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Judgment
A. P. Sahi, President Member
Heard learned counsel for the complainant and learned counsel for the opposite party.
The pendency of this complaint saw two amendments proposed by the complainant. The first amendment sought was a relief for refund of the entire amount instead of the main relief for possession. This amendment application was moved on 02.11.2018 but withdrawn on 29.01.2019. The complainant then moved another amendment application for the same relief on 18.03.2019 which was dismissed on 03.01.2023. Since the said order extracts the relevant facts pertaining to the dispute in question, the same is reproduced hereunder:-
“IA / 4821 /2021 (Amendment of the Complaint)
The present Application under Order 6 Rule 17 read with Section 151 of CPC has been filed by the Complainant to amend the Complaint and prayed that the Amended Complaint be taken on record.
For proper adjudication of this Application, it is necessary to advert to the brief facts of the case which as mentioned in the Complaint are that vide letter dated 11.10.2013, the Complainant was allotted an Apartment No. G-1601 15th Floor, Tower G in the Residential Group Housing Project under the name & style ‘Park View Sanskruti’ to be developed by the Bestech India Pvt. Ltd., Opposite Party Developer. Apartment Buyer’s Agreement was executed between the Parties on 04.02.2014. According to the terms of the Agreement, the possession was to be delivered by the Opposite Party Developer within 36 months from the date of execution of the Agreement with a grace period of 6 months, i.e., by 04.08.2017. Despite having received substantial amount, the Opposite Party Developer failed to deliver the possession of the Apartment within stipulated period. On visiting the Apartment on 24.04.2018 and finding that the Apartment is not ready for delivery of possession and there are many defects in the Apartment, on 09.07.2018 the Complainant filed the present Consumer Complaint before this Commission seeking possession of the Apartment alongwith compensation and cost.
Vide Order dated 2nd August 2018, the Complaint was admitted and notice was issued to the Opposite Party Developer with a direction to file Written Statement within 30 days of receipt of Notice. Opposite Party Developer filed the Written Statement on 07.09.2018.
In the meantime, Opposite Party Developer offered the Possession of the Apartment to the Complainant vide letter dated 10.07.2018 and demanded the amount of ₹20,15,956/-. Accordingly, the Complainant accepted the offer of possession and made the payment to the Opposite Party Developer. Vide letter dated 21.08.2018, the Opposite Party issued Possession Letter to the Complainant and requested the Complainant to contact Mr. Narender Kumar for handing over of the Apartment. It is averred by the Complainant that he visited the Apartment on 03.10.2018 and found that there was decrease about 18.42% in the areas of various internal rooms such as Bed Rooms, Living/dining area, toilet, kitchen servant room and entrance lobby as compared to the sizes provided in the brochure by the Opposite Party at the time of the booking and the same was not acceptable to the Complainant. Accordingly, he is not interested in the Possession of the Unit and sought refund of the entire amount deposited by him alongwith interest @18% for delayed possession and towards unfair trade practice for reduction in sizes of the rooms.
Accordingly, the Complainant filed an Application bearing No. IA No. 20508 of 2018 for amendment of the Complaint on 2.11.2018. However, vide Order dated 29.01.2019, on request of the Complainant, IA No. 20508 / 2018 seeking amendment of the Complaint was dismissed as withdrawn with liberty to file a fresh Application.
Now, the Complainant has filed the present Application, i.e., IA No. 4821 / 2019, under Order 6 Rule 17 read with Section 151 of CPC to Amend the Complaint by adding paras 11(a) & 18(a) to 18(m) after paras 11 & 18 respectively and amendment has also been sought in the headnote and Prayer clause accordingly. It has been further stated that the amendment in the Complaint are necessary to decide the controversy and proper adjudication of the case in the changed circumstances. It has been prayed that IA No. 4821 / 2019 seeking Amendment of the Complaint, be allowed and Amended Consumer Complaint may kindly be taken on record.
Mr. R.P. Dangi, learned Counsel appearing on behalf of the Complainant/Applicant submitted that although the Complainant/Applicant is entitled to file a fresh/separate Complaint for refund of amount deposited with the Opposite Party yet he has moved the present Application for Amendment of Complaint. In support of his contentions, he relied upon the Judgment passed by the Hon’ble Punjab & Haryana High Court in ‘Parshotam Lal vs. Krishan Gopal’ [CR No. 3294 of 2018 decided on 29.11.2019].
Mr. Sushil Kumar Singh, learned Counsel appearing on behalf of the Opposite Party Developer contested the Application and submitted that the grievance of the Complainant was with respect to alleged delay in handing over the possession of the Apartment and accordingly sought handing over the possession of the Apartment from the Opposite Party Developer alongwith delay compensation. They have filed reply to the Complaint on 07.09.2018 contending that the Complaint has become infructuous as they have already offered the possession of the Unit vide letter dated 10.07.2018. The Complainant has inspected the Unit prior to accepting the offer of possession and there was no grievance with regard to size/area of the Apartment, as is being raised now. The Complainant has also cleared all the outstanding dues as on 07.08.2018 and 19.09.2018 without any protest. Therefore, the malafide of the Complainant in filing the present Application is writ large.
It was further submitted that by way of present Application, the Complainant wanted to switch over from his main grievance, i.e., possession of the Unit, to refund of the entire amount alongwith interest @18%, which clearly shows that the Complainant has booked the Unit for speculative purposes. The possession of the Unit has already been offered to the Complainant therefore, the main grievance of the Complainant has been met with. In support of his contention, the learned Counsel for the Opposite Party Developer relied upon the judgment passed by the Hon’ble Supreme Court in ‘Revajeetu Builders & Developers vs. Narayanaswamy & Sons & Ors.’ (2009) 10 SCC 84. It was prayed that the present Application be dismissed with costs.
I have heard Mr. R.P. Dangi, learned Counsel appearing on behalf of the Complainant, Mr. Sushil Kumar Singh, learned Counsel appearing on behalf of the Opposite Party Developer on the present Application and perused the material brought on record, including the averments made in the aforesaid paragraphs of the Complaint and the amendment sought to be incorporated therein.
Undisputedly, the Complaint was filed on 09.07.2018 wherein the main prayer of the Complainant was with regard to possession of the Unit/Apartment alongwith delay compensation. The Opposite Party Developer offered the Possession of the Unit/Apartment vide letter dated 10.07.2018 and demanded the balance amount. The Complainant had accepted the offer of possession and deposited the entire demanded amount with the Opposite Party Developer. However, if there is any shortcoming/defect in construction, decrease in the area of the Unit/Apartment, the Complainant may raise a plea of damages / compensation. He cannot be permitted to claim refund of the entire amount alongwith interest because the principle of estoppel will apply. No good ground for Amendment of the Complaint has been made out in the Application. Consequently, IA No. 4821 of 2019 seeking Amendment of the Complaint is rejected.
List the Consumer Complaint for directions on 10.02.2023.”
Learned counsel for the complainant has urged that he was being compelled to give a declaration at the time of possession with regard to clearance of the entire dues, and it is for this reason that he actually did not accept physical possession on the letter of possession dated 21.08.2018. The fact that offer of possession was made on 10.07.2018 and the possession letter was formally handed over on 21.08.2018 is not disputed.
Learned counsel for the opposite party however contends that there were unavoidable compulsions beyond the control of the opposite party in obtaining the occupancy certificate which had already been applied for on 30.06.2017 within time and even prior to the expected date of possession i.e. 03.08.2017. The occupancy certificate was issued on 19.06.2018 and a prompt offer of possession was made to the complainant on 10.07.2018. He therefore submits that there is no delay whatsoever on the part of the opposite party in handing over possession, and, to the contrary, as indicated above, the letter of possession was tendered to the complainant on 21.08.2018 but he refused to take delivery of possession as alleged by him on the ground that he was not prepared to finally settle all such disputes, including financial disputes, as the present complaint had already been filed and was pending.
Having considered the submissions raised and keeping in view relief prayed for, it is now undisputed that the expected date of delivery of possession was 03.08.2017 and the possession came to be offered on 10.07.2018. The said offer which was made was subject to completion of certain formalities. The complainant admittedly completed all the said formalities and then he was tendered the letter of possession on 21.08.2018. Thus so far as the complainant is concerned, he on 10.07.2018 after having been offered possession had proceeded to conclude whatever formalities were required on his part. It is therefore clear that the delay which has occurred in offering possession is from 03.08.2017 till 10.07.2018.
In view of the law laid down by the Apex Court in the cases of Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna & Ors (2021) 3 SCC 241 and Wing Commander Arifur Rehman Khan & Ors. Vs. DLF Southern Homes Pvt. Ltd. (2020) 16 SCC 512, the complainant, in the opinion of this Commission, is entitled for delayed compensation to the extent of the period referred to hereinabove i.e. from 03.08.2017 to 10.07.2018 @ 9% interest on the amount paid as held by the Apex Court in the judgments referred to hereinabove. Non-delivery of possession for the period referred to hereinabove is a clear deficiency in service.
Let the aforesaid amount be calculated and paid to the complainant within a month.
The claim for possession is allowed. The complainant will be entitled to take possession which shall be delivered to him within one month from today. Learned counsel for the complainant states that the complainant is ready to bear the registration charges as per rules.
The complaint is accordingly disposed off.