Civil Appeal Format Supreme Court.

Format of Civil Appeal in Supreme court against order of NCDRC.

SYNOPSIS

That the Petitioners herein,are filing the present appeal under Section ______ of the Consumer Protection Act, 20______challenging the order dated ______20______, passed by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi (hereinafter 'the National Commission') in the Consumer Complaint No. ______of 20______.The National Commission while considering the case of the Petitioners, the home-buyers, inter-alia seeking compensation for delayed possession, created a paradoxical formula for determining due date of possession which has an effect of waiving off the entire period of delay leading to negligible or zero compensation to the complainants and depriving the complainants of justifiable quantum of compensation of delay in possession.

Further, the National Commission has, on erroneous grounds, denied the relief of refund of amounts collected by the Respondent-Builder in the name of Legal Fee. The reason relied upon by the National Commission is that the Advocates Act 1961 does not prescribe any formula and that the Complainants could have objected to the Developer and arranged their own advocates. The National Commission did not appreciate the dominant position of the Respondent-Builder and helplessness of the home-buyers at the time of possession-cum-registration of their apartments.

That it is stated that the yardstick followed by the National Commission as well as this Hon'ble Court while considering and deciding the issue of delayed compensation is to award compensatory interest from the due date of possession till the date of offer of possession after grant of the occupation certificate. Said principle of law has been acknowledged and reiterated by the National Commission at para 7 of the impugned order dated ______20______wherein reliance is placed on the judgment passed by this Hon'ble Court in the case of ______ reported in (20______) 16 SCC 512. However, the

National Commission, while considering the issue of compensation for delayed possession in the present case adopted a formula as indicated at para 8 of the impugned order dated ______22, being totally perverse and liable to be interfered with by this Hon'ble Court. The date of possession in individual cases is to be guided by respective agreement(s) and in terms of the Annexure P-4.

On the issue of compensatory rate of interest, it is submitted that the delay in present case is over 4 years coupled with harassment at the hands of the Respondent Builder. The National Commission while awarding delayed compensation in the shape of interest @ 6 % per annum on the deposits of the complainants, placedreliance onthe decision reported in [(20______) 16 SCC 512] titled as ______& Ors. ______& Ors. and the decision dated ______20______ passed by this Hon'ble Court in the case of______&______. in the Civil Appeal No. ______ of 20______. However, the National Commission ignored the fact that delay in above mentioned cases ranged between 2-3 years, whereas delay in present case is over - years coupled with harassment of the Petitioners (home-buyers).

LIST OF DATES
20______ The Opposite Party started constructing the project in the name and style of '______' in Bangalore in the year 20______. The project has total number of ______ flats - divided into 8 blocks and approximately having ______ flats per block. The said project was widely advertised by the Opposite Party during first and second quarter of 20______, through publication of brochure, advertisement on the website and on-site advertisements - during site visit and otherwise. The complainants, on the basis of such advertisements made by the Opposite Party and tall promises for providing world class living, with modern facilities; approached the Opposite Party, in second half of the year 20______. Amounts to the tune of approximately 20 percent of the total sale consideration, was paid by the complainants initially, for booking flats in Fiesta Homes at Bangalore
_______20______ The complainants earnestly believed that the Opposite Party shall abide by the terms and conditions stipulated in the agreements/ contracts, dated ______20______, and also comply with timely delivery of flats, in the manner agreed as per Schedule 'D' (specifications) of the construction agreement dated ______.20______ - which eventually did not happen.

______, 20______ The Opposite Party undertook to deliver possession of flats on or before the month of ______20______ with a grace period of six months which too expired in September, 20______ and possession being not handed over to the complainants by the said due date thereafter causing enormous delay
______.20______ The Opposite Party got Occupancy Certificate for the project in question.
______, 20______ Possession on fit-out given to some of the complainants, without addressing deficiencies, delay compensation and other grievances and prayers raised in the instant consumer complaint. Such grievances remain unaddressed and unattended till date.

______20______ Consumer complaint ______of 20______ filed before NCDRC for and on behalf of all the applicants having same interest and common grievance against the same Opposite Party, namely - M/s ______. as well as on behalf of numerous other consumers so interested in the instant complaint, under section 12 (1) (c) of the Consumer Protection Act, ______ against 'unfair trade practice' adopted by the Opposite Party, and gross 'deficiency in services' committed by the said Opposite Party.
______.20______ The NCDRC passed orders to admit the Consumer Complaint u/s 12 (1)(c) of the CPA, 19______

_______20_______The Complainants filed IA/6015/20_______ bringing to the attention of the National Commission high-handedness and coercive techniques deployed by the Respondent Builder in making the complainants agree to withdraw from the complaint.

_______.20_______ After having recorded in the past proceedings, the service of the notice in Dasti modeas well as deemed service by way of denial of receiving the NCDRC notice sent by postage and having taken note of repeated non-appearance of the Opposite Party, the NCDRC yet again directs to serve fresh notice to the Opposite Party. Civil Appeal _______of 20_______was filed before Hon'ble Supreme Court impugning the NCDRC order dated _______.20_______.

_______.20_______The Hon'ble Supreme Court sets aside the NCDRC order dated _______.20_______ and withdrew the rights of the Respondent-Builder to file any written statement. The Hon'ble Court also directed that the parties for mediation. Mediation meetings commence at Bangalore Mediation Centre and no meaningful outcomes reached.

_______20_______The National Commission records that the mediation has failed and directs the Complainants to file their evidence by way of affidavit.

_______.20_______The National Commission posts the matter to be heard by Division Bench.

_______20_______ One more mediation is attempted under directions from the National Commission which too ultimately fails in reaching an amicable settlement.

_______20_______The National Commission permits the Respondent-Builder to file written submissions.

_______20_______Petitioners submitted additional written arguments.

_______.20_______Parties were heard and judgement reserved. The National Commission allows IA/_______/20_______ and IA/_______/20_______ for impleadment of fresh parties. The IA/_______/20_______ and IA/_______/20_______ having effect of deletion of parties from the Memo of Parties, are also allowed.

_______20_______Amended memo of parties filed by the Petitioners before the National Commission.

_______20_______The National Commission partly allowed the consumer complaint no. _______of 20_______filed by the Petitioners herein. The operative portion of the order is extracted and quoted hereunder:-

'In view of the aforesaid discussions, the complaint is partly allowed. The opposite parties are directed to pay delayed compensation in the shape of interest @ 6% per annum on the deposit of the complainants from due date of possession as determined for each buyer in the manner as provided in paragraph-8 of the judgement till the date of offer of possession and construct Green Jogging Track and Convenience Store, within a period of two months from the dare of this judgement.'
(Impugned Judgment/ Order)

_______20_______Hence, this civil appeal.

IN THE SUPREME COURT OF INDIA
(CIVIL APPELLATE JURISDICTION)
(SECTION 67 OF THE CONSUMER PROTECTION ACT, 20_______)

CIVIL APPEAL NO. OF 20_______

(APPEAL UNDER SECTION 67 OF THE CONSUMER PROTECTION ACT, 20_______ AGAINST THE ORDER DATED _______PASSED BY THE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI IN CC NO. _______OF 20_______)

BETWEEN:
                                                            POSITION OF PARTIES

IN THE MATTER OF:
PARTICULARS                                 IN THE NCDRC IN         THIS COURT
1. _______                                     COMPLAINANT NO. 1     PETITIONER NO. 1

VERSUS

                                                    IN THE NCDRC                 IN THIS COURT
1. _______                                    OPPOSITE PARTY NO. 1     RESPONDENT NO. 1

(RESPONDENTS 1 IS CONTESTING; REST OF THE RESPONDENTS ARE PROFORMA RESPONDENTS)

To,
THE HON'BLE CHIEF JUSTICE OF INDIA
& HIS COMPANION JUDGES OF THIS HON'BLE COURT

THE HUMBLE CIVIL APPEAL ON BEHALF OF THE APPELLANTS ABOVE-NAMED:

MOST RESPECTFULLY SHOWETH:

1. That the Petitioners herein, are filing the present appeal under Section _______ of the Consumer Protection Act, _______19 challenging the order dated _______20_______, passed by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi (hereinafter 'the National Commission') in the Consumer Complaint No. _______ of 20_______ wherein the National Commission partly allowed the consumer complaint filed by the Petitioners herein. The National Commission while considering the case of the Petitioners, the home-buyers, inter-alia seeking compensation for delayed possession, created such a formula for determining due date of possession which has an effect of waiving off entire period of delay leading to zero or marginal compensation to the complainants, thereby depriving the complainants of justiciable quantum of compensation of delay in possession.

2. The present appeal raises the following substantial questions of law for consideration of this Hon'ble Court:

a. Whether the National Commission has committed serious error of law in not deciding the consumer complaint of the home buyers in accordance with law?

b. Whether the National Commission is justified in making construction-linked payment date (11thinstalment) as the baseline date to determine the extent of delay whereby such instalment is itself due in the period beyond the promised date for delivery of possession?

c. Whether the National Commission is justified in denying the relief of refund of amounts charged under the head of Legal Fee?

d. Whether the National Commission ignored the ratio of the decision rendered by this Hon'ble Court in the case of _______&_______. reported in (_______21) 3 SCC _______ while considering the issue of awarding interest on delayed compensation?

3. The facts and circumstances leading to the filing of the present appeal are as under:

3.1 That the Respondent-Builder started constructing the project in the name and style of '_______________ in the year 20_______. The project has total number of _______ flats - divided into 8 blocks and approximately having _______flats per block. The said project was widely advertised by the Respondent-Builder during first and second quarter of 20_______, through publication of brochure, advertisement on the website and on-site advertisements - during site visit and otherwise. The complainants, on the basis of such advertisements made by the Respondent-Builder and tall promises for providing world class living, with modern facilities; approached the Respondent-Builder, in second half of the year 20_______. Amounts to the tune of approximately 20 percent of the total sale consideration, was paid by the complainants initially, for booking flats in Fiesta Homes at Bangalore, in the early 20_______. Upon such payments being made, the Respondent-Builder issued letter(s) of allotment qua each of the complainant(s)/ flat owner(s), who are party to this consumer complaint and such other buyer(s) so interested in the instant consumer complaint. The complainants earnestly believed that the Respondent-Builder shall abide by the terms and conditions stipulated in the agreements/ contracts, dated _______20_______, and also comply with timely delivery of flats, in the manner agreed as per Schedule 'D' (specifications) of the construction agreement dated _______20_______ - which eventually did not happen. A copy of the agreement to sell dated _______20_______executed between the Petitioner no. 1 and the Respondent No. 1 is annexed and marked as Annexure P-1 (Pages 47 to 74 ). A copy of the construction agreement dated _______20_______ executed between the Petitioner no. 1 and the Respondent No. 1 is annexed and marked as Annexure P-2 (Pages 75 to 93).

3.2 That the Petitioners before the National Commission annexed and relied upon the construction linked payment schedule of the Petitioner No. 1 wherein the payment schedule has been described by the Respondent No. 1 towards payment of the flat based on progress of the construction. A copy of the allotment letter _______20_______ issued in favour of the Petitioner no. 1 is annexed and marked as Annexure P-3 (Pages 94 to 95).

3.3 That it is stated that the Respondent builder in terms of the construction agreement dated _______20_______ agreed to deliver flats in the manner agreed and indicated in the respective agreement(s) in terms stipulated in schedule D of the specification appended with the construction agreement dated _______.20_______. The Respondent builder not only defaulted in handing over possession of flats in time but also committed unfair and restrictive trade practices by stipulating a meagre delay compensation of Rs. 2/- per sq. ft. of the super built up area per month as the delay compensation. On the contrary, the Respondent builder vide clauses _______and _______of the agreement to sell dated _______20_______and also under clause _______of the construction agreement dated _______20_______, prescribed for an interest at the rate of 18 percent in case of default in payment by the home-buyer. A copy of the charts dated nil showing individual details of the Petitioners, like, date of booking, date of the agreement, due date of possession, date of registration and amounts paid under various heads is annexed and marked as Annexure P-4 (Pages _______ to _______).A copy of the account statement dated nil furnished to the Petitioner No. 1 by the Respondent builder is annexed and marked as Annexure P-5 (Pages _______to _______).A copy of the demand note dated _______20_______ drawn by the Respondent builder against the Petitioner No. 1 towards ____ charges is annexed and marked as Annexure P-6 (Pages 100). A copy of the demand note dated _______20_______ drawn by the Respondent-Builder against the Petitioner No. 1 is annexed and marked as Annexure P-7 (Pages 101).

3.4 That the Petitioners herein have annexed a sample agreement to sell dated _______.20_______ (Annexure P-1) and a sample construction agreement dated _______.20_______ (Annexure P-2) of the Petitioner No. 1, namely _______. The terms and stipulations of the agreements have been discussed before the National Commission on the issue of due date of possession (clause 6.1 of Construction Agreement), penalty for delayed possession (clause 6.3 of Construction Agreement), penalty for delay in payment of instalments (clauses 1.7 & 1.8 of Construction Agreement and clause 5.7 of Agreement to Sell) and importantly clause 6.2 of Construction Agreement dealing with force majeure conditions.

3.5 That the relevant clause of the Agreement to Sell dated _______20_______ are extracted hereunder: -
'14. Possession
14.1 �.
14.2 �.
14.3 The Purchaser/s shall receive possession of the schedule 'B' Property and Schedule 'C' Property on or before the dates stipulated by the Builder in writing by executing the Sale Deed and getting the same registered'.

Furthermore, Clause 6.1 of the Agreement for Construction dated _______20_______ mentions the promised date of possession as _______ 20_______ and further clause 6.3 of the same agreement mentions Opposite Parties' Liability in case of delay in possession:

'6. Completion & Delivery of Possession
6.1 The possession of the Schedule 'C' apartment in Schedule 'A' property will be delivered by the Second Party to the First Party after completion of construction as far as possible on or before the month of March year 2014 with six months grace period additionally.
6.2 �.
6.3 In case of delay in delivery of the apartment for reasons other than what is stated above, the second party is entitled to a grace period of six months and if the delay persists, the second party shall pay the first party damages at Rs. _______/- (Rupees _______) per sq. ft. super built up area per month of delay of the Schedule 'C' apartment till delivery, provided the First Party has/ have paid all the amounts payable as per this Agreement and within the stipulated period and has not violated any of the terms of this agreement and agreement to sell�. '

Clause 1.7 and 1.8 of the Agreement to Sell dated _______.20_______and Clause 5.7 of the Construction Agreement dated _______20_______; mentions about the amounts Complainants would have to pay in case of default in payment from their side

Clause 1.7 and 1.8 of Agreement to Sell provided as under:-

'1.7 If however, the Purchaser/s pay up the arrears within time stipulated in the notice of termination with overdue interest at 18% per annum, the right to terminate the Agreement would lapse for such default and this Agreement continues to be valid.

1.8 However the Builder at their discretion may agree to receive the unpaid sums with interest at 18% per annum from due date till repayment in full and in one lump sum all the unpaid sums.'

Clause 5.7 of the Construction Agreement provided as follows:
'5.7 However the Second Party at their discretion may condone the delay and agree to receive the unpaid sums with interest at 18% per annum from the due date till repayment in full and in one lumpsum all the unpaid sums'

3.6 That item 10 of schedule D of the construction agreement deals with common amenities to be provisioned at the time of possession of the apartment in terms of construction agreement dated _______20_______. The due date of possession of fully constructed flat was _______.20_______.

3.7 That it is submitted that the Respondent-Builder not only defaulted in handing over possession of the flats in time and manner agreed as indicated in Schedule 'D' of the Construction Agreement but also committed unfair and restrictive trade practice by stipulating (meagre) compensation at the rate of Rs. _______/- (Rupees _______) per sq. ft. of the saleable area per month as delay compensation of the apartment till delivery. The said delay compensation is illegal, arbitrary and unconscionable terms of agreement; the said practice alike of the Opposite Party (or party in position of dominance) has been discredited by this Hon'ble Court, from time to time. On the contrary, the Opposite Party under provisions contained in Clauses 1.7, 1.8 of the Agreement to Sell and Clause 5.7 of the Agreement for Construction, prescribed interest at the rate of 18 percent and other coercive actions in case the buyer defaults in paying timely instalments to the Opposite Party.

3.8 That the Respondents failed to comply with the timeline of construction and the Occupancy Certificate was obtained by the builder only on _______20_______ i.e. after more than 3 years of delay. However, the possession was not offered until _______ 20_______ for the reason that the apartments were incomplete at the time of grant of Occupancy Certificate. The following artifacts would show that the flats were not in liveable conditions even until 20_______.

i. The e-mail communication dated _______20_______, sent on behalf of Respondent-Builder to the home-buyers show that the apartments, both sold and unsold had balance work of tiling, putty, paint, sanitary, grouting, etc. A copy of the e-mail communication dated _______20_______, sent on behalf of the Respondent to group of home buyers is annexed and marked as Annexure P-8 (Pages 102 to 108).

ii. The copy of Rio Club brochure and site photographs taken in _______ 20_______ abundantly substantiate the fact that the entire apartment complex was not in liveable state. Common area flooring was incomplete. Lifts were not installed, floor lobbies were unfinished, building exterior not painted, Fire safety norms not complied with, etc.

iii. The Karnataka RERA (K-RERA) Executive Engineer's report dated _______20_______ further affirmed that the project had unfinished works at the time of issuance of Occupancy Certificate. The report mentions infrastructure deficiencies inter-alia

'1) The Occupancy Certificate in respect of the above project has been issued as on _______/20_______. (Annexure-4)

2) By merely obtaining the Occupancy Certificate and without completing the necessary internal works and without completing the basic amenities such as water supply facility, sanitary facility, power supply facility, the flats are unfit for human occupation.

3) The Club House construction was not even started before _______/20_______.

4) There was no Power supply sanction to the project from _______ and erection of transformer within project site was not undertaken on the said date.

5) Lifts were not commissioned as on the said date.'
'In view of the above facts, the project is an ongoing project as on the date of the commencement of the Act and also as on the date of inspection.'

A copy of the report dated _______.20_______ prepared by the Executive Engineer of K-RERA is hereby annexed and marked as Annexure P-9 (Pages 109 to 113).

3.9 That the Petitioners on _______20_______ filed the consumer complaint under section 12 (1) (c) of the Consumer Protection Act, 19_______ (now section 35.1.c of the Consumer Protection Act, 20_______) before the National Commission praying inter alia, delay compensation, refund of illegally charged car parking fee (not pressed during arguments), refund of legal fee, refund of BESCOM & BWSSB charges after deducting on actuals and a direction for completion of green jogging track and convenience store as promised in the sales brochure else pay compensation of Rs. Five lakhs to each of the complainants and home-buyers. Along with the consumer complaint, the Petitioners herein filed an application bearing I. A. No. _______ of 20_______ seeking permission to proceed as joint complaint in a representative capacity. A copy of the consumer complaint no. _______ of 20_______ dated _______20_______ filed before the National Commission is hereby annexed and marked as Annexure P-10 (Pages 114 to 146). A copy of the application bearing I. A. No. _______ of 20_______ filed in the consumer complaint no. _______ of 20_______, dated _______.20_______filed before the National Commission is hereby annexed and marked as Annexure P-11 (Pages 147 to 149).

3.10 That the National Commission on _______20_______ issued notice on the consumer complaint as well as the application bearing I. A. No. _______ of 20_______ filed in the consumer complaint no. _______ of 20_______ seeking permission to proceed in representative capacity. Said application filed seeking representative nature of the consumer complaint was allowed by the National Commission on _______20_______. A copy of the order dated _______20_______passed by the National Commission in the Consumer Complaint No. _______ of 20_______ is annexed and marked as Annexure P-12 (Pages 150 ). A copy of the order dated _______20_______ passed by the National Commission in the Consumer Complaint No. _______ of 20_______ is annexed and marked as Annexure P-13 (Pages 151 to 152).

3.11 That the Petitioners on _______20_______ filed an application seeking directions vide the interlocutory application no. _______of 20_______ wherein the instances of arm-twisting were brought to the notice of the National Commission and it was prayed that the Respondent builder be directed to correct the already executed sale deed(s) and to give possession to some of the complainants before the National Commission, namely _____________. A copy of the application seeking directions vide the interlocutory application no. _______ of 20_______ in the Consumer Complaint no. _______ of 20_______, dated _______20_______ is annexed and marked as Annexure P-14 (Pages 153 to 160).

3.12 That upon grant of permission to proceed as joint complainants, vide an order dated _______20_______ passed by the National Commission, the similarly situated home-buyers file an application bearing no. _______ of 20_______seeking impleadment into the consumer complaint. The other set of home-buyers file another application seeking impleadment vide the interlocutory application no. _______ of 20_______. A copy of the application seeking impleadment vide the interlocutory application no. _______of 20_______ in the Consumer Complaint no. _______of 20_______, dated _______20_______is annexed and marked as Annexure P-15 (Pages 161 to 168).A copy of the application seeking impleadment vide the interlocutory application no. _______ of 20_______ in the Consumer Complaint no. _______ of 20_______, dated _______20_______ is annexed and marked as Annexure P-16 (Pages 169 to 174).

3.13 That it is stated that the Respondent builder did not appear and represented itself before the National Commission despite service of notice while the application under 12 (1) (c) of the Act of 1986 was considered and also refused service upon grant of the permission to proceed in representative capacity. The National Commission erroneously issued notice vide an order dated _______20_______ on the consumer complaint and all the interlocutory applications. A copy of the order dated _______20_______passed by the National Commission in the Consumer Complaint No. _______ of 20_______ is annexed and marked as Annexure P-17 (Pages 175).

3.14 That the order dated _______20_______ passed by the National Commission was challenged before this Hon'ble Court in the Civil Appeal No. _______ of 20_______. This Hon'ble Court vide an order dated _______.20_______ allowed the civil appeal filed by the Petitioner observing and holding as under:-

'�(T)hese facts conclusively show that the respondent-builder was well aware of the pendency of the aforesaid C.C.No_______of 20_______ before the National Commission.

The conduct on part of the respondent-builder in not filing written statement does not entitle him to any further benefit. It must, therefore, be declared that the respondent has forfeited his right to have filed written statement and it is hereby declared so. The appeal, therefore, stands allowed.

The C.C.No._______ of 20_______ shall now be proceeded further without the written statement of the respondent-builder. It shall however, be open to the respondent builder to participate in the proceedings�'

A copy of the order dated _______20_______ passed by this Hon'ble Court in the Civil Appeal No. _______ of 20_______ is annexed and marked as Annexure P-18 (Pages 176 to 181).

3.15 That consumer complaint _______ of 20_______ was listed before the Hon'ble National Commission on _______20_______ wherein the National Commission in compliance of the order dated _______20_______ directed the matter to proceed without written version of the Respondent builder. The Petitioners were directed to file an affidavit of evidence and matter was posted for final hearing on _______20_______.
3.16 That the Petitioners herein filed the evidence by way of affidavit on _______20_______ before the National Commission wherein all-important facts of the matter was reiterated and important annexure(s) were exhibited. A copy of the evidence by way of affidavit filed on _______20_______ before the National Commission in the consumer complaint no. _______ of 20_______ is annexed and marked as Annexure P-19 (Pages 182 to 208).

3.17 That the matter was finally heard and reserved for judgment on _______22. The Petitioners file amended memo of parties before the National Commission on _______22. A copy of the amended memo of parties filed before the National Commission in the consumer complaint no. _______ of 20_______, dated _______.20_______ is annexed and marked as Annexure P-23 (Pages 226 to 234).

3.18That the National Commission pronounced the judgment and order dated _______20_______ whereby the consumer complaint filed by the Petitioners herein was partly allowed as under:
'In view of the aforesaid discussions, the complaint is partly allowed. The opposite parties are directed to pay delayed compensation in the shape of interest @ 6% per annum on the deposit of the complainants from due date of possession as determined for each buyer in the manner as provided in paragraph-8 of the judgement till the date of offer of possession and construct Green Jogging Track and Convenience Store, within a period of two months from the dare of this judgement.'

(Impugned Judgment/ Order)

Paradoxical Formula using construction-linked installment date as the baseline for defining the period of delay

3.19 That the National Commission at paragraph 8 of the impugned order dated _______20_______ made a reference _______instalment payable by the home buyer and used it as a reference point in determining the period of delay. This itself has led to a paradoxical situation where the cause of action itself is converted to the basis of relief.A copy of the chart dated nil prepared by the Petitioners as a refence point for computation of delay compensation is annexed and marked as Annexure P-24 (Pages 235).

Delay compensation @ 6 % is inadequate in facts of the case:
3.20 Thatthe fall out of delay is that, the appellants had to bear huge financial losses, on the one hand their hard-earned money was blocked for a long period and on the other hand they had to wait indefinitely for occupation of respective apartments, which was supposed to be complete in the year 20_______ itself. The appellants states that for fulfilling the monetary obligations under the terms of the Agreement, they have availed loan for which they have been regularly paying interest at the rate of 9 to 12%. The appellants had also lost all the income tax benefit since the property was not in their possession. Some buyers have had to stay on tenancy arrangements. Cash-flow of many buyers was locked and they could have otherwise put their money to earn interests from deposits. The Respondent Builder enjoyed the moneys at retail interest rates at the cost of the perils of the hapless Appellants-Complainants. Overall, the amounts of the Appellants-Complainants were locked into a dead stock at no fault of the Appellants-Complainants. As per the terms of the Agreement, the appellants had been regularly paying the requisite amounts as per the payment schedule as and when required by virtue of terms of the Agreement.

4. Aggrieved by the aforesaid impugned order dated _______20_______ passed by the National Commission in Consumer Complaint No. _______ of 20_______; the Appellants herein, are filing the present appeal under Section 67 of the Consumer Protection Act, 20_______, on the substantial questions of law, set out in Para 2 of the appeal, and on the following grounds, amongst others: -

GROUNDS
A. BECAUSE the National Commission erroneous created a paradoxical formula for determining due date of possession which has an effect of waiving off the entire period of delay leading to negligible or zero compensation to the complainants and depriving the complainants of justiciable quantum of compensation of delay in possession. Adopting the formula as indicated in paragraph 8 of the impugned order dated _______20_______, a situation has been created where the cause of action itself is converted to the basis of relief. The Petitioners vide a table annexed at Annexure P-4 (similar chart also Annexed as Annexure P-5 to the consumer complaint) indicated important and key dates for grant of reliefs prayed before the National Commission. Said annexure included different dates of agreement and promised dates of possession in terms of the agreement(s) as on the date of filing of the consumer complaint before the National Commission. However, the National Commission erroneously considered the due date of possession after expiry of six months from the payment of 11th installment by the Petitioners (home buyers). The perversity in the impugned order is the paradoxical situation of relying upon a date of payment linked to construction as the baseline date for determining the delay in construction i.e. cause of action itself is converted to the basis of relief.

B. BECAUSE the National Commission erred in not appreciating that the Petitioners vide a table annexed at Annexure P-5 (Annexure P-4 of the civil appeal) to the consumer complaint, indicated important and key dates for grant of reliefs prayed before the National Commission, which also included different dates of agreement and promised dates of possession in terms of the agreement(s) as on the date of filing of the consumer complaint before the National Commission. It is stated that the Petitioners paid the sale consideration in terms of the agreement.It is stated that the yardstick followed by the National Commission as well as this Hon'ble Court while considering such cases is to consider compensation for delayed possession with effect from the due date of possession till the date of offer of possession. The reasonings advanced by the National Commission in arriving at the due date of possession to be payment wef _______ installment,at para _______of the impugned order dated _______20_______ is perverse and liable to be interfered with by this Hon'ble Court. The date of possession in individual cases is to be guided by respective agreement(s) and in terms of the Annexure P-5 to the consumer complaint.

C. Because the National Commission National Commission while awarding delayed compensation in the shape of interest @ 6 % per annum on the deposits of the complainants, placed reliance on the decision reported in [(20_______) 16 SCC 512] titled as _______& Ors. v. _______& Ors. and the decision dated _______20_______passed by this Hon'ble Court in the case of _______& Ors. _______. in the Civil Appeal No. _______ of 20_______. However, the National Commission ignored the fact that delay in above mentioned cases ranged nearly2 years, whereas delay in present case is between 3-4 years coupled with harassment at the hands of the Builder while the Respondent-Builder continued to enjoy upon the 90% of sale consideration received as advance.

D. Because the National Commission ought to have considered awarding delay compensation in the shape of interest @ 9 % per annum on the deposits of the complainants, from the promised date of possession till the actual offer of possession is made by the Respondents to the Petitioners herein and also a penal rate of interest at the rate of 12 % if the order passed by the National Commission is not complied with within the stipulated time. Said compensatory interest ought to have been in addition to the delay compensation payable to the Petitioners in terms of clauses the agreement dated _______20_______at an agreed rate of Rs. 2/- per sq. ft. of saleable area, per month. The National Commission erred in not considering said aspects in the operative portion of the impugned order dated _______20_______.

E. BECAUSE the National Commission on erroneous findings denied the relief of refund of amounts collected by the Respondent-Builder in the name of Legal Fee. The reason relied upon by the National Commission is that the Advocates Act 1961 does not prescribe any formula and that the Complainants could have objected to the Developer and arranged their own advocates. The National Commission did not appreciate the dominant position of the Respondent-Builder and helplessness of the home-buyers at the time of possession-cum-registration of their apartments.

F. BECAUSE the National Commission gravely erred in denying the relief of refund of charges collected by the Respondent-Builder in the name of ___________. The National Commission, while relying upon the Chartered Accountant certificate produced by the Respondent-Builder vide their written submissions filed on _______20_______, put the entire onus on the home-buyers to dig out information from the statutory authorities with regard to charges payable to said authorities. The National Commission did not appreciate the facts and circumstances that otherwise are evident and self- explanatory to determine the extent of unjustified costs loaded onto the buyers in the name of ___________ charges.

5. The Appellants crave leave to add to the grounds mentioned herein above and submits that the contentions herein above are in the alternative and without prejudice to one another.

6. The Appellant states that no other appeal against the impugned order dated _______20_______has been filed by the Appellants before this Hon'ble Court or any other Court.

7. The Appellants have paid the requisite court fees in the Appeal.

PRAYER
8. On the basis of facts and averments made in the foregoing paragraphs, it is most respectfully prayed that this Hon'ble Court may be pleased to:

i. Admit and allow the instant appeal filed by the Appellants under Section 67 of the Consumer Protection Act, 20_______ and set aside the impugned order dated _______20_______ passed by the National Consumer Disputes Redressal Commission; New Delhi, in Consumer Complaint No. _______of 20_______; and/ or

ii. Pass such order or further order (s) as the Hon'ble Court may deem just and proper in the circumstances of the case.

AND FOR THIS ACT OF KINDNESS THE APPELLANT AS DUTY BOUND SHALL EVER PRAY

DRAWN &FILED THROUGH:

DATED: _______20_______