Builder Bound To Deliver Facilities As Promised In Advertisement: NCDRC

Brief Facts of the Case

The complainants stated that Bombay Dyeing & Manufacturing Company Limited, engaged in real estate development, launched a high-end residential project, “Springs I,” in Mumbai. The project was marketed with promises of luxury amenities like a wrap-around sun deck, imported fittings, and premium recreational facilities. The complainants, attracted by these features, booked a flat and paid 20% of the base sale price. However, when signing the agreement, they noticed discrepancies between the brochure and the contract, including unauthorized car parking charges and possession delays. Despite the agreement stating possession by December 2008, the handover was delayed until January 2012. The complainants also faced issues with maintenance charges, unfulfilled promises of amenities, unauthorized construction of additional floors, and improper handling of taxes. Aggrieved, the complainants filed a complaint before the National Commission, seeking compensation of Rs.21915561 for the delays, refunds for excess charges, and resolution of the issues.

Contentions of the Opposite Party

The company acknowledged the booking, allotment, and sale agreements for the flat and parking spaces but stated that construction delays were due to external factors, including government notices and workers' agitation. They maintained that the complainants were regularly updated on the progress, and despite delays, the complainants chose not to seek a refund and took possession in 2012, expressing satisfaction with the flat. The company denied any deficiency in service, coercion to take possession or violation of agreements, arguing that the complaint is time-barred and should be dismissed.

Observations by the National Commission

The National Commission observed that under Section 24-A of the Consumer Protection Act, 1986, there is a two-year limitation period for filing complaints. Since the cause of action arose on the date the possession was offered, the complaint filed later is time-barred. The Supreme Court in State Bank of India Vs. B.S. Agriculture Industries confirmed that the limitation period starts from the date of the incident, and without an application for condonation of delay, the complaint should be dismissed. The company faced delays in construction due to government orders and workers' agitation, which they argued were force majeure events, entitling them to an extension under the agreement. The Supreme Court in Dhanrajmal Govindram Vs. Shyamji Kalidas supported this by stating that force majeure saves the performing party from consequences beyond their control. The commission highlighted that the company met its obligations concerning the construction of the Club House and charged the required fees as per the agreement. Additionally, the company followed legal requirements for MVAT payments, and the complainants were informed and asked to inspect the relevant documents, which they did not. The complainants' claim for a refund for an alleged excess area was rejected since the agreement clearly stated the carpet area and price, and no excess amount was charged. Finally, the company was obligated to provide certain amenities like a spa, gymnasium, and sports facilities as promised in the brochure, following the Supreme Court's ruling in Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., wherein it was held that the builder is bound to provide the facilities as promised.

The National Commission partly allowed the complaint and directed the company to provide a spa, gymnasium, half basketball court, and badminton court as promised in the brochure.

Case Title: Nitin Agarwal Vs. M/S The Bombay Dyeing & Manufacturing Co. Ltd.

Case Number: C.C. No. 344/2013

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