Ajay Kumar Verma & Ors vs M/s Aims Max Gardenia Developers Pvt. Ltd

Heard Ms. Nikita Sharma, Advocate, for the complainants and Mr. Rishi Awasthi, Advocate, for the opposite party.

Initially 45 sets of home buyers of the project “Golf City” have filed above complaint, for directing the opposite party to (i) deliver possession of apartment allotted to them in the project “Golf City”, complete in all respect as per specifications with promised amenities and facilities and execute conveyance deed in their favour; (ii) pay compensation @Rs.10/- per sq.ft., per month on super area, for first six months from March, 2013 onwards and penalty @12% per annum on total amount paid by the buyers for delay beyond August, 2013 till the delivery of possession; (iii) pay Rs.300000/- to each buyer, as compensation for mental agony and harassment; and (iv) any other relief which is deemed fit and proper in the facts and circumstances of the case.

Leave under Section 12(1)(c) of Consumer Protection Act, 1986, for filing the complaint in representative capacity has been granted on 01.02.2019. The opposite party obtained “occupation certificate” in respect of Towers C-2, E-2, F-2, G-2, H-2 and 12 of the project on 11.07.2018. This Commission, vide order dated 12.11.2018, directed the opposite party to deliver possession to the home buyers of these towers on deposit of admitted amount. In compliance of the order dated 12.11.2018, many complainants took possession and settled their all disputes. On their application they were permitted to withdraw from the complaint and at present 36 set of complainants remain. The opposite party could not obtain “occupation certificate” in respect of Towers A-2, B-2, C, H, I, B-3 and J of the said project, till the date. Therefore, the counsel for the complainants prayed for refund money of the allottees of these towers with interest at the time of arguments.

The complainants stated that M/s. Aims Max Gardenia Developers Private Limited (the opposite party) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project and selling its unit to the prospective buyers. The opposite party launched a group housing project, in the name of “Golf City”, at Sector-75, Noida, U.P., in the year 2010 and made wide publicity of its facilities and amenities. Believing upon the representations and promises of the opposite party, a group of employees of Bharat Heavy Electrical Limited approached the opposite party and expressed its willingness to purchase 100 to 150 flats of different sizes in the said project. The opposite party agreed and a Memorandum of Understanding dated 26.02.2010 was executed between them, which contains basic rate, payment plan, period for delivery of possession and compensation for delay, drawing of six different sizes of flats, specifications, towers etc. This Memorandum of Understanding was amended on 10.04.2011. Each of the complainants booked a flat during March to June, 2010 and deposited booking amount. The opposite party allotted one flat to each of them during December, 2010 to October, 2011 and executed Apartment Buyer Agreement during March, 2011 to November, 2011 in favour of the complainants. Payment Plan was “Flexi Payment Plan”, under which 10% BSP was payable at the time of booking, 30% BSP within 30 days from the date of the apartment buyers agreement, 50% BSP was payable in 5 instalments, on start of different level of construction and 10% BSP and 100% other charges within 30 days of intimation for possession. Clause-27 of the agreement provides to complete construction up to February, 2013, except in the agreement of Shamim Raza, Reeta Srivastava and Rakesh Kumar Srivastava, in which October, 2013 was mentioned. Clause-9 of Memorandum of Understanding dated 26.02.2010 as amended on 10.04.2011, provides for delayed compensation @Rs.10/- per sq.ft., per month on super area, for first six months from March, 2013 onwards and penalty @12% per annum on total amount paid by the buyers for delay beyond August, 2013 till the delivery of possession. Clause-27 provides for delayed compensation @Rs.10/- per sq.ft. per month on super area, for the delayed period. Clause-27 is not in consonance of Memorandum of Understanding and substantial change has been made unilaterally. The complainants diligently followed payment plan and as per demand, timely paid 90% of basic sale price but the construction was not completed within stipulated period. In February, 2016, the opposite party issued letters to the complainants, offering Fit-out Possession along with demand letters, relating to balance amount. The complainants visited the site and found construction was not completed. Although possession was delayed for about three years but no compensation for delay was credited in the accounts of the home buyers. The complainants, through letter dated 11.03.2016, raised their objections for fit-out possession of the flat, the construction being incomplete, common facilities and amenities being inadequate and not providing delayed compensation, as per MOU. The opposite party, vide letter dated 01.04.2016, the called the complainants to visit the office and deposit the amount after adjusting delayed compensation as per MOM dated 03.01.2016. MOM dated 03.01.2016 was a fabricated document as the complainants never agreed for delayed compensation from 01.05.2015. This complaint was filed on 15.01.2018, alleging unfair trade practice.

The opposite party has filed its written reply on 07.03.2018, in which, booking of the flats during March to June, 2010, allotment of flats during December, 2010 to October, 2011 and execution of Apartment Buyer Agreements during March, 2011 to November, 2011 and deposits made by the complainants, have not been disputed. The opposite party stated that four persons, namely S.C. Shivhare, K.K. Kohli, Virendra Tripathi and M. Prasad represented themselves to be the employees of Bharat Heavy Electrical Limited and negotiated for 100 to 150 units for the employees. In that connection MOU dated 26.02.2010 was executed. The complainants are neither signatories of MOU nor they booked the flats as being an employee of Bharat Heavy Electrical Limited. In their allotment letters, it has been mentioned that the allotment was subject to terms and conditions contained in the agreement. The complainants deliberately concealed the allotment letters. Terms and conditions mentioned in allotment letters and agreements are binding upon the parties. Noida authority allotted the project land to the opposite party on 12.03.2010 and by a corrigendum letter dated 09.06.2010, the terms and conditions were modified. Thereafter, Noida authority executed lease deeds dated 16.06.2010, 31.01.2011 and 01.12.2011. The opposite party then obtained licence for development of township and got layout of building plan, sanctioned and other permission for construction. The construction was started thereafter. Due to force majeure reasons the construction was delayed i.e. (i) National Green Tribunal vide order dated 11.01.2013, restrained the builders in NCR region from using ground water for raising construction. New Okhla Industrial Development Authority challenged the order before Supreme Court but the appeal was dismissed on 18.10.2013. The opposite party had to procure STP water, which required carrying water in tanker from distant place. Due to which, the construction work had gone slowdown from January, 2013. (ii) From July, 2013, the farmers started riotous agitations in protest of land acquisition in Noida. Due to which construction was stopped during July, 2013 to September, 2013. Allahabad High Court vide order dated 03.03.2016 passed in Writ Petition No.61567 of 2015 Omveer Singh Vs. State of U.P., directed to maintain status quo. (iii) Govt. authorities imposed ban on mining operation of sand from river Yamuna, in June, 2013, which created shortage of sand in Noida. (iv) National Green Tribunal, vide order dated 14.08.2013, stopped building construction activities, in a radius of 10 KM from Okhla Bird Sanctuary. This order was challenged in Supreme Court but the appeal was dismissed. Ultimately, National Green Tribunal directed U.P. Government to notify eco-sensitive zone, which was notified on 19.08.2015. Till then construction of the project was stopped. In spite of above difficulties, the opposite party completed the construction and offered fit-out possession in February, 2016. The complainants instead of paying balance amount and taking possession raised issue of delayed compensation, although delay had occurred for force majeure reasons and liable to be condoned. In spite of it, the opposite party agreed to pay delay compensation from complainants from 01.05.2015, in terms of agreement as per MOM dated 03.01.2016. Manorama Gupta and 35 others (some of the complainants) filed Writ Petition No.31733 of 2016, raising similar grievances, which was disposed vide order dated 14.07.2016, directing the petitioners to file representation before appropriate authority, who was directed to decide it. Thereafter, Manorama Gupta and 35 others filed representation before competent authority, who disposed the representation directing the opposite party to complete the construction and handover possession in terms of the agreement. The complainants have deliberately concealed these facts. As per statement of account, many complainants were defaulters. The opposite party has completed the construction and applied for issue of “completion certificate” in November, 2016. Noida Authority raised demand of lease rent. The opposite party and various other builders moved an application before National Green Tribunal, New Delhi, for declaring the period during 14.08.2013 to 19.08.2015 as zero period for lease rent, which was rejected by National Green Tribunal, New Delhi. The order has been challenged before Supreme Court. In spite of taking time to file counter affidavit, Noida authority did not file counter affidavit before Supreme Court and the matter is adjourning. The builder also filed Writ Petition (C) No.940 of 2017, before Supreme Court for directing Noida authority to charge interest @8% per annum on the outstanding dues. Supreme Court vide order dated 10.07.2020, directed to charge prevailing SBI MCLR rate w.e.f. 01.10.2010, which was modified on 19.08.2020. Due to these litigations Noida authority is not issuing “completion certificate”. The complainants are investors and complaint is not maintainable.

The complainants filed Affidavit of Evidence of S.C. Kapur and Affidavit of Evidence of Ms. Kiran Kapur and documentary evidence. The opposite party filed Affidavit of Evidence of Anand Ram and documentary evidence. The complainants filed their written synopsis.

We have considered the arguments of the parties and examined the record.  Oral request made by the counsel for the complainants for granting the relief of refund to the flat buyers of Towers C-2, E-2, F-2, G-2, H-2 and 12, cannot be granted as permission under Section 12(1)(c) of Consumer Protection Act, 1986 has been granted for the relief of possession and other consequential relief. At subsequent stage, the relief of refund cannot be granted to any individual member.

As per clause-27 of Apartment Buyers’ Agreement, due date of possession was February, 2013 and in some cases December, 2013. The opposite party offered Fit-out possession to the complainants in February, 2016. As the opposite party did not obtain “occupation/ completion certificate”, as such, offer of possession was not valid and in accordance with Apartment Buyers’ Agreement. The opposite party filed Affidavit of Evidence of Anand Ram on 25.04.2019, in which, nowhere it has been stated that the opposite party had applied for issue of completion/occupation certificate after completing the construction prior to February, 2016. No home buyer can be forced to take fit-out possession. Subsequent to issue of “occupation/completion certificate”, the opposite party offered possession in the year 2021 as such there is delay in offer of possession and the complainants are entitled for delayed compensation for the delayed period.

The opposite party has raised plea that for the force majeure reasons, delay has occurred inasmuch as in January, 2013, National Green Tribunal has imposed ban on using ground water by the builders in Delhi NCR region due to which the opposite party had to procure water from alternate sources which has increased the cost; due to which the work had become slow. Thereafter, National Green Tribunal by order dated 14.08.2013 stopped construction within a radius of 10 km. of Okhla Bird Sanctuary and this restraint order continued till notification of eco-friendly zone by State of U.P. on 19.08.2015. Issuance of “occupation/completion certificate” has been delayed by statutory authority. Delay was for force majeure reasons and liable to be condoned under clause-28 of the agreement. We find that construction was delayed for force majeure reasons. The opposite party in the minutes of meeting dated 03.01.2016 has agreed to pay delayed compensation from 01.05.2015.

So far as the delay in issue of “occupation certificate” by statutory authority due to not paying the dues of lease rate is concerned, the opposite party has stated that as the builders are fighting before Supreme Court for declaring the period from 14.08.2013 to 19.08.2015 as ‘zero period’ in Civil Appeal No.3593 of 2018, which is pending. If this appeal is allowed then the opposite may get exemption from lease rent of the period from 14.08.2013 to 19.08.2015 and rebate on interest during this period, but this cannot be taken as force majeure reason inasmuch as it is very well open to the opposite party to deposit this amount, reserving their rights to be agitated before Supreme Court. Similarly, the writ petition filed by the builders for fixing the rate of interest can also be not considered as force majeure reason. As such, delay in issue of “occupation/ completion certificate” for the dispute of lease rent or rate of interest cannot be considered as force majeure reason.

There is a dispute between the parties in respect of rate of compensation. The complainants relying upon the Memorandum of Understanding executed between the opposite party and four employees of Bharat Heavy Electrical Ltd. on 26.02.2010 as modified on 10.04.2011 are claiming interest @12% per annun after August, 2013 till the date of offer of possession. The complainants have not filed any evidence to prove that they had applied through the group of employees of BHEL. On the other hand, the opposite party has filed the allotment letter of the complainants to show that the terms and conditions as mentioned in the Apartment Buyers’ Agreement will be followed between the parties. The complainants have deliberately concealed the allotment letters, which were issued in the year 2011. The terms of the allotment letter could have been challenged within two years of its issuance and not thereafter. Therefore, the compensation as claimed by the complainants in the form of interest @12% per annum after August, 2013 is not payable. Supreme Court in Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes, Pvt. Ltd., (2020) 16 SCC 512 has held that the delay compensation payable @6% per annum on the deposit of the complainants from due date of possession till the offer of possession.

ORDER

In the result, the complaint is partly allowed. The opposite party is directed to pay delayed compensation in the form of interest @6% per annum on the deposit of the complainants from May, 2015 till the date of offer of possession after issue of occupation certificate within a period of two months. On settlement of account, the opposite party shall hand over possession, if not already been handed over of the flat to the complainants complete in all respect as per speciation and execute conveyance deed in their favour without any further delay.