This consumer complaint has been filed by the complainant Ashish Aggarwal against the opposite party Pioneer Urban Land & Infrastructure Limited.
2. Brief facts of the complaint are that complainant booked an unit with the opposite party and the allotment letter was issued on 10.5.2010. The builder-buyer agreement was signed on 13.8.2010. The total consideration of the unit was Rs.1,42,77,460/- and the complainant had paid Rs.1,33,45,214/-. As per the builder-buyer agreement, the possession was to be given within 36 months with 180 days as grace period. Thus, the possession was due on 13.02.2014, however, the possession was not delivered in time. The opposite party offered possession on 20.11.2018. The complainant did not take the possession and filed the consumer complaint before this Commission.
3. The complaint has been resisted by the opposite party by filing the written statement and it is stated that the project has been delayed, however, the offer letter has been issued on 20.11.2018 and there is some demand against the complainant. As soon as the complainant pays the demand, the complainant can take the possession. The opposite party has no interest in holding on to the inventory for which watch and ward charges have been levied against the complainant. The complaint has mainly been filed for getting compensation for delay in handing over the possession. Clause 9.5 of the agreement clearly states that if there is a delay about one year, a compensation at the rate of Rs.5/- per sq.ft. per month will be paid to the allottee and if the delay is more than one year, then the compensation may be paid at the rate of Rs.10/- per sq.ft. per month. Thus, there is an adequate provision for compensating the allottee for delay in possession. The occupation certificate has already been obtained for the present project and there is no impediment in handing over the possession, but the fact is that the complainant is delaying taking over of the possession.
4. Both parties filed their evidence by way of affidavits which have been taken on record.
5. Heard both the learned counsel for the parties and perused record. Learned counsel for the complainant, apart from narrating the facts of the complaint, stated that even the full compensation for the delayed possession as per the provisions of the agreement has not been adjusted in the demand. It has been alleged that instead of Rs.30,43,608.27, only Rs.11,69,452/- has been adjusted. The reason for deduction is not known. The leaned counsel further stated that certain taxes particularly service tax and extra amount collected by the opposite party for parking spaces should be refunded by the opposite party.
6. On the other hand the learned counsel for the opposite party stated that there has been delay in completion of the project, however, the occupancy certificate has been obtained and possession has been offered to the complainant on 20.11.2018. There is already a provision in the agreement for compensating an allottee for delay in possession @ Rs.5/- per sq. ft. per month for the first year and then @Rs10/- per sq.ft. per month beyond one year. Thus, if the complainant wanted to take the possession, there was no need to file the complaint as the opposite party is also willing to handover the possession and does not want to carry inventory unnecessarily. In fact, it is wrong to say that any unauthorised demand has been raised in the offer letter dated 20.11.2018. The demand is mainly for the stamp duty for registering the flat and for the remaining amount of the consideration as per the agreement. The complainant has to pay this demand as per the agreement.
7. After hearing both the parties, I reach to the conclusion that the complainant is willing to take the possession as the complaint has been filed mainly for getting the possession and the opposite party is also willing to hand over the possession as quickly as possible. Thus, there seems to be no impediment in taking over and handing over the possession of the unit in question. There is already an arrangement in the agreement for compensation for delayed possession. This Commission in many of its judgments has held that the compensation at the rate of Rs.5/- per sq.ft. per month or even at the rate of Rs.10/- per sq.ft. per month is not sufficient to compensate the allottee for the economic loss and physical harassment meted out to the allottee. Thus, in the facts and circumstances of the case, I deem it appropriate to allow compensation in the form of interest at the rate of 6% p.a. instead of Rs.5/- or Rs.10/- per sq.ft. per month, on the amount deposited prior to the due date of possession as per the agreement from the date of due possession which is 13.2.2014 till actual date of possession. If any amount has been deposited after the due date of possession by the complainant, then, interest of 6% p.a. shall be payable on that amount from the date after lapse of one year from the date of deposit of that amount till the date of actual possession as the amount is supposed to be invested within one year in the project.
8. So far as the question of refund of the amounts paid for taxes and parking spaces is concerned, the complainant has availed the services from the opposite party by depositing these amounts and therefore, the refund cannot be considered in the present consumer complaint and it is open to the complainant to file suit for recovery of these amounts. In taking this view, I am supported by the decision of the Hon’ble Supreme Court in State of Punjab and Ors. Vs. Dhanjit Singh Sandhu, Civil Appeal Nos.5698-5699 of 2009 decided on March 14, 2014, wherein the following has been observed:-
“21. ……………..The said demand was rejected by the Estate Officer by passing the reasoned order in compliance of the directions of the High Court. In the facts of the instant case, we have no doubt in our mind in holding that the ratio decided in Tehal Singh's case will not apply in the instant case. In our considered opinion defaulting allottes of valuable plots cannot be allowed to approbate and reprobate by first agreeing to abide by terms and conditions of allotment and later seeking to deny their liability as per the agreed terms.
25. It is evident that the doctrine of election is based on the rule of estoppel the principle that one cannot approbate and reprobate is inherent in it. The doctrine of estoppel by election is one among the species of estoppel in pais (or equitable estoppel), which is a rule of equity. By this law, a person may be precluded, by way of his actions, or conduct, or silence when it is his duty to speak, from asserting a right which he would have otherwise had.”
9. On the basis of the above discussion, the consumer complaint No.1761 of 2016 is allowed as under:-
(i) The opposite party shall handover the possession of the flat in question to the complainant complete in all respects as per the builder-buyer agreement within 3 months from the date of receipt of this order if not already delivered.
(ii) The opposite party shall pay compensation in the form of interest at the rate of 6% p.a. instead of Rs.5/- or Rs.10/- per sq.ft. per month, on the amount deposited prior to the due date of p
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ossession as per the agreement from the date of due possession which is 13.2.2014 till actual date of possession.If any amount has been deposited after the due date of possession by the complainant, then, interest of 6% p.a. shall be payable on that amount from the date after lapse of one year from the date of deposit of that amount till the date of actual possession. This amount shall be adjusted against the demand of opposite party at the time of giving possession.Any compensation paid earlier for delay in possession shall be adjusted in this payment. (iii) The opposite party shall also pay Rs.10,000/- as cost of litigation to the complainant. (iv) Also opposite party will be entitled to charge watch and ward charges as per the agreement from 01.01.2019 till date of actual possession.