Deepak Rai vs Bestech India Pvt. Ltd

Ram Surat Ram Maurya, Presiding Member

Heard Mr. Saurabh Prakash, Advocate, for the complainant and Mr. Manish Sharma, Advocate, for the opposite party.

Deepak Rai has filed above complaint for directing the opposite party (i) to deliver possession of the flat to the complainant forthwith, for the amount already paid or in alternative (ii) to refund Rs.3.50/- crores i.e. the price of the flat in question as per email of the opposite party dated 14.10.2014, with interest @15% per annum, from the date of the delay in possession till realization, (iii) to pay Rs.2/- lacs, as cost of litigation and (iv) any other relief which is deemed fit and proper in the circumstances of the case.

The complainant stated that the opposite party was a company, incorporated under Companies Act, 1956 and engaged in the business of development and construction of residential and commercial buildings and selling its unit to the prospective buyers. The opposite party launched a project of group housing in the name of “Park View Spa” in Sector-47, Gurgaon and gave attractive advertisements in the year 2005. The Director and agent of the opposite party approached the complainant and informed that the land of the project was free from all encumbrances and they had obtained requisite approvals and sanctions for development and construction of the project. Lured with the representation, assurance and advertisements of the opposite party, the complainant booked a 4BR flat and was allotted Unit No. E-1301, admeasuring 2875 sq.ft, for sale price of Rs.9094250/-, of the flat, two covered parking and other charges, on 05.09.2005. Payment plan was “Construction Linked Payment Plan”. As per demand, the complainant paid Rs.300000/- on 12.09.2005, Rs.700000/- on 20.09.2005, Rs.700000/- on 25.12.2005, Rs.50000/- on 25.10.2006, Rs.2313093.77/- on 09.02.2010, Rs.1583781.25/- on 13.04.2010, Rs.1031593/- on 30.08.2010, Rs.32840/- on 26.02.2011, Rs.50000/- on 22.05.2011, Rs.404754/- on 10.09.2011, Rs.646290/- on 23.11.2011, Rs.404755/- on 30.12.2011, Rs.809509/-on 17.03.2012 and Rs.406785.50/- on 20.08.2012 (total Rs.9433401.52). The opposite party sent a draft of “Flat Buyer’s Agreement” to the complainant on 07.02.2007, which was signed by the complainant and returned back to the opposite party on 20.05.2007. The opposite party, vide letter dated 25.09.2006 demanded Rs.92000/-, towards Infrastructure Development Charge. The opposite party, vide letter dated 16.12.2006, demanded Rs.1005687/- and also issued reminders dated 03.01.2007, 09.02.2007, 20.09.2008 and 04.11.2008 in this respect. As, the construction was not started on the site, as such, the complainant did not respond the demand notice dated 16.12.2006, in time. The opposite party, vide letter dated 19.01.2008, informed that they were in process of exchange the land to have a better land profile. The opposite party, vide letter dated 12.08.2008, informed that they had obtained Zoning Approval. Thereafter, they, vide letter dated 14.05.2009, informed that “Bhoomi Pujan” was done on the site. The opposite party, vide letter dated 06.07.2009, informed that sample flat would be shown on 11.07.2009. Thereafter, they, vide letter dated 01.08.2009, informed that ‘super built up area’ had been increased to 3125 sq.ft. and vide letter dated 07.09.2009, demanded Rs.705000/- towards increase of ‘super built up area’. The opposite party, vide letter dated 10.11.2010, demanded Rs.32840/- towards service tax. The opposite party, vide letter dated 04.02.2011, demanded Rs.180000/- as cost of POP, false ceiling etc. The opposite party, vide letter dated 18.10.2011, demanded Rs.646290/- towards compound interest @18% per annum. The opposite party, vide letter dated 03.07.2013, offered ‘permissive possession’ and demanded Rs.4049309/- as balance dues. Although there was delay of about 5 years, in offer of possession but delayed compensation was not adjusted in statement of account. The opposite party, vide letter dated 12.03.2014, demanded 2% VAT. The complainant gave a legal notice dated 21.07.2014, which was replied by the opposite party on 18.09.2014 and denied all the allegations of the notice. Then the complaint was filed on 20.05.2015, alleging unfair trade practice.

The opposite party filed Written Statement on 13.08.2015, in which, material facts have not been disputed except that cheque No.480679 dated 20.08.2010 of Rs.1031593/- was not en-cashed due to “stop payment” and Flat Buyer’s Agreement was signed on 02.08.2010 although two copies of it were handed over to the complainant on 07.02.2007. It has been stated that the opposite party, vide emails dated 16.09.2009, 28.01.2010 and letter dated 27.05.2010, requested the complainant to sign Flat Buyer’s Agreement and return one copy of it. The complainant has tampered the date of Flat Buyer’s Agreement, filed along with the complaint, which is apparent. The opposite party obtained Licence Nos.29 to 37, dated 26.07.2005, for development of group housing complex. In April, 2006 Haryana Urban Development Authority (HUDA) offered to exchange its 1.77 acres land lying inside the land of the opposite party. Exchange Agreement was entered between the parties on 10.09.2007. Exchange Deed was executed on 13.05.2008. Then revised schedule of licence Nos. 2931 and 33 were issued by Town and Country Planning Department on 09.07.2008. Building Plan was sanctioned on 08.05.2009, over 12.89 acre land out of 13.62 acre land as one Bhagwan Das had filed Civil Writ Petition No. 19025 of 2005, in which, dispute relating to acquisition of.72 acre land under exchange by HUDA was challenged. High Court of Punjab and Haryana, vide order dated 19.01.2009, stayed exchange of possession over .72 acre disputed land. The opposite party filed SLP (Civil) No.7139 of 2009, against order dated 19.01.2009, in which, Supreme Court, vide order dated 04.03.2014, directed High Court for early disposal of Civil Writ Petition No. 19025 of 2005. Revised Building Plan was approved on 06.12.2012. After sanction of Building Plan 08.05.2009, the construction was started of Towers A, B, C, D, E, G, H, I, EWS block, community building, convenient shopping, gate post and electric room. After completion of construction, the opposite party applied for issue of “Occupation Certificate”, which was issued for Tower E on 23.07.2013. The opposite party, vide letter dated 03.07.2013, offered permissive possession to the complainant and supplied final statement of account. The complainant was requested to deposit balance amount of Rs.3930910.65 and complete documentation within 30 days. The opposite party, vide letter dated 09.08.2013, informed the complainant that “Occupation Certificate” has been issued. Thereafter, reminders were issued on 06.12.2013, 16.01.2014 and 12.05.2014. But the complainant neither deposited balance amount nor completed documentation. In between 25.10.2006 to 09.02.2010, the complainant did not make any payment although various demand letters were issued to him. Under the terms of the agreement, the complainant was liable to pay interest on delayed payment, holding and maintenance charges. Under clause-37 of the agreement, the allotment of the complainant was liable to be cancelled and earnest money and interest for delayed payment was liable to be forfeited. Demand of Infrastructure Development Charges, price of increased ‘super area’, Service Tax and VAT were legal and the complainant is liable to pay it. So far as delay in construction is concerned, delay was caused as undue time was taken in exchange of the land with HUDA, which was done for better land profile of the Towers. Delay was due to reasons beyond the control of the opposite party and under clause-28 of the agreement, this period was liable to extended. As payment plan was construction linked and the complainant was a defaulter in payment of instalments as such no prejudice was caused to the complainant.

The complainant filed Rejoinder Reply on 24.11.2015, in which, the facts stated in the complaint were reiterated. The complainant filed Affidavit of Evidence and Affidavit of Admission/Denial of documentary evidence and Additional Affidavit of Deepak Rai. The opposite party filed Affidavit of Evidence, Additional Affidavit and Affidavit of Admission/Denial of documentary evidence of Ms. Shiveta Raina. Both the parties filed their documentary evidence and short synopsis. The complainant, through IA/8712/2016, filed additional documents.

This Commission, vide order dated 13.10.2017, directed the opposite party to deliver possession of the flat subject to deposit of 50% of demanded amount. In compliance of the order dated 13.10.2017, the opposite party delivered possession of the flat to the complainant on 23.01.2018. The complainant deposited Rs.4336743/- on 23.09.2019. The opposite party filed IA/13155/2018, for release of that amount, which was directed to be listed at the time of final hearing. After taking possession of the flat, the complainant let out it without any permission of this Commission. The opposite party filed IA/19887/2020, under Section 27 of Consumer Protection Act, 1986. The complainant filed his Additional Affidavit sworn on 26.02.2021, stating that he had let out the flat on 10.02.2019 for a period of up to 28.02.2021. Thereafter, the flat was vacated by the lessee. He received Rs.1350000/- as rent during this period out of which, he had paid Rs.86040/- towards tax and Rs.25000/- as tax had to be paid till March, 2021. This Commission, vide order dated 23.02.2022, directed the complainant to deposit entire amount of rent after deducting taxes on it. In pursuance of the order dated 23.02.2022, the complainant deposited DD of Rs.1238960/- on 08.03.2022.

I have considered the arguments of the counsel for the parties and examined the record. According to the complainant, he was entitled for delayed compensation, from the due date of possession, till the date of offer of possession. Clause 28 (a) of the agreement is quoted below:-

28 (a) Time of handing over the possession

That subject to terms of this clause and subject to the flat allottees having complied with all the terms and conditions of this agreement and not being in default under any of the provisions of this agreement and further subject to compliance with all provisions, formalities, registration of sale deed, documentation, payment of all amount due and payable to the developer by the flat allottees under this agreement etc. as prescribed by the developers, the developer proposes to handover possession of the flat within a period of 30 months from the date of signing of this agreement.

Under clause 28 (a), 30 months from the date of signing of the agreement has been prescribed for offer of possession. Under Clause-30, after 36 months, from the date of signing of the agreement, delayed compensation was payable. In the present, the agreement was signed on 02.08.2010 as admitted by the complainant in his Affidavit of Evidence and possession was offered on 03.07.2013, i.e. within three years. The complainant was not entitled for any compensation for delay in offer of possession. The argument of the counsel for the complainant that 36 months period be counted from the date of boking, is not liable to be accepted as in between 25.10.2006 to 09.02.2010, the complainant did not make any payment although various demand letters were issued to him and cheque No.480679 dated 20.08.2010 of Rs.1031593/- was not en-cashed due to “stop payment”.

The complainant has challenged demand of additional price due to increase of ‘super area’. Clause-1.2 (d) of the agreement provides that ‘super area’ is tentative and price for increase in ‘super area’ was payable. Supreme Court in DLF Home Developers Ltd. Vs. Capital Green Flat Buyers Association, 2020 SCC OnLine SC 1125 , upheld 10% increase in ‘super area’ and demand of its price. In the present case, super area has not been increased more than 10%.

Demand of Infrastructure Development Charges, Service Tax, VAT, holding charges and Interest Free Maintenance Security are made according to the agreement and the complainant is liable to pay. However, during arguments, the counsel for the opposite party informed that the opposite party had agreed not to charge penal interest on the delay in payment of instalment and final demand. As such, it is provided that the opposite party shall charge interest @9% per annum on delayed amount of instalment and final demand.

ORDER

In view of the aforesaid discussions, IA/13155/2018 is allowed. Rs.4336743/- deposited on 23.09.2019 and Rs.1238960/- deposited on 08.03.2022 by the complainant will be paid to the opposite party along with accrued interest on it within 15 days from this judgment. The complaint is partly allowed. The opposite party shall issue a statement of account charging interest @9% per annum on delayed amount of instalment and final demand along with other charges strictly in accordance with Flat Buyer’s Agreement, adjusting the amount already received within one month from the judgment. The complainant shall deposit that amount within one month thereafter. On deposit of the amount, the opposite party shall execute conveyance deed in favour of the complainant. In case the complainant did not comply the demand notice within aforesaid period, then it will be open for the opposite party to cancel the allotment of the complainant under clause-37 of the agreement and forfeit earnest money and interest for delayed payment and return balance amount. Thereafter, the complainant shall handover possession of the flat to the opposite party forthwith.