NCDRC: Non-Compliance Of Pollution Level Guidelines Cannot Be Used As Force-Majeure To Cause Inordinate Delay In Possession Of Flats

A division bench of the National Consumer Dispute Redressal Commission (NCDRC), comprising presiding members Ram Surat Ram Maurya and Dr. Inder Jit Singh, held that while the consumers can be expected to reasonably wait for the possession of the flat/unit, there must not be an inordinate delay. The Commission rejected the Developers’ contention of non-compliance of the National Green Tribunal’s guidelines as a reason for the delay. It was held that the developers cannot be allowed to reap the benefits of their own wrongdoing. Brief Facts: The complainant, Mr. Naresh Garg, applied to the Opposite Party, CHD Developers, for re-allotment of a unit near the Golf Course Avenue in Gurgaon by way of an application. The flat was earlier allotted to one Sh. Sarvesh Kumar Tiwari. The Opposite Party permitted the re-allotment, after all the necessary formalities and payment of charges, to the complainant. An apartment’s buyer agreement was also entered into between the parties and as per that, the possession of the unit was to be delivered by the opposite party within 42 months from the date of agreement. However, the Opposite Party failed to deliver the possession within the stipulated time. Hence, the Complainant filed this consumer complaint praying for a refund of the amount Rs. 79,37,091/- with an interest and damages to the extent of Rs. 5 Lakhs. The Opposite Party contended that the complainant would not fall under the definition of ‘consumer’ as Section 2(1)(d)(i) of the Consumer Protection Act of 1986. This is because the property was purchased for investment and re-sale. Further, it was contended that the Complainant inflated the claim to bring the complaint within the pecuniary jurisdiction of NCDRC. The delay was caused after a notification released by the National Green Tribunal, Delhi due to which the Opposite Party had to stop all construction activities for a few months. Further delay was also caused due to compliance issues. Observations of the Commission: The NCDRC observed that the Opposite Party failed to place on-record the updated status of construction as well as the likely date of its completion. Reliance was placed on the Supreme Court’s decision in Wg. Cdr. Arifur Rahman Kgan and Aleya Sultana and Ors. vs DLF Southern Homes Pvt. Ltd. & ors. (2020) 16 SCC 512, wherein it was held that failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within the contractually stipulated period, amounts to deficiency. As held in the case of Kolkata West international City Pvt. Ltd. vs Devasis (2020) 18 SCC 613, a buyer can be expected to wait for possession for a reasonable period but not an indefinite period. The contention of the Opposite Party that Mr. Naresh is not a consumer was rejected as no evidence was produced to corroborate the same. Perusal of the evidence showed that there was no blanket order of the NGT to stop construction activities. The direction to stop construction activities was only where the construction was being carried out in violation of the MOEF Guidelines 2010. The bench remarked that the Opposite Party cannot be allowed to reap benefits of his own wrongdoing of non-compliance. No material was presented by the Opposite Party to know the exact nature of ban on construction activity under the NGT’s order and the period for which such ban was in force. In light of the aforementioned discussion, the NCDRC held that in this case, there was an inordinate delay in handling over the possession of the flat by the Opposite Party. The complaint cannot be made to wait for an indefinite time and suffer financially. Hence, the Opposite Party was ordered to refund the amount given by the Complainant along with compensation in the form of simple interest at 9% per annum from the date of each payment till the date of refund. Case:Naresh Garg and Sons vs CHD Developers Ltd. Case No.:Consumer Case No. 1753 of 2018 Counsel for the Complainant:Mr. Gagan Gupta Counsel for the Opposite Party:N.A. Click Here To Read/Download Order

NCDRC: Non-Compliance Of Pollution Level Guidelines Cannot Be Used As Force-Majeure To Cause Inordinate Delay In Possession Of Flats

Smita Singh

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