Bimal Sachdeva vs M/s Pioneer Urban Land & Infrastructure Limited

Heard Mr. Tariq Muneer, Advocate, for the complainant and Mr. TVS Raghavendra Sreyas, Advocate, for the opposite party.

Mr. Bimal Sachdeva has filed above complaint for directing the opposite party to (i) hand over possession of the unit allotted to him, complete in all respects and execute necessary Conveyance Deed, (ii) pay interest @18% per annum on the deposit of the complainant from August 2013 till the delivery of possession over the flat in dispute, (iii) in alternative, if the opposite party fails to hand over possession within the period prescribed by this Commission, then refund the entire amount deposited by the complainant with interest @18% per annum from the date of respective deposit till the date of payment, (iv) provide adequate car parking space and refund the amount charged towards car parking space with interest @18% per annum, (v) pay Rs.3000/- per day due to failure in delivery of possession within one month, (vi) pay Rs.583874/- along with interest @18% per annum from the date of payment towards PLC charges, (vii) pay Rs.1/- lac charged towards club membership, (viii) pay Rs.20/- lacs as compensation for mental agony and harassment, (ix) pay Rs.1/- lac as cost of litigation, (x) refund the charges towards taxes and other statutory payments with interest @18% per annum; and (xi) any other relief which is deemed fit and proper in the facts and circumstances of the case.

The complainant stated that M/s Pioneer Urban Land and Infrastructure Limited (the opposite party) was a company registered under the Companies Act, 1956 and was engaged in the business of development and construction of group housing project. The opposite party launched a group housing project in the name of ‘Presidia’ at village Ghata, Sector-62, district Gurgaon in the year 2009 and made wide publicity of its facilities and amenities. Believing upon the representations of the opposite party, the complainant booked a flat on 23.01.2010 and deposited the booking amount. The opposite party allotted Apartment no.TD-1902, admeasuring 2595 sq. ft. @ Rs.4500/- per sq. ft. on 23.01.2010 and executed Buyers Agreement dated 06.08.2010 of the aforesaid flat in favour of the complainant. The payment plan was ‘construction linked payment plan’.  As per demand of the opposite party, the complainant deposited Rs.12789226/-, till August, 2014. Clause 9.2 of the Agreement provides 36 months’ period from the date of signing of Buyers Agreement for obtaining the occupation certificate and offer of possession with grace period of 180 days. The period of 36 months expired on 05.08.2013 and grace period expired on 05.02.2014. The opposite party however, failed to offer possession to the complainant in accordance with the Buyers Agreement. The complainant gave a legal notice to the opposite party dated 11.09.2017 requiring the opposite party to deliver possession and pay delayed compensation as well as other reliefs which have been claimed in the complaint.  Inspite of service of legal notice, the opposite party did not respond. Then this complaint was filed on 12.12.2017.

The opposite party filed its written reply on 30.01.2018 in which the booking of the flat and allotment of flat on 30.01.2010, execution of Builder Buyers Agreement on 06.08.2010 and deposits made by the complainant, have not been deposited.  The opposite party took plea that for the force majeure reasons, the construction was delayed.  The opposite pleaded following force majeure reasons:-

(a) The commonwealth games were organized in Delhi, due to this mega event construction of several big projects led to extreme shortage of labourers and hence the construction could not be completed on time.

(b) Active implementation of schemes such as NREGA and JNNURM, created shortage of labourers.

(c) Dispute between contractor led to huge financial losses to the OP (d) due to termination of contract.

(e) Along with labour shortage, water shortage also occurred and it was totally unforeseeable which further led to delay.

(f) As per guidelines of NGT construction work stopped from 15th November 2016, which further led to delay.

(g) Due to demonetization, the contractors were not able to make regular payments to their labour and it also consolidated the problem for OP in mobilizing the requisite labour.

(h) The OP paid EDC as per license awarded in its favour and the State Govt. was supposed to lay the whole infrastructure in that Licensed area for providing the basic amenities but the same were not provided.

(i) The Ministry of Environment and Forest (MOEF) and Ministry of Mines (MOM) had imposed certain restrictions, which resulted in a drastic reduction in availability of bricks and Kiln which are the most basic ingredients in the construction activity.

(j) Directions of the Hon’ble Supreme Court resulted into shutting down of various brick kilns.

(k) Non-availability of raw material.

(l) Supreme Court suspended all the mining operations in the Aravalli Hill, which led to a situation of scarcity of the sand and other materials.

(m) Due to modification in the prescribed guidelines by the Government.

(n) Due to shortage of labour, water and other raw materials or additional permits, licenses, sanctions by the different departments were not in the control of OP and were not at all foreseeable at the time of launching of project and commencement of construction of the Complex. The OP cannot be held responsible for things which were beyond its control.

So far as the demand of the complainant for refund of PLC amount is concerned, it has been stated that the flat of the complainant was at a preferential location. Therefore, the PLC was charged from him.  So far as club membership is concerned, the agreement contained the payment plan in which club membership has been mentioned. It is alleged that the club membership has now been increased. The opposite party was providing covered car parking space as such car parking charges have been realized. The opposite party has also raised preliminary objection that the complainant is not a consumer and the agreement contained an arbitration clause, therefore, the complainant be relegated to go before arbitrator, are also raised.

The complainant filed Rejoinder Reply and Affidavit of Evidence of Mr. Bimal Sachdeva. The opposite party filed Affidavit of Evidence of Ranjeet Singh.  Both the parties have filed their written synopsis.  Along with affidavit of Evidence of Ranjeet Singh, the opposite party has filed copy of occupation certificate issued on 01.02.2018.

We have considered the arguments of the counsel for the parties and examined the record. It is not in dispute that occupation certificate was issued on 01.02.2018 and thereafter, the opposite party offered possession to the complainant on 14.02.2019 and the complainant took possession. The disputes remained between the parties are in respect of delayed compensation, PLC charges car parking charges and club charges. So far as PLC charges are concerned, counsel for the complainant, on instructions states that at present, the complainant does not want to press relief in this respect. So far as car parking charges are concerned, Supreme Court in Wg. Cdr. Arifur Rahman Khan & Ors. Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 769 has upheld charges for car parking. Payment plan provides for club membership charge as such these charges are not illegal.

So far as delayed compensation is concerned, as per Builder Buyers Agreement, due date of possession expired on 05.02.2014.  The possession was offered on 14.02.2019.  Therefore, there is delay in offer of possession.  The opposite party took plea that due to force majeure reasons, the delay had occurred which is liable to be condoned. In the written reply, the opposite party has pleaded force majeure reasons, some of which had occurred prior to Builder Buyer Agreement and have no relevance as knowing well the Builder Buyer Agreement was executed. The force majeure reasons which occurred subsequent to Builder Buyer Agreement, the opposite party has realized the instalments from time to time and up to August, 2014, about 90% consideration had been realized. Therefore, it is not proved that due to force majeure reasons, the opposite party had stopped construction on the spot. The reasons for delay in construction as attributed to force majeure reasons are not liable to be accepted.

Supreme Court in Wg. Cdr. Arifur Rahman Khan & Ors. (supra), held that the buyer is entitled for delayed compensation in the form of interest @6% per annum on his deposit for the delayed period.

ORDER

In the result, the complaint is partly allowed.  The opposite party is directed to pay delayed compensation to the complainant in the form of interest @6% per annum on the deposits of the complainant upto 05.02.2014, from 06.02.2014 till 13.02.2019, within two months from today. After settlement of account, if Conveyance Deed has not been executed, then it shall be executed without any further delay.  So far as club membership is concerned, the opposite party will provide club membership in the same term as being provided to other home buyers.