Abhinav Ashwin & Anr vs Logix Infrasyructure Private Ltd

Deepa Sharma, Presiding Member

The brief facts of the case are that Noida Authority had allotted a land to the Opposite Party for Housing Project through letter dated 29.01.2010 in plot no GH-02, Sector 137, Expressway Noida, Gautam Budh Nagar, Uttar Pradesh. The complainants applied for allotment of an apartment in Blossom County of the said project and paid a sum of Rs.8,00,000/- by cheque dated 27.09.2012 towards the registration amount for provisional allotment of the apartment. On 26.10.2012, vide allotment letter, a unit no. N-1902 on 18 th floor in Block 'N' was provisionally allotted to the complainants. A Flat Buyer Agreement was executed on 17.10.2012 and the stipulated period for completion of the construction was 24 months including six months grace period from the date of execution of Builder Buyer Agreement. The complainants, thereafter paid a sum of Rs.6,71,000/- on 16.11.2012 and Rs.76,61,807/- on 30.11.2012. Vide communication dated 30.04.2013, the opposite party informed the complainants that possession of Tower-N will tentatively be given by August-September 2014 onwards. Despite writing several letters by the complainant, the possession was not handed over to it and finally, the complainants filed the complaint with the prayer that the opposite party be directed to hand over possession of the subject flat alongwith interest @ 18% p.a. on the amount deposited by it and also Rs.3,47,000/-towards rental damages. The complainants also made other prayers.

Notice of this complaint was issued to the opposite party.

Vide order dated 22.02.2017, this Commission closed the right of the opposite party to file written statement.

Evidences were led by the parties. The opposite party, however, filed an affidavit whereby it has informed the Commission that complainants have taken over the possession of the subject property on 04.03.2020. Since the possession has been taken over by the complainants on 04.03.2020 i.e. during the pendency of the present complaint, there is no need to issue any direction for handing over of the possession. The sole issue that remains is to the amount of compensation to which the complainants are entitled to. It is undisputed that there is considerable delay of handing over of the possession by the opposite party. It had promised to hand over the possession within 24 from the date of execution of Builder Buyer Agreement i.e. 17.10.2012. The date of possession was, therefore, 16.10.2014. The possession was handed over only on 04.03.2020. So there is delay of more than 5 years.

The issue relating to grant of compensation, where delayed possession had been given, came up for consideration before the Hon'ble Supreme Court in Wing Commander Arifur Rahman Khan and Aleya Sultana and Others Vs. DLF Southern Homes Private Limited (2020) 16 SCC 512 ( now known as Begur OMR Homes Pvt. Ltd. and Others). The Hon'ble Supreme Court has held as under:

"69.1 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 @ 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.

69.2. The above amount shall be in addition to the amounts which have been paid over or credited by the developer @ Rs.5 per square feet per month at the time of drawing of final accounts."

In Clause 6.6 of the Flat Buyer Agreement, the opposite party had undertaken to pay delayed charges @ 5/- per sq. ft per month for each completed month of delay calculated from the date of expiry of grace period. It is hereby directed that opposite party shall comply this clause and calculate the amount payable to the complainants @ 5/- per sq. ft. per month for each completed month calculated from the date 16.10.2014 till the date of handing over the possession. In view of the direction of the Hon'ble Supreme Court in Wing Commander Arifur Rahman Khan and Aleya Sultana and ORs. ( supra), the opposite party is also liable to pay interest @ 6% simple interest per annum to be computed from 16.10.2014, the date of expiry of 24 months from the execution of Builder Buyer Agreement till the date of possession i.e. 04.03.2020 on the amount deposited by the complainants with the opposite party.

In view of the above discussions, following directions are, therefore, issued :

a. The Opposite Party shall calculate the amount to be paid to the complainants @ 5/- per sq. ft. per month for each completed month calculated from the date 16.10.2014 till the date of handing over the possession.

b. The Opposite Party shall also pay interest to the complainants @ 6% simple interest per annum to be computed from 16.10.2014, the date of expiry of 24 months from the execution of Builder Buyer Agreement till the date of possession i.e. 04.03.2020 on the amount deposited by the complainants with the opposite party.

With these directions, the Complaint stands disposed of.