PIONEER URBAN LAND & INFRASTRUCTURE LTD. versus GOVINDAN RAGHAVAN on 2 April 2019

PIONEER URBAN LAND & INFRASTRUCTURE LTD.

v.

GOVINDAN RAGHAVAN

(Civil Appeal No. 12238 of 2018)

APRIL 02, 2019

[UDAY UMESH LALIT AND INDU MALHOTRA, JJ.]

Consumer Protection Act, 1986 – s.23 – Deficiency of service– Appellant-Builder launched a residential project and respondent-flat purchaser entered into an Apartment Buyer’s agreement topurchase an apartment in the said project for a total saleconsideration of Rs.4,83,25,280/- – As per agreement, the appellantwas to apply for the occupancy certificate within 39 months fromthe date of excavation with grace period of 180 days – However,Appellant-builder failed to apply for occupancy certificate as peragreement – Consumer complaint filed before the NationalCommission – During the pendency of the proceedings, the appellantobtained the occupancy certificate and pleaded NationalCommission to direct the respondent to take possession of the flat –However, the respondent refused to take possession as there wasan inordinate delay of almost 3 years – National Commission allowedthe consumer complaint and held that respondent could not becompelled to take possession at such belated stage – Further,appellant was directed to refund Rs.4,48,43,026 i.e. the amountdeposited by the respondent along with interest @ 10.7% S.I. p.a.towards compensation – On appeal, held: The respondent-flatpurchaser made out a clear case of deficiency of service on thepart of the appellant-builder – Appellant failed to fulfill hiscontractual obligation of obtaining the occupancy certificate andoffering possession of the flat to the respondent within the timestipulated in the agreement, or within a reasonable time thereafter– Respondent was justified in terminating the Apartment Buyer’sAgreement by filing the Consumer Complaint, and cannot becompelled to accept the possession whenever it is offered by theBuilder – Respondent was legally entitled to seek refund of the moneydeposited by him along with appropriate compensation –Respondent had to also service a loan that he had obtained for

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Apurchasing the flat by paying interest @10% to the Bank – In thecircumstances, no illegality in the impugned order passed by theNational Commission – Haryana Real Estate (Regulation AndDevelopment) Rules, 2017 – r.15.

Consumer Protection Act, 1986 – s.2(r) – Unfair andBunreasonable apartment buyer’s agreement – Held: A term of acontract will not be final and binding if it is shown that the flatpurchasers had no option but to sign on the dotted line, on a contractframed by the builder – The contractual terms of the Buyer’sAgreement in the instant case was ex-facie one-sided, unfair andunreasonable – The incorporation of such one-sided clauses in anCagreement constitutes an unfair trade practice as per s.2(r) of theConsumer Protection Act since it adopts unfair methods or practicesfor the purpose of selling the flats by the Builder.

Dismissing the appeals, the Court

DHELD: 1. A term of a contract will not be final and bindingif it is shown that the flat purchasers had no option but to sign onthe dotted line, on a contract framed by the builder. Thecontractual terms of the Agreement dated 08.05.2012 are ex-facie one-sided, unfair, and unreasonable. The incorporation ofsuch one-sided clauses in an agreement constitutes an unfair tradeEpractice as per Section 2 (r) of the Consumer Protection Act,1986 since it adopts unfair methods or practices for the purposeof selling the flats by the Builder. This Court has no hesitation inholding that the terms of the Apartment Buyer’s Agreementdated 08.05.2012 were wholly one-sided and unfair to theFRespondent-Flat Purchaser. The Appellant-Builder could not seekto bind the Respondent with such one-sided contractual terms.[Paras 6.7 and 7][1183-B-D]

2. In the present case, the National Commission has passedan equitable Order. The Commission has not awarded any InterestGfor the period during which the Order of stay of cancellation ofthe allotment was in operation on the request of the Respondent-Flat Purchaser. The National Commission has rightly awardedInterest @10.7% S.I. p.a. by applying Rule 15 of the HaryanaReal Estate (Regulation And Development) Rules, 2017 from H

the date of each installment till 05.02.2017 i.e. till the date afterwhich the Order of stay of cancellation of the allotment was passed;and thereafter, from the date of the Commission’s final Order tillthe date on which the amount is refunded with Interest.[Para 8.1][1183-G-H; 1184-A-B]

3. There is no illegality in the Impugned Order dated23.10.2018 passed by the National Commission. The Appellant-Builder failed to fulfill his contractual obligation of obtaining theOccupancy Certificate and offering possession of the flat to theRespondent-Purchaser within the time stipulated in theAgreement, or within a reasonable time thereafter. TheRespondent-Flat Purchaser could not be compelled to takepossession of the flat, even though it was offered almost 2 yearsafter the grace period under the Agreement expired. During thisperiod, the Respondent-Flat Purchaser had to service a loan thathe had obtained for purchasing the flat, by paying Interest @10%to the Bank. In the meanwhile, the Respondent-Flat Purchaseralso located an alternate property in Gurugram. In thesecircumstances, the Respondent-Flat Purchaser was entitled tobe granted the relief prayed for i.e. refund of the entire amountdeposited by him with Interest. [Para 9][1184-B-E]

Lucknow Development Authority v. M.K. Gupta (1994)1 SCC 243 : [1993] 3 Suppl. SCR 615; FortuneInfrastructure & Anr. v. Trevor D’Lima & Ors. (2018) 5SCC 442: [2018] 3 SCR 273 ; Central Inland WaterTransport Corporation Limited and Ors. v. Brojo NathGanguly and Ors. (1986) 3 SCC 156 : [1986] 2 SCR278 – relied on.

Bharathi Knitting Company v. DHL Worldwide ExpressCourier Division of Airfreight Ltd. (1996) 4 SCC 704 :[1996] 2 Suppl. SCR 653 ; Bangalore DevelopmentAuthority v. Syndicate Bank (2007) 6 SCC 711 :[2007] 7 SCR 47 – referred to.

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[2019] 5 S.C.R.

BCIVIL APPELLATE JURISDICTION: Civil Appeal No.12238of 2018.

From the Judgement and Order dated 23.10.2018 of the NationalDisputes Redressal Commission in Consumer Complaint No.239 of 2017.

C.A. Sundram, Sr. Adv., Nikhil Nayyar, T.V. S. RaghavendraCSreyas, Advs. For the Appellant.

Sushil Kasushik, Manoj Yadav, Himanshu Shekhar, Advs. For theRespondents.

The Judgment of the Court was delivered by D

INDU MALHOTRA, J. 1. The present statutory Appeals havebeen filed under Section 23 of the Consumer Protection Act, 1986 tochallenge the Final Judgment and Order dated 23.10.2018 passed inConsumer Case No. 238 of 2017 and Consumer Case No. 239 of 2017by the National Consumer Disputes Redressal Commission (hereinafterEreferred to as “the National Commission”).

2. Since a common issue arises in both the Civil Appeals, they arebeing disposed of by the present common Judgment and Order.

3. For the sake of brevity, the facts in C.A. No. 12238 of 2018are being referred to, being the lead matter.

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The factual matrix of the said Civil Appeal is as under :

3.1. The Appellant – Builder launched a residential project by thename “Araya Complex” in Sector 62, Golf Course ExtensionRoad, Gurugram.

The Respondent – Flat Purchaser entered into an ApartmentBuyer’s Agreement dated 08.05.2012 with the Appellant –Builder to purchase an apartment in the said project for a totalsale consideration of Rs. 4,83,25,280/-.

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As per Clause 11.2 of the Agreement, the Appellant – Builder was to make all efforts to apply for the Occupancy Certificatewithin 39 months from the date of excavation, with a graceperiod of 180 days.

3.2. The excavation of the project commenced on 04.06.2012. Asper Clause 11.2 of the Agreement, the Builder was required toapply for the Occupancy Certificate by 04.09.2015, or within afurther grace period of 6 months i.e. by 04.03.2016, and offerpossession of the flat to the Respondent – Flat Purchaser.

The Appellant – Builder however failed to apply for the Occupancy Certificate as per the stipulations in the Agreement.

3.3. The Respondent – Flat Purchaser filed a Consumer Complaintbefore the National Commission on 27.01.2017 allegingdeficiency of service on the part of the Appellant – Builder forfailure to obtain the Occupancy Certificate, and hand overpossession of the flat.

The Respondent prayed inter-alia for :-

Refund of the entire amount deposited beingRs. 4,48,43,026/-, along with Interest @18% p.a.; and Compensation of Rs. 10,00,000/- for mental agony, harassment,discomfort and undue hardship; and Refund of the wrongfully charged taxes including ServiceTax, and other charges along with Interest @18% p.a.; and Litigation Costs of Rs. 1,00,000/-.

3.4. On 06.02.2017, the National Commission passed an ex-parteInterim Order restraining the Appellant – Builder from cancellingthe allotment made in favour of the Respondent – Flat Purchaserduring the pendency of the Consumer Case.

3.5. During the pendency of the proceedings before the NationalCommission, the Appellant – Builder obtained the OccupancyCertificate on 23.07.2018, and issued a Possession Letter tothe Respondent – Flat Purchaser on 28.08.2018.

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A3.6. The Appellant – Builder submitted before the NationalCommission that since the construction of the apartment wascomplete, and the Occupancy Certificate had since beenobtained, the Respondent – Flat Purchaser must be directed totake possession of the apartment, instead of directing refund ofthe amount deposited.

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3.7. The Respondent – Flat Purchaser however submitted that hewas not interested in taking possession of the apartment onaccount of the inordinate delay of almost 3 years. TheRespondent – Flat Purchaser stated that he had, in themeanwhile, taken an alternate property in Gurugram, and soughtCrefund of the entire amount of Rs. 4,48,43,026/- deposited byhim along with Interest @18% p.a.

3.8 The National Commission vide Final Judgment and Order dated23.10.2018 allowed the Consumer Complaint filed by theRespondent – Flat Purchaser, and held that since the last dateDstipulated for construction had expired about 3 years beforethe Occupancy Certificate was obtained, the Respondent – FlatPurchaser could not be compelled to take possession at such abelated stage.

The grounds urged by the Appellant – Builder for delay in Ehanding over possession were not justified, so as to denyawarding 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 – Flat Purchaser.

The Appellant – Builder was directed to refund Rs. 4,48,43,026/

F- 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 accordancewith Rule 15 of the Haryana Real Estate (Regulation andDevelopment) Rules, 2017 which reads as follows :

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“15. An allottee shall be compensated by the promoter forloss or damage sustained due to incorrect or false statementin the notice, advertisement, prospectus or brochure in theterms of Section 12. In case, allottee wishes to withdraw fromthe project due to discontinuance of promoter’s business as H

developers on account of suspension or revocation of theregistration or any other reason(s) in terms of clause (b) sub-section (I) of Section 18 or the promoter fails to givepossession of the apartment/ plot in accordance with termsand conditions of agreement for salein terms of sub-section(4) of section 19. The promoter shall return the entire amountwith interest as well as the compensation payable. The rate ofinterest payable by the promoter to the allottee or by the allotteeto the promoter, as the case may be, shall be the State Bank ofIndia highest marginal cost of lending rate plus two percent.

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However, for the period when the Interim Order dated 06.02.2017was in operation, which restrained the Appellant – Builder fromcancelling the Respondent’s allotment, no Interest was awarded.The National Commission ordered payment of Interest from thedate of each installment till 05.02.2017; and from the date of theOrder passed by the Commission till the date on which the amountwould be refunded.

3.9. Aggrieved by the Order dated 23.10.2018 passed by theNational Commission, the Appellant – Builder preferred thepresent statutory Appeal under Section 23 of the ConsumerProtection Act, 1986.

4. Mr. C.A. Sundaram, Senior Counsel appeared for the Appellant– Builder, and drew our attention to the following Clauses in the ApartmentBuyer’s Agreement dated 08.05.2012 viz. Clause 11.5 (ii), (iv) and (v)along with Clause 20 which read as under :

“11.5. (ii) In the event of further delay by the Developer inhanding over of the possession of the Unit even after 12months from the end of grace period, then in such case, theintending Allottee shall have an additional option to terminatethis Agreement by giving termination notice of 90 days to theDeveloper and refund of the actual installment paid by himagainst the Unit after adjusting the taxes paid / interest /penalty on delayed payments.

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(iv) Developer shall, within ninety (90) days from the dateof receipt of termination notice of said Unit, refund to theintending Allottee, all the monies received excluding the servicetax collected on various remittances, till the date of the refund,from the Intending Allottee under this Agreement. In case theDeveloper fails to refund the Sale Price, the Developer shallpay interest to the Intending Allottee @ 9% per annum forany period beyond the said period of ninety (90) days. TheIntending Allottee shall have no other claim against theDeveloper in respect of the said Unitalong with the parkingspace. The Intending Allottee in this event shall have no rightto seek any compensation apart from the interest as stipulatedherein.

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(v) If the Intending Allottee fails to exercise his right oftermination within the time limit as aforesaid, by delivery tothe Developer of a written notice acknowledged by theDeveloper in this regard, then he shall not be entitled toterminate this Agreement thereafter and he shall continue tobe bound by the provisions of this Agreement, provided thatin such case, the Developer shall continue to pay thecompensation provided herein.

20. RIGHT OF CANCELLATION BY THE ALLOTTEE

Except to the extent specifically and expressly stated elsewherein this Agreement, the Intending Allottee shall have the rightto cancel this Agreement solely in the event of the clear andunambiguous failure of the warranties of the Developer thatleads to frustration of the contract on that account. In suchcase, the Allottee shall be entitled to a refund of the installmentsactually paid by it along with interest thereon @ 6% perannum, within a period of 90 days from the date ofcommunication to the Developer in this regard less anypayments made towards taxes paid by the Developer or interestpaid due or payable, any other amount of a non-refundablenature. No other claim, whatsoever, monetary or otherwiseshall lie against the Developer nor shall be raised otherwise

or in any manner whatsoever by the Allottee. Save and exceptto this limited extent, the Allottee shall not have any right tocancel this Agreement on any ground whatsoever.”

(emphasis supplied)

4.1. It was submitted that the Respondent – Flat Purchaser was notentitled to refund of the amount deposited, since the ApartmentBuyer’s Agreement was not terminated by the Respondent –Flat Purchaser in accordance with Clause 11.5 (ii) of theAgreement, which stipulates that the allottee has to terminatethe Agreement by giving a Termination Notice of 90 days tothe Developer.

Since the Respondent – Flat Purchaser had not terminated the Agreement by a written notice as per Clause 11.5, the Buildercould not sell the apartment, and refund the money to theRespondent – Flat Purchaser. On the contrary, the Respondentfiled a Consumer Complaint and obtained an ex-parte InterimOrder dated 06.02.2017 restraining the Builder from cancellingthe allotment made in favour of the Respondent.

4.2. It was further submitted that if the filing of the ConsumerComplaint is considered as an act of termination of theAgreement, then the same was pre-mature. As per Clause 11.5(ii), the Respondent – Flat Purchaser could have claimed refundonly after the expiry of 12 months after the grace period cameto an end i.e. after 04.03.2017. However, the ConsumerComplaint was filed on 27.01.2017. In these circumstances,even if it is found that the Appellant – Builder is liable to refundthe amount deposited with Interest, then the date of theImpugned Order i.e. 23.10.2018, must be treated as the date ofserving the Termination Notice as per Clause 11.5 (ii) of theAgreement, and the Appellant – Builder should be held liable topay Interest only after 90 days from the date of termination i.e.from 23.01.2019.

4.3. With respect to rate of Interest awarded by the NationalCommission, it was submitted that the Commission erred ingranting Interest @10.7% S.I. p.a. even though Clause 20 of A

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Athe Agreement provided Interest @6% p.a. in case of delay inhanding over possession. Even under Clause 11.5 of theAgreement, the Builder was liable to pay Interest @9% p.a.,but not @10.7% S.I. p.a. The learned Senior Counsel reliedupon this Court’s Judgment in Bharathi Knitting Company v.DHL Worldwide Express Courier Division of Airfreight Ltd.,[1]Band submitted that the National Commission could not havegranted compensation in excess of the rate prescribed by theAgreement.

5. Mr. Sushil Kaushik, learned Counsel represented the Respondent– Flat Purchaser.C

5.1. It was submitted that the filing of the Consumer Complaint maybe treated as his Termination Notice under Clause 11.5 (ii) ofthe Agreement. Under the Agreement, the Builder was obligatedto apply for the Occupancy Certificate within 39 months fromthe date of excavation, with a grace period of further 6 months.DThe period got over by 04.03.3016 after taking into account thegrace period.

Admittedly, the Appellant – Builder offered possession after aninordinate delay of almost 3 years on 28.08.2018. On accountof the inordinate delay, the Respondent – Flat Purchaser hadEno option but to arrange for alternate accommodation inGurugram. Hence, he could not be compelled to take possessionof the apartment after such a long delay.

It was in these circumstances that the Respondent – FlatPurchaser sought stay of the cancellation of the allotment as aFcollateral, till his claim for refund was adjudicated by the NationalCommission.

5.2. It was further submitted that the Clauses of the Agreement wereone-sided. As per Clause 6.4 (ii) of the Apartment Buyer’sAgreement, the Appellant Builder could charge Interest @18%Gp.a. for delayed payments.

However, the Appellant – Builder was not required to payequivalent Interest to the Respondent – Flat Purchaser for delayin handing over possession of the flat.

H1(1996) 4 SCC 704.

On the contrary, as per Clause 11.5 (iv) of the Agreement, incase of delay on the part of the Appellant – Builder in handingover possession of the flat, the Respondent – Flat Purchaserwas entitled to Interest @9% p.a. only.

5.3. The Respondent further submitted that the National Commissionhad ordered payment of Interest as per the statutory Rules i.e.Rule 15 of the Haryana Real Estate (Regulation andDevelopment) Rules, 2017 @10.7% S.I. p.a.

The Respondent – Flat Purchaser submitted that he had obtained a loan for Rs. 3,30,00,000/- from Standard Chartered Bank topurchase the flat in question, and had entered into a TripartiteLoan Agreement with the Bank and the Builder. The Respondent– Flat Purchaser had to pay Interest @10% p.a. for servicingthe loan for the entire period. Hence, Interest @10.7% S.I.p.a. awarded by the National Commission was just and fair.

It was pointed out that even though the National Commission had not granted Interest for the period during which the Orderof stay of cancellation of the allotment was in operation, theRespondent – Flat Purchaser had to pay Interest to the Bankeven for this period.

5.4. The Respondent – Flat Purchaser submitted that the presentAppeal be dismissed, and the Builder be directed to pay theamount awarded by the National Commission with Interest,within 1 week, so that the Respondent can discharge his loanliability.

6. We have heard the learned Counsel for both the parties, andperused the pleadings, and written submissions filed.

6.1. In the present case, admittedly the Appellant – Builder obtainedthe Occupancy Certificate almost 2 years after the datestipulated in the Apartment Buyer’s Agreement. As aconsequence, there was a failure to hand over possession ofthe flat to the Respondent – Flat Purchaser within a reasonableperiod. The Occupancy Certificate was obtained after a delayof more than 2 years on 28.08.2018 during the pendency of theproceedings before the National Commission.

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A In Lucknow Development Authority v. M.K. Gupta,[2]this Courtheld that when a person hires the services of a builder, or acontractor, for the construction of a house or a flat, and thesame is for a consideration, it is a “service” as defined by Section2 (o) of the Consumer Protection Act, 1986. The inordinatedelay in handing over possession of the flat clearly amounts toBdeficiency of service.

In Fortune Infrastructure & Anr. v. Trevor D’Lima & Ors.,[3]this Court held that a person cannot be made to wait indefinitelyfor possession of the flat allotted to him, and is entitled to seekrefund of the amount paid by him, along with compensation.C6.2. The Respondent – Flat Purchaser has made out a clear case ofdeficiency of service on the part of the Appellant – Builder.The Respondent – Flat Purchaser was justified in terminatingthe Apartment Buyer’s Agreement by filing the ConsumerComplaint, and cannot be compelled to accept the possessionDwhenever it is offered by the Builder. The Respondent –Purchaser was legally entitled to seek refund of the moneydeposited by him along with appropriate compensation.

6.3. The National Commission in the Impugned Order dated23.10.2018 held that the Clauses relied upon by the BuilderEwere wholly one-sided, unfair and unreasonable, and could notbe relied upon.

The Law Commission of India in its 199[th] Report, addressed the issue of ‘Unfair (Procedural & Substantive) Terms inContract’. The Law Commission inter-alia recommended thatFa legislation be enacted to counter such unfair terms in contracts.In the draft legislation provided in the Report, it was statedthat :

“A contract or a term thereof is substantively unfair if suchcontract or the term thereof is in itself harsh, oppressiveGor unconscionable to one of the parties.”

6.4. A perusal of the Apartment Buyer’s Agreement dated 08.05.2012reveals stark incongruities between the remedies available toboth the parties.

2 (1994) 1 SCC 243.H3(2018) 5 SCC 442.

For instance, Clause 6.4 (ii) of the Agreement entitles the Appellant – Builder to charge Interest @18% p.a. on accountof 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 anyinstallment 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 apartmentwithin the stipulated period, the Respondent – Flat Purchaserhas to wait for a period of 12 months after the end of the graceperiod, before serving a Termination Notice of 90 days on theAppellant – Builder, and even thereafter, the Appellant – Buildergets 90 days to refund only the actual installment paid by theRespondent – Flat Purchaser, after adjusting the taxes paid,interest and penalty on delayed payments. In case of any delaythereafter, the Appellant – Builder is liable to pay Interest @9%p.a. only.

6.5. Another instance is Clause 23.4 of the Agreement which entitlesthe Appellant – Builder to serve a Termination Notice upon theRespondent – Flat Purchaser for breach of any contractualobligation. If the Respondent – Flat Purchaser fails to rectifythe default within 30 days of the Termination Notice, then theAgreement automatically stands cancelled, and the Appellant– Builder has the right to forfeit the entire amount of EarnestMoney 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 oftermination within the time limit provided in Clause 11.5, thenhe 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 thepurpose of promoting the sale, use or supply of any goods or A

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for the provision of any service, adopts any unfair method orunfair or deceptive practice …”,and includes any of thepracticesenumerated therein. The provision is illustrative, and notexhaustive.

In Central Inland Water Transport Corporation Limited andBOrs. v. Brojo Nath Ganguly and Ors.,[4]this Court held that :

“89. … Our judges are bound by their oath to ‘uphold theConstitution and the laws’. The Constitution was enacted tosecure to all the citizens of this country social and economicjustice. Article 14 of the Constitution guarantees to all personsequality before the law and equal protection of the laws. Thisprinciple is that the courts will not enforce and will, whencalled upon to do so, strike down an unfair and unreasonablecontract, or an unfair and unreasonable clause in a contract, C

entered into between parties who are not equal in bargainingpower.It is difficult to give an exhaustive list of all bargainsDof this type. No court can visualize the different situationswhich can arise in the affairs of men. One can only attemptto give some illustrations. For instance, the above principlewill apply where the inequality of bargaining power is theresult of the great disparity in the economic strength of theEcontracting parties. It will apply where the inequality is theresult of circumstances, whether of the creation of the partiesor not. It will apply to situations in which the weaker party isin a position in which he can obtain goods or services ormeans of livelihood only upon the terms imposed by thestronger party or go without them. It will also apply where aFman has no choice, or rather no meaningful choice, but togive his assent to a contract or to sign on the dotted line in aprescribed or standard form or to accept a set of rules aspartof the contract, however unfair, unreasonable andunconscionable a clause in that contract or form or rulesGmay be. This principle, however, will not apply where thebargaining power of the contracting parties is equal or almostequal. This principle may not apply where both parties arebusinessmen and the contract is a commercial transaction. …

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These cases can neither be enumerated nor fully illustrated.The court must judge each case on its own facts andcircumstances.”

(emphasis supplied)

6.7. A term of a contract will not be final and binding if it is shownthat the flat purchasers had no option but to sign on the dottedline, on a contract framed by the builder.

The contractual terms of the Agreement dated 08.05.2012 areex-facie one-sided, unfair, and unreasonable. The incorporationof such one-sided clauses in an agreement constitutes an unfairtrade practice as per Section 2 (r) of the Consumer ProtectionAct, 1986 since it adopts unfair methods or practices for thepurpose of selling the flats by the Builder.

7. In view of the above discussion, we have no hesitation in holdingthat the terms of the Apartment Buyer’s Agreement dated 08.05.2012were wholly one-sided and unfair to the Respondent – Flat Purchaser.The Appellant – Builder could not seek to bind the Respondent withsuch one-sided contractual terms.

8. We also reject the submission made by the Appellant – Builderthat the National Commission was not justified in awarding Interest@10.7% S.I. p.a. for the period commencing from the date of paymentof each installment, till the date on which the amount was paid, excludingonly the period during which the stay of cancellation of the allotmentwas in operation.

In Bangalore Development Authority v. Syndicate Bank,[5] aCoordinate Bench of this Court held that when possession of the allottedplot/flat/house is not delivered within the specified time, the allottee isentitled to a refund of the amount paid, with reasonable Interest thereonfrom the date of payment till the date of refund.

8.1. In the present case, the National Commission has passed anequitable Order. The Commission has not awarded any Interestfor the period during which the Order of stay of cancellation ofthe allotment was in operation on the request of the Respondent– Flat Purchaser.

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A 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 ofeach installment till 05.02.2017 i.e. till the date after which theOrder of stay of cancellation of the allotment was passed; andthereafter, from the date of the Commission’s final Order tillBthe date on which the amount is refunded with Interest.

9. We see no illegality in the Impugned Order dated 23.10.2018passed by the National Commission. The Appellant – Builder failed tofulfill his contractual obligation of obtaining the Occupancy Certificateand offering possession of the flat to the Respondent – Purchaser withinCthe time stipulated in the Agreement, or within a reasonable timethereafter. The Respondent – Flat Purchaser could not be compelled totake possession of the flat, even though it was offered almost 2 yearsafter the grace period under the Agreement expired. During this period,the Respondent – Flat Purchaser had to service a loan that he had obtainedDfor purchasing the flat, by paying Interest @10% to the Bank. In themeanwhile, the Respondent – Flat Purchaser also located an alternateproperty in Gurugram. In these circumstances, the Respondent – FlatPurchaser was entitled to be granted the relief prayed for i.e. refund ofthe entire amount deposited by him with Interest.

10. The Civil Appeals are accordingly dismissed, and the FinalJudgment and Order dated 23.10.2018 passed by the National ConsumerDisputes Redressal Commission is affirmed. The appellant is granted aperiod of three months from today to refund the amount to the respondent.All pending Applications, if any, are accordingly disposed of.

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Ankit Gyan

Appeals dismissed.

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