Smt. Nirmala Srivastava v. L.D.A.

complainant vide letter dated 29.09.2011 opposite party issued instalment letter. Thereafter the complainant further requested to the opposite party for change of the floor of the flat in question upon which the opposite party transferred the allotment from flat number SG/R/1506 , 15^TH Floor to SG/R/406 , 4^THFloor on the same terms and conditions after taking transfer charges of

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₹30,900/-. The complainant paid a total sum of ₹ 3,404,922/- from 20.05.2011 to 30.04.2013 and sent a letter dated 10.05.2013 to LDA mentioning the details of deposited amount and requested to inform the date of handing over the possession of the flat in question.

Despite the fact that the opposite party has taken a sum of ₹ 3,404,922/- against the total cost of ₹ 3,090,000/- of the flat in question and till date did not offer the delivery of possession of the flat in question which is deficiency of service on the part of the opposite party and also the opposite party has committed Unfair Trade Practice. The complainant is a widow Lady and also a senior citizen and is in dire need of the flat in question for residential purposes as such she demanded her flat as earliest and as per their own commitments of the opposite party. The flat in question was to be handed over after completion in the year 2013 but till date the flat in question is not completed and the complainants are suffering a huge inconvenience and bearing financial losses for which the opposite party is liable to compensate the complainant.

Despite several visits are of the site as well as the office of the opposite party they did not complete the work of any of the tower and several allottees are running from pillar to post for their flats are and their hard earned money has been blocked. The complainant also send a Legal Notice dated 24.01.2017 to the opposite party for handing over the flat in question. The complainant and her representative made several visits of the construction site of the opposite party where it was revealed that the construction activities on the

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site was held up on which the protest was lodged with the opposite party who assured that the possession shall be delivered very shortly but the progress of the construction was not satisfactory. The complainant felt cheated and underwent a lot of mental agony and pain and again made a visit of the construction site which revealed that there was no activity of construction going on this site and is not likely to complete in next several years also. The complainant demanded the possession of the allotted flat regularly after depositing all the instalments on their due dates, the same was avoided by the opposite party on the pretext that

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the construction activities are on the peak and possession shall be delivered to the complainants very soon.

The complainant had to undergo a lot of mental agony and stress by the attitude of the opposite party, since the opposite party failed to provide the possession of the apartment which caused the complainant huge financial losses.

From the aforementioned facts it is ample clear that the opposite party has obtained huge sum of money from the entire allottees of the scheme and instead of putting the same for the development of the flats misappropriated the same, for which the opposite party and their officials are liable to produce the expenditure and account statement of the scheme before this Hon'ble Commission. The opposite party has committed serious deficiency and negligence in services by not delivering the physical possession of the allotted apartment to the complainant within time and violated his terms and conditions. The opposite party is also accountable

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for Unfair Trade Practice since they have enjoyed and utilise the hard earned money of the complainant along with several thousand of allottees without providing the possession of the apartments/flats. The complainant is consumer and This Hon'ble Court has jurisdiction to try this case. The complainant sought information about the project in question but no information and documents were provided by the opposite party while as per the Uttar Pradesh Apartment (Promotion of Construction, Ownership And Maintenance) Act, 2010 , these information are mandatory to provide by the builders/contractors/promoters to their customers as such the opposite party violated the provisions of the Uttar Pradesh Apartment (Promotion of Construction, Ownership And Maintenance) Act, 2010 which amounts to deficiency in service. So the complainant most respectfully prays this Hon'ble commission to direct the opposite party to provide physical possession of the fully finished flat in question at a total cost of ₹ 3,090,000, to direct opposite party pay interest at a rate of 18% on the amount deposited by the complainant with effect from the respective dates of deposit till the date of delivery of actual possession along with the damages, to direct the opposite party to refund the excess amount of ₹ 314,922/-, to direct the opposite party to pay a sum of ₹ 10 lakhs as damages for committing deficiency in service, to direct the opposite party to pay the difference in the cost of escalation that shall be incurred at the time of the execution of the registered sale deed, to direct the opposite party to pay a sum of ₹ 1 lakh towards cost of the case.

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The opposite party has submitted in his written statement that as per the report the possession of flats under the scheme of Sargam Apartment is proposed to be delivered by March to 2018 and the allottees have option to take refund with interest at a rate of 9% of their deposits. The

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complainant did not deposit excess amount for her flat. There is no more averments in the written statement filed on 12.02.2018 by Estate Officer of LDA Ms. Snigdha Chaturvedi. We have heard the councils of both the parties and perused the pleadings, evidences and documents filed by the parties.

The complainant filed her evidence on 16.10.2019 in which she affirmed the statements of the complaint and also showed the details of amount deposited at various dates. The schedule of deposited amount is as follows;

20.05.2011 ₹ 150,000/- Registration Amount

01.11.2011 ₹ 3 ,00,000/- Instalment Amount

06.02.2012 ₹ 4,87,337/- Instalment Amount

02.05.2012 ₹ 4,87,337/- Instalment Amount

30.07.2012 ₹ 4,87,337/- Instalment Amount

01.11.2011 ₹ 4,87,337/- Instalment Amount

07.01.2013 ₹ 4,87,337/- Instalment Amount

30.04.2013 ₹ 4,87,337/- Instalment Amount

29.05.2012 ₹ 30,900/- Floor exchange fee (Cash)

TOTAL : 34,04,922/-

The complainant has further said in her evidence that she has paid ₹ 3,404,922/- without any default against the cost of the flat of ₹ 3,090,000/-. So she paid all the amount in

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time but the opposite party did not deliver the possession of the flat in question. On behalf of LDA, Ms. Snigdha Chaturvedi filed her evidence on affidavit on 9 February 2021. In her evidence she reiterated her statement submitted by way of written statement. She stated that "after allotment of the other prevalent terms/rules of Lucknow Development Authority and amendments/changes/enhancement done from time to time by the authority or the administration would be applicable and valid. In case if the possession of flat is not given in time the option of taking refund of deposited amount along with 9% simple interest to the allottees under applicable rules and regulations. It is specifically mentioned that ₹ 50/- is less

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deposited in OTS by complainant so condition for 1 instalment is not fulfilled hence OTS in instalments are applicable till date 25 May 2021 after that it will be deemed to be fail as complainant cannot make opposite party liable for all the wrong acts of her own. It is specifically mentioned that flat when allotted, in allotment letter estimated cost has been given and when final costing will be done on actual increase in area and other charges including freehold, water, sewage and taxes, then it will be duly informed to the complainant. Opposite party has decreased amount of GST ₹ 34,200/- in the calculation. The opposite party has done all acts according to procedure and due information was given to the complainant. The Complainant has deposited ₹ 50 less in OTS so her matter or grievance is not settled and the complainant cannot take advantage of its own wrongs and other government

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charges/dues i.e. Stamp and other charges has to be deposited and after clearing all dues/taxes, only then sale deed can be executed and registered in favour of the complainant and possession will be given. In para 4 of the evidence, the opposite party has submitted the fact of transferring the floor of the flat of the complainant's request which the complainant has already accepted. In para five of the evidence what is written is to be reproduced as follows:

"5- that complainant has applied for OTS dated 9-12/10/2020 and for payment due amount under OTS scheme letter dated 27.10.2020 was handed over to Mr Aman who is pairokar of complainant on 03.11.2020 , email was done and mobile message was given by opposite party/LDA then by way of SBI bank ₹ 1,029,934.35/- was received against registration I.D of complainant deliberately and due amount was to be deposited ₹ 1,029,984.35/- is annexed Annexure No 3 letter of payment in OTS schedule and annexure No 4 Chalan print dated 10.11.2020 Re: do amount deposited by complainant for kind perusal of this Hon'ble commission".

Further the opposite party in para 7 of her evidence has stated that "the opposite party, due to unavoidable circumstances beyond its control and other issues involved. Opposite party is government organisation for public welfare in Housing Scheme and gives accommodation on subsidised rates and due to force majeure clause applicable and default of single penny is audited by other government agencies. The opposite party has never ever done any deliberate action. Which all will

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be explained and argument will be presented before this Hon'ble Commission at the time of hearing and dispute from farmers documents and photographs paper cutting enclosed for kind perusal of this Hon'ble commission as annexure no. 5. It is specifically mentioned that delay is done on behalf of complainant also by not depositing required amount despite of communication and it is at option if complainant not interested then refund can applied regarding deposited amount which will be refunded according to

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terms and conditions applicable along with the 9% simple interest to the allottee /complainant".

Now one can see the language and grammar used by a State government agency in the above two paragraphs within quote.

Further the opposite party has stated that the complainant has tried to misuse the powers of the judiciary by trying to influence through his husband who is a judge as per letters contain in records available. In view of the present fact and circumstances here in above it is expedient in interest of justice that Hon'ble commission may pleased to dismiss the complaint and by giving colours on the ground of taking undue advantage and misrepresentation of facts.

The opposite party has also submitted written arguments and in the written argument more and more new facts have been submitted which are lacking in the written statement. The opposite party should know that evidence and arguments can be forwarded only for the facts mentioned in the written statement. Again on 2

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February 2021, another additional/supplementary evidence has been filed by the opposite party. It shows that the opposite party is playing with the court proceedings and they don't have the knowledge of courts of proceedings and pleadings/evidence. No amendment has been sought to be incorporated in the written statement but the evidence and argument have been forwarded beyond the pleadings of written statement. The admitted facts by the opposite party is that on 19.08.2011 the flat no SG/R/1506 has been allotted having estimated area of 135 m² and one-time amount to be deposited was ₹ 3,090,000/-. The allottee requested vide her letter dated 14.09.2011 to convert one-time payment into instalments which was accepted by the opposite party. The opposite party in his details of payment submitted with this commission on 23.02.2021 has admitted these facts and also stated that Smt. Nirmala Srivastava also requested to change her floor and on her request her floor was converted from 1506 to 406 on the payment of 1% fee and there after on 02.08.2018 the opposite party sent last calculation sheet to the complainant showing the area of the apartment as 145.52 square metre. In this statement it has also been mentioned that vide calculation sheet dated 02.08.2018 the complainant had to deposit ₹ 939,382/- by 31.08.2018 but she did not deposit it and she applied on 09.10.2020 under the OTS scheme organised by the government in which she has to deposit one-time amount of ₹ 1,029,984.35/- by 27.11.2020 but she deposited rupees and 29,934.35/- by 27.11.2020 and as the whole amount has not been

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deposited, she did not get the rebate of one-time deposit. Again the opposite party has admitted that she adopted the instalments option under OTS scheme and against which she has deposited all the amount on 10.02.2021. So she has deposited ₹ 441/- more than required. Now she has to deposit ₹ 7771/- towards the balance of freehold fee and

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thereafter the registry shall be executed. Again the opposite party has submitted that Smt. Nirmala Srivastava has deposited ₹ 4,506,156.35/- till now and at present under first- come, first serve scheme the cost of three BHK flat is about ₹ 5,572,160/-. During the course of argument when this Commission asked the learned counsel of the opposite party to disclose as to how much amount has been deposited by the complainant by 29.05.2012, he could not answer and only arguing about 2018 and onwards. Now we see the Property Allotment Letter issued by Lucknow Development Authority to the complainant on 19.08 2011 . It shows the estimated cost at ₹ 3,090,000/- showing the deposit till date as ₹ 150,000/-. The amount of instalment is denoted as ₹ 264,000/- with a note that amount of ₹ 3 lakh is to be deposited along with first instalments but for this amount no reason has been shown that why this excess amount is being demanded with first instalment. In this allotment letter the estimated area has been shown as 135 m². The complainant vide her letter dated 14^th September 2011 has requested the opposite party to deposit the amount of allotted flat in instalments which was accepted by the opposite party vide their letter dated

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24^th December 2011. The complainant's request for change of floor has also been accepted by the opposite party on third May 2012 and she was allotted a flat on fourth floor in place of 15^th floor. The complainant deposited the floor change charge of ₹ 30,900/- on 29 May 2012. At that time it was not disclosed by the opposite party that the floor converting charge should have been deposited on 145 m² because the area at fourth floor is 10 m² more than the area at 15^th floor earlier allotted to the complainant. It is a fault on the part of the opposite party and it shows the working of LDA.

Now we again perused the averments submitted in the written statement filed by the opposite party on 12 February 2018. Through this written statement the Estate Officer, LDA has accepted para 2,3,4,5,6,7,8,9 of the complaint. Again the opposite party has admitted the pleadings contained in para 11 to 24 of the complaint . It shows that in the written statement the opposite party has admitted all the pleadings of the complaint but he put forward the following pleadings-

If the possession is not delivered in time, the allottee can take her amount back with 9% interest.

That the delivery of the flat is proposed to be handed over by March 2018. The allottee did not deposit more amount.

The above three pleadings are specifically mentioned in the written statement and nothing else but the opposite party has accepted the pleadings of complaint and it is their admission and now they can't go beyond it.

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The opposite party did not disclose in his written statement as to how much amount to has been deposited by the complaint on the date of filing of their written statement. So in absence of any clear pleading against the deposits, the statement put forward in the complaint shall be deemed to be correct. The complainant had specifically stated in para 9 of her complaint that from 20^th May 2011 to 30 April 2013 she has deposited total sum of ₹ 3,404,922/-. She also sent a letter on 10 May 2013 to the opposite party disclosing all the deposits and requested to inform about the date of handing over of the possession. What did the opposite party do on it is not clear?

Now we are reproducing the statement of the opposite party filed before this commission in their pleadings may be written statement or evidence or argument :

"The opposite party has done all active according to procedure and duly information was given to complainant, complainant has deposited Rs.50 less in OTS so this matter or grievance is not settled and the complainant cannot take advantage of its own wrong and other government charges/Dues i.e. Stamp and other charges has to be deposited and clearing all dues/taxes only then sale deed can be executed and registered in favour of the complainant and possession will be given. In para four of the evidence, the opposite party has submitted the fact of transferring the floor of the flat of the complainant which the complainant has already accepted. In para five of the evidence what is written is to be reproduced as follows:

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"5- that complainant has applied for OTS dated 9-12/10/2020 and for payment due amount to under OTS scheme letter dated 27.10.2020 was handed over to Mr. Aman who is pairokar of complainant on 03.11.2020, email was done and mobile message was given by opposite party/LDA then by way of SBI bank ₹ 1,029,934.35/- was received against registration I.D of complainant deliberately and due amount was to be deposited ₹ 1,029,984.35/-"

Now what transpires from this admission is that ₹ 50/- is less than what is demanded by the opposite party and for this she was harassed a lot. This shows the working of the LDA and it should be condemned.

It is better to go through the evidence filed by opposite party along with evidence on affidavit. The first paper is property allotment letter dated 19^th August 2011 . Here it is shown that till date the complainant has deposited ₹ 150,000/- the next due date mentioned is 10 November 2011 and the amount of instalment is disclosed as ₹ 2,640,000/-. It is also written "the final balance amount, if any, has to be paid before the registry of the property. If the above mentioned instalments are are not paid up to the due dates, and additional interest as per rules, on the payable amount will be charged. If the payment is not made within three months from the due date along with the additional, if any, Vice-Chairman LDA has the right to cancel the allotment, in which case deductions

as per the rules will be made." After one there is one line note which runs as "amount of ₹ 3,00,000/- is to be deposited along with first instalments". In this

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allotment letter the estimated cost is shown as ₹ 3,090,000/- and area as 135 m². The registration number is 3090067. In this letter it is not clear as to the amount of ₹ 3 lakhs whether it is part of any payment or something else and what were the purpose for asking to deposit this amount.

An order of secretary LDA is there in in the next paper in which at serial number 7 , it is written that floor change in the same class due to senior citizen and due to fracture in the backbone and in the next column it has been written that the proposal is for the change of same class and as per rule 1% converter fee shall be payable hence the proposal is likely to be considered. In the last column this proposal has been approved. The next paper is of 27 October 2020 which is addressed to the complainant in which it has been mentioned that in connection of your letter for OTS 2020 , you have to pay as per schedule given below ;

Calculated Amount ₹ 1,101,004.44/-1.

Minus down payment ₹ 5000/-2.

Minus - rebate @ 2% ₹ 21,020/-3.

Add - GST ₹ 0 0.004.

One Time payable amount ₹ 1,029,984.35/-5.

OR

Calculated amount ₹ 1,101,004.441.

Minus down payment ₹ 5,00,000/-2.

Payable Amount ₹ 1,051,004.44/- After it there is a chart showing date-wise deposit of instalments which are as follows:

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First Instalment (1/3) Till 25.11.2020 ₹ 350,335/-1.

Second Instalment Till 25.01.2021 ₹ 2,40,598/-2.

Third Instalment Till 25.03.2021 ₹ 2,40,598/-3.

Fourth Instalment Till 25.05.2021 ₹ 240,598/-4.

There is also a note at the end that if the full payment is not done by the last mentioned instalment's date, the OTS facility shall be terminated.

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There is a paper showing the deposit by Mrs Nirmala Srivastava dated 10.11.2020 by Challan no. 100264263 with UCO Bank, Gomti Nagar and it shows the deposited amount as ₹ 1,029,934.35/-.

Thereafter some photocopies of the newspaper cuttings have been filed by the opposite party showing that there was farmers agitation. After this Additional/ Supplementary Evidence has been filed by LDA. With this affidavit there is annexure-1 of LDA dated 22.01.2021 and this date is written by pen having no initials while rest of the paper is computer generated. In this computerised chart it has been written that please pay net due ₹ /-441/- up to 31 March 2021. In the column of other charges payable there is handwritten entry as balance freehold ₹ 8212/- and the excess amount deposited ₹ 441/- , reducing the excess deposit, the net amount payable is ₹ 7771/- and the due date for its deposit is 31^st March 2021. This paper dated 22^nd January 2021 has been filed along with the additional/ supplementary evidence filed on 22^nd day of February 2021. Now we come to peruse the order sheet dated 11.02.2021 which runs as that it has been told that under OTS scheme ₹ 1029,984.35/- less than what required/

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demanded, the consumer is being harassed. So This Bench is of the opinion that Secretary, LDA shall present before this bench on 12.02.2021 . After 10 days of this order The Additional/Supplementary evidence has been filed with the above mentioned calculation chart. So it is clear that it has been generated to favour the LDA. In the computerised sheet the net due amount is shown as -441 meaning thereby the LDA has to return Rs 441/- to the complainant. After this a chart has been affixed and on this there is handwritten entry regarding balance of freehold amount as ₹ 8212/-. The excess amount deposited that is Rs 441/- has been deducted from this freehold amount and the balance is shown as ₹ 7771/-. Who can believe on this statement of LDA. Why did it not file before the order of this commission ? To counter the order of this commission this additional evidence has been filed /created without any prayer from the bench to take it on record. So it shows the total failure of LDA in this respect and there is manipulation which is clear from the attitude of LDA.

Now we can easily presume the mental condition of the consumer/complainant. It can be realised by a few lines of a poem -

I'm tired. Tired of being put down, put down by the people I felt closest to. Tired of dreaming,

dreaming of a life I will never have. Tired of not being good enough.

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Now we come to another submission of the LDA . From the records and pleadings filed by LDA it is clear that the floor of the complainant has been changed from for which the required fee of 1% has been deposited keeping in view the area as 135 m². Later on the LDA argued that the area of fourth floor is 145 m² so the complainant did not deposit 1% of the value of 10 m². The opposite party failed to show as why did he accept 1% on 135 m² and why he immediately did not inform the complainant that the area is 10 square metre more so she would have been deposited 1% more of 10 square metre. So again this is lacuna on the part of LDA. Now LDA has tried to justify its action but failed completely to convince this bench about the delay in handing over possession to the complainant. At one time the opposite party argued that ₹ 50/- was less and therefore the complainant has not been given possession of the flat. At another place LDA has admitted that she has deposited rupees 441 more (cleverly adjusted in the balance freehold amount by LDA). Now the whole picture is clear and it is clear that LDA has played a very mischievous role in this case.

Now we discuss about increase of the area of allotted flat when the floor of the complainant was changed. The LDA argued that there is an increase of 10 m² in the area the complainant has been shifted from 15^th floor to 4^th floor. At the time of shifting the complainant paid 1% transfer charges as required and that time she was not told that the area has now been increased by 10 m². Whether LDA is entitled to charge more than what has already been paid by the complainant?

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In a significant victory for home-buyers the Supreme Court dismissed a builder's appeal on January 12 and upheld the National Consumer Disputes Redressal Commission's (NCDRC) ruling in favour of a home-buyer. It had held that the builder's demand for more money over the contractual sale, on account of excess sale area, was illegal. (Experion Developers Pvt. Ltd. Vs. Pawan Gupta, CP 3703-3704 /2020, Judgment 12.01.2021, SC)

The matter reached the apex court following an appeal by the developer after the NCDRC had ruled on the case in August last year.

In its judgment on August 26, 2020, the NCDRC had said that "this is a common practice adopted by majority of builders/developers which is basically an unfair trade practice. This has become a means to extract extra money from the allottees at the time when allottee cannot leave the project as his substantial amount is locked in the project and he is about to take possession (sic)."

The case in question was filed by one Pawan Gupta against Experion Developers Pvt. Ltd. The builder had referred to a clause in their contract which stated that Experion could ask for more money if the sale area of the property increased up to ten per cent. The NCDRC held the demand as illegal and the apex court also dismissed an appeal by the developer on Tuesday.

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The complainant had filed the complaint since the developer asked for more money for the excess area after the contract between them had been signed. He had also objected to the delay in handing over the property to the former.

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Gupta had said that the developer sent across the demand for excess area "without any basis"

and that he had received the certificate by the architect on a later date. An internal report by the architect - which supposedly showed the excess area - was the basis for the excess demand. In Pawan Gupte Vs. Experion Developers Pvt. Ltd., I (2021) CPJ 72 (NC), in August last year, the NCDRC said that once the original plan had been approved by the competent authority, "the areas of residential unit as well as of the common spaces and common buildings are specified and super area cannot change until there is change in either the area of the flat or in the area of any of the common buildings or the total area of the project (plot area) is changed. The real test for excess area would be that the opposite party should provide a comparison of the areas of the original approved common spaces and the flats with finally approved common spaces/ buildings and the flats. This has not been done."

It added that such a practice was "common" and adopted by the majority of developers and builders "which is basically an unfair trade practice. This has become a means to extract extra money from the allottees at the time when allottee cannot leave the project as his substantial amount is locked in the project and he is about to take possession. There is no prevailing system when the competent authority which approves the plan issues some kind of certificate in respect of the extra super area at the final stage."

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The Commission said that there was no "harm" in communicating and charging for the extra area in the final stages but that the developer must provide the real reason for an increase in the super area on the basis of a comparison made between the buildings that were originally approved with the final approval.

"Basically the idea is that the allottee must know the change in the finally approved lay-out and areas of common spaces and the originally approved lay-out and areas," it said. The body also suggested reforms, saying that while the Real Estate Regulation Act (RERA), 2016, did make it mandatory for builders to mention the carpet area of the flat, "however the problem of super area is not yet fully solved and further reforms are required."

Now in this case, the shifting of Complainant's from 15^thto 4^th.

Now we come to the issue of delay in delivery of possession of the flat to the buyer and her rights in this regard. The buyer is not bound by the terms and conditions of the agreement of the builder which is one sided and made by the builder on their own.

In the Case of Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors vs DLF

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Southern Homes Pvt Ltd (now Known as BEGUR OMR Homes Pvt. Ltd.) and Ors. ( Civil Appeal No. 6239 of 2019 With Civil Appeal No. 6303 of 2019) ,The Hon'ble Supreme Court has held

"24. A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period

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amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service. The expression "service" in Section 2 (1) (o) means a service of any description which is made available to potential users including the provision of facilities in connection with (among other things) housing construction. Under Section 14(1)(e), the jurisdiction of the consumer forum extends to directing the opposite party inter alia to remove the deficiency in the service in question. Intrinsic to the jurisdiction which has been conferred to direct the removal of a deficiency in service is the provision of compensation as a measure of restitution to a flat buyer for the delay which has been occasioned by the developer beyond the period within which possession was to be handed over to the purchaser. Flat purchasers suffer agony and harassment, as a result of the default of the developer. Flat purchasers make legitimate assessments in regard to the future course of their lives based on the flat which has been purchased being available for use and occupation. These legitimate expectations are belied when the developer as in the present case is guilty of a delay of years in the fulfilment of a contractual obligation. To uphold the contention of the developer that the flat buyer is constrained by the terms of the agreed rate irrespective of the nature or extent of delay would result in a miscarriage of justice. Undoubtedly, as this court held in Dhanda, courts ordinarily would hold parties down to a contractual bargain. Equally the court cannot be oblivious to the one-sided nature of ABAs which are drafted by and to protect the interest of the developer. Parliament consciously

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designed remedies in the CP Act 1986 to protect consumers. Where, as in the present case, there has been a gross delay in the handing over of possession beyond the contractually stipulated debt, we are clearly of the view that the jurisdiction of the consumer forum to award just and reasonable compensation as an incident of its power to direct the removal of a deficiency in service is not constrained by the terms of a rate which is prescribed in an unfair bargain.

25. Numerous judgments of this Court have elaborated on the nature and extent of the jurisdiction of the consumer forum to award just and reasonable compensation. Since the decision of this Court in Lucknow Development Authority v. M.K Gupta . (1994) 1 SCC 243

, it has been a settled principle of law that the jurisdiction of the consumer forum extends to the award of compensation to alleviate the harassment and agony to a consumer. In Balbir Singh (2004) 5 SCC 65 , a two judge Bench of this Court, while explaining the ambit of the jurisdiction of the adjudicatory fora under the CP Act 1986 observed: "6…The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult

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or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done."

26. The court observed that the award of compensation has to be based on a finding of loss or injury and must

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correlate to it. The court observed that no "hard and fast rule" could be prescribed:

"8. No hard-and-fast rule can be laid down, however, a few examples would be where an allotment is made, price is received/paid but possession is not given within the period set out in the brochure. The Commission/Forum would then need to determine the loss. Loss could be determined on basis of loss of rent which could have been earned if possession was given and the premises let out or if the consumer has had to stay in rented premises then on basis of rent actually paid by him. Along with recompensing the loss the Commission/ Forum may also compensate for harassment/injury, both mental and physical. "

Where possession has been given, one of the circumstances which must be factored in is that the purchaser has been compensated by the increase in the value of the property.

27. In R V Prasannakumaar v. Mantri Castles Pvt Ltd., 2019 SCC OnLine SC 224, under the terms of the ABA, possession of the flats was to be handed over to the buyers on 31 January 2014. However, the developer received an occupation certificate only on 10 February 2016 and it was thereafter from May 2016 that the developer started issuing letters offering possession. Based on this, the NCDRC awarded compensation in the form of interest at the rate of 6 per cent per annum. The developer had pleaded that since the agreement provided compensation at the rate of Rs. 3 per square foot per month for delayed possession, the purchasers

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were not entitled to anything in addition. Dealing with the submission, this Court observed:

"9. We are in agreement with the view of the NCDRC that the rate which has been stipulated by the developer, of compensation at the rate of 3 per sq. ft. per month does not provide just or reasonable recompense to a flat buyer who has invested money and has not been handed over possession as on the stipulated date of 31 January 2014. To take a simple illustration, a flat buyer with an agreement of a flat admeasuring a 1000 sq. ft. would receive, under the agreement, not more than Rs. 3000/- per month. This in a city such as Bangalore does not provide just or adequate compensation. The jurisdiction of the NCDRC to award just compensation under the provisions of the Consumer Protection Act, 1986 cannot in the circumstances be constrained by the terms of the agreement. The agreement in its view is one sided and does not provide sufficient recompense to the flat purchasers."

The Court observed that there was a delay of two years and hence the award of interest at the

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rate of 6 per cent was reasonable and justified.

28. In Pioneer Urban Land and Infrastructure Limited v. Govindan Raghavan , (2019) 5 SCC 725, there was a delay of almost two years in obtaining an occupancy certificate after the date stipulated in the ABA. As a consequence, there was a failure to provide possession of the flat to the purchaser within a reasonable period. This Court dwelt on the terms of the ABA under which the builder was entitled to charge interest at 18 per cent per annum for the

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delay in payment of instalments by the purchaser. On the other hand, the failure to provide possession on the part of the developer was subject to a grace period of twelve months followed by a termination notice of ninety days and a further period of ninety days to the developer to effect a refund. Adverting to these clauses, the court noted:

"6.4. A perusal of the apartment buyer's agreement dated 8-5- 2012 reveals stark incongruities between the remedies available to both the parties. For instance, Clause 6.4(ii) of the agreement entitles the appellant builder to charge interest @18% p.a. on account of any delay in payment of instalments from the respondent flat purchaser. Clause 6.4(iii) of the agreement entitles the appellant builder to cancel the allotment and terminate the agreement, if any instalment remains in arrears for more than 30 days. On the other hand, as per Clause 11.5 of the agreement, if the appellant builder fails to deliver possession of the apartment within the stipulated period, the respondent flat purchaser has to wait for a period of 12 months after the end of the grace period, before serving a termination notice of 90 days on the appellant builder, and even thereafter, the appellant builder gets 90 days to refund only the actual instalment paid by the respondent flat purchaser, after adjusting the taxes paid, interest and penalty on delayed payments. In case of any delay thereafter, the appellant builder is liable to pay interest @9% p.a. only. 6.5. Another instance is Clause 23.4 of the agreement which entitles the appellant builder to serve a termination notice upon the respondent flat purchaser for breach of any contractual obligation. If the respondent flat purchaser fails to rectify the default within 30 days of the

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termination notice, then the agreement automatically stands cancelled, and the appellant builder has the right to forfeit the entire amount of earnest money towards liquidated damages. On the other hand, as per Clause 11.5(v) of the agreement, if the respondent flat purchaser fails to exercise his right of termination within the time limit provided in Clause 11.5, then he shall not be entitled to terminate the agreement thereafter, and shall be bound by the provisions of the agreement."

Justice Indu Malhotra speaking for the Court noted:

"6.8. A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the agreement dated 8-5-2012 are ex facie one-sided, unfair and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2(1)(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the builder." The Court observed that

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in these circumstances, the flat purchasers could not be compelled to obtain possession which was offered almost two years after the grace period under the agreement had expired. Hence, the NCDRC was held to have correctly awarded interest at the rate of 10 percent per annum.

29. The decision of this Court in Dhanda Case 2019 SCC OnLine SC 689 has been relied upon by learned Senior Counsel appearing on behalf of the developer as elucidating the principle that where a flat buyers" agreement stipulates a

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consequence for delayed possession, exceptional and strong reasons must be established before the forum constituted under the Act of 1986 awards compensation in addition to what has been contractually agreed. In Dhanda's case, the SCDRC issued a direction for handing over physical possession of the residential unit to the complainant and for execution of a sale deed. In addition, compensation was awarded by way of interest at the rate of 12 per cent per annum with effect from twelve months after the stipulated date under the agreement. In an appeal by the developer, the NCDRC directed that the rate of interest for a house building loan for the corresponding period in a scheduled nationalised bank would be appropriate and if a floating rate of interest was prescribed, the higher rate of interest should be taken for the computation. A sum of Rs. 1 lac per annum from the date for handing over possession to the actual date of possession was regarded as appropriate in the facts of the case. In that case under the terms of the buyer"s agreements, possession was to be delivered within twenty-four months of the execution of the agreement i.e. 10 February 2013 - failing which the developer was liable to pay compensation at the rate of Rs. 10 per square foot per month for the delay. The developer contended that construction activities were delayed as a result of an injunction granted by this Court over a period of eight months and consequently sought an extension of the period for handing over possession by one year. Alternatively, the developer offered to refund the money deposited with interest at 9 per cent per annum. Construction of 258 independent floors was completed while about 1,500 units were nearing completion. In two sets of Civil Appeals

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which came up before this Court earlier, agreed terms were arrived at providing for the award of interest at 9 per cent per annum from the date of deposit till refund. While considering the order of the NCDRC, this Court observed:

"16. The District Forum under the Consumer Protection Act, 1986 is empowered inter-alia to order the opposite party to pay such amount as may be awarded as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party including to grant punitive damages. But the forums under the Act cannot award interest and/or compensation by applying rule of thumb. The order to grant interest at the maximum of rate of interest charged by nationalised bank for advancing home loan is arbitrary and no nexus with the default committed. The appellant has agreed to deliver constructed flats. For delay in

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handing over possession, the consumer is entitled to the consequences agreed at the time of executing buyer's agreement. There cannot be multiple heads to grant of damages and interest when the parties have agreed for payment of damages at the rate of Rs. 10/- per sq. ft. per month. Once the parties agreed for a particular consequence of delay in handing over of possession then, there has to be exceptional and strong reasons for the SCDRC/NCDRC to award compensation at more than the agreed rate."

32. In the present case, there exist, clear and valid reasons for not holding down the flat buying consumers merely to the entitlement to receive compensation at the rate of 5 per square foot per month in terms of clause 14 of the ABA:

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(i) There has been a breach on the part of the developer in complying with the contractual obligation to hand over possession of the flats within a period of thirty-six months of the date of the agreement as stipulated in clause 11(a);

(ii) The failure of the developer to hand over possession within the contractually stipulated period amounts to a deficiency of service within the meaning of Section 2 (1) (g), warranting the invocation of the jurisdiction vested in the NCDRC to issue a direction for the removal of the deficiency in service;

(iii) The triggering of an obligation to pay compensation on the existence of delay in handing over possession is admitted by the developer for, even according to it, it has adjusted compensation at the agreed rate of Rs 5 per square foot per month to 145 out of the 171 appellants;

(iv) The agreement is manifestly one-sided: the rights provided to the developer for a default on the part of the home buyer are not placed on an equal platform with the contractual right provided to the home buyer in the case of a default by the developer;

(v) There has been a gross delay on the part of the developer in completing construction ranging between two and four years. Despite successive extensions of time to deliver possession sought by the developer, possession was not delivered on time;

(vi) The nature and quantum of the delay on the part of the developer are of such a nature that the measure of compensation which is provided in clause 14 of the ABA

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would not provide sufficient recompense to the purchasers; and

(vii) Judicial notice ought to be taken of the fact that a flat purchaser who is left in the lurch as a result of the failure of the developer to provide possession within the contractually stipulated date suffers consequences in terms of agony and hardship, not the least of which is financial in nature. Having paid a substantial amount of the purchase price to the developer and being required to service the debt towards loan installments the purchaser is unable to obtain timely possession of the flat which is the subject matter of the ABA.

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But, it has been submitted by the developer - a submission which found acceptance by the NCDRC - that the execution of the Deed of Conveyance by a flat purchaser precludes a consumer claim being raised for delayed possession. During the course of the proceedings before the NCDRC, the flat purchasers relied upon the communications which were issued by the developer to demonstrate that the purchasers were not permitted by the developer to execute a Deed of Conveyance or to take possession under protest. The material which was produced before the NCDRC supports this submission, which was urged before the Court by Mr Prashant Bhushan, learned Counsel. By a communication dated 16 February 2016, the developer informed a flat buyer that in terms of the ABA, the allottee is required to take possession of the apartment by making payments and executing documentation after the developer has obtained a certificate for occupation from the competent authority and has offered possession of the apartment to the allottee. The

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developer stated: "We may also like to bring to your notice, that if the acceptance of offer of possession terms is being conveyed by the allottee under protest the Company will not be in a position to hand over the possession and execute the Conveyance Deed and as such your request to take over the 34 possession and execute the documents under protest is untenable."

36. It has been urged by the learned counsel of the developer that a consequence of the execution of the Deed of Conveyance in the present case is that the same ceases to be a transaction in the nature of "supply of services" covered under the CP Act 1986 and becomes a mere sale of immovable property which is not amenable to the jurisdiction of Consumer Fora. In Narne Construction (P) Ltd. v. Union of India (2012) 5 SCC 359 , this Court distinguished between a simple transfer of a piece of immovable property and housing construction or building activity carried out by a private or statutory body falling in the category of "service" within the meaning of Section 2 (1) (o) of the CP Act 1986. This Court held that:

"8. Having regard to the nature of transaction between the appellant Company and its customers involved much more than a simple transfer of a piece of immovable property it is clear the same constitutes "service" within the meaning of the Act. It was not the case that the appellant Company was selling the given property with all its advantages and/or disadvantages on "as is where is" basis, as was the position in UT Chandigarh Admn v. Amarjeet Singh. It is a case where a clear-cut assurance was made to the purchasers as to the

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nature and extent of development that would be carried out by the appellant Company as a part of package under which a sale of fully developed plots with assured facilities was made in favour of the purchasers for valuable consideration. To the extent the transfer of site with developments in the manner and to the extent indicated earlier was a part of the transaction, the appellant Company has indeed undertaken to provide a service. Any deficiency or defect in such service would make it accountable before the competent Consumer Forum at the instance of consumers like the respondents."

The developer in the present case has undertaken to provide a service in the nature of

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developing residential flats with certain amenities and remains amenable to the jurisdiction of the Consumer Fora. Consequently, we are unable to subscribe to the view of the NCDRC that flat purchasers who obtained possession or executed Deeds of Conveyance have lost their right to make a claim for compensation for the delayed handing over of the flats. For the above reasons we have come to the conclusion that the dismissal of the complaint by the NCDRC was erroneous. The flat buyers are entitled to compensation for delayed handing over of possession and for the failure of the developer to fulfil the representations made to flat buyers in regard to the provision of amenities. The reasoning of the NCDRC on these facets suffers from a clear perversity and patent errors of law which have been noticed in the earlier part of this judgment. Allowing the appeals in part, we set aside the impugned judgment and order of the NCDRC dated

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2 July 2019 dismissing the consumer complaint. While doing so, we issue the following directions:

Save and except for eleven appellants who entered into specific settlements with the developer and three appellants who have sold their right, title and interest under the ABA, the first and second respondents shall, as a measure of compensation, pay an amount calculated at the rate of 6 per cent simple interest per annum to each of the appellants. The amount shall be computed on the total amounts paid towards the purchase of the respective flats with effect from the date of expiry of thirty-six months from the execution of the respective ABAs until the date of the offer of possession after the receipt of the occupation certificate;

i.

The above amount shall be in addition to the amounts which have been paid over or credited by the developer at the rate of Rs 5 per square foot per month at the time of the drawing of final accounts; and

ii.

The amounts due and payable in terms of directions (i) and (ii) above shall be paid over within a period of one month from the date of this judgment failing which they shall carry interest at the rate of 9 per cent per annum until payment ."

iii.

Now from the above-mentioned judgements it has been clear that the buyer is not bound by the terms and conditions of the builder which which is always one sided. In the latest judgement the Hon'ble NCDRC has fixed the compensation for delayed period based on area of the flat/plot.

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Sahara Prime City Ltd. & Anr. vs Tapasya Palawat on 13 September, 2019 (NCDR) First Appeal no. 489 of 2013, (Against the Order dated 23/05/2013 in Complaint No. 73/2012 of the State Commission Rajasthan)

1. Sahara Prime City Ltd. & Anr. Through-Chairman & Managing Director, Sahara India Centre, Kapoorthala Complex, ALIGANJ LUCKNOW, U.P

2. Sahara City Homes, Opp. Radhaswami Satsang Beas, Villgae-Bilwa, Tonk Road, JAIPUR

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RAJASTHAN

...........Appellant(s) Versus

1. Tapasya Palawat W/O. Shjri Sanjeev Singh, J-24, Apna Ghar, Shalimar, ALWAR RAJASTHAN ....Respondent(s)

First Appeal No 606 of 2013 (Against the Order dated 23/05/2013 in Complaint No. 73/2012 of the State Commission Rajasthan) 1. Tapasya Palawat W/o Shjri Sanjeev Singh, J-24, Apna Ghar, Shalimar, ALWAR RAJASTHAN...........Appellant(s) Versus

1. Sahara Prime City Ltd. & Anr Through-Chairman & Managing Director, Sahara India Centre, Kapoorthala Complex, ALIGANJ LUCKNOW, U.P

2. Sahara City Homes, Opp. Radhaswami Satsang Beas, Villgae-Bilwa, Tonk Road, JAIPUR

RAJASTHAN.

..........Respondent(s) Dated : 13 Sep 2019

ORDER

Aggrieved by the order dated 23.05.2013 in CC No. 73 of 2012 passed by the State Consumer Disputes Redressal Commission, Rajasthan (for short the "State Commission"), both Sahara Prime City Ltd. (for short "The Developer") and

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the Complainant preferred First Appeals 489 and 606 of 2013 respectively under Section 19 of the Consumer Protection Act, 1986 (for short "the Act"). By the impugned order, the State Commission has allowed the Complaint directing the Developer to restore the allotment of the subject flat immediately in the Complainant's favour on payment of the balance consideration and hand over possession of the same within six months from the date of the order. It was further ordered that in case it was not possible to hand over the possession of the subject flat to the Complainant, the Developer would refund the amount of ₹4,06,050/- to the Complainant along with interest @ 12% p.a. from the date of filing of the Complaint. A sum of ₹1,00,000/- was also awarded to the Complainant towards compensation and costs.

2. Briefly stated, the facts of the case are that the Complainant booked a flat with the Developer on 10.02.2006 by depositing a sum of ₹1,37,029/- towards booking amount. The Developer, vide their letter dated 24.04.2006, confirmed the booking fixing the total cost of the flat at ₹27,07,000/-. Thereafter the Complainant deposited

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the instalments as and when demanded by the Developer and deposited a total sum of ₹4,06,050/- which amounted to 15% of the agreed total consideration. The Complainant approached the Developer time and again for possession but though she was assured that the construction would start there was no progress. Ultimately, the Complainant was allotted Flat bearing No. C-4/306 vide allotment letter dated 21.08.2009. Subsequently, Complainant fell ill in December, 2009. After recovery from her ailment in April, 2010 she contacted the Developer about the status of her booking. She was told that her allotment was cancelled. She gave a representation to the Developer that she was ill and expressed her willingness to pay the amount

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due and accept the possession, which was refused. The Complainant got issued legal notice dated 11.10.2012 but there was no response. Aggrieved, the Complainant filed a Complaint seeking the following reliefs:-

(i) The Developer be directed: to hand over the possession of the subject flat to the Complainant after accepting the due amount, as per the contract amount, from her and any action taken for cancellation of subject unit by the Developer would be declared cancelled;

(ii) to refund the deposited amount of ₹4,06,050/- along with interest @ 18% p.a.;

(iii) to pay the rent paid by the Complainant on the basis of the rent receipts;

(iv) to pay an amount of ₹80,000/- towards damages;

(v) to pay ₹7,00,000/- towards mental torture and ₹50,000/- towards costs.

3. The Developer, despite service of notice, did not appear before the State Commission.

4. The State Commission allowed the Complaint and passed the afore-noted directions.

5. We have heard the Learned Counsel for the parties and perused the record.

6. Learned Counsel for the Developer contended that they were proceeded ex-parte by the State Commission without waiting for the service report of the notice issued 'dasti' to them merely on the ground that a period of more than one month had elapsed since issuance of 'dasti' notice. He further

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contends that 'dasti ' notice means service on the Respondent by hand. However, Complainant sent the said 'dasti' notice by Registered post which defeats the purpose of 'dasti' notice. Affidavit in support of service is also not filed by the Complainant and thus the State Commission gravely erred in treating sending of 'dasti' notice by registered post as

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sufficient/proper.

7. Learned Counsel submitted on merits that the State Commission erred in holding that they had cancelled the booking of the subject flat without giving any notice or opportunity of hearing to the Complainant. He stated that Complainant herself defaulted in making the instalments and the Developer sent three reminder notices dated 05.11.2009, 18.11.2009 and 04.12.2009 for making the balance payments. Despite the reminders, the Complainant did not pay the instalments and hence they were constrained to cancel the booking vide their letter dated 02.06.2010. The Complainant also refused to collect the refund and instead file a false and frivolous Complaint. It is submitted that it is the case of the Complainant that she fell ill suddenly in December, 2009 whereas she started defaulting in making instalments since October, 2009. It is also pleaded that the Complainant did not place any material on record in support of her averment that she suddenly fell ill in December, 2009. It is further pleaded that State Commission failed to appreciate that the Complainant herself had categorically admitted in the Complaint as well as in the affidavit of evidence that she had defaulted in payment of instalment of the flat and also admitted having received a letter of

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cancellation of booking sent by the Developer. The Complainant has also annexed the copy of the letter dated 05.11.2009 with the Complaint.

8. It is averred that the allotment of the flat has been cancelled by the Developer on 06.05.2010 and informed to the Complainant on 02.06.2010 as the Complainant did not pay outstanding instalments despite several reminders. It was only on 11.10.2012 that a legal notice was issued to revoke the cancellation of the booking. It is also averred that the Complainant did not place on record the reminder letters dated 18.11.2009, 04.12.2009 and also the Cancellation Letter dated 02.06.2010. As per the terms and conditions of the Booking Form, in case of default in payment of instalments, the Developer was at liberty to cancel booking after giving three months notice if the allottee has failed to pay.

9. Learned Counsel vehemently argued that the State Commission erred in holding that the Developer failed to appear despite service of notice. No presumption of service can be drawn based on dasti notice served by Registered Post.

10. Learned Counsel appearing for the Complainant has vehemently contended that the State Commission had recorded that the notice sent to the Developer was served and despite service none had chosen to appear.

11. Having heard both the parties with respect to service of notice, we perused the order of proceedings before the State Commission. It is seen from the record that on 26.11.2012 the Complaint was admitted for hearing and notice was issued

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to the Opposite Parties. On 03.01.2013 when the matter was taken up, notice sent to Second Opposite Party returned with an endorsement 'refused' and the State Commission had noted that service was deemed to be sufficient. With respect of First Opposite Party since the service

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report has not yet returned fresh notice was issued by dasti. The matter was called once again on 27.02.2013, proof of service on First Opposite Party was still awaited. On 20.03.2013 when the matter was called State Commission had recorded that more than one month time had lapsed and no service report of either refusal or otherwise has come back and, therefore, the service was presumed to be deemed sufficient. As per Regulation 10 '(1) Whenever the Consumer Forum directs the issuance of a notice in respect of a complaint, appeal or revision petition, as the case may be, to the opposite party (ies)/respondent(s), ordinarily such notice shall be issued for a period of 30 days and depending upon the circumstances of each case even for less than 30 days and (2) When there is a question of raising presumption of service, 30 days notice shall be required.'

12. Be that as it may, it is seen from the record that Sahara City Homes arrayed as the Second Opposite Party before the State Commission, is floated by the First Opposite Party and the Application Form for the subject flat has been issued in the name of the Second Opposite Party i.e. Sahara City Homes which, to reiterate, has refused the notice. Therefore, taking into consideration that the Complaint is of the year 2012 and seven years has lapsed, we do not find it a fit case to remand the matter back.

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13. In this First Appeal ample opportunity was given to the Developer to present their case and their arguments were heard at length. Keeping in view the facts and circumstances of the case and the fact that the Project is still incomplete and the Developer is not in a position to hand over possession and also the Judgement of this Commission against the same Developer pertaining to the same Project, in Consumer Complaint No. 988 of 2015, Revision Petition No. 21 of 2015 and in First Appeal No. 82 of 2016, all of which have attained finality, we are of the considered view that there is deficiency of service on the part of the Developer in retaining the money with them from 10.02.2006 onwards when the Complainant paid the first booking amount and thereafter deposited a total amount of ₹4,06,050/- which is 15% of the cost of the flat. Even in their letter dated 21.08.2009, the Developer, while confirming the price to the tune of ₹27,07,000/-, had promised possession of the flat within 38 months from the date of allotment but till date the fact remains that the Developer is not in a position to offer legal possession of the subject apartment with the Occupation Certificate. We hold that the cancellation by the Developer is unilateral and the their action in forfeiting the deposited amount amounts to unfair trade practice.

14. The contention of the Learned Counsel for the Complainant that the Complainant is entitled to enhanced compensation and also for additional interest needs to be considered. The interest @ 12% p.a. awarded by the State Commission stands confirmed and we find it a fit case to award an additional compensation of ₹2,00,000/-

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for the mental agony and the financial loss suffered by the Complainant as more than 10 years had lapsed and till date the possession could not be given.

15. We find it a fit case to rely on the Judgement of the Hon'ble Supreme Court in

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Pioneer Urban Land and Infrastructure Ltd. Vs. Govindan Raghavan II (2009) CPJ 34 (SC) and Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra II (2019) CPJ 29 (SC) and hold that the Developer has committed an act of deficiency of service and the Complainant is entitled to refund of the principal amount along with interest @ 12% p.a. as awarded by the State Commission from the respective dates of deposits till the date of realization together with compensation of ₹2,00,000/- and costs of ₹25,000/-. The order of the State Commission is modified to that extent.

16. In the result the First Appeal No. 489 of 2013 preferred by the Developer is dismissed and First Appeal No. 606 of 2013 preferred by the Complainant is allowed in part modifying the order of the State Commission to the extent indicated above. The statutory amount in First Appeal No. 489 of 2013 stands released to the Complainant with interest accrued, if any."

So in this case Hon'ble NCDRC has accepted the interest at a rate of 12% per annum along with compensation of ₹ 2 lakhs and costs 25,000 in favour of the buyer.. In a latest judgement Hon'ble NCDRC has fixed the compensation for the delayed delivery of possession based on the area of the flat.

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In Nalin Bhargav & Ors Vs Parsvnath Developers Ltd & Ors. ( NCDRC )First Appeal No

241, 242, 243, 246, 247, 248, 249, 250, 255, 256, 257, 258, 259, 317 Of 2015 And Ia/2314, 2315/2015 | Judgment 20-01-2016

The Hon'ble NCDRC held

"These appeals arise out of single order of State Commission, hence, decided by common order. These appeals have been filed appellant against order dated 25.2.2015 in Complainant Nos. 18 of 2013- Nalin Bhargava & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 34 of 2013- Jasleen Viswanathan & Anr. Vs. Parsvnath Developers Ltd. & Anr; 58 of 2011-

Janmejai Mani Tiwari Vs. Parsvnath Developers Ltd. & Anr; 68 of 2013- Indu Singh Vs. Parsvnath Developers Ltd. & Anr.; 69 of 2013- Poonam Sagar Vs. Parsvnath Developers Ltd. & Anr.; 86 of 2010- Priyanka Mittal & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 101 of 2011- Mohd. Aslam Khan & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 130 of 2012- Dr. Sunil Kr. Singh & Anr. Vs. Parsvnath Developers Ltd. & Anr; 49 of 2012- Neera Mittal & Anr. Vs. Parsvnath Developers Ltd. & Anr; 74 of 2011- Deepak Bhalla Vs. Parsvnath Developers Ltd. & Anr. ; 87 of 2010- Syed Gufran Ali Alvi & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 96 of 2011- Uppasana Malik Vs. Parsvnath Developers Ltd. & Anr.; 175 of 20130- Umesh Chandra Dixit & Anr. Vs. Parsvnath Developers ; byLtd. & Anr.; 97 of 2011- Pravin Kumar Goel & Anr. Vs. Parsvnath Developers Ltd. & Anr which complaints were partly allowed. / 20.01.2016.

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Brief facts of the cases are that opposite parties/ respondents are engaged in the activity of housing construction and accordingly they have launched a project named as Parsvnath Planet situated in Gomti Nagar, Lucknow. The project was demonstrated to be very lucrative and made attractive to the vendees, in order to procure/collect money from the needy persons

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demonstrating themselves to be excellence in the field of construction activity as compared to other builders and assured the buyers/complainants that it has been duly approved by the Lucknow Development Authority and necessary permission has also been obtained from them. The emphasis was made by the opposite parties that the possession of the Unit shall be given within a scheduled period of 36+6=42 months stipulated in agreements executed in between the parties for the project launched in the year 2006. The complainants/appellants attracted by the promise and assurance of the opposite parties, somehow managed and arranged the money from their personal sources as well as on loan at attractive rate of interest and the hard earned money was paid by them to the opposite parties in a hope that the possession of the units shall be provided to them in the year 2009 and they can leave peacefully in their own houses, since the complainants are living in rented houses. The complainants visited the construction site of the opposite parties after depositing the entire amount, where it was revealed that the construction activities were on halt and the persons available on the site told the complainants that the apartments are likely to be completed till 2015. Even the partial construction done by the opposite parties was defective and did not match the

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specifications provided in the agreement. The complainants were shocked on hearing it and observing the site. The complainants immediately contacted the Area Manager, who told the complainants that there is some delay in the construction of the apartment and the apartments shall be ready till June, 2010. The complainants have to repay the amount taken on loan alongwith interest without getting the possession of the allotted units causing irreparable loss and injury to them. The complainants have come to know that the opposite parties have invested the funds earmarked for this project into their other projects in other city due to which they have -10- not been able to complete the project in time. Besides this, it has also come to the light that although the opposite parties had collected huge funds from the buyers but in spite of that the opposite parties have miserably failed to pay the dues of Lucknow Development Authority which forced the Lucknow Development Authority to issue coercive measures against the opposite parties for the recovery of their dues. Alleging deficiency on the part of opposite parties/respondents, complainants filed separate complaints before State Commission. Ad aggrieved by the order of Hon'ble State Commission , these appeals preferred befpre Hon'ble National Consumer Disputes Redressal Commission.

Hon'ble NCDRC discussed various case laws and after hearing the parties held,

"Learned Counsel for appellants submitted that as complainants have been deprived of possession for a long period beyond agreed period, it amounts to restrictive trade

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practice under Section 2 (nnn) of Consumer Protection Act and complainants are entitled to get compensation. Section 2 (nnn) runs as under:- means a trade practice which tends to bring about restrictive trade practice manipulation of price or its conditions of delivery or to affect flow of supplies in the market relating to goods or services in such a manner as to impose on the consumers unjustified costs or restrictions and shall include- Delay beyond the period agreed to by a trader in supply of such goods or in providing the services which has led or is likely to lead to rise in the price; Any trade practice which requires a consumer to buy, hire or avail of any

26

goods, or, as the case may be, services as condition precedent to buying, hiring or availing of other goods or services; Perusal of aforesaid provision reveals that when opposite party delays in delivery of goods which leads to rise in the price of goods meaning thereby, more price is charged from complainant, it amounts to restrictive trade practice. In the case in hand, opposite party on account of delayed delivery of possession is not charging higher rate than the agreed rate for delivery of possession of flat, so, it does not fall within the purview of restrictive trade practice under Section 2(nnn) of Consumer Protection Act. Admittedly, agreements were executed in 2006 and as per agreements, possession of flats was to be delivered within 42 months, meaning thereby, possession was to be given in the year 2009-2010 and possession has not been handed over so far though year 2016 has started. No doubt, complainants are entitled to get penalty amount for delayed delivery of possession as per clause 10 ( c) of the agreement but opposite party cannot be permitted to avail benefit of aforesaid clause for indefinite period. This penalty clause should be allowed for the benefit of parties for a limited period and in the cases

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in hand, I deem it appropriate to extend applicability of aforesaid clause for a period of one year beyond 42 months and after that, complainants are certainly entitled to compensation. Opposite party cannot be allowed to avail huge funds of complainants by paying merely Rs. 5/- per sq. ft. for example, complainants who have purchased flat measuring 164.901 sq. mtr., they have made payment of about Rs. 31.00 to 32 lakhs and in the garb of clause . 10 (c), opposite party is paying penalty @ approximately Rs. 9,000/- per month against enjoying funds more than Rs. 30.00 lakhs. As complainants have been deprived to shift to their flats for a long period which would not only have given them satisfaction of living in their own house but also have raised their social status and opposite party has enjoyed funds of complainants for a long period, I deem it appropriate to allow compensation @ Rs. 15,000/- p.m. to the complainants who have applied for flats upto 175 sq. mtr and Rs. 20,000/- per month to complainants who have applied for flats above 175 sq. after 54 months of execution of agreement till delivery of possession. Complainants- Nalin Bhargava in and complainants Complaint No. 18 of 2013 Ravindra Singh in , are entitled to get only difference of amount from Complaint No. 32 of 2012 -14- the amount already awarded by State Commission which has not been challenged by opposite party. Perusal of record reveals that in Complaint No. 987 of 2011, Pravin Kumar Goel Vs. , flat area of complainant has been increased and additional Rs. 7,99,997/-Parsvnath Developers has been demanded by opposite party from complainant but Learned State Commission has not allowed penalty as per clause 10

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(c) for the increased area and complainants are entitled to get penalty as per aforesaid clause on the increased area also. Consequently, appeals filed by appellants are partly allowed and order dated 25.2.2015 passed by Learned State Commission in the aforesaid complaints is modified and opposite party is directed to pay @ Rs. 15,000/- p.m. and Rs. 20,000/- to the allottees of flats upto 175 sq. mt. and above 175 sq mtr respectively from beginning of 55 month from the date of execution of flatth buyer agreement till delivery of possession of flat to the complainants and complainants in and are entitled to receive only difference Complaint No. 18 of 2013 Complainant No. 32 of 2012 of amount as stated above and opposite party is directed to

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pay penalty to complainant in on the increased area as per clause 10 (c) of the agreement. Complaint No. 97 of 2011 Parties to bear their costs."

An appeal has been preferred to the Hon'ble Supreme Court against this judgement in order . Hon'ble Supreme Court in Nalin Bhargava vs Parsvnath Developers Ltd Civil Appeal No. 6662/2018 (arising out of SLP(C) No. 7596/2016) with other connectd appeals on

13 July, 2018, held:

"Leave granted in all the special leave petitions.CA 6662/2018 @ SLP(C) 7596/2016 etc."

It is submitted by Mr. M.L. Lahoty, learned counsel appearing for the appellants in all the appeals that the possession has been handed over and the deficiencies have been removed and, therfore, he has no grievance. However, Mr. Lahoty would insist that there should be imposition of costs as compensation.

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Mr. Sachin Datta, learned senior counsel appearing for the developer has raised objections with regard to imposition of costs.

Having heard learned counsel for the parties, we are of the considered opinion that the cause of justice would be best subserved if each of the appellants in the present appeals are given Rs.1,50,000/- (Rupees one lakh fifty thousand only) per flat, towards costs. When we say"cost", we mean costs alone and nothing else."

Now the position is clear that if there is a delay in delivery of possession to the buyer , the builder has to pay compensation, damages, compensation for mental agony and also one-time cost in the light of Hon'ble Supreme Court judgement. The builder is also liable to pay interest at a rate of 10 to 12% on the amount deposited by the buyer from the date of deposit till the date of actual possession if there is delay in handing over of the possession. Now in this light we will see the present case and the delay caused therein.

One more point which the learned advocate for the opposite party has raised with full hue and cry is the letter of the complainant which has been written on a letter pad having the name of her husband on one side and national emblem in the middle which the learned counsel for the opposite party vehemently criticised on the ground that it bears National Anthem. Again and again he emphasised that this letter has been used to pressurise the LDA. We have seen this letter. This letter is nothing except a good request for putting her case and nothing else. There is not a single word of threatening. If this letter scared LDA, whether LDA really

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scared and gave possession to the complainant in time. It shows that when the LDA did not take care of the wife of a judge and did not the deliver her possession in the stipulated time, one can easily imagine as to what they used to do with the ordinary public. It is really shameful on the part of LDA that on one side they failed to fulfil their promise in time and on the other side they are criticising a lady being the wife of a learned judge.

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To sum up in a nutshell, it is clear that the averments made in the complaint has been accepted/admitted by the party by way of their written statement file on 12.02.2018. Therefore the following submissions put forward by the complainant has been admitted by the party.

In the year of 2011 the scheme of "Sargam Apartments" Sector -J Extension, Jankipuram, Sitapur Road, was launched by the opposite party/anti-

1.

As per the said Advertisement , it was assured by the party that the possession of the facts would be completed within a period of two years from the date of allotment.

2.

The complaint applied for a 3 BHK flat in May 2011 , and the opposite party issued allotment letter on 19.05.2011 to the complainant allotting him a 3 BHK flat no SG/R/1506 , "Sargam Apartments " Sector -J Extension, Jankipuram , Sitapur Road , Lucknow having area of 135 m² at a cost of ₹ 3,090,000/-.

3.

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The complainant requested for fixing instalments of the flat on 14.09.2011 , which was accepted by the opposite party vide their letter dtd 29.09.2011.

4.

Thereafter the complainant requested the party to transfer his flat from 15^th floor to 4^th floor on the same terms and conditions after taking transfer charges of ₹ 30,000/- ( 1% of the cost of the flat) and it was also approved by the opposite party.

5.

The complainant from 20.05.2011 to 30.04.2013 paid a total sum of ₹ 3,404,922/- and vide letter dated 10.05.2013, requested the opposite party to inform the date of delivery of possession of the said flat.

6.

The opposite party to sum of ₹ 3,404,922/- in-place of ₹ 3,090,000/- from the complainant but did not issue the letter for delivery of possession . If the transfer of fraud charges ₹ 30,900/- is added to ₹ 3,090,000/- it will come ₹ 3,120,900/- still more than what has been deposited by the complainant.

7.

8. The letter of allotment issued on 19.05.2011 and the opposite party promised to deliver the possession within two years that is on 19.05.2013. But no possession has been given and further demand notice was sent. When the whole amount has been deposited, the buyer has to deposit the amount for court fee and TDS at a rate of .75% as prevailing now.

Now it is clear that there is acute deficiency of service on the part of the opposite party and also there is an element of Unfair Trade Practice on the part of opposite party. Now we see the conduct of opposite party. The opposite party has specifically mentioned before the

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bench on 11.02.2021 that the complainant has deposited ₹ 50/- less therefore the terms and conditions of the opposite party has not been fulfilled. It has been admitted by the

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opposite party in their evidence filed before the bench that under OTS scheme the complainant had to deposit ₹ 1,029,984.35/- and she deposited only ₹ 1,029,934.35/- meaning thereby she deposited ₹ 50/- less and thereafter she is suffered a lot by the hands of LDA. Again at one place a calculation chart has been submitted by the party on 19.02.2021 showing that the net amount due is Rs -441/-meaning thereby that the opposite party is under an obligation to return Rs 441/- to the complainant . In the same chart by way of hand written note it has been added that there is balance of Freehold charges which is ₹ 8212/- and the opposite party cleverly detected the amount of Rs 441/- which was due to the complainant and sent a notice for depositing ₹ 7771/-. Are these calculations prima facie leads to the conclusion that LDA has played a big fraud in this matter.

Now taking into account the due date for delivery of possession 19.05.2013, we grant more 30 months grace period to this date thus the opposite party was duty-bound to deliver the possession on or before 19.11.2015 , we also extend this period up to 31.12.2015 and the opposite party is liable to pay all the damages, different type of compensation for not delivering the possession on 01.01.2016 and the date of delivery of actual possession . Thus this bench takes 01.01.2016 as cut-off period in this case and the final order will be based on cut-off period.

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Thus from the facts and circumstances and also the pleadings, pretexts and evidence put forward before this bench, this bench reach the conclusion that the complaint is liable to be allowed.

ORDER

The Complaint is allowed with cost and with additional benefits in the light of judgements of the Hon'ble Supreme Court, Hon'ble NCDRC. The opposite party is directed to deliver the possession of flat number SG/R/406, Sargam apartments within three months from the date of judgement of this Complaint case with all necessary fixures, amenities as per the specification and they will file an affidavit before this bench in this regard. The opposite party shall pay damages at a rate of ₹ 15,000/- per month from 01.01.2016 till the delivery of actual possession, the opposite party shall pay lump-sum cost of ₹ 150,000/- without any interest, ₹ 150,000/- towards mental agony and harassment, ₹ 50,000/-towards cost of the suit .

The opposite party shall pay interest at a rate of 12% on the total deposits of the complainant from 01.06.2013 till the date of delivery of actual possession and the opposite party shall not charge any interest from complainant from 01.06.2013 till the date of delivery of actual possession and shall return the 1% of the payment charged on account of floor changing in relation to an area of 10 m².

If the order is not complied with by the opposite party within a period of 30 days from the

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date of this judgment, the opposite party shall be liable to pay ₹1000/-

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per day damages to the complainant till the date of delivery of actual possession and also shall be liable to pay an interest of 15% on the whole amount including the damages of ₹ 1,50.000/- after 30 days of this judgment.

If the judgment has not been complied within the above period, the complainant shall be free to file execution proceedings against the opposite party at the cost of the opposite party.

Let the copy of this judgment be provided to each party as per rules. (Justice Ashok Kumar) (Govardhan Yadav) (Rajendra Singh)

President Member Member

Judgment signed/dated and pronounced today in the open court.

Let the record be consigned.

(Justice Ashok Kumar) (Govardhan Yadav) (Rajendra Singh)

President Member Member

Jafri PA II

Court 1

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[HON'BLE MR. JUSTICE ASHOK KUMAR]

PRESIDENT

[HON'BLE MR. Gobardhan Yadav]

MEMBER

[HON'BLE MR. Rajendra Singh]

JUDICIAL MEMBER

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