STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No.24 of 2023 Date of Institution : 03.05.2023 Reserved on : 16.07.2024 Date of Decision : 07.08.2024
1. Raman Kumar son of Desh Rajan aged about 35 years resident of village Bir Road, PO Ahju, The Joginder Nagar, Mandi Himachal.
2. Renuka Singh wife of Raman Kumar aged about 29 years, resident of village Bir Road, PO Ahju, The Joginder Nagar, Mandi Himachal.
.….Complainants
Versus
Omaxe New Chandigarh Developers Private Limited, Zonal Office, India Trade Tower, 1stFloor, Baddi Kurali Road, New Chandigarh, Mullanpur, STATE SAS Nagar, Punjab, through its authorized signatory. Email: customerrelation_chandigarh@omaxe.com ..…Opposite Party
Consumer Complaint under Section 47 of the Consumer Protection Act, 2019 Quorum:-
Mr. H.P.S. Mahal, Presiding Judicial Member Mrs. Kiran Sibal, Member
Argued by:-
For the complainants : Sh. Parvez Chugh, Advocate For the opposite party : Sh. Tejeshwar Singh, Advocate ……………………………………………………………………………
KIRAN SIBAL, MEMBER:
The complainants have filed this complaint under Section 47 of the Consumer Protection Act, 2019 (in short "the Act"), against the opposite party (in short 'OP') seeking following directions them to;-
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a) Provide the copies of completion certificate and occupation certificate to the complainants;
b) Complete the construction of the unit in all respects as per the specifications, amenities and facilities mentioned in schedule-D of the agreement and also to satisfaction of the complainants;
c) Pay compensation for the period of delay in handing over the possession i.e. by way of interest @12% per annum on the total amount deposited i.e. Rs.65,37,263/- from 01.08.2021 till the date of final offer of possession of apartment which is complete in all respects;
d) Not to increase the balance amount of Rs.5,81,232/- in any manner by adding the price for increased rate, meter cost etc. and further not to charge any club security deposit of Rs.2,00,000/- till the time the club for the project "The Lake" is constructed and made operational;
e) To pay compensation for an amount of Rs.2 lac towards harassment, mental agony and pain;
f) To pay an amount of Rs.1 lac towards litigation expenses
g) Any other relief or directions deem fit and appropriate to the facts and circumstances of the present case.
2. The brief facts of the case are that the complainants wanted a permanent place of residence for themselves in Chandigarh and adjoining area, being the best option for residence in the northern region. In the said search, the OP promised to give possession of an apartment in 4 to 5 months time provided they pay the sale consideration in lumpsum. The complainants were allotted flat No.TLC/Victoria-B/Nineteenth/1904 on 19thfloor alongwith covered parking, vide allotment letter/agreement dated 27.11.2019. The total price of the said unit was fixed at Rs.68,07,197/-. The complainants had paid a total sum of Rs.65,37,263/- and remaining amount of Rs.5,81,232/- was to be
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paid at the time of offer of possession. The OP had promised the complainants, at the time of booking in October 2019, that the possession would be offered by March 2020. However, when the complainants received the agreement dated 27.11.2019, they were shocked to see that the possession was to be offered by the OP by 31.07.2021. The complainants raised their grievance against the said act of the OP, but it failed to pay any heed to this request of the complainants. The OP was not able to offer the possession to the complainants by 31.07.2021, for which they were liable to compensate the complainants as per clause 7.6 of the agreement dated 27.11.2019. The complainants demanded the compensation in the month of January 2023, as more than 18 months had passed form the scheduled deadline of handing over the possession. The OP instead of paying the compensation, issued a letter dated 08.02.2023 stating that it had received partial completion certificate for Group Housing Project "The Lake", Tower Victoria-B and further invited the complainants to check the status of development/construction of the unit. The complainants immediately on 12.02.2023, went to the site to check the status of construction and were shocked to know that the unit in question was nowhere near completion as claimed by the OP. The complainants were demanding compensation for delay in handing over the possession, copy of completion and occupation certificate, and also had clicked the photographs of the incomplete apartment, but the OP issued another letter dated 17.02.2023 asking the complainants to make the payment of remaining sale
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consideration within 15 days and also offered the possession stating that the construction work of the unit has been completed. The OP had also increased the balance amount by adding the price of meter cost, increased area and club security deposit, to which the complainants were not liable to pay. Constrained by the act and conduct of the OP, the complainant issued legal notice dated 26.02.2023, asking it to provide copies of completion certificate, occupation certificate and to complete the construction work of the unit in all respect as per specifications, amenities and also to pay compensation for delay in possession. The OP instead of replying to the said legal notice, issued letter dated 13.03.2023 and demanded increased amount of Rs.7,94,290/- and also threatened the complainants that in case of failure to pay the said amount, they would have to pay higher amount under the normal payment plan. The complainants stated that they are ready to take the possession of the apartment complete in all respects, but the OP has failed to complete the apartment and is raising illegal demands, which amounts to deficiency in service and unfair trade practice on its part. Hence, the present complaint as prayed for.
3. Upon notice, OP appeared and filed written reply, raising certain objections that the present complaint is not maintainable as it does not fall within the pecuniary jurisdiction of this Commission; complainants do not fall under the definition of 'consumer' as defined in the Act, as they purchased the unit from OPs just for commercial purposes; the complaint is bad for non- joinder of necessary parties; the complaint filed by the complainant
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is beyond limitation; complainants have not come to the Commission with clean hands and the complainants have no cause of action to file the complaint against the OP. It is further stated that the complainants approached the OP in the month of October 2019, for booking of a unit for investment purposes. Thereafter, an agreement for sale under the Additional Down Payment Plan/Additional Discount Payment Plan was executed between the parties on 25.11.2019 under which the complainants were provisionally allotted the flat in question. As per opted plan, an additional discount is offered to the allottee on the consideration for the unit in lieu of consensus to make timely payment of installments and other allied cost. In case of failure to make timely payment of installments, the company has the right to withdraw such rebate/discount/concession etc. and demand payment of such discount amount as a part of the sale consideration amount, which is to be paid immediately. In the present case, a discount of Rs.6,27,607/- was given to the complainants. The complainants chose to finance their payment partially through a loan from Canara Bank for Rs.65,00,000/-. The complainants delayed the payments stating that their loan was yet to be approved and permission to mortgage was issued by the Canara Bank on 15.01.2020 and further tripartite agreement was executed between the complainants, OP and Canara Bank on 19.04.2022. The complainants regularly defaulted in timely payments of the Unit and even failed to pay their dues as stipulated under the Agreement entered into between the parties,
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despite multiple demand notices and reminders being issued to them. The complainants have received financial benefit of Rs.6,27,607/- and have then defaulted on their payments. The OP further stated that due to the unprecedented and unforeseeable calamity of Covid-19, the OP's work was halted for a period of time and even after that could only resume at a snail's pace, given lack of availability of resources, personnel and labour at the time. Despite the said delay, the OP was still able to apply for the Completion Certificate in 2022 itself and the same was granted to the OP on 07.02.2023. Thereafter, occupancy certificate was granted to the OP on 15.02.2023 and immediately thereafter on 17.02.2023, an offer of possession letter was issued to the complainants, asking them to clear their pending dues and to take possession of the said unit within 90 days of the offer of possession, but they have failed to take possession till date. The complainants by not taking possession of the unit despite the same having been offered around half a year ago, are liable to pay maintenance charges for the same as well as other charges i.e delay interest, club security, meter cost etc. After denying the other averments made in the complaint, the OP prayed for dismissal of the present complaint.
4. To prove their claim, the complainants, along with the complaint, filed their joint affidavit and copies of documents i.e. agreement dated 27.11.2019 Ex. C-1, letter dated 8.02.2013 regarding invitation to visit unit Ex.C-2, original photographs Ex.C-3, letter dated 17.02.2023 regarding offer of possession of
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the unit Ex.C-4, legal notice Ex.C-5, letter dated 13.03.2023 regarding intimation of due installments Ex.C-6, photographs Ex.C-7 attached with replication.
5. The OP, along with its reply filed affidavit of Sh. Deepanjit Singh, authorized signatory and also filed copies of documents i.e. resolution dated 09.08.2022 Ex.OP-1, RERA Registration certificate Ex.OP-2, application form dated 14.10.2019 Ex.OP-3, permission to mortgage dated 15.01.2020 Ex.OP-4, tripartite agreement dated 19.04.2022 Ex. OP-5, intimation of due installment notices Ex.OP-6, account statement Ex. OP-7, letter dated 08.12.2022 Ex. OP-8, completion certificate dated 07.02.2023 Ex. OP-9, letter dated 08.02.2023 Ex. OP-10, Occupancy certificate dated 15.02.2023 Ex. OP-11, offer of possession letter Ex. OP-12, Model agreement to sale Ex. OP-13, advisory for extension of registration of real estate projects due to force majeure dated 13.05.2020 Ex. OP-14 and circular dated 28.10.2020 for extension of six months Ex. OP-15.
6. We have heard learned counsel for the parties and have gone through the written arguments submitted by the complainants and record of the case carefully.
7. Learned counsel for the complainants vehemently contended that the OPs failed to develop the project and to deliver possession of the flat in question complete in all respect, within the stipulated period as per terms and conditions of allotment letter/agreement dated 27.11.2019. The learned counsel has further submitted that the OP, vide letter dated 17.02.2023, asked
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the complainant to make the payment of remaining sale consideration within 15 days and further offered possession of the unit while falsely stating that the construction work of the unit has been completed. The complainants have not delayed in making any of the payment to the OP till the time of the assured date of handing over a possession i.e. July 2021. The complainants have even made the payment of Rs.7,94,291/- on 16.05.2023 i.e. after filing of the present complaint pursuant to their letter of demand. The OP was liable to pay an amount of Rs.12,95,990/- as interest on their deposited amount @12% p.a. on account of delay in offering the possession from 01.08.2021 till the filing of the complaint. The learned counsel further argued that despite the fact that the complainants have made the entire payment, the OP has not given the possession of the flat to the complainants till date. The OP is offering the possession only on papers by sending possession letters, whereas the construction of unit is incomplete. The OP despite having obtained the occupancy certificate and claiming the project to be completed is not willing to complete the construction of the unit in question and cure the defects as pointed out by the complainants. The learned counsel further argued on the similar lines as stated in the complaint and prayed for acceptance of the present complaint.
8. Per contra, learned counsel for the OP contended that Clause 7.1 of the agreement provides that the stipulated date of possession is 31.07.2021, subject to force majeure conditions, which shall entitle the builder for extension of time period of
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construction. Accordingly, the OP is entitled to 9 months benefit/extension from the stipulated date of possession i.e. 31.07.2021 due to Covid-19 in 2020-21, which constitutes force majeure circumstances. The learned counsel further argued that on 13.05.2020, the Ministry of Housing & Urban Affairs (Housing Section), Government of India issued an "Advisory for extension of registration of real estate projects due to 'Force Majeure' under the provisions of Real Estate (Regulation and Development) Act, 2016 (RERA)", and in accordance with the said advisory, RERA, Punjab issued a list of projects where extension of six months is granted due to Covid-19, as per Circular dated 28.10.2020, in which the project of OP No.1 is duly mentioned. Further as per various judgments of Hon'ble Supreme Court and NCDRC, in case of delay in possession, interest @ 6% p.a. shall be awarded and in case the interest is not paid within 1 months/6 weeks, then 9% interest is payable. In support of his contentions the learned counsel relied on the following judgements:-
• Wg.Cdr. Arifur Rahman Khan and Ors. V. DLF Southern Homes Pvt. Ltd. (2020) 16 SCC 512.
• DLF Home Developers Ltd. Vs. Capital Greens Flat Buyers Association, (2021) 5 SCC 537.
• Sriganesh Chandrasekaran and Ors. V. M/s Unishire Homes LLP and Ors., CC/2428/2017, decided on 19.10.2023 (NC) The learned counsel further argued on the similar lines as averred in the written version and prayed for dismissal of the complaint.
9. We have given our thoughtful consideration to the respective contentions raised by the learned counsel for the parties.
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10. First of all, we would like to dispose of the objection of the OPs that the complainants do not fall under the definition of 'consumer', on the grounds that they purchased the unit only for investment purpose. In this regard, it is relevant to mention that there is no evidence from the side of the OP to prove that the complainants are indulging in sale/purchase of property for commercial purpose and simple assertion in this regard in their reply is not sufficient to prove this fact. Hon'ble National Commission in Ireo Fiveriver Pvt. Ltd. v. Surinder Kumar Singla No.1358 of 2016, decided on 29.11.2016, while relying upon its earlier decision in
KAVITA AHUJA & OTHERS v. SHIPRA ESTATE LTD. & JAI KRISHNA ESTATE DEVELOPERS PVT. LTD. & OTHERS
Consumer Case No.137 of 2010, decided on 12.02.2015, held the complainants as consumers, observing that the appellant failed to show any cogent evidence, which may indicate that the respondents/complainants or any of them has been indulging in sale/purchase of the properties or that the complainants or any one of them had booked the subject plots in the development project undertaken by the appellant with the intention to sell the same on subsequent date for earning profit. In the instant case also, as already said above, there is no evidence led by the OP to prove that the complainants indulged in sale/purchase of properties or that they purchased the unit, in question, for further sale or for earning profits. Thus, in view of the ratio of the above cited authorities, the above said plea/objection of the OP is
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rejected and the complainants are held to be 'Consumer', under the Act.
11. Another objection raised by the OP is that this Commission does not have pecuniary jurisdiction as the complainants have claimed compensation @12% p.a. on amount paid from 01.08.2021, compensation of Rs.2,00,000/- and litigation expenses of Rs.1,00,000/- and even if all these prayers are added, the total amount does not reach the threshold of Rs.50 Lakhs. In this regard, it is pertinent to mention here that the total sale consideration of the said flat is Rs.68,07,197/-, as per agreement Ex.C-1 and the complainants have already paid a sum of Rs.65,37,263/- to the OP. No doubt, the complainants in their complaint have not sought refund but they have alleged deficiency in service and unfair trade practice on the part of the OP for not completing the construction of the unit in all respects and for delay in handing over the possession of the unit. Moreover, as per notification dated 30.12.2021 issued by the Ministry of Consumer Affairs, Food and Public Distribution, Government of India, the State Commission shall have jurisdiction to entertain the complaints where the value of goods or services paid as consideration exceeds fifty lacs but does not exceed rupees two crore. In the present case, it is clear that the consideration paid by the complainants to the OPs is Rs.65,37,263/- towards their unit, which fell above Rs.50 lacs and below Rs.2 crore. Accordingly, this Commission has got pecuniary jurisdiction to entertain and
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decide the present complaint. Hence, the objection raised by the OP is hereby rejected.
12. It is not in dispute that an amount of Rs.65,37,263/- has already been deposited by the complainants with the OP out of total sale consideration of Rs.68,07,197/- and as per clause 7.1 of the Agreement to sell, Ex.C-1, the possession of the unit in question was to be handed over by 31.07.2021. It is also an undisputed fact that the possession of the unit in question has not been offered within the stipulated date i.e. 31.07.2021 and the same was offered to the complainant on 17.02.2023, Ex.C-4. The complainants have alleged that there has been a delay in handing over of possession of the said unit for which they need to be compensated by way of interest @ 12% p.a. on the total amount deposited by them from 01.08.2021 till the date of final offer of possession of apartment which is complete in all respects. On the other hand, the learned counsel for the OP has submitted that the possession of the said unit could not be handed over as per the scheduled date i.e. 31.07.2021 due to force majeure conditions in the form of Covid-19 pandemic which happened worldwide, and it had a particular effect on the construction work carried on by the OP Company. The construction was at a complete halt for a number of months and for over a year, could not resume at normal pace due to lack/delay of incoming material and a perpetual shortage of labourers/workers due to the Covid-19 Pandemic. During the course of arguments, the learned counsel argued that the OP is willing to compensate the complainants @ 6% p.a., in
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lieu of Judgment of Hon'ble Supreme Court of India and National Commission as stated in its written arguments, towards delay period while taking into the fact that the period of Covid-19 be subtracted from the number of days calculated by the complainants. To adjudicate this point we have perused the pleadings, evidence placed on record by the parties as well as the case laws. It is relevant to discuss here Clause 7.1 of the agreement to sell, Ex.C-1, which is reproduced as under:-
"7. Possession of the said unit:
7.1 Schedule for possession of the said Unit- The promoter agrees and understand that timely delivery of possession of the said Unit is the essence of the Agreement. The promoter, based on the approved plans and specifications, assures to hand over possession of the Said Unit on 31stJuly, 2021, unless there is delay or failure due to war, flood, drought, fire, cyclone, earthquake or any other calamity caused by nature affecting the regular development of the real estate project("Force Majeure"). If however, the completion of the Project is delayed due to the Force Majeure conditions then the Allottee agrees that the Promoter shall be entitled to the extension of time for delivery of possession of the said unit, provided that such Force Majeure conditions are not of a nature, which make it impossible for the contract to be implemented………."
Admittedly, due to Covid-19 pandemic, lockdown in the country was announced on 25.03.2020 and there was slowdown in the availability of raw materials and labourers, which was beyond the control of the OP. It is pertinent to mention here that on 13.05.2020, the Ministry of Housing & Urban Affairs (Housing Section) Government of India issued an "Advisory for extension of registration of real estate projects due to 'Force Majeure' under the provisions of Real Estate (Regulation and Development) Act, 2016", Ex. OP-14, which provides for Extension of Registration of
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real estate project by 6 months, which was further extendable upto further 3 months, on account of 'force majeure' stating that it is quite evident that current pandemic caused by nature is adversely affecting regular development of real estate projects. The relevant part of the said advisory is reproduced as under:-
"6. Ministry has examined the said recommendation of CAC and accordingly advises all States/Union Territories and their Real Estate Regulatory Authorities that in order to avoid submission of separate application for extension of each project and orders thereon, Regulatory Authorities may, in pursuance of Section 37 of RERA read with other enabling provisions, in their respective jurisdictions issue following orders/directions to the effect that 'notwithstanding anything contained to the contrary and by virtue of powers conferred under Section 37 read with Section 34(f) of the RERA, the registration or extension thereto under Section 5,6,(3) of the RERA or Rules thereunder, all registered projects under jurisdiction of Regulatory Authority for which the completion date or revised completion date or extended completion date as per registration expires on or after 25th March, 2020:
(i) Regulatory Authorities may issue suitable orders/directions to extend the registration and completion date or revised completion date or extended completion date automatically by 6 months due to outbreak of Covid-19(Corona Virus), which is a calamity caused by nature and is adversely affecting regular development of real estate projects by invoking force majeure clauses;
(ii) Regulatory Authorities may, on their own discretion, consider to further extend the date of completion as per registration for another period upto 3 months, if the situation in their respective State or any part thereof, for reasons to be recorded in writing, needs special consideration of invoking 'force majeure' in view of current pandemic;
(ii)……………………………………………………."
Accordingly, in our considered opinion, the OP is entitled to get extension of these 9 months from the actual date of delivering the possession of the unit in question i.e. possession should have been delivered to complainant latest by 31.04.2022 (09 months
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from 31.07.2021). However, the OP has not offered the possession of the unit by 31.04.2022 and the same was offered on 17.02.2023, Ex.C-4. Accordingly, the complainants are entitled for interest for delay from 01.05.2022 till 17.02.2023.
13. So far as the contention of the OP that it is entitled to extension of possession date by same period as the period of delay in making payment by the complainants, as per clause 7.3 of Agreement of sale, is concerned, it is pertinent to mention here that the amount of installments demanded by the OP from the complainants i.e. on 60 days of booking and on 90 days of booking, were deposited by them after a delay of one month and few days only. Since, the OP has failed to deliver the possession of the unit within the stipulated period and even after the grace period due to force majeure effect on account of Covid-19, as discussed above, the OP cannot wriggle out of their liability by saying that delay took place on account of reason that the complainants have defaulted in making the remaining payment. In view of principle of law laid down by the Hon'ble Supreme Court of India in the case of "Haryana Urban Development Authority Vs. Mrs. Raj Mehta", Civil Appeal No.5882 of 2002, decided on 24.09.2004, wherein it was held that if the builder is at fault in not delivering possession of the Units/Plots by the stipulated date, it cannot expect the allottee(s) to go on paying installments to the builder. Similar view had also been taken by the Hon'ble National Commission in the case of "Prasad Homes Private Limited Vs. E. Mahender Reddy and Ors", 1 (2009) CPJ 136 (NC), wherein it
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was held that when development work was not carried out at the site, the payment of further installments was rightly stopped by the allottee. In the present case, the complainants has not stopped the payment but they merely delayed the same. The complainants had already paid a substantial part of the sale consideration and the OP had also been claiming the grace period due to force majeure conditions in delivering the unit in question, therefore we do not find any force in the contention raised by the OP that it is also entitled to extension of possession date due to delay in making the payment by the complainants.
14. So far as the plea raised by the complainants that the OP has not completed the construction of the unit in all respects as per the specifications, amenities and facilities mentioned in schedule D of the agreement, is concerned, the OP has rebutted the said plea by placing on record partial completion certificate dated 07.02.2023, Ex. OP-9, issued by GMADA of Group Housing Project "The Lake" Tower Victoria B and Occupancy Certificate dated 15.02.2023, Ex. OP-11 issued by the GMADA of "Tower Victoria-B at The Lake", granting permission for the occupation/Use. The said Occupancy Certificate has been issued by the GMADA after satisfaction and verification regarding completion of construction work. Section 14(2) of PAPRA also states that the competent authority shall issue the occupancy certificate after satisfying itself about the compliance of building regulations and all formalities. In support of their plea, the complainants have placed on record Photographs, Ex.C-3,
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showing incomplete construction of the unit. However, from the perusal of the said photographs we find that the same are undated photographs and no apartment number or location can be made out whether it pertains to the same apartment or not. Even from the perusal of photographs, Ex.C-7, attached with the replication filed by the complainants, it reveals that the same are clicked at Tower Victoria-A, whereas the unit in question is situated at Tower Victoria-B. As such, we find that there is ambiguity in the photographs as it belongs to a different tower and cannot be relied upon. The onus was on the complainants to establish this fact by leading cogent evidence, but they failed to do so. Accordingly, we do not find any force in the contention raised by the complainants that the unit in question is incomplete.
15. Now, we proceed to decide whether the complainants are liable to pay the charges for maintenance, meter cost, club security and charges on account of increase in area or not? It is established on record that the after obtaining the occupancy certificate on 15.02.2023, the OP offered possession of the unit in question immediately on 17.02.2023 and also requested the complainants to clear the remaining balance, but the complainants have failed to clear the outstanding amount and did not take the possession of the unit. Thereafter, the OP, vide letter dated 13.03.2023 regarding intimation of due installments, Ex. C-6, had again requested the complainants to pay a sum of Rs.7,94,291/- as total outstanding amount, which included the above said charges disputed by the complainants. It is pertinent to mention
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here that as per Clause 7.2 of the agreement, Ex.C-1, the complainant has to take possession within 3 months from the date of offer of possession and further as per Clause 7.3, in case the allottee fails to take possession, he shall still be liable to pay the maintenance charges. As such, the complainants are liable to pay the maintenance charges as they failed to take possession within 3 months from the date of offer of possession. With regard to club security deposit of Rs.2 lacs, Schedule C-1 of the agreement specifically states that interest free club security deposit has to be paid by the complainants. It has been duly mentioned in the statement of account that there is increase of 30 Sq. feet area in the said unit. The charges for increase in Area are also liable to be paid by the complainants as per Clause 1.7 of the agreement, wherein it has been specifically mentioned that "the builder shall confirm the carpet area upon completion of construction, and if there is any increase, the same shall be chargeable at the same rate per square feet. With regard to charges qua meter installation cost, the same is not included in the basic cost of the unit, therefore, the complainants are also liable to pay the same. Moreover, the agreement to sell is treated like a contract between the parties, which is duly signed by them after agreeing on the terms and conditions mentioned therein. Therefore, the complainants cannot wriggle out at a belated stage with the intention to avoid the said incumbent charges, which are part of the agreement. Accordingly, the OP has rightly added the above said charges in the statement of account, which were to be paid by
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the complainants. The Learned counsel for the complainants has stated in his written arguments that the complainants have already made the payment of Rs.7,94,291/- on 16.05.2023 during the pendency of the present complaint.
16. Now with regard to the quantum of compensation to be paid by the OP, for the delay in offering of possession for the period from 01.05.2022 till 17.02.2023 (as discussed above), is concerned, we are fortified with the latest judgment of Hon'ble National Commission, in the case of "Sriganesh Chandrasekaran and 38 Ors. Vs. M/s Unishire Homes LLP and 3 ors", CC No.2428 of 2017 decided on 19.10.2023, whereby the Hon'ble National Commission after placing reliance on the judgments of Hon'ble Supreme Court has held as under:-
"16. In the present case, the offer of possession was offered to the complainants on 12.04.2022. As per the ratio laid down by the Hon'ble Supreme Court in "Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna and ors. in civil Appeal No.5785 of 2019 decided on 11.01.2021, since an offer of possession was made, the complainants are obligated to accept possession although they would be entitled to delay compensation. The Hon'ble Supreme Court in "Wg. Comdr. Arifur Rahman Khan V. DLF Southern Themes pvt. Ltd.((2020) 16 SCC 512) and DLF Home Developers Ltd. V. Capital Greens Flat Buyers Association (2021)
5 SCC 537 has held that 6% interest per annum from the date of promised possession till the date of offer of possession would be appropriate compensation for delayed possession. The complainants are therefore, entitled to seek possession with delayed compensation in light of the foregoing judgments.
17. In view of the foregoing discussion and the facts and circumstances of the case, the Consumer complaint is found to have merits and is accordingly partly allowed. The opposite party No.1 is directed to:
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(i) Complete the construction of the flats allotted to the Complainants in all respects, duly obtaining the requisite Occupancy Certificate, if not already received, at its own cost and responsibility and offer and give legal possession of the respective flats to the complainants within 03 months of the receipt of this Order;
(ii) Pay interest @ 6% per annum on the amount deposited by the complainants from the due date of possession which would include grace period as per their respective agreements till the date of offer of possession, within a period of six weeks. In case of delay beyond this period, the delay compensation will be @9% per annum;
(iii) Opposite Party No.1 shall also pay Rs.50,000/- as cost of litigation to the complainant No.1 in each case."
In view of the above said latest judgment of Hon'ble National Commission, we are of the considered opinion that the complainants are entitled for interest @ 6% p.a. for delay in offering possession on the amount deposited by them with the OP w.e.f. 01.05.2022 till 17.02.2023. The complainants are also entitled for litigation expenses to the tune of Rs.50,000/-.
17. A sequel to our above discussion, the present complaint filed by the complainants is partly allowed with the following directions to the OP:-
(i) to pay interest @ 6% p.a. on the entire amount deposited by the complainants i.e. Rs.65,37,263/- w.e.f. 01.05.2022 till 17.02.2023 within a period of six weeks from the date of receipt of certified copy of this order. In case of delay in payment beyond this period, the delay compensation will be @9% p.a.
(ii) to pay Rs.50,000/- as cost of litigation to the complainants.
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18. The compliance of the order shall be made by the OP within a period of 6 weeks from the date of receipt of certified copy of the order.
19. The complaint could not be decided within the stipulated period due to heavy pendency of Court cases.
(H.P.S.MAHAL)
PRESIDING JUDICIAL MEMBER
(KIRAN SIBAL)
MEMBER
August 07, 2024 dv