Benu Singh vs Jaiprakash Associates Limited

The above complaint has been finally decided by the order dated 26.07.2023.  The complainants have filed MA/427/2023 for recall and review/modification of the judgment dated 26.07.2023 in light of the submissions made in this MA.

The fact of the case is that the complainants booked a flat in the project ‘Jaypee Green Wish Town’ on 22.09.2010.  Thereafter, the opposite party issued provisional allotment letter dated 11.05.2011 allotting unit reference No.I 2003 (PH-2, LVL-1&2). Later on, the opposite party issued amended allotment letter on 05.04.2012 by which the consideration had been revised. Total consideration of Rs.16757300/- was fixed.  Payment mode has also been revised simultaneously and on offer of possession, Rs.739288/- + other charges were payable.  It is alleged that due date of possession, as per provisional allotment letter, expired on 09.08.2015.  Although the opposite party offered possession on 11.11.2016 but on the allegation that the flat in dispute was not in a habitable condition, possession was not taken by the complainants. In paragraph 2(o) of the complaint, following deficiencies in construction have been pointed out:

i. Heavy seepage in the walls of the structure.

ii. Open ducts and duct drainage.

iii. Non-operational lifts.

iv. Absence of working lights in the working lifts in the building and the area.

v. Lack of security in the compound.

vi. Incomplete construction of the staircase.

While partly allowing the complaint, we have directed the opposite party to obtain the occupation certificate and thereafter, hand over possession of the flat complete in all respects within four months and pay delay compensation in the form of interest @ 6% per annum from 11.05.2005 till the offer of possession after obtaining the occupation certificate.

Although the occupation certificate has already been obtained by the opposite party on the date of offer of possession on 11.11.2016, the complainant stated that possession was offered in a non-habitable condition of the apartment therefore, the complainants denied to take possession. In view of the judgment of the Supreme Court in Utpal Trehan Vs. DLF Home Developers Ltd. (2022) 10 SCC 409, the offer of possession was invalid and the complainant was entitled for delay compensation till the fresh offer of possession after completion of the flat as per specification in the allotment letter.  Counsel for the complainants relied upon the report of Architect dated 27.03.2018 and submitted that Architect has inspected the flat after filing the complaint and on perusal of his report, the complaint was admitted by the order dated 11.09.2018. Various deficiencies in construction have been noted in detail by the Architect.  Therefore, offer of possession was not in accordance with the provisional allotment letter and fresh offer of possession is required to be made.

The opposite party, relying upon the judgment of the Supreme Court in Supertech Ltd. Vs. Emerald Court Owner Resident Welfare Association & Ors. (2023) 10 SCC 817, argued that the matter has been finally decided and no miscellaneous application is maintainable.  However, a perusal of the application shows that a prayer has been made for review of the order and Section 22(2) of the Consumer Protection Act, 1986 provides a provision for review.  Therefore, we do not propose to dismiss the application as not maintainable.  Counsel for the opposite party has further argued that in order to procure hearing in the Court, instead of filing the review application, miscellaneous application has been filed.  Since it does not cause any prejudice to the opposite party, who was also permitted for arguments, therefore, this ground has no merit.

So far as the Architect report is concerned, Architect has not filed his affidavit to prove the report.  Although the complainant, in his Affidavit of Evidence has exhibited the Architect report but the affidavit of the complainant to prove the actual inspection and the contents of the report are not sufficient.  Otherwise also, the complainants, in paragraph 2(o) of the complaint, have shown only one deficiency in his flat i.e. heavy seepage in the walls of the structure.  In the absence of pleading in respect of various deficiencies as pointed out by the Architect, the report of the Architect is neither admissible in evidence nor liable to be read in evidence. Therefore, on its basis, offer of possession cannot be disputed.

After offer of possession, the complainant did not lodge any protest before the builder that there was deficiency in construction of the flat or it was not in habitable condition.  Revised allotment letter shows that on offer of possession, the complainant was liable to make payment of Rs.739288/- as well as other charges.  Alongwith the offer of possession dated 11.11.2016, the opposite party has raised a demand of Rs.2938692.92p. In the offer of possession, the complainant was required to deposit that amount and after deposit of that amount, the flat has to be furnished and possession has to be handed over within 45 days of the payment but the complainant has chosen not to deposit that amount.  The complainant has not raised any protest before the builder in respect of the demands of balance amount nor the complainant has challenged the demands except the demands for enhancement in the super area in the complaint.  Therefore, the complainants will not get the benefit of the judgment of the Supreme Court judgment in Utpal Trehan (supra) case.

So far as delay in offer of possession is concerned, we have already directed the opposite party to pay delay compensation in the form of interest @ 6% per annum on the deposit of the complainant which is fully in consonance with the Three-Member judgment of the Supreme Court in DLF Home Developers Ltd. Vs. Capital Greens Flat Buyers Association (2021) 5 SCC 537.

So far as increase in super area is concerned, in the provisional allotment letter as well as general terms and conditions, it has been mentioned that super area was tentative and liable to be increased.  The Supreme Court in DLF Home Developers Ltd. (supra), has upheld 10% increase of super area in similar terms and conditions of the agreement.  Therefore, demand in respect of the increase of super area is also not liable to be interfered by this Commission.

Clause 8 of the general terms and conditions issued alongwith the provisional allotment letter clearly provides for maintenance charges and holding charges after expiry of 30 days from offer of possession.  Therefore, maintenance and holding charges cannot be waived of by this Commission.

The next error which has been pointed out is that although the complaint was pending since 2017, no compensation for mental agony and harassment has been awarded nor litigation cost has been awarded.  In this respect, it is mentioned that the opposite party has already offered possession before filing the complaint.  Therefore, there was no question of harassment.  So far as litigation cost is concerned, in the facts of the case, litigation cost, has not been awarded.  In such condition, a judgment does not require any review or modification.  However, we feel it necessary that in the operative portion of the order, in fourth line after the word ‘complete in all respects’, the following words be read ‘as per specifications given in the provisional allotment letter’.  The application is disposed of.