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Judgment
Subhash Chandra, Presiding Member
This consumer complaint has been filed by the complainant under section 21 read with section 22 further read with section 2 (b) of the Consumer Protection Act, 1986 seeking possession of a flat booked with the opposite party and seeking compensation for delay in possession along with other reliefs.
The facts, in brief, are that the complainants booked a flat along with car parking in the project called ‘Antriksh Golf View’, Phase 1, Sector 78 Gautam Budh Nagar, Noida, Uttar Pradesh 201 301 which was developed by the opposite party. The complainant states that the opposite party had assured the complainants that the flats would be delivered with all the amenities as brought out in its brochure. Complainants were allotted flat no. M 1401 for a total consideration of Rs.56,19,375/-. The area of the flat was revised from 2025 sq ft to 2100 sq ft by opposite party without intimation. The complainant paid an advance of Rs.1,00,000/- and an agreement to sell was received on 15.07.2011 which was returned by the complainants to opposite party for amendment of certain clauses on 16.07.2011. The complainant alleges that opposite party neither sent the corrected copies of the previous allotment letter nor issued the duplicate and instead sent a certified photocopy which was not accepted by the housing financing companies for housing loans. The opposite party provided the allotment letter/ agreement and charged the fees and interest unilaterally @ 18% as on 20.08.2013. The complainants allege that in the allotment letter possession date was changed from December 2012 to 2013 without information. The complainants further state that they paid regular payments to opposite party. However, the cheques were returned by the opposite party to them as no bank was willing to finance the project and there was no construction activity on the site. The complainants further allege that they have paid a total amount of Rs.80,45,720/- till date towards the flat. The opposite party issued a cancellation letter and sent a cheque for Rs.35.55 lakhs on 31.07.2013.
The complainants submit that a loan of Rs.22,00,000/- from Axis Bank Housing Finance Limited was approved by the Axis Bank. It is stated that at the time of initial booking of the flats with the opposite party, the project comprised 16 floors; however, when the opposite party handed over the possession to other allottees, the building had 21 floors. The opposite party had not intimated the change in the lay out plan to the complainants and executed the change without taking prior approval. As there was delay in handing over the flat, the complainant issued a legal notice to the opposite party calling for handing over possession along with transfer of ownership rights of the flats allotted to the complainants along with compensation of simple interest @ 24% per annum on the principal consideration paid as consideration of the flat from January 2013 to date. The complainant is before this Commission with the following prayer:
a. Admit this joint complaint of the complainants;
b. Issue summons/ notices to the opposite parties to appear, produce and file all original papers/ documents concerning in the Antriksh Group Housing Project namely, Golf View, Phase I, Sector 78, Gautam Budh Nagar, Noida, having plot no. GH 05A;
c. Hold opposite parties guilty of deficiency in services; unfair trade practices and restrictive trade practice;
d. Issue directions, orders to opposite parties to return all received amounts which comes to Rss.73,68,583/- with interest, along with 18% per annum interest (as charged by opposite party on minor delay) and Rs.10,00,000/- as liquidated damages for the delay in the Antriksh Group Housing Project namely, ‘Golf View, Phase I, Sector 78 Gautam Budh Nagar, Noida, UP 201 301, booked, allotted and finally purchased by complainants completed in habitable conditions, immediately and to obviate any further unexpected delay or cost on the complainants;
e. Direct the opposite parties to pay damages as per their own commitment and obligations while signing the allotment letter/ application form and agreement @ Rs.15 per sq ft per month;
f. Direct the opposite parties to return the interest amount received in August 2013 Rs.5.78 lakh along with interest @ 24%;
g. Direct opposite parties to compensate Rs.50,000/- per month for the delay in giving physical possession of the said flat as unable to take advantage of income tax of rebate along with rent of @ 22,000/- per month;
h. Direct the opposite parties to pay a sum of Rs.15,00,000/- towards mental, physical, emotional torture and agony caused to complainants;
i. Direct opposite parties to pay the cost of litigation amounting to Rs.5,00,000/- to the complainants;
j. Direct the opposite parties to refund the amount charged in respect of car parking to each of the complainants;
k. Direct the opposite parties to prepare the sale deed which covers the interest of both parties and share the registration of sale deed with the complainants along with layout plan of the flat before the signing of the sale deed;
l. Issue directions to the opposite parties to pay the amount of compensation equalling of lease of delay period as 4.5 years out of total 99 years which should not be less than @ 1.00 lakh per year;
m. Issue directions to the opposite parties restraining them from creating any third party right/ interests in any manner whatsoever in respect of the allotment apartments/ flats of the complainants in pendency of this complaint;
n. Issue directions to opposite parties restraining them from taking any coercive step/ action against the complainants which may affect the rights/ title/ interests of complainants in any manner whatsoever in respect of the said apartment/ flat (including water and electricity connection) of the complainants during pendency of this complaint; and
o. Grant any other relief which the complainants was found entitled under the facts and circumstances of the case in the interest of justice, fair play and equity and for upholding rule of law.
The complaint was resisted by the opposite party by way of a reply. The opposite party submits that the complainant did not pay the instalments in time due to which the allotment of the flat of the complainant had to be cancelled by the opposite party in August 2013. Opposite party states that the complainants requested to restore the allotment of their flat for which a fresh buyer agreement/ allotment letter was executed between the parties on 26.08.2013. The opposite party further states that the old buyer’s agreement/ allotment letter dated 21.06.2011 attached with the complaint stands cancelled by virtue of the new agreement dated 26.08.2013. The opposite party further alleges that the Hon’ble National Green Tribunal (NGT) banned construction activities within 10 kms radius of Okhla Bird Sanctuary on 17.09.2013 in petition no.158 of 2013 titled Amit Kumar vs UOI and Ors. The ban of the construction activities was a force majeure event for the opposite party as per clause 40 of the Buyer’s Agreement/ Allotment letter dated 26.08.2013. The complainants were offered possession of their flat in January 2016 and subsequently on 17.10.2018 along with demand letter were asked to make the balance payment against their allotted flat. However, till date the complainants had not made the payment on one pretext or the other. The opposite party further states that the complainants have been delaying the payment of their instalments due to which the complainant’s flat had to be cancelled earlier and was restored on his written request as a special case with fresh terms and conditions incorporated in the revised Buyers Agreement dated 26.08.2013, as mutually decided by the parties. The opposite party contends that the basic price of the flat was Rs.58,27,500/- for super area of 2100 sq ft and the total consideration was Rs.77,48,844/- out of which Rs.67,89,700/- has been paid by the complainant and Rs.27,41,174/- was still pending. The opposite party alleges that the complainants were defaulters in making payments even after restoration of the flat as well as executing a new Buyer Agreement/ Allotment letter on 26.08.2013. Hence, it is stated that the complaint be dismissed with exemplary cost.
I have heard the complainant who appeared in person and the learned counsel for the opposite party. Opposite party no.2 was deleted vide order dated 08.03.2017. I have also carefully perused and given thoughtful consideration to the material on record.
The complainant stated that he had booked a flat with opposite party on 03.05.2011 and was allotted flat no. M 1401 admeasuring 2025 sq ft at a basic price of Rs.56,19,375/-. Excluding other costs and payment of Rs.13,63,750/-, which was to be paid on possession, the total cost of the flat was Rs.69,83,125/-. He stated that 95% of the price was to be paid as per a Construction Linked Instalment Plan as and when the construction activity achieved the stages and the balance five percent was payable at the time of possession of the flat which was promised to be given in 12 months. Complainant avers that the opposite party neither completed the construction of the flat nor provided the promised infrastructure, which was a deficiency in service and unfair trade practice. Complainant has stated that a ‘Stop Construction Notice’ was issued by SSP, Noida against the opposite party for his lapses. He further submits that there was no change in the revised Buyer Agreement with regard to the date of delivery of possession of flat. Complainant further states that the new agreement was never part of the old agreement nor even accepted by the complainant.
Per contra learned counsel for the opposite party states that the complainants have deliberately concealed the facts of the case and that they did not make timely payments of instalments due to which the allotment of the flat of the complainant had to be cancelled in August 2013. Learned counsel for the opposite party also states that the complainants requested the opposite party to restore the allotment of their flat for which a fresh Buyer Agreement/ Allotment Letter was executed between the parties on 26.08.2013. The ban on construction activities was a force majeure event for the opposite party which delayed the project due to reasons beyond its control. Learned counsel for the opposite party submits that complainants were offered possession of their flat in January 2016 and subsequently on 17.10.2018 along with demand letter and were asked to make the balance payment due. However, till date the complainants have not made the payment and are avoiding the same on one pretext or the other in order to gain time. Hence, the learned counsel for the opposite party prays that the complaint be dismissed with cost.
From the foregoing, it is evident that the first Agreement/Allotment Letter between the parties was cancelled and another agreement was signed, on the ground that there was delay in making payments on the part of the complainant.
The preliminary objections of the opposite party have been considered. A five Member Bench of this Commission in the case of Renu Singh vs Experion Developers Pvt. Ltd. in CC no. 1703 of 2018, decided on 26.10.2021 has held pecuniary jurisdiction under the Act, following the judgment in Ambrish Kumar Shukla and 21 Ors vs Ferrous Infrastructure Pvt. Ltd., I 2017 CPJ 1 (NC) would be the aggregate of claims of the complainant(s). In a catena of judgments the Hon’ble Supreme Court as well as this Commission have held that a complainant cannot be made to wait for the possession of a flat booked for an indefinite period in case he has paid instalments in time and was not a defaulter. In the instant case, not only was there a default leading to cancellation, there was also a default after a new Agreement was executed. It is, however, also a fact that the offer of possession was made in August 2016, During oral submissions, it was stated by the leaned counsel for the opposite party that occupation certificate has been received in the year 2018 for the flat that should have been completed in December 2013 (plus six months) or June 2014. There is, therefore, an admitted delay, although the opposite party’s contention is that this was due to the orders of the NGT which constituted a force majeure event and should be excluded. In view of the fact that following the order of the NGT, the issuance of Occupation Certificates were put on hold in respect of buildings within a 10 km radius from the Okhla Bird Sanctuary, and it is not disputed that the construction of the flat in question fell within this area. The delay in the receipt of occupation certificate is therefore, justified and can be condoned to the extent of the period from 17.09.2013 to 19.08.2015. For the balance period, the opposite party is liable to pay the complainant compensation for the delay, till the date of offer of possession.
The Hon’ble Supreme Court in Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, CA No. 6044 of 2019 decided on 07.04.2022 held that the interest to be paid has to be restitutionary and also compensatory and has to be paid from the date of the respective deposits and that a rate of 9% simple interest per annum is fair and just.
In view of the foregoing discussion, the complaint is liable to succeed in the facts and circumstances of the case. Therefore, the complaint is allowed with the following directions:
(i) opposite party shall refund the entire amount deposited by the complainant along with 9% simple interest per annum from the respective dates of deposit till the date of this order;
(ii) this order shall be complied within eight weeks failing which penal interest of 12% shall be paid; and
(iii) opposite party shall also pay litigation cost of Rs.25,000/- to the complainant.
All pending IAs, if any, stand disposed of with this order.