1. This complaint originally filed before the District Forum by Sh. Anuraj Soni resident of Bangalore, for short complainant was later filed before this Commission under Section 17 of the Consumer Protection Act 1986, the Act, in pursuance of an order dated 27.7.2018 passed by the District Forum in CC/9/2013, returning the complaint against M/s Eldeco Infrastructure & Properties Ltd., hereinafter referred to as OPs, alleging deficiency in service on the part of the OP they having not executed Sale Deed in favour of the complainant and hand over the possession of the flat within the time as agreed to and praying for the relief as under:
(a) Immediately execute the sub-lease deed in favour of the complainant and hand over the possession of the flat.
(b) Pay interest @ 18% p.a. to the complainant on the amount of Rs. 38,90,900 paid by the complainant for the delayed period in possession.
(c) Pay a sum of Rs. 10,00,000 towards compensation of opportunity loss suffered by the complainant and another sum of Rs. 2,00,000 for mental agony, harassment and undue disturbances.
(d) Pay the cost of litigation and pass such other and further order as this Hon ‘ble Forum may deem fit and proper in the light of facts and circumstances of the case and in the interest of justice.
2. Facts of the case necessary for the adjudication of the complaint are these.
The complainant had booked a flat measuring 1,300 sq. ft. in the project of the OP namely “Eldeco Aamantran”, in Sector 119, Noida by paying initial booking amount of Rs. 9,75,000 through cheque bearing No. 72573 drawn on Citi Bank duly acknowledged by the OP vide their receipt No. 22288 dated 2.9.2006. Contrary to the promises, made by the OP the project was however not launched in the month of June 2007. Infact the project was finally launched on 16.11.2007. The complainant was later informed that he has been allotted flat No. S-4/808 on 8th floor of Block S-4 admeasuring 1,300 sq. ft. area under Type “A” vide allotment No. AMT/90018 and accordingly, the OP entered into an allotment certificate & agreement dated 19.11.2007 with the complainant confirming the said allotment for flat No. S-4, 802, Eldeco Aamantran, Plot No. GH-003, Sector-119, Noida, U.P. The said agreement further contained detailed terms and conditions of the allotment and understanding between the parties such as flat details, price of the flat, payment plans, possession/delivery schedule, execution of sub-lease deed, interest on delay etc. amongst other. The complainant had opted for down payment plan for payment against the aforesaid flat and after arranging the requisite money from all the resources at his disposal. Subsequently he paid the entire balance amount against the price of the said flat aggregating to Rs. 27,92,400. With the aforesaid payment having already been made the complete and full and final payment of cost of the said flat as fixed and demanded by the OP was made. The OP on receipt of the total payment issued another letter dated 19.3.2008 asking the complainant to pay another amount of Rs. 1,23,500 towards lease rent within 30 days or else interest @ 18% p.a. shall be charged against the complainant. However, according to the complainant no reference was made in the agreement regarding payment towards lease as sought for now. Payment to this effect was also made notwithstanding the fact that there was no Clause to this effect in the agreement.
3. The complainant having made the entire payment against booking of aforesaid flat under down payment plan and as agreed to under the said allotment certificate & allotment, the OP had undertaken to execute the sub-lease deed and hand over the possession of the flat within Thirty Six Months from the date of receipt of the entire basic price which means the OP was under obligation to hand over the possession of the flat by the end of January 2011. In terms of the agreement dated 19.11.2007, the OP had also undertaken to execute a sub-lease deed in favour of the complainant on receipt of the entire payment which was to be executed by the OP conveying the title/interest to the complainant for transfer of the flat. This fact of execution of Sub-Lease Deed and compliance with the handing over of possession was further re-iterated under para “G” of the said agreement. The relevant Clause of the agreement is as under:
Subject to force majeure, the company will endeavour to hand over possession of the said unit as per the terms of this agreement and after execution and registration of the sub-lease deed of the Said Unit in favour of the allottee subject to the receipt of the entire payment towards basic price and other charges, dues etc in respect of the Said Unit, as contemplated in this agreement, from the allottee.
All charges, expenses stamp duty, registration fee etc. towards registration of sub-lease deed, including documentation, shall be borne by the allottee only, at the rate as may be applicable on the date of execution and registration of the sub-lease deed. If the company incurs any expenditure toward the registration of the Said Unit, the same will be reimbursed by the allottee to the company. In case the stamp duty or other charges payable by the allottee to the authorities at the time of registration is discounted due to reason of prior payment of some/all charges by the company, such discount availed by the allottee shall be reimbursed to the company prior to registration.
The possession of the said unit will be given after execution of the Sub-Lease Deed.
4. But the possession was not handed over within the agreed period nor lease deed was executed. This act on the part of the OP, according to the complainant, tantamount to deficiency of service and an act of unfair trade practice and accordingly this complaint was filed before this Commission for the redressal of his grievances as all their efforts made to settle the matter with the OP proved an exercise in futility.
5. OPs were noticed and they had filed reply resisting the complaint, stating that the complainant being speculating buyer is not a consumer within the meaning of Section 2 (l)(d) of the Act and thus not entitled to raise a consumer dispute and, secondly, the delay in handing over the possession of the flat is beyond their control inasmuch as construction material was not available. Infact there existed at the relevant time global slowdown in market. The OPs have denied the averments contained in the complaint.
6. The complainant had filed rejoinder rebutting the contentions raised and reiterating the averments contained in the complaint. Evidence by way of affidavit has also been filed. Written arguments have also been submitted. I have perused the records of the case and given a careful consideration to the subject matter.
7. The matter was listed for final hearing before this Commission on 18.11.2019 when the Counsel for both sides appeared and advanced their arguments, the complainant alleging deficiency of service on the part of the OP seeking a direction to the OPs for the execution of the deed and for compensation for the delayed period and the OPs for dismissal of the complaint on two accounts, namely, the complainant is not a consumer within the meaning of the Act and thus not entitled for any relief from the Consumer Commission and, secondly, the delay done was beyond their control and for reasons that an order passed by the Hon’ble National Green Tribunal restraining the OPs from continuing with the construction was stirring on their face.
8. After the conclusion of the arguments OPs were granted time till 25.11.2019 to file an affidavit to the effect that the delay in the construction was owing to the orders passed by the National Green Tribunal but no affidavit was filed. The affidavit to this effect was filed but the OPs are not able to satisfy that they were prohibited from completing the construction. Besides this Commission is unable to accept the contention that the OP claiming to be of a very organised set up having resources to meet different situation could not devise ways to complete the work within the agreed to more so when payment as required was paid.
9. The fact that there has been delay in handing over the possession of the flat booked by the complainant is indisputed. No cogent or tangible evidence could be led by the OPs to the contrary.
10. This leaves deliberations on the subject of interest for the delayed period and compensation. The law on the subject is very clear OPs are under on obligation to pay to the complainant interest and compensation in the event of delay in handing over possession. The Hon’ble NCDRC relying on their earlier decisions in the matter of Swarn Talwar and Ors. v. M/s Unitech was pleased to issue following directions in the similar circumstances in the matter of Parvinder Singh and Ors. v. M/s Unitech (CC-449/2013) decided on 12.2.2016 [MANU/CP/0028/2016]:
(a) The OP shall take necessary steps and deliver possession of the plot booked by the complainant to them within a period of six months from today.
(b) The OP shall pay to the complainants compensation in the form of simple interest @12% p.a. for the period starting after 18 months from the date of agreement, i.e., from 13.11.2012, till the possession is delivered to the complainant. The compensation in the form of interest till 29.2.2016 shall be paid to the complainant by 31.3.2016. Thereafter, compensation in the form of interest in terms of this order shall be paid on monthly basis by 10th day of each succeeding month.
(c) If the OP fails to deliver the possession of the plot to the complainant within 6 months from today, they shall pay compensation in the form of interest @18% p.a., for each day’s delay beyond six months from today in delivery of the possession of the plot, to the complainant.
(d) The OP shall also pay Rs. 10,000 as cost of litigation.
11. The Hon’ble NCDRC in the matter of Manoj Verma and Ors. v. Jaipuria Infrastructure Developers Pvt. Ltd., Consumer Complaint No. 38/2007 decided on 30.8.2018 is pleased to hold as under:
Considering all the facts and circumstances of the case, the OP is directed to pay compensation in the form of simple interest @ 8% p.a. to the complainants for the period the possession has been delayed i.e. from the date committed by the OP for the delivery of possession till the date of execution of the sale deeds, on the entire amount which they had deposited with the OP on or before the committed date of possession.
12. Hon’ble NCDRC in its recent decision in the matter of Shababh Nigam v. Orris Infrastructure Pvt. Ltd. & Anr., III (2019) CPJ 165 (NC)=CC-1702/2016, decided on 6.5.2019 is pleased is order as under:
The complaint is partly allowed and the OPs are directed as under:
(a) Complete the construction work and handover the physical possession of the flat complete in all respects as per agreement till 30th September, 2019 after obtaining occupancy certificate.
(b) The OP-1 shall pay interest @ 6% p.a. on the deposited amount by the complainant till the due date of possession from the due date of possession till the actual date of possession. For the amounts paid after the due date of possession, the interest shall be payable from the date of completion of one year from the date of deposit till the date of physical possession. The receivables of compensation in the form of interest @ 6% p.a. shall be adjusted at the time of possession before any due amount is taken from the complainant by the OPs.
(c) If the possession is not delivered till 30.9.2019, the complainant shall be at liberty to take refund of the total deposited amount along with interest @ 10% p.a. from the date of respective deposits till actual payment. OP-1 shall be liable to pay the same within a period of six weeks after receiving the request letter from the complainant. If the complainant does not ask for refund, he shall be entitled to get interest @ 6%p.a. as already ordered till possession is handed over.
13. The Hon’ble NCDRC in the matter of Satish Kumar Pandey and Anr. v. Unitech, as reported in III (2015) CPJ 440 (NC)=2015 Law Suit (Co) 998 is pleased to order in the similar circumstances as under:
(a) The opposite party shall deliver possession of the respective flats of the complainants to them on or before the last date stipulated in its letter dated 27.5.2015;
(b) The opposite party shall pay to (i) the original allottees and (ii) to those who acquired the allotment by way of repurchase, within one year of the date of the initial Agreement of their respective flats, compensation in the form of simple interest at the rate of 12% per annum with effect from 36 months from the date of the initial Agreement till the date possession is delivered to them. The interest payable till 31.8.2015 shall be paid by 10.9.2015, in three equal instalments, by the 10th of each month i.e. by 10th July, 2015, 10th August, 2015 and 10 September, 2015. Thereafter, compensation in the form of interest, in terms of this order, shall be paid on monthly basis by the 10th of each succeeding month.
(c) Such of the complainants, who acquired allotment of the flat by way of repurchase more than one year after the date of the initial allotment of their respective flats, shall be paid compensation by way of simple interest at the rate of 12% per annum, with effect from 36 months from the date of repurchase by them, till possession is delivered to them. They will also be paid compensation at the rate of Rs. 5 per square foot of the super area of their respective flat for the period between 36 months from the date of the initial Buyers Agreement of their respective flats and 36 months from the date of repurchase of the flat by them.
(d) The incr
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ease in service tax with effect from 1.6.2015 shall be borne by the opposite party, in all these cases. (e) If the opposite party fails to deliver possession by the last date stipulated in its letter dated 27.5.2015, it shall pay compensation to all the complainants in the form of simple interest at the rate of 18% per annum, for each day there is delay, beyond the date stipulated in the said letter dated 27.5.2015, in delivering possession to the complainants. (f) The opposite party shall pay Rs. 5,000 as the cost of litigation in each complaint. 14. Having regard to the legal position explained and keeping in view the facts and circumstances of the case I am of the considered view that the ends of justice would be met if the complaint is disposed with two folded directions to the OP, namely, (i) The OPs shall pay to the complainants compensation for the delayed period simple interest at the rate of 8% per annum with effect from the date the complainant was to be delivered the possession of the apartment/flat. This be paid to the complainant within 45 days from the date of receipt of certified copy of the order; and secondly, (ii) OPs shall ensure within 45 days execution of the sale deed of the apartment subject to the complainant having cleared the dues as per the initial agreement. Ordered accordingly. A copy of this order be forwarded to the parties to the case free of cost as statutorily required. Files be consigned to record. Complaint disposed of.