Research Results Based on the Query


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Query: A person has purchased the property which is situated in Ghaziabad in the state of UP. The builder has delayed the possession of property by three years. The buyer is my client. What is the best legal remedy across civil, consumer or commercial court to get speedy refund of property value and compensation?

Revised Query: A person has purchased a property situated in Ghaziabad in the state of UP. The builder has delayed the possession of the property by three years. The buyer is my client. What is the best legal remedy across civil, consumer, or commercial court to get a speedy refund of the property value and compensation?



Likely Arguments


Potential Arguments by Opposing Counsel

1. Force Majeure Clause: The builder may argue that the delay in possession was due to unforeseen circumstances beyond their control, invoking the force majeure clause in the agreement.

2. Extension of Time: The builder may claim that the buyer agreed to extensions of time for possession, either explicitly or implicitly, thereby waiving their right to seek a refund and compensation.

3. Liquidated Damages Clause: The builder may contend that the agreement includes a liquidated damages clause specifying the amount payable in case of delay, which the buyer is bound by.

4. Estoppel: The builder may assert that the buyer's conduct or representations during the course of the transaction led the builder to believe that the buyer was willing to accept the delay without seeking a refund or compensation.

Counterarguments by Buyer's Counsel

1. Force Majeure Clause
- Counterargument: Section 32 of the Indian Contract Act, 1872, states that a contract becomes void if it becomes impossible to perform due to an event beyond the control of the parties. However, the burden is on the builder to prove that the delay was solely due to force majeure and not due to their own negligence or malfeasance.

2. Extension of Time
- Counterargument: Section 55 of the Transfer of Property Act, 1882, provides that time is of the essence in property transactions unless expressly agreed otherwise. The buyer can argue that any extensions granted were not intended to waive their right to seek redress for substantial delays.

3. Liquidated Damages Clause
- Counterargument: Section 74 of the Indian Contract Act, 1872, allows for the enforcement of liquidated damages clauses only if they are a genuine pre-estimate of damages. The buyer can challenge the validity of the clause if it is found to be penal in nature or unconscionable.

4. Estoppel
- Counterargument: The buyer can rely on Section 115 of the Indian Evidence Act, 1872, which states that estoppel cannot be invoked to defeat the provisions of any law. If the delay in possession constitutes a breach of statutory obligations under RERA or consumer protection laws, estoppel cannot be used to shield the builder from liability.

Optimal Strategy to Defend Buyer

1. Document Review: Gather all relevant documents, including the sale agreement, payment receipts, correspondence with the builder, and any communication regarding extensions or delays in possession.

2. Legal Notice: Send a legal notice to the builder demanding refund and compensation, citing the relevant provisions of RERA and consumer protection laws.

3. File Complaint: File a complaint before the appropriate Consumer Disputes Redressal Commission or the state RERA authority, depending on the chosen legal remedy.

4. Attend Hearings: Present a strong case at the hearings, emphasizing the builder's breach of statutory obligations and the buyer's entitlement to refund and compensation under the law.

5. Evidence Presentation: Provide all relevant evidence and arguments to counter any defenses raised by the builder, focusing on the buyer's rights as a consumer and the builder's obligations under RERA.

6. Seek Expert Legal Assistance: Engage a legal expert specializing in real estate and consumer protection laws to ensure a robust defense and effective representation of the buyer's interests.

By following this strategy and leveraging the provisions of Indian laws effectively, the buyer can seek a speedy refund of the property value and compensation for the delayed possession, safeguarding their rights as a consumer in the real estate transaction.


Relevant Supreme Court Judgments
Year From: 1950, Year To: 2024

Result 1
Supreme Court of India
Pioneer Urban Land And Infrastructure ... vs Govindan Raghavan
Honourable Judges Indu Malhotra, Uday Umesh Lalit
Date of Judgment: 02 Apr 2019
Segment Number (Approximate Page Number): 2
   
   
   

3.5. During the pendency of the proceedings before the National Commission, the Appellant – Builder obtained the Occupancy Certificate on 23.07.2018, and issued a Possession Letter to the Respondent – Flat Purchaser on 28.08.2018. 3.6. The Appellant – Builder submitted before the National Commission that since the construction of the apartment was complete, and the Occupancy Certificate had since been obtained, the Respondent – Flat Purchaser must be directed to take possession of the apartment, instead of directing refund of the amount deposited. 3.7. The Respondent – Flat Purchaser however submitted that he was not interested in taking possession of the apartment on account of the inordinate delay of almost 3 years. The Respondent – Flat Purchaser stated that he had, in the meanwhile, taken an alternate property in Gurugram, and sought refund of the entire amount of Rs. 4,48,43,026/- deposited by him along with Interest @18% p.a. 3.8. The National Commission vide Final Judgment and Order dated 23.10.2018 allowed the Consumer Complaint filed by the Respondent – Flat Purchaser, and held that since the last date stipulated for construction had expired about 3 years before the Occupancy Certificate was obtained, the Respondent – Flat Purchaser could not be compelled to take possession at such a belated stage. The grounds urged by the Appellant – Builder for delay in handing over possession were not justified, so as to deny awarding compensation to the Respondent – Flat Purchaser. The clauses in the Agreement were held to be wholly one – sided, unfair, and not binding on the Respondent – Flat Purchaser. The Appellant – Builder was directed to refund Rs. 4,48,43,026/- i.e. the amount deposited by the Respondent – Flat Purchaser, along with Interest @10.7% S.I. p.a. towards compensation. The rate of Interest @10.7% S.I. p.a. was fixed in accordance with Rule 15 of the Haryana Real Estate (Regulation and Development) Rules, 2017 which reads as follows : “15. An allottee shall be compensated by the promoter for loss or damage sustained due to incorrect or false statement in the notice, advertisement, prospectus or brochure in the terms of Section 12. In case, allottee wishes to withdraw from the project due to discontinuance of promoter’s business as developers on account of suspension or revocation of the registration or any other reason(s) in terms of clause (b) sub- section (I) of Section 18 or the promoter fails to give possession of the apartment/ plot in accordance with terms and conditions of agreement for sale in terms of sub-section (4) of section 19. The promoter shall return the entire amount with interest as well as the compensation payable.

Result 2
Supreme Court of India
Pioneer Urban Land And Infrastructure ... vs Govindan Raghavan
Honourable Judges Indu Malhotra, Uday Umesh Lalit
Date of Judgment: 02 Apr 2019
Segment Number (Approximate Page Number): 6
   
   
   

In Lucknow Development Authority v. M.K. Gupta,2 this Court held that when a person hires the services of a builder, or a contractor, for the construction of a house or a flat, and the same is for a consideration, it is a “service” as defined by Section 2 (o) of the Consumer Protection Act, 1986. The inordinate delay in handing over possession of the flat clearly amounts to deficiency of service. In Fortune Infrastructure & Anr. v. Trevor D’Lima & Ors.,3 this Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation. 6.2. The Respondent – Flat Purchaser has made out a clear case of deficiency of service on the part of the Appellant – Builder. The Respondent – Flat Purchaser was justified in 2 (1994) 1 SCC 243. 3 (2018) 5 SCC 442. terminating the Apartment Buyer’s Agreement by filing the Consumer Complaint, and cannot be compelled to accept the possession whenever it is offered by the Builder. The Respondent – Purchaser was legally entitled to seek refund of the money deposited by him along with appropriate compensation. 6.3. The National Commission in the Impugned Order dated 23.10.2018 held that the Clauses relied upon by the Builder were wholly one-sided, unfair and unreasonable, and could not be relied upon. The Law Commission of India in its 199th Report, addressed the issue of ‘Unfair (Procedural & Substantive) Terms in Contract’. The Law Commission inter-alia recommended that a legislation be enacted to counter such unfair terms in contracts. In the draft legislation provided in the Report, it was stated that : “A contract or a term thereof is substantively unfair if such contract or the term thereof is in itself harsh, oppressive or unconscionable to one of the parties.” 6.4. A perusal of the Apartment Buyer’s Agreement dated 08.05.2012 reveals stark incongruities between the remedies available to both the parties. For instance, Clause 6.4 (ii) of the Agreement entitles the Appellant – Builder to charge Interest @18% p.a. on account of any delay in payment of installments from the Respondent – Flat Purchaser. Clause 6.4 (iii) of the Agreement entitles the Appellant – Builder to cancel the allotment and terminate the Agreement, if any installment remains in arrears for more than 30 days. On the other hand, as per Clause 11.5 of the Agreement, if the Appellant – Builder fails to deliver possession of the apartment within the stipulated period, the Respondent – Flat Purchaser has to wait for a period of 12 months after the end of the grace period, before serving a Termination Notice of 90 days on the Appellant – Builder, and even thereafter, the Appellant – Builder gets 90 days to refund only the actual installment paid by the Respondent – Flat Purchaser, after adjusting the taxes paid, interest and penalty on delayed payments.

Result 3
Supreme Court of India
Ireo Grace Realtech Pvt. Ltd. vs Abhishek Khanna
Honourable Judges L. Nageswara Rao, Ms. Malhotra, Ajay Rastogi
Date of Judgment: 11 Jan 2021
Segment Number (Approximate Page Number): 9
   
   
   

It was further mentioned that the office of the District Town Planner (Enforcement), Gurgaon, Haryana, vide a restraint order dated 20.02.2017 issued Memo No.525-526 to the Developer to immediately stop the construction with respect to Tower-A and Tower-B for causing harassment to the buyers. 10. The Developer filed its reply to the Consumer Complaint submitting that there was no delay in offering possession of the flats, since as per Clause 13.3 of the Agreement, possession was to be handed over to the allottees within 42 months from the date of approval of the Building Plans, which included fulfilment of the conditions imposed thereunder. The Building Plan approval had been granted on 23.07.2013, which stipulated compliance with several pre-conditions, including obtaining Fire Safety Scheme approval. This approval was granted only on 27.11.2014. Consequently, the 48 months‘ time period for delivery of possession of the apartment would commence only on 27.11.2014, and expire on 27.11.2018. Consequently, there was no delay in offering possession of the apartments. Hence, the complaint was premature and liable to be dismissed. 11. The National Commission in another case titled as “IREO Grace Realtech Pvt. Ltd. v. Ritu Hasija” being CC No.190 of 2017 and connected matters, decided on 18.09.2018, held that clause 44 of that Agreement was wholly unfair and one-sided, which gave only a limited right to the Apartment Buyers to terminate the agreement, and seek refund of the amount paid by them. Clause 21.3 of the Flat Buyers Agreement read in conjunction with the other Clauses of the Agreement would result in a situation where a flat buyer, despite the failure of the builder to offer possession within the time stipulated, would be practically left remediless for 1½ years from the date of default, with no interest or compensation payable to him, even though the money was utilized by the builder. Even the principal amount would be refunded at an uncertain future point, after the builder had sold the apartment allotted to the complainant. Such a term was wholly unfair and unjust since the Developer had the right to terminate the agreement even if a single default occurred on the part of the Buyers, and forfeit the earnest money, and deduct other charges specified in Clause 21.3 of the Buyers Agreement. Clause 44 postponed the right of the flat buyer to terminate the agreement and seek compensation even after the Grace Period had expired, which was wholly unfair and one-sided. The contract could be terminated after a delay of 12 months, and would be entitled to only delay compensation, without interest. The Commission held that since the Developer had failed to deliver possession of the allotted flats to the Apartment Buyers, it amounted to deficiency in service, and the complainants were entitled to refund of the amount alongwith appropriate compensation.

Result 4
Supreme Court of India
Ghaziabad Development Authority vs Balbir Singh
Honourable Judges S.N. Variava, H. K. Sema
Date of Judgment: 17 Mar 2004
Segment Number (Approximate Page Number): 11
   
   
   

Thus the Forum or the Commission must determine that there has been deficiency in service and/or misfeasance in public office which has resulted in loss or injury. No hard and fast rule can be laid down, however a few examples would be where an allotment is made, price is received/paid but possession is not given within the period set out in the brochure. The Commission/Forum would then need to determine the loss. Loss could be determined on basis of loss of rent which could have been earned if possession was given and the premises let out or if the consumer has had to stay in rented premises then on basis of rent actually paid by him. Along with recompensing the loss the Commission/Forum may also compensate for harassment/injury both mental and physical. Similarly, compensation can be given if after allotment is made there has been cancellation of scheme without any justifiable cause. That compensation cannot be uniform and can best of illustrated by considering cases where possession is being directed to be delivered and cases where only monies are directed to be returned. In cases where possession is being directed to be delivered the compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting. But in cases where monies are being simply returned then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot. He is being deprived of that flat/plot. He has been deprived of the benefit of escalation of the price of that flat/plot. Therefore the compensation in such cases would necessarily have to be higher. Further if the construction is not of good quality or not complete, the compensation would be the cost of putting it in good shape or completing it along with some compensation for harassment. Similarly, if at the time of giving possession a higher price or other amounts is collected unjustifiably and without there being any provision for the same the direction would be to refund it with a reasonable rate of interest. If possession is refused or not given because the consumer has refused to pay the amount, then on the finding that the demand was unjustified the consumer can be compensated for harassment and a direction to deliver possession can be given. If a party who has paid the amount is told by the authority that they are not in a position to ascertain whether he has paid the amount and that party is made to run from pillar to post in order to show that he has paid the amount, there would be deficiency of service for which compensation for harassment must be awarded depending on the extent of harassment. Similarly, if after delivery of possession, the sale deeds or title deeds are not executed without any justifiable reasons, the compensation would depend on the amount of harassment suffered. We clarify that the above are mere examples. They are not exhaustive.

Result 5
Supreme Court of India
Wg. Cdr. Arifur Rahman Khan And ... vs Dlf Southern Homes Pvt. Ltd. (Now ...
Honourable Judges Dr. Chandrachud, K.M. Joseph
Date of Judgment: 24 Aug 2020
Segment Number (Approximate Page Number): 13
   
   
   

Flat purchasers suffer agony and harassment, as a result of the default of the developer. Flat purchasers make legitimate assessments in regard to the future course of their lives based on the flat which has been purchased being available for use and occupation. These legitimate expectations are belied when the developer as in the present case is guilty of a delay of years in the fulfilment of a contractual obligation. To uphold the contention of the developer that the flat buyer is constrained by the terms of the agreed rate irrespective of the nature or extent of delay would result in a miscarriage of justice. Undoubtedly, as this court held in Dhanda, courts ordinarily would hold parties down to a contractual bargain. Equally the court cannot be oblivious to the one-sided nature of ABAs which are drafted by and to protect the interest of the developer. Parliament consciously designed remedies in the CP Act 1986 to protect consumers. Where, as in the present case, there has been a gross delay in the handing over of possession beyond the contractually stipulated debt, we are clearly of the view that the jurisdiction of the consumer forum to award just and reasonable compensation as an incident of its power to direct the removal of a deficiency in service is not constrained by the terms of a rate which is prescribed in an unfair bargain. 25 Numerous judgments of this Court have elaborated on the nature and extent of the jurisdiction of the consumer forum to award just and reasonable compensation. Since the decision of this Court in Lucknow Development Authority v. M K Gupta16 , it has been a settled principle of law that the jurisdiction of the consumer forum extends to the award of compensation to alleviate the harassment and agony to a consumer. In Balbir Singh17, a two judge Bench of this Court, while explaining the ambit of the jurisdiction of the adjudicatory fora under the CP Act 1986 observed: “6…The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. “ 26 The court observed that the award of compensation has to be based on a finding of loss or injury and must correlate to it. The court observed that no “hard and fast rule” could be prescribed: (1994) 1 SCC 243 (2004) 5 SCC 65 “8…No hard-and-fast rule can be laid down, however, a few examples would be where an allotment is made, price is received/paid but possession is not given within the period set out in the brochure. The Commission/Forum would then need to determine the loss.

Result 6
Supreme Court of India
M/S Suneja Towers Private Limited vs Anita Merchant
Honourable Judges Dinesh Maheshwari, Sanjay Kumar
Date of Judgment: 18 Apr 2023
Segment Number (Approximate Page Number): 26
   
   
   

In that context, this Court held that such exit option would not disentitle the flat purchaser from claiming compensation. This Court observed, inter alia, as under: - “8….The fact that the developer offered an exit option with interest at 9% would not disentitle the flat purchasers from claiming compensation. For a genuine flat buyer, who has booked an apartment in the project not as an investor or financier, but for the purpose of purchasing a family home, a mere offer of refund would not detract from the entitlement to claim compensation. A genuine flat buyer wants a roof over the head. The developer cannot assert that a buyer who continues to remain committed to the agreement for purchase of the flat must forsake recourse to a claim for compensation occasioned by the delay of the developer. Mere refund of consideration together with interest would not provide a just recompense to a genuine flat buyer, who desires possession and remains committed to the project. It was for each buyer to either accept the offer of the developer or to continue with the agreement for purchase of the flat. 9. Similar is the position in regard to the submission on the appreciation of the value of the flats. Undoubtedly, this is one factor which has to be borne in mind in considering whether and, if so to what extent, compensation for delay should be awarded. Having regard to the principles which have been enunciated in the earlier two decisions [Arifur Rahman Khan v. DLF Southern Homes (P) Ltd., (2020) 16 SCC 512] , [Pioneer Urban Land & Infrastructure Ltd. v. Govindan Raghavan, (2019) 5 SCC 725 : (2019) 3 SCC (Civ) 37] which have been noted above, we are unable to subscribe to the submission that the flat buyers are not entitled to any payment whatsoever on account of delayed compensation.” 14.3.1. In the said case, this Court reduced the compensation on account of delay in handing over possession from 7% p.a. as awarded by the National Commission to 6% p.a. in light of the decision in Wing Commander Arifur Rahman Khan (supra). 14.4. In the case of Ireo Grace Realtech (supra), another 3-Judge Bench of this Court dealt with different categories of cases, some relating to delay in offering possession and some relating to such allottees who had been offered alternative units. This Court found such other allottees who had not been offered possession of the units allotted to them to be entitled to refund of the amount deposited by them but their claim for award of compound interest was declined for having no nexus with the commercial realities of the prevailing market.

Result 7
Supreme Court of India
Pioneer Urban Land And Infrastructure ... vs Govindan Raghavan
Honourable Judges Indu Malhotra, Uday Umesh Lalit
Date of Judgment: 02 Apr 2019
Segment Number (Approximate Page Number): 5
   
   
   

The period got over by 04.03.3016 after taking into account the grace period. Admittedly, the Appellant – Builder offered possession after an inordinate delay of almost 3 years on 28.08.2018. On account of the inordinate delay, the Respondent – Flat Purchaser had no option but to arrange for alternate accommodation in Gurugram. Hence, he could not be compelled to take possession of the apartment after such a long delay. It was in these circumstances that the Respondent – Flat Purchaser sought stay of the cancellation of the allotment as a collateral, till his claim for refund was adjudicated by the National Commission. 5.2. It was further submitted that the Clauses of the Agreement were one-sided. As per Clause 6.4 (ii) of the Apartment Buyer’s Agreement, the Appellant Builder could charge Interest @18% p.a. for delayed payments. However, the Appellant – Builder was not required to pay equivalent Interest to the Respondent – Flat Purchaser for delay in handing over possession of the flat. On the contrary, as per Clause 11.5 (iv) of the Agreement, in case of delay on the part of the Appellant – Builder in handing over possession of the flat, the Respondent – Flat Purchaser was entitled to Interest @9% p.a. only. 5.3. The Respondent further submitted that the National Commission had ordered payment of Interest as per the statutory Rules i.e. Rule 15 of the Haryana Real Estate (Regulation and Development) Rules, 2017 @10.7% S.I. p.a. The Respondent – Flat Purchaser submitted that he had obtained a loan for Rs. 3,30,00,000/- from Standard Chartered Bank to purchase the flat in question, and had entered into a Tripartite Loan Agreement with the Bank and the Builder. The Respondent – Flat Purchaser had to pay Interest @10% p.a. for servicing the loan for the entire period. Hence, Interest @10.7% S.I. p.a. awarded by the National Commission was just and fair. It was pointed out that even though the National Commission had not granted Interest for the period during which the Order of stay of cancellation of the allotment was in operation, the Respondent – Flat Purchaser had to pay Interest to the Bank even for this period. 5.4. The Respondent – Flat Purchaser submitted that the present Appeal be dismissed, and the Builder be directed to pay the amount awarded by the National Commission with Interest, within 1 week, so that the Respondent can discharge his loan liability. 6. We have heard the learned Counsel for both the parties, and perused the pleadings, and written submissions filed. 6.1. In the present case, admittedly the Appellant – Builder obtained the Occupancy Certificate almost 2 years after the date stipulated in the Apartment Buyer’s Agreement. As a consequence, there was a failure to hand over possession of the flat to the Respondent – Flat Purchaser within a reasonable period.

Result 8
Supreme Court of India
Utpal Trehan vs Dlf Home Developers Ltd.
Honourable Judges Dinesh Maheshwari, Aniruddha Bose
Date of Judgment: 11 Jul 2022
Segment Number (Approximate Page Number): 12
   
   
   

So far as start of the running time for quantifying delayed payment of compensation from March 2013 is concerned, we find that the builder themselves had modified the relevant clause by their letter dated 26th March 2009, amending the starting date for computing delayed payment of compensation from end of three years from the date of Agreement to three years from the date of booking. Thus, the date of booking in the case of the allottee being March 2008, the State Commission had rightly directed payment of delayed compensation from March 2011. 24. Mr. Mishra has urged that the entire responsibility for delivery of possession of the flat should not fall on his clients as the allottee himself could have applied before the adjudicatory forum for possession thereof subject to outcome of the case. But this argument in our view is fallacious. The dispute between the parties primarily arose as the builder denied substantial benefits to the allottee for nine days’ delay in clearing instalment. This allegation of delay has been rejected by the Consumer Fora and their concurrent finding is that no proper demand was made for payment of such instalment. Mr. Mishra has, in his submissions, emphasised on the “offer for possession” letter dated 10th June 2013 and his submission is that obligation to pay delayed payment compensation cannot go beyond that date. The builder’s case is that they cannot be held responsible if the allottee does not take possession of the flat, when offered. A copy of this letter has been annexed at page 235 of the builder’s paperbook. On a plain reading of this letter, we find that the builder offered physical possession only on remitting of payments as per statement of accounts, which was for a sum of Rs.9,00,382/­ and on furnishing an undertaking. The National Commission found that the statement of account dated 10th June 2013 and demand on that basis was illegal. As the offer for possession was conditional on settling of accounts and, as the accounts reflected illegal demand, the builder cannot argue that there was a valid offer for possession under the letter dated 10th June 2013. In this background, in the event the allottee wanted proper adjudication of his rights and liabilities before asking for interim possession of the flat which would have had carried with it unspecified obligations, no fault can be found in such conduct of the allotee. 25. Reliance has been placed on the judgments of two coordinate Benches of this Court in the cases of DLF Homes Panchkula Pvt. Ltd. vs D.S. Dhanda and Ors. [(2020) 16 SCC 318] and DLF Home Developers Ltd. And Another vs Capital Greens Flat Buyers Association & Ors. [(2020] SCC Online SC 1125] in support of the argument of the builder that “Delay Compensation” could be awarded only upto the date of offer of possession. But in this case, we have already held that there was no valid offer for possession.

Result 9
Supreme Court of India
Ghaziabad Development Authority vs R.B. Sharma
Honourable Judges S. N. Variava, Arijit Pasayat
Date of Judgment: 18 Aug 2004
Segment Number (Approximate Page Number): 1
   
   
   

CASE NO.: Appeal (civil) 409 of 2003 PETITIONER: Ghaziabad Development Authority RESPONDENT: R.B. Sharma DATE OF JUDGMENT: 18/08/2004 BENCH: S. N. VARIAVA & ARIJIT PASAYAT JUDGMENT: J U D G M E N T S. N. VARIAVA, J. Before this Court a large number of Appeals have been filed by the Haryana Urban Development Authority and/or the Ghaziabad Development Authority challenging Orders of the National Consumer Disputes Redressal Commission, granting to Complainants, interest at the rate of 18% per annum irrespective of the fact of each case. This Court has, in the case of Ghaziabad Development Authority vs. Balbir Singh reported in (2004) 5 SCC 65, deprecated this practice. This Court has held that interest at the rate of 18% cannot be granted in all cases irrespective of the facts of the case. This Court has held that the Consumer Forums could grant damages/compensation for mental agony/harassment where it finds misfeasance in public office. This Court has held that such compensation is a recompense for the loss or injury and it necessarily has to be based on a finding of loss or injury and must co-relate with the amount of loss or injury. This Court has held that the Forum or the Commission thus had to determine that there was deficiency in service and/or misfeasance in public office and that it has resulted in loss or injury. This Court has also laid down certain other guidelines which the Forum or the Commission has to follow in future cases. This Court is now taking up the cases before it for disposal as per principles set out in earlier judgment. On taking the cases we find that the copies of the Claim/Petitions made by the Respondent/Complainant and the evidence, if any, led before the District Forum are not in the paper book. This Court has before it the Order of the District Forum. The facts are thus taken from that Order. In this case the Respondent was allotted a plot in 1989 in the Indirapuram Housing Scheme. The Respondent paid all dues. Yet possession was not delivered within the time promised. As the Respondent was in urgent need of accommodation he asked for refund of his amount with interest thereon. The Appellants refunded the amount but deducted a sum of Rs.5,800/-. The Respondent thus filed a complaint stating that this amount should also be refunded with interest thereon. The District Forum held that as the Appellants themselves not delivered possession within the time promised, the Respondent was entitled to the refund of all amounts deposited and the Appellants could not have deducted the sum of Rs.5,800/-. It therefore directed return of that amount with interest at the rate of 18% thereon. The State Forum dismissed the Appeal. The National Forum has also dismissed the Revision. We are in agreement with the observations of the District Forum. If the Appellants had not delivered possession within the time promised the allottee would be entitled to claim for refund.

Result 10
Supreme Court of India
M/S Laureate Buildwell Pvt. Ltd. vs Charanjeet Singh
Honourable Judges Uday Umesh Lalit, Hemant Gupta, S. Ravindra Bhat
Date of Judgment: 22 Jul 2021
Segment Number (Approximate Page Number): 9
   
   
   

In HUDA v. Raje Ram [HUDA v. Raje Ram, (2008) 17 SCC 407 : (2009) 5 SCC (Civ) 889] , this Court while holding that a claim of compensation for delayed possession by subsequent transferees is unsustainable, observed that: (SCC p. 410, para 16) “16. The respondents in the three appeals are not the original allottees. They are re-allottees to whom reallotment was made by the appellant in the years 1994, 1997 and 1996 respectively. They were aware, when the plots were reallotted to them, that there was delay (either in forming the layout itself or delay in delivering the allotted plot on account of encroachment, etc.). In spite of it, they took reallotment. Their cases cannot be compared to the cases of the original allottees who were made to wait for a decade or more for delivery and thus put to mental agony and harassment. They were aware that time for performance was not stipulated as the essence of the contract and the original allottees had accepted the delay.” Even if the three appellants who had transferred their interest in the apartments had continued to agitate on the issue of delay of possession, we are not inclined to accept the submission that the subsequent transferees can step into the shoes of the original buyer for the purpose of benefiting from this order. The subsequent transferees in spite of being aware of the delay in delivery of possession the flats, had purchased the interest in the apartments from the original buyers. Further, it cannot be said that the subsequent transferees suffered any agony and harassment comparable to that of the first buyers, as a result of the delay in the delivery of possession in order to be entitled to compensation.” 23. The builder does not deny that upon issuance of the endorsement letter, the purchaser not only stepped into the shoes of the original allottee but also became entitled to receive possession of the flat. There is no denial that the purchaser fulfils the description of the complainant/ consumer and is entitled to move any forum under the Consumer Protection Act for any deficiency in service. The question then is whether a subsequent purchaser is not entitled to similar treatment as the original allottee, and can be denied relief which otherwise the original allottee would have been entitled to, had she or he continued with the arrangement. An individual such as the original allottee, enters into an agreement to purchase the flat in an on-going project where delivery is promised. The terms of the agreement as well as the assurance by the builder are that the flat would be made available within a time- frame. It is commonplace that in a large number of such transactions, allottees are not able to finance the flat but seek advances and funds from banks or financial institutions, to which they mortgage the property. The mortgage pay-outs start initially after an agreed period, commencing in a span of about 15 to 24 months after the agreement.

Result 11
Supreme Court of India
Wg. Cdr. Arifur Rahman Khan And ... vs Dlf Southern Homes Pvt. Ltd. (Now ...
Honourable Judges Dr. Chandrachud, K.M. Joseph
Date of Judgment: 24 Aug 2020
Segment Number (Approximate Page Number): 14
   
   
   

Loss could be determined on basis of loss of rent which could have been earned if possession was given and the premises let out or if the consumer has had to stay in rented premises then on basis of rent actually paid by him. Along with recompensing the loss the Commission/Forum may also compensate for harassment/injury, both mental and physical. “ Where possession has been given, one of the circumstances which must be factored in is that the purchaser has been compensated by the increase in the value of the property. 27 In R V Prasannakumaar v. Mantri Castles Pvt Ltd18 under the terms of the ABA, possession of the flats was to be handed over to the buyers on 31 January 2014. However, the developer received an occupation certificate only on 10 February 2016 and it was thereafter from May 2016 that the developer started issuing letters offering possession. Based on this, the NCDRC awarded compensation in the form of interest at the rate of 6 per cent per annum. The developer had pleaded that since the agreement provided compensation at the rate of Rs. 3 per square foot per month for delayed possession, the purchasers were not entitled to anything in addition. Dealing with the submission, this Court observed: “9. We are in agreement with the view of the NCDRC that the rate which has been stipulated by the developer, of compensation at the rate of 3 per sq. ft. per month does not provide just or reasonable recompense to a flat buyer who 2019 SCC OnLine SC 224 has invested money and has not been handed over possession as on the stipulated date of 31 January 2014. To take a simple illustration, a flat buyer with an agreement of a flat admeasuring a 1000 sq. ft. would receive, under the agreement, not more than Rs. 3000/- per month. This in a city such as Bangalore does not provide just or adequate compensation. The jurisdiction of the NCDRC to award just compensation under the provisions of the Consumer Protection Act, 1986 cannot in the circumstances be constrained by the terms of the agreement. The agreement in its view is one sided and does not provide sufficient recompense to the flat purchasers.” The Court observed that there was a delay of two years and hence the award of interest at the rate of 6 per cent was reasonable and justified. 28 In Pioneer Urban Land and Infrastructure Limited v. Govindan Raghavan19, there was a delay of almost two years in obtaining an occupancy certificate after the date stipulated in the ABA. As a consequence, there was a failure to provide possession of the flat to the purchaser within a reasonable period. This Court dwelt on the terms of the ABA under which the builder was entitled to charge interest at 18 per cent per annum for the delay in payment of instalments by the purchaser.

Result 12
Supreme Court of India
M/S Suneja Towers Private Limited vs Anita Merchant
Honourable Judges Dinesh Maheshwari, Sanjay Kumar
Date of Judgment: 18 Apr 2023
Segment Number (Approximate Page Number): 9
   
   
   

With reference to the decision in Ghaziabad Development Authority v. Balbir Singh: (2004) 5 SCC 65, it was observed that this Court had indicated the factors to be kept in view while determining adequate compensation; and in cases where possession was directed to be delivered to the complainant, the compensation for harassment would necessarily have to be less because that party was being compensated by increase in the value of the property but, in cases where only money was to be refunded, the party would be suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot and he was deprived of the same, as also the benefit of price escalation. The State Commission also observed that in such case (only of refund of money), the complainant would suffer substantial loss on account of payment of interest on the loans raised; depreciation in the money value; and escalation in the cost of construction etc. The State Commission also observed that in these proceedings, necessary orders regarding refund of the deposited amount could be passed, notwithstanding the proceedings in any other forum. The relevant observations of the State Commission read as under: - “21. The provisions of the Act enable a consumer to claim and empower the Commission/Forum to redress any injustice done to a consumer. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The word compensation is of very wide connotation. It may constitute actual loss or expected loss and may extend the compensation for physical, mental or even emotional suffering, insult or injury or loss. Therefore, for the purpose of determining the amount of compensation, the Commission/Forum must determine the extent of sufferance by the consumer due to action or inaction on the part of the Opposite Party. In Ghaziabad Development Authority Vs. Balbir Singh – (2004) 5 SCC 65, while observing that the power and duty to award compensation does not mean that irrespective of facts of the case, compensation can be awarded in all matters on a uniform basis, the Hon’ble Supreme Court gave certain instances and indicated the factors, which could be kept in view while determining adequate compensation. One of the illustrations given in the said decision was between the cases, where possession of a booked/allotted property was directed to be delivered and the cases where only monies paid as sale consideration, are directed to be refunded. The Hon’ble Court observed, in this behalf, that in cases where possession is directed to be delivered to the Complainant, the compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting. But in cases where monies are being simply refunded, then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot.

Result 13
Supreme Court of India
Ireo Grace Realtech Pvt. Ltd. vs Abhishek Khanna
Honourable Judges L. Nageswara Rao, Ms. Malhotra, Ajay Rastogi
Date of Judgment: 11 Jan 2021
Segment Number (Approximate Page Number): 8
   
   
   

The Company shall thenceforth be free to deal with the said Apartment in any manner whatsoever, in its sole and absolute discretion and in the event that the Allottee has taken possession of the said Apartment and everything whatsoever contained therein and in such event, the Allottee and/or any other person/occupant of the said Apartment shall immediately vacate the said Apartment and otherwise be liable to immediate ejectment as an unlawful occupant/trespasser. This is without prejudice to any other rights available to the Company against the Allottee.‖ (emphasis supplied) 9. On 27.12.2017, Respondent No.1 filed a Consumer Complaint being Consumer Case No.3823 of 2017 before the National Commission, wherein it was inter alia prayed that the Developer be directed to refund the amount of Rs.1,44,72,364/- paid by the Apartment Buyer alongwith interest @ 20% per annum compounded quarterly till realization, and compensation towards damages on account of harassment, mental agony and litigation charges. The Apartment Buyer inter alia submitted that the Developer had invited applications from the public for booking flats in the housing complex ―The Corridors‖, by misrepresenting that all necessary approvals/pre-clearances with respect to the and constructions had already been obtained from the office of the Director, Town and Country Planning, Haryana, and other civil authorities. The Developer had misrepresented at the time of booking that the project would have a 90-meters motorable access road approaching the project from Junction 63A to 67A which was shown in the Apartment Buyer‘s Agreement in the layout plan. However, there was no access road of 90- meters to the project, and/or 24-meters in the revised plans. The Apartment Buyers were induced to book apartments on false representations made by the Developer that construction of the project would be completed the project within 42 months from the collection of the initial booking amount. As per Clause 13.3 of the Agreement, possession was to be handed over within a period of 42 months from the date of approval of the Building Plans, with a Grace Period of 180 days. Despite the aforesaid terms, the Developer had not offered possession to the Apartment Buyers till the date of filing the complaint, even though the ―Commitment Period‖ for handing over possession had expired on 22.01.2017, and also the Grace Period had lapsed on 22.07.2017. The Apartment Buyers had regularly paid instalments as per the demands raised by the Developer. As on December 2016, a total sum of Rs.1,44,72,364/- had been paid by the Respondent No. 1 to the Developer. To date, no offer of possession has been made to Apartment Buyers. The Apartment Buyers submitted that the Building Plans were revised in 2017, when the entire layout was changed which led to the scrapping of some of the residential towers, so that the same could be converted to commercial towers in the project.

Result 14
Supreme Court of India
Ireo Grace Realtech Pvt. Ltd. vs Abhishek Khanna
Honourable Judges L. Nageswara Rao, Ms. Malhotra, Ajay Rastogi
Date of Judgment: 11 Jan 2021
Segment Number (Approximate Page Number): 12
   
   
   

The delay/failure of the Authority to grant a provisional NOC cannot be attributed to the Developer. (d) The Apartment Buyers was not required to pay the entire consideration amount at the commencement of the agreement, in a lump sum amount, since the consideration was linked to the construction plan, and was payable in instalments at various stages of the construction. The Developer had not taken any instalment prior to 27.11.2014, when the Fire Safety NOC was granted. The first instalment was taken on 27.01.2015, when a demand for casting the lower roof slab was made from the allottees. All substantial payments of the project were based on milestones linked to construction. (e) It was submitted that in large development projects, where multiple towers are being constructed, delays are inevitable. The Agreement contemplated a reasonable Grace Period of 180 days, which is a standard clause in the construction industry. The Apartment Buyer is not entitled to seek refund unless the Extended Delay Period is over. In any event, the Apartment Buyer is being paid Delay Compensation for the period of delay which has occurred during the course of construction. (f) The finding recorded by the National Commission that the clauses of the Apartment Buyer‘s Agreement were one-sided and unfair was illegal and without jurisdiction, under the Consumer Protection Act, 1986. It was only under the Consumer Protection Act, 2019, which came into effect from 20.07.2020, that the State Consumer Forum and the National Commission were conferred with the power to declare contractual terms that were as unfair to consumers as null and void. Such power did not exist under the 1986 Act. (g) It was further submitted that the National Commission was not justified in passing the impugned order by directing a full refund of the principal amount with interest @ 10% S.I. p.a. as compensation from 10.07.2017 till the refund was made within four weeks, failing which, interest would be payable from the date of each deposit to the Developer, till the entire amount was refunded. (h) It was submitted that the Respondents in Civil Appeals No.7615, 7975, 8454, 8480, 8482, 8785-8794, 9139, 9216 and 9638 of 2019; and the Appellant in Civil Appeal No.3064 of 2020, are defaulters since they had paid only between 30 to 40% of the total consideration. These buyers had breached their obligation to make payments as per the construction linked payment plan. Despite this, the Developer had made an alternate offer of similar units in the completed towers in Phase 1 of the project where the Occupation Certificate had been granted, before the expiry of the Extended Delay Period. (i) It was contended that the decision of the RERA must be given primacy over the National Commission.

Result 15
Supreme Court of India
Experion Developers Private Ltd. vs Sushma Ashok Shiroor
Honourable Judges Uday Umesh Lalit, S. Ravindra Bhat, Pamidighantam Sri Narasimha
Date of Judgment: 07 Apr 2022
Segment Number (Approximate Page Number): 4
   
   
   

The Buyer shall be entitled to payment/adjustment of the Delay Compensation only at the time of payment of the final installment and other dues and charges payable to the Company before assuming the possession of the Apartment. No other claim of any description shall be raised against the Company”. Page 6 of 24 8.1. On the question of reckoning the date for handing over of possession of the apartment, the Commission recorded the fact admitted by the Developer in Para 2 of its reply that “the trigger date for clause 10.1 is 26.12.2012, which is the date of execution of the apartment buyer’s agreement”. The Commission calculated 42 months from this period, which turns out to be 26.06.2016. Further, adding the grace period of 180 days, the time for delivery would expire on 26.12.2016. It is again an admitted fact that the occupancy certificated was obtained only on 23.07.2018 and notice for possession was issued to the Consumer on 24.07.2018. Given the factual position and having examined the terms of the Agreement, the Commission found the judgment of this Court in Pioneer is a relevant and conclusive precedent. 8.2. In somewhat similar factual as well as legal context, this Court in Pioneer held as under: “6.1 In the present case, admittedly the appellant builder obtained the occupancy certificate almost 2 years after the date stipulated in the apartment buyer’s agreement. As a consequence, there was a failure to hand over possession of the flat to the respondent flat purchaser within a reasonable period. The occupancy certificate was obtained after a delay of more than 2 years on 28-8-2018 during the pendency of the proceedings before the National Commission. In LDA v. M.K. Gupta, this Court held that when a person hires the services of a builder, or a contractor, for the construction of a house or a flat, and the same is for a consideration, it is a “service” as defined by Section 2(o) of the Consumer Protection Act, 1986. The inordinate delay in handing over possession of the flat clearly amounts to deficiency of service. In Fortune Infrastructure v. Trevor D’Lima, this Court held that a Page 7 of 24 person cannot be made to wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation. 6.2 The respondent flat purchaser has made out a clear case of deficiency of service on the part of the appellant builder. The respondent flat purchaser was justified in terminating the apartment buyer’s agreement by filing the consumer complaint, and cannot be compelled to accept the possession whenever it is offered by the builder. The respondent purchaser was legally entitled to seek refund of the money deposited by him along with appropriate compensation. 6.3 The National Commission in the impugned order dated 23-10-2018 held that the clauses relied upon by the builder were wholly one-sided, unfair and unreasonable, and could not be relied upon……...

Result 16
Supreme Court of India
Utpal Trehan vs Dlf Home Developers Ltd.
Honourable Judges Dinesh Maheshwari, Aniruddha Bose
Date of Judgment: 11 Jul 2022
Segment Number (Approximate Page Number): 11
   
   
   

We have amended this clause to "3 Years from the date of booking" instead of '3 years from the date of Agreement', which was the earlier commitment.” (quoted verbatim from paperbook) The direction of the State Commission on delayed compensation has already been quoted in this judgment. The National Commission, however, modified this directive, which has also been quoted in the earlier paragraph. This modification has been questioned by the allotee. 22. Paragraphs 15 and 16 of the National Commission’s decision disclose the reasoning for modifying the directive of the State Commission upon the builder to pay delayed compensation. Such modification is as regards the quantum of compensation and the relevant part of the National Commission’s order is reproduced below:­ “15. So far as the compensation for delayed possession is concerned, the complainant has accepted part of the benefits given under the letter dated 26.03.2009 and is claiming remaining benefits. By this letter, mode of payment of the instalments were changed as “construction Linked Payment Plan”. The construction was started in May, 2009. After adjusting the amount till March, 2009 and the benefits given by the letter dated 26.03.2009, on it, the complainant was asked to deposit instalment some time in 2010. Demand notice dated 16.03.2012, shows that Terrace Floor Slab was completed at that time and demand notice dated 18.06.2012 shows that the builder had applied for issue of Occupation Certificate, which has been issued on 28.02.2013. Thereafter, final accounts of the buyers were prepared and possession was offered through letter dated 10.06.2013. Due to delay in starting construction payment schedule of the instalments was changed and to mete out suffering of the buyers, various benefits were provided. Delay in offering possession had occurred as construction could not be started for more than one year of booking. lf the buyers were required to payment instalments on later dates than the dates fixed in the agreement, then how it can be expected that the possession could be given within three years of the agreement. In the circumstances, the builder was justified in not giving compensation for delayed possession in the statement of account dated 10.06.2013. 16. However, as we found that the complainant was entitled for "Timely Payment Rebate” as such statement of the account dated 10.06.2013 and demand on its basis was illegal. In such circumstances we direct the builder to pay 6% p.a. interest on the amount deposited by the complainant toward basic sale price, as compensation for delay in possession from July 2013 till date of offer of possession as directed by Supreme Court in Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512.” (quoted verbatim from paperbook) 23. We are, however, unable to accept this reasoning.

Result 17
Supreme Court of India
M/S Laureate Buildwell Pvt. Ltd. vs Charanjeet Singh
Honourable Judges Uday Umesh Lalit, Hemant Gupta, S. Ravindra Bhat
Date of Judgment: 22 Jul 2021
Segment Number (Approximate Page Number): 4
   
   
   

Even in the instant case, though the promised date of delivery was way back in the year 2015, even as on date, the tower is far from completion. 21. The Learned Counsel for the Complainant relied on the decision of this Commission dated 11.01.2019 in Manmeet Singh & Anr. Vs. Unitech Hi-Tech Developers Ltd. & Ors. (Consumer Complaint No. 1285 of 2017), wherein this Commission has allowed refund of the principal amount with interest @ 10% p.a. 22. For all the aforenoted reasons and the principal laid down by the Hon'ble Supreme Court in Kolkata West International City Pvt. Ltd. (Supra) we are of the considered view that the Complaint be allowed in part and we direct the Developer to refund the amount deposited with the developer in respect of subject flat No. 7013 with interest @ 10% p.a. from the respective dates of deposit till the date of realisation together with the cost of ₹25,000/.” Arguments of the parties 9. It is argued by Mr. Jayanth Mithras, learned senior counsel on behalf of the builder that the relief granted by NCDRC is unwarranted. Highlighting that the entire project had come to a standstill on account of an interim order by the NGT, the learned senior counsel stressed that these facts were within the knowledge of the original allottee as well as the purchaser. When they decided to purchase it in 2015, it was decided that the respondent would purchase the flat and step into the shoes of the original allottee. Learned senior counsel argued that given these circumstances, the respondent, as a prudent purchaser, could not have reasonably expected the construction to be completed till the interim orders were vacated and some time was allowed for the construction to be completed. Clearly, the purchaser was only an investor and was not interested in residing in the flat. 10. Learned senior counsel submitted that barely a year after the transaction of stepping into the shoes of the original allottee – which was endorsed by the builder, the purchaser made an unreasonable demand for the refund of the entire amount. At that point in time, the interim order of the NGT had been vacated. Quite naturally, therefore, the construction had started and the builder made the demand on 23.04.2017 towards subsequent instalments which were not paid. Although the purchaser sent a legal notice prior to these demands, the fact remained that so long as he assumed responsibility as an allottee, he could not shy away from fulfilling the demand towards the instalments. 11. Learned senior counsel argued that the purchaser could not claim the equities in the same manner that an original allottee could. In the present case, the original allottee had not paid the instalments in time and was constrained to pay penal interest – a fact noted by the NCDRC.

Result 18
Supreme Court of India
M/S Laureate Buildwell Pvt. Ltd. vs Charanjeet Singh
Honourable Judges Uday Umesh Lalit, Hemant Gupta, S. Ravindra Bhat
Date of Judgment: 22 Jul 2021
Segment Number (Approximate Page Number): 7
   
   
   

18. In the meanwhile, there was a slowdown in construction, apparently, on account of orders made by NGT. The builder alleged that the slowdown in construction was due to the NGT’s interim orders. However, what transpired was that on 28.10.2013, the NGT imposed certain restrictions within 10 km radius of the Okhla Bird Sanctuary. The application before the NGT was disposed on 03.04.2014. Consequently, there were no directions after that date. A review application was filed before the NGT which remained pending for some time; however, even at that stage there were no interim orders requiring stoppage of construction. On 19.08.2015 the Ministry of Environment and Forests issued a notification. The appellant is unclear as to the effect of this notification; apparently, it did not impede construction; the notification was challenged. It is only on 05.07.2016, on account of an application preferred by an occupant of an adjoining area that the NGT directed the builder not to carry on with the construction. This, the builder informs in its appeal, was finally disposed of in January 2016. 19. The facts set out in the preceding paragraph demonstrate that on the one hand the builder/appellant is not categorical with respect to the existence of interim orders enjoining it not to construct further. Rather, it appears that there was no construction of the project for about six months. However, despite this position, it continued to demand and received instalments. The purchaser entered the scene in 2016, waited for some time and demanded refund of the entire amount with interest from the dates that deposits were made. After receiving notice, the builder demanded further instalments. It was in this background that the purchaser approached the NCDRC successfully with the claim for refund. The claim for interest was allowed to the extent of 10% on the entire amounts deposited from the respective dates of deposits. 20. The principal argument of the builder is the rights of a purchaser are not the same as an original allottee. The builder appellant cites Raje Ram and Arifur Rahman Khan (supra).In the first decision Raje Ram, this Court declined to grant interest on a refund claim made by a subsequent purchaser. The original allottee did not continue with the allotment; the statutory authority/developer HUDA re-allotted the plot. The re-allottee then approached the consumer forum which directed refund with interest. This court was of the opinion that when the subsequent purchaser, i.e. the re-allottee stepped into the shoes of the original allottee, he was aware of the delay in handing over the possession which had occurred and therefore could no longer claim the time of the delay. In Arifur Rahman Khan (supra) several allottees approached the Court.

Result 19
Supreme Court of India
Wg. Cdr. Arifur Rahman Khan And ... vs Dlf Southern Homes Pvt. Ltd. (Now ...
Honourable Judges Dr. Chandrachud, K.M. Joseph
Date of Judgment: 24 Aug 2020
Segment Number (Approximate Page Number): 19
   
   
   

32 In the present case, there exist, clear and valid reasons for not holding down the flat buying consumers merely to the entitlement to receive compensation at the rate of 5 per square foot per month in terms of clause 14 of the ABA: (i) There has been a breach on the part of the developer in complying with the contractual obligation to hand over possession of the flats within a period of thirty-six months of the date of the agreement as stipulated in clause 11(a); (ii) The failure of the developer to hand over possession within the contractually stipulated period amounts to a deficiency of service within the meaning of Section 2 (1) (g), warranting the invocation of the jurisdiction vested in the NCDRC to issue a direction for the removal of the deficiency in service; (iii) The triggering of an obligation to pay compensation on the existence of delay in handing over possession is admitted by the developer for, even according to it, it has adjusted compensation at the agreed rate of Rs 5 per square foot per month to 145 out of the 171 appellants; (iv) The agreement is manifestly one-sided: the rights provided to the developer for a default on the part of the home buyer are not placed on an equal platform with the contractual right provided to the home buyer in the case of a default by the developer; (v) There has been a gross delay on the part of the developer in completing construction ranging between two and four years. Despite successive extensions of time to deliver possession sought by the developer, possession was not delivered on time; (vi) The nature and quantum of the delay on the part of the developer are of such a nature that the measure of compensation which is provided in clause 14 of the ABA would not provide sufficient recompense to the purchasers; and (vii) Judicial notice ought to be taken of the fact that a flat purchaser who is left in the lurch as a result of the failure of the developer to provide possession within the contractually stipulated date suffers consequences in terms of agony and hardship, not the least of which is financial in nature. Having paid a substantial amount of the purchase price to the developer and being required to service the debt towards loan installments the purchaser is unable to obtain timely possession of the flat which is the subject matter of the ABA. But, it has been submitted by the developer – a submission which found acceptance by the NCDRC – that the execution of the Deed of Conveyance by a flat purchaser precludes a consumer claim being raised for delayed possession. During the course of the proceedings before the NCDRC, the flat purchasers relied upon the communications which were issued by the developer to demonstrate that the purchasers were not permitted by the developer to execute a Deed of Conveyance or to take possession under protest.

Result 20
Supreme Court of India
Pioneer Urban Land And Infrastructure ... vs Govindan Raghavan
Honourable Judges Indu Malhotra, Uday Umesh Lalit
Date of Judgment: 02 Apr 2019
Segment Number (Approximate Page Number): 8
   
   
   

This principle may not 4 (1986) 3 SCC 156. apply where both parties are businessmen and the contract is a commercial transaction. … … These cases can neither be enumerated nor fully illustrated. The court must judge each case on its own facts and circumstances.” (emphasis supplied) 6.7. A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the Agreement dated 08.05.2012 are ex-facie one-sided, unfair, and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder. 7. In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyer’s Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent – Flat Purchaser. The Appellant – Builder could not seek to bind the Respondent with such one-sided contractual terms. 8. We also reject the submission made by the Appellant – Builder that the National Commission was not justified in awarding Interest @10.7% S.I. p.a. for the period commencing from the date of payment of each installment, till the date on which the amount was paid, excluding only the period during which the stay of cancellation of the allotment was in operation. In Bangalore Development Authority v. Syndicate Bank,5 a Coordinate Bench of this Court held that when possession of the allotted plot/flat/house is not delivered within the specified time, the allottee is entitled to a refund of the amount paid, with reasonable Interest thereon from the date of payment till the date of refund. 8.1. In the present case, the National Commission has passed an equitable Order. The Commission has not awarded any Interest for the period during which the Order of stay of cancellation of the allotment was in operation on the request of the Respondent – Flat Purchaser. The National Commission has rightly awarded Interest @10.7% S.I. p.a. by applying Rule 15 of the Haryana Real 5 (2007) 6 SCC 711. Estate (Regulation And Development) Rules, 2017 from the date of each installment till 05.02.2017 i.e. till the date after which the Order of stay of cancellation of the allotment was passed; and thereafter, from the date of the Commission’s final Order till the date on which the amount is refunded with Interest. 9. We see no illegality in the Impugned Order dated 23.10.2018 passed by the National Commission. The Appellant – Builder failed to fulfill his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent – Purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter.

Result 21
Supreme Court of India
M/S. Supertech Ltd. vs Rajni Goyal
Honourable Judges Indu Malhotra, Abhay Manohar Sapre
Date of Judgment: 23 Oct 2018
Segment Number (Approximate Page Number): 3
   
   
   

2.8.       Aggrieved   by   the   Order   dated   07.02.2018,   the Appellant   –   Builder   filed   a   Review   Petition.   The   said Review  Petition was dismissed by  the Commission  vide Order dated 22.03.2018. 2.9.      Aggrieved by the Order passed by the Commission in the Consumer Complaint as also in the Review Petition, the   Appellant   –   Builder  has   preferred   the   present   Civil Appeals   before   this   Court   under   Section   23   of   the Consumer Protection Act, 1986. 3. We have heard the Counsel for the parties, and perused the pleadings of the case. 4. The Appellant – Builder inter alia submitted that –       Possession   of   the   flat   was   offered   to   the   Respondent   – Purchaser in December 2015 after obtaining the Completion Certificate for the building.       Even   though   the   Agreement   provided   for   delivery   of possession   by   31.10.2013,   the   delay   occurred   because   of various legal impediments in timely completion of the project because   of   various   Orders   passed   by   the   National   Green Tribunal.   The   delay   ought   to   be   computed   from   6   months after   31.10.2013,   i.e.   from   01.05.2014   by   taking   into consideration,   the   6   months   grace   period   provided   in   the Agreement.      Furthermore, the period of Interest should close on April 2016  when  the   Full  Occupancy Certificate was obtained as per the admission of the Respondent – Purchaser herself in Para   4(j)   of   the   Consumer   Complaint,   wherein   she   has admitted   that   the   Appellant   –   Builder   had   obtained   the Completion Certificate as late as April 2016. The Respondent – Purchaser could not have any further grievance after April 2016 with respect to delay in handing over possession. The Respondent – Purchaser ought not to be allowed to reap the benefits of her own delay in taking possession. 5. In   light   of   the   aforesaid   discussion,   the   period   of compensation of Interest must be computed from 01.05.2014 till 30.04.2016 at the rate awarded by the Commission.  6. The Order of the Commission is modified only to the extent mentioned hereinabove. 7. The Appeals are disposed of accordingly. .......................................J. (ABHAY MANOHAR SAPRE) .…...............………………J. (INDU MALHOTRA) New Delhi, October 23, 2018.

Result 22
Supreme Court of India
Faqir Chand Gulati vs Uppal Agencies Pvt. Ltd. & Anr
Honourable Judges Lokeshwar Singh Panta, R. V. Raveendran
Date of Judgment: 10 Jul 2008
Segment Number (Approximate Page Number): 14
   
   
   

22. The State Commission and National Commission have proceeded on an assumption, which appears to be clearly baseless, that wherever there is an agreement for development of a property between the property owner and builder under which the constructed area is to be divided, it would automatically amount to a joint venture and there is no question of the landholder availing the service of the builder for consideration. Reliance was placed on two decisions, the first being that of the National Commission in C Narasimha Rao v. K R Neelakandan - I (1994) CPJ 160 and the second being that of the Delhi State Commission in Har Sarup Gupta v. M/s. Kailash Nath & Associates - II (1995) CPJ 275. In C Narasimha Rao, there was an agreement between the landowners and a builder for construction of a building and sharing of the constructed area. The old building was demolished, but the builder failed to complete the construction of a new building and hand over the owner's share of flats. The landowners preferred a complaint claiming Rs.94,000/- as the value of the malba (retrievable valuables from the debris of the old building) that had been removed by the builder. The National Commission held that as the claim was for recovery of the money being value of the malba removed by the builder, it does not amount to a claim based on deficiency of service and therefore such a claim would fall outside the scope of the Consumer Protection Act. The said decision is wholly inapplicable, as it dealt with a different question. In Har Swarup Gupta, the State Commission was concerned with a claim of the landowners for compensation alleging that the builder had not built the flats in terms of the contract under which the landowners were entitled to 36% and the builder was entitled to 64% of the built up area. The State Commission held that the complaint was not maintainable on the ground that on similar facts the National Commission in Narasimha Rao's case (supra) had held that the fora under the Consumer Protection Act did not have jurisdiction. But Narasimha Rao (supra), as noticed above, was not similar on facts, nor did it lay down any such proposition. Har Swarup Gupta is clearly wrongly decided. 23. We may notice here that if there is a breach by the landowner of his obligations, the builder will have to approach a civil court as the landowner is not providing any service to the builder but merely undertakes certain obligations towards the builder, breach of which would furnish a cause of action for specific performance and/or damages. On the other hand, where the builder commits breach of his obligations, the owner has two options. He has the right to enforce specific performance and/or claim damages by approaching the civil court. Or he can approach the Forum under Consumer Protection Act, for relief as consumer, against the builder as a service- provider.

Result 23
Supreme Court of India
Pioneer Urban Land And Infrastructure ... vs Govindan Raghavan
Honourable Judges Indu Malhotra, Uday Umesh Lalit
Date of Judgment: 02 Apr 2019
Segment Number (Approximate Page Number): 4
   
   
   

No other claim, whatsoever, monetary or otherwise shall lie against the Developer nor shall be raised otherwise or in any manner whatsoever by the Allottee. Save and except to this limited extent, the Allottee shall not have any right to cancel this Agreement on any ground whatsoever.” (emphasis supplied) 4.1. It was submitted that the Respondent – Flat Purchaser was not entitled to refund of the amount deposited, since the Apartment Buyer’s Agreement was not terminated by the Respondent – Flat Purchaser in accordance with Clause 11.5 (ii) of the Agreement, which stipulates that the allottee has to terminate the Agreement by giving a Termination Notice of 90 days to the Developer. Since the Respondent – Flat Purchaser had not terminated the Agreement by a written notice as per Clause 11.5, the Builder could not sell the apartment, and refund the money to the Respondent – Flat Purchaser. On the contrary, the Respondent filed a Consumer Complaint and obtained an ex-parte Interim Order dated 06.02.2017 restraining the Builder from cancelling the allotment made in favour of the Respondent. 4.2. It was further submitted that if the filing of the Consumer Complaint is considered as an act of termination of the Agreement, then the same was pre- mature. As per Clause 11.5 (ii), the Respondent – Flat Purchaser could have claimed refund only after the expiry of 12 months after the grace period came to an end i.e. after 04.03.2017. However, the Consumer Complaint was filed on 27.01.2017. In these circumstances, even if it is found that the Appellant – Builder is liable to refund the amount deposited with Interest, then the date of the Impugned Order i.e. 23.10.2018, must be treated as the date of serving the Termination Notice as per Clause 11.5 (ii) of the Agreement, and the Appellant – Builder should be held liable to pay Interest only after 90 days from the date of termination i.e. from 23.01.2019. 4.3. With respect to rate of Interest awarded by the National Commission, it was submitted that the Commission erred in granting Interest @10.7% S.I. p.a. even though Clause 20 of the Agreement provided Interest @6% p.a. in case of delay in handing over possession. Even under Clause 11.5 of the Agreement, the Builder was liable to pay Interest @9% p.a., but not @10.7% S.I. p.a. The learned Senior Counsel relied upon this Court’s Judgment in Bharathi Knitting Company v. DHL Worldwide Express Courier Division of Airfreight Ltd.,1 and submitted that the National Commission could not have granted compensation in excess of the rate prescribed by the Agreement. 1 (1996) 4 SCC 704. 5. Mr. Sushil Kaushik, learned Counsel represented the Respondent – Flat Purchaser. 5.1. It was submitted that the filing of the Consumer Complaint may be treated as his Termination Notice under Clause 11.5 (ii) of the Agreement.

Result 24
Supreme Court of India
Ghaziabad Development Authority vs Subhash Gupta
Honourable Judges S. N. Variava, Arijit Pasayat
Date of Judgment: 28 Jul 2004
Segment Number (Approximate Page Number): 1
   
   
   

CASE NO.: Appeal (civil) 6548 of 2002 PETITIONER: Ghaziabad Development Authority RESPONDENT: Subhash Gupta DATE OF JUDGMENT: 28/07/2004 BENCH: S. N. VARIAVA & ARIJIT PASAYAT. JUDGMENT: J U D G M E N T S. N. VARIAVA, J. Before this Court a large number of Appeals have been filed by the Haryana Urban Development Authority and/or the Ghaziabad Development Authority challenging Orders of the National Consumer Disputes Redressal Commission, granting to Complainants, interest at the rate of 18% per annum irrespective of the fact of each case. This Court has, in the case of Ghaziabad Development Authority vs. Balbir Singh reported in (2004) 5 SCC 65, deprecated this practice. This Court has held that interest at the rate of 18% cannot be granted in all cases irrespective of the facts of the case. This Court has held that the Consumer Forums could grant damages/compensation for mental agony/harassment where it finds misfeasance in public office. This Court has held that such compensation is a recompense for the loss or injury and it necessarily has to be based on a finding of loss or injury and must co-relate with the amount of loss or injury. This Court has held that the Forum or the Commission thus had to determine that there was deficiency in service and/or misfeasance in public office and that it has resulted in loss or injury. This Court has also laid down certain other guidelines which the Forum or the Commission has to follow in future cases. This Court is now taking up the cases before it for disposal as per principles set out in earlier judgment. On taking the cases we find that the copies of the Claim/Petitions made by the Respondent/Complainant and the evidence, if any, led before the District Forum are not in the paper book. This Court has before it the Order of the District Forum. The facts are thus taken from that Order. In this case the Respondent was allotted a plot of 90 Sq. Mtr. under Karpuripuram Scheme in the year 1991. The Respondent paid all dues. Yet possession was not offered. The Respondent thus filed a complaint. The District Forum has directed delivery of possession and awarded interest on the deposited amount at the rate of 18% p.a. from 1st July, 1994 till date possession is given. The District Forum has also directed payment of Rs. 2,000/- as compensation for mental agony. The Appellants appealed to the State Forum. We are informed that pending Appeal the Appellants deposited not just the amounts awarded but also the amounts paid by the Respondent to them. The State Forum confirmed the Award in the Appeal filed by the Appellants. The Respondent did not go in Revision before the National Commission. The Appellants filed a Revision before the National Commission. For the first time they now claimed that the Karpuripuram Scheme was cancelled. The National Commission has not dealt with the aspect of cancellation of Scheme but has increased the rate of interest to 18% p.a.

Result 25
Supreme Court of India
Pioneer Urban Land And Infrastructure ... vs Govindan Raghavan
Honourable Judges Indu Malhotra, Uday Umesh Lalit
Date of Judgment: 02 Apr 2019
Segment Number (Approximate Page Number): 3
   
   
   

The National Commission ordered payment of Interest from the date of each installment till 05.02.2017; and from the date of the Order passed by the Commission till the date on which the amount would be refunded. 3.9. Aggrieved by the Order dated 23.10.2018 passed by the National Commission, the Appellant – Builder preferred the present statutory Appeal under Section 23 of the Consumer Protection Act, 1986. 4. Mr. C.A. Sundaram, Senior Counsel appeared for the Appellant – Builder, and drew our attention to the following Clauses in the Apartment Buyer’s Agreement dated 08.05.2012 viz. Clause 11.5 (ii), (iv) and (v) along with Clause 20 which read as under : “11.5. (ii) In the event of further delay by the Developer in handing over of the possession of the Unit even after 12 months from the end of grace period, then in such case, the intending Allottee shall have an additional option to terminate this Agreement by giving termination notice of 90 days to the Developer and refund of the actual installment paid by him against the Unit after adjusting the taxes paid / interest / penalty on delayed payments. … (iv) Developer shall, within ninety (90) days from the date of receipt of termination notice of said Unit, refund to the intending Allottee, all the monies received excluding the service tax collected on various remittances, till the date of the refund, from the Intending Allottee under this Agreement. In case the Developer fails to refund the Sale Price, the Developer shall pay interest to the Intending Allottee @ 9% per annum for any period beyond the said period of ninety (90) days. The Intending Allottee shall have no other claim against the Developer in respect of the said Unit along with the parking space. The Intending Allottee in this event shall have no right to seek any compensation apart from the interest as stipulated herein. … (v) If the Intending Allottee fails to exercise his right of termination within the time limit as aforesaid, by delivery to the Developer of a written notice acknowledged by the Developer in this regard, then he shall not be entitled to terminate this Agreement thereafter and he shall continue to be bound by the provisions of this Agreement, provided that in such case, the Developer shall continue to pay the compensation provided herein. 20. RIGHT OF CANCELLATION BY THE ALLOTTEE Except to the extent specifically and expressly stated elsewhere in this Agreement, the Intending Allottee shall have the right to cancel this Agreement solely in the event of the clear and unambiguous failure of the warranties of the Developer that leads to frustration of the contract on that account.

Result 26
Supreme Court of India
Brij Pal Sharma vs Ghaziabad Development Authority
Honourable Judges Arijit Pasayat, H.K. Sema
Date of Judgment: 18 Aug 2005
Segment Number (Approximate Page Number): 1
   
   
   

CASE NO.: Appeal (civil) 5122 of 2005 PETITIONER: Brij Pal Sharma RESPONDENT: Ghaziabad Development Authority DATE OF JUDGMENT: 18/08/2005 BENCH: ARIJIT PASAYAT & H.K. SEMA JUDGMENT: J U D G M E N T (Arising out of S.L.P.(C ) No. 22736 of 2002 WITH Civil Appeal No.549 of 2003 AND Contempt Petition No.614 of 2004 in C.A.No.549 of 2003 H.K.SEMA,J Civil Appeal arising out of SLP(C) 22736 of 2002 Leave granted. The challenge in this appeal is to the order dated 26.4.2002 passed by the National Consumers Disputes Redressal Commission (in short `the Commission') in Revision Petition No. 1460 of 2000. Briefly stated, the facts are as follows: The respondent authority, namely the Ghaziabad Development Authority, floated a Scheme called Karpoori Puram Scheme for allotment of housing plots under the Self Financing Scheme. Pursuant thereto, the appellant applied for a plot of land measuring an area of 90 sq. mtrs. This was sometime in the month of July, 1991. On 30th July, 1994, the appellant deposited a sum of Rs. 96,948 as total and final payment (i.e. Rs. 81,020/- as actual cost and Rs. 15,948 as interest on delayed payment). The allotment of the plot was due sometime in 1997. However, the land in question could not be allotted to the appellant on the ground that the Karpoori Puram Scheme had been cancelled and a new scheme had been floated by the name of Swarn Jayanti Puram. Aggrieved thereby, the appellant filed complaint to the District Forum, State Commission and National Commission, which after considering the facts of the case, inter-alia, directed refund of the amount alongwith interest @ 18% per annum. The grievance of the appellant is that in the guise of the cancellation of Karpoori Puram Scheme another scheme was floated styled as Swarn Jayant Puram over the same plot of land with a view to deprive the innocent citizens of their due share for allotment of plot in their favour for which they had deposited the amount and had legitimate expectations of getting plot of land in their favour. According to the appellant, a fraudulent practice has been played by the respondent upon the innocent law abiding citizens, thereby earning wrongful gain at the cost of wrongful loss to the helpless and innocent citizens. In fact, in an identical case, cancellation of Karpoori Puram Scheme had been considered by this Court in the case of Ghaziabad Development Authority v. Balbir Singh (2004) 5 SCC 65 wherein this Court had deprecated the manner in which the statutory authority had dealt with the public interest as sought to be done in the present case. This Court in the facts and circumstances of that case had held that the grant of interest @ 18% per annum by way of damages and compensation was quite justified. In paragraph 21 of Balbir Singh's case (supra), this Court held as under: "21. In a scheme known as "Karpuripuram Scheme" plots were allotted, monies collected. However, thereafter the Scheme was cancelled.

Result 27
Supreme Court of India
Ghaziabad Development Authority vs Rajesh Chandra
Honourable Judges S. N. Variava, B. P. Singh
Date of Judgment: 27 Sep 2004
Segment Number (Approximate Page Number): 1
   
   
   

CASE NO.: Appeal (civil) 8418 of 2002 PETITIONER: Ghaziabad Development Authority RESPONDENT: Rajesh Chandra DATE OF JUDGMENT: 27/09/2004 BENCH: S. N. VARIAVA & B. P. SINGH JUDGMENT: J U D G M E N T S. N. VARIAVA, J. Before this Court a large number of Appeals have been filed by the Haryana Urban Development Authority and/or the Ghaziabad Development Authority challenging Orders of the National Consumer Disputes Redressal Commission, granting to Complainants, interest at the rate of 18% per annum irrespective of the fact of each case. This Court has, in the case of Ghaziabad Development Authority vs. Balbir Singh reported in (2004) 5 SCC 65, deprecated this practice. This Court has held that interest at the rate of 18% cannot be granted in all cases irrespective of the facts of the case. This Court has held that the Consumer Forums could grant damages/compensation for mental agony/harassment where it finds misfeasance in public office. This Court has held that such compensation is a recompense for the loss or injury and it necessarily has to be based on a finding of loss or injury and must co-relate with the amount of loss or injury. This Court has held that the Forum or the Commission thus had to determine that there was deficiency in service and/or misfeasance in public office and that it has resulted in loss or injury. This Court has also laid down certain other guidelines which the Forum or the Commission has to follow in future cases. This Court is now taking up the cases before it for disposal as per principles set out in earlier judgment. On taking the cases we find that the copies of the Claim/Petitions made by the Respondent/Complainant and the evidence, if any, led before the District Forum are not in the paper book. This Court has before it the Order of the District Forum. The facts are thus taken from that Order. In this case, the Respondent applied for a Shop on 30.10.1995 in Commercial Scheme Kaushambi, 1994 of the Appellants and the value of the shop was Rs.1,20,000/-. The Respondent deposited the entire amount with the Appellants, but the possession of the shop was not delivered, while the possession has been given to other allottees. The Respondent filed a Complaint before the District Forum. On these facts, the District Forum directed the Appellants to handover the physical possession of the shop within three months from the date of order after constructing the shop along with interest at the rate of 18% p.a. from 1.1.1997 till the date of possession and awarded a sum of Rs.2,000/- as cost and damages. It further directed that if the Order is not complied with within the said period, the Appellants shall pay interest at the rate of 21% p.a. Aggrieved by this Order, the Appellants filed an Appeal before the State Forum challenging the Order of the District Forum.

Result 28
Supreme Court of India
Experion Developers Private Ltd. vs Sushma Ashok Shiroor
Honourable Judges Uday Umesh Lalit, S. Ravindra Bhat, Pamidighantam Sri Narasimha
Date of Judgment: 07 Apr 2022
Segment Number (Approximate Page Number): 2
   
   
   

He, therefore, sought a refund of Rs. 2,06,41,379/- along with interest @ 24% p.a. 3.2 The Developer filed its Written Statement before the Commission stating that though the 42 months period expires on 26-6-20164, the purchaser will only be entitled to delay compensation under Clause 13, for a sum of Rs. 4,54,052/-. Justification for the delay is given by pleading that the Occupation Certificate for Phase-I of the project had already been obtained on 06.12.2017, and application for Occupation Certificate for Phase-2, had already been made. In the affidavit of evidence, the Developer contended that it secured the Occupation Certificate on 23.07.2018 and a notice of possession was issued to the Consumer on 24.07.2018. It was claimed that since possession can be handed over, the complaint must be dismissed. 4. The Commission, in its judgment dated 19.06.2019, allowed the complaint after referring to Clause 10 (relating to the project completion period), Clause 11 (relating to the possession and conveyance of the apartment), as well as Clause 13 (relating to delay in possession). The Commission found that the agreement The Commission in impugned order has recorded the statement of the Developer in the reply dated 16.02.2018 raising preliminary objections where it admitted that the “The trigger date for clause 10.1 is 26.12.2012 which is the date of execution of the apartment buyer’s agreement.” Page 3 of 24 is one-sided, heavily loaded against the allottee and entirely in favour of the Developers. Following the decisions of this Court in Pioneer Urban Land and Infrastructure Ltd. v. Govind Raghvan,5 (“Pioneer”), the Commission directed the Developer to refund the amount of Rs.2,36,15,726/- with interest @ 9% p.a. 5.1 It is against these findings and the consequential directions of the Commission that the Developer filed the present Civil Appeal No. 6044/2019. The Consumer also filed an appeal being Civil Appeal No. 7149/2019, challenging the Commission's judgment to a limited extent for grant of an enhanced interest @ 24% p.a. 5.2 Assailing the judgment of the Commission, Shri Gagan Gupta, on behalf of the Developer submitted that the decision of this Court in Pioneer has no application to the facts of the present case, as in Pioneer, the Court did not have to deal with Delay Compensation Clause like in the present case. Terms of the Apartment Buyer’s Agreement alone, according to him, would govern the relations between the parties. He argued that no prejudice would be caused to the Consumer if he is asked to take possession of the property. Referring to the provisions of the Real Estate (Regulation and Development) Act, 20166 and particularly to the Regulations made by Haryana Real Estate Regulatory Authority, which were relied on in Pioneer case, he submitted that the Consumer Pioneer Urban Land and Infrastructure Ltd. v. Govindan Raghvan (2019) 5 SCC hereinafter referred to as “RERA Act”.

Result 29
Supreme Court of India
Wg. Cdr. Arifur Rahman Khan And ... vs Dlf Southern Homes Pvt. Ltd. (Now ...
Honourable Judges Dr. Chandrachud, K.M. Joseph
Date of Judgment: 24 Aug 2020
Segment Number (Approximate Page Number): 21
   
   
   

In this backdrop, the simple question which we need to address is whether a flat buyer who seeks to espouse a claim against the developer for delayed possession can as a consequence of doing so be compelled to defer the right to obtain a conveyance to perfect their title. It would, in our view, be manifestly unreasonable to expect that in order to pursue a claim for compensation for delayed handing over of possession, the purchaser must indefinitely defer obtaining a conveyance of the premises purchased or, if they seek to obtain a Deed of Conveyance to forsake the right to claim compensation. This basically is a position which the NCDRC has espoused. We cannot countenance that view. 35 The flat purchasers invested hard earned money. It is only reasonable to presume that the next logical step is for the purchaser to perfect the title to the premises which have been allotted under the terms of the ABA. But the submission of the developer is that the purchaser forsakes the remedy before the consumer forum by seeking a Deed of Conveyance. To accept such a construction would lead to an absurd consequence of requiring the purchaser either to abandon a just claim as a condition for obtaining the conveyance or to indefinitely delay the execution of the Deed of Conveyance pending protracted consumer litigation. 36 It has been urged by the learned counsel of the developer that a consequence of the execution of the Deed of Conveyance in the present case is that the same ceases to be a transaction in the nature of “supply of services” covered under the CP Act 1986 and becomes a mere sale of immovable property which is not amenable to the jurisdiction of Consumer Fora. In Narne Construction (P) Ltd. v. Union of India21, this Court distinguished between a simple transfer of a piece of immovable property and housing construction or building activity carried out by a private or statutory body falling in the category of „service‟ within the meaning of Section 2 (1) (o) of the CP Act 1986. This Court held that: “8. Having regard to the nature of transaction between the appellant Company and its customers involved much more than a simple transfer of a piece of immovable property it is clear the same constitutes “service” within the meaning of the Act. It was not the case that the appellant Company was selling the given property with all its advantages and/or disadvantages on “as is where is” basis, as was the position in UT Chandigarh Admn v. Amarjeet Singh. It is a case where a clear-cut assurance was made to the purchasers as to the nature and extent of development that would be carried out by the appellant Company as a part of package under which a sale of fully developed plots with assured facilities was made in favour of the purchasers for valuable consideration.

Result 30
Supreme Court of India
B.B.Patel . vs Dlf Universal Ltd.
Honourable Judges L. Nageswara Rao, B.R. Gavai, B.V. Nagarathna
Date of Judgment: 25 Jan 2022
Segment Number (Approximate Page Number): 14
   
   
   

In Ireo Grace Realtech Private Ltd. case (supra), the order of the National Commission directing refund of amount deposited by purchasers along with appropriate compensation was approved by this Court. The concerned apartment buyer’s agreement was examined therein and it was held that the consumer fora have the jurisdiction to award just and reasonable compensation as an incident of their power to direct removal of deficiency in service. 23. There is no quarrel with the proposition in Central Inland Water Transport Corporation (supra) that an unconscionable term in a contract is void under Section 23 of the Indian Contract Act, 1872. The other cases 35 | P a g e relied upon by the appellants pertain to disputes under the Consumer Protection Act. All the three cases relate to either refund of the amounts deposited by the flat buyers or payment of compensation for delay on the part of the builder in handing over possession of the flats on a clear finding of fact that the delay in handing over possession was solely attributable to the builder. After examining the terms of the Agreement in those cases, this Court was of the opinion that entitlement of the flat buyers to compensation for deficiency in service on the part of the builder cannot be restricted by the agreements which are one sided. The said judgments are not applicable in the instant case. The reliefs claimed in the above cases are completely different from the main reliefs in the present case. In the cases cited above, the grievance of the flat buyers was that since there had been a substantial delay in delivery of the apartments, the buyer should be entitled to terminate the agreement and to recover the amounts already paid along with just and reasonable interest/compensation which could not be confined to the 36 | P a g e terms as stated in a one-sided agreement. As against this, the appellants in this case are essentially seeking possession of the apartments by declaration of termination of the agreement by the respondent to be void, without having to pay any money towards extra charges or even the basic sale price. There has been no specific reference to any clause in the ABA by which the appellants appear to be aggrieved so as to shock the conscience of this Court to travel beyond its terms in light of it being an unconscionable contract. 24. There is an averment in para 16 of the complaint that ABA is an unconscionable contract opposed to public policy as a consumer has no bargaining power and is an easy victim of unfair trade practice. There is no reference to any clause of the ABA, in particular, to substantiate the allegation. On the other hand, the appellants repeatedly refer to the allegation of delay in handing over possession and imposition of extra charges apart from non-refund of interest on the amounts paid by them.

Relevant High Court Judgments
Year From: 1950, Year To: 2024

Result 1
Allahabad High Court
Kamlesh Kumar vs Umesh Kumar
Honourable Judges Siddharth
Date of Judgment: 25 August 2021
Segment Number (Approximate Page Number): 1
   
   
   

1. Heard Sri Ashish Agrawal, learned counsel for the defendant/appellant and Sri Manish Goyal, learned Senior Counsel assisted by Sri Archit Mehrotra, learned counsels for the plaintiff/respondent. 2. This first appeal has been preferred by the defendant/appellant against the judgement and decree dated 21.09.2013 passed by Additional Civil Judge (Senior Division), Court No. 6, Ghaziabad in Original Suit No. 1057 of 2009 (Sri Umesh Kumar Vs. Sri Kamlesh Kumar). 3. The plaintiff's case is that the plaintiff and the defendant are real brothers. Their mother and father were late Smt. Shanti Devi and late Smt. Kanti Swaroop Singhal respectively. The mother of the parties purchased a semi-constructed house no. K.G-26, Kavinagar, Ghaziabad, by means of a registered sale deed dated 02.09.1983 from Sri Jagdish Chandra Mittal. After purchasing the house, she got the ground floor fully constructed having four rooms drawing room, kitchen, toilet etc., and one room, verandah, kitchen, toilet etc., on the upper portion. On 02.06.2020, the Ghaziabad Development Authority executed a freehold deed in favour of the mother of the parties. The mother of the parties, Smt. Shanti Devi, executed a will dated 31.07.2004 and she died subsequently on 25.12.2004. As per the aforesaid will dated 31.07.2004, the entire ground floor of the House No. K.G-26, Kavinagar, Ghaziabad, shall remain in the ownership and possession of Kamlesh Kumar and the entire portion on the first floor shall remain in the ownership and possession of Umesh Kumar. They shall use their share of property as per possession and the remaining property was given to the third brother of the parties, Lokesh Kumar. The plaintiff wants to make constructions on the upper floor. He requires sanctioning of map from Ghaziabad Development Authority. For getting loan from the bank, he needs a document of title regarding his share in the property in dispute. The plaintiff requested the defendant to execute the documents in Nagar Nigam and other offices, as per the will. He kept on avoiding him on some pretext or the other. The plaintiff has retired from his job in June, 2007 and doing temporary job at Noida. He wants to live in the house in his share and wants to get the same constructed further.

Result 2
Gujarat High Court
Centre Point Welfare Association vs Nita International [Alongwith Special ...
Honourable Judges Ravi R. Tripathi
Date of Judgment: 8 March 2001
Segment Number (Approximate Page Number): 35
   
   
   

On behalf of the builder, reliance is placed on clause 25 which restricts the use of a building for restaurant or hotel and for such other purpose which may be harmful to the Association or other occupiers of the shops/flats in the said building. Even with regard to the terrace, it is indicated that the purchaser shall not put up any structure in the open terrace. For putting up neon signs or boards, prior permission of the builder was required. It was therefore submitted that the claim of Nita International is highly exaggerated, whether the amount was spent or not is a subject matter of evidence. Even while examining the claim of refund of the purchase price on behalf of the builders, it is stated that it is necessary to take into consideration use made by the occupier for all these years. 55. On behalf of both the sides, details were placed on record in tabular form etc., i.e. the statement indicating the details of purchase price, present valuation, good-will amount etc. 56. On behalf of the Builder, dispute is raised about the present market value, good will or the present valuation of the property of the same size in the vicinity. One thing is certain: the acceptance of purchase amount is not disputed by the builder. 57. It was contended by the builder that the place meant for parking and common amenities does not provide title, therefore, the question is to whom it should go back and whether the possession should be restored to the builder or that it should be restored to the society? It was contended that except the builder, none has a right to use the space meant for parking and for common amenities. 58. It is required to be noted that one partner of the builder, namely, Upendra C. Shah, has signed the plans as an owner for the Society. Thus, it is he who knew that the society is the owner and not the builder/developer, and, therefore, the possession must be restored to the owner of the building in question, namely, the society and not the builder/developer. The builder was merely a developer and was required to develop the property in accordance with law and not at his sweet will or as per his whims and caprice. No document showing right, title or interest in the property has been placed before this Court either by the builder firm or its partner.

Result 3
Andhra High Court
P.L. Raju vs Dr. Nandan Singh
Date of Judgment: 14 July 2005
Segment Number (Approximate Page Number): 22
   
   
   

The claim of the defendant in your client's suit is based on registered deeds of conveyance in his favour. It is a different matter whether the said defendant in your client's suit succeeds or fails ultimately, but my client has to suffer the said litigation. Therefore my client is justified in law as well as on equitable principles not to purchase your client's property in question tainted with 3rd party claims of tide and possession and subject to the present litigation and threatened litigation in future by the 3rd party. Therefore in view of these circumstances it cannot be said that my client committed any default of any of the terms and conditions of the written contract of sale out of his own volition and that in view of the above stated existing and threatened litigation hereinabove stated my client is justified in informing your client through this notice that the terms of the completion of sale transaction by paying the balance sale consideration by my client became unenforceable by your client against my client. Therefore my client is entitled under law and on the principles of equity in demanding for the refund of Rs. 1,75,000/- (Rupees One Lakh Seventy Five Thousand only) from your client who enjoyed that huge sum almost for an year and that my client suffered on the other hand. Therefore please advise your client for the refund of Rs. 1,75,000/- (Rupees One Lakh Seventy Five Thousand only) to my client within a month from the date of receipt of this final reply notice in view of the existing circumstances stated hereinabove." Ex.A-8 dated 22-4-1986 reads as hereunder: "I am in receipt of your reply notice dated 8-4-1986. In this reply notice, you have desired me to recollect our personal discussion in the High Court in respect of my notice dated 13-2-1986. I remember that you have desired me to instruct my client to speak to your client personally and to settle the issue feasibly. I have promised you to instruct my client to see that your client is received respectably and also to make every effort to see that the sale is materialized. Pursuant to my instructions, my client also informed me that your client did not turn upto speak to him at all.

Result 4
Telangana High Court
M.Narsiah , Narsimha Reddy, And 93 ... vs Prl.Secy., Revenue Dept., La Dept. ...
Honourable Judges M.S.Ramachandra Rao
Date of Judgment: 6 November 2023
Segment Number (Approximate Page Number): 26
   
   
   

Their choice was limited: to accept the State compensation at the Collector's rate or a better offer given by State-sponsored private builder. There was inequality of bargaining power. The determination of land value was not at all in the control of farmers. They were groping in the dark. They had no clue that the land will be released. They accepted the unreasonable and unfair unilateral terms and lost their land. 71. The sale price of the land was determined by Respondent 11 and not by the market forces. Given a choice between retaining their land or selling it to the builder for the offered price, not a single farmer would have agreed to sell it. The circumstances forced the landowners to accede to the offer made by the 11th respondent. It is a proven case of unconscionable bargain exerted through undue influence and fraud, both. The sample "agreements" on record truly reveal that illiterate/semi-literate farmers were asked to sign the documents on dotted lines forcing them to sell out most of their MSR,J & KL,J ::39:: wp_37769_2017&batch ancestral holdings. The en masse "agreements" conclusively belie the plea of need-based bona fide sales." (emphasis supplied) It held that the State cannot force the landowners to surrender their title in favour of and at a price to be dictated by a private beneficiary. The notified public purpose was only a ruse to enable the private State sponsored builder to purchase the land at the lowest possible price for maximising the profiteering. 87. This decision of the Division Bench of the Punjab and Haryana High Court was approved by the Supreme Court in Uddar Gagan Properties Ltd. v. Sant Singh8. The Supreme Court declared: "18. There could be no objection to acquisition of land for a compelling public purpose nor to regulated development of colonies, but entertaining an application for releasing of land in favour of the builder who comes into picture after acquisition notification and release of land to such builder tantamounts to acquisition for a private purpose. It amounts to transfer of resources of poor for the benefit of the rich. It amounts to permitting profiteering at the cost of livelihood and existence of a farmer. This is against the philosophy of the Constitution and in violation of guaranteed fundamental rights of equality and right to property and to life.

Result 5
Allahabad High Court
S G S Construction & Developers Pvt.Ltd. ... vs U P Awas Avem Vikas Parishad & 4 Ors.
Honourable Judges Uma Nath Singh, Devendra Kumar Arora
Date of Judgment: 25 September 2013
Segment Number (Approximate Page Number): 2
   
   
   

The details of properties/lands under the mortgage are as follows: (i)Multi-storied Building/Hospital Complex on Plot No.1-2, Ambedkar Road, opposite Bus Depot, Ghaziabad, (U.P.) measuring 6009.36 sq.mts. together with the super structure constructed thereon in terms of the Sale Deed dated 14.10.1996; (ii)Land measuring 20234.25 sq.mts.(5 Acres) in Block No.K-Pratap Vihar, Sector-12, Ghaziabad (U.P.) together with the super structure constructed thereon in terms of the Lease Deed dated 15.09.1995 and the Conveyance Deed dated 03.02.1996; (iii)Land measuring 20234.25 sq.mts (5 Acres) in Block No.J-Pratap Vihar, Sector 12, Ghaziabad, U.P. together with the super structure constructed thereon in terms of the Lease Deed dated 15.09.1995 and the Conveyance Deed dated 03.02.1996; (iv)Land measuring 5.766 acres in Pratap Vihar, Sector-12, Ghaziabad (U.P.) together with the super structure constructed thereon in terms of the Sale Deed dated 11.04.1997; (v)Land measuring 2784.27 sq.mts. at 16, HIG Houses, bearing No.HI-H16 in H-Block, Pratap Vihar, Sector 12, Ghaziabad, (U.P) together with the super structure constructed thereon in terms of the Lease Deed dated 15.09.1995 and the Conveyance Deed dated 03.02.1996, and (vi)Land measuring 108 Bighas, 01 Biswas, 14 Biswancies and 13 Kachwancies within the revenue limits of village Akbarpur, Village Behrampur and Village Mirzapur, Pargana- Loni, district Ghaziabad (U.P.) purchased by respondent no.1 vide 136, the separate Sale Deeds. When the proceedings for recovery of loan initiated by respondent no.4 went in appeal before the Debt Recovery Appellate Tribunal, Delhi (in short 'the DRAT'), respondent no.3, the trust approached the petitioner proposing to sell the contiguous pieces of land measuring 63.45 acres, situated at village Akbarpur and Bherampur, Mirzapur and Mitepur, Tehsil and District Ghaziabad, U.P. The offer was made by the Trust because of being in the urgent need of money required to be deposited within an stipulated time, under the directions of the DRAT. Thus, it entered into an Agreement to Sell on 26.08.2010 with the petitioner for the sale of properties/lands as mentioned at serial no.

Result 6
Delhi High Court - Orders
Hridesh Kumar Pathak vs Bank Of Maharashtra
Honourable Judges Vipin Sanghi, Jasmeet Singh
Date of Judgment: 20 July 2021
Segment Number (Approximate Page Number): 1
   
   
   

% 20.07.2021 CM No. 21352/2021 Exemption allowed, subject to all just exceptions. The application stands disposed of. W.P.(C) 6774/2021 and CM No. 21351/2021 1. The submission of learned counsel for the petitioner is that the petitioner booked a flat with the builder, namely, Shubhkamna Buildtech Private Limited - which was coming up with the project "Shubhkamna City" in Greater Noida West, UP. The petitioner booked the flat by making a payment of Rs. 11,000/-. The petitioner has made further payments aggregating to Rs. 27,63,000/-. The builder took the loan for construction of the flats by entering into a Tripartite Agreement between the petitioner, the builder and the Bank. The Bank claims to have disbursed loan to the builder. The builder was obliged to return the amount, which has not been done. Even the flats have not been constructed. The petitioner has been left high and dry. The petitioner has lost his money to the tune of nearly Rs. 28 lakhs, and now the Bank is seeking to proceed against the petitioner to claim recovery of the amount disbursed to the builder. 2. The submission of learned counsel for the petitioner is that the process before the National Company Law Tribunal (NCLT) for Corporate Insolvency Resolution of the Builder Company is pending. There is a resolution plan formulated by the Insolvency Resolution Plan (IRP), the plan of Mr. Singhal and Mr. Sunil Agarwal was approved with 87.60% voting majority. Despite that, the respondent Bank is seeking to proceed against the petitioner before the DRT. 3. In our view, prima facie, it appears that the petitioner has been taken for a ride by the builder and it is not the petitioner, who has received the loan amount. The Bank has disbursed the loan amount to the builder, and in these circumstances, it remains to the seen as to whether, or not, the petitioner is at all liable. Moreover, the Resolution Plan appears to be on force and there would be no justification to subject the petitioner to the ongoing proceedings before the DRT at this stage. 4. We, accordingly, stay further proceedings in O.A No. 166/2019 pending before the DRT-II, Delhi, till further orders. 5. Issue notice to the respondent, returnable on 07.10.2021. VIPIN SANGHI, J JASMEET SINGH, J JULY 20, 2021 kd

Result 7
Punjab-Haryana High Court
Gopi Ram Jain vs Attar Singh
Date of Judgment: 24 January 2019
Segment Number (Approximate Page Number): 7
   
   
   

Due to recession in real estate market, the flats to be constructed by my client over the above land could not be sold. Whereas my client has got CLU from Govt. 9 of 33 CRM-M-14159-2017 of Haryana and had paid a sum of ` 47,49,907/- as CLU charges. My client had also paid a sum of ` 85,94,000/- on the above sale deed dated 11.9.2013. "4. That my client asked you on several occasion to pay a sum of ` 2,15,00,000/- (` Two crore fifteen lakh), which was received by you from my client. It is also pertinent that my client had issued the following post-dated cheques. The details of the same are as under : - Sr No. Cheque issued Particulars of cheques Amount (`) in favour of 1 Khajan Singh 005950 dated 10.9.2016 of Bank of 2,11,87,500/- Maharastra 2 Khajan Singh 005966 dated 10.9.2016 of Bank of 5,00,000/- Maharastra 3 Attar Singh 005953 dated 10.9.2016 of Bank of 4,30,62,500/- Maharastra 4 Jai Singh 005968 dated 10.9.2016 of Bank of 5,00,000/- Maharastra 5 Jai Singh 005956 dated 10.9.2016 of Bank of 2,08,75,000/- Maharastra 6 Urmila 005959 dated 10.9.2016 of Bank of 2,08,75,000/- Maharastra 7 Rajbala 005962 dated 10.9.2016 of Bank of 2,11,87,500/- Maharastra 8 Rajbala 005969 dated 10.9.2016 of Bank of 5,00,000/- Maharastra 9 Sunita 005965 dated 10.9.2016 of Bank of 2,11,87,500/- Maharastra 10 Sunita 005970 dated 10.9.2016 of Bank of 5,00,000/- Maharastra You are well aware that real estate market has great slab (sic, 'slump') and most of the builders including my client are having large number of unused land, unsold flats and plots etc. Therefore, the prospective buyers are not intended to purchase the flats in the above project of my client. Hence, my clients also approached you and requested you to get cancellation of the above sale deed No.1311 dated 11.9.2013 and get the actual and physical possession of the above land i.e. 27 Kanal 10 Marla and to return the above post dated cheques dated 10 of 33 CRM-M-14159-2017 10.9.2016 to my client. My client also requested you not to present the above post dated cheques for clearance with the banker of my client i.e. Bank of Maharastra.

Result 8
Gujarat High Court
Centre Point Welfare Association vs Nita International [Alongwith Special ...
Honourable Judges Ravi R. Tripathi
Date of Judgment: 8 March 2001
Segment Number (Approximate Page Number): 33
   
   
   

The developers/builders erected shops contrary to the provisions of law and by concealing these facts, transferred the shops as if they were erected in accordance with the approved plan and in accordance with law. 53. Mr.Bhatt, Learned Counsel appearing for the builder submitted that the claim is vague and cannot be entertained by this Court. He further submitted that the brochure published by the builder is only an advertisement of the proposed project. According to him it was nothing but an invitation to offer as contemplated in the Indian Contract Act. According to him, the written contract is in the form of possession receipt which is produced on the record and the reliance is placed on the said receipts. Shri Upendra Shah has filed an affidavit wherein in Para 6 he has stated that it is not true that the members were kept in the dark regarding the plans sanctioned by Ahmedabad Municipal Corporation. Shri Upendra Shah has denied that the representation was made by him that the premises are meant for commercial purpose and the averments made by Shri Hasmukh Shah in his affidavit are true. It is required to be noted at this juncture that Shri Hasmukh Shah in his affidavit in Para 3 has stated that "the said complex consists of 3 residential towers and 1 commercial complex". Therefore, it is clear that there was representation to the persons who purchased the property from this builder that the tower in question is a commercial complex and it is in view of this representation the members have purchased the property for their office purposes which is made clear in the affidavit on behalf of the association by Shri Ilyias Chataiwala. 54. In Para 16, the builder has come out with a case that the regulation for making provisions of common amenities and parking are ultra vires. Was he not aware when he submitted the plans for erection of the building? Why he did not challenge at the same time? This contention which he raised separately has been negatived by the Court for which we have made reference earlier. In Para 28 of the affidavit, the builder has come out with a case that if the premises allotted is found unauthorised and if the petitioners claim any compensation, they must hand over the possession of the property to these respondents, i.e. builders. Today the occupiers are not in possession.

Result 9
Allahabad High Court
Ajai Kumar Gupta vs Smt. Usha Sharma & Others
Honourable Judges Prakash Krishna
Date of Judgment: 24 August 2012
Segment Number (Approximate Page Number): 5
   
   
   

1 to 4. The appellant-defendant no.6 filed copies of the letter dated 15th of March, 1993 written by Smt. Malti Sharma to Ghaziabad Development Authority, of freehold application, of order granting freehold, of Challan, of Income Tax clearance, permission granted by the Ghaziabad Development Authority to sell and of various other documents as detailed in the judgment of trial Court. On the basis of the pleadings of the parties, the trial Court framed as many as sixteen issues for determination. They are as follows:- 1. Whether the suit has been under valued and the court fee paid is insufficient? 2. Whether the disputed sale deed dated 19th of September, 1995 executed by the defendant no. 5 in favour of defendant no.6, on the basis of the plaint allegations is null and void? If so, its effect. 3. Whether the alleged affidavit of plaintiff and defendant nos. 1 to 4 which was produced by the defendant no.5 before the defendant no.7 is forged and void document? 4. Whether the disputed Will dated 15th of February, 1987 which was allegedly executed by late Durga Datt Mahay and has been utilized by the defendant no.5 in favour of defendant no.6 is forged and void and is liable to be cancelled. 5. Whether the plaintiff is entitled to get the possession of the House No K.F. - 94, New Kavi Nagar, Ghaziabad after getting it vacated from the defendant no.6? 6. Whether the plaintiff is entitled to get partitioned his 1/5th share and take the possession of House No. K.F.-94, New Kavi Nagar, Ghaziabad? 7. Whether the plaintiff is entitled to recover damages @ Rs.7,000/- from the defendant no.6? 8. Whether the plaintiff is entitled to get the future damages @ Rs.1000/- from the defendant no.6? 9. Whether the suit is barred by time? 10. Whether the defendant no.6 is a bonafide purchaser? 11. Whether the defendant no.7 is an unnecessary party and if so its effect? 12. Whether the suit has been under valued and the court fee paid is insufficient? 13. Whether the suit is barred by principle of estoppel and acquiescence as stated in para 41 of the written statement 54Ka? 14. Whether the plaintiff is entitled to get any relief? 15. Whether any registered agreement dated 6th of June, 1981 was arrived at in between Durga Datt Mahay and defendant no.4? And if so, its effect.

Result 10
Bombay High Court
Nagarwala Constructions, A ... vs Mrs. Sunita Ashok Verma
Honourable Judges Rohit B. Deo
Date of Judgment: 13 August 2018
Segment Number (Approximate Page Number): 1
   
   
   

Heard Shri Shantanu Khedkar, the learned counsel for petitioners and Shri V.M. Aurangabadkar, the learned counsel 2 wp735of2015 for respondent. 2 Rule. Rule made returnable forthwith with consent. 3 The petitioner is assailing the judgment and order dated 17.7.2014 rendered by the National Consumer Disputes Redressal Commission ("National Commission") in Revision Petition 2669 of 2014 and 2670 of 2014 confirming the judgment and order dated 14.3.2014 rendered by the Maharashtra State Consumer Disputes Redressal Commission ("State Commission"). 4 Few facts may be noted:- The petitioner firm developed an apartment scheme named and styled "Impression Plaza". The respondent agreed to purchase apartment 202 situated on the 2 nd floor of the said scheme. 5 The respondent approached the District Consumer Forum at Nagpur interalia contending that the services rendered by the petitioner were deficient. It was contended, interalia, that the possession was grossly delayed, the construction was incomplete, the Hydraulic Capsule lift was not installed and several obligations which the petitioner - developer agreed to 3 wp735of2015 discharge by and under the agreement dated 25.11.1995, were not fulfilled. The District Consumer Court partially allowed the complaint and the operative part of the order dated 29.4.2006 reads thus: "O.P. No. 1 Builder is directed to execute the sale deed in favour of complainant with additional stamp duty and registration charges after 18.2.2011 (date of possession). 2. O.P. No. 1 (Builder) is directed to pay Rs. 50,000/- to the complainant towards expenditure incurred to complete the incomplete work. 3. O.P. No. 1 builder is further directed to pay Rs. 25,000/- towards rent incurred by complainant due to delay in delivery of possession of apartment. 4. O.P. No. 1 builder is directed to complete work of Hydraulic Capsule lift, install Backup Generator, Letter Box Room, Electric Meter Room of his own and provide permanent electric connection alongwith Transformer as well as domestic water connection and connection of overhead tank in apartment of complainant, as per Commissioner Report by proportionate recovery from complainant, after adjusting Rs. 10,000/- paid for Temporary Electric Connection and Rs. 5,000/- extra paid by complainant and to clear both the ramps.

Result 11
Gujarat High Court
Centre Point Welfare Association vs Nita International [Alongwith Special ...
Honourable Judges Ravi R. Tripathi
Date of Judgment: 8 March 2001
Segment Number (Approximate Page Number): 22
   
   
   

The plan that is shown in the Brochure does not resemble the plan approved by the Corporation. 32. It is clear that with a view to have a wrongful gain to himself and with a view to cause wrongful loss to the buyer, the builder entered into the agreement. If there was honest intention on the part of the builder he would not have put the occupiers in possession till the plans were sanctioned/approved by the Corporation and the building permission was granted by the Corporation. The builder would have requested the occupiers to wait till the plans are approved. He should not have handed over the possession before the building use permission was granted. After the property was constructed without the approval of the plans by the Corporation, the builder disposed of the property and that reveals that the act was done with an intention of causing wrongful gain to himself and wrongful loss to the buyers and thus the act was not bonafide. The law requires that there must be completion certificates and permission to occupy or use the building. Section 263 of the Act reads as under:- 263. Completion certificates, permission to occupy for use. (1). Every person shall, within one month after the completion of the erection of a building or the execution of any such work as is described in section 254, deliver or send or cause to be delivered or sent to the Commissioner at his office, notice in writing of such completion, accompanied by a certificate in the form prescribed in the bye-laws signed and subscribed in the manner so prescribed, and shall give to the Commissioner all necessary facilities for the inspection of such building or of such work and shall apply for permission to occupy the building. (2). No person shall occupy or permit to be occupied any such building, or use or permit to be used the building or part thereof affected by any work, until - (a). permission has been received from the Commissioner in this behalf, or, (b). the Commissioner has failed for twenty-one days after receipt of the notice of completion to intimate his refusal of the said permission."

Result 12
Gujarat High Court
Centre Point Welfare Association vs Nita International [Alongwith Special ...
Honourable Judges Ravi R. Tripathi
Date of Judgment: 8 March 2001
Segment Number (Approximate Page Number): 40
   
   
   

If there is a desire to convert the part of a building or the Building into a stall, shop, warehouse, godown or office not originally constructed for the use as such, and for such conversion, if changes are made then it would be considered as erection of a building as provided in sections 253 and 254 of BPMC Act. Thus, the question involved is of unauthorised construction. So far as entire tower (except 9th floor and shops in question) is concerned, as the erection is as per plan, but builder passed on the property to others specifically stating as office complex, the persons were using as office premises and on realising the consequences they put the property to residential use. No orders were passed with regard to that part of the building by the Division Bench. That was the change of user. 68. With regard to 9th floor, Mr. Hasmukh Shah has stated in para. 10 that "without prejudice to the rights and contentions which may be canvassed at the time of hearing of the petition, I most humbly and respectfully submit that without prejudice to the right of further appeal and subject to the final order of the Apex Court, the Builder is ready and willing to refund the cost of the premises received from the allottee. I further say that as per the new regulations, which are proposed before the State Government it may be possible that this structure can also be regularised in view of the permission for higher height." It is contended by him that to award compensation without going into the details of evidence, it would be premature decision and that too without a trial. It is further contended in the affidavit that allottees acquired the premises only for the purpose of investment and having usufructs fruits of the same either by way of rent or by way of using the premises for their own purpose can not claim any compensation. In such an eventuality, it would not be fair to burden the builder after lapse of 11 years. It is further averred that during the interregnum period some of the allottees have taken the advantage of price escalation. 69. Alongwith the affidavit xerox copy of the documents are placed on record. The brochure / agreement refers to builder, contractor and architect. In the agreement the builder M/s. Hasmukh Shah, a Partnership firm has shown itself as "the Builders" and sellers.

Result 13
Delhi High Court
Shri Satya Bhushan Kaura vs Smt. Vijaya Myne
Honourable Judges Gita Mittal
Date of Judgment: 22 December 2006
Segment Number (Approximate Page Number): 10
   
   
   

Since the main objection to the present application of the defendant is based on purported obligations of the plaintiff in this behalf, it becomes necessary to notice the stand of the defendant in the legal notices and the reply. 18. It would be useful to notice the remaining contents of the legal notice dated 22nd March, 2006 which is the first document wherein the defendant refused to abide by the agreement to sell and the cause thereof. The only reason for refusing to complete the transaction in favor of the plaintiff is set out in the notice dated 22nd March, 2006 was: 3. that since there is some misunderstanding between my client and the other legal heirs of the late husband of my client, hence my client is no more interested in selling the above said property to you for some personal reasons. 4. that to be precise, I state on behalf of my client that a civil suit for partition has been initiated before the Hon'ble Delhi High Court being suit No. 192/2006 titled as Brig. Deepak Myne v. Vinod Kumar Myne and Ors. in respect of the ancestral property bearing no/ a-317, defense Colony, New Delhi. 5. That my client has every apprehension that since there has arisen a dispute in the ancestral property, hence my client would be required to shift to the said property situated at Janakpuri, New Delhi. 6. That my client hereby undertakes and assures you that my client is ready and willing to return the amount of Rs. 15,00,000/- received from you Along with interest @ 12% p.a. Needless to mention that my client is further ready and willing to enhance the amount to such a reasonable level just to compensate you for the deal done by you as aforesaid. 19. The plaintiff repudiated this notice in its reply dated 4th April, 2006 and required the defendant to clear the position in respect of the following: 10. We hereby call upon you to clear the position in respect of the following: (i) the exact date when you applied for conversion of property from leasehold to freehold in DDA; (ii) the date when the said property has been converted into freehold; (iii) the likely time to be taken in getting the said permission in case it has not been converted into freehold so far; and (iv) the likely time by which you would register the sale deed in favor of our client.

Result 14
Punjab-Haryana High Court
Amitabha Sen And Anr vs Raj Singh Gehlot And Ors
Honourable Judges Rajan Gupta, Karamjit Singh
Date of Judgment: 10 July 2020
Segment Number (Approximate Page Number): 16
   
   
   

This apart as per section 2 of the 1983 Act, the builder had to submit a Deed of Declaration within 90 days of being granted part completion under the rules framed under 1975 Act and in case of failure to do so, penalties as provided under section 24-A would be attracted. The said section lays down that builder 17 of 23 who does not file Deed of Declaration within the period specified under section 2 would be punished with imprisonment which may extend to three years and also fine of not less than Rs.50,000/- and Rs.10,000/- for each day of continuing offence. From the record it is evident that part completion certificate was granted to the builder vide memo no.5DB-2002/927 dated 10.01.2002 under rule 16 of 1976 Rules. However, Deed of Declaration was submitted by the builder on 25.3.2009. It is inexplicable as to why authorities did not resort to the provisions of Section 24-A of the 1983 Act forthwith on expiry of the prescribed period which would be considered as date of offence under section 24-A of the Act. Said provision leaves no room for doubt that failure to submit the Deed of Declaration within the period prescribed attracts a penalty of Rs.50,000/- straight-way whereafter it is considered a continuing offence inviting a penalty of 10,000/- per day. The conclusion is inescapable that the submission of Deed of Declaration was intentionally delayed for so many years as there appears to be dishonest intention of the builder from the very inception of project to dupe the buyers by raising a commercial complex within the space sanctioned for group housing project. The design to develop a commercial complex was never divulged either by the builder or State authorities to the innocent buyers at any stage. An ambiguous term was used in the Builder-Buyer agreement that 8.0 acre was reserved for "future development". It is beyond comprehension how builder himself could reserve a part of the area (8.0 acres) out of 18.98 acres for future development. The builder acted in a manner as if he was not governed by any Enactment/Rules. In view of same, the reliance placed by the counsel for the builders repeatedly on Builder-Buyer agreement is absurd. An agreement between parties cannot override the law lay down to regulate urbanization and to prevent ill-planned and haphazard development.

Result 15
Delhi High Court
Shri M.K. Sharma & Anr vs Shri Sh Tek Chand & Others
Honourable Judges J.R. Midha
Date of Judgment: 15 July 2011
Segment Number (Approximate Page Number): 3
   
   
   

4.3 Section 22 of the Specific Relief Act, 1963. Power to grant relief for possession, partition, refund of earnest money, etc.- (1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908 ), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for- (a) possession, or partition and separate possession, of the property, in addition to such performance; or (b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or 1[ made by] him, in case his claim for specific performance is refused. (2) No relief under clause (a) or clause (b) of sub- section (1) shall be granted by the court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief. (3) The power of the court to grant relief under clause (b) of sub- section (1) shall be without prejudice to its powers to award compensation under section 21. 4.4. Section 55(1) of the Transfer of Property Act, 1882. Rights and liabilities of buyer and seller.- In the absence of a contract to the contrary, the buyer and the seller of immoveable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following, or such of them as are applicable to the property sold: (1) The seller is bound-- (a) to disclose to the buyer any material defect in the property 2[ or in the seller' s title thereto] of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover; (b) to produce to the buyer on his request for examination all documents of title relating to the property which are in the seller' s possession or power; (c) to answer to the best of his information all relevant questions put to him by the buyer in respect to the property or the title thereto; (d) on payment or tender of the amount due in respect of the price, to execute a proper conveyance of the property when the buyer tenders it to him for execution at a proper time and place; (e) between the date of the contract of sale and the delivery of the property, to take as much care of the property and all documents of title relating thereto which are in his possession as an owner of ordinary prudence would take of such property and documents; (f) to give, on being so required, the buyer, or such person as he directs, such possession of the property as its nature admits; (g) to pay all public charges and rent accrued due in respect of the property up to the date of the sale, the interest on all incumbrances on such property due on such date, and, except where the property is sold subject to incumbrances, to discharge all incumbrances on the property then existing.

Result 16
Gujarat High Court
Centre Point Welfare Association vs Nita International [Alongwith Special ...
Honourable Judges Ravi R. Tripathi
Date of Judgment: 8 March 2001
Segment Number (Approximate Page Number): 48
   
   
   

When these facts are established, the question to be decided by the Court is what should be the just compensation. If damages are claimed , claiming under various heads, which can be decided only after a trial, this Court may not entertain such claim. So far as just compensation is concerned, on the basis of amount received, with interest or present market value, it would be just and proper to direct the builder/developer to pay just compensation. 83. On behalf of the builder, it was submitted that so far as Shop No. 4 is concerned, it was purchased in the year of 1995 subsequent to the notice. The person who occupied the shop originally, knowing fully well that it is illegal, ought not to have transferred the shop or ought to have disclosed about the illegal construction. 84. The Association has filed an Affidavit and has placed on record the fact that the occupiers came to know that the construction was not permissible or in the space meant for parking and common amenities shops were constructed only during the hearing of the Special Civil Applications. Even, 9th floor was erected without permission of the Corporation and contrary to the provisions of law and therefore, they submitted that it is not correct to say that it was known to even the original occupier of Shop No. 4 that it was an unauthorised construction. 85. It was submitted on behalf of the builder, that the law of limitation applies to the proceedings and therefore, within a period of 3 years, action ought to have been taken. It is required to be noted that till Division Bench of this Court decided the matter on 24.8.2000, it was not known to the occupiers that the construction is unauthorised, illegal and contrary to the provisions of law and that the construction is carried out in the parking and the space meant for common amenities. The builder has not placed any material on record that these facts were within the knowledge of the occupiers, but, on the contrary, he has come out with a case that this space meant for common amenities and parking is contrary to the provisions of law and suggestion of the builder is that he was justified in erecting the shops. The period prescribed in the law of limitation will begin to run only when the occupiers came to know that the construction was unauthorised and when the Division Bench of this Court held that the construction was unauthorised.

Result 17
Orissa High Court
Bimalendu Pradhan vs State Of Odisha And Another ..... Opp. ...
Honourable Judges B.R.Sarangi
Date of Judgment: 1 July 2020
Segment Number (Approximate Page Number): 2
   
   
   

Similarly, W.P.(C) No. 3029 of 2020 has been filed by a builder and promoter of real estate with the following relief:- "It is therefore humbly prayed that, this Hon'ble Court may kindly be graciously be pleased to admit the writ application, issue notice to the opposite parties, and after hearing the parties further be pleased to quash the notices dt. 02/07/2019 as at Annexure-4 series." 2. The factual matrix of the case in W.P.(C) No. 8158 of 2019 is that the petitioner had filed a complaint case before the Real Estate Regulatory Authority, Bhubaneswar (in short "RERA") being Complaint Case No.55/2018 against a real estate builder, namely, M/s. Vipul Limited, Bhubaneswar alleging violations of several provisions of the Real Estate (Regulation and Development) Act, 2016 (in short "the Act") and, as such, the possession of the flat booked by him was not provided even after lapse of considerable time, as specified in the agreement. After hearing, the RERA by order dated 12.06.2018 allowed the complaint of the petitioner and issued several directions to the builder. Challenging the said order, the builder, M/s. Vipul Limited, Bhubaneswar preferred statutory appeal before the appellate tribunal, i.e., the Odisha Sales Tax Tribunal vide Appeal Case No. 7 (RE)/2018. But the said appeal could not be taken up for hearing, as because the designated tribunal suo motu refused to take up appeal matters or register fresh appeal cases on the pretext that the Chairperson of the regular Real Estate Appellate Tribunal has been appointed. 2.1 Similarly, the fact in W.P.(C) No. 11863 of 2019 is that the opposite party no.1-Asis Panda filed a complaint before the RERA with a prayer to refund the amount deposited by him, along with the compensation claimed to the tune of Rs.28,73,600/- with interest @ 18% per annum on the deposited amount of Rs.18,23,600/-. The said complaint was registered as Complaint Case No. 110 of 2018. Pursuant to notice, the builder- present petitioner- filed objection raising question of limitation and maintainability of the complaint petition and contended that the private limited company is ready to give possession of the flat to the complainant-opposite party no.1. But the RERA allowed the complaint case on 30.11.2018 and directed the petitioner to refund the payment of Rs.18,23,600.00 along with interest.

Result 18
Delhi High Court
Ashok Kamal Capital Builders vs State & Another
Honourable Judges Sanjiv Khanna
Date of Judgment: 27 August 2009
Segment Number (Approximate Page Number): 5
   
   
   

The said Disputed Document is a photo-copy of a property development Agreement by which the entire Property No.10, Alipur Road became the subject matter of a development project in which the entire development and construction work was to be carried on by the Builder at its own cost on a portion of the Property which was termed as the €•Builder's Site€–, and on the balance (termed as the €•Owner's site€–) the Builder was to construct residential accommodation for the owner as an independent contractor against payment. An Agreement of this nature is a mere license granted to the Builder to enter upon owner's property and to develop the same on payment of license fee, WPC Nos.2663 & 427/2005 Page 6 with an opportunity in the Builder to make profit from sale of the construction made on the Builder's Ste specifically allocated to the Builder. The Builder does not acquire any right in the said Property and no right in the said Property or in any portion thereof, is transferred to the Builder. In this behalf your attention is invited to a Division Bench Judgment of the Hon'ble Delhi High Court in the matter of €•R.K.Apartments Pvt. Ltd. & Anr Vs Smt. Aruna Bahree & Ors€– (77 (1999) Delhi Law Times (193) DB) where the Hon'ble Delhi High Court has exhaustively examined the nature of such Agreement and Builder's right in the property thereunder, and has clearly held that a Builder's possession of the property or a portion thereof under such Agreement €•was only by way of temporary measure for undertaking the construction work by them and the exclusive possession thereof in legal sense remained with the executants (owners) of the said Agreement.€– The said judgment further goes on to state that the Builder is not even entitled to any protection under Section 53A of the Transfer of Property Act, implying thereby, that there is no element of an agreement to transfer any rights in the Property to a Builder under such an arrangement.€– (emphasis supplied) 9. Similar response was given to notices under Sections 62 and 64 of the Act. Capital Builders also filed their response raising objections.

Result 19
Gujarat High Court
Centre Point Welfare Association vs Nita International [Alongwith Special ...
Honourable Judges Ravi R. Tripathi
Date of Judgment: 8 March 2001
Segment Number (Approximate Page Number): 76
   
   
   

It appears that at no point of time, the changes made in the plan were brought to the notice of the occupiers and in fact, the plans have been approved much after the persons were put in possession. It is an admitted fact by one of the partners of M/s. Hasmukh Shah, that the entire project including the office complex was not completed and the building use permission was not obtained, yet the builder/developer delivered possession of the premises booked by the persons concerned. Thus, it is clear that in violation of the provisions contained in the BPMC Act, the builder permitted the shopkeepers to occupy the premises and it was his duty not to permit anyone to occupy the building without the building use permission being granted. (Sec. 263 of the BPMC Act). The construction being unauthorised and demolished by the Corporation, the builder is liable to pay just compensation. 125. In the instant case, in view of the facts which are placed before the Court, it is proved beyond reasonable doubt that the builder collected money for erection of shops and the 9th floor which were erected in contravention of the provisions of the building regulations and were required to be demolished. The builder could not point out that the purchasers were made aware about unauthorised construction at the time when they were handed over possession of the premises. These material facts were suppressed. In a case like this where the trial court or the appellate court or the revisional court is required to examine the record and the Court is satisfied about illegal or unauthorised construction, then to avoid duplication of trials, the Court should make endeavour to do justice by awarding just compensation. Just compensation would mean amount received by the builder for erection of the building and the interest thereon. However, with regard to damages, if any claim is made for which further evidence may be required, then in such case for such part of the claim if Civil Suit is filed for damages then at the time of awarding damages in subsequent Civil Suit relating to the same matter, the court has to bear in mind the sum paid or recovered as compensation awarded by the Court. The instant case is not a case of breach of contract.

Result 20
Delhi High Court
Shashvat Nakrani vs Ashneer Grover
Honourable Judges Sachin Datta
Date of Judgment: 15 December 2023
Segment Number (Approximate Page Number): 16
   
   
   

21. It is further contended that if the condition of the payment of price is breached by the buyer then the seller is an unpaid seller under Section 45 of the Sale of Goods Act. It is contended that the remedies of an "unpaid seller" whose property has not passed, are prescribed under Section 46(2) of the Sale of Goods Act which provides for the specific remedies which are "in addition to the other remedies". 22. Reliance is also placed on Benjamin's Sale of Goods1, in which it has been stated as under:- €•Although the seller may have delivered the goods to the buyer, he may be entitled to recover possession from the buyer under an express term of the contract; or where, before the property in the goods has passed to the 11th Edition, paragraph 16-091 buyer, he justifiably terminates the contract on account of the buyer's breach. When the buyer has possession of the goods but not the property in them, he is the bailee of the seller who may be entitled, either under the terms of the contract or under the ordinary law of contract, to determine the bailment and demand the immediate return of the goods, if the buyer commits a breach of his obligations under the contract... ...€– 23. It is further contended that this remedy to seek return of goods is otherwise also provided in Section 65 of the Indian Contract Act, 1872 (hereinafter, the "ICA"), which will also apply in view of Section 3 of SOGA which states that the provisions of the ICA will apply, subject to inconsistency with the SOGA. Once a contract, which is voidable at the option of a party, has been rendered void, the consequences under Section 65 of ICA would ensue. 24. It is contended that the property in the plaintiff's shares cannot get transferred to the defendant without payment of the purchase consideration, given that the initial agreement, pursuant to which the plaintiff's shares were to be transferred to the defendant, was an "agreement to sell". 25. It is further submitted that the defendant has not filed any document/material to dislodge any onus which lies on him to prove that the cash was paid to the plaintiff "then and there".

Result 21
Telangana High Court
Ittireddy Mangavva vs State Of Telangana
Honourable Judges Chief Justice, M.S. Ramachandra Rao
Date of Judgment: 10 July 2020
Segment Number (Approximate Page Number): 25
   
   
   

The notified public purpose was only a ruse to enable the private State sponsored builder to purchase the land at the lowest possible price for maximising the profiteering. 93. This decision of the Division Bench of the Punjab and Haryana High Court was approved by the Supreme Court in Uddar Gagan Properties Ltd. v. Sant Singh7. The Supreme Court declared: "18. There could be no objection to acquisition of land for a compelling public purpose nor to regulated development of colonies, but entertaining an application for releasing of land in favour of the builder who comes into picture after acquisition notification and release of land to such builder tantamounts to acquisition for a private purpose. It amounts to transfer of resources of poor for the benefit of the rich. It amounts to permitting profiteering at the cost of livelihood and existence of a farmer. This is against the philosophy of the Constitution and in violation of guaranteed fundamental rights of equality and right to (2016) 11 SCC 378 MSR,J & KL,J ::35:: wp_3420_2019&batch property and to life. What cannot be done directly cannot be done indirectly also. 19. This apart, if the State is to be party to directly or indirectly select beneficiary of State largesse--which in present fact situation the State certainly is--objectivity and transparency are essential elements of exercise of public power which are required to be followed. It is patent that the State has enabled the builder to enter the field after initiation of acquisition to seek colonisation on the land covered by acquisition. In the absence of the State's action, it was not possible for the builder to enter into the transactions in question which was followed by withdrawal from acquisition. But for assurance from some quarters, the builder could not have made investment nor landowners could have executed the transactions in question. Such fraudulent and clandestine exercise of power by the State is not permitted by law.

Result 22
Telangana High Court
Vaddiraju Deepak Kumar, Warangal Dist. ... vs The State Of A.P., M.A. U.D., Hyd. 3 Ano.
Date of Judgment: 1 March 2023
Segment Number (Approximate Page Number): 59
   
   
   

On the contrary, in such eventuality, the Government would be entitled to the affected portion without the necessity of paying any compensation to the owner/builder, in view of the undertaking, from such person, secured by the Government at the time of regularization itself. To our mind, therefore, the aforesaid provision sufficiently safeguards the public interest and it is not, as if, that once construction is regularized within the building line on major roads, no development of the said road could take place at any future time. The said construction even if regularized and penalized would not make it immune from requirement of any part thereof for any public purpose including road widening in future. Deletion of clause (m) under G.O.Ms.No.112 dated 31.01.2008 is, therefore, sufficiently safeguarded by insertion of Rule 5(7) and thereby the contention to the contrary raised by the learned counsel for the petitioners is not sustainable. 100. We shall now deal with three other contentions of the learned counsel for the petitioners viz. the questions raised on behalf of two petitioners, who are before this Court in the capacity of pre-bono publico viz. WP.No.6562 of 2008 (a registered political party) and WP.No.8578 of 2008 (a society functioning for the betterment of Hyderabad). The basic contention advanced on behalf of the learned counsel for the petitioner in WP.No.6562 of 2008 is only with respect to the penal charges imposed on the bona fide purchasers and not on the owner or the builder. The detailed submissions of the learned counsel for the petitioners are already extracted above and the said argument is based upon the reading of Section 455-AA and the object of the Act to penalize the builder/owner. It is to be appreciated that when a builder or owner makes constructions, it is for the purchaser to make all reasonable enquiries, especially as the rights of the buyer and seller are set out in detail under Section 55 of the Transfer of Property Act. The theory of 'buyer beware' emerges from the said principles that diligent and reasonable enquiries must be made by the purchaser so that any patent defects could be discovered and if possible remedied before the buyer purchases the property.

Result 23
Delhi High Court
Shri Satya Bhushan Kaura vs Smt. Vijaya Myne
Honourable Judges Gita Mittal
Date of Judgment: 22 December 2006
Segment Number (Approximate Page Number): 11
   
   
   

20. In its rejoinder dated 10th April, 2006 the defendant nowhere set up the pleas which have been set up in the written statement. She merely sought to place reliance on a clause of the earlier agreement dated 18th April, 2004. So far as the obligation under the terms of the agreement dated 6th April, 2005 were concerned, the defendant stated thus: In fact, the correct factual position is that my client intended to sell the property bearing No. C-2/270, Janakpuri, New Delhi, measuring 325 sq. yds. through property dealer namely Sh. Joginder Pal. Initially the total sale consideration agreed to be paid was Rs. 99 lacs out of which but after negotiations, the same was agreed for Rs. 1,27,00,000/- and your client paid a sum of Rs. 17 lacs as earnest money to my client. However, till date, the balance amount has not been paid by your client to my client and neither your client ever showed any intentions to pay the said amount despite my client being constantly following up the matter both with the said property dealer and your client. 21. However, very cleverly in the written statement which has been filed before this Court, for the first time in its written statement, the defendant has tried to lay the responsibility and blame for getting the conversion of the property to freehold done upon the plaintiff and has stated thus: 13. xxxx On the contrary, it is submitted that the defendant time and again was calling upon the plaintiff as well as the said property dealer to get the conversion process expedited at the earliest so that the defendant could receive the balance amount at the earliest. The said request was made by the defendant to the plaintiff and the said local property dealer because it was the plaintiff and the said property dealer who assured the defendant that all the running in respect of the conversion process would be done by them.

Result 24
Punjab-Haryana High Court
Ramprastha Promoters And Developers ... vs Union Of India And Ors
Honourable Judges Tejinder Singh Dhindsa
Date of Judgment: 13 January 2022
Segment Number (Approximate Page Number): 16
   
   
   

The prayer noticed and the relief granted by the Authority in the respective petitions is extracted hereinbelow:- Lead Case No. Prayer Relief graned CWP No. 6688 I. To direct the I. The respondent is directed to pay of 2021 respondent to interest accrued so far at the immediately deliver the prescribed rate of 10.20% p.a., for possession. delay in handing over the possession from the due date of II. Direct the respondent possession i.e. 31.01.2016 till the to make the conveyance order of actual physical possession deed in favour of the of the allotted unit after receipt of complainant. occupation certificate within 90 days from the date of decision and III. Direct the respondent subsequent interest to be paid by the to pay interest for 10th of each subsequent month till delayed possession. the offer of actual physical possession. II. The complainant is directed to pay outstanding dues, if any, after 17 of 70 adjustment of interest for the delayed period. III. The respondent shall not charge anything which is not part of the agreement. CWP No.5776 I. To direct the I. The respondent is directed to pay of 2021 respondent to pay the the interest at the prescribed rate i.e. prescribed interest on the 10.20% per annum for every month entire amount paid by the of delay on the amount paid by the complainants from the complainant from due date of date of respective possession i.e. 10.04.2016 till the deposits till the date of offer of possession. The arrears of possession. interest accrued so far shall be paid to the complainant within 90 days II. Direct the respondent from the date of this order and to deliver immediate thereafter monthly payment of possession of the unit. interest till offer of possession shall be paid before 10th of subsequent month. II. The complainant is directed to pay outstanding dues, if any, after adjustment of interest for the delayed period. III. The respondent shall not charge anything from the complainant which is not part of the buyer's agreement. IV. Interest on the due payments from the complainant shall be charged at the prescribed rate @10.20% by the promoter which is the same as is being granted to the complainants in case of delayed possession charges.

Result 25
Allahabad High Court
M/S Ansal Properties & Infrastructure ... vs State Of U.P. And Others
Honourable Judges Sunil Ambwani, Kashi Nath Pandey
Date of Judgment: 30 August 2011
Segment Number (Approximate Page Number): 1
   
   
   

Hon'ble Kashi Nath Pandey, J. 1. We have heard Shri S.M.A. Kazmi, Senior Advocate assisted by Ms. Tahira Kazmi; Shri Navin Sinha, Senior Advocate assisted by Shri Nisheeth Yadav and Shri D.K. Tiwari; Shri D.S. Pandey; Shri Shiv Prakash Misra and Shri Suneel Rai for the petitioners. Shri Jafar Naiyer, Additional Advocate General assisted by Shri M.C. Tripathi, Additional Chief Standing Counsel appears for the State respondents. Shri Prem Chand appears for Nagar Nigam, Ghaziabad. Shri V.B. Misra appears for Ghaziabad Development Authority. 2.(A) In Writ Petition No. 254 of 2009, (M/s Ansal Properties & Infrastructure Ltd. Kaushambi, Ghaziabad through its Authorized Signatory Shri Pankaj Tiwari vs. State of UP and others), the petitioner has prayed for setting aside the order dated 12.12.2008 passed by the Special Secretary, Government of UP, communicating the decision of the State Government to the Vice Chairman, Ghaziabad Development Authority, Ghaziabad in response to his letter dated 4.9.2008 to construct Solid Waste Management Plant (SWMP) on the 14 acre land in village Dundahera, Pargana Loni, District Ghaziabad; directing him to invite objections under sub-section (3) of Section 13 of U.P. Urban Planning and Development Act, 1973 to advertise for holding public hearing for change of the land use of the selected site in village Dundahera for construction from 'residential', to 'Solid Waste Management (Dumping) Yard,' and to forward the proposal after disposing of the objections and suggestions to the Government. The petitioner has also prayed for a writ of mandamus not to give effect to the order dated 12.12.2008, and to restrain the respondents to proceed with the construction of SWMP.

Result 26
Delhi High Court
Deepak Singla vs Kanta Nagpal
Honourable Judges J.R. Midha
Date of Judgment: 31 October 2018
Segment Number (Approximate Page Number): 2
   
   
   

6. My client approached you by making a phone call during the end of March 2010 and remained you about the balance payment of Rs.4,60,00,000/-. 7. My client again remained you during first week of April, 2010, and you have informed my client that the money could not be arranged. 8. By your failure of paying the balance amount within the agreed period of 10th April, 2010, my client has to bear mental as well as financial loss. He had already made advance payment for purchase of other property in anticipation of receiving the balance amount from you which shall not be refunded if the timely payment is not made. The property is vacant and my client has to bear expenses related to electricity, water maintenance of garden/house, salaries of guards and so on. My client has also to bear a loss of Rs.2,00,000/- per month as rental of the property. No other option but to cancel the agreement and forfeit the advance money. Hence forth my client is free to sell his owned property to anybody whatsoever it may be at her own wish." (Emphasis supplied) 4. The plaintiff sent a reply dated 26th May, 2010 (Ex. DW-1/3) to the defendant in which the plaintiff claimed that he was suffering from slip disc since end of March, 2010 and was advised bed rest and not to move out of Shillong. The plaintiff further claimed that he was advised not to move for another 50-60 days. The plaintiff further stated that he would pay the balance sale consideration after recovery from the slip disc. The relevant portion of the reply dated 26th May, 2010 is reproduced hereunder: "5. That the para 5 is false as the agreement to sell dated 28- 01-2010 does not have any clause of cancellation. Rather para 3 of the page 5 of the agreement is in favour of my client which states that in case the first party fails to execute the sale deed in that case second party will have the right to get the Sale Deed executed through the Court of Law. 6. That my client is not keeping well as he is suffering from slip disc since end of March€Ÿ 2010 and was advised by the Doctors to have bed rest and not to move out of Shillong. These circumstances were, explained/informed to your client during the first week of the April 2010 directly by my client on phone and your client was kind enough to wait till he recovers. Now we are surprised to see the aforesaid notice.

Result 27
Allahabad High Court
M/S Ansal Properties & Infrastructure ... vs State Of U.P. And Others
Honourable Judges Sunil Ambwani, Kashi Nath Pandey
Date of Judgment: 30 August 2011
Segment Number (Approximate Page Number): 2
   
   
   

2. (B) In Writ Petition No. 59514 of 2009 (Crossings Infrastructure Private Limited and another vs. State of UP and others), the petitioner, a private company as a Lead Party of Consortium of various real estate developers and a private developer in category "A" with Ghaziabad Development Authority under a licence for developing Integrated Township at villages Dundahera, Akbarpur Behrampur, Tehsil and District Ghaziabad, has prayed for a direction to quash the notification dated 21.10.2009 issued by the Principal Secretary, Department of Housing and Urban Planning, Government of Uttar Pradesh, changing the user of 14 acres land in village Dundahera, District Ghaziabad from residential to Dumping Yard (Solid Waste Management) by amending the Ghaziabad Master Plan-2021. They have also prayed commanding the respondents not to change the user of the land in village Dundahera, Ghaziabad and not to construct/set up any kind of dumping yard next to the petitioner's group housing colony in the village. 2 (C) In Writ Petition No. 39389 of 2009 (Anil Kumar Tyagi vs. State of UP and others), the petitioner, a private individual claiming to be resident of village Dundahera, District Ghaziabad, has prayed for a writ of certiorari to quash the order dated 12.12.2008 passed by the Special Secretary, State of UP, Lucknow and for a writ of mandamus restraining the respondents from constructing Solid Waste Management Plant i.e. Dumping Yard over the residential land situate at Khasra No. 937, village Dundahera, Ghaziabad. 2.(D) In Writ Petition No. 64043 of 2009 (Ash Mohammad vs. State of UP and others), the petitioner, claiming to be permanent resident of village Dundahera and looking after the Graveyard/Kabristan situated at Plot Nos. 937 and 953 at village Dundahera, Ghaziabad, where he alleges that the people belonging to Muslim community have been performing last rituals, has prayed for a writ of certiorati quashing the impugned order dated 21.10.2009 passed by respondent no. 1 changing the land use of village Dundahera from residential to Dumping Yard (Solid Waste Management). The petitioner claimed that the plot nos. 397 and 953 are recorded as 'Kabristan' in the revenue record and 'Dargah Sayad Baba Chutko Shah Madersa Va Masjid Waqf Butwaliat Mohd. Ibrahim' is adjacently situated in plot no.

Result 28
Delhi High Court
Subhash Chand Aggarwal (Deceased) Thr ... vs Yashveer Singh & Anr
Honourable Judges J.R. Midha
Date of Judgment: 1 February 2018
Segment Number (Approximate Page Number): 5
   
   
   

Our clients have been waiting that your client will come to them for getting the execution of necessary documents in his favour by our clients, but he failed to contact my clients and with malafide intention sent the notice under reply just before the expiry date to avoid payment of the remaining amount. My clients never refused to sell the plot within the stipulated period. You are further informed that as per agreement my clients were not required to communicate to your client about the sale permission of the concerned authorities and my clients were always ready and competent to execute the required documents in favour of your client or his nominee. My client were waiting that your client will contact them and make the remaining payment of Rs.5,06,300/- by the stipulated date, but your client failed to contact my clients by the stipulated time and due to default on the part of your client and non payment of the outstanding amount, your client is guilty of frustrating the contact and his earnest money paid to our client is liable to be forfeited and the same stands forfeited.

Result 29
Gujarat High Court
Centre Point Welfare Association vs Nita International [Alongwith Special ...
Honourable Judges Ravi R. Tripathi
Date of Judgment: 8 March 2001
Segment Number (Approximate Page Number): 19
   
   
   

27. In the affidavit in para 23, the Association has pointed out that the builder has made an averment that "" "the builder is ready and willing to provide such deficit parking as well as common amenities area from this available FSI on the same plot of land" demonstrate the irregularities committed by him in the construction of the building."" It is further pointed out that "" "Similarly as regards the illegal construction of 9th floor, the averments "the builder is ready and willing to refund the cost of the premises received from the allottees" amounts to tacit admission on part of the deponent that the said portion of the building was constructed in violation of the plans sanctioned by the Corporation."" It was submitted by the Learned Counsel appearing for the Association as well as for Nita International that the builder has carried out illegal and unauthorised construction and has duped the innocent persons and therefore they must be awarded adequate compensation. 28. On behalf of the Association, it was pointed out that the original plans were produced before the Court for perusal and the xerox copies were also placed on record. For the first time they came to know that the tower no.1 having 8 storeys in the plan was sanctioned for residential purpose and thus the builder has committed fraud by stating that the property has been constructed for commercial use. Repeatedly before the Court, the Counsel was also asked to produce copy of the plans which according to the builder has shown to the members of the Association but no plans were placed on record. On behalf of the Association, Learned Counsel submitted that it is very unfortunate that the innocent shop keepers and the members put their hard earnings for buying office complex and/or shops relying on the words of the builders. In view of the fact that the brochure was published and relying on that major share was paid before the building was completed. The occupiers were put in possession on full payment. On behalf of the Association, it was submitted that all the shop keepers whose shops are demolished are uprooted and they cannot get themselves established in any central place. It was further submitted that persons who purchased office complexes are not in a position to use as such in view of the fact that it is a residential zone.

Result 30
Gujarat High Court
Kunvar Harijan Samudhayik Sahakari ... vs State Of Gujarat Thro Secretary & 7
Honourable Judges Ravi R.Tripathi, Mohinder Pal
Date of Judgment: 16 January 2014
Segment Number (Approximate Page Number): 5
   
   
   

In our view, to a situation like this the provisions of Section 55 and more particularly sub-section (6) Cl.(b) would be attracted. Claimant No.2 is undoubtedly a buyer and the expression 'buyer' as used in sub-section (6) of Section 55 also includes a person who has agreed to buy. So far as the buyer is concerned, sub-section (6) conceives of both the positions where the ownership is transferred to a buyer and where the ownership is yet to be transferred to him. Sub-clause (a) deals with a situation where the ownership of the property is passed to a buyer. As soon as that happens that buyer is entitled to the benefit of any improvement in, or increase in value of the property, and to the rents and profits thereof. In other words, he is entitled to all the C/SCA/142/2012 JUDGMENT attributes of full ownership of the property. However, where the agreement is yet to culminate into transfer of ownership but where the buyer is willing to perform his part of the contract, his rights are indicated in sub- clause (b) of sub-section (6) of S.55. The relevant sub- clause is as follows;- "55 (6) (b): Unless he has improperly declined to accept delivery of the property, to a charge on the property, as against the seller and all persons claiming under him, to the extent of the seller's interest in the property, for the amount of any purchase-money properly paid by' the buyer in anticipation of the delivery and for interest on such amount and, when he properly declines to accept the delivery, also for the earnest (if any) and for the costs (if any) awarded to him of a suit to compel specific performance of the contract or to obtain a decree for its rescission". The clause quoted above, contemplated a case that a buyer shall not decline to accept delivery improperly. If he is willing to accept delivery of the property then he is entitled to charge on the property as against the seller and all persons claiming against him to the extent of seller's interest in the property for the amount of any purchase money properly paid by the buyer in C/SCA/142/2012 JUDGMENT anticipation of the delivery and for interest on such amount.


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