JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL) The complainants entered into identical agreements with the opposite party, for purchase of residential flats in a project known as Burgandy, which the opposite party is developing in Sector-
96 to 98 of Noida of Uttar Pradesh. The price of the flat booked by the complainants with the opposite party was agreed at Rs. 3,84,86,994/- each in all the three Consumer Complaints. As per clause 5 of the allotment letter issued to the complainants, the possession was to be offered to them within 30 months from the receipt of the duly signed terms and conditions by the allottees. The allotments to the complainants were made in October, 2010. The possession, therefore, was required to be offered to them in April, 2012. Clause 5(v) of the allotment letter provided for payment of compensation @ Rs. 10/- per sq. ft. per month of Super Area by the opposite party in case of any unreasonable delay in offering the apartment for interiors/fit outs beyond the stipulated date.
2. The grievance of the complainants is that despite they having paid more than 95% of the agreed sale consideration to the opposite party, the possession has not been offered to them and in fact the construction of the flats is still far from complete. The complainants are, therefore, before this Commission, seeking a direction to the opposite party to deliver possession of the flats booked by them at the earliest and pay suitable compensation instead of a notional contractual amount of Rs. 10/- per sq. ft. per month. They are also seeking interest @ 18% per annum on the amount paid by them to the opposite party, besides compensation for mental harassment and agony.
3. The complaints have been resisted by the opposite party on several grounds including that considering the terms and conditions agreed between the parties, in the event of delay their liability is restricted to payment of compensation @ Rs. 10/- per sq. ft. per month of the Super Area for the period offer of the possession is delayed. The opposite party has also sought to justify the delay in offering possession, on several grounds which have already been the subject matter of the consideration by this Commission in a number of cases.
4. In Satish Kumar Pandey & Anr. Vs. M/s. Unitech Ltd., Consumer Case No. 427/2014 and connected matters decided by this Commission on 08.06.2015, the complainants had booked apartments with the opposite party, M/s. Unitech Ltd. in a complex known as Vistas, which it was developing in Sector- 70 of Gurgaon. The possession of the apartments was agreed to be delivered to the buyers within 36 months from the date of their respective agreements. Since possession was not offered to them nor was the construction complete in terms of the buyers agreement, the complainants approached this Commission, seeking delivery of possession of the flat agreed to be sold by them or in the alternative payment of current market value of the flat, which was stated to be at Rs. 10,000/- per sq. ft. They also sought compensation for loss of rental income to them with effect from the stipulated date of possession, compensation as per the contractual agreement entered between the parties and compound interest @ 18% per annum with effect from the stipulated date of possession. The complaints were resisted by the opposite party, M/s. Unitech Ltd. on several grounds. The aforesaid grounds were incorporated in para 2 and 3 of the decision which reads as under:-
2. The complaints have been resisted by the OP on several grounds though it has admitted the agreement for sale of apartments to them. It is also stated in the reply that though the possession of the apartments was proposed to be delivered to the purchasers within 36 months, the said date could be extended if the completion of the project was delayed due to non-availability of essential building material, water supply, slow down, civil commotion and other reasons beyond the control of the opposite party. It is claimed that :- (a) Real Estate Industry is adversely affected due to local and national economic conditions, (b) There is recession in the economy resulting in the availability of labour and raw-materials becoming scarce. (c) Common-wealth games organised in October 2010 resulted in extreme shortage of labour in the NCR region. (d) There was shortage of labour due to implementation of social schemes like National Rural Employment Guarantee Act (NREGA) and Jawaharlal Nehru Urban Renewal Mission (JNNURM). (e) There was extreme shortage of water in NCR region, which was further accentuated due to orders of Punjab and Haryana High Court stopping of use of ground water for construction activities. (f) There was shortage of bricks due to restrictions imposed by Ministry of Environment and Forest on brick klins. (g) There was shortage of sand due to mining having been suspended in Aravali Hill Range. 3. It is also claimed in the reply that in view of clause 4.c.ii) of the agreement, the opposite party is required to pay only the compensation @5/- per sq. ft. per month for the delay in offering possession. Yet, another plea taken in the reply is that since the cost of the flat was less than 1 crore, the complaint is maintainable only before the concerned State Commission and not before this Commission.
5. Rejecting the grounds on which the complaints were opposed, this Commission directed 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 27.05.2015; (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 31.08.2015 shall be paid by 10.09.2015, in three equal instalments, by the 10 of each month i.e. by 10 July, 2015, 10th th August, 2015 and 10 September, 2015. Thereafter, compensation in the form ofth th interest, in terms of this order, shall be paid on monthly basis by the 10 of eachth 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 increase in service tax with effect from 01.06.2015 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 27.05.2015, 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 27.05.2015, in delivering possession to the complainants. (f) The opposite party shall pay Rs.5,000/- as the cost of litigation in each complaint.
6. Similar complaints against Unitech Ltd. came up for consideration of this Commission in and connected cases,Santosh Johari & Ors. Vs. Unitech Ltd., Consumer Case No. 429/2014 decided on 08.06.2015. The grounds on which the above referred complaints were resisted are given in para 2 and 3 of the decision and read as under:-
2. The complaints have been resisted by the OP on several grounds though it has admitted the agreement for sale of apartments to them. It is also stated in the reply that though the possession of the apartments was proposed to be delivered to the purchasers within 36 months, the said date could be extended if the completion of the project was delayed due to non-availability of essential building material, water supply, slow down, civil commotion and other reasons beyond the control of the opposite party. It is claimed that :- (a) Real Estate Industry is adversely affected due to local and national economic conditions, (b) There is recession in the economy resulting in the availability of labour and raw-materials becoming scarce. (c) Common-wealth games organised in October 2010 resulted in extreme shortage of labour in the NCR region. (d) There was shortage of labour due to implementation of social schemes like National Rural Employment Guarantee Act (NREGA) and Jawaharlal Nehru Urban Renewal Mission (JNNURM). (e) There was extreme shortage of water in NCR region, which was further accentuated due to orders of Punjab and Haryana High Court stopping of use of ground water for construction activities. (f) There was shortage of bricks due to restrictions imposed by Ministry of Environment and Forest on brick klins. (g) There was shortage of sand due to mining having been suspended in Aravali Hill Range. 3. It is also claimed in the reply that in view of clause 4.c.ii) of the agreement, the opposite party is required to pay only the compensation @5/- per sq. ft. per month for the delay in offering possession. Yet, another plea taken in the reply is that since the cost of the flat was less than 1 crore, the complaint is maintainable only before the concerned State Commission and not before this Commission.
7. Repelling the contentions advanced by the learned counsel for the opposite party, this Commission disposed of the complaint with the following directions:- (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 27.05.2015; (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 31.08.2015 shall be paid by 10.09.2015, in three equal instalments, by the 10 of each month i.e. by 10 July, 2015,th th
10 August, 2015 and 10 September, 2015. Thereafter, compensation in the form ofth th interest, in terms of this order, shall be paid on monthly basis by the 10 of eachth 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 increase in service tax with effect from 01.06.2015 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 27.05.2015, 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 27.05.2015, in delivering possession to the complainants. (f) The opposite party shall pay Rs.5,000/- as the cost of litigation in each complaint.
8. The present complaints have been resisted on those very grounds, which this Commission has already rejected in Satish Kumar Pandey & Anr. (Supra) and Santosh Johari & Ors. (Supra) by way of detailed order and therefore those grounds need not to be expressly dealt with in this order.
9. During the course of arguments, it was contended by the learned senior counsel for the opposite party that even if this commission is of the view that contractual compensation will not meet the end of justice, the complainants are not entitled to more than the market rent of the flats which they had booked with the opposite party or a similar flat in a nearby locality. The learned counsel for the complainants on the other hand submits that if the complainants is not residing in a rented accommodation but continues to live in an accommodation which is otherwise not suitable to him solely because of the accommodation booked by him having not been offered in time, it will cause a financial loss to him, since despite having paid the price of the flat in which they wanted to live they are unable to do the same. He further states that even if somebody is living in a rented accommodation, that may not necessarily be of the same size and specifications and/or may not be situated in the same locality in which the accommodation booked by him is to be constructed by the opposite party. He further submits that accommodation in which the flat buyer is compelled to live on account of failure of the opposite party to offer possession within the agreed period may not have the same facilities and amenities which the opposite party has agreed to provide in the flat booked by the flat buyer. He also submits that in case the flat buyer is not living in a rented accommodation it may not be possible for him to prove the prevailing market rent since no one would be willing to handover his lease paper to the flat buyer and not every lease deed would be a registered instrument since the lease deed of less than one year do not require registration. He also highlights the mental agony and pain of a person who despite having paid his life time earnings to the builder and in some cases having taken loan on interest is unable to realise his dream of living in a house of his choice. He also submits that the mental satisfaction of living in ones own house cannot be compared to that of living in a rented accommodation even if it has same size and specifications and is situated in the same or a comparable locality.
10. Be that as it may, considering all the facts and circumstances of the case including the contentions advanced by the learned counsel for the complainants and the previous decision of this Commission, I am of the view that the present complaints should be disposed of in the lines of the previous decisions of this Commission in Satish Kumar Pandey & Anr. (Supra) and Santosh Johari & Ors. (Supra). However, considering that in these complaints, the opposite party has not come out with a revised schedule for offering possession of the apartments to the complainants, the opposite party can be given a reasonable time of two years to complete the construction.
11. For the reasons stated hereinabove, the complaints are disposed of with the following directions:-
(i) The opposite party shall offer possession of the flats booked by the complainants to them on or before 31.10.2017.
(ii) The opposite party shall pay to the complainants, compensation in the form of simple interest @ 12% per annum w.e.f. 16.04.2013 till the date on which possession is offered to them or till 31.10.2017, whichever be earlier. The interest payable till 31.12.2015 shall be paid in three equal instalments. The first instalment shall be paid by 10.01.2016, the second instalment by 10.02.2016 and the third instalment by 10.03.2016. The compensation in the form of interest for the period w.e.f. 01.01.2016 shall be paid on monthly basis by the 10 of each succeeding month.th
(iii) If the opposite party fails to offer possession by 31.10.2007, it shall pay compensation to the complainants in the form of simple interest @ 18% per annum for each day there is delay, beyond 31.10.2017, in offering possession to the complainants.
(iv) The opposite party shall also pay Rs. 5,000/- as cost of litigation in each case. ......................J
V.K. JAIN PRESIDING MEMBER