Ashwinder Behl & Anr vs M/S. Mgf Developments Ltd. & Anr

Ram Surat Ram Maurya, Presiding Member

Heard Mr. Rahul Kumar, Advocate, for the complainants, Mr. Sukumar Pattjoshi, Sr. Advocate, assisted by Mr. Yudhishtir Singh, Advocate, for opposite party-1 and Mr. Pankaj Vivek, Advocate, for opposite party-2.

Above complaint has been filed, for directing the opposite parties to (i) handover possession of Unit No.VP-E-402, in the project “The Vilas”, complete in all respect, with all facilities and amenities as per agreement and execute conveyance deed in favour of the complainants, (ii) pay compensation, for delay in possession in the form of interest @24% per annum on the deposit of the complainants from due date of possession till the delivery of possession, (iii) pay Rs.5/- lacs, as loss and damages suffered by the complainants, (iv) pay Rs.5/- lacs, as compensation for mental agony and harassment, (v) pay Rs.2/- lacs, as travelling expenses, (vi) take back demand of E.E.D.C. dated 12.10.2011, (vii) declare demand of I.D.C. as unlawful, (viii) pay Rs. one lac, as the costs of litigation; and (ix) any other relief which is deemed proper in the facts and circumstances of the case.

The complainants stated that M/s. MGF Developments Limited and M/s Columbia Holding Pvt. Ltd. (the opposite parties) were companies, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing projects and selling its units to the prospective buyers. The opposite parties launched a group housing project in the name of “The Vilas”, at Sector-25, Gurgaon, Haryana, in the year 2005 and made wide publicity. M/s. Prem Nath Diesels Pvt. Ltd. (predecessor-in-interest of the complainants) booked a 4BR (Large) and deposited booking amount of Rs.15/- lacs on 29.04.2005 and Rs.1755075/- on 23.09.2005. Opposite party-1 issued Provisional Allotment Letter dated 29.10.2005, allotting Unit No. VP-E-402. The opposite parties executed The Vilas Flat Buyer’s Agreement dated 24.05.2006 of Unit No. VP-E-402, approximate area 3825 sq.ft. at the rate of Rs.4150/- per sq.ft. + EDC at the rate of Rs.105/- per sq.ft., basic price Rs.16275375/- + Rs.900000/- for three car parking spaces in favour of M/s. Prem Nath Diesels Pvt. Ltd. Payment plan was “Construction Linked Payment Plan”, under which total payment has to be made in 14 instalments within 36 months. Last instalment was payable at the time of offer of possession. As per demand, M/s. Prem Nath Diesels Pvt. Ltd. deposited Rs.1627538/- on 04.11.2005, Rs.1220653/- on 01.06.2006, Rs.1220653/- on 25.04.2007, Rs.1670653/- on 16.07.2007, Rs.1670653/- on 31.10.2007, Rs.1220653/- on 24.12.2007, Rs.1220653/- on 07.03.2008, Rs.813769/- on 30.04.2008 and Rs.813769/- on 25.08.2008 (total Rs.14734069/-). Sri Rajinder Nath, Managing Director of M/s. Prem Nath Diesels Pvt. Ltd. wanted to change the name of allottee over the said Unit and get it allotted in the names of the complainants. On the instructions of the opposite parties, Sri Rajinder Nath applied for change of the name of the allottee on 16.04.2010, along with minutes of the meeting of Board of Directors, affidavits, undertakings of the complainants. On the application of Sri Rajinder Nath dated 16.04.2010, the opposite parties endorsed the names of the complainants over said Unit after charging Rs.573750/- as transfer charges. Opposite party-1 issued a demand letter dated 29.09.2011, demanding Rs.286875/- towards Enhanced External Development Charges and Rs.126225/- towards Infrastructural Development Charges. The complainants asked the opposite parties to supply the demand of statutory authority relating to EEDC & IDC, which was not supplied. As per demand of opposite party-1, the complainants deposited Rs.25145/- as Service Tax on 15.10.2012, Rs.813769/- on 15.10.2012 as 10th instalment, Rs.25145/- on 04.03.2013 as Service Tax and Rs.813769/- on 04.03.2013 as 11th instalment. Opposite party-1 issued a demand letter dated 16.07.2013, demanding Rs.218255/- towards EEDC and Rs.126225/- towards IDC, without providing the documents relating to deposit of EEDC & IDC. Opposite party-1, vide letter dated 16.07.2013, offered for fit-out possession for carrying out internal finishing work. Opposite party-1 issued notice of possession vide letter dated 20.08.2015, with demand of Rs.1909905/- under different heads. The complainants inspected the flat and found several short coming/deficiency in construction. The complainants, vide letter dated 24.09.2015, pointed out short coming in kitchen, toilets, woodwork, internal walls, polishing and painting etc. and also protested against demands. Opposite party-1 sent reminders dated 13.11.2015, 16.02.2016 and 01.08.2016, in respect of demand, along with interest. The complainants, vide email dated 08.04.2016, replied that as no reply of their letter dated 24.09.2015 was given as such they were not able to proceed further. The complainants vide letter dated 12.08.2016, gave a detail reply. Then the complaint was filed on 13.10.2017, alleging deficiency in service and unfair trade practice inasmuch as (i) As per clause-9.1 of the agreement, possession had to be given within 36 month with grace period of 90 days, which period expired on 24.08.2009 but the possession was unreasonably delayed as such the complainants are entitled for interest @24% per annum on their deposit for the delayed period. (ii) At the time of offer of fit-out possession on 16.07.2013, kitchen, toilets, woodwork, internal walls, polishing and painting etc. were incomplete and rebate offered in this respect was disproportionate to actual estimated cost. (iii) Amenities of club, health club, gym, play room, kids play ground etc. were not ready. (iv) Demand of Rs.1269734/- in the head of increase in ‘super area’ was illegal as no consent of the home buyers was taken for changing layout plan. (v) Demand of additional amount of Rs.218255/- towards EEDC and Rs.126225/- towards IDC, without providing the documents relating to deposit of EEDC & IDC was illegal. (vi) The complainants are not liable to pay the taxes levied/charged after due date of possession. (vii) Various clauses of agreement are arbitrary, one sided and unenforceable.

Opposite party-1 filed its written reply on 09.01.2018 and contested the case. The material facts relating to the project, allotment of the Unit and deposits made by M/s. Prem Nath Diesels Pvt. Ltd. and the complainants, have not been disputed. Opposite party-1 stated that the complainants were subsequent transferees. At the time of transfer on 16.04.2010, they very well knew that the construction of the project was delayed as such the period of 39 months was liable to be counted from 16.04.2010. The construction was completed in February, 2013 and opposite party-1 applied for issue of “Occupation Certificate” on 12.02.2013. As many of the buyers prefer interior decoration of their choice as such fit-out possession was offered to the complainants vide letter dated 16.07.2013, along with rebate. “Occupation Certificate” was issued on 14.08.2015, then notice of possession vide letter dated 20.08.2015 was issued, with final demand of Rs.1909905/- under different heads, adjusting compensation for delayed possession of Rs.1372448/- and rebate of Rs.27861/- for unfinished kitchen as per clause-9.7 of the agreement. Period for which issuance of “Occupation Certificate” was delayed, is liable to be extended under Clause-9.4 of the agreement. Licence was granted in 2005. Statutory authority demanded enhanced EDC vide letter dated 21.04.2011. Opposite party-1 deposited Rs.6/- crores in this head on 17.01.2013. Again vide letter dated 23.02.2013, Rs.30808000/- was demanded as enhanced EDC, which was deposited on 11.03.2013. Opposite party-1 deposited Rs.4302682/- on 06.11.2006 and Rs.6029354/- on 09.11.2006 in the head of IDC. The home buyers have to  bear these charges on pro-rata basis under clauses-1.3 and 3 of the agreement. Under clauses-8.1 and 8.2 of the agreement, it was clearly stated that the area of the Unit was tentative and subject to alteration up to 10%. Tentative area of the Unit was 3825 sq.ft. which was enhanced to 4130.96 sq.ft., within 10%. Normal practice is that after deposit of final demand, paint, polish, interior fittings are done as many buyers take unusual time in depositing the amount of final demand. All the documents were available in the office for inspection. It has been denied that the complainants were not permitted to access the documents. The complainants are not consumer rather speculative investors, which is apparent as instead of taking possession, they have filed this complaint. The complaint is long barred by limitation. The agreement contained an arbitration clause and the complainants be relegated for arbitration. Opposite party-1 has not committed any deficiency in service.

Opposite party-2 filed its written reply on 14.12.2017 and stated that under Development Agreement, Unit Nos. VP-H/201, VP-E/103, E-203, E403, F-102 and H-203 fell in the share of opposite party-2 and remaining units were in the share of opposite party-1. Unit VP-E-402, which was allotted to the complainants, fell in the share of opposite party-1, who has allotted it and realized all money. Opposite party-2 signed the agreement as a consenting party. A settlement deed dated 19.12.2013 was executed between opposite party-1 and opposite party-2, under which opposite party-1 took all the liabilities in respect of the units falling in its share. Opposite party-1 also executed an Indemnity Agreement dated 19.03.2015, in this respect.

The complainants filed Rejoinder Reply on 14.11.2018. The complainants filed Affidavit of Evidence of Aswinder Behl and documentary evidence. Opposite part-1 filed Affidavit of Evidence of Biswanath Nayak and documentary evidence. Opposite party-2 filed Affidavit of Evidence of Kamaljeet Singh and documentary evidence. Opposite party-1, through IA/6359/2022 and IA/6229/2022 have filed Additional Affidavit of Evidence of Bishnu Singh and documentary evidence. All the parties have filed their short synopsis.

I have considered the arguments of the parties and examined the record. As per clause-9.1 of the agreement, possession had to be given within 36 month with grace period of 90 days, which period expired on 24.08.2009. Opposite party-1 vide letter dated 16.07.2013 offered of fit-out possession but either in law or under the agreement, a home buyer is not obliged to take fit-out possession. Opposite party-1 obtained “Occupancy Certificate” on 14.08.2015 and offered possession vide letter dated 20.08.2015. The complainants stated that at that time also kitchen, toilets, woodwork, internal walls, polishing and painting etc. were incomplete. Normal practice is that after deposit of final demand, paint, polish, interiors fittings are done as many buyers take unusual time in depositing the amount of final demand. This Commission in Vineet Kumar Vs. DLF Universal Ltd., 2019 SCC OnLine NCDRC 9, held that if possession is offered after obtaining “Occupation Certificate” then the home buyer is obliged to take possession, reserving his right to make complaint in respect of other deficiency.

As per agreement dated 24.05.2006, due date of possession was 24.08.2009 and possession was offered on 20.08.2015. Opposite party-1 adjusted Rs.1372448/- as compensation for delayed possession, as per clause-9.7 of the agreement, which provides compensation @ Rs.5/- per sq.ft per month of the super area. The counsel for opposite party-1 relied upon the judgments of Supreme Court in DLF Homes Panchkula (P) Ltd. Vs. Sushila Devi, (2020) 17 SCC 429 and M/s. Laureate Buildwell Pvt. Ltd. Vs. Charanjeet Singh, AIR 2021 SC 4229 and submitted that in case of subsequent transferee, the period for offer of possession has to be counted from the date of transfer. In the present case, date of transfer was 16.04.2010 as such due date of possession would be 16.07.2013. The complainants admitted that they paid Rs.813769/- on 15.10.2012 as 10th instalment and Rs.813769/- on 04.03.2013 as 11th instalment as such they cannot expect possession in the year 2009. However, Supreme Court in Wing Commander Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512, held that fair compensation for delay in possession ought to be in form of interest on the deposit @6% per annum from due date of possession till the offer of possession. Case law in Utpal Trehan Vs. DLF Home Developers Ltd., 2022 SCC OnLine SC 813, relied upon by the counsel for opposite party-1, has no application in the fact of this case. The complainants are entitled for compensation for delay in possession in the form of interest @6% per annum on their deposit, from 16.07.2013 till 20.08.2015. The argument of opposite party-1 that the period during which, issuance of “Occupation Certificate” was delayed, is not liable to be accepted as there is nothing on record to prove that application of opposite party-1 was complete in all respect.

So far as demand of Rs.1269734/- in the head of increase in ‘super area’ is concerned, clauses-8.1 and 8.2 of the agreement state that the area of the Unit was tentative and subject to alteration up to 10%. Tentative area of the Unit was 3825 sq.ft. which was enhanced to 4130.96 sq.ft. It is within 10%, which has been upheld by Supreme Court in DLF Home Developers Limited Vs. Capital Greens Flat Buyers Association (2021) 5 SCC 537.

Demand of additional amount of Rs.218255/- towards EEDC and Rs.126225/- towards IDC, are legal as based upon actual payment.

ORDER

In view of aforesaid discussions, the complaint is partly allowed. Opposite party-1 is directed to issue fresh demand after adjusting compensation for delay in possession in the form of interest @6% per annum on the deposit of the complainants, from 16.07.2013 till 20.08.2015, within a period of one month from the date of this judgment, giving one month time to the complainants to deposit it. On deposit of the amount, opposite party-1, shall handover possession of Unit No. VP-E-420, in the project “The Vilas”, complete in all respect as per specification in the agreement, within one month thereafter and execute conveyance deed in favour of the complainants.