299 😊 If Builder/Developer Cheats after paying Advance/Earnest Money, there are 3 remedies available

Описание: #builder #cheating #developer

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 12238 OF 2018
Pioneer Urban Land & Infrastructure Ltd. …Appellant
Versus
Govindan Raghavan …Respondent
WITH
CIVIL APPEAL NO. 1677 OF 2019
Pioneer Urban Land & Infrastructure Ltd. …Appellant
Versus
Geetu Gidwani Verma & Anr. …Respondent
J U D G M E N T
INDU MALHOTRA, J.
In Central Inland Water Transport Corporation Limited
and Ors. v. Brojo Nath Ganguly and Ors.,4 this Court held
that :
“89. … Our judges are bound by their oath to
‘uphold the Constitution and the laws’. The
Constitution was enacted to secure to all the
citizens of this country social and economic
justice. Article 14 of the Constitution guarantees
to all persons equality before the law and equal
protection of the laws. This principle is that the
courts will not enforce and will, when called upon
to do so, strike down an unfair and unreasonable
contract, or an unfair and unreasonable clause in
a contract, entered into between parties who are
not equal in bargaining power. It is difficult to give
an exhaustive list of all bargains of this type. No
court can visualize the different situations which
can arise in the affairs of men. One can only
attempt to give some illustrations.





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
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. The
Respondent – Flat Purchaser could not be compelled to take
possession of the flat, even though it was offered almost 2
years after the grace period under the Agreement expired.
During this period, the Respondent – Flat Purchaser had to
service a loan that he had obtained for purchasing the flat, by
paying Interest @10% to the Bank. In the meanwhile, the
Respondent – Flat Purchaser also located an alternate
property in Gurugram. In these circumstances, the Respondent – Flat Purchaser was entitled to be granted the
relief prayed for i.e. refund of the entire amount deposited by
him with Interest.
10. The Civil Appeals are accordingly dismissed, and the Final
Judgment and Order dated 23.10.2018 passed by the National
Consumer Disputes Redressal Commission is affirmed. The
appellant is granted a period of three months from today to
refund the amount to the respondent. All pending
Applications, if any, are accordingly disposed of.
.....................................J.
(UDAY UMESH LALIT)
.…...............………………J.
(INDU MALHOTRA)
New Delhi,
April 2, 2019.