ACCESS TO JUSTICE TOWARDS THE CREATION OF INCLUSIVE SOCIAL ORDER (d) An aggrieved buyer “cannot be compelled to accept the possession whenever it is offered by the builder”.19 (e) The incorporation of “one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2(r) of the Consumer Protection Act, 1986, since it adopts unfair methods or practices for the purpose of selling the flats by the builder”, the builder, therefor, cannot seek to bind the buyer “with such one-sided contractual terms”.20 (f) For annulling or voiding one-sided clauses in an agreement, the Supreme Court exhorted the Consumer Forums to “take a robust and a common-sense approach by taking judicial notice of the fact that flat purchasers obtained loans and are required to pay EMIs to financial institutions for subserving their debts”.21 In view of these principles as abstracted above, the Supreme Court has held that “the powers of the Consumer Court are in no manner constrained to declare a contractual term”, such as the delay compensation clause, “as unfair and one-sided,” and, therefore, “null and void,” “as an incident of the power to discontinue unfair or restrictive trade practices”.22 And, thus, the Consumer is not bound to accept the possession of the apartment as per the one-sided contractual terms and can seek refund of the amount deposited by her with interest.23 (B) Access to justice via judicial remedy in the matters of choice of forum or jurisdiction In fructifying the concept of access to justice, which comes into play whenever there is a violation of right, the issue of choosing the appropriate forum comes to the fore. This is so, because invariably there are various statutes providing different legal remedies in addition to the normal one, which is available in civil courts as a matter of course. In 19 20 21 22 23 Id., para 8.2, citing Pioneer (para 6.2). Id., para 8.2, citing Pioneer (paras 6.8 and 7). Id., para 9.2, citing Wing Commander Arifur Rahman Khan and Aleya Sultana and Ors. v. DLF Southern Homes Private Limited, MANU/ SC/0607/2020: (2020) 16 SCC 512. In this case, the Delay Compensation Clause provided for Rs. 5 per square foot per month. The Supreme Court found such a stipulation clearly one-sided, as it did not maintain a level platform or even reflect a bargain between the parties. Accordingly, the Supreme Court granted additional compensation at six per cent per annum simple interest to each buyer therein, over and above the Delay Compensation Clause. Id., para 9.2, citing IREO Grace Realtech (P) Ltd. v. Abhishek Khanna and Ors., MANU/SC/0013/2021: (2021) 3 SCC 241, per Nageswara Rao, Ms. Malhotra, Ajay Rastogi, JJ. (Para 35). The delay compensation clause (similar to the Clause in the present case), which provided that the Developer would be liable to pay delay compensation @ Rs. 7.5 per square foot, which works out to approximately 0.9 to one per cent per annum, was held as null and void. Id., para 10. 7