5 of the Agreement upon which the reliance has been
placed by the Developer for refund and compensation payable to the Complainants,
the Coordinate Bench referring to another decision of this Commission in Consumer
Complaint No. 2000 of 2016 -Geeta Bansal Vs. M/s. Ireo Grace Realtech Pvt. Ltd. &
Ors. - decided on 24.09.2018, has held that such a Clause is wholly one sided and
unfair and, therefore, the Complainants would not be bound by the same. If the
Developer is unable to justify the delay, this Commission would be competent to
direct refund of the amount paid by them to the Developer along with appropriate
compensation.
15. At this juncture, it is pertinent to mention that Civil Appeal Nos. 12238 of 2018
and 1677 of 2019 were filed by the Developer, Pioneer Urban Land and Infrastructure
Ltd. before the Hon'ble Supreme Court of India against the order dated 23.10.2018
passed by the Coordinate Bench of this Commission in Geetu Gidwani's case (Supra).
Vide order, dated 02.04.2019, the Hon'ble Supreme Court of India affirmed the
finding returned by this Commission and dismissed the Civil Appeals with the
following observations:-
"6. We have heard the learned Counsel for both the parties, and perused the
pleadings, and written submissions filed.
6.1. In the present case, admittedly the Appellant-Builder obtained the
Occupancy Certificate almost 2 years after the date stipulated in the
Apartment Buyer's 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 - MANU/SC/0178/1994 :
(1994) 1 SCC 243, 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

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 the Consumer Protection Act, 1986. The inordinate delay in handing over
possession of the flat clearly amounts to deficiency of service.
In Fortune Infrastructure and Anr. v. Trevor D'Lima and Ors.,
MANU/SC/0253/2018 : (2018) 5 SCC 442, 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 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.
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."
6.4. A perusal 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 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

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 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.
In Central Inland Water Transport Corporation Limited and Ors. v. Brojo Nath
Ganguly and Ors.,: MANU/SC/0439/1986 : (1986) 3 SCC 156, this Court held
that:
8 9 . ... Our judges are bound by their oath to 'uphold the
Constitution and the laws'. The Constitution was enacted to secure to
all the citizens of this country social and economic justice. Article 14
of the Constitution guarantees to all persons equality before the law
and equal protection of the laws. This principle is that the courts will
not enforce and will, when called upon to do so, strike down an
unfair and unreasonable contract, or an unfair and unreasonable
Clause in a contract, entered into between parties who are not equal
in bargaining power. It is difficult to give an exhaustive list of all
bargains of this type. No court can visualize the different situations
which can arise in the affairs of men. One can only attempt to give
some illustrations. For instance, the above principle will apply where
the inequality of bargaining power is the result of the great disparity
in the economic strength of the contracting parties. It will apply
where the inequality is the result of circumstances, whether of the
creation of the parties or not. 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.

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 (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, 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 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.
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.
In Bangalore Development Authority v. Syndicate Bank,:
MANU/SC/2718/2007 : (2007) 6 SCC 711, 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.
8.1. In 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-Flat Purchaser.
The National 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.
9 . We see no illegality in the Impugned Order dated 23.10.2018 passed by
the National Commission. The Appellant-Builder failed to fulfil 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

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 Purchaser was entitled to be granted the relief prayed for i.e. refund of the
entire amount deposited by him with Interest."
16. Hence, it is manifest that the aforesaid judgment of the Hon'ble Supreme Court
squarely applies to the facts and circumstances of the present case. Respectfully
following the judgment of the Hon'ble Supreme Court of India, we allow the present
Complaint and direct the Opposite Party Developer to refund the principal amount
with compensation in the form of simple interest @9% p.a. from the respective dates
of deposit till the date of realization together with costs of 25,000/- to be paid to the
Complainants. The interest @9% p.a. has been awarded in the light of the
observation of the Hon'ble Supreme Court in a catena of judgments awarding interest
keeping in view the current market situation and that the Banks have lowered the
interest rates and also considering the recent downtrend in the rates of interest and
the erosion in the values of real estate in the market. However, in view of the present
scenario due to Covid 19 pandemic, we grant three months' time from today to the
Developer to comply with this order failing which the amount shall carry interest
@12% p.a.
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