Delay In Delivery Of Possession: NCDRC Holds Emaar MGF Land Liable For Deficiency In Service

Brief Facts of the Case

The complainant booked a flat in the Gurgaon Greens project by Emaar MGF Land/builder by paying an initial amount. However, the builder failed to deliver possession of the flat within the stipulated time frame from the start of construction, plus a grace period. The complainant contended that the expected date of delivery had passed, but the builder did not complete the project or offer possession. Instead, the builder demanded further payments, which the complainant refused to pay. The complainant sought relief in the form of possession of the unit or, alternatively, a refund of the entire amount paid, along with interest, damages, and other related reliefs from the National Commission.

Contentions of the Builder

The builder, Emaar MGF Land Limited, argued that the complainant had defaulted on the payment schedule and did not make any payments after a certain date. The builder claimed that all demands for payments made from a certain period onwards were refused by the complainant, leading to the filing of the present complaint. It was contended that the construction commenced during a certain period, and efforts were made to obtain the occupancy certificate and complete other formalities. Subsequently, the builder offered possession of the unit to the complainant through a letter. The builder argued that since possession was being offered, the complainant was not entitled to a refund and could only claim compensation for any delay, as per the terms of the agreement.

Observations by the Commission

The Commission observed that the expected delivery of possession was within a certain timeframe, but the builder admitted to delays due to disputes between its partners during a certain period, and certain force majeure conditions, including the non-availability of the occupancy certificate. However, the Commission noted that such defenses were no longer available in light of recent Supreme Court judgments. The Commission relied on the judgments in Ireo Grace Realtech Pvt. Ltd. vs. Abhishek Khanna & Ors. and Wing Commander Arifur Rahman Khan and Ors. vs. DLF Southern Homes Private Limited & Ors., which held that if any delay is caused by non-delivery of possession to the buyer, it cannot be to their disadvantage. The buyer cannot be compelled to wait endlessly for the delivery of possession, nor can they be compelled to make payments when the project itself does not take off in time. The Commission also cited the Supreme Court's judgment in Experion Developers Pvt. Ltd. vs. Sushma Ashok Shiroor, which reiterated the same principle that delays in delivery of possession cannot prejudice the buyer's rights. The Commission found that in this case, the complainant had made the last payment on a certain date, and there were no dues outstanding, as per the builder's statement of accounts. The Commission held that the delay by the builder was sufficient to frustrate the aspirations of the flat buyers.

Consequently, the Commission allowed the complaint and directed the builder to refund the entire amount of Rs. 40,53,443 with an interest rate of 9% annually along with Rs. 50,000 for litigation expenses.

Case Title: Mohan Shyam Dubey Vs. M/S Emaar MGF Land Ltd.

Case Number: C.C. No. 787/2017