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Judgment
Heard Mr. Rakesh Mittal, Advocate, for the complainants and Mr. Rajeev Virmani, Sr. Advocate, assisted by Mr. Ashish Kumar, Advocate, for the opposite party.
Nitin Kumar Sehra and Mrs. Amita Sehra have filed above complaint, for directing the opposite party to (i) handover possession of Apartment No.I-0803 in the project “Park View Grand Spa” to them, (ii) pay Rs.7492782/-, as interest @18% compounded quarterly on their deposit, (iii) pay Rs.15/- lacs, as compensation for mental agony and harassment, (iv) pay costs of the litigation; or alternatively (v) to refund Rs.18879246/- and pay damages of Rs.15/- lacs, with interest @18% compounded quarterly from the date agreement till the date of payment; and (vi) any other relief which is deemed fit and proper in the facts and circumstances of the case.
The complainants stated that Bestech India Private Ltd. (the opposite party) was a company, 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. The opposite party launched a group housing project, in the name of “Park View Grand Spa” at village Nakhrola, Sector-81, Gurgaon, Haryana, in the year 2012 and made wide publicity of its facilities and amenities. Believing upon the representations and promises of the opposite party, the complainants booked a 3BR flat on 20.03.2012 and deposited booking amount. The opposite party allotted Unit no.I-0803, super area 2660 sq.ft., total consideration of Rs.17269760/- on 31.03.2012 and executed Apartment Buyer’s Agreement on 23.07.2012 in their favour. Annexure-I of the Agreement provides payment plan as “construction link payment plan”. Clause-3(a) of the agreement provides 36 months period from the date of the agreement, for handing over possession and grace period of six months. As per demand, the complainants deposited total Rs.18879246/- till 11.12.2017. The period of 36 months expired on 22.07.2015 and grace period of six months expired on 22.01.2016. The opposite party raised demand of Rs.931739/- on 10.11.2015, for completing internal plumbing (GI/CI) work. The complainants asked for inspection of the site but the opposite party did not respond. The opposite party issued a letter dated 15.01.2016, demanding Rs.1760468/- towards interest on delayed payment of the instalment. As the opposite party had delayed delivery of possession, the complainants wrote a letter dated 06.05.2016, for waiving of the interest. The complainants again gave an email for inspection of the site, on which, the opposite party permitted inspection on 13.08.2016. On inspection, the complainants found that there was no plumbing work in their Apartment No.I-0803. The complainants vide email dated 16.08.2016, informed the opposite party in this respect. The opposite party issued Final Offer of Possession letter dated 23.06.2017 (served on 28.06.2017) with statement of account, demanding Rs.5016281/-. The complainants found that the opposite party had not paid any compensation for delay in possession in this statement of account. The complainants issued a legal notice to the opposite party, on 15.09.2017, demanding Rs.4669728/- as interest on their deposit and compensation @Rs.5/- per sq.ft. per month on super area, for delayed period of possession. In spite of service of this notice, the opposite party did not respond. The complainants deposited Rs.1960603/- on 17.11.2017, Rs.898441/- on 29.11.2017, Rs.579996/- on 04.12.2017, Rs.210671/- on 08.12.2017, Rs.266000/- and Rs.5495/- on 11.12.2017 but the opposite party did not handover possession and insisted to deposit Rs.2728580/- as interest, which is not payable. The complainants wrote to the opposite party on 23.02.2018 for handing over possession but the opposite party refused handing over possession till deposit of the amount of interest. Then this complaint was filed on 20.03.2018, alleging deficiency in service and unfair trade practice.
The opposite party have filed its written reply on 11.06.2018, in which, booking of the flat on 20.03.2012, allotment of flat on 31.03.2012, execution of Apartment Buyer’s Agreement on 23.07.2012 and deposits made by the complainants, have not been disputed. The opposite party stated that terms of the agreement were disclosed to the complainants before signing the agreement and are binding on the parties. As per clause-1.2(h) of the agreement, timely payment of the instalment was essence of contract. Interest @18% per annum compounded quarterly was payable on the defaulted/delayed amount under clause-1.2(k). The complainants were rank defaulter in payment of instalments from very beginning and used to deposit instalment after issue of reminder-I or reminder-II. The opposite party issued Reminder-I dated 15.06.2012, Reminder-I dated 24.07.2012, Reminder-I dated 05.03.2013, Reminder-I dated 26.05.2013, Reminder-I dated 05.07.2013, Reminder-I dated 08.11.2013, Reminder-II dated 05.12.2013, Reminder-I dated 04.08.2014, Reminder-I dated 30.09.2014, Reminder-I dated 18.02.2016, Reminder-II dated 10.03.2016, Final Notice dated 03.05.2016 and Reminder-I dated 05.05.2017, Notice for Non-Payment dated 13.08.2013 and Pre-Cancellation Notice dated 30.08.2013 was for dues of Rs.1983848/- towards consideration and Rs.351089/- towards interest. Defaulted/delayed periods in payment of instalments have been given in paragraph-8 of para-wise reply of the written reply. Final statement of account of the complainants as on 18.05.2018, shows that total interest of Rs.2902555/- was due out of which, Rs.6690/- was waived. Although the complainants committed several defaults in payment of the instalments, but the opposite party completed the construction and applied for issue of “occupation certificate” on 22.06.2016, which was issued on 22.05.2017. The opposite party vide letter dated 23.06.2017 offered possession to the complainants and also issued reminders dated 21.08.2017 and 11.09.2017. Clause-3(a) of the agreement provides 36 months period from the date of the agreement, for handing over possession with grace period of six months, subject to timely payment of instalments. Under Clause-3(b)(i) &(ii) of the agreement, the complainants agreed for extension of period of delay, which occurred for the reasons beyond the control of the opposite party. Issuance of occupation certificate has been delayed by the statutory authority. Clause-3(b)(iii) provides that if the buyer commits default or delayed payment, the date of offer of possession shall be extended. As the complainants have committed several defaults, delayed payment of instalments, withheld payment of interest for delayed period and statutory authority delay issuance of “occupation certificate”, due date of possession was liable to be extended and the complainants are not entitled for compensation for delayed period. Rs.2902555/- remained due as on 18.05.2018, even after payments as mentioned in paragraph-18 of the complaint. It has been denied that the complainants have paid 90% of the consideration. Legal notice of the complainants was replied on 05.04.2018. The opposite party has also raised preliminary objections that the complainants were not consumer and this Commission has no territorial jurisdiction. The complaint has been filed on various false and frivolous allegations and is liable to be dismissed.
The complainants filed Rejoinder Reply, Affidavit of Evidence of Ashok Kumar Sharma and documentary evidence. The opposite party filed Affidavit of Evidence of Ms. Shiveta Raina and documentary evidence. Both the parties have filed their written submissions. This Commission, vide order dated 10.09.2018, directed the complainants to pay the amount of stamp duty payable on the conveyance deed and the opposite party was directed to execute conveyance deed and handover possession of the flat in question to the complainants leaving other issues between the parties to be decided at the time of final decision. In compliance of the order dated 10.09.2018, the conveyance deed was executed on 21.02.2019 and possession of the flat complete in all respect was handed over to the complainants.
We have considered the arguments of the parties and examined the record. The complainants in email dated 24.02.2015 and legal notice dated 15.09.2017 (Annexure-C-8) admitted delay in payment of instalments. The opposite party has given defaulted/delayed periods in payment of instalments in paragraph-8 of para-wise reply of the written reply, which has not been specifically denied in Rejoinder Reply. In the legal notice, final demand/statement of account of the complainants has been challenged on the grounds that the complainants were entitled to interest @18% per annum, compounded quarterly and delayed compensation @Rs.5/- per sq.ft. per month on supper area. The complainants did not challenge demand of interest in complaint.
Due date of possession, including grace period expired on 22.01.2016. The opposite party offered possession vide letter dated 23.06.2017 to the complainants. The opposite party stated that after completing construction, application for “occupation certificate” was moved on 22.06.2016, which was issued on 22.05.2017. The opposite party took plea that they were entitled for extension of period, for which “occupation certificate” was delayed. But the opposite party has not stated that the statutory authority had not raised any objection on its application for “occupation certificate”. If the application was defective, then the period for delay in issue of “occupation certificate” is not liable to be extended. The opposite party is liable to pay compensation for delay in possession from 23.01.2016 to 22.07.2017. Supreme Court in Civil Appeal No.1232 of 2019 R.V. Prasannakumar Vs. Mantri Castles Pvt. Ltd. (decided on 11.02.2019) and Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes, Pvt. Ltd., (2020) 16 SCC 512, held that delayed compensation is payable in the form of interest @6% per annum on the deposit of the home buyer from due date of possession till the offer of possession.
Relying upon Clause-3(b)(i) (ii) & (iii) of the agreement, the opposite party argued that as the complainants had committed several defaults in payment of instalments, the date of offer of possession is liable to be extended and the complainants are not entitled for compensation for delayed period. We find that clause-1.2(k) gives right to charge interest @18% per annum compounded quarterly on the defaulted/delayed instalment and clause-3(b)(iii) again gives right to the opposite party for extension of period for possession, in case of default. The opposite party is taking two benefits of the default/delay in payment of the instalment, which is arbitrary. The opposite party is charging interest @18% per annum compounded quarterly on the defaulted/delayed instalment as such its liability for timely handing over possession cannot be absolved. Supreme Court in Pioneer Urban Land Infrastructure Ltd. Vs. Govindan Raghavan, (2019) 5 SCC 725, Kolkata West International City Vs. Devasis Rudra, 2019 SCC OnLine SC 438 and NBCC (India) Ltd. Vs. Shri Ram Trivedi, (2021) 5 SCC 273, held that if the terms of the contract is one sided and arbitrary, it shall not be treated as final and binding.
The complainants have claimed interest @18% per annum compounded quarterly on their deposit for delayed period. The complainants did not deposit money under any deposit scheme, fetching interest @18% per annum compounded quarterly rather they paid consideration of their flat in instalments under agreement dated 23.07.2012. The payments of the complainants had been utilized for raising construction of the flat for them and it will not yield any interest.
The opposite party does not dispute that out of total consideration of Rs.17269760/-, the complainants have deposited total Rs.18879246/- till 11.12.2017. As such there is no justification for the opposite party for charging interest @18% per annum compounded quarterly, after 23.06.2017. It is appropriate that the opposite party be charge simple interest @9% per annum, after 23.06.2017.
ORDER
In view of the aforesaid discussions, the complaint is partly allowed. The opposite party is directed to issue fresh statement of account within a period of one month from the date of this judgment duly crediting compensation for delay in possession in the form of interest @6% per annum on the deposit of the complainants from 23.01.2016 to 22.07.2017 and the amounts paid by the complainants after 23.06.2017. The opposite party will charge interest @9% per annum on balance amount from 23.06.2017 till the date of payment. On issue of statement of account, the complainants will pay it within one month.