ORDER
This consumer complaint has been filed by the complainant Deepak Aggarwal alleging deficiency in service on the part of the opposite party Experion Developers Pvt. Ltd.
2. Heard the learned counsel for the parties and perused the record. Learned counsel for the complainant stated that the booking for a flat was made on 02.07.2012 and the agreement was signed on 20.12.2012. The said flat was transferred to the present complainant Deepak Aggarwal on 6.2.2013. As per clause 10 of the agreement, the possession was to be delivered within 42 months and the possession was due on 19.06.2016. Even, if the grace period of six months is considered, the time for possession expired on 19.12.2016. The possession was offered on 07.12.2017. As the facilities were not completed, the possession was not taken by the complainant. About two months before the date of possession, the opposite party sent a letter giving intimation for increase of area in the said flat. An increase in area was communicated and additional demand of 125 sq.ft. was also made by the opposite party. In support of his argument, learned counsel for the complainant referred to the following judgments:-
1. Rahul Pande Rao Vs. M/s. Unitech Limited, CC No.1035 of 2015, decided on 19.8.2016 (NC). It has been held that:-
"10. …… In my view, the opposite party cannot in law offer possession of the flats to the allottees, without obtaining the requisite Occupancy Certificate / part Occupancy Certificate which permits occupation of the allotted flats. The opposite party should also provide all the amenities and facilities as per its contractual obligations, since it will not be possible for the allottees to enjoy the possession of the flats without such facilities and amenities being in place. It goes without saying that the flats should otherwise be complete in all respects and should be in a habitable position at the time the possession is offered."
3. Learned counsel for the complainant further argued that if there is delay in handing over the possession beyond the committed date of possession, complainant will be entitled to seek
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refund along with compensation as has been held in Thangavel Palanivel & anr. Vs. M/s. DLF Southern Homes Private Ltd., CC No.304 of 2015, decided on 29.8.2016 as under:-
11. ……. In my view, since the opposite party committed default in performing its contractual obligation, by failing to offer possession of the flat to the complainants on or before the date committed in the Buyers Agreement, the complainants cannot be compelled to accept the possession of the said flat at this belated stage."
4. The compensation can be granted in terms of interest on the deposited amount and this Compensation in Shri Satish Kumar Pandey & Anr. Vs. Unitech Ltd., CC No.427 of 2014, decided on 08.6.2015, (NC) has allowed 12% p.a. interest to the complainant. Learned counsel also referred to the judgment of Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65, wherein it has been emphasised that a person seeking refund who is not getting the accommodation is entitled to more interest as compared to the person who is getting the possession. From this angle, interest should be awarded more than 12% p.a.
5. It was vehemently argued by the learned counsel for the complainant that when the possession was delayed and offer of possession was given without completing the facilities and amenities under the project and moreover the area of the flat has been increased without any reason, the complainant has every right to seek refund. The complainant cannot be compelled to take possession when the place is not in a habitable condition.
6. On the other hand, learned counsel for the opposite party stated that there was only one year delay in offering the possession. The possession was due on 19.12.2016. However, the occupation certificate was obtained on 06.12.2017 and accordingly the offer of possession was sent on 07.12.2017. There is already a provision in the agreement that for delay in possession a compensation of Rs.7.5 per sq. ft. per month will be offered to the allottee. Thus, if there is a delay of only one year and the same is to be compensated by compensation as provided in the agreement, there should be no ground for seeking refund in the matter. Complainant has paid about Rs.10,00,000/- in October, 2017, which was the date beyond committed date of possession. In a way, the complainant had waived his objection for the delay. By that time the building was already completed as occupation certificate had been obtained on 06.12,2017. Thus, the complainant was committed to take possession of the property till October 2017, just two months before the offer of the possession was sent. The complainant is only seeking refund as the real estate market is down these days.
7. Learned counsel for the opposite party further argued that all the facilities were completed and occupancy certificate can only be obtained when the building has been constructed as per the approved plan and all basic facilities are there. It is quite possible that certain facilities are in completion stage. The agreement is basically for the flat and the facilities are for the whole project. Thus, the complainant is not justified in refusing the possession and asking refund on this ground.
8. So far as the increase in area is concerned, as there is already a provision in the agreement in Clause 8.1, which allows opposite party/builder to change the area of a flat in the final layout up to 10% of the area. In the present case, it is only about 125 sq.ft. excess area for which the demand has been made. This area is less than 10% of the original area. Sometimes these changes are necessary to get final approval for the project and these are only
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some adjustments which have to be made finally. Thus, increase in area is as per the provision of the agreement and the complainant cannot say that the agreement has been breached. The complainant was already aware that the project was already delayed. There have been also delays in payment of instalments and the complainant has paid an interest for delayed instalments to the tune of roughly Rs.2 lacs. Learned counsel for the opposite party further stated that the facilities mentioned by the complainant in his complaint are the facilities which figure only in the brochure, but they are not part of the agreement signed with the complainant. In this regard, learned counsel relied upon the judgment of this Commission in Tirumala Garden Flat Owners Vs. Tirumala Homes Pvt. Ltd. & anr., RP No.3998 of 2012, wherein the following has been observed:-
"11. We have gone through the agreement for sale. It is a contract between petitioner and the respondents. We are of the view that the petitioner cannot hold the respondents liable for what is not included in the agreement for sale. The brochure is not in the nature of a contract. Further, the petitioner entered into the individual agreements of sale with open eyes. We agree with the findings of the State Commission that "there is no agreement between the complainant and the OP to provide such facilities as agitated by the complainant, the said Commissioner report is not helpful for the complainant." As observed by the State Commission, the complainant has failed to file any agreement between the members of association and the builder to prove that the said works referred to in the complaint were agreed to be done by the respondents/opposite parties."
9. As the occupation certificate has not been challenged before the competent authority, it has to be construed as completion of building as per the approved plan.
10. On the above grounds, learned counsel for the opposite party stated that the complainant is not entitled for refund and if he wants to take possession of the flat, the opposite party is ready to give possession. In respect of increase in area, the architect has given certificate and based on the architect's certificate, increase in area for the flat has been calculated. Once there is an increase in super area, the allottee has to pay the price for this area. Accordingly, increase in super area is within the permissible limit as per the agreement and therefore, the complainant cannot seek refund on this ground. Learned counsel further stated that the complainant is an investment banker and he has booked this flat for investment purposes. Accordingly, he is not a consumer.
11. It was further argued by the learned counsel for the opposite party that in October, 2017, the complainant had paid part of the consideration amounting to Rs.10,98,900/-. It means that the complainant was ready to take possession atleast till that time. Occupation Certificate was obtained on 06.12.2017 and offer of possession was sent on 07.12.2017 itself. A builder invests money in construction on the basis of amounts received from the allottees and if a complainant suddenly asks for refund without any reason, then earnest clause should be attracted and refund should not be ordered.
12. I have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties and have examined the material on record.
13. From the facts of the case, it is clear that as per the agreement, the possession was due by
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19.06.2016 and if the grace period was also allowed then the possession was due by 19.12.2016. The complainant made payments till October, 2017 and the offer of possession was issued on 07.12.2017 after obtaining the occupation certificate by the opposite party. Thus, there is clearly a delay of one year in issuance of offer of possession, but it is also a fact that the complainant has paid amounts beyond the date of possession and the last payment of Rs.10,98,900/- was made in October, 2017. It is thus clear that the complainant had waived off the objection of delay and further consideration was paid to the opposite parties. For big projects having flats worth more than Rs.2 crores, the delay of about one year is not very uncommon and if the allottee is a real purchaser and does not want profit from the flat, he will definitely go for taking the possession. However, there may be circumstances when allottee may seek refund if there is inordinate delay in getting the possession. In the present case, though legally it can be said that the opposite party has breached the agreement as it could not deliver the possession by the due date of 19.12.2016 and allottee may seek refund on certain pressing grounds. In the present case, the only ground mentioned for seeking refund is that there is no development of facilities and amenities. Once the occupation certificate has been obtained on 06.12.2016, it is broadly implied that the facilities are in place. Moreover, if occupation certificate has been issued, the flat would be considered to be complete atleast from the point of view of facilities and amenities required for the flat as per the agreement. Therefore, there is no merit in the assertion of the complainant that the complainant did not take the possession as the amenities and facilities were not complete.
14. The issue of earnest money is not attracted in the present case as the period of due possession had already expired and then amount has been asked to be refunded. The breach of the agreement has first been committed by the opposite party as they did not complete the flat within the stipulated period as given in the agreement.
15. The complainant has made last payment of Rs.10,98,900/- in October, 2017 and therefore, it appears that the complainant had no intention of seeking refund and would have had full mind set to go for the possession of the flat. If allottees change their mind and seek refund without any reason, it will be difficult for any builder to complete the project. In fact, developers/builders develop project from the fund collected from the allottees and these funds are invested in the project. Keeping this consideration and the peculiar facts of the case in view, the complainant should not be eligible to get any interest on the amount of refund. However, keeping the interest of complainant in mind, an interest equal to savings bank rate of interest prevailing in nationalised banks @4% can be granted.
16. Based on the above discussion, the Consumer Complaint No.463 of 2018 is partly allowed and the opposite party is directed to pay Rs.2,20,09,804/- along with 4% p.a. interest from the date of respective deposits till actual payment. The order be complied within a period of ten weeks from the date of receipt/service of this order.
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PREM NARAIN
PRESIDING MEMBER
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