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Judgment
Heard Mr. Kishan Rawat, Advocate, for the complainant, Mr. Chaitanya, Advocate, for opposite party-1 and Mr. Shantanu Krishna, Advocate, for opposite party-2.
Madhulekha Sawhney has filed CC/89/2017 for directing the opposite parties to (i) handover possession of the flat allotted to her, complete in all respect within reasonable period and execute Flat Buyer’s Agreement and Maintenance Agreement, in her favour; (ii) pay delay compensation in the form of interest @21% per annum on his deposit from March, 2009 till actual handing over possession; (iii) restrain the opposite parties from charging interest on the balance amount for delayed or deferred period; (iv) restrain the opposite parties from realizing any amount for power backup, club membership, sinking fund and other charges, mentioned in the statement of account dated 11.01.2016 & 08.08.2016 till handing over possession, completion of the entire project and all common facilities; (v) pay Rs.20/- lakhs, as compensation for mental agony and harassment; (vi) pay the costs of litigation; and (vii) any other relief which is deemed fit and proper in the facts and circumstances of the case.
The complainant stated that M/s. Shipra Estate Limited & Jai Kishan Estate Developers Pvt. Ltd. (opposite party-1) were companies, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project and selling its unit to the prospective buyers. Ghaziabad Development Authority is a statutory authority, constituted under U.P. Urban Planning and Development Act, 1973. The opposite parties launched a group housing project, in the name of “Shipra Krishna” at Ahinsa Khand, Indirapuram, Ghaziabad in the year 2006 and made wide publicity of its facilities and amenities. Believing upon the representations of the opposite parties, the complainant booked a flat on 26.09.2006 and deposited booking amount of Rs.500000/-. Opposite party-1 allotted Flat No.Gulmohar-1301, for a consideration of Rs.11465640/-, vide Allotment Letter dated 07.04.2007. Balance amount was payable in 7 instalments from 06.05.2007 till 31.10.2008. Opposite party-1 revised the price to Rs.10976100/-, accordingly the amount of instalments were also revised and informed the complainant vide letter dated 11.05.2007. Clause-9 of the allotment letter provides that construction of the building is likely to be completed within 22 months from the date of commencement of construction. Till August, 2008, no construction activity was started on the site although the complainant paid instalments on time till May, 2008. The President, Srishti Welfare Society held a meeting with Mr. Mohit Singh, Managing Director, of Shipra Estate Limited, who assured to arrange new construction equipment and work force and complete the buildings Gulmohar, Deodar and Amaltas till May, 2009. He also assured that no interest would be charged from the buyers, for delay in payment of instalments. The President informed the buyers through letter dated 28.02.2008 about the above decisions. Opposite party-1 however, further delayed the construction hence vide letter dated 26.08.2009, addressed to Srishti Welfare Society, offered delay compensation from January, 2009 till July, 2009 @Rs.5/- per sq.ft. per month and from August, 2009 @Rs.7/- per sq.ft. per month. Opposite party-1, vide letter dated 23.10.2009 written to the complainant, offered delay compensation from January, 2009 till July, 2009 @Rs.5/- per sq.ft. per month and from August, 2009 @Rs.8/- per sq.ft. per month. Opposite party-1, vide letter dated 24.08.2009, informed the complainant that discount @Rs.5/- per sq.ft. per month would be adjusted in the balance instalment and w.e.f. August Rs.139150/- would be adjusted in balance quarterly instalment. The buyer offered delay compensation to some of the buyers, in the form of interest @7% per annum of their deposit from August, 2009. Thereafter, the builder did not entertain any communication of the buyers. The builder, vide letter dated 19.02.2010 informed the buyers of Palash-501 that balance instalment would be payable at the time of offer of possession. The builder vide letter dated 12.06.2013 informed that that the construction of building nos. 1 and 2 was completed, “partial completion certificate” was awaited and delivery of possession was expected till September, 2013 and in case of delay after September, 2013, interest @14% per annum would be paid. Opposite party-1, vide letter dated 07.06.2014, informed the complainant that possession would be delivered by August, 2014. Opposite party-1, through email dated 24.04.2015, offered possession to the buyers in building nos. 1 and 2, including the complainant along with final statement of account. In final statement of account, opposite party-1 demanded interest of Rs.1976467/- for delayed payment, maintenance charges and other charges and adjusted delayed compensation till October, 2014. Opposite party-1, vide email dated 11.01.2016, demanded amount balance amount, completion of documentation and taking possession. The complainant, through emails dated 20.02.2016, 07.03.2016, 13.06.2016, 18.06.2016 and 26.07.2016, inquired about the status of amenities but opposite party-1 did not respond. Opposite party-1, vide email dated 11.08.2016, issued reminders for deposit balance amount of Rs.8517679/-, compete formalities of registration of conveyance deed and take possession. The complainant, vide email dated 18.08.2016, protested email dated 11.08.2016. Then this complaint was filed on 12.01.2017, alleging deficiency in service.
Opposite party-1 (the builder) has filed its written reply on 15.05.2017, in which, booking of the flat on 26.09.2006, allotment of Flat No.Gulmohar-1301, on 07.04.2007 and deposits made by the complainant, are not disputed. The builder stated that the complainant paid instalment on 28.07.2007, which was payable till 06.05.2007, on 31.10.2007, which was payable till 31.07.2007, on 01.02.2008, which was payable till 31.01.2008 and on 01.05.2008, which was payable till 30.04.2008 although demand/reminders letter were given. Thereafter stopped payment of instalments payable on 31.07.2008 and 31.10.2008 as such interest accrued on it due to delay in payment of instalment. The builder, through letter dated 13.03.2009, revised payment plan of balance instalments, which was duly communicated. As per revised plan, the remaining instalments were payable on or before 31.03.2009, 30.06.2009, 30.09.2009 and 30.11.2009 but the complainant did not deposit any instalment. The builder was facing financial difficulties in completing the project, which was duly apprised to the customers through letter dated 19.08.2009. The builder, vide letter dated 24.08.2009, apprised the complainant that the delay compensation would be adjusted against outstanding dues. The builder, vide letter dated 23.10.2009, apprised the complainant that the delay compensation of Rs.46383/- had been adjusted against outstanding dues and tentative date of possession would be up to 30.06.2010. The builder, vide letter dated 14.01.2012, informed the complainant that after adjusting the delay compensation payable up to 31.12.2011, a sum of Rs.1610705/- was payable and rescheduled it in three equal instalments payable on or before 31.01.2012, 25.02.2012 and 20.03.2012 but the complainant did not deposit any instalment. The builder, vide letter dated 18.10.2012, demanded total dues of Rs.3118120/- + Rs.2591540/- (total Rs.5709660/-) + registration charges. The builder vide letter dated 11.06.2013, informed that possession would be given till September, 2013 and requested to deposit balance amount till 01.07.2013 The builder vide Credit Note dated 04.07.2013, informed that after adjusting delay compensation, total Rs.2041019/- was payable. The complainant held meeting with the officials of the builder on 12.03.2014, in which she was informed that permissive possession of building-2 was started and permissive possession of building-1 would be started by April, 2014. The builder, through email dated 15.03.2014, informed that after adjusting delay compensation, basic sale price and Service tax of Rs.1188560/- was due. The complainant, vide email dated 16.03.2014, made query in respect of delay compensation after December, 2012. The builder, through letter dated 07.06.2014, supplied statement of account of the complainant and requested to deposit balance amount and informed the complainant that final finishing work was going on in his unit and possession would be handed over till August, 2014. The interest as charged by the builder for delayed payment of instalment was clarified vide email dated 06.07.2015. The construction was completed till October, 2014 and the builder applied for “completion certificate”. Statement of account of the complainant was on 11.09.2015. The complainant was offered possession, vide letter dated 11.01.2016. About 74 buyers have taken possession but the complainant did not turn up. The builder issued reminder dated 11.08.2016, 08.09.2016 and 04.01.2017 to the complainant to complete the formalities and take possession. The construction was delayed for force majeure reasons. Immediately after floating the project, the builder issued work order to M/s. CTC Geotechnical Pvt. Ltd. on 12.07.2007. Later on it was observed that the contractor was not working satisfactorily as such new contractor namely M/s ATR Construction (P) Ltd. was engaged on 15.11.2011. Real Estate Industry saw adverse market scenario from 2008, which continued throughout thereafter. Due to deflation in market, the various allottees, including the complainant stopped payment of the instalments, since 2008, which created paucity of fund and Rs.32/- crores had become due. Outstanding dues against the complainant was about Rs.3024660/- on 13.03.2009, after adjusting delay compensation and rescheduling the balance amount but the complainant did not start payment. Delay in completion of the project resulted in escalation of costs, causing heavy loss to the builder. Even then the builder completed the project. Demands raised by the builder were in terms of allotment letter. There was no deficiency in service on their part.
Ghaziabad Development Authority (opposite party-2) has filed its written reply on 10.08.2017. Opposite party-2 stated that for development of Module-II Indirapuram Residential Scheme, tenders were invited. Bid of M/s. Shipra Estate Limited & Jai Kishan Estate Developers Pvt. Ltd. (a partnership firm) was most suitable and accepted and a Memorandum of Understanding was executed on 08.01.2001, under which, the developer had responsibility to develop the scheme as per approved layout plan and right to sell its unit. Opposite party-2 has only obligation to execute sub-lease deed in favour of the buyer as and when it is provided by the developer.
The complainant filed Rejoinder Replies to the Written Reply of opposite party-1 and 2, Affidavit of Evidence and Affidavit of Admission/Denial of documents of Ravi Sawhney, documentary evidence. Opposite party-1 filed Affidavit of Evidence and Affidavit of Admission/Denial of documents of Amit Walia and documentary evidence. Opposite party-2 filed Affidavit of Evidence of Suraj Singh, Affidavit of Admission/Denial of documents of C.P. Tripathi and documentary evidence. All the parties have filed their written submission.
We have considered the arguments of the parties and examined the record. Clause-9 of the allotment letter dated 09.04.2007 provides that construction of the building is likely to be completed within 22 months from the date of commencement of construction. Nobody has given the date of commencement of the construction as such due date of possession is being considered from the date of allotment and expired on 08.02.2009. According to the builder, the construction was completed in October, 2014 and they applied for issue of “completion certificate”, which was issued on 19.10.2015 and possession was offered on 11.01.2016. In final statement of account, delay compensation of Rs.3624638/-, was paid till October, 2014 as per Clause-11 of the allotment letter, which provides for delay compensation subject to force majeure and other circumstances as given under clause-10 and letter dated 23.09.2009.
The builder took plea that the construction was delayed for force majeure reasons. Immediately after floating the project, the builder issued work order to M/s. CTC Geotechnical Pvt. Ltd. on 12.07.2007. Later on, it was observed that the contractor was not working satisfactorily as such new contractor namely M/s ATR Construction (P) Ltd. was engaged on 15.11.2011. Real Estate Industry saw adverse market scenario from 2008, which continued throughout thereafter. Due to deflation in market, the various allottees, including the complainant stopped payment of the instalments, since 2008, which created paucity of fund and about Rs.32/- crores had become due, consequently construction was delayed.
As per allotment letter, instalments were payable on 06.05.2007, 31.07.2007, 31.10.2007, 31.01.2008, 30.04.2008, 31.07.2008 and 31.10.2008. The complainant made payments on 28.07.2007, 31.10.2007, 01.02.2008 and 01.05.2008 (total amount of Rs.6158440/- out of sale price of Rs.10976100/-) as such interest accrued on it due to delay in payment of instalment. The complainant stopped payment in spite of demand. The builder, vide letter dated 13.03.2009, revised payment plan of balance instalments and communicated to the complainant. As per revised plan, remaining instalments were payable on or before 31.03.2009, 30.06.2009, 30.09.2009 and 30.11.2009 but the complainant did not deposit any instalment. On the request of the complainant, the builder again through letter dated 14.01.2012, rescheduled the instalments payable on 31.01.2012, 25.02.2012 and 20.03.2012, adjusting delay compensation. The builder again vide letter dated 18.10.2013, asked the complainant to deposit the balance amount of Rs.3118120/-. According to the complainant, demand of instalment was deferred due to delay. The complainant placed reliance of a letter dated 28.02.2008, written by the President, Srishti Welfare Society. There is no any letter of the builder for deferring payment of instalment. On the other hand, the builder through out demanded instalments. From the above facts, it is proved that the complainant was defaulter in deposit instalments since May, 2008. Supreme Court in Prasant Kumar Shahi Vs. Ghaziabad Development Authority, (2000) 4 SCC 120, held that the builder was not expected to deliver possession in the absence of payment of agreed amount. The buyer is liable to pay interest on the dues.
Supreme Court, in Ireo Grace Realteck Private Limited Vs. Abhishek Khanna, (2021) 3 SCC 241, held that once possession was offered after obtaining “occupation certificate” then the home buyer is obligated to take possession after deposit of balance amount. The complainant, however, relying upon the judgment in Utpal Trehan Vs. DLF Home Developers Ltd., (2022) 10 SCC 409, submitted as offer of possession was accompanied by a demand letter, in which, illegal demands were made as such offer of possession was invalid. In the complaint, demand of interest for deferred period and non-payment of delay compensation till offer of possession have been challenged. In the written argument demands for “Terrace Area Charge” and “Sinking Fund” have also been challenged.
We find that there is no evidence to prove that the builder has ever deferred payment of the instalment rather the builder has throughout raised demand. The complainant was allotted penthouse as such, the terrace will be in her exclusive use and charge in this respect cannot be said to be illegal. “Sinking Fund” was charged as per clause-19 of the allotment letter. In the fact that the complainant was a rank defaulter, the builder decided to adjust delay compensation till October, 2014 then the complainant at his own level cannot say that demand was illegal.
ORDER
In view of the aforesaid discussions, the complaint is partly allowed. Opposite party-1 is directed to issue fresh statement of account charging interest @9% per annum on the balance amount payable by the complainant after 12.01.2016, within a period of one month from the date of this judgment. The complainant will be given one month time to deposit the balance amount. On deposit of the balance amount, the opposite parties will execute conveyance deed and handover possession of the flat allotted to the complainant complete in all respect within six weeks thereafter. If the complainant fails to deposit the balance amount, opposite party-1 shall cancel the allotment of the complainant and return the amount deposited by the complainant with interest @9% per annum from the date of respective deposit till the date of refund, after deducting 10% of the basic sale price of the flat, within a period of two months thereafter.