NCDRC: The Waiting Period For The Possession Of The Flat Must Be Reasonable, Buyer Cannot Be Made To Wait Indefinitely

Brief Facts:

In 2016, the complainants bought a residential floor in the "Emerald Floors Premier" project at Emerald Estate in Gurgaon, Haryana, for a total cost of Rs.82,55,642/-. The floor was supposed to be handed over within 36 months, as per the Buyer's Agreement, but the builder failed to do so. The complainants had paid Preferential Location Charges for a Type-A Ground Floor property with Rear and Front Lawns, but the layout of the lawns was changed without compensating them. The builder issued an Intimation of Offer of Possession arbitrarily and unreasonably without compensating for the delay. The complainants filed a Complaint against the builder for unfair trade practice and seek appropriate relief.

The builder argued that the complainants lack locus standi to file the Complaint since there was no deficiency in service or breach of the Agreement's terms and conditions by the developer. The respondent further claimed that the Complaint was filed to harass the builder and that most of the complainants had already obtained possession.

The builder further contended that the delay in completing the project was due to force majeure conditions, and therefore, beyond the builder's control. They also claimed that the Opposite Party had offered possession to the complainants through a Letter of Offer of Possession dated 13.02.2020. The builder pleaded that the unit was constructed as per the approved site plan, and any alteration or modification was carried out on the advice of the architect or engineer with intimation to the complainants. Despite the offer of possession, the complainants did not come forward to take it. Therefore, the builder argued that the complainants are not entitled to any relief.

Observations by the Commission:

Starting with the contention raised by the builder that the delay in completing the project was due to force majeure, the NCDRC held that the grounds mentioned for the delay, such as processing the Fire NOC and termination of the contract with the previous contractor do not qualify as force majeure conditions. Therefore, the commission was of the view that these reasons are unsustainable.

Coming to the second contention raised by the builder that an extension of the possession date extension was allowed as per Clause 11(b) of the Agreement, and time was not essential, the commission referred the Hon'ble Supreme Court's decision in the case of Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, II (2019) CPJ 29 (SC), wherein it was held that the Complainant cannot be made to wait for the possession of the booked unit indefinitely. Based on the judgment, the commission noted that the Agreement was signed in 2010, and possession was offered in 2020 - after 10 years. The NCDRC held that such a delay cannot be deemed reasonable and therefore, the commission held that the complainants were entitled to interest compensation for the delay period.

The complaint was allowed in part, and the builder was directed to hand over possession of the apartment to the Complainants within 6 weeks from the date of the judgment. Additionally, the complainants were awarded compensation in the form of simple interest at a rate of 9%.

Case: Gaurav Jain & Anr. v Emaar Mgf Land Ltd.

Case No.: CONSUMER CASE NO. 393 OF 2020

Counsel for the Petitioner(s): Mr. Saurabh Jain

Counsel for the Respondent(s): Mr Swetank Shantanu and Mr Pratap Shankar

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