Chirag Aggarwal vs M/S. Ansal Townships Infrastructure Ltd.

This consumer complaint has been filed by the complainant Chirag Aggarwal against the opposite party M/s. Ansal Townships Infrastructure Ltd.

Brief facts as given in the complaint are that vide allotment letter dated 27.09.2010, the opposite party allotted residential flat bearing no.C-1160-FF measuring 1394 Sq. feet on the first floor for basic sale consideration of Rs.59,50,000/-. The Flat Buyer Agreement was signed on 19.10.2010. The complainant paid a total of Rs.65,63,043/- till 28.01.2014. A purported offer of possession was issued to the complainant on 06.11.2013. As the opposite party failed to address the grievances of the complainant, the complainant filed a civil suit bearing no.25123/2013 in November, 2013 at Gurgaon. The civil suit was finally decreed in favour of complainant on 06.09.2016 and the earlier offer letter dated 06.11.2013 was set aside and the opposite party was restrained to demand 15% of the consideration till internal finishing and 5% till completion. It is the grievance of the complainant that in spite of the order of the civil court dated 06.09.2016, the opposite party has not issued any fresh offer of possession and has not handed over the possession. It has been prayed to direct the opposite party to hand over the possession complete in all respects as per the agreement signed between the parties and to pay compensation in the form of interest on the amount paid by the complainant.

The complaint has been resisted by the opposite party by filing the written statement wherein it has been stated that as per the clause 5.2 of the agreement, the possession was required to be given within 30 months along with an extended period of six months from the date of execution of the agreement. Thus, the possession was due by May, 2014. The possession was offered to the complainant on 06.11.2013, however, the complainant did not accept the possession and filed a civil suit. The occupation certificate was applied by 22.09.2014 and the same was received on 10.11.2014. The complainant did not come forward to take possession even after the decision of the civil court. It was further mentioned in the written statement that as per clause 5.1 of the agreement, the Company shall endeavour to complete the development of residential colony and the dwelling unit as far as possible within 30 months with an extended period of 6 months.

It is pertinent to mention that the building plan of the said project was sanctioned on 06.05.2011 and OP had completed the construction of the tower under which subject unit was situated within the prescribed period as mentioned in the agreement and offered possession to the complainant on 06.11.2013.

It was further stated that in terms of agreement, OP was to offer possession till May, 2014, however, since the complainant filed Civil Suit bearing no.25123/2013 at Gurgaon and the Court vide Oder dated 03.05.2014 restrained the OP from raising any further demand from the complainant due to which OP was not able to raise any demand and thereby could not offer possession. The order reads as under:-

"No one has appeared on behalf of the defendant. Case called several time since morning. It is already 2:30 P.M. No further wait is justified. Therefore, defendants no.1 is hereby proceeded against exparte.

Adjourned to 22.05.14 for exparte evidence of the plaintiff. Defendant is restrained from raising the demand of Rs.21,,90,519/- from the plaintiff till further orders."

It was further alleged that the suit was disposed of vide order dated 06.09.2016 and only then the OP got entitled to raise demand. It was also submitted that vide order dated 06.09.2016, the civil Court did not give any directions to issue fresh offer of possession nor the Court made it obligatory on the part of the OP to issue such offer. The relevant portion of the said order is reiterated herein below:

As per findings of the court on issue no.1 & 2 the suit of the plaintiff is hereby decreed to the effect that the offer of possession dated 06-11-2013 is declared null and void. Defendant is hereby restrained from raising demand of 15% until completion of internal finishing of the floor and 5% until of possession after completing all the works including installation of accessories. However, there shall be no bar upon the defendant to issue fresh letter of possession after completing the internal and external finish as per the agreement and to demand the remaining payment from plaintiff."

It was further stated that the issue of getting completion certificate was duly placed on record in Civil Court at Gurgaon and the same finds mention in the judgment. Civil Court has nowhere directed to issue fresh offer of possession as earlier offer in year 2013 was already issued (though the same was held as not valid due to non-receipt of completion certificate). But, it is pertinent to mention that the complainant was in complete knowledge of issuance of completion certificate for the unit and he ought to have come forward for getting possession after clearance of balance outstanding, which the complainant never did.

Both the parties filed their evidence by way of affidavit which have been taken on record.

Heard the learned counsel for the parties and perused the record. The learned counsel for the complainant stated that after the decision of the civil suit on 06.09.2016, the opposite party was bound to issue another offer letter, however, the opposite party has not issued any offer letter. Without any offer letter, the complainant cannot seek possession from the opposite party. As the earlier offer of possession dated 06.11.2013 has been set aside by the competent civil court, there is no offer of possession for the complainant. As the opposite party has already received the occupation certificate, it means that the building is ready and therefore, order should be passed directing the opposite party to hand over the possession of the allotted flat immediately to the complainant and suitable compensation should also be awarded to the complainant for the delay in handing over the possession.

On the other hand learned counsel for the opposite party stated that the possession was due in May, 2014 and the occupation certificate was obtained on 10.11.2014. There was no direction to the opposite party to issue any fresh offer of possession by the civil court and therefore, no fresh offer of possession was issued to the complainant. It was the duty of the complainant to have come forward to take possession. Learned counsel for the opposite party further argued the same point, which was mentioned in the written statement that by ways of an interim order on 03.05.2014, the civil court restrained the opposite party from raising any demand to the complainant. Thus, there was no question of offering the possession because offer of possession would have been accompanied by a demand letter as well. Thus, even after obtaining the occupation certificate on 10.11.2014, the opposite party could not give any offer of possession to the complainant due to this interim order. The civil suit was finally decided on 06.09.2016 and after that, it was open to the complainant to have come forward and take the possession. However, the complainant is only interested in delaying the possession in the hope of getting hefty compensation.

I have carefully considered the arguments advanced by both the learned counsel for the parties and have examined the record. It is clear that the offer of possession given on 06.11.2013 was invalid offer of possession by that time as the opposite party had not obtained the occupation certificate and therefore, the civil court set aside this offer of possession. It is also correct that due to interim order dated 03.05.2014 passed in civil suit, the opposite party was not in a position to raise any demand and consequently to give offer of possession till the final disposal of the civil court, which happened on 06.09.2016. I do not find any merit in the argument of the learned counsel for the opposite party that it was the duty of the complainant to have come forward to take the possession. Once civil court had set aside the earlier offer letter dated 06.11.2013, the opposite party should have issued a fresh offer letter, otherwise there was no basis for the complainant to have come forward to take the possession. The possession was due in May, 2014, however, the occupation certificate has only been obtained on 10.11.2014. Thus, clearly there was a delay from May, 2014 till 10.11.2014. Similarly, civil suit was decided on 06.09.2016 and therefore, the delay continued from 06.09.2016 till actual date of possession. Clearly, the period from 10.11.2014 to 06.09.2016 is not to be considered as delay in handing over the possession because it was due to the pendency of the case in civil court and particularly because of the interim order dated 03.05.2014.

Based on the above discussion, the complaint is allowed and the following order is passed:-

ORDER

(i) The opposite party is directed to hand over the possession of the allotted flat to the complainant within a period of 60 days from the date of receipt/service of this order.The opposite party shall hand over the flat complete in all respects as per the agreement.

(ii) The opposite party shall also pay compensation for delay in possession in the form of interest @ 5% p.a. on the amount deposited before May, 2014 from 1st May, 2014 till 10.11.2014 and from 06.09.2016 till actual date of possession.

(iii) Complainant is also directed to pay 20% of the cost as per the provision of the agreement and as ordered by the civil court alongwith 9% p.a interest from the date of this order till actual payment at the time of actual possession.This amount will be adjusted in the amount of compensation to be calculated as above at the time of handing over the possession.If the amount becomes due on the complainant, the complainant shall pay that amount to the opposite party on the day of possession and if the amount becomes payable by the opposite party then the opposite party shall pay this amount to the complainant on the day of possession.