Terms Of Agreement Are Wholly One-Sided And Unfair To Flat Purchaser; Builder Cannot Seek To Bind Flat Purchaser With Such Terms; NCDRC

In this case, the Complainants jointly booked an Apartment in the Group Housing Project, to be developed and constructed by the M/s. Emaar MGF Land Limited (Opposite Party) by paying a booking amount of 10,00,000/-. No date of execution of the Agreement was mentioned on the Agreement. The Agreement contained various unilateral terms and conditions which were wholly one-sided, unfair and without giving any bargaining power to them. As per Agreement the total cost of the Apartment was 1,71,56,670/-. As per Clause 14 of the Agreement, the possession of the Apartment was to be delivered within a period of 36 months (plus grace period of 3 months) from the commencement of the construction. Despite having received more than 50% of the sale consideration, from the date of booking, the M/s. Emaar MGF Land Limited Developer did not even start the construction. The Complainants had deposited more than 95% of the total sale consideration as per demands of the M/s. Emaar

MGF Land Limited Developer, despite that M/s. Emaar MGF Land Limited failed to deliver the possession of the Apartment within stipulated period. Alleging deficiency in service on the part of the M/s. Emaar MGF Land Limited, the Complainant filed an original petition before the National Commission under Section 21(a)(i), 22(1) of the Consumer Protection Act, 1986, prayed 20,00,000/- for metal agony, trauma and harassment caused by Opposite Party and interest at the rate of 24% per annum on amounts paid by the Complainants towards delayed possession.

The issue for consideration before the National Commission was whether the M/s. Emaar MGF Land Limited is liable to pay the amount claimed by the Complainant or not.

Commission noted that, the objection raised by the Developer that the clause of Arbitration does not bar the Commission from entertaining the Complaint, is unsustainable.

Commission states that, the contention of the Developer that the Complainants already owns a house in Gurugram and have booked the subject Apartment for commercial/investment/speculative purpose, is completely unsustainable.

Commission relied upon the case of Kavita Ahuja vs. Shipra Estates, in which the principle laid down is that the onus of establishing that the Complainant was dealing in real estate i.e., in the purchase and sale of plots/ flats in his normal course of business to earn profits, shifts to the Opposite Party.

Commission found that, opposite party had failed to discharge by filing any documentary evidence to establish their case. Therefore, the Complainants do fall under the definition of 'Consumer' as defined under Section 2 (1)(d) of the Act.

After looking into Clause 16(a) of the Agreement, Commission found that, the terms of the Agreement are wholly one-sided and unfair. Therefore, the Complainants cannot be made bound to the terms of the Agreement, which are one-sided and unfair.

The bench stated that, the terms of the Apartment Buyer's Agreement were wholly one-sided and unfair to the Flat Purchaser. The Builder cannot seek to bind the Flat Purchaser with such one-sided contractual terms.

Commission stated that, the Complainants are entitled for Compensation for delay in delivery of the possession of the Apartment. The compensation in the form of simple interest @ 8% p.a. along with cost of 25,000/- would meet the ends of justice.

National Commission partly allowed the petition and directed the opposite party to pay interest on the amount deposited @8% from the expected date of delivery of the possession, till the actual date of handing over of the possession of the Apartment to the Complainants, within four weeks.

Case Name: Deepika Chaudhary Chandra & Anr. v. M/S. Emaar Mgf Land Limited

Case No.: CONSUMER CASE NO. 1337 OF 2018

Corum: Justice R.K. Agrawal, President and Binoy Kumar, Member

Decided on: 2^nd June, 2022

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