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Judgment
Avm J. Rajendra, Avsm Vsm (Retd.), Presiding Member
The present First Appeal has been filed under Section 19 of the Consumer Protection Act, 1986 (hereinafter referred to as “the Act”) against the Order dated 18.04.2017 passed by the learned State Consumer Disputes Redressal Commission, Delhi (hereinafter referred to as “the State Commission”), in Consumer Complaint No.36 of 2014, wherein the Complaint filed by the Complainants (Appellants herein) was partly allowed. The operative portion of Order dated 18.04.2017 is as follows:
“As a result of the above discussion, the OP directed to refund the sum paid by the complainant along with interest @12% per annum from the date of payment till the date of refund, within 45 days.”
Being aggrieved with the order directing for refund of the amount paid while the prayer was for possession, the Complainants (Appellants herein) filed the instant Appeal with the following prayer:-
(a) Call for the records of complaint No CC 36/2014 and set aside the impugned orders dated 18.04.2017 passed by The Delhi State Consumer Disputes Redressal Commission, New Delhi;
(b) Direct the respondent/OP to hand over the possession of the Shop as per agreement to the applicants;
(c) Direct the respondent/OP to compensate adequately for the delayed possession, losses and agony caused by OP wrong acts
(d) Any other order which this Hon'ble Commission may deem fit and proper may please be passes in the interest of justice.
The admitted facts of the case are that the Complainants (Appellants herein) on 30.12.2003 entered into an agreement to purchase a Shop No. B-1, Ground Floor, Gardenia Plaza (Ardee Mall) at Ardee City, Sector-52 Gurgaon from the Respondent (OP) for a total price of Rs.22,00,000, excluding Rs.1,00,000/- for one car parking. The shop was purchased for earning livelihood. As per the Clause 12 of the Agreement, possession was to be delivered within 18 months from the date of booking i.e. by 30.06.2005, with reasonable grace period. In terms of Clause 48 of the Agreement, the O.P. the OP was bound to pay penalty to the Complainant @ Rs.30 per Sq. Ft per month in case of delay in handing over the possession. The Complainants wrote several letters and emails to follow up seeking possession of the shop. The OP vide letter dated 14.04.2006 offered to lease out the shop @Rs.47.50 per Sq Ft and forwarded a Performa to the Complainants for their concurrence and signature, which included interest free security deposit equivalent to three months’ rent and escalation in rent @15% after three years for lock in period of 6 years.
The Complainants were not interested to lease out the premises and thus did not sign the Performa. Therefore, the Respondent had not handed over the possession of the shop till date. As a result, the Complainant filed a consumer complaint with the State Commission, sought possession of the shop, along with rent of Rs.36,860/- per month since 30.06.2006; and Rs.54,320/- per month from 01.12.2012 till the possession of the shop as well as interest @24% p.a.; and compensation to the tune of Rs.2 Lakhs; and litigation costs.
During the pendency of the case, the Respondent filed I.A. No. 9597/2018 stating that they are ready and willing to deliver possession of the subject shop to the Appellants, subject to their compliance with the Orders of Hon’ble High Court Delhi dated 24.10.2017. Subsequently, on 17.05.2018 the counsel for the Respondent again offered the handing over the possession of the premises in question in the presence of duly appointed Court Observer Shri RK Kapoor, if agreeable to the Appellants/ Complainants. Thereafter, on 19.09.2018 it was confirmed that the possession of the said shop was handed over by the Respondent/OP to the Appellants/ Complainants on 30.07.2018.
The learned Counsel for the Appellant/Complainant argued that Ardee Mall, spanning 5.1 acres, was licensed for the sale of shops in the open market, with the cost of the acquired land determined by the Opposite Party (OP). The OP subsequently sold the shop along with the land, and the Applicant had duly complied with all financial obligations as per the agreement dated 30.12.2003. An occupation certificate for use was granted in 26.08.2010. However, the OP claimed it was impossible to construct due to the shop's asset value allegedly becoming about Rs. 7.5 Crores. On 30.07.2018, based on the orders of the Hon’ble High Court of Delhi, the OP had delivered physical possession of the shop. On 28.02.2021, the OP registered the shop's conveyance deed, again violating Apartment Rule 3 and the registered Declaration in Form-A (Exhibits A & B), significantly reduced the asset's value and financial viability. As a result, the Appellant prayed for the following remedies, in addition to the prayer in the Appeal
(a) U/s 5 and rule 3 of apartment act: Direct Opposite Party to produce Declaration registered in Form A Exhibits A plan & B by-laws for governance.
(b) Register the shop with 5.1 acres land interest as per declaration with all pages of deed signed by applicant. Or Compensate land and deliver 776 sq. feet covered area minus 477.91 sq. ft. delivered.
(c) Direct OP to pay market rate compensation due to fraud losses from Aug 2010 OC to Jul 2018 @ 450Rs/sq. ft for 83 months-Rs2,89,83,600@,12% interest per annum.
(d) Pay construction delay (agreement para 12 &48/page 30/38) from June 2005 to Aug 2010= 63 months @ Rs 30/ft/month: 14,65,640 @ 12 % interest per annum
(e) Pay losses due to improper conveyance deed and by-laws: -Rs 50 Lakhs.
The learned Counsel for the Respondent/OP argued that the Appeal is liable to be dismissed as the Appellants are not covered under the definition of Consumer. They are investors and in the reply filed before the State Commission, it has been stated in Para 3 of Preliminary Objections that shop in question is a commercial shop and purchased for making profits like giving the same on rent, lease or with hope that the real estate prices will rise. The Appellant, after taking the possession have given the commercial shop vide lease deed dated 28.05.2019 to FETT Brands Pvt. Ltd. on a rent of Rs.2,05,400/-. A similar dispute was decided in CC No. 274/2015, Inderjit Singh Mangat & Anr. Vs. Godrej Properties Ltd. Date of Decision: 06.04.2016 by NCDRC. In the letter dated 20.01.2012, filed by the Appellants, they always wanted to lease and they are prime investors. The Sale Deed was already executed in their favour on 28.1.2021.
The learned Counsel for the Respondent/OP also argued that in terms of Section 74 of the Contract Act, no loss was proved by the Complainants. The subject property was booked by the Appellant @ Rs. 2800 per Sq. Ft. and the present market rate is about Rs. 30,000 per Sq. Ft. They have gained financially. The Hon’ble Apex Court in Associated Traders Vs. DDA 2015(1) SCC has held that as the Appellants have neither pleaded any loss nor proved any loss nor have suffered any loss. Therefore, they are not entitled to any compensation. The Complainant No. 2, Smt. Asha Kaushik has neither sworn the affidavit for filing the complaint nor led any evidence by way of affidavit to support her claim before the State Commission. The complaint is barred by limitation as there is 8 years delay. The Hon'ble Supreme Court in CA No. 6687 of 2016, "Madina Begum and Anr Vs Shiv Murti Prasad Pandey and Ors" has held that if a date is fixed for performance of an agreement, then non-compliance as on the date would give a cause of action to claim specific performance within three years from the date so fixed. But, when no such date is fixed, limitation of three years would begin when the plaintiff has noticed that the defendant has refused the performance of agreement. In the present case, limitation commenced from July, 2006. Therefore, the complaint is barred by limitation.
The Counsel further argued that there was an interim stay order for not creating any 3rd party right in the Ardee Mall/Plaza Gardenia since 29.05.2014 in CS(OS) No. 1781/2014. The Hon'ble Delhi High Court vide order dated 24.10.2017, permitted to hand over of the possession to the investors of Ardee Mall/Plaza Gardenia and the possession was given on 30.07.2018 under the scrutiny of Court Observer Shri Rakesh Kapoor. The occupation certificate was issued in August 2010 but the due to paucity of water and electricity, the Mall was not ready and fit for occupation.
I have gone through the pleadings placed on record, associated documents and have given thoughtful consideration to the detailed arguments advanced by the learned Counsels for both the Parties.
It is an admitted position that, notwithstanding the order of the learned State Commission in the matter dated 18.04.2017 for refund of the amount deposited, the Respondent handed over the possession of the shop to the Appellant on 30.07.2018 and the same was duly taken over. It is specifically asserted by the Appellant that the shop was purchased was for his livelihood. Therefore, the issue that remains for adjudication is whether the compensation for delay in handing over the possession awarded in the form of interest @ 12% per annum on the deposited amount by the State Commission is justified. Additionally, it is noteworthy that an interim stay order for not creating any 3rd party right in the Ardee Mall/Plaza Gardenia since 29.05.2014 in CS(OS) No. 1781/2014 was in effect. Hon'ble Delhi High Court vide order dated 24.10.2017, subsequently authorized handing over of the possession to the investors of Ardee Mall/Plaza Gardenia, which was executed on 30.07.2018 under the supervisions of Court Observer Shri Rakesh Kapoor. Thus, the period of delay in handing over the possession would be counted from the effective date of delay in delivery of the possession i.e. 30.12.2005 (date of agreement i.e. 30.12.2003 + 18 months + reasonable grace period, say 06 months), till the date of possession i.e. 30.07.2018. The learned Counsel for the Respondent/OP emphatically argued that the property value has become significantly higher as on date and thus, the Appellant already stands substantially benefitted financially. In addition, it was also brought on record that the said shop has already been leased out vide Lease Deed dated 28.05.2019 for consideration of Rs.2,05,400/- per month for a period of five years. The Respondent has also brought a copy of said lease deed on record. This contention has not been refuted by the Appellants.
While there are number of landmark judgments of the Hon'ble Supreme Court holding Builders responsible to pay compensation in case of delay in handing over the possession, the issue to be also decided in this case is what would be the reasonable quantum of interest that is be paid. In this regard, in the recent judgment of the Hon'ble Supreme Court in the case of DLF Home Developers Ltd. vs. Capital Greens Flat Buyers Assn., (2021) 5 SCC 537, it was held that:
"It is true that in the present case, the contractual rate of Rs.10 per square foot per month is double the rate fixed in the agreements Page 10 of 13 of FA No.225 of 2020 in the above case. On the other hand, the court must be conscious of the fact that the situation in the real estate market in Delhi is very distinct from that in Bengaluru both in terms of rentals and land values. This has not been disputed. The flat buyers had to suffer on account of a substantial delay on the part of the appellants. In such a situation, they cannot be constrained to the compensation of Rs.10 per square foot provided by the agreements for flat purchase. However, having regard to all the facts and circumstances, we are of the view that the compensation on account of delay should be brought down from 7% to 6%. Moreover, the amount, if any, which has been paid in terms of the contractual rate shall be adjusted while computing the balance"
In view of the entire facts stared above, including the fact that the said commercial shop is already handed over to the Appellant, significant increase in the property value as well as the regular commercial lease income being generated from the shop in question, the Appeal is allowed in part to the extent of the compensation amount. The impugned Order is, therefore, modified with the following directions: -
ORDER
The Appellant is directed to pay delay compensation in the form of interest @ 6% per annum on the consideration i.e Rs.22,00,000/- paid by the Complainant, from the date when the delivery of possession was due i.e. 30.12.2005 till the date of possession on 30.07.2018. This payment shall be made within one month from the date of this order. In the event of delay in payment beyond one month, the interest applicable shall be @ 9% per annum for such extended period till the realization of the entire amount.
There shall be no order as to costs. All the pending Applications, if any, stand disposed of accordingly.
The Registry is directed to release the Statutory deposit amount, if any, in favour of the Appellant on due compliance of this Order.