PUSHPA GOGIA v. EMAAR MGF LAND LIMITED

receiving assurances from the Opposite Party Developer that the possession of the Unit will be handed over latest by 28.07.2015, vide Agreement to Sell dated 28.07.2014, the Complainant purchased the said Unit from the Original Allottee after paying her a sum of ₹42,00,000/- against the payment of ₹18,90,000/- made by the Original Allottee towards sale consideration of the Unit, to the Opposite Party Developer and got the Unit transferred on 06.08.2014 from the Opposite Party Developer with the term that the balance amount of sale consideration of ₹44,10,000/- will be paid by the Complainant to the Opposite Party Developer. It is the say of the Complainant that she has made a total payment of ₹64,91,196/- to the Opposite Party Developer and had paid profit of ₹23,10,000/- to the Original Allottee, thus total sum of ₹88,01,196/- paid towards cost of the Unit. Despite that the Opposite Party Developer failed to deliver the possession of the Unit upto assured date of possession, i.e., 28.07.2015. After inordinate delay of three years from the assured date of possession, the Opposite Party Developer offered possession of the Unit on 28.12.2018 to Complainant. Alleging deficiency in service and Unfair Trade Practice on the part of the Opposite Party Developer, the Complainant has filed the present Consumer Complaint with the following prayer:-

"a) Direct the Opposite party to handover possession of the Unit to the Complainant, complete in all respects and in conformity with the Buyer's Agreement and for the consideration mentioned therein, with all additional facilities and as per quality standards promised and execute all necessary and required documents in respect of the said Unit in favour of the complainant immediately upon this Complaint being filed before this Hon'ble Commission or as this Hon'ble Commission deems fit and appropriate;

b) Direct the Opposite party to pay interest @12% per annum on the amount deposited by the Complainant with the Opposite party, with effect from the date of delivery promised in the Agreement, till the date of actual possession as per clause (a) above in handed over by the Opposite party along with all necessary documents and common areas and facilities as promised during the initial booking made by the Complainant;

c) Direct the Opposite party to pay compensation of ₹5,00,000/- to the Complainant for mental agony, harassment, discomfort and undue hardships caused to the complainant as a result of the above acts and omissions on the part of the Opposite party;

d) Direct the Opposite party to pay a sum of ₹2,00,000/- to the

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complainant as a whole, towards litigation costs;

e) Direct the Opposite party to refund wrongfully charged taxes and other charges along with the interest on that amount at the rate of 18% p.a. from the date of receipt of such wrongfully levied charges and taxes;

f) Direct the Opposite party to provide lifetime permanent club membership to the Complainant without any charges and restrain the Opposite party from raising any demand for the same in future;

g) Direct the Opposite Party to remove all holding charges on account of not handing over complete possession despite requests from the Complainant;

h) That any other relief and further relief in favour of the complainant as the Hon'ble Commission may deem fit and proper in the fact and circumstances of the case."

3. The Complaint was resisted by the Opposite Party Developer by submitting that the Complainant owns a house in Ludhiana, Punjab and has also purchased another Unit bearing No. EHF-267-A-SF-108 against which she has filed the Complaint before RERA, in addition to these units, the Complainant has also purchased the Unit in question to reap financial benefit thus the Complainant does not fall within the ambit of a 'Consumer'.

4. It was also submitted that he Complainant being subsequent Allottee, cannot be placed on the same pedestal as the Original Allottee. Relying on the Judgment passed by the Hon'ble Supreme Court in "DLF Homes Panchkula Pvt. Ltd. vs. D.S. Dhanda & Ors. (Civil Appeal no. 4910 - 4941 of 2019 order dated 10.05.2019), it was submitted that the timeline given to the Original Allottee of 30 months would apply to the Complainant being a Subsequent Allottee from the date of transfer, i.e., 06.08.2014.

5. It was further submitted that the Complainant has sought possession of the Unit alongwith compensation @12% on the amount paid by the Complainant towards the cost of the property and since the possession of the Unit has been duly offered to the Complainant on 28.12.2018, therefore, the cost of the Unit can no longer decide the pecuniary jurisdiction, however, the cost of the Unit is ₹69,96,299/- and after deducting ₹1,49,871/- towards credit for anti-profiteering and ₹828/- towards credit for EPR, the total amount, i.e., ₹68,45,600/-, on which compensation @12% p.a., as sought by the Complainant, if calculated from date of transfer, i.e., 07.08.2014 till assured handover date, i.e., 28.07.2015, the total compensation comes to ₹23,23,652/- and after adding this to Cost of Property, i.e., ₹69,38,953/- the total claim comes to ₹92,62,605/- which is less than ₹1 crore, and is below the prescribed pecuniary limits of Hon'ble National Commission, therefore, the present Complaint is liable to be dismissed on the ground of lack of pecuniary jurisdiction in view of the Judgment passed by this Commission in "Ambrish Kumar Shukla vs. Ferrous

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Infrastructure Pvt. Ltd. in CC/97/2016".

6. It was further stated that despite offering the possession vide letter dated 28.12.2018, the Complainant could not come forward to take the possession. The Complainant took the possession only on 12.10.2020 after clearing the outstanding dues and depositing Holding Charges with the Registry of this Hon'ble Commission under the Orders of this Hon'ble Commission. It was submitted that in the circumstances, the Complainant is liable to pay Holding Charges, w.e.f. intimation of possession, i.e., 28.12.2018 till date of the taking possession, i.e., 12.10.2020 at the same rate at which it seeks compensation for the purported period of delay or at the rate at which such compensation is awarded by this Hon'ble Commission. It was submitted that the prices of the Units in the Project have escalated multi-fold and the Complainant has benefit of the same. It was submitted that the Hon'ble Supreme Court in recent similar cases, have awarded interest / compensation for delay in delivery of possession at the rate of 6% p.a. for the period of delay, therefore, it was prayed that the compensation in the instant case may also be awarded at the same rate of interest.

7. We have heard Mr. Aditya Parolia, learned Counsel for the Complainant, Mr. Arjun Jain, learned Counsel appearing on behalf of the Opposite Party Developer, perused the material available on record and have given our thoughtful consideration to the various pleas raised by the learned Counsel for the Parties.

8. So far as the plea of the Opposite Party Developer regarding pecuniary jurisdiction is concerned, in terms of Section 21 of the Consumer Protection Act, this Commission possesses the requisite pecuniary jurisdiction where the value of the goods or services as the case may be and the compensation claimed exceeds ₹1 Crore. This issue has been dealt in detail by a three Members Bench of this Commission in CC No. 97 of 2016 Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd., decided on 07.10.2016, wherein the law has been laid down correctly on the issue relating to pecuniary jurisdiction by holding that the sale consideration which was agreed between the Parties for buying the goods or hiring or availing the services, is relevant for determination of pecuniary jurisdiction and it is also applicable in cases of refund, as per law laid down by a larger Bench of 5 Members of this Commission in "CC No. 1703 of 2018, Renu Singh vs. Experion Developers Private Limited" and other connected matters" decided on 26.10.2021. In the present case, the Complainant purchased the Unit from the Original Allottee vide Agreement to Sell dated 28.07.2014 at the prevalent market value, i.e., ₹86,10,000/-, bifurcation of which is tabulated as below:-

9. Amount already Paid to the Opposite Party Developer by the Original Allottee, which was paid by Complainant to the Original • 18,90,000 Allottee

Balance amount to be paid to Opposite Party • 44,10,000

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Developer Profit Charged by Original Allottee from the Complainant • 23,10,000

Total Cost/Value of the Unit • 86,10,000

9. On the basis of the said Agreement to Sell, the Opposite Party Developer transferred the Unit in the name of the Complainant on 06.08.2014. The total cost of the Unit was ₹86,10,000/-. In the Prayer Clause, the Complainant has sought interest @12% p.a. on the amount deposited with effect from the date of delivery promised in the Agreement i.e., 28.06.2012, till the date of actual possession, i.e., 12.10.2020; ₹5,00,000/- towards mental agony; ₹2,00,000/- towards cost of litigation besides other reliefs. If even a part of the compensation claimed by the Complainant is added to the said cost, the aggregate would be much above ₹1 Crore. Therefore, it would be difficult to say that this Commission does not possess the requisite pecuniary jurisdiction.

10. The contention of the learned Counsel for the Opposite Party Developer that the Complainant does not fall under the category of 'Consumer' as she has three properties in her name and the subject Unit was booked to reap financial benefit is completely unsustainable in the light of the judgement of this Commission in Kavita Ahuja vs. Shipra Estates I (2016) CPJ 31 (NC), in which the principle laid down is that the onus of establishing that the Complainant was dealing in real estate i.e. in the purchase and sale of plots / flats in his normal course of business to earn profits, shifts to the Opposite Party, which in the instant case the Opposite Party Developer had failed to discharge by filing any cogent documentary evidence to establish their case. Therefore we are of the considered view that the Complainant do fall under the definition 'Consumer' as defined under Section 2 (1)(d) of the Act.

11. It is undisputed that that possession of the Unit has been handed over to the Complainant on 12.10.2020 and the Conveyance Deed has already been executed. The only issue remains with regard to the delay compensation.

12. The contention of the Opposite Party Developer that the Complainant being subsequent Allottee, cannot be placed on the same pedestal as the Original Allottee, is rejected in

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view of the decision of the Hon'ble Supreme Court in "Laureate Buildwell Pvt. Ltd. vs. Charanjeet Singh" [2021 SCC OnLine SC 479], wherein it has been held that subsequent purchaser who takes over the obligation of the Original purchaser to pay the balance amount, would not per se exclude them from the description of a Consumer and stepped into the shoes of the Original Allottee and the subsequent purchaser will be entitled for interest with effect from the date the builder acquired knowledge of the transfer, or acknowledged it, by observing as under:-

"23. The builder does not deny that upon issuance of the endorsement letter, the purchaser not only stepped into the shoes of the original allottee but also became entitled to receive possession of the flat. There is no denial that the purchaser fulfils the description of the complainant/consumer and is entitled to move any forum under the Consumer Protection Act for any deficiency in service. The question then is whether a subsequent purchaser is not entitled to similar treatment as the original allottee, and can be denied relief which otherwise the original allottee would have been entitled to, had she or he continued with the arrangement. An individual such as the original allottee, enters into an agreement to purchase the flat in an on-going project where delivery is promised. The terms of the agreement as well as the assurance by the builder are that the flat would be made available within a time- frame. It is commonplace that in a large number of such transactions, allottees are not able to finance the flat but seek advances and funds from banks or financial institutions, to which they mortgage the property. The mortgage pay-outs start initially after an agreed period, commencing in a span of about 15 to 24 months after the agreement. This would mean that in most cases, allottees start repaying the bank or financial institutions with instalments (mostly equated monthly instalments) towards the principal and the interest spread over a period of time, even before the flats are ready. If these facts are taken into consideration, prolongation of the project would involve serious economic repercussions upon such original allottees who are on the one hand compelled to pay instalments and, in addition, quite often-if she or he is in want of a house-also pay monthly rents. Such burdens become almost intolerable. It is at this point that an indefinite wait is impossible and allottees prefer to find purchasers who might step into their shoes. That such purchasers take over the obligations of the original allottee - either to pay the balance instalments or to wait for sometime, would not per se exclude them from the description of a consumer. All that then happens is that the consumer forum or commission - or even courts have to examine the relative equities having regard to the time frame in each case.

…….

31. ………..

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The equities, in the opinion of this Court, can properly be moulded by directing refund of the Principal amounts, with interest @9% per annum from the date the builder acquired knowledge of the transfer, or acknowledged it."

13. The Hon'ble Supreme Court in "DLF Homes Panchkula Pvt. Ltd. vs. D.S. Dhanda & Ors. (Civil Appeal no. 4910 - 4941 of 2019 order dated 10.05.2019), has held that "in case of transfer of flat, the delay compensation will be payable from the date of expiry of three years from the date of agreement or from the date of transfer whichever is later".

In the instant case undisputedly, the Agreement was executed between the Original Allottee and the Opposite Party Developer on 15.06.2009 and the Complainant purchased the said Unit from the Original Allottee and the said Unit was transferred in her name by the Opposite Party Developer on 06.08.2014. Respectfully, following the principles laid down by the Hon'ble Supreme Court in "Laureate Buildwell Pvt. Ltd. vs. Charanjeet Singh" (supra) and "DLF Homes Panchkula Pvt. Ltd. vs. D.S. Dhanda & Ors. (supra)"

the Opposite Party shall be liable to pay the delay compensation w.e.f. date of transfer, i.e., 06.08.2014.

14. We find it a fit case to place reliance on the Judgment dated 11.01.2021 passed by the Hon'ble Supreme Court in "Ireo Grace Realtech Pvt. Ltd. vs. Abhishek Khanna & Ors." [Civil Appeal No. 5785 / 2019 & other connected Appeals], in which the Hon'ble Apex Court has observed as hereunder :

1. We are of the view that allottees at Serial Nos. 1 and 2 in Chart A are obligated to take possession of the apartments, since the construction was completed, and possession offered on 28.06.2019, after the issuance of Occupation Certificate on 31.05.2019. The Developer is however obligated to pay Delay Compensation for the period of delay which has occurred from 27.11.2018 till the date of offer of possession was made to the allottees.."

15. For the reasons stated hereinabove, we are of the considered view that the Complainant is entitled for delay compensation w.e.f. 06.08.2014, the date of transfer of Unit in the name of the Complainant, till the date of intimation of possession, 28.12.2018.

16. Keeping in view the peculiar facts and circumstances of the case and to meet the ends of Justice, it would be appropriate if the Complainant is awarded delay compensation in the form of interest @8% p.a.

17. From the perusal of the record, it is crystal clear that the Complainant did not come- forward to take possession of the Unit and failed to clear the outstanding dues despite intimation of possession dated 28.12.2018 followed by several possession reminders issued by the Opposite Party Developer between 13.02.2019 to 10.10.2020 and ultimately took the possession only on 12.10.2020 after clearing the outstanding dues to the Opposite Party Developer and depositing the Holding Charges with the Registry. Keeping in view the peculiar facts and circumstances of the case, in our considered view, the Opposite Party Developer is entitled for Holding Charges which has been deposited by the Complainant with the Registry of this Commission.

18. Accordingly, the Consumer Complaint stands disposed off in following terms:-

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(i) The Opposite Party Developer is directed to pay delay compensation in the form of interest @8% p.a. on the amount deposited by the Complainant with the Opposite Party Developer, w.e.f. 06.08.2014 till 28.12.2018, within six weeks from today.

(ii) The Registry shall release the amount deposited towards Holding Charges by the Complainant with this Commission alongwith interest accrued, if any, in favour of the Opposite Party Developer within two weeks from today.

iii. The Opposite Parties shall pay Rs.25,000/- towards the cost of litigation, within six weeks from today.

(iv) The pending Applications, if any, also stand disposed off.

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R.K. AGRAWAL

PRESIDENT

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DR. S.M. KANTIKAR

MEMBER

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BINOY KUMAR

MEMBER

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