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Whenever you enter into a contract with a state-run land development authority, or a private builder to buy a house or a flat, check if there is a deadline for completion of the project and handing over possession. If there is no such time stipulation, write to the builder, drawing his attention to it, and persuade him to set a time limit. If there is a delay beyond this period in completing the construction or handing over possession, say so in writing. If you want to seek compensation for the delay, do so at the earliest. Or else, you may well lose your right to seek damages. Take the case of Ashok Khanna vs Ghaziabad Development Authority, decided by the apex court recently. Here, the consumer applied for a flat in 1988, paid the registration fee of Rs 60,000, and subsequently, the entire amount of Rs 5,40,000 as per the schedule fixed by the GDA. According to the customer, the GDA promised in its brochure that possession would be given in 1990, but it was done only by the end of 1993, after collecting an additional charge of Rs 57,000 towards escalation of costs. The client paid the amount, took possession, and then in 1995, filed a complaint before the court, seeking damages for delayed delivery of the flat. While the district consumer disputes redressal forum awarded compensation, the state consumer disputes redressal commission held that the customer was not entitled to any relief as he had taken possession of the flat without raising any objection about the delay. In his revision petition before the national consumer disputes redressal commission, the client argued that the GDA was guilty of deficient service for not giving possession within the stipulated period of two years. The GDA, on the other hand, argued that the brochure only said that the construction shall be completed within two years from the date of reservation of the flat. No definite period was prescribed for delivery of possession. While deciding the case, the national commission referred to the order of the Supreme Court in the case of Bangalore Development Authority vs Syndicate Bank (2007 CTJ 689 (Supreme Court, CP) wherein the apex court had said: "Where no time is stipulated for performance of the contract (that is for delivery), or where time is not the essence of the contract, and the buyer does not issue a notice making time the essence by fixing a reasonable time for performance, if the buyer, instead of rescinding the contract on the ground of non-performance, accepts the belated performance in terms of the contract, there is no question of any breach or payment of damages under the general law governing contracts." The national commission then referred to clause 16 of the brochure of the GDA, which, under "Time of completion of apartments," said: "The apartments are expected to be completed within two years from the date of reservation." On the basis of this, the national commission held that time was not the essence of the contract here. To the question on whether there was negligence on the part of GDA in handing over possession, the national commission pointed out that (a) the brochure did not mention any specific date of delivery of possession of the flats; (b) no agreement was entered into between the parties stipulating any time for performance or delivery of flats; (c) the consumer did not rescind the contract on the ground of non-performance. He accepted the delayed performance in terms of the contract; (d) at the time of delivery, the client paid the additional amount without any protest. Nor did he make an issue of the delay; and (e) he took possession in 1993, but filed the case only in 1995, which showed that at the time of delivery, the customer was satisfied, but later changed his mind and filed a complaint. On these grounds, the commission said the buyer was not entitled to any compensation (RP NO 2002 of 2005, decided on August 18, 2009).
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