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Judgment
Deepa Sharma, Presiding Member
This appeal has been filed by the opposite party ( hereinafter referred to as ‘Appellant’) against the order dated 17.08.2015 in CC No. 16 of 2013 filed by the respondent no.1 ( hereinafter referred to as ‘Complainant’). Vide the impugned order, the complaint was partly allowed and the Appellant was directed to refund a sum of Rs.15,51,034/- being the excess amount received by them and was also directed to pay compensation of Rs. 10.00 lacs along with cost of Rs.10,000/- with interest @ 12% p.a. from the date of complaint till realization and also directed to execute sale deed within 3 months.
The admitted facts of the case are that complainant had entered into an agreement for sale with the Appellant on 04.07.2011 for the construction and handing over of the apartment No. A-7 on the 8th floor of the apartment complex “Marvel Mansions” along with 1 / 22 share of undivided interest in land. Super area of 1499 sq. ft was sold to him and he paid sum of Rs.46,50,000/- and Rs.3.00 lakhs towards registration charges and Rs.50,000/- for making kitchen cupboard. The agreed date of delivery was 31.07.2011.
It was contended by the complainant that in October 2011 he came to know that his flat was being inspected frequently by some person with whom the Appellant had entered into an agreement for sale of his flat on 28.04.2010. He lodged complainant with the Police Station. Thereafter, on 01.11.2011 the keys of the flat were handed over to him. After obtaining the possession, the complainant measured the plinth area and he found that the plinth area was only 998.99 sq. ft instead of 1499 sq.ft. He filed a complaint for refund of the excess amount along with compensation.
The claim was contested by the Appellants. It was contended that delay in handing over was due to non payment of the consideration amount by the complainant. The draft sale deed was prepared and handed over to the complainant but it was not returned by the complainant. It was submitted that there was no deficiency in service on the part of the Appellants. The building was completed before 31.07.2011 and the keys of the flat owners were handed over on 15.09.2011 in a function which was not attended by the complainant as the complainant was unwilling to take the possession. The opposite party, therefore was compelled to allot it to other person but subsequently allotment was cancelled. It is submitted that complaint had no force and liable to be dismissed.
After hearing the parties and perusing the record, the State Commission found the Appellants deficient in service as they had failed to hand over the possession on the due date of delivery which was 31.07.2011. It was also found that super area as per the agreement was 1499 sq.ft and the flat which was handed over was not of 1499 sq. ft. For that purpose, the State Commission had relied on the report of the Commissioner Ex. C1 who was appointed by the State Commission to measure the area to arrive at a just conclusion.
Aggrieved by the findings of the State Commission, the present Appeal has been filed by the builder. It is submitted that complainant had been defaulter in making the payments and despite repeated demands and letters written to him, he deposited amount of Rs.46,50,000/- in instalments. The payment schedule as per the agreement was Rs. 5,00,000/- at the time of booking ( 04.04.2011), Rs. 5,00,000/- in April 2011 ( 07.04.2011), Rs.7,00,000/- in May 2011 ( 07.05.2011), Rs.3,00,000/- in May 2011 (21.05.2011) and Rs. 26,50,000/- in June 2011. It is submitted that complainant did not make the timely payment and paid the instalments on 13.07.2011, 25.07.2011, 03.08.2011 19.08.2011 and 23.08.2011 and non delivery of possession was due to delay in making payments by him. It is contended that the dates of payments of consideration amount of flat by complainant itself shows that the complainant had not paid the full consideration amount as per schedule by 31.07.2011 but he continued making payment till 23.08.2011 i.e. beyond the due date of delivery. It is submitted that under the agreement unless the entire payment is made, possession could not have been delivered. It is submitted that building was completed on 31.07.2011 except the drainage area / connection and installation of transformer. The complainant was asked vide letter dated 02.08.2011 to pay Rs. 99,000/- as his share of expenditure for completing the drainage system and installation of transformer. The complainant paid sum of Rs.50,000/- for wood work in the kitchen which was only an additional service given to him and it had nothing to do with the contract between the parties. It was only on 19.08.2011 that he paid Rs.13.00 lacs towards the cost of the flat and on 23.08.2011 and a sum of Rs.5.00 lacs to cover the entire construction cost. It is submitted that contention of the complainant, therefore, that delay was on the part of the Appellant was misleading and there was no deficiency since possession could not have been handed over till the entire payment is made. It is further submitted that a public function was organized on 15.09.2011 for handing over of the keys to all the apartment owners in the presence of Minister of Health and Mayor of Trivandrum. However, respondent did not attend the said function. He accepted the keys only on 01.11.2011 and took possession of the subject flat and started living there and enjoying all the facilities and without paying any amount towards facilities till the date of filing of Appeal and the fact that he is living in the house is intentionally concealed by the complainant in the complaint. It was submitted that Society was formed by all the flat owners in February 2012. In March 2012 and April 2012, there were correspondence between the parties regarding registration of the sale deed and the Appellants are ready to execute the sale deed and vide letter dated 27.04.2012 the complainant was requested to be present between 10.30 to 11.30 a.m. on 30.04.2012 for registration of the sale deed but he did not turn up and after willful delay of one year, filed the complaint. It is submitted that complaint was false and State Commission has ignored all these facts and order of the State Commission, therefore, is erroneous and bound to be set aside.
Written synopsises have been filed by the complainant. He has stated that he has not been provided plinth area of 1499 sq. ft as promised by the Appellants. It is further contended that date of delivery was 31.07.2011 but keys of the flat were handed over on 01.11.2011. It was further contended that total area of the flat after delivery / possession was 998.99 sq. ft. It is further submitted that today there are no written rules and statutory provisions of the State or Central Government regarding the super built up area. It is further submitted that building permit is issued on 24.01.2009 only on the basis of plinth area prior to construction. It is submitted that illegal residential association had been made.
I have heard the arguments and perused the relevant record.
The brief admitted facts of the case are that complainant had booked a flat with the Appellants and the possession of the same was handed over to him on 01.11.2011 by handing over the keys of the flat to him. However, the due date of delivery was 31.07.2011 and there was a delay of about 3 months.
The contention of the complainant had been that he was promised plinth area of 1499 sq. ft but he had been provided only area of 998.99 sq. ft. The State Commission while reaching to the conclusion, that lesser area had been provided to the complainant, has relied on the report of the Commissioner who was appointed on the application of the complainant. In his report, the Commissioner has reported that plinth area is 1041 sq. ft. From the very report of the Commissioner, it is apparent that contention of the complainant that he was allotted plinth area of 998.99 sq. ft stands falsified. The State Commission, therefore, has wrongly concluded that the complainant had been provided area of 998.99 sq. ft.
The agreement entered into between the parties dated 30.06.2011 describes the area of flat in ‘B’ SCHEDULE. The schedule is reproduced herein :
‘B’ SCHEDULE
“Apartment No.A-7 admeasuring 1499 square feet of super built up area of EIGHTH Floor of Marvel Mansions and 1 /22 share of undivided share of land.
What was promised by the Appellants, therefore, was to provide super built up area of 1499 sq. ft and the complainant has not produced any evidence on record to show that he had not been provided super built up area of 1499 sq. ft. His stand all along had been that he had been provided plinth area of 998.99 sq. ft. He has not contended anywhere that the super built up area of the flat which was allotted to him was less than what was promised. It is apparent that findings of the State Commission on this issue are based on no evidence. The complaint itself is misconceived filed on erroneous contentions having no averment that complainant was not given promised area i.e. super built up area of 1499 sq. ft. Also from the evidences on record, it is apparent that complainant has not himself struck to the schedule of payments and has defaulted in making timely payments, which continued even beyond due date of delivery.
The last payment of consideration amount was made by complainant on 23.08.2011 and he got possession on 01.11.2011. There is delay of about 2 months in handing over the possession of the flat. This delay is negligible and for such delay it cannot be said that complainant is liable to be compensated. Reliance is placed on the Order of this Commission in the case of Arvind Joshi & Anr. v. Godrej Projects Development & Ors., CC No. 397 of 2020, decided on 29.07.2022, wherein the delay in offering possession was of about 6 months, and the Complainant was not given any delay compensation. Relevant portion of the Order is reproduced herein:
“15. In view of discussion above, we agree with the contention of the Opposite Party/Builder that Tower -1 and Tower – A are the same. As per the Agreement, possession of the Unit was to be delivered on 02.07.2018 and the Builder obtained the Occupancy Certificate on 26.12.2018 and thereafter offered possession on 09.01.2019. Thus there been a nominal delay of around 6 months. As per the Order of the Hon’ble Supreme Court in IREO Grace Realtech (P) Ltd. v. Abhishek Khanna, (2021) 3 SCC 241 decided on 11.01.2021, there was a delay of around 7 months in offering possession and the allottees were obligated take possession of their Units.
As per the principle laid down by the Hon’ble Supreme Court, the allottees are obligated to take possession. However, in this case, 4 years have now elapsed and the Complainants want refund. In the Ireo Grace Case (Supra) only about two years had elapsed from the promised date of possession till the date of Order. Thus, in view of the peculiarity of the case, we are of the considered opinion that the Opposite Party shall refund the deposited amount to the Complainants without any delay compensation as the delay in offering possession was about 06 months.”
The impugned order, therefore, suffers with illegality and infirmity and, therefore, is hereby set aside. The appeal is allowed and complaint is dismissed. Parties to bear their own costs.