Mukesh Gupta vs Negolice India Ltd

A. P. Sahi, President Member

Heard Mr. Karan Rajpurohit, learned counsel for the complainant, and Mr. Pravin Bahadur, learned counsel for the opposite party.

Three issues have been raised by Mr. Rajpurohit in this complaint contending that the complainant is entitled for delay compensation on account of delayed handing over of possession of the allotted premises to the complainant which was beyond the time as prescribed and offered under the agreement.

The second ground is that there is a shortage in the covered area offered to the complainant and the third is that the opposite parties are under an obligation to execute a conveyance deed after amending/altering and changing the unreasonable and one-sided unfair clauses therein.  This third contention has been raised with the aid of a separate application moved by the complainant i.e. IA No. 11492 of 2019.

Advancing his submissions, Mr. Rajpurohit submits that the negotiations commenced after the constructions were started in February, 2008.  The complainant entered into an agreement with the opposite parties on 06.08.2008 where the relevant clause regarding delivery of possession is contained in Article 5(A)(i) extracted hereunder:

“ARTICLE 5

POSSESSION OF APARTMENT

A. Possession

i. The construction of the Apartment is likely to be completed within a period of Thirty Six (36) months from the date of commencement of construction of the particular Tower in which the Apartment is located or the date of execution of this Agreement, whichever is later, with a grace period of Six (6) months, on receipt of sanction of building plans and all other requisite approvals for construction subject to Force Majeure including any restrains/restrictions from any authorities, non-availability of building materials or disputes with contractors/construction Company appointed by the Company/work force and circumstances beyond the control of the Company and subject to timely payments of consideration & other charges by the Allottee.  No claim by way of damages/compensation shall lie against the Company in case of delay in handing over possession on account of the said reasons.  For this purpose the date of making an application to the concerned authorities for issue of completion/part completion/occupancy/part occupancy certificate of the Tower/Complex shall be treated as the date of completion of the Apartment.  The Company on completion of construction shall issue a final call notice to the Allottee, who shall remit all the outstanding dues within the timeframe as specified in the notice thereof and take possession of the Apartment.”

It is urged that this period fixed for delivery of possession was violated by the opposite parties as they offered possession vide letter dated 02.03.2015 after almost 3½ years of the expiry of the period referred to above.  It is not disputed that the occupancy certificate was obtained by the opposite party only on 18.02.2015.

The possession of the premises i.e. flat no. D-402, Tower-D, 4th Floor, was delivered and possession taken of by the complainant on 05.05.2015.  The contention of the learned counsel for the complainant is that according to the terms and conditions of the agreement extracted hereinabove, the 36 months’ period and the expected date of delivery of the premises has to be counted with effect from the date of the execution of the agreement, which, according to him, as prayed for in the complaint, should be counted from August 2011.  The submission therefore is that the delay compensation should be awarded together with interest prayed for with effect from August 2011 till 05.05.2015.

The second contention with regard to shortage of area has been raised in paragraph-10 of the complaint which is extracted hereunder:

“10.    That the Opposite Party also commissioned offences such as breach of trust and cheating beside others for not having handed over the committed area i.e. Super Area of 2450 Sq. Ft. and Covered Area of 1688 sq. ft. to the Complainant.  This is despite having written and confirmed Super Area of 2450 Sq. Ft. and Covered Area of 1688 sq. ft. in the Agreement and the possession letter respectively, the Opposite Party has actually not handed over the Said Apartment having Super Area of 2450 Sq. Ft. and Covered Area of 1688 Sq. Ft.  The ingredient of cheating i.e. deception since inception is evidence from the fact that the Opposite Party intentionally provided incorrect/ wrong technical definition of the “Covered Area” in the Said Agreement so that it could succeed in playing cheating upon the Customers including the Complainant herein.  The definition of the “Covered Area” in the Said Agreement says that “the Covered Area shall mean the 100% area enclosed by the Apartment by its periphery walls including area under walls and columns, 100% of balconies and terrace areas, 100% of the shaft openings, 100% of cupboard areas, 100% of bay window areas, the 100% of the loft areas, 100% of areas at the projection level including all projection /extension in slab to incorporate architectural feature, 50% area of common walls with other Apartments which form the integral part of the Apartment and Mumty area.  It is submitted that as per the Residential Building Norms, the Covered area cannot cover 100% areas of the Shaft and Balcony area and therefore, in view of the above, it is beyond reasonable doubt that the Opposite Party succeeded in playing cheating upon the Customers including the Complainant herein by having delivered less Covered Area.  If the Covered Area is calculated taking 50% of Shaft and Balcony area then the Opposite Party has delivered only 1560 Sq. Ft. Covered Area against committed 1688 Sq. Ft Covered Area and proportionately only 2284 Sq. Ft. Super Area against committed 2350 Sq. Ft. Super Area to the customers including the Complainant.  Therefore, the Opposite Party delivered 128 Sq. Ft. deficient Covered Area and proportionately 186 deficient Super Area.”

The contention is that if the covered area is calculated taking 50% of the shaft and balcony area, then the opposite parties have delivered an area of 128 sq. ft. less than what was intended in terms of the covered area offered to the complainant.

As noted above, the third contention raised by Mr. Rajpurohit is with regard to the conveyance deed through IA No. 11492 of 2019.

Responding to the aforesaid submissions, Mr. Pravin Bahadur contends that so far as the issue of delay compensation is concerned, the same is covered by the order of a Division Bench of this Commission in Consumer Case No. 1184 of 2016 (Anju Sharma Vs. M/s Negolic India Ltd.) decided on 22.02.2023.  The contention is that this was a complaint by a flat buyer of the same project regarding the same constructions where the delay compensation claimed was on the same footing as is being claimed by the present complainant and applying the ratio thereof, the delay compensation has to be counted giving the extra grace period of 6 months as well to the opposite parties which therefore comes to a period of 42 months available for the calculation of the delay compensation.  According to him, the due date in the present case also falls in February 2012 and consequently it is from February 2012 till September 2013 upon completion of construction that the delay compensation would be payable keeping in view the provisions of clause 5(A)(i) of the agreement that has already been dealt with in paragraph-7 of the decision relied on by him.  He therefore submits that applying the ratio of the aforesaid order of this Commission that has been affirmed by the Apex Court, the relief cannot travel beyond the same with 6% interest.

Responding to the issue of shortage of space of area, he has pointed out to the defence taken by the opposite parties through IA No. 5702 of 2021, a copy whereof is on record.  He submits that no objection or any evidence to contradict the same has been filed and hence the report of the architect filed along with the said application should be accepted.  Learned counsel for the complainant has however disputed this by contending that an architect report had also been filed by the complainant through IA No. 7205 of 2017 that was disposed of on 19.07.2017.  The contention on behalf of the opposite party therefore is that the plea taken by the complainant cannot be countenanced for the simple reason that the complainant seeks an alteration in the definition of the covered area which is impermissible and hence any such request having been made to redefine the covered area cannot be accepted.

Coming to the third issue of execution of the conveyance deed, it has been pointed out that Writ Petition No. 8898 of 2018 (Victoria Gardens Residents Welfare Association (Regd.) Vs. Government of NCT of Delhi & Ors.) has been filed before the Delhi High Court which is pending consideration and the very same reliefs along with other relief regarding maintenance have been prayed for in the said Writ Petition.  The complainant is an acknowledged member of the Petitioner Association and is an active participant in the proceedings before the High Court.  Even otherwise, it is urged that such a relief with regard to execution of the conveyance deed without the clauses for which deletion has been prayed cannot be maintained, inasmuch as the relief prayed for would fall within the realm of leading of evidence that may require filing of a civil suit.

Having considered the submissions raised, coming to the issue of delay compensation, suffice would be to extract paragraph-7 of the order passed in Consumer Case No. 1184 of 2016 (Supra) relied on by the learned counsel for the opposite parties which reads as under:

“7.      Article 5(A)(i) of the agreement provides that the construction is likely to be completed within a period 36 months from the date of commencement of the construction on receipt of sanctioned building plan and other requisite approvals for construction, subject to force majeure or the date of execution of agreement whichever is later, with a grace period of six months. The agreement was executed on 31.07.2008. The date of commencement of construction has not been given, as such the period of 42 months has to be counted from 31.07.2008 and due date was 30.01.2012. The construction was completed in September, 2013 as such there was delay of 19 months. The opposite party took plea that issuance of “completion certificate” has been delayed by statutory authority, which is liable to be extended. The agreement does not contain any clause for compensation for delay in possession but Supreme Court in Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512, held that the home buyer would be entitled for compensation for the delayed period in the form of interest @ 6% per annum on his deposit.”

Needless to mention that the said order was assailed before the Apex Court in Civil Appeal No. 2461 of 2023 (Anju Sharma Vs. M/s Negolice India Ltd.) that was dismissed as withdrawn.  Subsequent thereto, Review Application No. 178 of 2023 in the said complaint was filed which was dismissed on 29.05.2023 and then again an Appeal was filed with Diary No.33155 of 2023 before the Apex Court challenging the review order where the defects were not removed, and consequently by an omnibus order of the Apex Court, all such matters pending without removing the defects were rejected.

Accordingly, in the opinion of this Commission the ratio of the said case squarely applies on the facts of the present case for awarding delay compensation.  Applying the same, the complainant shall be entitled to delay compensation for about 19 months w.e.f. 06.02.2012 till 18.09.2013 @ 6% interest on the total amount paid by the complainant.  This amount shall be paid within a period of two months from today.  In the event any default is made, the rate of interest shall stand enhanced to 9%.

Coming to the shortage of area as pleaded by the learned counsel for the complainant, the architect’s report filed by the opposite parties in 2021 categorically explains it with a map and the question of redefining the covered area does not arise, inasmuch as the premises was acquired under an agreement where the definition of covered area was explicitly stated.  The contention that it was deceptively worded cannot be accepted as the terminology of covered area was not ambiguous nor was it capable of being understood otherwise.  It is clear in the agreement that was accepted by the complainant with open eyes.  The contention of the complainant is an attempted extended definition of covered area as contained in the agreement which cannot be construed by any standards to be deceptive.

Such a relief therefore would not amount to arising out of any deficiency in service and consequently the same cannot be accepted.

The question of conveyance deed as indicated above has already been raised before the High Court, and even otherwise reading down the clauses as proposed by the complainant cannot be gone into by this Commission keeping in view the circumstances that the association of the flat owners in the project have already raised this issue in Writ Petition No. 8898 of 2018 (Supra).  Hence, the said relief is declined without prejudice to any of the reliefs prayed for on that count before the High Court.

The complaint is therefore allowed to the extent indicated above.   The matter stands finally disposed of.  Pending application, if any, also stands disposed of.