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Judgment
Subhash Chandra, Member
This complaint has been filed under section 21 of the Consumer Protection Act, 1986 (in short, ‘the Act’) alleging deficiency in service and unfair trade practice on account of delay in handing over the possession of the flat booked with the opposite party in a project promoted and developed by it.
The facts of the case in brief are that the complainant had booked a flat no. I 1-504 in ‘Imperial Court’ at Jaypee Greens, Noida a project of the opposite party for a sale consideration of Rs.1,67,75,600/- on 11.10.2010. An apartment measuring 3440 sq ft was provisionally allotted vide provisional allotment letter dated 22.01.2011 which indicated the date of delivery of the apartment within 30 months from that date, i.e., by 21.07.2013. The opposite party offered possession of the said flat on 29.07.2016 and a sale deed was executed on 24.09.2018. The complainants have taken possession of the apartment and sought compensation for the delay in handing over the flat along with contesting the increased super built up area by 8.39%, i.e., 3728.65 sq ft as against 3440 sq ft indicated at the time of booking of the flat. The complainants paid the sale consideration by way of various instalments from time to time. The complainant has approached this Commission with the following prayer:
i. Direct the opposite party to hand over possession of apartment to the complainants, complete in all respect and in conformity with the provisional allotment letter and for the consideration mentioned therein, with all additional facilities and as per quality standards promised, and execute all the necessary and required documents in respect of the said apartment in favour of the complainants;
ii. Direct the opposite party to withdraw its demand for additional amount from the complainants on the pretext of increase in super area and limited common areas;
iii. Direct the opposite party company to give car parking space as promised;
iv. Direct the opposite party to withdraw its demand for service tax and refund the service tax already collected from the complainants along with at the rate of 6% per annum from the date of deposit till the date of refund.
v. Direct the opposite party to pay interest @ 12% per annum on the amount deposited by the complainants with opposite party – company, with effect from 30 months from the date of provisional allotment letters, till the date actual physical possession as per clause (i), (ii) (iii) and (iv) above is handed over by the opposite party along with all necessary documents and common areas and facilities;
vi. Direct the opposite party to pay a sum of Rs.3,00,000/- to the complainants, as a whole, towards litigation costs including mental agony; and
vii. Pass any other and further relief which the Hon’ble Commission thinks fit and proper in the fact and circumstances of the case in favour of the complainant and against the opposite party.
The complaint was resisted by way of a reply filed by the opposite party. The opposite party has stated that as there was no deficiency in service or any unfair trade practice in view of the applicability of force majeure conditions. It is contended by the opposite party that in view of the clause relating to arbitration, this complaint is not maintainable. It is further contended that indication of 30 months for the completion of the project was only indicative, subject to ‘best effort’. In view of the serious law and order problem due to the agitation by farmers, overall economic slow-down, orders of the National Green Tribunal (NGT) dated 11.01.2013 restraining all builders from utilising ground water for construction activities and orders of the NGT dated 14.08.2013 in the case of Amit Kumar vs Union of India and Ors., restraining construction within 10 kms of the Okhla Bird Sanctuary, the project was delayed due to reasons not attributable to the opposite party. It is submitted that despite these constraints the opposite party has completed nearly 5000 apartments, a 500 bedded hospital, school, golf course, shopping complex, roads, security infrastructure, temporary club and parks. It is also contended that as per the letter of offer of possession dated 29.07.2016, a discount of Rs.9,38,696/- was given to the complainant as compensation for delay in advance and that the opposite party was prepared to provide higher compensation at the rate of Rs.10 per sq ft., stipulated as per the clause 7.2 of the application for provisional allotment to the complainant.
Parties have led their evidence. We have heard the learned counsel for the parties and have carefully considered the records. During the course of the argument the learned counsel for the complainant submitted that the prayer against the increase in the super area was not being pressed in view of clause 6.8 of the application form for provisional allotment of an apartment as it is well within the provisions of 10% variation on this account. It was also submitted that only the prayer relating to delay in possession was being urged. In support of the prayer that no charges be levied for parking provided, reliance has been placed on the judgment of the Hon’ble Supreme Court in Nahalchand Laloochand (P) Ltd., vs Pancholi Cooperative Housing Society Ltd., in Civil Appeal no. 3544 of 2010 and section 3 of the UP Apartment Act, 2010 which provides for basement and parking areas to be for common use under the definition of “common areas and facilities”.
On behalf of the opposite party it was argued that possession has already been handed over and upfront compensation of Rs.9,38,696/- had already been extended on account of delay to the complainants. It was further argued that the Hon’ble Supreme Court in the case of Utpal Trehan vs DLF Home Developers Ltd., CA – 4691 – 92 of 2022 has held that since the quantum of compensation had been enhanced by the builder himself, with provision for enhancement for delay by allottee in taking possession, the National Commission should have upheld 6% interest by modifying the contractual terms. He has also relied upon the judgment of the Hon’ble Supreme Court in the case of Supertech Ltd., vs Rajni Goyal – CA 6649-50/ 2018, wherein it had been held that delay should include the grace period in calculating the delay for compensation.
Opposite party also relied on this Commission’s order in CC no.3063 of 2017 in Ashwinder Behl and Ors vs M/s MGF Developments Ltd. and Ors., that compensation at 6% be only considered from the date of offer of fit out till the offer of possession as compensation for delay, if at all. The judgment of the Hon’ble Supreme Court in Wg Cdr Arifur Rahman Khan and Aleya Sultana and Others vs DLF Southern Homes Pvt. Ltd., and Others (2020) 16 SCC 512 that interest at 6% from the due date of possession till the offer of possession is a fair compensation for the delay in possession has also been relied upon by the opposite party.
It is evident that there has been delay in the offer of possession by the opposite party to the complainants. Against the promised date of 21.07.2013 for possession, the offer of possession was actually dated 29.07.2016. It is not disputed that an upfront discount for delay was provided. The agreement of the opposite party that since the discount had provided upfront as compensation for the delay and it was prepared to offer a higher discount per sq ft in terms of the judgment of the Hon’ble Supreme Court in Utpal Trehan vs DLF Home Developers Ltd., (supra), however, cannot be considered since that case is distinguishable on account of the fact that the agreement itself provided for enhancement of compensation for delay. In the instant case there has been a discount offered at the time of booking, but, there is no other clause which has been brought to our notice by the opposite party stating that enhancement of compensation for the delay was a part of the original agreement.
In the light of the above, it is held that the complainant is entitled for refund for the delay in handing over the possession of the apartment booked by them. Accordingly, it is ordered that compensation from the promised date in handing over the flat, i.e., 21.07.2013 to the actual date of offer of possession, i.e., 29.07.2016 be paid by the opposite party to the complainants at the rate of 6% per annum on the deposited amount (which includes the upfront discount of Rs.9,38,696/-) as on 21.07.2013. In addition, litigation cost of Rs.50,000/- will be paid by the opposite party.
The complaint is disposed off with these directions.