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Judgment
R.K. Agrawal, President Member
The present Execution Application has been filed by Jitendra Kumar and Sarita Rajput, Complainants/ Decree Holders against M/s DLF Home Developers Limited (hereinafter referred to as Opposite Party / Judgment Debtor).
Brief facts of the case are that the Complainants booked a residential Apartment in ‘DLF Capital Greens’ Project to be developed by Judgment Debtor. Despite being deposited a substantial amount with the Judgment Debtor when the possession of the Apartment was not offered to the Complainants till expected date of delivery of Apartment, Consumer Complaint was filed before this Commission. This Commission vide Final Order and Judgment dated 03.01.2020, partly allowed the Complaint and directed as under:
It transpired during the course of arguments that the OP has demanded holding charges and maintenance charges from the allottees. As far as maintenance charges are concerned, the same should be paid by the allottee from the date of possession is offered to him unless he was prevented from taking possession solely on account of the OP insisting upon execution of the Indemnity-cum- Undertaking in the format prescribed by it for the purpose. If maintenance charges for a particular period have been waived by the developer, the allottee shall also be entitled to such a waiver. As far as holding charges are concerned, the developer having received the sale consideration has nothing to lose by holding possession of the allotted flat except that it would be required to maintain the apartment. Therefore, the holding charges will not be payable to the developer. Even in a case where the possession has been delayed on account of the allottee having not paid the entire sale consideration, the developer shall not be entitled to any holding charges though it would be entitled to interest for the period the payment is delayed.
37. For the reasons stated hereinabove, the complaints are disposed of with the following directions:
(i) The OP is entitled to the additional demand on account of increase in the super area of the apartments.
(ii) The OP is not entitled to car parking charges.
(iii) The OP is not entitled to club charges.
(iv) The allottees shall be entitled to early payment rebate and timely payment rebate, wherever they have complied with the terms on which the said rebates were offered by the developer or wherever the benefit of the said rebates was extended to them, either by the developer itself or by this Commission.
(v) The OP shall pay compensation in the form of simple interest @7% per annum from the expected date for delivery of possession till the date on which the possession was actually offered to the allottees. In case of subsequent purchasers, the period expected for the delivery of possession will be computed from the date of purchase by them.
If the possession was delayed solely on account of the allottee having not executed the Indemnity-cum-Undertaking, prescribed by the OP, the compensation in the form of simple interest @ 7% per annum shall be payabie with effect from the expected date for delivery of possession till the date on which the consumer complaint by/on behalf of such an allottee was instituted. The compensation shall be paid within a period of three months from today.
(vi) The car parking charges and club charges wherever already paid to the developer shall be refunded to the concerned allottee within three months from today, failing which the said charges shall carry interest @ 9% per annum from the date of this order, till the date of refund.
(vii) The conveyance deed in favour of the allottees shall be executed within three months from today, subject to payment of outstanding dues, if any, payable by the allottees to the developer, in terms of this order and the requisite stamp duty and registration charges.
(viii) In CC/351/2015 and CC/2047/2016, the developer shall pay 50,000/- as the cost of litigation in each complaint whereas in the other consumer complaints, the developer shall pay 46,000/- as the cost of litigation in each.”
The Complainants have averred that the Opposite Party / Judgment Debtor has not complied with the directions given by this Commission vide Order dated 03.01.2020. Feeling aggrieved the Complainants/ Decree Holders have filed the present Execution Application with the following prayer:-
“a. Direct the Respondent to provide the physical possession of the Unit bearing No. CGN236, Floor No. 23rd, Building No. N, Block-6, Apartment Area Approx. 1193 sq. ft. and super area approx. 1520 sq. ft. on priority basis;
b. Necessary action may kindly be taken against the respondent / judgment debtor under Section 25 & 27 of the Consumer Protection Act, 1986 by punishing the respondent for not implementing the Order dated 03.01.2020; and
c. That this Hon’ble Commission be pleased to direct the Opposite Party/Judgment Debtor to pay compensation in the form of simple interest @7% p.a. as per calculation made in para 11 to the tune of 48,30,461/- till the filing of this application and any additional compensation which may accrue till the final possession is handed over to the Applicant.
d. Pass necessary orders against the respondents as contemplated under section 25(3) of the Consumer Protection Act, 1986;
e. Pass an order burdening the respondents with extra costs;
f. Pass such order(s) in favour of the applicants as this Hon’ble Commission may deem fit in the facts and circumstances of the case.
Mr. Anand Prakash, learned Counsel appearing on behalf of the Decree Holder submitted that the Impugned Order dated 03.10.2020 passed by this Commission was challenged by the Judgment Debtor before the Hon’ble Supreme Court by filing Civil Appeal No.3864-3889 of 2020.The Hon’ble Supreme Court vide Order dated 14.12.2020 modified the Order dated 03.01.2020 passed by this Commission, in following terms:-
(i) The compensation on account of delay in handing over possession of the flats to the flat buyers is reduced from 7% to 6%; and
(ii) The direction for the refund of parking charges and club charges and interest on these two components shall stand set aside. ”
He further submitted that on the basis of Orders passed by the Hon’ble Supreme Court and this Commission, the Decree Holders are entitled for the compensation as enumerated in following Table I :-
Calculation from 25.09.2012 (expected date of delivery ) till filing of the Original Consumer complaint dated 22.11.2017
Amount
Dated
Expected date of possession as per the BBA dated.09.04.2010
Date of filing of the case
No of days from 25.09.2012
till 22.11.2017
Interest calculation @6%
Booking amount
7,50,000
25.09.2009
25.09.2012
22.11.2017
1884
2,32,273.973
Payment though Bank
77,00,000
25.01.2010
25.09.2012
22.11.2017
1884
23,84,679.45
Self-Payment
2,97,817
21.01.2010
25.09.2012
22.11.2017
1884
92,233.5169
EPR
11,64,890
25.01.2010
25.09.2012
22.11.2017
1884
3,60,764.837
30,69,951.78
He submitted that the Judgment Debtor has calculated the interest for delayed delivery of possession only upto the date of offer of possession, i.e., 27.06.2017, whereas the Decree Holders are entitled for compensation upto the date of filing of the Complaint, i.e., 22.11.2017.It was further submitted that as per offer of possession, the outstanding amount payable by the Decree Holders was only 19,76,257.59ps. which was to be paid on or before 11.08.2017 but as per Affidavit submitted by Judgment Debtor, as on 12.04.2021 the Outstanding Amount is 25,75,802/- (20,60,624 and 5,15,178/-).
It was further argued that the Decree Holders have bought the Apartment under the Down Payment Plan by taking home loan from HDFC Bank and therefore, they are entitled for two types of rebate, i.e., Early Payment Rebate and Down Payment Rebate.But the Judgment Debtor has credited only a sum of 11,64,890/- towards Early Payment Rebate but failed to credit the Down Payment Rebate, i.e., 500/- per sq. ft., which comes to 8,14,000/- (500 X 1628 sq. ft.).
It was further submitted that after getting the Orders both from this Commission and Hon’ble Supreme Court, the Decree Holders have written various Emails on different dates to the Judgment Debtor, who being in dominant position, is holding the Apartment illegally.Therefore, in addition to above, the Decree Holders are also entitled for the compensation as enumerated in Table II below:-
Amount
Dated
Expected date of possession
As on today
Delays of days
Amount calculated @ 6%
Booking
7,50,000
25.09.2009
04.01.2020
13.12.2021
709
87,410.96
Payment though Bank
77,00,000
25.01.2010
04.01.2020
13.12.2021
709
8,97,419.18
Self-Payment
2,97,817
21.01.2010
04.01.2020
13.12.2021
709
34,709.96
EPR
11,64,890
25.01.2010
04.01.2020
13.12.2021
709
1,35,765.54
11,55,305.63
It was further submitted that the Decree Holders are entitled for compensation of 50,39,257.41ps. (30,69,951.78ps. as per Table I + 8,14,000/- towards Down Payment Rebate + 11,55,305.63ps. as per Table II) and after deducting a sum of 19,76,257.59ps. as outstanding charges as per demand of Judgment Debtor, the net amount payable to the Decree Holders is 30,87,999.82 ps.It was prayed that the present Execution Application be allowed and the Judgment Debtors be directed to pay 30,87,999.82ps.
Per contra, Mr. Pravin Bahadur, learned Counsel appearing on behalf of the Judgment Debtor has denied all the allegations leveled by the Decree Holders.It was submitted that the DH are not entitled for Timely Payment Rebate (TPR) because as per Clause 1.4(b) of the Agreement, the TPR was applicable for the allottees who had made timely payment of their instalments but in the present case the DH had defaulted in payments of installment on 09.11.2009 by 77 days, 25.12.2009 by 31 days and 29.10.2013 by 508 days as is evident by Delayed Payment Statement (Page 168 of Reply to the Complaint) and as per the Impugned Order dated 03.01.2020 the TPR is applicable only if the Complainants have complied with the terms on which such rebate was offered.
It was further submitted that the DH had not opted for Down Payment Plan but had opted for Construction Linked Payment Plan as is evident from the Schedule of Payment in the Apartment’s Buyers’ Agreement (Page 124 of the Reply to the Complaint) as also from the Para 7 of the Evidence by way of Affidavit filed by the DH in which DH have stated on oath that they had opted for the Construction Linked Payment Plan, therefore, DH are not entitled for Down Payment Plan rebate.
It was also submitted that the DH had illegally demanded interest @6%p.a. on Early Payment Rebate since vide Order dated 03.01.2020, this Commission has clearly directed that the Early Payment Rebate wherever applicable shall be credited to the allottees and the Early Payment Rebate being in the nature of rebate is not part of any amount paid by the Allottee to the Company and as such does not attract any interest on it.They have already credited the Early Payment Rebate in the account of DH but they are not entitled for any interest on it.
It was further submitted that during the pendency of the Complaint, despite directions given by this Commission vide Order dated 22.02.2018 that the Respondent Company will give possession to the Complainant/DH after taking the amount payable to the Company, without prejudice to the respective rights and contentions of the Parties, the DH did not come forward to take possession.Vide Order dated 20.11.2018 this Commission again directed the Complainant/DH to pay the entire outstanding amount to the Respondent Company by way of Demand Draft and to take possession, but DH never come-forward to take possession of the Unit.Therefore, it is the Decree Holder who failed to comply with the directions given by this Commission and to take the possession. It was further submitted that in pursuance of Judgment passed by the Hon’ble Supreme Court, they vide letter dated 19.01.2021 requested the DH to make the outstanding payment and take the possession of the Unit.Again vide communication dated 05.02.2021 followed by reminder dated 23.02.2021, they requested the DH to submit the No Objection Certificate from HDFC Bank from which they had obtained house loan, but the DH failed to make the outstanding due and complete the formalities including submission of the NOC from HDFC Bank, requisite for taking possession and registration of the Conveyance Deed.In terms of the Impugned Order passed by this Commission merged with the Order passed by the Hon’ble Supreme Court, the Complainants/DHs are entitled for compensation till the date of actual date of offer of possession, i.e. 27.06.2017.It was further submitted that it is the settled principle of law that the Executing Courts cannot go beyond the decree at the stage of Execution, therefore, the Decree Holders are not entitled more than the awarded amount in the Decree.
It was submitted in terms of Impugned Order dated 03.01.2020 merged with Judgment passed by the Hon’ble Supreme Court, after adjusting the Compensation payable, the Decree Holders are liable to pay the amount as enumerated in following Table No. 3:-
Unit No. CGN236
Compensation Payable @6% till offer of Possession dated 27.06.2017
25,22,317/-
Cost of litigation
25.000/-
Less:
Outstanding as on date
20,60,624/-
Balance Delayed Interest as on 14/12/2020
As per para 36 Judgment dated 03.01.2020 of this Commission)
5,15,178/-
Net payable in favour of
“DLF Home Development Ltd.”
28,485/-
CAM Charges till 31 st December 2018 payable in favour of
“Sivaji Marg Maintenance Service Ltd.”
As per Para 36 of Judgment dated 03.01.2020 of this Hon’ble Commission.”
92,306/-
Amount towards IBMS payable in favour of
“CG CONDOMINIUM OWNERS ASSOCIATION”
1,62,800/-
CAM charges from 1 st Jan’ 2019 till 1 st March 2021 is payable in favour of
“CG CONDOMINIUM OWNERS ASSOCIATION”
Payable by 15 th Feb’ 2021
(As per Para 36 of Judgment dated 03.01.2020 of this Hon’ble Commission)
2,30,282/-
Total Payable to CG CONDOMINIUM OWNERS ASSOCIATION
3,93,082/-
It was prayed that the DH be directed to pay the outstanding amount, submit the requisite documents and take steps towards taking possession and registration of Conveyance Deed.
I have heard Mr. Anand Prakash, learned Counsel appearing on behalf of the Complainants/Decree Holders, Mr. Pravin Bahadur, learned Counsel for Judgment Debtor, given a thoughtful consideration to the various pleas raised by the learned counsel for the Parties and perused the averments made in the Application as also the Order dated 03.01.2020 passed by this Commission in bunch of Consumer Complaints including CC No. 3441 / 2017 “Jitendra Kumar & Anr. vs. M/s DLF Home Developers Limited” as also the Order dated 14.12.2020 passed by the Hon’ble Supreme Court, which is sought to be executed by means of the present Execution Application.
It is settled principle of Law that the Executing Court cannot go beyond the Decree.In terms of the Order dated 03.01.2020 passed by this Commission merged with the Order dated 14.12.2020 passed by the Hon’ble Supreme Court, the Decree Holders are entitled for compensation @6% w.e.f. 25.09.2012, i.e., expected date of offer of possession till 22.06.2017, i.e., date of offer of possession.Although the Decree Holders are entitled for Early Payment Rebate (ERP), which has already been credited in their account, yet they are not entitled for any interest on this ERP as it is a kind of rebate and not a payment which has been deposited by the Decree Holders with the Judgment Debtor. The Decree Holders are also not entitled for Timely Payment Rebate (TPR) as they had not complied with the terms by committing default in the payments of instalments of 09.11.2009 by 77 days, 25.12.2009 by 31 days and 29.10.2013 by 508 days. Accordingly, the Decree Holders are entitled for the compensation as enumerated in following Table:-
Date of Deposit
Amount
Expected date of possession as per the BBA
dated.09.04.2010
(A)
Actual Date of offer of possession
(B)
No of days from
From Colum
(A) to (B)
Interest calculation @6%
(in Rs.)
25.09.2009
7,50,000
25.09.2012
27.06.2017
1736
2,14,027
25.01.2010
77,00,000
25.09.2012
27.06.2017
1736
21,97,348
21.01.2010
2,97,817
25.09.2012
27.06.2017
1736
84,988
01.03.2015
1,79,896
01.03.2015
27.06.2017
849
25,107
Compensation in the form of Interest @6%
25,21,470
Add : Cost of litigation
25,000
Total Compensation
25,46,470
As per Decree, the Decree Holders are liable to pay Maintenance Charges from the date of offer of possession as also the interest on outstanding payment due to the Judgment Debtor.
The Judgment Debtor is directed to work out the final amount payable to / receivable from the Decree Holders after adjusting the compensation mentioned above and intimate the same to the Decree Holders within a week. The Decree Holders shall make the outstanding payment to the Judgment Debtor and submit the requisite documents alongwith stamp duty etc. within two weeks. After settling the accounts, the Judgment Debtor shall hand over the possession of the Apartment/Unit to the Decree Holders and execute the Conveyance Deed in favour of the Decree Holders within four weeks.
The Execution Application stands disposed off in above terms. The pending applications, if any, also stand disposed off.