Anshuman Sinha & Anr vs M/s Jai Prakash Associates Ltd

A. P. Sahi, President Member

Heard learned counsel for the complainants and the learned counsel for the opposite party.

The complainants have come up contending that harassed by the opposite party, they were compelled to take possession on a letter of possession that was offered on 24.12.2015. The sub lease deed of the premises was executed on 16.09.2016.

The contention raised by the complainants is that the booking was done on 05.06.2008. The expected date of delivery is on the expiry of 36 months with a grace period of 3 months, which expired on 05.09.2011. Admittedly, the possession was not offered to the complainants within the stipulated time. The defence taken by the opposite party is that they applied for the occupancy certificate, which is also admitted to have been done on 29.11.2013. Thus, as between 2011 and 2013 there is nothing on record to indicate as to why the opposite party did not proceed to apply for the occupancy certificate, which obviously indicates that the project had not been completed and there was delay in respect thereof.

Learned counsel for the opposite party then urged that it was on account of the orders passed by the National Green Tribunal and other intervening litigation that acted as force majeure that prevented the issuance of the completion certificate and consequently this resulted in the delay in offering of possession. The submission is that it is on account of circumstances beyond the control of the opposite party that the aforesaid situation had arisen and hence no delay can be attributed as against the opposite party for claiming any delay compensation.

The complainants have come up therefore praying for delay compensation contending that apart from this there has been an excess demand with regard to an alleged increase in the super area and the charges regarding thereto.

Learned counsel for the opposite party also contends that the said charges are to be paid keeping in view the terms of the agreement, in as much as, if the increase in super area is admittedly undeniable, the complainants are bound to make the payments thereof. Reference  has also been made to the area mentioned in the offer of possession and also the sub-lease deed dated 16.09.2016.

He has however made another submission contending that the complainant is not a consumer and is an investor for which the contention raised is on the strength of an allegation made in the written version that the complainant booked another flat in one of the projects of the opposite party. It is submitted that this itself is a fact which establishes that the complainant is speculating in real estate.

The aforesaid fact has been disputed by the complainant in the rejoinder where it has been categorically stated that the said booking was done for the mother of the complainant and therefore cannot be said to be an acquisition of any speculation in the real estate.

Having heard learned counsel for the parties, the first objection of the opposite party has to be dealt with at the outset, namely, that the complainant has been investing in various properties and therefore is not a consumer as alleged in paragraph 6 of the written version. The said paragraph has been categorically denied in paragraph 9 of the rejoinder, which is extracted herein under:

“9. Furthermore, the Opposite Party despite wrongfully delaying the construction of the Apartment has not even shied away from alleging that the Complainants have purchased the Apartment for speculating in the Real Estate Market and only for commercial purpose and financial gains. It is the Opposite Party's contention that in addition to the flat in question, the Complainant No. 1 along with his mother, Ms. Pushpa Sinha has purchased another apartment in another sub-project of the Opposite Party so this amounts to commercial gain. Admittedly, the apartment in another sub-project has been purchased by the Complainant along with his mother for her residence while the Apartment in question had been purchased by the Complainants for their own residential purposes as the Complainants had been residing in rented premises till all such time that they were deprived of the present Unit.”

There is no denial of the aforesaid assertion by any counter reply and as such it is clear that the complainant was residing in a rented premises, which did not belong to him and the booking of another flat for his mother cannot denude the complainant of his right to maintain this consumer complaint. There is therefore no evidence that the complainant was speculating in a real estate business and this view is supported by the order of this Commission in the case of Kavita Ahuja vs. Shipra Estates I (2016) CPJ 31 in paragraphs 4 to 9 and the same view is followed in the case of Narinder Kumar Bairwal & Anr. Vs. M/s. Ramprastha Promoters and Developers Pvt. Ltd. & Anr.  in paragraph 19.

Learned counsel for the opposite party also urged that in view of the terms of the sub lease deed since there is a declaration by the complainant that this would be a full and final settlement of the claim, the present relief cannot be granted. It is established on record that the complainant had to wait for a fairly long time and therefore he was under a compulsion to have taken possession and not prolong the matter. In this regard the mail dispatched by the complainant on 14.04.2016, agreeing for depositing the entire final payment to the opposite party clearly recites that the same has been paid without prejudice and it should not be considered as waiver of the right of the complainant to claim compensation. It is true that the sub lease deed was executed on 16.09.2016, after the said protest letter, and possession was taken on 16.09.2016, but the fact remains that the sub lease deed itself does not treat the development plans to be final in all aspects and therefore even after the execution of the conveyance, a claim petition for delay compensation can be entertained as has been held by the apex court in the case of Wing Commander Arifur Rahman Khan and Ors. Vs. DLF Southern Homes Private Limited & Ors., (2020) 16 SCC 512 in paragraph 39 and 40.

Coming to the issue of delay it is evident that it is almost after more than two years of the expected date of delivery that the opposite party applied for Occupancy Certificate. Not only this, any intervening litigation or plea of forced majeure cannot enure to the benefit of the builder, in as much as, it has been ruled by the Apex Court that a flat buyer cannot be made to wait endlessly on such grounds of alleged force majeure. Reference be had to the judgment of the Apex Court in the case of Wing Commander Arifur Rahman Khan (Supra),  the delay therefore is not attributable to the complainant and it is clearly on account of the delay caused by the opposite party. The delay therefore from 05.09.2011 that is expected date of delivery till the date of offer of possession that is 24.12.2015, is clearly made out. The complainant is therefore entitled to the delay compensation for this period, which shall be @ 9% p.a. on the total amount paid by the complainant and is awarded accordingly.

Another claim has been made by the complainant with regard to the increase in the super area, which the learned counsel for the complainant urges is not as per the consent of the complainant nor the complainant had demanded any excess area. On this argument, learned counsel for the opposite party is correct that this deviation, if any, on the super area was agreed upon and a rebate was also offered to the complainant, whereafter the payment was demanded. For this reference be had to the possession offer letter dated 24.12.2015, which under clause 6 (iii) recites the same. It is also urged that the aforesaid terms of payment of increase in excess area was clearly contemplated under the terms of the agreement, the allotment was provisional and the specifications given were tentative. The payment conditions were standard in respect of flats and consequently the charges which have been realised with regard to the excess area are justified. Consequently, any claim of refund on that count is declined as the increase in the super area was clearly stated in the possession offer letter, prior to the execution of the sub lease deed and the same area has been entered into the sub lease deed dated 16.09.2016, which cannot be resiled back from.

Further claims have been made with regard to mental agony. In the present context when the apartment has been handed over that too even on the satisfaction of the complainant, then in that event the issue of mental agony need not be considered.

A claim of the rent paid by the complainant till the time the flat was not delivered has also been made. Compensation on account of delay has been awarded as indicated hereinabove, there cannot be therefore a double compensation awarded on such a claim and consequently the said demand is also unacceptable.

Resultantly, the complaint is partly allowed in terms aforesaid to the extent that the opposite party shall pay delay compensation @ 9% p.a. on the total amount paid by the complainant with effect from 05.09.2011, that is expected date of delivery till the date of offer of possession, that is 24.12.2015 within a period of three months. In the event the said order is not complied with the rate of interest stands enhanced to 12% p.a.