Ritu Gupta vs Neelkanth Town Planners Pvt. Ltd. & Anr

V.K.Jain, J

One Sanjay Taneja booked a residential flat with the OP in a project namely 'Ouraina', which the OP was to develop in Sector-53 of Gurgaon at Golf Course Road, Gurgaon, Haryana. Flat No. 802 in the aforesaid project was allotted to him vide provisional allotment letter dated 15.10.2009. The said allotment was purchased by the complainant from the original allottee Mr. Sanjay Taneja and the said transfer was approved by the OP on 01.04.2010. An Apartment Buyers Agreement was then executed between the complainant and the OP on 25.10.2010. The allotment was made @ Rs.3,500/- per sq. ft., super area being 1968 sq. ft., PLC charges, car parking and power back up were payable in addition thereto. The basic sale price of the flat including PLC, car parking and power back up was Rs.73,75,600/-. The possession of the apartment was proposed to be delivered within three years from the execution of the said agreement dated 25.10.2010 unless there was delay due to reasons mentioned in clause 11.1, 11.2 and 11.3 and clause 37 or due to the failure of the allottee to pay the price of the apartment and other charges in time. Vide letter dated 20.07.2016, the OP requested the complainant to remit the balanced amount as per the statement of account so that the process of final possession could be initiated. The demand raised upon the complainant was detailed in a final statement of account as on 19.07.2016 annexed to the said letter. The complainant is disputing the aforesaid charges and her case is that the possession of the apartment was not offered to her despite she having already paid Rs.77,94,706/- to the OP. The complainant is therefore, before this Commission seeking possession of the allotted flat alongwith compensation etc.

The complaint has been resisted by the OP which has admitted the initial allotment made to Sh. Sanjay Taneja as well as the transfer of the allotment in favour of the complainant. The OP has also admitted the execution of the Buyers Agreement with the complainant on 25.10.2010 as also payment received from her. The complaint has been resisted by the OP primarily on the grounds on which CC No.417 of 2016 Alop Kumar Mittal Vs. Neelkanth Town Planner Pvt. Ltd. & Anr. decided by this Commission on 27.11.2017 was opposed.

This is not in dispute that the issues involved in this complaint are identical to the issues involved in Alop Kumar Mittal (supra) and the facts are identical except that the complainant is not the original allottee but is a subsequent purchaser of the flat. The aforesaid distinction, in my view, is not material, since the Buyers Agreement was executed directly with the complainant. Therefore, the view taken by this Commission in Alop Kumar Mittal (supra) would fully apply to this complaint.

The decision of this Commission in Alop Kumar Mittal (supra) to the extent it is relevant, reads as under:

During pendency of this complaint, the requisite Occupancy Certificate was received by the OP on 27.4.2016 and thereafter possession was offered to the complainant vide letter dated 26.5.2016.

The OP had sent a demand letter to the complainant demanding additional payment from them. The complainant is disputing the (1) demand of other charges amounting to Rs.273733/- and service tax on that amount, (2) car parking charges (3) interest bearing maintenance security and (4) administration charges and misc. expenses amounting to Rs.35,000/- along with service tax on that amount. In addition thereto the complainant is also disputing the extent of the super area for which he has been charged in the aforesaid letter.

As far as the super area of the flat is concerned, this Commission vide order dated 26.7.2017 directed as under:-

"The OP is directed to file an affidavit of its Architect explaining how the super area of the flat allotted to the complainant has been computed in the light of the definition of super area given in Annexure-1 to the Buyers Agreement. The OP shall also place on record a copy of the declaration, if any, made by it to any authority disclosing therein the super area of the flat allotted to the complainant. The report of the Architect will also explain which computations have led to the alleged increase in the super area of the flat allotted to the complainant. The complainant will also be entitled to file the report of a qualified Architect computing the super area of the flat allotted to him in the light of the definition of super area given in the Buyers Agreement."

The complainants did not file report of a qualified architect in terms of the aforesaid direction and stated that their architect cannot compute the super area of the flat allotted to them since it is not possible for him to compute the said area in the light of the definition of super area given in the Buyers Agreement. The OP has, however, filed the affidavit of its architect in compliance of the said direction and the aforesaid affidavit to the extent it is relevant, reads as under:-

"3. That I and my team calculated the Final Super Area of the Apartment bearing No. Coral, 507 in terms of the Apartment Buyer Agreement dated 01.07.2010 duly executed between the Complainants and the Respondent Company. In terms thereof and specifically as per Annexure I (mentioned at Page 39), Annexure 2 (mentioned at Page 40), Annexure 4 (Page 42-43) of the above mentioned Apartment Buyer Agreement. The Calculations of the Final Super Area of the above mentioned Apartment, Coral 507, is 119.1 sq. m or 1282 sq. feet, computed as per the details below:

a) Entire area enclosed by its peripheral walls including area under walls, columns, cupboards, lofts, and half of area of common walls with other apartment: 7 6.94sq. .

b) Area of the Exclusive Balconies, exclusive to the apartment : 10.87 sq.m.

c) Pro Rata Share of the Plumbing shaft, exclusive to the apartment: 1.95 sq.m.

d) From the total area of 2491.47 sq.m of the common areas in the said Building / Tower Coral, Pro-rata share for the Apartment Coral 507 is: 19.18 sq.m.

e) From the total of 4053.94 sq. m. of the common areas common to all apartments including those outside the said Building/ Tower Coral, Pro-rata Share of the Apartment Coral 507 is: 10.16 sq.m."

It is thus evident from the affidavit of Shri Pitamber Sahni, Architect of the OP that the super area of the flat allotted to the complainant, when calculated in terms of the agreement executed between the parties comes to 119.1 sq.mt. which is equivalent to 1282 sq.ft. In view of the aforesaid affidavit, I therefore find no merit in the objection to the extent it pertains to the extent of the super area for which the complainants have been charged by the OP.

As regards other charges amounting to Rs.273733/-, the learned counsel for the OP has drawn my attention to clause 1.1 (i) to (iii) of the Apartments Buyers Agreement, which reads as under:-

"i) Any tax paid or payable by the Company and/ or its contractors by way of Value Added Tax, State Sales Tax, Central Sales Tax, Works Contract Tax, Service Tax and Education Cess or any other taxes by whatever name called, in connection with the construction of the said Complex (hereinafter collectively referred to as "Taxes").

ii) The Apartment Allottee shall pay, in addition to the total price a price equal to the proportionate, share of Taxes; the proportionate share being calculated in the ratio of the Super Area of the said Apartment to the Super Area of all the apartments in the said Complex (hereinafter referred to 'the additional price').

iii) The Company shall periodically intimate to the ln tending Allottee, on the basis of certificates from a Charted Engineer and/ or a Chartered Accountant, the amount payable as additional price as stated in (ii) above and the Apartment Allottee shall make payment within 30 (Thirty) days of such intimation."

It would thus be seen that any tax paid or payable by the OP and / or its contractors in connection with the construction of the complex was to be paid by the flat buyers on a proportionate basis. The learned counsel for the OP has placed on record a certificate dated 13.7.2016 issued by Virender K. Gupta & Co., Chartered Accountants of the OP wherein it is stated that expenses amounting to Rs.107582569/- were incurred as per clause 1.1(i) & (ii) of the Buyers Agreement. The OP has also filed an affidavit stating therein that the share of the complainant in the aforesaid taxes comes to Rs.273733/-. Hence, there is no merit in the challenge to the aforesaid charges and service tax on those charges.

As far as club membership charges are concerned, the same are payable in terms of clause 1.12 of the Buyers Agreement but the said charges, in my view, can be recovered only when the club is fully functional. I, therefore, hold that the said charges will not be payable immediately but would be payable on demand when the club becomes fully functional.

As far as the interest bearing maintenance security is concerned, the learned counsel for the OP has drawn my attention to clause 14.2 of the Byers Agreement wherein it is clearly stated that interest bearing maintenance security calculated @ Rs.100 per sq.ft. of the super area of the apartment would be payable. In view of the aforesaid contractual obligation of the complainants, the OP is entitled to the aforesaid interest bearing maintenance security.

The OP has also demanded Rs.35,000/- towards administration charges and misc. expenses along with Rs.5250/- towards service tax on the said charges and misc. expenses. However, I find no obligation on the part of the flat buyer to pay the aforesaid administration charges and misc. expenses. I therefore, hold that the administration charges and misc. expenses amounting to Rs.35,000/- and service tax amounting to Rs.5250/- making an aggregate of Rs.40250/- are not payable by the complainants.

As far as car parking charges amounting to Rs.2,50,000/- are concerned, even if it is held that the covered car parking is a part of the common area, the cost of the said parking is payable by the flat buyer in terms of the buyers agreement. My attention has not been drawn to any statutory provision prohibiting the builder from recovering the said charges from the flat buyer despite the contractual obligation to pay the same. I therefore, hold that subject to the allocation of parking to the complainants, they are liable to pay the aforesaid charges.

The next question which arises for consideration in this complaint is as to what should be the quantum of compensation payable to the complainants for the delay in offering possession of the apartment. Admittedly, in terms of the Buyer's Agreement, the possession ought to have been offered by 1.7.2013. The said possession was offered vide letter dated 23.5.2016. The contention of the learned counsel for the OP is that they after completing the construction in all respects they had applied for the Occupancy Certificate way back on 1.7.2014 and the delay having occurred on the part of the concerned Authorities, the OP cannot be made to pay compensation for the time taken by the said authority in issuance of the Occupancy Certificate. The learned counsel for the complainant, however, has drawn my attention to the reply dated 21.7.2015 sent by the OP to the legal notice of the complainants. Para 4 of the said reply reads as under:-

"3. The Company has at all times been making earnest efforts to expedite the construction as well as timely delivery of the Apartments in the said Project, without compromising the quality and standards set by the Company in its various other Projects. It has already been intimated to your Clients that the construction of the Apartments is nearing completion, and we have already approached the competent officials of the Government to procure the Occupation Certificate as well as other statutory approvals and documents."

The aforesaid reply contradicts the stand taken in the letter dated 9.3.2015 wherein it was stated that the construction of the project was completed and the OP had already applied for the Occupancy Certificate with the concerned authorities, for offering the possession of the units.

The learned counsel for the opposite party has filed an affidavit of its authorized representative Mr. Rajesh Kumar to clarify the delay in offering the possession of the apartment to the complainant. The aforesaid affidavit, to the extent it is relevant reads as under:

"(a) I state that initially the license was issued in the name of M/s. Puri Construction Pvt. Ltd. I further state that after completion of the construction of the area in question, the Occupancy Certificate was applied for vide Application dated 01.7.2014 made to the Directorate, Town & Country Planning, Haryana. The said Application was complete in all respects. The copy thereof is annexed herewith as Annxure -A.

(b) I further state that as the License was in the name of M/s. Puri Construction Pvt. Ltd., any correspondence issued by Directorate, Town & Country Planning, Haryana was addressed to and received by M/s. Puri Construction Pvt. Ltd. and thereafter the same was sent to the office of the respondent company.

(c) I state that to the best of my knowledge and as per the records maintained by the respondent company as also the records of the correspondence sent by M/s. Puri Construction Pvt. Ltd., the respondent company received a letter dated 28.12.2015 regarding concerns of the authority with regard to application for the occupancy certificate. The copy of the letter dated 28.12.2015 is annexed herewith as Annexure-B.

(d) I state that there were some correspondences that were issued by the authority with regard to submission / resubmission of documents. The same were submitted to / responded to by the respondent. The respondent is carrying its record to the Hon'ble Commission for inspection if so required.

(e) Further, it is necessary to state that the finishing work/sanitary work referred to in the letter of the authority pertains to final finishing work of the project. I state that the final works include and refer to installation of shower fittings, taps, commode seat covers, wooden flooring, last coat of paint final deep cleaning of the apartment. I state that these are works that are done prior to handover to ensure that the customer gets the feeling of walking into a brand new apartment after taking over possession of his property".

It is thus evident that according to the opposite party, their predecessor in interest M/s. Puri Construction Pvt. Ltd. which applied on 01.7.2014 for the grant of the occupancy certificate. The opposite party claims not to be aware of the entire correspondence exchanged between Puri Construction Pvt. Ltd. and the District Town Planner, Gurgaon. Therefore it cannot be said that no objection was conveyed by the District Town Planner, Gurgaon to the completion plan submitted by the developer M/s. Puri Construction Pvt. Ltd. In any case, even in the letter dated 28.12.2015, which the opposite party itself has placed on record it was clearly stated by the District Town Planner, Gurgaon that on inspection of the site, it was found that the internal road was incomplete at the site and sanitary was incomplete. It is therefore evident that the construction was not complete in all respects at the time the predecessor in interest of opposite party applied for the occupancy certificate on 01.7.2014. This is also borne out from the reply of the opposite party dated 21.7.2015 sent to the complainant wherein it was clearly stated that the construction of the apartment was nearing completion, meaning thereby that it was not complete in all respects. Therefore, it is quite clear that the issuance of the occupancy certificate was delayed on account of the fact that the construction was not complete in all respects and the said delay cannot be attributable to the District Town Planner, Gurgaon. The opposite party therefore must compensate the complainant for the period till the possession was actually offered to him on 26.5.2016.

The next question which arises is as to how much is the quantum of compensation to be awarded, as the complainants have already received possession of the flat allotted to them. Considering all the facts and circumstances of the case, including the interest rates prevailing at the relevant time and the recent downwards trend in the interest rates, I am of the view that the opposite party should pay compensation in the form of simple interest @ 8% per annum to the complainants from the committed date of possession till 26.5.2016, when the possession as actually offered to him.

The learned counsel for the OP states that the OP has already filed an appeal before the Hon'ble Supreme Court against the decision of this Commission dated 27.11.2017 Alop Kumar Mittal (supra) as well as the order dated 09.02.2018 whereby a review application filed by the OP seeking review of the order of this Commission dated 27.11.2017 was dismissed by this Commission. Therefore, it would only be fair that whatever order the Hon'ble Supreme Court passes in the appeal, which the OP has already preferred against the decision of this Commission in Alop Kumar Mittal (supra) applies to this case as well. The complaint is therefore, disposed of with the following directions:

(i) The OP shall deliver possession of the flat in question complete in all respects to the complainant within 12 weeks from today.

(ii) The OP shall pay compensation in the form of simple interest @ 8% per annum to the complainant on the entire principal amount of Rs.77,94,706/- received by it, with effect from 25.10.2013 till 20.07.2016.

(iii) The OP shall, furnish to the complainant, within four weeks from today, proof of having paid service tax on the amount of Rs.10,75,82,569/- referred in para 8 of the order dated 27.11.2017 in Alop Kumar Mittal (supra) failing which the amount of Rs.66,746/- demanded as service tax on the amount of Rs.4,44,976/- which is stated to be the share of the complainant in the total expense of Rs.10,75,82,569/- shall not be payable.

(iv) Club membership shall be payable to the OP from the date the club becomes fully functional and intimation of the club having become fully function is given to the complainant.

(v) The amount comprising administrative charges and miscellaneous expenses and the service tax on that amount, will not be payable to the opposite party.

(vi) Rest of the amount payable to the opposite party in terms of the demand letter dated 20.07.2016 shall be paid within four weeks from today, along with interest on that amount @ 8% per annum, with effect from 20.07.2016.

(vii) The opposite party shall pay a sum of rs.25,000/- as the cost of litigation to the complainants.

(viii) The payment in terms of this order shall be made by the opposite party within three months from today.

(ix) The order if any, passed by the Hon'ble Supreme Court in the appeal preferred by the OP against the order of this Commission dated 27.11.2017 in CC No.417 of 2016 and the order dated 09.02.2018 in Alop Kumar Mittal (supra) shall apply to this complaint in supersession of the directions issued hereinabove.