This consumer complaint has been filed by the complainant Mani Ram Yadav against the opposite party M/s. Conscient Infrastructure Pvt. Ltd. It has been alleged in the complaint that the possession of the flat was to be given within 36 months from the date of start of construction or signing of the builder- buyer’s agreement, whichever is earlier. In the present case, the construction started in May, 2011 and the agreement was signed on 19.07.2011. Thus, 36 months expired in May, 2014. Thus, the possession was due in May, 2014. The complaint was filed for handing over the possession and compensation for delayed possession. During the pendency of the complaint, the possession was handed over to the complainant by the opposite party. As the main prayer of granting the possession has already been satisfied, the remaining question of compensation for delayed possession has remained in the complaint to be considered.
2. The complaint was resisted by the opposite party on the ground that 36 months period was given for completion of the construction and it is mentioned in the Clause 18 of the builder-buyer agreement that after completion of construction, the builder shall apply for the occupancy certificate and after receiving the occupancy certificate, within 30 days notice in the shape of offer of possession will be given. Thus, there was no deficiency on the part of the opposite party and it was requested to dismiss the complaint.
3. Both parties led their evidence by way of affidavits, which were taken on record.
4. Heard the learned counsel for the parties and perused the record.
5. Learned counsel for the complainant stated that the possession has already been offered to the complainant, therefore, only question for compensation for delayed possession remains. It was stated by the learned counsel that Clause 18 of the builder- buyer agreement clearly states that possession will be given within 36 months from the date of start of construction or from the date of builder-buyer agreement, whichever is earlier. In the present case, the construction was started in May, 2011 and the builder-buyer agreement was signed on 19.7.2011. Thus, the possession was due atleast in May 2014 and the possession has been given in November, 2015. Therefore, the complainant is entitled to compensation for the delayed possession. There is a provision for compensation of Rs.10.00 per sq.ft. per month of super area for delayed possession in Clause 18 of the agreement. However, the same has not been completely paid by the opposite party.
6. It was argued by the learned counsel for the complainant that if there is delay in getting the occupancy certificate, the complainant cannot be asked to suffer and in this regard, the learned counsel referred to the judgment of this Commission in Prakash Vishwanath Tiwari Vs. M/s. Monarch & Qurwshi Builders & Ors., CC No.1833 of 2016, decided on 22.4.2019 (NC), wherein it has been observed:
“16. In the instant case the Complainant is not concerned with the tussle between both the Opposite Parties and it is their legal right to have the requisite Occupation Certificate before they occupy the flat purchased from the Opposite Parties and it is a contractual as well as legal obligation of the Opposite Parties to obtain such Occupation Certificate at their own cost and responsibility by removing all objections that are raised by the concerned authorities. By not obtaining the requisite Occupation Certificate before the promised date of delivery of possession or even within a reasonable period of time thereafter, the Opposite Parties committed an act of deficiency of service for which act of deficiency of service, they are liable to pay suitable compensation to the Complainant as no flat can be legally offered for being occupied by the purchaser without obtaining the requisite Occupation Certificate. Keeping in view the facts and circumstances of the case, specifically the Agreement between the two Opposite Parties, the contention of the Opposite Party No. 2 that he is not liable, is totally untenable.”
7. On the other hand, learned counsel for the opposite party stated that the period of 36 months is for the completion of the construction and the construction was completed in May, 2014. The application for occupancy certificate was filed in June, 2014 without wasting any time. The occupancy certificate has been obtained in the year 2015 and within 30 days as per the agreement the offer of possession was issued in November, 2015 and the possession was handed over to the complainant. As a good will gesture, the opposite party has also given a rebate of Rs.1,19,760/-. This is for the compensation for delay in getting the occupancy certificate. It was stated by the learned counsel that the penalty mentioned in Clause 18 @ Rs.5/- per sq.ft. per month for first three months and then for the next three months @ Rs.7.50 per sq.ft. and beyond this Rs.10/- per sq.ft. for further months is for delay in construction. As there is no delay in construction, the complainant is not entitled to this penalty. Learned counsel further mentioned that if the possession is given at the agreed rate (old rate) then, the complainant is not entitled to interest on the deposited amount as the cost of property itself increases. To support his contention, learned counsel referred to the judgment of the Hon’ble Supreme Court in Haryana Urban Development Authority Vs. Darsh Kumar, (2005) 9 SCC 449, wherein the following has been observed:-
“7. For reasons set out in the judgment in the case of Ghaziabad Development Authority v. Balbir Singh, the order of the National Commission cannot be sustained. As stated above, the relevant papers regarding the claim made, the affidavits filed and the evidence submitted before the District Forum are not produced before this Court. In this case, the District Forum has ensured that the possession is given at the old rate. Where possession is given at old rate the party has got benefit of escalation in price of land, thus there cannot and should not also be award of interest on the money. However, considering the fact that the allotment was far back and possession given very late, compensation towards mental agony/harassment should have been awarded. Compensation would also be awarded for escalation in costs of construction. In future, compensation must be given under these heads.”
8. To further strengthen his arguments learned counsel referred to the judgment of the Hon’ble Supreme Court in Bangalore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 711, wherein it has been observed:
“10 (c) Where an alternative site is offered or delivered (at the agreed price) in view of its inability to deliver the earlier allotted plot/flat/house, or where the delay in delivering possession of the allotted plot/flat/house is for justifiable reasons, ordinarily the allottee will not be entitled to any interest or compensation. This is because the buyer has the benefit of appreciation in value.”
9. Learned counsel for the opposite party further argued that as per the builder-buyer agreement, offer of possession has been given within 30 days from the date of receipt of occupancy certificate. The occupancy certificate was received in October, 2015 and the offer was given in November, 2015 itself. As per the agreement, there is no deficiency in service on the part of the opposite party and there is no delay in handing over the possession.
10. I have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties and have examined the material on record. First, it is seen that the construction was to be completed within 36 months and the possession was due in June, 2014. As per the agreement, the opposite party was to obtain the occupancy certificate, which has taken some time and therefore, there has been some delay in handing over the possession. In fact, no time limit has been estimated in the builder-buyer agreement and therefore, the date of possession remains uncertain. This is itself a kind of unfair trade practice. As has been clarified in Prakash Vishwanath Tiwari Vs. M/s. Monarch & Qurwshi Builders & Ors. (supra) that it is the responsibility of the builder/developer to obtain occupancy certificate before handing over the possession. Though, the complainant and the opposite party both have stated during the arguments that the possession was handed over in November, 2015, however, it is recorded in the order dated 08.03.2016 of this Commission that the possession was handed over on 14.2.2016. There is a provision for compensation for delay in possession in the agreement. Clause 18 reads as under:-
“For a delay of upto three months in completion of the said apartment: Rs.5.00 per sq. fit. per month of super area.
For a delay beyond three months upto nine months in completion of the said apartment: Rs.7.50 per sq.ft. per month of super area.
For a delay beyond nine months in completion of the said apartment: Rs.10.00 per sq.ft. per month of super area.”
11. Clearly there is a delay in handing over the possession. I do not agree with the assertion of the learned counsel for the opposite party that this compensation is for delay in construction because the exact date of completion of the construction would not be known to the consumer, therefore, the opposite party can always manipulate the date of the completion of the construction. Clearly this has to be interpreted as compensation for delay in handing over the possession. Learned counsel for the opposite party has stated that a compensation of Rs.1,19,760/- was already credited to the account of the complainant, which is roughly the compensation for 9 months. This also proves the point that this penalty is for delay in possession.
12. Hon’ble Supreme Court in Haryana Urban Development Authority Vs. Diwan Singh, (2010) 14 SCC 770 has observed that:-
“8. One significant aspect to be noticed is that respondent is not the allottee who was allotted the plot in 1990, but a re-allottee who was re-allotted the plot in April 1998. When he was offered possession of the plot in May 1998, he found that a part of it was used for purposes of road. Thereafter, the appellant even offered an alternative plot. The respondent however rushed to the District Forum in 1999, hardly within a year of re-allotment. The allegations of inordinate delay, negligence, harassment on the part of appellant, in a complaint filed by a re-allottee, within one year of re-allotment, appears to be hollow and without merit. In this factual background, having regard to the principles laid down in Ghaziabad Development Authority vs. Balbir Singh [2004 (5) SCC 65], Haryana Urban Development Authority vs. Darsh Kumar [2005 (9) SCC 449] and Bangalore Development Authority vs. Syndicate Bank [2007 (6) SCC 711], the award of interest was not warranted. A re-allottee in 1998 cannot obviously be awarded interest from 1992 on the amounts paid by the original allottee in 1990 on the ground that the original allottee was not offered delivery in 1990.”
13. Though the above judgment is in respect of the subsequent buyer, however, it emphasises the point that allottee cannot rush to file a consumer complaint if there is some delay either in getting allotment or getting the possession. Moreover, Hon’ble Supreme Court in Bangalore Development Authority Vs. Syndicate Bank, (supra) has observed the following:-
“As already noticed, where the grievance is one of delay in delivery of possession, and the Development Authority delivers the house during the pendency of the complaint at the agreed price, and such delivery is accepted by the allottee-complainant, the question of awarding any interest on the price paid by him from the date of deposit to date of delivery of possession, does not arise. The allottee who had the benefit of appreciation of price of the house, is not entitled to interest on the price paid. In this case, the 11 houses were delivered in 1997 at the agreed prices (Rs.5.5. lacs per corner HIG house and Rs.4.75 lacs per other High houses). In view of it, the order of the Commission awarding interest at 18% per annum on the price of the house is unsustainable and liable to be set aside.”
14. In the present case, the possession has been taken during the pendency of the current case, therefore, in the light of the above judgment of the Hon’ble Supreme Court in Bangalore Development Authority Vs. Syndicate Bank, (supra), the complainant is not entitled to any interest on the deposited amou
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nt as compensation. However, one thing is clear that as per Clause 18 of the builder- buyer agreement complainant is entitled to compensation for delayed possession. This compensation will be from the due date of possession till actual date of possession i.e. from 01.06.2014 to 14.02.2016. As no interest is being awarded on amount deposited by the complainant he is also entitled to a compensation of Rs.1,00,000/- (rupees one lakh only) for mental agony and harassment along with Rs.50,000/- (rupees fifty thousand only) as cost of litigation. Thus, the following order is passed:- ORDER The complaint is partly allowed and the opposite party is directed to pay to the complainant compensation for delayed possession in accordance with Clause 18 of the builder buyer agreement i.e. on the following rates:- (i) From 01.06.2014 to 31.08.2014 @ Rs.5.00 per sq.ft. per month. (ii) From 01.09.2014 to 28.02.2015 @ Rs.7.50 per sq.ft. per month. (iii) From 01.03.2015 till 14.02.2016 @ Rs.10.00 per sq.fit. per month. The opposite party is also directed to pay a compensation of Rs.1,50,000/- (rupees one lakh fifty thousand only) for mental agony and harassment as well as Rs.50,000/- (rupees fifty thousand only) as cost of litigation. The order be complied with by the opposite party within a period of 45 days from the date of receipt/service of this order.