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Judgment
The present Review Application has been filed by the Applicants/Opposite Parties, namely, M/s. BPTP Ltd. praying for review of the Order dated 14.02.2022 passed by this Commission wherein the Consumer Complaint No. 2035 of 2018 filed by the Complainant Association was disposed of with the following observations:-
2.
3.Now, adverting to the question of delay in completion of the Project, a bare perusal of the afore-extracted Chart would reveal that most of the Members of the Complainant Association had booked their Flats/Apartments during the period from April 2011 to July 2012 and the respective Agreements were executed between the Parties during the period from September 2012 to July, 2013. As per Clause 5.1 of the Agreement, the Developer was under an obligation to complete the Project with all facilities and amenities and to hand over the possession of the booked Apartments to the Allottees, complete in all respect, within a period of 30 months from the date of execution of the Agreement with a grace period of 180 days for the purpose of applying and obtaining Occupation Certificate. However, the Developer has miserably failed to complete the Project by the commitment period of July 2015 despite having received the huge amount i.e. about 80% to 90% of the total Sale Consideration from the Allottees of the Project. There is no denial to the fact that the Offer of Possession was made by the Developer to the Allottees on 16.07.2018 after obtaining the Occupation Certificate dated 19.06.2018. Admittedly, there is delay of 3 years in completion of the Project. The only defence taken by the Developer for the delay of the Project is that there was confusion with regard to the Self-Certificate Scheme issued by the Town and Country Planning, Government of India on 16.03.2010 and the confusion was cleared by the concerned Department only in the year 2015. The said circumstance, according to the Developer was beyond its control therefore, the Allottees are not entitled to any compensation for the period the possession has been delayed on account of the aforesaid factors. In our view, the said ground cannot be construed as a force majeure circumstance and there is deficiency in service on the part of the Developer. Apart from this, the Developer has failed to adduce any other documentary evidence justifying the delay in completion of the Project and handing over the possession to the Allottees. As such, the Allottees are entitled for a reasonable compensation on account of delay of 3 years in the completing the Project in question.
According to the learned Counsel for the Developer, the Allotters are bound by the terms and conditions of the Agreement and Compensation, if any, should not be whimsical and mythical and it has to be granted @₹10/- per sq. ft p.m of the Built Up Area for the period of delay in handing over possession in terms of Clause 3.3 of the Agreement. On the contrary, learned Counsel for the Complainant Association emphatically submitted that since the Developer was charging interest @18% p.a. for the delayed payment, they are also liable to pay compensation at the same rate for the delayed possession to maintain the balance of equity.
At this juncture, we are of the considered view that it is a fit case to place reliance upon the decision of the Hon’ble Supreme Court of India in the case of "Ireo Grace Realtech Pvt. Ltd. vs. Abhishek Khanna & Ors." [Civil Appeal No. 5785/2019 & other connected Appeals decided on 11.01.2021 whereby in the similar circumstances, the Apex Court with regard to the terms of conditions of the Agreement, has observed as under:-
" We are of the view that the incorporation of such one-sided and unreasonable clauses in the Apartment Buyer's Agreement constitutes an unfair trade practice under Section 2(1)(r) of the Consumer Protection Act. Even under the 1986 Act, the powers of the consumer fora were in no manner constrained to declare a contractual term as unfair or one-sided as an incident of the power to discontinue unfair or restrictive trade practices. An unfair contract has been defined under the 2019 Act, and powers have been conferred on the State Consumer Fora and the National Commission to declare contractual terms which are unfair, as null and void. This is a statutory recognition of a power which was implicit under the 1986 Act.
In view of the above, we hold that the Developer cannot compel the apartment buyers to be bound by the one-sided contractual terms contained in the Apartment Buyer's Agreement"
The Hon'ble Supreme Court on the issue "Whether the Apartment Buyers are entitled to terminate the Agreement, or refund of the amount deposited with Delay Compensation" held as under:-
" In the present case, the allottees before this Court in the present batch of appeals, can be categorised into two categories:-
i) Apartment Buyers whose allotments fall in Phase 1 of the project comprised in Towers A6 to A10, B1 to B4, and C3 to C7, where the Developer has been granted occupation certificate, and offer of possession has been made, are enlisted in Chart A;
ii) Apartment Buyers whose allotments fall in Phase 2 of the project, where the allotments are in Towers A1 to A5, B5 to B8, C8 to C11, where the Occupation Certificate has not been granted so far, are set out in Chart B below.
Chart A allottees
(i) We are of the view that allottees at Serial Nos. 1 and 2 in Chart A are obligated to take possession of the apartments, since the construction was completed, and possession offered on 28.06.2019, after the issuance of Occupation Certificate on 31.05.2019. The Developer is however obligated to pay Delay Compensation for the period of delay which has occurred from 27.11.2018 till the date of offer of possession was made to the allottees.
........
Chart B allottees
(i) Insofar as the allottees in Chart B are concerned, they have paid part consideration, in most cases up to the 4th instalment till 2017, when they found that there was no progress being made in respect of the Towers in which the apartments had been allotted to them. It is an admitted position that Occupation Certificate for Towers A1, A2, A3, B7, C9 and C11, in which the allotments have been made for this category has not been issued by the Municipal Corporation.
The apartments have not been ready for allotment even as on 30.06.2020, as per the date fixed before the RERA Authority.
(ii) The allottees submitted that they were facing great hardship since they had obtained loans from Banks for purchasing these apartments, and were paying high rates of interest. In 2017, when they realised that there was no construction activity in progress, they were constrained to file consumer complaints before the National Commission, and then discontinued payment of further instalments.
(iii) The Developer made an alternate offer of allotment of apartments in Phase 1 of the project. The allottees are however not bound to accept the same because of the inordinate delay in completing the construction of the Towers where units were allotted to them. The Occupation Certificate is not available even as on date, which clearly amounts to deficiency of service. The allottees cannot be made to wait indefinitely for possession of the apartments allotted to them, nor can they be bound to take the apartments in Phase 1 of the project. The allottees have submitted that they have taken loans, and are paying high rates of interest to the tune of 7.9% etc. to the Banks.
Consequently, we hold that the allottees in Chart B are entitled to refund of the entire amount deposited by them.
(iv) In so far as award of compensation by payment of Interest is concerned, clause 13.4 of the Apartment Buyer's Agreement provides that the Developer shall be liable to pay the allottee compensation calculated @ 7.5 per sq. ft. of the Super Area for every month of delay, after the end of the Grace Period. The compensation will be payable only for a period of 12 months.
The Apartment Buyers in their Complaint filed before the National Commission made a prayer for refund of the amount deposited alongwith Interest @ 20% p.a. compounding quarterly till its realisation. The Apartment Buyers, in their submissions have stated that they have obtained home loans on which Interest @ 7.90% p.a. is being paid, even as on date.
We have considered the rival submissions made by both the parties. The Delay Compensation specified in the Apartment Buyer's Agreement of 7.5 per sq. ft. which translates to 0.9% to 1% p.a. on the amount deposited by the Apartment Buyer cannot be accepted as being adequate compensation for the delay in the construction of the project. At the same time, we cannot accept the claim of the Apartment Buyers for payment of compound interest @ 20% p.a., which has no nexus with the commercial realities of the prevailing market. We have also taken into consideration that in Subodh Pawar v. IREO Grace, this Court recorded the statement of the Counsel for the Developer that the amount would be refunded with Interest @ 10% p.a. A similar order was passed in the case of IREO v. Surendra Arora. However, the Order in these cases were passed prior to the out-break of the pandemic.
We are cognizant of the prevailing market conditions as a result of Covid-19 Pandemic, which have greatly impacted the construction industry.
In these circumstances, it is necessary to balance the competing interest of both parties. We think it would be in the interests of justice and fair play that the amounts deposited by the Apartment Buyers is refunded with Interest @ 9% S.I. per annum from 27.11.2018 till the date of payment of the entire amount.
The refund will be paid within a period of three months from the date of this judgment. If there is any further delay, the Developer will be liable to pay default interest @ 12% S.I. p.a.
(v) The Developer shall not deduct the Earnest Money of 20% from the principal amount, or any other amount as mentioned in Clause 21.3 of the Agreement, on account of the various defaults committed by the Developer, including the delay of over 7 months in obtaining the Fire NOC."
In the Abhishek Khanna’s case (supra), the Hon’ble Supreme Court has categorized the Allottees/Home Buyers in two Charts. Chart ‘A’ pertains to those towers/Buildings where the Occupation Certification has been granted to the Developer and the Apex Court has held that since the Occupation Certificate has been obtained by the Developer, the Allottee cannot seek the refund of the deposited amount and they are bound to accept the offer of possession. Chart ‘B’ belongs to those Towers where the Occupation Certificate has not been obtained by the Developer and the Hon’ble Supreme Court has directed the Developer to refund the amount deposited by the purchasers with interest @9% p.a as the Purchasers cannot be asked to wait indefinitely for delivery of the possession of the booked Apartments/Flats.
In the case in hand, there is no dispute that the Offer Of Possession was made by the Developer to the Members of the Complainant Association on 16.07.2018 after obtaining the Occupation Certificate dated 19.06.2018. However, it is urged by the learned Counsel for the Complainant Association that the basic amenities like road, electricity sub-station, water connection have not been provided by the Developer. The promised Recreational Club equipped with a swimming pool, gymnasium restaurant, spa and sports facilities have also not been provided by the Developer. As against this, learned Counsel appearing for the Developer submitted that the Project was completed in all respects including roads, storm water line, water lines, sewerage network, street lighting etc. and at present 270 families are residing the in the said Project.
During the pendency of the Complaint, I.A No. 3452 of 2021 was filed by the Complainant Association seeking permission to place on record Affidavits of some Home Buyer residing in the Project. In one of the said Affidavits sworn on 17.01.2011 by one Ms Shalini David, it is stated as under:-
“3. I say that the following facilities were not constructed/available at the time of deriving the position of my flat and the Responded promised and assured that the facilities would be created and given position thereof very shortly. Even after 24 months, neither the facilities have been constructed nor till date is there any sign of construction of these facilities at the Parklands pride complex:
i. Club (Gym and swimming pool as part of club)
ii. Sports arena at PB Block
iii. STP and WTP
iv. Approved sanctional load for electricity
v. Water connection from HUDA & Sewer connection to main line
vi. Rain Harvesting system
vii. High school and Junior School
viii. Temple/Religious Building
ix. Shopping complex
x. Milk and vegetable Booths
xi. Volleyball Court, Cricket pitch & Rubber flooring in 2 parks
xii. Three tier security (Boundary walls, Entry Gates, Boom Barrier, CCTV to be made functional
I say that non construction/provision of the above facilities is a glaring example of the deficiency of service on the part of the Respondent.
Similar Affidavits of some other Home Buyers residing in the Project, namely, “Parklands Pride” have been filed by the Complainant Association stating that the basic facilities are yet to be provided by the Developer. Even, on going through the record, we also find that the Occupation Certificate obtained by the Builder on 19.06.2018 has not been placed on record. Under these circumstances, we have been left with no option except to accept that the Project is still not complete and the Allottees as has been held by the Apex Court in Abhishek’s Khanna case (supra), cannot be asked to wait indefinitely for handing over the possession of the booked Apartment, complete in all respects as per the terms and conditions of the Agreement. Therefore, if the Allottees are not interested to take the possession of their respective Apartments as the Project is still not complete they are very much within their right to seek refund of the amount deposited with the Developer with some reasonable compensation despite of the fact that no such prayer of refund has been made by them.
Respectfully following the principle laid down by the Hon’ble Supreme Court in the case of “Abhishek Khanna’s case (supra) the present Consumer Complaint stands disposed off in following terms:-
The Members of the Complainant Association are directed to take possession, if they so desire, of the booked Apartments after completion of the Project as per the terms of the Floor Buyer’s Agreement;
The Opposite Party Developer shall furnish the complete details of the outstanding amount to the Allottees with the reason of enhancement, if any;
The Opposite Party Developer is directed to pay Delay Compensation in the form of simple interest @9% p.a. on amount deposited by the Allottee for the period of delay which has occurred from the committed date of possession including grace period till the date of the offer of possession, i.e., 16.07.2018 as the Occupation Certificate (O.C.) had been issued on 19.06.2018.
The Opposite Party Developer shall work out the Delay Compensation after making adjustment of the outstanding charges payable by the Complainants and make payment of the Compensation to the Complainants within six weeks from today;
After adjusting the Delay Compensation, if any amount remains payable by the Allottee, then the Allottee will make the payment of the shortfall to the Opposite Party Developer within six weeks from today;
The Opposite Party Developer shall deliver the possession of the allotted Apartments to the Allottees, if not already delivered, within eight weeks from today; and
In case, the Allottee is not interested to take possession of allotted Apartment, the Developer shall refund the entire deposited amount with interest @ 9% p.a. from the respective date of deposit till 16.07.2018, i.e., the actual date of offer of possession, within a period of six weeks from today failing which the amount shall carry interest @ 12% p.a. for the same period. The Allottee shall also be entitled for a sum of ₹50,000/- as costs of litigation. ”
The Order dated 14.02.2022 has been sought to be reviewed by the Review Petitioners/Opposite Parties mainly on the following grounds:-
a) Because this Hon’ble Commission while passing the Order dated 14.02.2022 relied on the decision of the Hon’ble Supreme Court in the case of Ireo Greace Realtech Pvt. Ltd. Vs Abhishek Khanna & Ors. (Civil Appeal No. 5785/2019 & other connected Appeal dated 11.1.2021), wherein it was held that the allottees are obligated to take possession of the Apartments, since construction was completed and possession was offered. In the case in hand vide Order dated 14.02.2022 it has not been denied by this Hon’ble Commission that the Occupation Certificate exist and was issued by the competent authority. It is submitted that there cannot be dispute with regard to the grant of occupation certificates, which were issued only after the dwelling Units were completed along with all essential infrastructure works of the colony i.e. road, sewer, water line, electricity etc.
(b) Because an Application at the stage of final arguments cannot be permitted to be filed without issuing notice and giving an opportunity to the Applicants to respond to the same after the right to file the evidence of both the parties was closed and the Complaint was taken up for final hearing. It is submitted that this Hon’ble Commission ought to have considered the fact that the averments made in the said affidavits has no authenticity, more particularly when the persons filing the affidavits were not party of the Complaint or were not before the Hon’ble Commission in any capacity.
(b) Because the project was complete at the time of grant of Occupation Certificates. The possession of the Units in question were offered by the Applicants after the Internal Development works as prescribed by the Haryana Development and Regulation of Urban Areas Act, 1975 were completed.
(c) All the facilities and amenities essentially required for efficient use of the said floor/ property for residential purpose were made available by the Applicants at the time of issuance of Offer of Possession. These facilities were duly provided by the Applicants, the same can be demonstrated by the fact that more than 250 families are residing in the colony of project “Parklands Pride” in the said regard photographs as Annexure RA/4 colly supra are being filed by the Applicants showcasing the presence of the facilities and amenities essentially required for efficient use of the Units for residential purpose.
The Review Application was listed for hearing in Chamber on 09.03.2022 and notice was directed to be issued to all the parties. However, despite service of notice, nobody put in appearance on behalf of the Complainant Association.
We have heard Ms. Nidhi Tewari, learning Counsel appearing for the Opposite Parties on the Review Application. While reserving the Orders in the Review Application on 19.07.2022, liberty was granted to the Counsel for the Review Petitioner to file Written Submissions however, the said opportunity has not been availed of by her by filing the same.
The gist of the arguments of the Learned Counsel for the Opposite Parties is that after closing of the right of both the parties to file evidence and at the stage of final hearing, an Interim Application No. 3452 of 2021 was filed by the Complainant Association seeking leave of this Commission to place on record certain Affidavits of some individuals who were not impleaded as parties in the Complaint. In the Affidavits sought to be placed on record, it is alleged by some of the Flat buyers that certain facilities/amenities such as club, sports arena, STP and WTP, sanctioned load for electricity, water connection from HUDA, Sewer connection to main line, rain harvesting system, Schools, Temple, shopping complex, Milk and vegetable booths, Security, etc. have not been provided by the Opposite Parties as promised. It is fervidly urged by the Counsel for the Opposite Parties that neither any notice on the said Application was issued to the Opposite Parties nor any opportunity was granted to contest the contents of the Application. She also argued that the aforesaid facilities mentioned in the said Affidavits as not available in the Parklands Pride, are not of the essential and fundamental nature for residing in a colony and more so all these facilities have been provided which is substantiated by the fact that more than 250 families are already residing in the “Parklands Pride”.
Learned Counsel for the Review Petitioner further strenuously contended that there is no dispute between the parties that after the completion of the Project, in all respect including road, sewer, water lines, electricity etc., the Occupation Certificate was issued by the Competent Authorities and an offer of possession was made to the individual Complainants with respect to the dwelling Unit booked by them. The copies of the Completion Certificates in respect of the dwelling units booked by the Complainants have been annexed with the Application. It is vehemently pleaded by the Learned Counsel for the Applicant that non-filing of the Occupation Certificates on the record due to an oversight, cannot be considered, by any stretch of imagination, a ground for an option to the Allottees to seek refund instead of possession in the light of the decision of the Hon’ble Apex Court in the case of Abhishek Khanna (Supra) wherein it has been specifically held that the allottees are obligated to take possession of the Apartments, since construction was completed, Occupation Certificate has been issued by the Competent Authorities and possession has been offered. She has further vigorously submitted that the alternate direction given by this Commission to the Opposite Party Developer to refund the amount with interest @ 9% p.a. to the Flat Buyers who are not willing to take possession despite the fact that all the necessary facilities and amenities have been provided in the Project and 250 families are already residing in the Colony, requires to be recalled and all the Complainants are to be directed to take possession of the respective booked Dwelling Units with delayed compensation subject to adjustment of the outstanding dues as demanded by the Opposite Party.
We have given our thoughtful consideration to all the submissions made by the Learned Counsel for the Review Petitioner/Opposite Parties. 08. Having perused the Order sought to be reviewed and the grounds urged in the Review Application, we are of the considered view that there is some substance in the submissions made by the Learned Counsel for the Opposite Parties. The Members of the Complainant Association had booked their Flats/Apartments with the Opposite Party Developer during the period from April 2011 to July 2012 and thereafter the Floor Buyers Agreements were executed between the respective parties in the year 2013. In terms of Clause 5.1 of the Agreement, the possession of the Apartments booked by the Members of the Complainant Association was to be delivered to them within a period of 30 months from the date of execution of the Agreement with a grace period of 180 days that means the Developer was under an obligation to complete the Project and offer the possession of the dwelling units, complete in all respect around July 2015. There is no dispute between the parties that the Occupation Certificate in respect of the Project, namely “Parkland Pride” was issued by the Competent Authorities to the Opposite Party Developer in June 2018 and as such admittedly there is delay of more than 3 years in completing the Project. It is also undisputed that an offer of possession after obtaining the Occupation Certificate was made to the Members of the Complainant Association in July 2018. As extracted above, the Hon’ble Supreme Court in the case of Abhishek Khanna (Supra) has laid down a principal that in the cases where the Occupation Certificate has been obtained by the Developer, the Flat Buyers are obligated to take possession of the apartment, however, they will be entitled for the delayed compensation from the committed date till offer of possession. In the Review Application, it has been submitted that the facilities/amenities which have been alleged to be not provided as per the Affidavits sought to be filed on record by Interim Application No. 3452 of 2021, have already been provided in the Project. For sewerage, the Opposite Parties had been granted consent to establish for the Project on the basis of which STP has been made operational and functional and treated water is being used in parks and for horticulture purposes. Further, Drinking Water is being supplied for 24 hours through overhead tanks of the Colony. The electricity scheme has been sanctioned and partial load of 2 MVA has been released. The regulation connection for water and sewer has been applied with HSVP. The Multiple Rain Water Harvesting System is in place in the colony. Besides, there are many high school and junior schools in vicinity of the Project etc.
For the reasons stated above and in the interest of justice, we are of the considered opinion that the Review Application filed by the Opposite Parties has some merit and deserves to be allowed. Consequently, while allowing the Review Application we recall the direction to the Opposite Parties to refund the principal amount deposited by the Members of the Complainant Association who are not interested in taking the possession and direct the Opposite Parties to deliver the possession to the Members of the Complainant Association in terms of the Order dated 14.02.2022.