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Judgment
Dr.Inder Jit Singh, Member
The present Consumer Complaint (CC) has been filed by the Complainants against the opposite party as detailed above, inter aila praying for directions to the OP:-
i. to hand over the actual physical possession of the apartment to the complainants after rectifying the defects stated in the Defect survey report.
ii. to pay interest @18% p.a. for the period the OP delayed the possession beyond the stipulated date i.e. from 09.06.2013 till the date of actual physical possession.
iii. to refund illegal demand of money towards EDC/IDC and VAT made beyond statutory requirements.
iv. that all increase in taxes after expiration shall be borne by the OP.
v. not to charge from Complainants any increase in Super-area which is not proportionate to increase in Carpet Area.
vi. to provide independent club house to project “Presidia” or else not to charge for the Club House.
vii. to refund/adjust the unjustified amounts charged from the Complainants towards car parking.
viii. to pay Rs.10 lakhs towards compensation for mental agony, heart burning, deprivation of their property and emotional trauma.
ix. to pay Rs. 2 lakhs towards litigation cost.
Notice was issued to OP on 05.06.2018, giving them 30 days’ time to file written statement. Written statement was filed by OP on 18.07.2018.
It is averred in the Complaint that: -
i. The complainants booked a residential apartment with the OP in a project namely ‘PRESIDIA’ which the OP was to develop in Sector 62 of Gurgaon. The booking was made on 22.02.2010 paying a booking amount of Rs.31,73,530/-. After allotment of a residential apartment bearing No. C-502, Tower No.C, Floor No. 5, measuring 3104 sq.ft. to the Complainants, the parties executed an Apartment Buyers agreement (BBA) on 09.06.2010. As per BBA, the possession was proposed to be handed over to the complainants within 36 months with 6 months’ grace period from the date of execution of Agreement. The grievance of the complainants is that the possession has not been offered to them by the OP constituting deficiency of service, unfair trade practices, restrictive trade practices etc. on their part despite having paid Rs. 1,62,09,597/- out of the agreed sale consideration of Rs. 1,73,54,848/-.
ii. The BBA was a fixed set of papers, which was asked to be signed by the buyers/allottees including the present Complainants and no modifications were entertained by the OP. On request to change the one sided clauses, it was told that the BBA has to be signed as it is and in case it is not acceptable then the allotment will stand cancelled and earnest money will be forfeited, seeing no option the buyers had to sign the BBA containing the one sided clauses favouring the OP.
iii. It is further averred that despite a delay of almost 5 years, the OP issued a letter of ‘intimation for possession’ to the complainants and vide this letter the OP levied various fresh illegal demands which were never anticipated earlier and are completely unjustified. As discovered by the complainants, the actual area of the flat is around 1900 sq.ft. and the OP has been demanding unlawfully for 3295 sq.ft. from them which is an illegal demand of money.
iv. The OP has refused to handover the possession unless and until the complainants clear all the payments as demanded by the OP.
v. As per clause 9.5 of BBA, it was agreed by the OP that in case of any delay, the OP shall pay to the complainants a compensation at the rate of Rs.5-10/- per sq.ft. per month for the period of delay. The OP has incorporated the said clause as one-sided and has offered to pay a meagre sum for every month of delay. On calculation it comes to less than 2% per annum rate of interest. However, as per clause 1.10 of the Agreement, the OP charges interest @18% p.a. from the allottees on any amount due. On the grounds of parity and equity, the OP should also be subjected to pay the same rate of interest.
vi. OP has used his dominant position and charged an excessive and unjustified amount towards EDC/IDC, VAT, car parking etc. OP has also used his position to gain financial advantage by merging club houses of two projects i.e. “Araya” and “Presidia” thereby usurping huge sum of money from the Complainants.
vii. This act of OP is unfair as there is no increase in carpet area with the increase of super area, Complainants further reiterate that in its pre-fabricated application form that the super area would be 122% of the covered area. However, the OP unlawfully escalated the super area from initial 3104 sq. ft. to 3295 sq.ft. i.e. by another 191 sq.ft to escalate the costs and thus artificially inflated the costs by another 12-13 lakhs. This escalation was apparently done to set off the penalty amounts which the OP credited in the accounts of complainants to pre-empt legal action against delay in possession. The same is an unfair practice of the OP to extort money from the complainants without any legal justification.
viii. The service tax was revised w.e.f. 01.06.2015. Had the possession been delivered to the complainants on time, the complainants would have paid service tax at the pre-revised rate. Hence OP is liable to refund the said amount.
ix. Due to above mentioned acts and omissions of OP, Complainants are suffering from disruption to their living arrangements, mental torture, agony, and also continue to incur financial losses.
The OP in their written statement/reply stated that:-
i. OP is a well-known company dealing in real estate and is known for the quality and variety of the projects delivered by it till date. OP has obtained Occupation certificate on 01.02.2018 and the construction will be completed soon, although the delay has happened in delivering possession of the said unit but that happened due to reasons mentioned below and OP is not liable for the delay.
ii. The delay in delivering possession was purely beyond the control of OP, the reasons for such delay are cited below (a) The commonwealth games were organized in Delhi, due to this mega event construction of several big projects led to extreme shortage of labourers and hence the construction of building could not be completed on time (b) Active implementation of schemes such as NREGA and JNNURM, created shortage of labourers (c)dispute between contractor led to huge financial losses to the OP (d) due to termination of contract (e) along with labour shortage, water shortage also occurred and it was totally unforeseeable which further led to delay (f) as per guidelines of NGT construction work stopped from 15th November 2016, which further led to delay (g) due to demonetization, the contracts were not able to make regular payments to their labour and it also consolidated the problem for OP in mobilizing the requisite labour (h) the OP paid EDC as per license awarded in its favour and the State Govt. was supposed to lay the whole infrastructure in that Licensed area for providing the basic amenities but the same were not provided (i.) the Ministry of Environment and Forest (MOEF) and Ministry of Mines (MOM) had imposed certain restrictions, which resulted in a drastic reduction in availability of bricks and Kiln which are the most basic ingredients in the construction activity (j) directions of the Hon’ble Supreme Court resulted into shutting down of various brick kilns (k) non-availability of raw material (l) Hon’ble Supreme Court suspended all the mining operations in the Aravalli Hill , which led to a situation of scarcity of the sand and other materials (m) due to modification in the prescribed guidelines by the Government (n) due to shortage of labour, water and other raw materials or additional permits, licenses, sanctions by the different departments were not in the control of OP and were not at all foreseeable at the time of launching of project and commencement of construction of the Complex. The OP cannot be solely responsible for thins and are not in control of the OP.
iii. As per Clauses 9 and 10 of the BBA, the OP is liable and obligated to pay compensation to the Apartment Allottees/complainants only where the delay in handing over of the possession is on account of negligence attributable to the OP herein and not where the delay is on account of reasons beyond the reasonable control of the OP and the OP fails to deliver the possession of the apartment as per the schedule and except reasons beyond the reasonable control of the Developer, the OP may be held liable to pay compensation calculated @5/- per ft. per month of the super area of the apartment for the period of delay in offering the possession of the said Apartment beyond the period indicated. The OP, cannot be held liable to pay any compensation to the complainants on account of delay in handing over the possession of the apartment as the said delay has been caused due to reasons beyond the reasonable control of the Developer i.e. the OP.
iv. It is contended by the OP that the complaint is cryptic and lacks in particulars in as much to make the act of the OP of not being able to hand over timely possession of the apartment fall within the definition of unfair trade practice as defined in section 2(r) of C.P.Act.
v. It is contended that the allegation that the OP initially projected that there would be independent clubs is completely false and they may be put to strict proof of the same. The licenses of both the projects are common and the club, being a statutorily requirement, was necessarily to be common.
vi. Other allegations are denied by the OP.
Complainants in their rejoinder denied the allegations of OP and also cited various Hon’ble Supreme court judgements.
Evidence by way of an Affidavit was filed by the complainants and the Opposite Party broadly on the lines of averments made in the complaint Written Synopsis were filed by the Complainants
Heard counsels of both sides. The details of the flat allotted to the Complainant/other relevant details of the case are given in the Table below:-
Sr No
Particulars
1
Apartment no. & project name
C-502, Tower –C, Floor
No.5
“Presidia’, Sector 62, Gurgaon
2
Super Area
3104 sq.ft.
3
Date of booking
22.02.2010
4
Date of signing BBA
09.06.2010
5
Committed date of possession as per
Agreement including grace period
09.12.2013
6
Grace period for possession as per BBA
6 Months
7
Total Consideration
Rs. 1,73,54,848/-
8
Amount paid
Rs. 1,62,09,597/-
9
Date of receipt of Occupation Certificate
01.02.2018
10
Date of offer of possession
29.03.2019
11
D/o Filing CC in NCDRC
21.05.2018
12
D/o Filing Reply/Written Statement by OP
18.07.2018
13
D/o Filing rejoinder by the Complainants
04.04.2019
14
D/o Filing Evidence by way of Affidavit by the Complainants
04.04.2019
15
D/o Filing Evidence by way of Affidavit by the OP
12.07.2019
16
D/o filing Written Synopsis by the Complainants
16.08.2022
The contention of the OP that the Complaint is barred by limitation is also not accepted. The OP has failed to deliver the possession of the unit to the complainants till date and therefore, the cause of action is continuing. The contention that complainants had not booked the said unit for their personal consumption is also rejected as no such evidence has been adduced by the OP in this regard. The plea of OP that delay was due to force majeure and beyond their control circumstances is not valid as even after a gap of more than five years from the committed date given in the ABA, possession of flat has not been given. There is no documentary evidence to support the contention of the Opposite Party that the reasons pleaded by them, can be construed as ‘Force Majeure. The contention of the OP that the parties are bound by the agreement and that delay compensation is payable as per agreement terms is also not acceptable. Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raglivan II (2019) CPJ 34 (SC) decided on 02.04.2019 held that “a term of a contract will not be final and binding if it is shown that the flat purchasers had no option to sign on the dotted line, on a contract framed by the builder ......... the incorporation of one sided clause in an agreement constitute an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling flats by the builder ........., the appellant-builder cannot seek to bind the respondent with such one sided contractual terms.”
The main grievances/contentions of the complainants are (i) delay in possession (ii) increase in super area (iii) deviations/modifications in original structural design (iv) excess charge of EDCs, which was later on refunded in part, and without interest (v) wrongful demand/charge of HVAT (vi) additional financial burden on account of increased taxes due to delay in possession (vii) extra/incorrect charge towards electric substation and car parking (viii) unjustified increased registration/legal charges for registry of the unit (ix) non-provision of an exclusive club house for ‘Presidia’ project residents and demand of additional price towards club membership.
OP has stated that initially OP paid EDC @Rs.104.04 lakhs per acre to State Government, these charges were later on enhanced to Rs.206.52 lakh per acre, and subsequently reduced to Rs.176.28 lakh per acre. OP charged EDC@ Rs.242.62 per sq.ft. and IDC @Rs.43.43 per sq.ft and some amounts were refunded later on. No VAT has been charged from complainants, only GST has been charged. All statutory taxes prevailing at the time of execution of conveyance deed have to be paid by the complainants.
Regarding club house, the OP stated that it launched two projects viz ‘Araya’ and ‘Presidia’ , it never projected to its customers that both projects would have their respective independent clubs, licenses of both projects are common, and the club being a statutory requirement, was necessarily to be common.
OP further stated that the period of 36 months mentioned in the agreement was tentative, in terms of clause 10.1 of the agreement, OP is entitled to extension of time for delivering the physical possession, super area mentioned in the agreement is always tentative and gets finalised only at the stage of execution of conveyance deed. Sale price is subject to change in the super area, in the present case, change in super area is within the permissible limits of BBA. As regards electric substation, agreement provides that power back up would be provided from standby generators subject to timely payment of maintenance charges by the occupants and shall be in addition to normal power back up for common areas and common services within the building. Combined reading of clauses 1.9 and 15 would show that complainants are bound to pay for electric sub-station. There is a specific condition in the BBA that prospective buyers would pay for the parking lot, the decision of the Hon’ble Supreme Court cited by the complainants are not applicable in the present case.
In the additional affidavit dated 23.09.2022 filed in pursuance to orders dated 16.09.2022, with respect to clause in the application form that super area would be 122% of the covered area, OP stated that terms of application were only indicative in nature and final terms were to be set out in BBA. The super area as per BBA was tentative and was subject to change upto 10%, the actual increase in the present cap is only 191 sq.ft, which is about 6% and within the permissible range. The final super area at the time of offer of possession of the unit on 01.02.2018 was 3295 sq.ft., the final covered area in this case is 2701 sq.ft. and ratio of the final super area to the final covered area as contemplated in the application form also amounts to 122%. Hence, there is no deviation in this regard from the alleged representation in the application form or BBA. Regarding EDC/IDC, retreating its contentions cited above, OP stated in the additional affidavit that EDC/IDC amounting to Rs.2,50,255/- were refunded to the complainants at the time of possession. Regarding club, OP states that except for the proposed site plan which formed part of the brochure, the complainants could not show any clause or statement of OP which would constitute a representation of providing a promise of ‘exclusive club’. Project ‘Presidia’ and ‘Araya’ are being developed under a common licence bearing No. 268. The housing project on the licence was divided in two brands in terms of specification of flats as project ‘Araya’ (High End Units) and ‘Presidia’ (Mid Range Units). There is a third project on different licence in Sector 61, on the opposite of main Road, which was launched as Pioneer Park in 2008, while ‘Presidia’ and ‘Araya’ were launched in 2010 & 2011 respectively. The site map which the complainants relied upon showing one club for each project was only a tentative proposal of development of Sector 61 & 62 as at that stage project ‘Araya was neither officially launched or was portrayed to any perspective buyer. All plans were tentative. Club provided by OP namely ‘Zion’ is one of the largest indoor clubs that houses all sports and re-creational facilities. As on date the club has 250 members who are also residents of ‘Presidia’ and ‘Araya’ and are happily availing the world class facilities. As per BBA, the allottees have no ownership rights of the club, OP is the owner of the club, and has the sole discretion to make rules for club and regulate the membership and functions of the club.
In the instant case, there is an inordinate delay in handing over the possession of flat by the OP. The complainants cannot be made to wait for an indefinite time and suffer financially. Hence, the complainants in the present circumstances have a legitimate right to claim fair delay compensation/interest from the OP. The plea of OP for entitlement of compensation to the complainants in accordance with provisions of the BBA is not valid.
Regarding EDC/IDCs, OP is entitled to charge only as per BBA. Complainants are liable to pay taxes/GST etc. payable to Govt. authorities as per prevalent rates. Complainants are liable to pay for car parking as per rates/terms and conditions mentioned in the BBA. OP cannot charge separately for electric substation unless BBA specifically provides for it, otherwise it is presumed to be included as part of IDC. Complainants are liable to pay actual registration charges levied by government authorities. As regards exclusive club, it is evident from the foregoing, especially the site plan showing independent clubs for both ‘Araya’ and ‘Presidia’ clubs, which is not denied by OP, but pleaded that it was only a tentative proposal of development, the complainants were made to believe that their project will have a separate/exclusive club. BBA/application form does not specifically state that the allottees of ‘Presidia’ will have only a shared club facility with allottees of any other project of the OP. To that extent OP is found deficient in service/misleading the complainants. However, at this stage, it may not feasible for OP to provide another exclusive club for allottees of ‘Presidia’. Hence, the OP need to compensate the complainants in some way for deficiency in service on this count. Regarding increase in super area, we tend to agree with contentions of the OP as stated in the additional affidavit dated 22.09.2022, wherein it is stated that super area is 122% of the covered area (final super area and covered area being 3295 sq.ft. & 2701 sq.ft. respectively) and that increase in super area is only about 6%, which is within permissible limit of 10% as per BBA.
For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, the Consumer Complaint is allowed/disposed off with the following directions/reliefs: -
i. The OP shall pay delay compensation in the form of simple interest @6% per annum from the committed date of possession viz 09.12.2013 till the actual date of possession.
ii. By way of compensation for deficiency in service/misleading the Complainants with respect to exclusive club for the project in question, OP, shall provide membership of the club (Zion), which is shared with allottees of ‘Araya’ project, to complainants without any initial charges except refundable security deposit being charged from other similarly placed members. However, complainants shall be liable to pay recurring annual fee/other relevant charges from time to time as are payable by other equally placed allottees at ‘Presidia’ project.
iii. Complainants shall be liable to pay taxes/GST etc. payable to Government authorities as per prevailing rates. However, OP shall confirm to the complainants in writing that all such taxes/ GST etc. charged from Complainants have actually been deposited by OP to the concerned Govt. authorities. If any such charges paid by complainants are yet to be deposited, the same shall be done within 30 days of this order. Complainants will also be liable for payment of registration charges payable to the Govt. authorities.
iv. OP shall charge EDCs/IDCs only as per rates prescribed in the BBA. If any excess has been charged, it shall refund the same along with simple interest @6%. For refunds already made, simple interest @6% shall be paid till the date of refund.
v. Complainants will be liable to pay for car parking charges as per rates mentioned in the agreement. OP shall not charge separately for Electric Substation unless BBA specifically provide for it. In the absence of specific mention in the BBA, it will be presumed to be part of the IDCs already charged.
vi. Complainants are liable to pay for the increase in super area of 191 sq.ft., which is within the prescribed limits of BBA and is also 122% of covered area as per statement of OP. Payment for increased area shall be at the rates mentioned in the BBA for original area. If the complainants so desire, they may request the OP in writing, within 15 days of this order for a joint inspection to satisfy them that the covered area is 2701 sq.ft. as declared by the OP in its additional affidavit dated 22.09.2022. Further OP shall give a break-up of the difference in super area and covered area (594 sq.ft.), common facilitates/amenities wise, which are includable in super area as per BBA, within the same tower as well as within the project in question, within 15 days of the order.
(vii) The OP shall pay a sum of Rs.50,000/- as cost of litigation to the complainants.
The pending IAs, if any, also stand disposed off.