The National Commission Holds Emaar Land Liable For Deficiency In Service Due To Delay In Possession

Brief Facts of the Case

The complainant booked an apartment from Emaar Land Ltd./ developer and paid Rs. 40,56,443. The agreement stipulated possession within 36 months from the start of construction, with a grace period of 5 months. According to the agreement, if possession is delayed, the developer must compensate the buyer by Rs. 7.50 per sq. ft. per month. The complainant alleges that despite the lapse of the stipulated time, possession was not handed over, and instead, the developer made unjustified demands for further payments. The complainant seeks possession of the unit or a refund of the paid amount with interest and damages.

Contentions of the Opposite Party

The developer filed a written response disputing the claim, alleging that the complainant failed to adhere to the payment schedule and stopped payments after November 2013. They argued that all demands made from 2016 onwards were rejected by the complainant, who then filed the present complaint instead of complying. The developer further contended that between December 2016 and May 2017, construction up to the 9th floor was completed, and efforts were made to obtain an occupancy certificate and fulfill other formalities. They offered possession of the property to the complainant, which the complainant declined. The complainant's refusal of possession, even during the pendency of the complaint, was cited as evidence by their counsel to argue that accepting possession after five years of filing the complaint is unreasonable. Hence, the complaint sought a refund, interest, and compensation due to the developer's alleged deficiency. Moreover, since possession is being offered, any delay warrants compensation to the complainant. Refunding the amount was deemed unnecessary, especially considering the developer's offer of possession of the completed premises. The developer urged that if the complainant refuses to take possession, they cannot claim a refund or penalties.

Observations by the Commission

The Commission observed that there was indeed a significant delay in the developer's offering possession of the flat. Despite the developer's claims of resolving internal disputes and expediting construction from 2016 onwards, the offer of possession was only made in 2022. This delay was deemed unacceptable, especially considering the judgements of the Supreme Court in cases like Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna & Ors. and Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, which emphasize that buyers cannot be forced to wait indefinitely for possession when projects are not completed on time. The commission noted that the complainant did not default on payments, as the last payment was made in July 2013. The delay in construction and offering possession was attributed solely to the developer. Consequently, the commission ruled in favor of the complainant, stating that there was a clear deficiency in the developer's services by not adhering to the promised timeline. A refund of the amount was deemed justified. The commission further cited the case of Reena Kapur & Ors. Vs. Emaar MGF Land Ltd, where the project was the same, the commission ruled in favor of the complainant, stating that the developer failed to fulfill their promises as per the builder-buyer agreement. Therefore, the commission ordered the developer to refund the amount with reasonable interest until the date of refund.

The commission directed the developer to refund a sum of Rs.40,53,443 @9% per annum along with Rs. 50,000 as litigation costs.

Case Title: Mohan Shyam Dubey Vs. MS Emmar MGF Land Ltd.

Case Number: R.P. No. 787/2017