J.M. Malik, Presiding Member
1. Unitech Limited, OP-1 launched a new project i.e. “Harmony” at “Nirvana Country” Residential Township in Sector 50, Gurgaon. It was mentioned that the project would be completed by July 31, 2009. Mr. Sanjay Goyal, the complainant booked an apartment No. 1801, 17th Floor, Tower-4, having a super area of approx. 309.27 sq.mtrs. (approx. 3329.00 sq.ft.) and terrace area of 0 sq.mtrs. Approx. in the said complex. He paid a sum of Rs. 1,44,33,148/- under the Down Payment Plan. The complainant also paid a sum of Rs. 55,000/- as Club Membership Registration charges, which were also included in the terms and conditions of the aforesaid Down Payment Plan. The complainant thus paid a sum of Rs. 13,43,157/- on 06.09.2007. The agreement was executed between the complainant and the OPs as per the Down Payment Plan. The Complainan
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further paid a sum of Rs.1,24,45,912/- as per clause 4 (a) (i) of the Buyers Agreement dated 06.09.2007, the O.P.s were to hand over the possession of the apartment to the complainant within 36 months of the execution of the Buyers Agreement, i.e. by 05.09.2010.2. A New Development took place. The complainant was forced to accept an apartment No. 1902 on 18th Floor Tower-8 of the same complex in lieu of previous allotted apartment. The OPs undertook to give the possession of apartment No. 1902 by 5th September 2010.3. Present case was filed before this Commission on 21.12.2012. Till then the possession was not given to the complainant. The Complainant has made the following prayers:-“i) Direct the O.P.s to handover the possession of the aforesaid Apartment complete in all respects to the complainant immediately and execute all the necessary and required documents in respect of the said apartment in favour of the complainant;ii) Direct the O.P.s severally and jointly to pay interest @ 18% per annum compounded quarterly on the Rs. 1,37,89,069/- (Rupees one crore thirty seven lacs eighty nine thousand and sixty nine, only) being the amount deposited by the complainant with the O.P.s from the respective date of payments made by the complainant till the actual date of handover of possession of the apartment complete in all respects by the O.P.s to the complainant.iii) Direct the O.P.s severally and jointly to pay a sum of Rs. 50,000/- (Rupees fifty thousand, only) per month to the complainant towards rental damages from 05.09.2010 onwards (being the committed date of delivery of the apartment by the O.P.s to the complainant) till the actual date of handing over the possession of the apartment complete in all respects by the O.P.s to the complainant.iv) Direct to the O.P.s severally and jointly to pay a sum of Rs. 25,00,000/- (Rupees twenty five lacs, only) towards damages for the physical and mental torture, agony, discomfort and undue hardships caused to the complainant and the complainant’s family as a result of the above acts of omissions on the part of the O.P.s;v) Direct the O.P.s severally and jointly to pay a sum of Rs. 2,00,000/- (Rupees two lacs only) to the complainant towards the cost of litigation; andvi) Any other order(s) as may be deemed fit and appropriate may also kindly be passed.”4. The written version which was to be filed within 30 days + 15 days from the date of service under section 13 of the Consumer Protection Act could not be filed. The right of the OPs to file the written version was forfeited in view of Hon’ble Apex Court authority by three judges Bench reported in the case of “Dr. J.J. Merchant & Ors. Vs. Srinath Chaturvedi –III (2002) CPJ 8 (SC) ”.5. Complainant had filed this complaint on affidavit and documents. We have heard the counsel for the parties on merits. Article 4 (a) provides for delivery of the possession. It runs as follows:-“i) That the possession of the Apartment is proposed to be delivered by the Developers to the Purchaser(s) within 36 months of execution of the present agreement subject to Force Majeure circumstances, and upon registration of Sale Deed provided all amounts due and payable by the Purchaser(s) under this Agreement have been paid to the Developers within the stipulated period. It is, however, understood between the Parties that the possession of various Towers comprised in the Complex shall be ready and completed in phases and handed over accordingly.ii) It is agreed that the Developers shall also be entitled to reasonable extension in delivery of possession of the Apartment on account of any default or negligence attributable of the Purchaser(s)’s fulfillment of conditions of the Agreement.”6. There is also a provision that if the OPs failed to hand over the possession within the prescribed time, they would be liable to pay the penalty under Clause 4 (c) clause (i) & (ii), which runs as follows:-“i) That if the Purchaser(s) fails or neglects to take possession of the Apartment within 30 days from the date of notice of Possession issued by the Developers, the Purchaser(s) shall be liable to pay holding charges @ Rs. 5/- per sq. ft. per month of super area, for the period the Purchaser(s) does not take actual physical possession of the Apartment. The holding charges shall be in addition to the amount payable by the Purchaser(s) as their share of the Govt. or Municipal taxes, maintenance or other administrative charges, on a proportionate basis, as determined by the Developers or the Maintenance Agency, until the Purchaser(s)(s) has taken actual physical possession.ii) That the Developers will be liable to pay charges @ Rs. 5/- per sq. ft., per month of the Super Area for the period of delay in offering the Possession of the said Apartment beyond the period indicated in clause 4 a.i, save and except for reasons beyond the reasonable control of the Developers. These Charges shall be adjusted at the time of Final Notice of Possession.”7. Counsel for the OPs admitted that the possession has not yet been delivered. He contended that it will take one year more to construct the house. He also tried to settle the matter but both the parties did not agree. On the Contradictory counsel for the complainant vehemently argued that the complainant does not agree to any of the proposals given by the OPs. He is interested to have the above said apartment. He contended that the Complainant is paying Rs. 50,000/- per month as house rent for the last about 3 years. He argued that he should be compensated and he should be given the rent. The complainant has placed on record the agreement entered into between him and one Sandeep Pal, Director & Head-Operations, HI & O. Previously the rate of rent was Rs. 42,500/- per month. Subsequently, it was enhanced to Rs. 50,000/- w.e.f. 31.08.2010.8. It is thus clear that the OPs want to have benefit of both the worlds. They have received the entire price of the apartment at the time of execution of the Agreement. Even after the elapse of six years, the flats are not ready. The OPs have offered peanuts for delaying the construction of work. The OPs have to honour their commitment. The change of flat without the consent of the complainant is clearly indicative of their arbitrariness. The naked truth is always better than the best-dressed lie.9. Keeping in view all the facts and circumstances, the entire case hinges upon various agreements. Although, counsel for the OPs offered to pay charges @ Rs. 7.50 per sq. ft instead of Rs. 5/- per sq. ft. and also desired to pay the entire money with interest @ 15% instead of 10%, yet there was no compromise on these lines. Therefore, we hereby direct that the OPs will hand over the premises in dispute within a period of 6 months from today. If they fail to do so, extra penalty of Rs. 25,000/- per month will be payable by them to the complainant. Secondly, they will also pay the rent of the residence to the Complainant, which the complainant has taken on lease from Ericsson India Pvt. Ltd. @ Rs. 42,500/- per month from 01.10.2010 to 31.08.2012 and Rs. 50,000/- per month w.e.f. 01.09.2012 till the possession is handed over to the complainant in addition to above said penalty. The OPs need not to pay Rs. 5/- or Rs. 7.50 per sq. ft. per month of the super area as per the agreement. They are also not required to pay interest on the paid amount because these factors stand covered in the payment of rent to the complainant. The compensation and litigation charges in the sum of Rs. 50,000/- are also granted in favour of the Complainant and against the OPs. The arrears of rent and compensation be paid to the complainant within 60 days or else it will carry interest @ 9% p.a.10. The Complaint stands disposed of.
"2013 (3) CPR 64"