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Judgment
Heard Mr. Saurabh Kumar, Advocate, for the complainants and Mr. Sanjoy Kumar Ghosh, Advocate, for the opposite party.
Eight home buyers of the project “Aims Golf Avenue” have filed above complaint, for directing the opposite party to (i) handover possession of the apartments booked by them and other buyers within a period of two months; (ii) pay delay compensation in the form of interest @18% per annum on the deposit of the buyers and also @Rs.5/- or Rs.10/- per month per sq.ft. of the super area, from due date of possession till the delivery of possession; (iii) pay Rs.500000/- as compensation for mental agony and harassment to each complainants; (iv) pay Rs.50000/- to each complainant, as costs of litigation; and (v) any other relief which is deemed fit and proper in the facts of the case. The complainants filed IA/3554/2017, under Section 12(1)(c) of the Consumer Protection Act, 1986, for leave to institute the complaint as a class action case, which was allowed vide order dated 14.09.2018. On publication of the notice, several home buyers were impleaded as the complainants and at present there are 14 complainants.
The complainants stated that M/s. Aims Promoters 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. The opposite party launched a group housing project in the name of “Aims Golf Avenue” at Plot No.GH-02, Golf City, Sector-75, Noida in the year, 2010 and made wide publicity of its amenities and facilities. Believing upon the representations of the opposite party, complainant-1 booked two flats and other complainants booked one flat each during 2010-2011 and deposited booking amount. The opposite party issued Provisional Allotment Letters during 2011-2013 and shortly thereafter executed Flat Buyer Agreements in favour of the complainants. Clause-31 of the agreement provides that the complex is proposed to be completed till December, 2014 with grace period of six months. Payment plan was “construction link payment plan”. The complainants deposited instalments on time as per demand. However, the construction was unreasonably delayed. When the complainants agitated for possession, then the opposite party issued letters dated 30.12.2016, demanding the amount payable on offer of possession, stating that they were ready for intimating process of possession in new year, although neither construction was completed nor “occupation certificate” was obtained. The opposite party raised a demand arbitrarily and not according to agreement. Then this complaint was filed on 15.03.2017, alleging deficiency in service and unfair trade practice.
The opposite party has filed its written reply on 15.10.2018, in which, booking of the flats, allotment of the flats, execution of agreements and the deposits made by the complainants, have not been disputed. The opposite party stated that the construction was delayed for force majeure reasons and liable to be condoned under clause-31 of the agreement. State of U.P. granted lease of the project land on 16.06.2010 and handed over possession on 23.06.2010 and 02.12.2011. Sub-lease deed was executed in favour of the opposite party on 02.01.2012. Allahabad High Court, vide order dated 22.03.2012, passed in Writ-C No.14061 of 2012, Dharam Pal Yadav Vs. State of U.P. directed to maintain status quo on the project land. This order continued till 20.04.2012. Thereafter again vide order dated 10.12.2012, passed in Writ-C No.56276 of 2012 Smt. Sunita and other Vs. State of U.P., restrained from carrying out any construction on the project land, which was continued till 25.09.2014. District Magistrate, Gautum Budh Nagar seized the site on 22.04.2013, due to farmer’s agitations which continued till December, 2014. National Green Tribunal, vide order dated 14.08.2013, stopped all the constructions within the radius of 10 KM from Okhla Bird Sanctuary, which order continued till notification of Eco-Sensitive Zone by State of U.P. dated 19.08.2015. Thereafter, the opposite party proceeded with the construction with full spring, completed in May, 2017 and applied for issue of “occupation certificate”. Statutory authority issued “occupation certificate” on 22.12.2017. The opposite party issued letter offering possession to all the home buyers including the complainants. Many home buyers have taken possession and are residing in it. All the promised amenities and facilities are complete and functional. The complainants are avoiding payment of balance consideration and are not taking possession. The opposite party has not committed unfair trade practice. The complaint has no merit and liable to be dismissed.
The complainant filed Rejoinder Reply and Affidavits of Evidence and documentary evidence of the complainants separately. The opposite party filed Affidavit of Evidence of Asraf Zaidi and documentary evidence. Both the parties have filed their written synopsis.
We have considered the arguments of the parties and examined the record. Clause-31 of the agreement provides that the complex is proposed to be completed till December, 2014 with grace period of six months. Payment plan was “construction link payment plan”. Although the opposite party took plea that due to various restraint orders passed by Allahabad High, District Magistrate, Gautum Budh Nagar and National Green Tribunal, the construction of the project was halted from 10.12.2012 till 19.08.2015 but statement of account of the complainants shows that 90% to 95% of basic sale consideration was realized till December, 2015. As such, the plea of force majeure as raised by the opposite party is not liable to be accepted. Even if six months further grace period is given then also the home buyers are entitled for delay compensation from January, 2016.
The opposite party raised final demand in December, 2016, which was payable at the time of offer of possession. Now the opposite party is claiming interest on the demanded amount as well as maintenance and holding charges. “Occupation Certificate” was issued on 22.12.2017. As such, the complainants are not required to pay interest on final demanded amount, maintenance charge and holding charges from December, 2016. Supreme Court in Civil Appeal No.4690 of 2022 Utpal Trehan Vs. DLF Home Developers Limited (decided on 11.07.2022), held that if offer of possession was conditional of settling the account which was illegal, then it is not a valid offer.
The complainants are claiming delay compensation. Due date of possession expired in June, 2015. Even if six months further grace period is given then also the complainants are entitled delay compensation from January, 2016 till the date of offer of possession after obtaining “occupation certificate”. Supreme Court in Wg.Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512 and DLF Home Developers Pvt. Ltd. Vs. Capital Greens Flat Buyers Association, (2021) 5 SCC 537, held that 6% interest on the deposit of home buyers for the delayed period is appropriate delayed compensation.
ORDER
In view of aforesaid discussions, the complaint is partly allowed. The opposite party is directed to offer possession to the complainants (except who have taken possession) of the flats allotted to them along with statement of account duly crediting delay compensation in the form of interest @6% per annum on their deposit from January, 2016 till the offer of possession, within a period of two months from the date of this judgement. If any amount is payable to the complainants, then it shall be paid at the time of offer of possession. If any amount is payable by the complainants, they will be given one month time to deposit it. On settlement of the account, the opposite party will execute conveyance deed in favour of the complainants and handover possession of the flat, complete in all respect without any further delay.
List EA/112/2022 on 12.09.2023, for direction.