No fine for late delivery of flat if exact date is not assured: NCC

Real estate developers cannot be fined for late delivery of possession of a flat to an allottee if no specific date of its delivery is mentioned in the contract, the apex consumer body has held.  

The National Consumer Commission further held that the acceptance of the belated delivery of the flat in 1993 without protest renders it impossible for the consumer fora to award compensation to the buyer in this case.  

The Commission passed the order on a plea of the allottee, Ashok Khanna, seeking compensation from the Ghaziabad Development Authority (GDA) for the late delivery of the flat and extra sum charged by it.

"Where time is not the essence of the contract then the buyer, instead of rescinding the contract on the ground of non-performance, accepts the belated performance in terms of the delayed contract and then the question of any breach of agreement does not arise," the Commission headed by Justice Ashok Bhan said.

The Commission further observed that the allottee would not be entitled to any compensation because the buyer has the benefit of appreciation in value of the flat.  

Ashok Khanna applied for the flat with GDA in 1988 which agreed to give its possession within two years but as the work was not complete the builder asked the petitioner to deposit an additional sum for the belated final settlement in 1993, which he accepted.

Khanna filed the complaint with the District Consumer Forum, Ghaziabad in 1995.  

"In the absence of any agreement making time to be the essence of the contract or agreement, the GDA cannot be held negligent in providing the service requiring it to either pay compensation or interest on the deposited amount to the petitioner," the Commission said.