Abhinav Mohnot

Bench No- 1

Bench:  HON'BLE MR. JUSTICE R.K. AGRAWAL, PRESIDENT

HON'BLE DR. S.M. KANTIKAR, MEMBER

Item no- 90

EA/33/2022

Case Title : ALKA SHARMA & ANR. vs M/S EMAAR MGF LAND LTD. &
ANR.

Order Dated 30.08.2022

List the matter on 13.09.2022 at 2.00 p.m. in the Chambers, when learned Counsel
for the Parties as also the Decree Holders/Complainants shall come.  
Order Dated 07.11.2022

The Registry has reported that the file of this matter could not be traced as it has got
mixed up with other files in MTNL Office.

Registry is directed to trace out the file and send the same on  the next date.

Order Dated 07.12.2022

Parties are permitted to go through the calculation made by Mr. R.M. Naidu, Assistant
Registrar of this Commission.

Order Dated 16.01.2023

On the request of Mr. Vasantha Kumar K., learned Counsel for the Decree Holders,
list on 10.02.2023.   
Order Dated 10.02.2023
Let the learned counsel for the parties sit together with Mr. R.M. Naidu, Assistant
Registrar of this commission on a date, which may be fixed by him to work out the
figures in the calculation given by him.
RISHABH SHUKLA

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

BENCH NO. 1

Item no : 91

BEFORE:
 

HON'BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER

  HON'BLE
DR. B.C.
GUPTA,
MEMBER

     

EA/34/2022

  

In

CC/428/2016

Case title : PREM SARUP NARULA & ANR. Vs. M/S. EMAAR MGF LAND LTD. &
ANR. (FOR EXECUTION)

1. Case details :   The present batch of Consumer Complaints have been filed under Section
21(a)(i) of the Consumer Protection Act, 1986 (for short “the Act”) by the Complainants,
against the Opposite Party No.1- M/s Emaar MGF Land Ltd. (hereinafter referred to as
 the ‘Opposite Party) and Opposite Party No.2- M/s Brijbasi Projects Pvt.Ltd., which is
Private Ltd. Company and is only a confirming Party.  
2. Since the facts and question of law involved in these Complaints are similar except for
minor variations in the dates, events and flat numbers, these Complaints are being
disposed of by this common Order. However, for the sake of convenience, Consumer
Complaint No. 423 of 2016 is treated as the lead case and the facts enumerated
hereinafter are taken from Consumer Complaint No. 423 of 2016. 
3. According to the Complainants, the facts of the case are that the Opposite Party after
obtaining license from the Director, Town and Country Planning Haryana, for setting up
a Residential Group Housing Colony, launched a Housing Scheme called as “The Palm
Terraces Select” in Sector 66, Gurgaon, Haryana.The Complainants approached the
office of the Opposite Party No.1 and booked a flat in the said Project on 9.8.2010 by
paying a sum of Rs.10 lakh towards the booking amount.An Agreement was executed
between the Parties on 29.11.2010. As per clause 14 (a) of the Buyer’s Agreement, the
Opposite Party agreed and undertook to handover the possession of the said apartment
within 36 months from the date of commencement of construction i.e. by the end of 2013
and a grace period of 3 months.After a lapse of almost 18 months, the Opposite Party
neither raised any demand nor started construction. The construction was not completed
even after four years. However, the Complainants paid regular installments to the
Opposite Party.As per Clause 16 (a) of the Agreement, the Opposite Party shall have to
pay compensation @ Rs.7.50 per sq.ft per month in case of any delay in handing over the
possession. This was a one-sided buyer’s agreement as Rs.7.50 per sq.ft for every month
in case of delay is a meager sum. The Complainants had made on-time payment of all the
demands of the Opposite Party amounting to almost 85 to 90% of the total consideration
for the said apartment.Despite requests, the Opposite Party was not giving any committed
date for possession.As per Clause 13 (b) of the Buyer’s Agreement, the Opposite Party
charged a simple interest @ 24% p.a. from the Complainants on any amount
due.Alleging deficiency in service and unfair trade practice on the part ofthe Opposite
Party Developer, the Complainants have filed the present Consumer Complaints before
this Commission with following prayer:-

“Direct the Opposite Parties to handover the possession of the aforesaid apartment complete in
all respects to the Complainants immediately as per the Buyer’s Agreement and execute all the
necessary and required documents.

Direct the OP to pay a sum in form of interest @ 12% p.a. on the amount paid to the OP till date
as compensation from the committed date of possession till the actual possession of the
apartment.

Grant immunity to the Complainants from payment of any charges incurred due to any
escalation in cost including enhanced Service Tax.

Direct the OP to pay a sum of Rs.1,00,000/- (Rupees one lakh only) to each of the Complainants
towards the cost of litigation.

Any other order (s) as may be deemed fit and appropriate may also kindly be passed.”
 1. Facts The Learned Counsel for the Complainants has filed an IA No.1676 of 2020
(for appropriate Orders) in which it has been stated that vide Order dated 2.5.2018,
this Commission has passed an Interim Order directing the Opposite Party to
obtain the Occupancy Certificate and deliver possession to the concerned allottees
by 30.9.2018.Vide letter dated 19.8.2019, the Developer had given the “Offer of
Possession” to the allottees. The Complainants got possession on
8.1.2020.Accordingly, the Complainants have amended their prayer, which is as
under:-
2. The Complaint be disposed of by passing appropriate directions qua the OP to pay
compensation to the Complainants for the period of delay in the light of already
decided consumer Complaints.
3. Take appropriate actions against the OP for making incorrect, misleading and false
statement and statement and for taking an adjournment as recorded in order dated
3.1.2020.
4. Any other order which may deem fit may also kindly be passed.

1. Court observed With regard to the contention raised by the Opposite Party that in
view of Arbitration Clause in the Builder Buyer Agreement, this Commission has no
jurisdiction to entertain the Complaint, attention is drawn to the Order in Aftab
Singh Vs. Emaar   MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide
order dated 13.07.2017,  in which this Commission has held that Arbitration Clause
in the Buyer’s Agreement does not bar the jurisdiction of the Consumer Fora. In
Appeal having being preferred, the Hon’ble Supreme Court has affirmed the said
decision in the case of Emaar MGF Land Ltd. Vs. Aftab Singh (2019) 12 SCC 751.
2. The contention of the Opposite Partythat the Complainants are not“Consumers” as
the Complainants have booked the flat for earning profits and for investment
purpose, is completely unsustainable in the light of the judgment of this Commission
in Kavita Ahjua Vs. Shipra Estates I (2016) CPJ 31, in which the principle laid down
is that “the onus of establishing that the Complainant was dealing in real estate i.e. in
the purchase and sale of plots/flats in his normal course of business to earn profits,
shifts to the Opposite Party, which in the instant case they had failed to discharge by
filing any documentary evidence to establish their case”. No such evidence has been
adduced by the Opposite Party. Therefore, we are of the considered view that the
Complainants are “Consumer” as defined under Section 2 (1) (d) of the Act.
3. There are a number of Hon’ble Supreme Court’s pronouncements on relief to be
given to the Allottee/Buyers as delay compensation for unreasonable delay by the
 Developer/Builder in construction and offer of possession. The Developer has also
delayed in obtaining the Occupancy Certificate.

1. Held by court : “The Opposite Party should pay a delay compensation @ 8% to the
Complainant from the proposed date of delivery till the actual handing over of the
possession to the Complainants, within two months from the date of this order, failing
which it would be liable to pay interest @ 12% for the sameperiod.
2. If the Opposite Party has made payment of some compensation amount, it will adjust
this amount against the total amount payable to the Complainants.”

3. In the case listed in Chart ‘B’ – we direct as follows :-

o The Opposite Party – Developer will hand over the possession of the Unit, in
question, to the Complainant, after completing construction as per the terms of
the Buyer’s Agreement and obtaining OC, within a period of three months,
from the date of issue of this Order.
o The Opposite Party – Developer will pay delay compensation by way of simple
interest @ 9% per annum from the proposed date of delivery of the possession
of the flat till actual handing over of the possession of the flat, within three
months of this Order, failing which an interest of 12% per annum will be
applicable.