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Judgment
Dr.Inder Jit Singh, Member
The present Consumer Complaint (CC) has been filed by the Complainant against the opposite parties as detailed above, inter aila praying for :-
i. to pay interest @24% of the cost of flat paid Rs.82,65,696/- w.e.f. November 2013 till handing over the possession in May, 2017 amounting to Rs.71,08,848/-.
ii. interest @9% on the deposit for maintenance paid w.e.f. 2014.
iii. Rs.10,00,000/- as compensation on account of mental agony and harassment to live in a rented premises beyond the agreed period of time.
iv. Rs.5,00,000/- on account of litigation charges.
Notice was issued to the opposite parties on 14.03.2018 giving them 30 days’ time to file their written statement.
It is averred/stated in the complaint that:-
i) That the complainant booked a flat on 04.04.2010 in the residential Project launched by the OP in the name of ‘Tulip Ivory’ situated in Sector-70, Gurgaon, Haryana and was allotted flat No. B-703 on the 7th Floor with a Super Area 2400 sq.ft. Property Buyer’s Agreement dated 15.04.2010 was entered between the parties. The total consideration for the flat was Rs.77,16,000/-. The complainant paid Rs.82,65,696/- till November 2013. The said unit was allotted vide Allotment Letter dated 04.10.2013. A Maintenance Agreement dated 05.10.2015 was also executed between the complainant and OP-2 for maintenance from 01.11.2013.
ii) In November 2013, the OP-1 sent a letter offering possession of the Unit and simultaneously asked for interest bearing maintenance security of Rs.2.00 lakh and ECC/ESS of Rs.3,60,000/- and insisted that the said amounts be paid otherwise flat shall not be registered and possession shall not be handed over without registration. So the complainant paid the entire payment and the said amount in addition. The OP-1 incorporated another company i.e. OP-2 for maintenance of the building in the year 2013 and by coercion and threats of denying registration OP-1 compelled the complainant pay maintenance charges from February 2014 till January 2016 by adjusting the IBMS amount of Rs.2.00 lakh, whereas the complainant is liable to pay the OP-2 from May, 2017.
iii) After making the entire payments as demanded by OP-1, the complainant visited the premises and found that the said property was incomplete was uninhabitable. The OP collected the entire payment in November 2013 under false pretences. The complainant again visited the OP in the year 2015, the interior work was still pending in the flat. The OP-1 started demanding Rs.1,57,718/- towards VAT charges, expected to be imposed by the State Government and additional Rs.50,000/- in cash to process the registration of the property. The complainant constantly followed up with the office of the OP-1 for completion of construction and registration of the property through e-mail and telephone calls, but the OP did not give any response.
iv) In October 2016, the unit was registered under the conditions that were imposed by OP-1 :- (a) OP-1 collected additional payment of Rs.78,859/- on account of account of VAT (b) OP-1 took Rs.25,000/- in cash as registration charges without any invoice or receipt, over and above the Government registry charges which were paid through demand draft (c) OP-1 also demanded the complainant to agree to pay VAT in future if demanded in the absence of any clear cut guidelines then (d) Additional maintenance charges of Rs.55,200/- from February 2016 to September 2016, in the absence of possession and furthermore in the absence of any clarity on the status of IBMS deposit or the interest due to be paid on it (e ) the complainant was made to sign the maintenance agreement in the month of October, 2015 in September 2016 (f) OP-1 finally registered the flat in October, 2016, but still the flat was not ready for possession. The Registration documents were handed over to complainant in December 2016, after collecting additional Rs.20,424/- for maintenance charges from October, 2016 to January, 2017, once again in the absence of possession and furthermore in the absence of any clarity on the status of IBMS deposit or the interest due to be paid on it.
v) The complainant and OP-2 entered into Maintenance Agreement. Complainant deposited Rs.2.00 lakh with OP-2 , on which the OPs are liable to pay 9% interest per annum since November 2013. The OPs have not yet given any statement of this deposit and the interest paid thereon.
vi) In May 2017, finally the OP-1 handed over the possession of the unit to the complainant, however, received the full payment of the flat in November, 2013 and registered the flat in October 2016 and possession was given in May, 2017. Thus, are liable to pay interest @ 24% on the entire amount of Rs.82,65,696/- paid to OP-1 in November, 2013.
vii) The OPs violated the basic terms and conditions of the Agreement dated 15.04.2010 and also rescinded from the terms of the agreement as communicated and hence, have attempted to mislead the Complainant. The complainant issued a legal notice dated 09.08.2017 to the OPs denying paying any interest and also demanded refund all the maintenance charged w.e.f. November, 2013 till May, 2014 or the amount may be adjusted towards future maintenance payable by the Complainant. But the OPs failed in performing their part of the agreement even after receiving the consideration for the same. Hence, the complainant filed complaint before this Commission.
OPs in their written statement/reply stated that :-
i. It is contended by the OPs that the complaint is based on concealment and misrepresentation of material facts. The payments made by the Complainant towards the flat in question, to OP-1 in accordance with the terms and conditions of the agreement entered into between the Complainant and OP-1. The complainant cannot be allowed to raise any hue and cry against the price of the product sold to the Complainant.
ii. It is further contended by the OPs that the delay, if any, was made by the complainant voluntarily and consciously and he cannot be allowed to blame the OPs for the consequences ensuing therefrom .
iii. The complainant relied upon the cause of action to have arisen in the year 2013 as per Para 6 of his complainant which clearly shows that the complaint is hopelessly barred by limitation as per the mandate laid down vide Section 24 A of the C.P. act. The complaint is liable to be dismissed on this ground alone and the OPs be compensated in terms of Section 28 of the Act itself.
iv. It is also contended by the OPs that the offer of possession was made to the Complainant on 04.10.2013 along with final statement of account was also forwarded to the complainant. In connection with preparation of Conveyance Deed for registration, an undertaking along with possession letter was given by the complainant on 10.10.2016 on Affidavit. OPs issued clearance certificate dated 28.09.2016 to OP-1. The funds for purchase of stamp duty were provided by the Complainant in the first week of October 2016 and the Stamps were purchased on 07.10.2016 for execution and registration of Conveyance Deed and Conveyance Deed was done on 10.10.2016. Without payment of stamp duty, it was not possible to get the registration of conveyance deed. The possession was given to the complainant on 04.11.2013.
v. It is contended by the OPs that the complainant slept over the matter of payment of stamp duty, registration charges and incidental expenses upto first week of October, 2016 and consequently it was not at all possible for OP-1 to execute and get registered the necessary conveyance deed in respect of the flat in question. On payment by the complainant for the stamp duty in October 2016, the conveyance deed was duly executed and got registered on 10.10.2016 and after completing the other formalities, the actual physical possession of the flat was given on 14.12.2016. It is also contended that although the offer of possession was given to the complainant on 04.11.2013, the complainant himself deliberately avoided the conveyance deed to be executed.
vi. Other allegations are denied by the OPs.
Evidence by way of affidavit was filed by the complainant and affidavit of evidence was filed by the OPs broadly on the lines of averments made in the complaint.
Heard counsels of both sides. The details of the flat allotted to the Complainant/other relevant details of the case are given in the Table below:-
Sr No
Particulars
1
Project Name/Location etc.
‘Tulip Ivory’, Sector -70, Gurugram
2
Apartment no.
B-703, 7th Floor, Tower-B
3
Size (Built up/Covered/Super Area)
2400 sq.ft.
4
Date of application
04.04.2010
5
Date of signing Property Buyers’ Agreement
15.04.2010
6
Maintenance Agreement
05.10.2015
7
Committed date of possession as per Buyers’ Agreement (with Grace period, if any)
15.11.2013
8
D/o Offering Possession
04.10.2013
9
D/o physical Possession
14.12.2016
10
Total Consideration
Rs.77,16,000/-.
11
Amount Paid
Rs.82,65,696/-
12
D/o Filing CC in NCDRC
07.02.2018
13
D/o Issue of Notice to OPs
14.03.2018
14
D/o Filing Reply/Written
Statement by OPs
14.05.2018
15
D/o filing Rejoinder by the Complainant
12.09.2018
16
D/o Filing Evidence by way of Affidavit by the Complainant
12.09.2018
17
D/o Filing Evidence by way of
24.10.2018
Affidavit by the OP-1
18
D/o Filing Evidence by way of Affidavit by the OP-2
24.10.2018
19
Written arguments filed by the Complainant
09.12.2019
20
Written arguments filed by the OPs
30.10.2020
In the present case the committed date of possession as per agreement was November 2013 (36 months + six months grace period) possession was offered in December, 2016, but as per complainant actually physical possession was taken over in May 2017 only although OP claims that actual physical possession was given on 14.12.2016. The main relief sought is delay compensation as possession of unit in question has already been taken over. It is contended by the OPs that complainant is not entitled to compensation as he has sold the unit in question in November, 2020, i.e., after the filing of the complaint and he ceases to be a consumer. It was also contended that in any case the complainant is not entitled to compensation beyond the date of offer to possession i.e., December 2016. I tend to agree with the reasons advanced by the OPs in terms of the period for which delay compensation should be payable to the complainant.
The objection that the Complaint is barred by limitation is not accepted. The OPs have failed to deliver the possession of the unit to the complainant as per committed date and therefore, the cause of action is continuing. The plea of OPs that delay was due to force majeure circumstances is not valid as even after a gap of more than three years from the committed date given in the Agreement, possession of flat was not given. There is no documentary evidence to support the contention of the Opposite Parties that the reasons pleaded by them, can be construed as ‘Force Majeure. The contention of the OPs that the parties are bound by the agreement is also not acceptable. Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raglivan II (2019) CPJ 34 (SC) decided on 02.04.2019 held that “a term of a contract will not be final and binding if it is shown that the flat purchasers had no option to sign on the dotted line, on a contract framed by the builder ......... the incorporation of one sided clause in an agreement constitute an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling flats by the builder ........., the appellant-builder cannot seek to bind the respondent with such one sided contractual terms.”
In the instant case, there is a delay in handing over the possession of flat by the OPs. The complainant cannot be made to wait for an indefinite time and suffer financially. Hence, the complainant in the present circumstances have a legitimate right to claim fair delay compensation/interest from the OPs.
For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, the Consumer Complaint is allowed/disposed off with the following directions/reliefs: -
i. OPs are directed to pay delay compensation in the form of simple interest @6% from the committed date of possession i.e. November 2013 till the date of offer of possession i.e., December 2016, within two months of date of this order.
ii. The OPs shall pay a sum of Rs.25,000/- as cost of litigation to the complainant.
iii. The liability of the OPs shall be joint as well as several.
iv. The payment in terms of this order shall be paid within three months from today.
The pending IAs, if any, also stand disposed off.