Subhash Chandra, Presiding Member
This complaint is filed under section 21 (a) (i) read with section 12 (1) (a) of the Consumer Protection Act, 1986 (in short, ‘the Act’) alleging deficiency in service and unfair trade practice with regard to apartment no. 2202, 22nd Floor, Tower ‘A’ with super area of 4279 sq ft along with three car parking spaces in the project ‘Araya’, in sector 62 Gurgaon being developed by the opposite party.
2. The facts of the case are that the above flat had been booked by Meera Singh Bhaduria and C P S Bhaduria who executed an ‘Apartment Buyers Agreement (in short, ‘the ABA’) on 08.05.2012 whereby the possession was promised in 45 months including grace period of six months i.e., April 2016. On 23.12.2013 the present complainant purchased this flat from the original allottees and on 27.12.2013 paid Rs.7,21,185/- as transfer charges. The complainant has paid Rs.30,90,000/- against the sale consideration of Rs.37,41,125/-. As the opposite party failed to deliver possession on the promised date including the grace period, the complainant approached the opposite party between June 2016 and April 2018 by way of various e-mails and letters which were not responded to by the opposite party. Complainant has alleged that despite having made all payments in time, the opposite party issued a letter dated 23.07.2018 imposing a penalty of 18% per annum interest for the delay in payments. Intimation of possession was issued on 28.08.2018 by the opposite party to the complainant although the construction was in-complete and after protracted correspondence the complainant accepted the possession under protest on 07.11.2019. A conveyance deed and possession was proceeded with. This complaint has been filed before us seeking following reliefs:
i. Direct the opposite party to pay an amount of Rs.2,67,35,836/- towards compensation for the delay in delivery of possession calculated at the rate of interest @ 18% per annum for the period from 04.03.2016 till 07.11.2019 when the actual physical possession was handed over;
ii. Set aside any illegal collection of money towards EDC/IDC and VAT made by opposite party beyond permissible amounts and direct the OP to refund these amounts to the complainants with interest and to pay interest on some refunds made under these heads in the past;
iii. Direct that all increase in taxes with effect from 04.03.2016 shall be borne by the opposite party;
iv. Direct the opposite party to provide independent club house to project ‘Araya’ or else not to charge for the Club House membership charges;
v. Direct the opposite party to refund/ adjust the unjustified amounts charged from the complainants towards car parking;
vi. Direct the opposite party to pay a sum of Rs.10 lakh to the complainant towards compensation for mental agony, heart burning, deprivation of her property for various months and emotional trauma;
vii. Direct the opposite party to pay a sum of Rs. 2 lakh towards cost of litigation; and
viii. Any further relief to which, the complainant is found entitled to may also be granted in the interest of justice.
3. The opposite party has contested the complaint by way of reply and contended that as per clause 11.5 (i) compensation for delay after a period of 39 months and 6 months grace is provided for in the ABA at Rs.10/- per sq ft. The delay is not attributable to the opposite party but was on account of dispute with the construction contractor, delay in payments by the allottees, shortage of water, construction activities, lack of infrastructural support by the State Government, shortage of raw-materials, delay in approvals by the State Government, the Jat agitation, National Green Tribunal (NGT) orders of April 2015 and November 2016 imposing restriction on building activities and demonetisation of the currency.
4. It has also been contended that the complainants are not consumers within the definition of 2 (1) (d) of the Act and they reside overseas. It is therefore, contended that the complaint is untenable and may be dismissed.
5. The admitted facts of the case are that there has been delay in completion of the project ‘Araya’ and possession was offered on 28.08.2018 against the committed date of April 2016 i.e., after a period of 28 months. The complainant has, however, accepted the possession on 07.11.2019 under protest and is now only claiming compensation for the delay in handing over the possession by way of interest @ 18% per annum for the period 04.03.2016 till 07.11.2019 when the actual possession was handed over. He is also claiming other costs for mental agony (Rs.10 lakh), litigation cost of Rs.2.00 lakh and other charges including taxes.
6. Parties have led their evidences. We have heard the learned counsels for the parties and have given our thoughtful consideration to the documents on record. It is manifestly clear that there has been a delay in the offer of possession of the subject apartment by the opposite party to the complainant since the date of promised possession was April 2016. Learned counsel for the complainant has relied upon this Commission’s order in CC No. 1238 of 2017 in Vishal Malik and Anr. vs Pioneer Urban Land and Infrastructure Ltd., dated 29.03.2019 which related to the same project namely ‘Araya’ of the opposite party; however, in Vishal Malik (Supra) possession of the flat had not been handed over. This order relied upon by the judgment of the Hon’ble Supreme Court in Pioneer Urban Land and Infrastructure Ltd., vs Govindan Raghavan – II (2019) CPJ 34 (SC) dated 02.04.2019 which held that an ABA framed by the builder is wholly one-sided and unfair if the other party has no option but to sign on the dotted line. It has also relied upon the judgment of the Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd., vs Devasis Rudra – II (2019) CPJ 29 SC dated 25.03.2021 which held that it would be manifestly unreasonable to construe that a contract between the parties requires the buyers to wait indefinitely for possession. The instant case is covered by these judgments as delay of over 2 years and 5 months is there.
7. In the present case, the complainant has taken over possession of the flat and sought compensation for the period of delay. In a catena of judgments, the Hon’ble Supreme Court and this Commission have, while considering the issue of compensation to the complainant/ allottee for the delay in handing over the possession, restricted the compensation by way of interest on the amount that stood deposited with the opposite party as on the promised date of possession as per the ABA and actual date of offer of possession. In Bangalore Development Authority vs Syndicate Bank (2007) 6 SCC 711, it was held by the Hon’ble Supreme Court that “where the development authority having received the full price, does not deliver possession of the allotted plot/ flat/ house within the time stipulated or within a reasonable time, or where the allotment is cancelled or possession is refused without any justifiable cause, the allottee is entitled for refund of the amount paid, with reasonable interest thereon from the date of payment to date of refund. In addition, the allottee may also be entitled to compensation, as may be decided with reference to the facts of each case”. Therefore, the complainants prayer for relief of refund with interest as compensation is justified.
8. In the instant case the date of possession was
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promised to 04.03.2016 and was offered on 28.08.2018, i.e., after nearly 2 years. Deficiency in service is therefore writ large on the opposite party. Compensation for the delay in handing over the possession is justified. The complaint is therefore, allowed with the following directions: i. The opposite party shall pay compensation for the delay in handing over the possession for the period 04.03.2016 to the date of offer of possession i.e., 28.08.2018 @ 9% per annum on the amount which it had received till 04.03.2016; ii. The payment shall be made within 12 weeks failing which interest @ 12% per annum shall be made on the paid amount; and iii. Litigation cost of Rs.50,000/- shall also be paid by the opposite party to the complainant. 9. With these directions, the complaint disposed off.