RP City Welfare Association vs M/s Ramprastha Promoters & Developers (Pvt) Ltd

Ram Surat Ram Maurya, Presiding Member

Heard Mr. Sushil Kaushik, Advocate, for the complainant and Mr. Gagan Gupta, Advocate, for opposite party.

R.P. City Welfare Association (an association, registered under Haryana Registration & Regulation of Societies Act, 2012) has filed above complaint for directing the opposite party to (i) handover possession of the flats, complete in all respect as per specifications, forthwith or in alternative to refund money @Rs.7000/- per sq.ft. calculated on the size of the flats of each home buyer, (ii) to pay compensatory interest @18% per annum, on the deposit of each home buyer from due date of possession till the date of handing over of the possession, due to delay in delivery of possession, (iii) to pay Rs.5/- lacs, as the cost of litigation; and, (iv) any other relief which may be deemed fit and proper in the facts and circumstances of the case.

The complainant stated that R.P. City Welfare Association was an Association, formed by the home buyers with object to protect the right and interest of home buyers, in the projects of M/s. Ramprastha Promoters and Developers Private Limited and registered under Haryana Registration & Regulation of Societies Act, 2012. The present complaint has been filed for the benefits of 111 home buyers of different sizes in the project “The Edge Towers”. M/s. Ramprastha Promoters and Developers Private Limited (the opposite party) (the developer) was a company, incorporated 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 developer launched a project of “The Edge Towers” at Southern Court, Ramprastha City, Sector-37-D, Gurgaon, in the year 2008 and made wide publicity of it. Attracting with lucrative representation and believing on it, the members of the association booked one flat each for them of 2BHK to 4BHK (super area, ranging from 1310 Sq.ft. to 2525 sq.ft.) at the rate of Rs.2350/- per sq.ft. on different dates in the year 2009 to 2013. At the time of booking, the home buyers deposited booking amount, i.e. 10% of basic sale price. Within 60 days, they were required to deposit 15% more of basic sale price. On deposit of 25% amount, Provisional Allotment Letters were issued to them. The developer executed an Apartment Buyer’s Agreement on different dates in the year 2009 to 2013. Annexure-II of the agreement contained “Construction Linked Payment Plan” under which, 90% of basic sale price had to be paid up to various level of the construction, 5% on receipt of “Occupation Certificate” and 5% at the time of offer of possession. Clause-15(a) of the agreement provides due date of possession as 31.08.2012, with grace period of 120 days. According to the payment plan, 90% of basic sale price was realized from the home buyers before due date of possession. Some of the home buyers have taken loan from financial institution for payment of their instalments. When possession was not offered on due date of possession including grace period, the home buyers made inquiry in this respect from the office of the developer then some new dates used to be informed time to time. The home buyers visited the site of the project and found that even brick work and plaster was not completed. The developer posted construction update on its website on 03.07.2015, uploading photographs of the site, which shows that the construction was standstill. The developer was delaying construction unreasonably due to which, the home buyers have to pay EMI of their loan and also bear rent of their residence. The developer focused upon their other projects namely Skyz, Rise and Primera and ignored this project. As per clause-14(a) of the agreement, the home buyers had to pay interest @18% per annum, in case of delay in payment of instalment as such they are also entitled for compensation for delayed possession at the same rate of interest on their deposits. Alleging that the developer has committed deficiency in service, the complaint was filed on 14.08.2015.

The opposite party filed its written reply and contested the complaint. The material facts relating to allotment of the flats to the members of the complainant association, execution of Apartment Buyer’s Agreements in their favour and deposits made by them, have not been disputed. It has been stated that the construction was delayed as the developer had to face issues with the contractors, engaged for the construction works and for supply of the labours, which not only caused delay but also innumerable loss to the developer. They were also prevented from raising the construction for other force majeure reasons, namely (i) Unavailability of building materials, like bricks and sand, at several times. ii) Unavailability of labour due to Government Scheme under Mahatma Gandhi National Rural Employment Guarantee Act, 2005. (iii) National Green Tribunal, vide order dated 05.08.2013, imposed restriction on mining of sand, from river beds. (iv) High Court restricted from using ground water in construction works. Despite above problems, the developer is proceeding with construction works, which was liable to be completed in near future. Under Clause-17(a), delayed compensation was agreed @ Rs.5/- per sq.ft. per month of super area. The complainant be relegated for Arbitration.

The complainant filed Rejoinder Reply, in which, the facts stated in the complaint were reiterated. The complainant filed Affidavit of Evidence of Pradip Kumar Rahi and documentary evidence. The opposite party filed Affidavit of Evidence of Amit Yadav and documentary evidence. In the Affidavit of Evidence of Amit Yadav, it has also been stated that the construction was completed in the year 2017. The builder applied for issue of “Occupation Certificate”, which was issued on 13.02.2018.  Thereafter, the home buyers were offered possession. 40 home buyers of the complainant association have taken possession, after obtaining “Occupation Certificate”, out of whom 14 home buyers have also settled their dispute with respect of delayed compensation. Delay in offer of possession occurred for the reasons beyond the control of the developer and is liable to be condoned under Clause-15(b) of the Apartment Buyer’s Agreement.  Both the parties filed their short synopsis.

I have considered the arguments of the parties and examined the record. The developer has not filed any evidence to prove that the work was actually stopped on the site due to alleged force majeure reasons as pleaded. Clause-15(a) of the agreement provides due date of possession as 31.08.2012, with grace period of 120 days. As such due date of possession was 31.12.2012. A perusal of chart filed by the complainant shows that one Apartment Buyer’s Agreement was executed on 11.11.2009 while one agreement was executed on 01.08.2013. As such, for all the home buyers same date cannot be fixed as due date for possession. The developer shall treat 40 months from the date of each agreement as due date of possession for that home buyer. “Occupancy Certificate” was obtained on 13.02.2018.

Supreme Court in Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes, Pvt. Ltd., (2020) 16 SCC 512, and Civil Appeal No.1232 of 2019 R.V. Prasannakumar Vs. Mantri Castles Pvt. Ltd. (decided on 11.02.2019), held that delayed compensation is payable in the shape of interest @6% per annum on the deposit of home buyers from due date of possession till the offer of possession. In Banglore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 442, held that in the matter of contractual obligation, there is no scope for compensation for mental agony and harassment. In DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda, II (2019) CPJ 117 (SC) held when interest is awarded as compensation then awarding additional compensation was not justified.

The builder in its affidavit of evidence has shown that some of the home buyers have taken possession and settled their claim in respect of delayed compensation. They also executed indemnity bond, as such, the complaint in respect of the home buyers who have settled their claim is not liable to be allowed.  The counsel for the complainant submits that the indemnity bond was executed under the condition of handing over possession which amounts to coercion. Therefore, all the home buyers for whose benefits this complaint has been filed were entitled for delayed compensation. I have examined the record, but do not find any settlement deed executed between the parties. Supreme Court in Wg.Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512, held that if there was no specific settlement deed, then the matter cannot be held as settled.

All the home buyers for whose benefit, this complaint has been filed would be entitled for delayed compensation in the shape of interest @6% per annum on their deposit from due date of possession till the offer of possession. The developer shall issue a fresh Statement of Account strictly in terms of Apartment Buyer’s Agreement duly crediting delayed compensation in the shape of interest @6% per annum on the deposit of home buyer from due date of possession till the offer of possession, within a period of one month to the home buyers. If according to Statement of Account, any money is payable to the home buyers, the developer shall give it to them. If the home buyers are required to deposit any amount, they will deposit it within six weeks from the date of service of Statement of Account. On settlement of the account, the developer shall execute conveyance deed in favour of the home buyers and deliver possession to them over their flats within two weeks thereafter, to whom possession was not handed over.

ORDER

In view of the aforesaid discussions, the complaint is partly allowed. The opposite party is directed to issue a fresh Statement of Account strictly in terms of Apartment Buyer’s Agreement duly crediting delayed compensation in the shape of interest @6% per annum on the deposit of the home buyers, from due date of possession till the offer of possession, within a period of one month to the home buyers for whose benefit this complaint has been filed. If according to Statement of Account, any money is payable to the home buyers, the developer shall give it to them at the same time. If the home buyers are required to deposit any amount, they will deposit it within six weeks from the date of service of Statement of Account. On settlement of the account, the developer shall execute conveyance deed in favour of the home buyers and deliver possession to them over their flats within two weeks thereafter. If “Occupation Certificate” has not been obtained for any Tower, the developer shall complete the construction and obtain “Occupation Certificate” within four months from the date of this judgement and offer possession thereafter without further delay.