As per case facts, the petitioner-company, Ambika Realcon Pvt. Ltd., significantly delayed handing over possession of units to the respondents, even after sale deeds were executed. The respondents sought and ...
No Acts & Articles mentioned in this case
CWP-26869-2025 (O&M) and connected cases 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
112 CWP-26869-2025 (O&M)
Date of decision: 10.09.2025
Ambika Realcon Pvt. Ltd. ..... Petitioner
VERSUS
National Consumer Disputes Redressal Commission and others
..... Respondents
113 CWP-26889-2025 (O&M)
M/s Ambika Realcon Pvt. Ltd. ..... Petitioner
VERSUS
National Consumer Disputes Redressal Commission and others
..... Respondents
114 CWP-26891-2025 (O&M)
Ambika Realcon Pvt. Ltd. ..... Petitioner
VERSUS
National Consumer Disputes Redressal Commission and others
..... Respondents
115 CWP-26895-2025 (O&M)
Ambika Realcon Pvt. Ltd. ..... Petitioner
VERSUS
National Consumer Disputes Redressal Commission and others
..... Respondents
CWP-26869-2025 (O&M) and connected cases 2
CORAM: HON’BLE MR. JUSTICE GURVINDER SINGH GILL
HON’BLE MR. JUSTICE DEEPINDER SINGH
NALWA
Present: Mr. Munish Gupta, Advocate
for the petitioner (in all petitions)
*****
DEEPINDER SINGH NALWA, J.
1. All the present writ petitions involve common question of
law based on common set of facts and therefore, are being disposed of by
one and common judgment.
2. Challenge in the abovesaid writ petitions is to the impugned
order dated 20.03.2025 (Annexure P-6) passed by the State Consumer
Disputes Redressal Commission, U.T Chandigarh (hereinafter referred to
as the ‘SCDRC’) and order dated 10.06.2025 (Annexure P-8) passed by
the National Consumer Disputes Redressal Commission, New Delhi
(hereinafter referred to as the ‘NCDRC’), whereby respondents-
complainants were held entitled for compensation by way of interest @
9% per annum from the date of due date of possession onwards till the
date of delivery of the possession on the entire received sale consideration
in respect of the units in question along with lumpsum compensation to
the tune of Rs.75,000/- on account of mental agony and harassment,
deficiency in providing service and also compensation to the tune of
Rs.35,000/- on account of litigation cost.
CWP-26869-2025 (O&M) and connected cases 3
3. Brief facts of the case are that respondents-complainants, in
the abovementioned writ petitions, despite the fact that they are in
possession of their respective units and sale deeds have also been
executed between the parties, yet, the petitioner-company has failed to
pay the compensation for the period of delay in delivery of possession of
the said units. The respondents-complainants had filed complaints before
the SCDRC claiming compensation on account of delay in delivery of
possession of the respective units by the petitioner-company. The details
of date of possession, execution of sale deeds, payments made by
respondents-complainants, due date of possession and possession
delivered, are reproduced in the chart below:-
CC No. Complaint
No.60/2024
(CWP-26891-
2025)
Complaint
No.62/2024
(CWP-26889-
2025)
Complaint
No.63/2024
(CWP-26869-
2025)
Complaint
No.64/2024
(CWP-26895-
2025)
Project Florence Park,
New
Chandigarh
Florence Park,
New
Chandigarh
Florence Park,
New
Chandigarh
Florence Park,
New
Chandigarh
Unit No. ORCHID/B/1
201
ORCHID/B/30
1
ORCHID/B/30
2
ORCHID/B/12
04
Area of
unit
1400 sq.ft.
carpet area
and 2080 sq.
ft. super area
1400 sq.ft.
carpet area and
2080 sq. ft.
super area
1640 sq.ft.
carpet area and
2480 sq. ft.
super area
1400 sq.ft.
carpet area and
2080 sq. ft.
super area
Total cost
as
mentioned
in
agreement
8154266.00 &
7731943.20
(after credit
note)
8144928.00 &
7723104.00
(after credit
note)
10487284.00 &
9852160.00
(after credit
note)
8745984.00 &
8216292.00
(after credit
note)
Amount
paid
Full and final
payment paid
Full and final
payment paid as
Full and final
payment paid as
Full and final
payment paid
CWP-26869-2025 (O&M) and connected cases 4
as admitted in
letter dated
29.06.2022,
Annexure C-6
admitted in
letter dated
16.09.2022,
Annexure C-6
admitted in
letter dated
22.07.2022,
Annexure C-6
as admitted in
letter dated
20.08.2022,
Annexure C-6
Agreement
dated
13.04.2018
(Ann. C-3)
16.05.2018
(Ann. C-3)
29.01.2021
(Ann. C-3)
18.01.2021
(Ann. C-3)
Due date
of
possession
30.09.2020
(Clause 7.1 of
agreement)
30.09.2020
(Clause 7.1 of
agreement)
30.09.2021
(Clause 7.1 of
agreement)
30.09.2021
(Clause 7.1 of
agreement)
Possession
delivered
on
30.06.2022 21.10.2022 24.07.2022 12.10.2022
Sale deed
executed
25.01.2023
(Ann. R-1/6)
Not placed on
record
Not placed on
record
29.09.2022
(Ann. R-1/7)
Delay in
delivery of
possession
21 months as
mentioned in
the complaint.
18 months as
mentioned in
the complaint.
10 months as
mentioned in
the complaint.
13 months as
mentioned in
the complaint.
4. The petitioner-company duly filed separate written statements
in the complaints filed by respondents-complainants. The objections taken
by the petitioner-company in the complaints filed by respondents-
complainants are reproduced below:-
“
(i) that the complainants have concealed material facts
from this Commission;
(ii) that the complainants being investors did not fall
within the definition of consumers;
(iii) that permission to file joint respective complaints
has not been filed by the complainants and as such, the same are
liable to be dismissed on this ground alone;
(iv) that this Commission is not vested with territorial
and pecuniary jurisdiction to decide these complaints;
CWP-26869-2025 (O&M) and connected cases 5
(v) that in the face of arbitration clause contained in the
agreements to settle all the dispute arising out of the unit in
question through arbitration, this Commission is having no
jurisdiction to entertain these complaints;
(vi) that although as per Clause 7.1 of the agreement,
possession of the unit in question was to be delivered, as per dates
given in the chart above, yet, it was delayed because the opposite
party suffered force majeure circumstances due to COVID-19;
(vii) that the Competent Authority vide circular dated
28.10.2020, Annexure R-1/1, granted extension of period of 6
months for ongoing project, where the completion date was due
on or before 15.03.2020 and, as such, the said period of 6 months
was to be added in the period of delivery of possession of the units
in question to the complainants;
(viii) that occupation and partial completion certificates
in respect of the unit/tower in question have been received by
opposite party from competent authorities and thereafter
possession of the respective units were handed over to the
complainants and even sale deeds also stood executed;
(ix) that delay if any was on the part of the comp etent
authorities in issuing occupation and partial completion
certificates, therefore, for that the company cannot be held
responsible;
(x) that at the time of obtaining NOC from the op posite
party, the complainants have recorded their satisfaction
regarding amenities, additional area etc.;
(xi) that once possession of the respective units have
been taken over without any protest and also the sale deeds have
also been executed, now the complainants are stopped from
claiming any compensation, as the same stands waived off by
them;
CWP-26869-2025 (O&M) and connected cases 6
(xii) that the principle of estoppels and waiver are
completely applicable to the present cases after execution of sale
deeds and the complainants cease to be consumer;
(xiii) that whatever amount was charged from the
complainants was strictly as per terms and conditions of the
respective agreements;
(xiv) that the complainants were defaulters in making
payment, which resulted into delay in delivery of possession of the
respective units;
(xv) that since the complainants have made payment in
installments and major chunk of amount has been paid at the time
of delivery of possession, therefore, they cannot seek interest on
the entire amount paid from the date of payment;
(xvi) that the complaint is bad for misjoinder and
nonjoinder of necessary parties, as the financial institutions from
which loan has been obtained has not been made party.”
5. On consideration and the evidence led by the respective
parties, the SCDRC vide order dated 20.03.2025 allowed the complaints
filed by respondents-complainants. As per the order of the SCDRC,
respondents-complainants were held entitled for interest @ 9% per annum
from the due date of possession onwards till the date of delivery of the
possession on the entire received sale consideration in respect of the units
in question within a period of 30 days from the date of receipt of a
certified copy of the order. The respondents-complainants were also held
entitled for compensation to the tune of Rs.75,000/- on account of mental
agony, harassment and deficiency in service along with cost of litigation
CWP-26869-2025 (O&M) and connected cases 7
to the tune of Rs.35,000/-. Relevant extract of the order dated 20.03.2025
passed by the SCDRC is reproduced below:-
“
In Consumer complaint bearing no.60 of 2024, the
opposite party is directed to :-
(i) To pay to the complainants, compensation by w ay of
interest @ 9% p.a. from 29.06.2021 (due date of possession as
discussed above) onwards till 30.06.2022 (date of delivery of
possession) on the entire received sale consideration in respect of
the unit in question, within a period of 30 days from the date of
receipt of a certified copy of this order, failing which the entire
accumulated amount of compensation from 29.06.2021 to
30.06.2022 aforesaid shall carry interest @ 12 % p.a. from the
date of default till this entire accumulated amount is paid to the
complainants.
(ii) To pay lumpsum compensation to the tune of
Rs.75,000/- for causing them (complainants) mental agony &
harassment, deficiency in providing service and also cost of
litigation to the tune of Rs.35,000/-, within a period of 30 days,
from the date of receipt of a certified copy of this order, failing
which the said amounts shall carry interest @ 9% p.a. from the
date of default till realization.
In Consumer complaint bearing no.62 of 2024, the
opposite party is directed to :-
(i) To pay to the complainants, compensation by w ay of
interest @ 9% p.a. from 29.06.2021 (due date of possession as
discussed above) onwards till 21.10.2022 (date of delivery of
possession) on the entire received sale consideration in respect of
the unit in question, within a period of 30 days from the date of
receipt of a certified copy of this order, failing which the entire
accumulated amount of compensation from 29.06.2021 to
CWP-26869-2025 (O&M) and connected cases 8
21.10.2022 aforesaid shall carry interest @ 12 % p.a. from the
date of default till this entire accumulated amount is paid to the
complainants.
(ii) To pay lumpsum compensation to the tune of
Rs.75,000/- for causing them (complainants) mental agony &
harassment, deficiency in providing service and also cost of
litigation to the tune of Rs.35,000/-, within a period of 30 days,
from the date of receipt of a certified copy of this order, failing
which the said amounts shall carry interest @ 9% p.a. from the
date of default till realization.
In Consumer complaint bearing no.63 of 2024, the
opposite party is directed to :-
(i) To pay to the complainants, compensation by w ay of
interest @ 9% p.a. from 30.09.2021 (due date of possession as
discussed above) onwards till 24.07.2022 (date of delivery of
possession) on the entire received sale consideration in respect of
the unit in question, within a period of 30 days from the date of
receipt of a certified copy of this order, failing which the entire
accumulated amount of compensation from 30.09.2021 to
24.07.2022 aforesaid shall carry interest @ 12 % p.a. from the
date of default till this entire accumulated amount is paid to the
complainants.
(ii) To pay lumpsum compensation to the tune of
Rs.75,000/- for causing them (complainants) mental agony &
harassment, deficiency in providing service and also cost of
litigation to the tune of Rs.35,000/-, within a period of 30 days,
from the date of receipt of a certified copy of this order, failing
which the said amounts shall carry interest @ 9% p.a. from the
date of default till realization.
In Consumer complaint bearing no.64 of 2024, the
opposite party is directed to :-
CWP-26869-2025 (O&M) and connected cases 9
(i) To pay to the complainants, compensation by w ay of
interest @ 9% p.a. from 30.09.2021 (due date of possession as
discussed above) onwards till 12.10.2022 (date of delivery of
possession) on the entire received sale consideration in respect of
the unit in question, within a period of 30 days from the date of
receipt of a certified copy of this order, failing which the entire
accumulated amount of compensation from 30.09.2021to
12.10.2022 aforesaid shall carry interest @ 12 % p.a. from the
date of default till this entire accumulated amount is paid to the
complainants.
(ii) To pay lumpsum compensation to the tune of
Rs.75,000/- for causing them (complainants) mental agony &
harassment, deficiency in providing service and also cost of
litigation to the tune of Rs.35,000/-, within a period of 30 days,
from the date of receipt of a certified copy of this order, failing
which the said amounts shall carry interest @ 9% p.a. from the
date of default till realization.
6. A perusal of the order passed by the SCDRC would show it
has been held by SCDRC that in the absence of any express discharge
voucher or consent received from respondents-complainants by the
petitioner-company before execution of the sale deed qua waiver or
delayed compensation, the objection raised by the petitioner-company
that respondents-complainants have waived off the compensation at the
time of execution of the sale deed cannot be accepted. It was also held
that even the contents of the sale deed does not clarify, as to whether, the
delay waived of is regarding execution of sale deed or relating to delay in
delivery of possession of the said unit or of the delayed compensation.
CWP-26869-2025 (O&M) and connected cases 10
Relevant extract of order dated 20.03.2025 passed by the SCDRC is
reproduced below:-
“Compensation for the period of delay in delivery of
possession of the respective units:-
14. It may be stated here that since admittedly the
complainants are in possession of their respective units and sale
deeds have also been executed between the parties, therefore, the
only question which needs to be decided by this Commission is, as
to whether, the complainants are entitled to get any compensation
for delay in delivery of possession or not? It may be stated here
that though the opposite party has raised objection to the effect
that since the complainants themselves have waived off any
compensation at the time of execution of sale deeds and they have
specifically agreed vide clause 1 (h) that vacant and physical
possession of the said Unit has been handed over by the Vendor to
the Vendee(s) herein at the time of execution of this Deed of
Conveyance/Sale Deed and the Vendee(s) acknowledges having
taken over the possession of the same to the Vendee(s)'s complete
satisfaction with respect to amongst others, the quality, design,
specifications & materials of the earthquake resistant structure
constituting the building of which the said Unit is integrated/
integral part and the Vendee(s) agree/s that the Vendee(s) shall
have no claim whatsoever against the Vendor with regard to any
defects or deficiency in construction, quality of materials used or
on account of any delays, yet, in our considered opinion this
objection is not sustainable, in the absence of any express
discharge voucher or consent received from the complainants by
the opposite party before execution of the sale deeds qua waiver
of delayed compensation. Even otherwise, a bare perusal of
contents of clause I (h) of the said deed (ibid) also did not clarify,
as to whether, the delay waived off, is regarding execution of sale
CWP-26869-2025 (O&M) and connected cases 11
deed or relating to delay in delivery of possession of the said unit
or of delayed compensation. A similar question has already been
dealt with by this Commission in Madan Lal Kansal Vs. Dlf
Homes Panchkula Pvt. Ltd., CC No.805 of 2017 decided on 14
March, 2019 wherein also despite the fact that sale deed has been
executed, compensation for the period of delay in delivery of
possession was awarded by this Commission. The builder
challenged the said order dated 14.03.2019, by way of filing
Appeal No.783 of 2019 before the Hon'ble National Commission.
However, the order dated 14.03.2019 stood upheld by the Hon'ble
National Commission vide order dated 22.07.2022, with
modification and only the rate of interest on delayed
compensation was decreased from 12% p.a. to 9% p.a.
Furthermore, in the present case, there is nothing on
record that any express discharge voucher qua non payment of
compensation for the period of delay in delivery of possession as
envisaged in Clause 7.6 of the agreement was furnished by the
complainants to the opposite party. Under similar circumstances,
in 'P. Dasa Muni Reddy Vs. P. Appa Rao, 1974 AIR (SC) 2089,
the Hon'ble Supreme Court of India in Para 13 has held as
under:-
"....13. Abandonment of right is much more than mere
waiver, acquies-cence or laches. The decision of the High Court
in the present case is that the appellant has waived the right to
evict the respondent. Waiver is an intentional relinquishment of a
known right or advantage, benefit, claim or privilege which
except for such waiver the party would have enjoyed. Waiver can
also be a voluntary surrender of a right. The Doctrine of waiver
has been applied in cases where landlords claimed forfeiture of
lease or tenancy because of breach of some condition in the
contract of tenancy. The doctrine which the courts of law will
recognise is a rule of judicial policy that a person will not be
CWP-26869-2025 (O&M) and connected cases 12
allowed to take inconsistent positions to gain advantage through
the aid of courts. Waiver sometimes partakes of the nature of an
election. Waiver is consensual in nature. It implies a meeting of
the minds. It is a matter of mutual intention. The doctrine does not
depend on misrepresentation. Waiver actually requires two
parties, one party waiving and another receiving the benefit of
waiver. There can be waiver so intended by one party and so
understood by the other. The essential element of waiver is that
there must be a voluntary and intentional relinquishment of a
right. The voluntary choice is the essence of waiver. There should
exist an opportunity for choice between the relinquishment and an
enforcement of the right in question. It cannot be held that there
has been a waiver of valuable rights where the circumstances
show that what was done was involuntary. There can be no waiver
of a non-existent right. Similarly, one cannot waive that which is
not one's as a right at the time of waiver. Some mistake or
misapprehension as to some facts which constitute the underlying
assumption without which parties would not have made the
contract may be sufficient to justify the court in saying that there
was no consent......”
In this view of the matter, objection taken by the opposite
party in this regard rejected.”
7. Further, the objection raised by the petitioner-company as to
the delay in delivery of possession was on account of force majeure
circumstances due to Covid-19, it has been held by the SCDRC that the
petitioner-company had failed to offer and deliver possession of the units,
not only within the promised time frame, but even beyond the extended
period of nine months that was granted due to Covid-19 pandemic. Thus,
the petitioner-company had demonstrated a clear deficiency in its service.
CWP-26869-2025 (O&M) and connected cases 13
8. Aggrieved against the order dated 20.03.2025 passed by the
SCDRC, the petitioner-company filed first appeals before the NCDRC,
New Delhi. The appeals came up for consideration before the NCDRC
on 10.06.2025 and were accordingly dismissed, by upholding the order
passed by the SCDRC.
9. A perusal of the order dated 10.06.2025 passed by the
NCDRC would reveal that as per the NCDRC, the letter dated 24.06.2022
will not act as waiver on the part of respondents-complainants and will
not attract the principle of estoppel as contended. It was also held that the
abovesaid letter, by no means, can be construed as a waiver or agreement
between the parties for waiving the entitlement of delayed compensation.
Even if, the sale deeds have been executed between the parties, it does not
debar respondents-complainants from the legitimate entitlement of
delayed compensation. Relevant extract of the order dated 10.06.2025
passed by the NCDRC is reproduced below:-
“In the present cases, possession of the respective units
have already been given and Sale Deeds have also been executed
between the parties. The main issue is with respect to the delay
compensation. Vide impugned order, the State Commission has
directed the payment of delay compensation from the due date of
possession till the date of possession in all the cases. Counsel for
the Appellants submits that as per the Agreement, the committed
date of possession on 30.09.2020 but due to Covid, certain
extensions were granted and hence, he does not dispute the due
date of possession as recorded in the impugned order passed by
the State Commission. He further admits that the possession in
CWP-26869-2025 (O&M) and connected cases 14
question was handed over on 30.06.2022 and the fact that the
partial Occupancy Certificate was handed over on 29.06.2022
and final Occupancy Certificate on 29.07.2022. It is also admitted
that prior to the date of possession i.e. 29.07.2022, there was no
other offer of possession. The only ground on which payment of
delay compensation has been objected to by the Appellants herein
is that (a) the Complainants have entered into a settlement vide
which, they have waived off all their rights and hence, no delay
compensation is payable. Extract of one such letter dated
24.06.2024 in FA/290/2025 is reproduced below:
Date-24-06-2022
To,
The Commercial Department,
Ambika Realcon Private Limited,
Chandigarh.
Subiect:- Request to issue No Dues Certificate for unit no.
FP/ORCHID/B/1201
Dear Sir,
With Reference to my apartment bearing No.
FP/ORCHID/B/1201, I hereby request you to kindly issue a "No
dues certificate" of my apartment, as all accounts (payables and
receivables) with the company, as per the terms and conditions of
the agreement dated 13-Apr-2018 stands settled and now nothing
is due against each other and its includes future claims also
except maintenance charges, as explained hereinafter. I am fully
aware and satisfied with the various facilities which the company
is providing at present. Besides it, I am fully satisfied with the
construction and finishing quality in my flat. I understand that
proper maintenance of any society is very important for safe,
comfortable and happy living and I undertake that I will pay my
CWP-26869-2025 (O&M) and connected cases 15
maintenance charges fixed/demanded by the company or its
nominee, in timely manner.
Yours Faithfully.
(Vivek Bhardwaj & Promila Raita)"
5. Similar letters are there in other cases. In their written
version before the State Commission, they have objected the
Complaint inter-alia on following grounds:
"(xi) that once possession of the respective units have been
taken over without any protest and also the sale deeds have also
been executed, now the complainants are stopped from claiming
any compensation, as the same stands waived off by them;
(xii) that the principle of estoppels and waiver are
completely applicable to the present cases after execution of sale
deeds and the complainants cease to be consumer,
6. The State Commission has considered at length various
objections of the Opposite Party (Appellant herein) with respect
to the territorial jurisdiction, pecuniary jurisdiction, the
Complainants not being consumers, force majeure circumstances
etc. and have passed appropriate orders. These aspects have not
been contested by the Appellants herein before us in the Appeals
and the only issue raised is entitlement of delay compensation to
the Respondents with respect to the delay compensation. The issue
of entitlement of delay compensation has already been dealt with
in detail by the State Commission in its order and the relevant
paras are reproduced below:
"Compensation for the period of delay in delivery of
possession of the respective units:-
CWP-26869-2025 (O&M) and connected cases 16
14. It may be stated here that since admittedly the
complainants are in possession of their respective units and sale
deeds have also been executed between the parties, therefore, the
only question which needs to be decided by this Commission is, as
to whether, the complainants are entitled to get any compensation
for delay in delivery of possession or not? It may be stated here
that though the opposite party has raised objection to the effect
that since the complainants themselves have waived off any
compensation at the time of execution of sale deeds and they have
specifically agreed vide clause 1 (h) that vacant and physical
possession of the said Unit has been handed over by the Vendor to
the Vendee(s) herein at the time of execution of this Deed of
Conveyance/Sale Deed and the Vendee(s) acknowledges having
taken over the possession of the same to the Vendee(s)'s complete
satisfaction with respect to amongst others, the quality, design,
specifications & materials of the earthquake resistant structure
constituting the building of which the said Unit is
integrated/integral part and the Vendee(s) agree/s that the
Vendee(s) shall have no claim whatsoever against the Vendor
with regard to any defects or deficiency in construction, quality of
materials used or on account of any delays, yet, in our considered
opinion this objection is not sustainable, in the absence of any
express discharge voucher or consent received from the
complainants by the opposite party before execution of the sale
deeds qua waiver of delayed compensation. Even otherwise, a
bare perusal of contents of clause 1(h) of the said deed (ibid) also
did not clarify as to whether the delay waived off is regarding
execution of sale deed or relating to delay in delivery of
possession of the said unit or of delayed compensation. A similar
question has ready beet dealt with by this Commission in Madan
Lal Kansal vs DLF Homes Panchkula Pvt. Ltd., CC No. 805 of
2017 decided on 14 March, 2019 wherein also despite the fact
that sale deed has been executed, compensation for the period of
CWP-26869-2025 (O&M) and connected cases 17
delay in delivery of possession was awarded by this Commission.
The builder challenged the said order dated 14.03.2019, by way
of filing Appeal No. 783 of 2019 before the Hon'ble National
Commission. However, the order dated 14.03.2019 stood upheld
by the Hon'ble National Commission vide order dated 22.07.2022,
with modification and only the rate of interest on delayed
compensation was decreased from 12% p.a. to 9% p.a.
Furthermore, in the present case, there is nothing on
record that any express discharge voucher qua non payment of
compensation for the period of delay in delivery of possession as
envisaged in Clause 7.6 of the agreement was furnished by the
complainants to the opposite party. Under similar circumstances,
in 'P. Dasa Muni Reddy Vs. P. Appa Rao, 1974 AIR (SC) 2089,
the Hon'ble Supreme Court of India in Para 13 has held as under-
"....13. Abandonment of right is much more, than mere
waiver, acquiescence or laches. The decision of the High Court in
the present case is that the appellant has waived the right to evict
the respondent. Waiver is an intentional relinquishment of a
known right or advantage, benefit, claim or privilege which
except for such waiver the party would have enjoyed. Waiver can
also be a voluntary surrender of a right. The Doctrine of waiver
has been applied in cases where landlords claimed forfeiture of
lease or tenancy because of breach of some condition in the
contract of tenancy. The doctrine which the courts of law will
recognise is a rule of judicial policy that a person will not be
allowed to take inconsistent positions to gain advantage through
the aid of courts. Waiver sometimes partakes of the nature of an
election. Waiver is consensual in nature. It implies a meeting of
the minds. It is a matter of mutual intention. The doctrine does not
depend on misrepresentation. Waiver actually requires two
parties, one party waiving and another receiving the benefit of
waiver. There can be waiver so intended by one party and so
CWP-26869-2025 (O&M) and connected cases 18
understood by the other. The essential element of waiver is that
there must be a voluntary and intentional relinquishment of a
right. The voluntary choice is the essence of waiver. There should
exist an opportunity for choice between the relinquishment and an
enforcement of the right in question. It cannot be held that there
has been a waiver of valuable rights where the circumstances
show that what was done was involuntary. There can be no waiver
of a non-existent right. Similarly, one cannot waive that which is
not one's as a right at the time of waiver. Some mistake or
misapprehension as to some facts which constitute the underlying
assumption without which parties would not have made the
contract may be sufficient to justify the court in saying that there
was no consent......
In this view of the matter, objection taken by the opposite
party in this regard Chan stands rejected.
15. Now the question arises, as to what compensation
should be granted to the complainants for delay in delivery of
possession of the unit in question? It may be stated here that
Consumer Protection Act has been made to safeguard the
consumer rights in the present case failure of opposite party to
offer and deliver possession of the unit in question, in a timely
manner as discussed above amounts to deficiency in service. In
the case titled as Lucknow Development Authority M.K. Gupta
[1994] 1 SCC 243, the Hon'ble Supreme Court discussed about
the extent of the jurisdiction of the Consumer Fora to award just
and reasonable compensation for the harassment and agony
suffered by a consumer. In DLF Homes Panchkula Pvt. Ltd.
Versus Himanshu Arora, Civil Appeal No. 11097 of 2018, decided
on 19 November, 2018 under similar circumstances, the Hon'ble
Supreme Court of India has upheld the order of the Hon'ble
National Commission awarding Interest @ 9% p.a. for the period
of delay in delivery of actual physical possession. Thereafter also,
CWP-26869-2025 (O&M) and connected cases 19
similar rate of interest i.e. 9% p.a. was granted by the Hon'ble
Supreme Court in DLF Homes Panchkula (P) Ltd. Versus Sushila
Devi, Civil Appeal Nos. 2285-2330 of 2019, decided on 26
February, 2019 by making reference to the earlier order passed
by it in Himanshu Arora's case (supra). Furthermore, in Nagesh
Maruti Utekar Vs. Sunstone Developers Joint Venture, Consumer
Case No. 12 of 2017 decided on 04 May 2022 also, the Hon'ble
National Commission awarded interest @9% p.a. from the
committed date of delivery till actual physical possession is
delivered. In Shreya Kumar & 11 Ors Vs. M/s Ansal Housing &
Construction Ltd. & 3 Ors., Consumer Case No. 1021 of 2017,
decided on 05 May 2022, the Larger Bench of the Hon'ble
National Commission has awarded interest @ 9% p.a. from the
committed date of delivery till actual physical possession is
delivered.
Under these circumstances, if we grant interest @9% p.a.
to the complainants on the entire amount deposited by them
towards their on respective units from due dates onwards, as
discussed above, till possession of the unit in question has
actually been delivered to them, after deducting the period of 9
months due to COVID-19, that will meet the ends of justice.
Complainants are consumers even after execution of sale
deeds:-
16. As far as objection taken by the opposite party to the
effect that the complainants ceased to be consumers, after
execution of sale deeds, it may be stated here that this objection
does not merit acceptance, in view of law laid down by the
Hon'ble Supreme Court in the case of Debashis Sinha vs M/s
R.N.R Enterprise, Civil Appeal No.3343 of 2020 February 9 2023,
wherein it was held that the mere fact that possession has been
taken over by the consumer and sale deed has been registered,
CWP-26869-2025 (O&M) and connected cases 20
cannot forfeit his/her right to claim the services promised by the
project proponent."
7. After careful consideration of all the facts and
circumstances of the case and considering that the possession was
given to the Complainant with valid Occupancy Certificate after a
delay beyond the committed date, hence, the
Complainants/Respondents herein are entitled to delay
compensation. The so called Agreement/Letter dated 24.06.2022
cited will not act as a waiver on the part of the Complainants and
will not attract the principal of estoppel as contended. The above
stated letter by no means can be construed as any waiver or
agreement between the parties for waiving the entitlement of
delay compensation. Even the contention of the Appellant that
Sale Deeds have since been executed, will not come to their help
as subsequent execution of Sale Deeds also does not debar the
Complainants from their legitimate entitlement of delay
compensation. Counsel for the Appellant placed reliance on the
following judgments: CC No.203 of 2018 Sh. Om Prakash Gupta
& Anr. Vs. M/s Ansal Properties & Industries dated 04.05.2021
and V. Anantha Raju & Anr. Vs. T.M. Narasimhan & Ors.
(2021) 17 SCC 165.
8. After a careful consideration of the orders of the State
Commission, we are of the considered view that the State
Commission has passed a well-reasoned order and we find no
reason to interfere with the same. There is no illegality, material
irregularity or jurisdictional error in the orders of the State
Commission. Hence, the said order is upheld and accordingly, all
the four First Appeals covered under this order are dismissed.”
10. Aggrieved against the order dated 20.03.2025 (Annexure P-6)
passed by the SCDRC and the order dated 10.06.2025 (Annexure P-8)
CWP-26869-2025 (O&M) and connected cases 21
passed by the NCDRC, the petitioner-company has filed the present writ
petitions.
11. The only argument addressed before us by the learned
counsel appearing on behalf of the petitioner-company is that once,
respondents-complainants had made a request for issuance of No Dues
Certificate for unit and had mentioned that all the accounts with the
petitioner-company, as per terms and conditions of agreement, stand
settled and there was nothing due from the petitioner-company, as such,
respondents-complainants are not entitled to claim any compensation on
account for delay in giving the possession of the unit to respondents-
complainants by the petitioner-company.
12. We have heard the learned counsel appearing on behalf of the
petitioner-company and gone through the documents available on the
record.
13. A perusal of the facts of the present cases would show that it
is an admitted fact that there was a delay in giving the possession of unit
to respondents-complainants by the petitioner-company. The petitioner-
company applied for Occupation and Partial Completion Certificates in
the year 2022 only i.e. after a significant delay of about two years from
the committed due date of possession. It is well settled law that it is
builder’s responsibility to compensate delay in giving possession of the
unit. Request for No Dues Certificate or issuance of No Dues Certificate
CWP-26869-2025 (O&M) and connected cases 22
does not absolve the builder from his responsibility to give possession of
the unit to the buyers in time. It is also well settled law that there cannot
be any estoppel against the law. Buyers are entitled for compensation on
account of delay in delivery of the possession of the unit/units.
14. Reliance has been placed upon case titled as Santhosh
Narasimha Murthy and Ors. Vs. M/s Mantri Castles Private Limited
and Anr, 2025(2) SCC 243, decided on 25.07.2023, wherein it has been
held by the Hon’ble Apex Court that home buyers are entitled to
compensation for delayed possession. The relevant contents are
reproduced as follows:-
“10. Clause 6.1 of the agreement stipulates that the
developer shall construct for the purchaser, the apartment which
was contracted for and possession would be handed over in terms
of Annexure B-1. Clause 6.4 contains a force majeure clause.
Annexure B-1 contains the assured date of possession.
11. For the purpose of these proceedings, counsel
appearing on behalf of the home buyers and the first respondent-
developer have proceeded on the basis of the dates of possession
as indicated in Annexure P-14 to the Civil Appeal. Having due
regard to Clause 14.5 of the agreements, each of the sixty-two
home buyers is entitled to compensation at the rate of Rs. 3 per
square foot per month for the delay of nearly six to seven years in
granting possession. The compensation shall be payable for each
home buyer from the date on which possession was assured (as
reflected in Annexure P-14) until 19 February 2023 when
possession was handed over by the developer.
12. The NCDRC has awarded interest at the rate of 6%
per annum on the deposits made by the complainants with effect
CWP-26869-2025 (O&M) and connected cases 23
from 28 February 2018 till the offer of possession. This has been
questioned on behalf of the home buyers on the ground that they
are entitled to interest with effect from the respective dates on
which the deposit of consideration was made with the developer.
Moreover, it has been submitted that interest at the rate of 6% per
annum must be enhanced to 9% per annum.
13. On the other hand, counsel for the developer
submits that the developer had, in addition, paid EMIs on behalf
of the home buyers.
14. The home buyers have submitted that the EMIs were
paid in terms of the scheme which was agreed upon and were paid
only for some of the home buyers.
15. The home buyers are entitled to interest with effect
from the assured dates of possession until the offer of possession
was made on 19 February 2023.
16. In the facts of the present case, we affirm the award
of interest at the rate of 6% per annum by the NCDRC subject to
the modification that interest shall be payable with effect from the
respective dates prescribed in the agreements for delivery of
possession.
17. We accordingly allow the appeal filed by the home
buyers in the following terms :
(i) The home buyers shall be paid compensation on
account of delayed possession at the rate of Rs 3 per square foot
per month in terms of clause 14.5 of the buyer agreements.
(ii) For computing the amount due under clause 14.5 in
terms of (i) above, the assured dates of possession, as reflected in
Annexure P-14, shall be the dates with effect from which the
payment would be computed. The compensation shall be payable
until 31 January 2023.
(iii) The home buyers shall be entitled to interest at the rate
of 6% per annum with effect from the respective dates fixed for
handing over possession, as reflected in Annexure P-14; and
CWP-26869-2025 (O&M) and connected cases 24
(iv) The amounts which are due and payable in the above
terms shall be paid over on or before 30 September 2023.
18. The appeal is accordingly allowed.”
15. Further, in case of Wg. Cdr. Arifur Rahman Khan and
Aleya Sultana and Ors. Vs. DLF Southern Homes Pvt. Ltd. (now
known as BEGUR OMR Homes Pvt. Ltd. and Ors. 2020 (16) SCC
512, decided on 24.08.2020, the Hon’ble Supreme Court has held that
flat purchasers who have obtained possession or executed deeds of
conveyance do not lose their right to make a claim for compensation for
delay in handing over of the flats. Relevant contents are reproduced as
follows:-
“24. A failure of the developer to comply with the
contractual obligation to provide the flat to a flat
purchaser within a contractually stipulated period amounts
to a deficiency. There is a fault, shortcoming or inadequacy
in the nature and manner of performance which has been
undertaken to be performed in pursuance of the contract in
relation to the service. The expression ‘service in
Section 2
(1) (o) means a service of any description which is made
available to potential users including the provision of
facilities in connection with (among other things) housing
construction. Under Section 14(1)(e), the jurisdiction of the
consumer forum extends to directing the opposite party
inter alia to remove the deficiency in the service in
question. Intrinsic to the jurisdiction which has been
conferred to direct the removal of a deficiency in service is
the provision of compensation as a measure of restitution
to a flat buyer for the delay which has been occasioned by
the developer beyond the period within which possession
CWP-26869-2025 (O&M) and connected cases 25
was to be handed over to the purchaser. 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.
xxxx xxxx xxxx xxxx
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
CWP-26869-2025 (O&M) and connected cases 26
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 India (2012) 5 SCC 359 , 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. To the extent
the transfer of site with developments in the manner and to
CWP-26869-2025 (O&M) and connected cases 27
the extent indicated earlier was a part of the transaction,
the appellant Company has indeed undertaken to provide a
service. Any deficiency or defect in such service would
make it accountable before the competent Consumer
Forum at the instance of consumers like the respondents.”
The developer in the present case has undertaken to
provide a service in the nature of developing residential
flats with certain amenities and remains amenable to the
jurisdiction of the Consumer Fora. Consequently, we are
unable to subscribe to the view of the NCDRC that flat
purchasers who obtained possession or executed Deeds of
Conveyance have lost their right to make a claim for
compensation for the delayed handing over of the flats.
xxxx xxxx xxxx xxxx
55. For the above reasons we have come to the
conclusion that the dismissal of the complaint by the
NCDRC was erroneous. The flat buyers are entitled to
compensation for delayed handing over of possession and
for the failure of the developer to fulfil the representations
made to flat buyers in regard to the provision of amenities.
The reasoning of the NCDRC on these facets suffers from a
clear perversity and patent errors of law which have been
noticed in the earlier part of this judgment. Allowing the
appeals in part, we set aside the impugned judgment and
order of the NCDRC dated 2 July 2019 dismissing the
consumer complaint. While doing so, we issue the following
directions:
(i) Save and except for eleven appellants who
entered into specific settlements with the developer and
three appellants who have sold their right, title and interest
under the ABA, the first and second respondents shall, as a
measure of compensation, pay an amount calculated at the
rate of 6 per cent simple interest per annum to each of the
CWP-26869-2025 (O&M) and connected cases 28
appellants. The amount shall be computed on the total
amounts paid towards the purchase of the respective flats
with effect from the date of expiry of thirty-six months from
the execution of the respective ABAs until the date of the
offer of possession after the receipt of the occupation
certificate;
(ii) The above amount shall be in addition to the
amounts which have been paid over or credited by the
developer at the rate of Rs 5 per square foot per month at
the time of the drawing of final accounts; and
(iii) The amounts due and payable in terms of
directions (i) and (ii) above shall be paid over within a
period of one month from the date of this judgment failing
which they shall carry interest at the rate of 9 per cent per
annum until payment.
56. The civil appeals are accordingly allowed in
the above terms.
57. Pending application(s), if any, shall stand
disposed of.”
16. A perusal of the request made by respondents-complainants
for grant of No Dues Certificate would show that it nowhere mentions
that respondents-complainants have waived off their right to claim
compensation on account of delay in giving possession of the unit/units.
17. A High Court while exercising its power of judicial review
against the order passed by the NCDRC, exercises a limited revisional
jurisdiction and interferes only in the cases where, there is an error
apparent in law or there is an illegality, impropriety or perversity in the
impugned order.
CWP-26869-2025 (O&M) and connected cases 29
18. Since no defect in the order passed by the NCDRC has been
pointed out during the course of arguments and there is no evidence to
hold that the orders suffer from any illegality, impropriety or perversity or
incorrect appreciation of the evidence brought on record, we find that
there are no sufficient grounds existing in the present writ petitions to call
for any interference in the order dated 20.03.2025 (Annexure P-6) passed
by the SCDRC and the order dated 10.06.2025 (Annexure P-8) passed by
NCDRC. Accordingly, the present writ petitions are dismissed in limine.
19. Pending miscellaneous application(s), if any, also stand(s)
disposed of.
20. A photocopy of this order be placed on the files of the other
connected cases.
(GURVINDER SINGH GILL) (DEEPINDER SINGH NALWA)
JUDGE JUDGE
10.09.2025
Ramandeep Singh
Whether speaking / reasoned Yes /No
Whether Reportable Yes/No
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