Mohan Khanna vs Jai Prakash Associate Ltd

Subhash Chandra, Presiding 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 2-2701 in ‘Imperial Court’ at Jaypee Greens, Noida a project of the opposite party for a sale consideration of Rs.2,04,33,150/- on 11.10.2010. An apartment measuring 3510 sq ft was provisionally allotted vide provisional allotment letter dated 20.04.2011 which indicated the date of delivery of the apartment within 36 months from that date, i.e., by 19.07.2014. The Opposite party offered the possession of subject flat on 25.10.2016 which was a sham and was circulated in haste by opposite party to disclaim paying compensation for delay beyond 25.10.2016 and trapped the complainant into making all payments as well as to get the sub-lease deed executed prior to the completion of construction of the apartment. It was submitted by the complainant that subject apartment registered in his favour on 16.03.2017 as per sub-lease deed draft. The opposite party offered possession of the said flat on 23.03.2018, i.e., 44 months after the promised date of possession. The complainant has taken possession of the apartment and sought compensation for the delay in handing over the flat. The complainants paid the sale consideration by way of various instalments from time to time. The opposite party charged extra amount from complainant for two reserved stilt car parking slots at the time of allotment. Complainant also stated that allotment letter was amended by the opposite party vide letter dated 09.07.2012 whereby two more additional car parking slots were added. He has contested the increased super built up area to 3803.24 sq ft as against 3510 sq ft indicated at the time of booking of the flat. 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 as per quality standards promised;

ii. Direct the opposite party to pay interest @ 8% per annum on the amount paid by the complainant with the opposite party company, with effect from 39 months from the date of provisional allotment letter, i.e., from 19.07.2014 till the period of 45 days from the final payment of demand made in the ‘offer of possession’ had elapsed, i.e., 23.03.2017;

iii. Direct the opposite party to pay interest @ 12% per annum with effect from 23.03.2017 on the total amount paid by the complainant to the opposite party company till the date actual physical possession as per clause (i) is handed over by the opposite party;

iv. Direct the opposite party to refund the amount of Rs.16,69,915/- (Rs.15,98,158/- on account of alleged increased in super area and service tax of Rs.71,575/- thereon) charged from the complainant, on the pretext of increase in super area and service tax charged on the said increase in super area with interest @ 12% per annum from the date of deposit till the date of refund;

v. Direct the opposite party to refund the excess amount collected from the complainant towards car parking slot (s), with interest and give car parking slots as promised;

vi. Direct the opposite party to refund the amount collected towards social club membership and social club subscription charges, with interest @ 12% per annum from the date of deposit till the date of refund;

vii. Direct the refund to pay interest @ 12% per annum on the stamp duty charges of Rs.10,91,500/- paid on 03.03.2017 for execution of the sub lease deed with effect from the date of payment till the date of handing over of physical possession of the apartment as per clause (i) above;

viii. Direct the opposite party to pay a sum of Rs.10,000/- per amount to the complainant on account of compensation for the absence of the social club, till the date the social club is made ready for use by the complainant and other allottees of the project;

ix. Direct the opposite party to pay a sum of Rs.3,00,000/- to the complainant, as a whole, towards litigation costs as well as compensation for mental agony and harassment caused; and

x. Pass any other and further relief which the Hon’ble Commission thinks fit and proper in the facts 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 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 in the terms of the allotment, this complaint is not maintainable. It is further contended that the indication of 36 months for the completion of the project was only an indicative time line, 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 contended 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 25.10.2016, a discount of Rs.9,57,797/- was given to the complainant as compensation for delay in advance. It is also submitted that the opposite party was prepared to provide higher compensation than Rs.10 per sq ft., stipulated as per clause 7.2 of the application for provisional allotment to the complainant.

Parties 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. 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 commons areas and facilities.

On behalf of the opposite party it was argued that possession has already been handed over and upfront compensation of Rs.9,57,797/- 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 there was upfront compensation for the delay. Since the quantum of compensation has been enhanced by the builder himself the 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 be included 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 @ 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.

In view of the foregoing it is clear that there has been delay in the offer of possession by the opposite party to the complainants against the promised date of 19.07.2014 for possession. The offer of possession was actually dated 23.03.2018. 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 paragraph 23 of the judgment of the Hon’ble Supreme Court in the case of Utpal Trehan vs DLF Home Developers Ltd., (supra) cannot be considered since that case is distinguishable on account of the fact that the agreement itself provide for enhancement of compensation for delay. In the instant case there has been a discount offered at the time of booking, for the delay, there is no other clause which has been brought to our notice by the opposite party stating that enhancement of compensation which 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 dated in handing over the flat, i.e., 19.07.2014 to the actual date of offer of possession, i.e., 23.03.2018 be provided by the opposite party to the complainants at the rate of 6% per annum on the deposited amount as on 19.07.2014, in addition, litigation cost of Rs.50,000/- will be paid by the opposite party.