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Judgment
Heard Mr. Nitin Chandran, Advocate, for the complainants and Mr. TVS Raghavendra, Advocate, for the opposite parties.
Sanjay Chaudhary and Devki Nandan Verma have filed above complaint, for setting aside Intimation for Possession and demand letter, demanding Rs.5389704/- and directing opposite parties to (i) complete construction of Unit no. TB-1001, super area 4111 sq.ft. and handover its physical possession to the complainants, (ii) pay Rs.2433120/- as compensation for delayed possession, (iii) pay Rs.20/- lacs, as compensation; and (iv) any other relief which is deemed fit and proper in the facts and circumstances of the case;
The complainants stated that Pioneer Urban Land & Infrastructure Limited (opposite party-1) 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. Sh. Manish Periwal (opposite party-2) was its director. The opposite parties launched a group housing project, in the name of “Presidia” at village Ghatta, Sector-62, Gurgaon, in the year 2010 and made wide publicity of its facilities and amenities. Believing upon the representations and promises of the opposite parties, the complainants booked a flat and deposited Rs.1500000/- on 07.06.2010. The opposite parties allotted Unit no.TB-1001, super area 4111 sq.ft. total sale consideration of Rs.23820932/-. As per demand, the complainants deposited Rs.1500000/- on 08.07.2010 and Rs.3114186/- on 04.08.2010. The opposite parties executed Buyer’s Agreement on 16.09.2010, in respect of said Unit. Annexure-3 of the agreement provides payment plan as “construction link payment plan”. Clause-9.2 of the agreement provides 36 months period from the date of signing the agreement, for applying for “occupation certificate” and grace period of 180 days, for obtaining “occupation certificate” and offer of possession. Clause-9.5 of the agreement provides for delayed compensation @Rs.5/- per sq.ft. per month on super area, for a period of 12 months and thereafter @Rs.10/- per sq.ft. per month on super area. The complainants diligently followed payment plan and demand letters and paid total Rs.22156942.42 till September, 2014. Only two instalments i.e. one on receipt of “occupation certificate” and other on “intimation for possession” were due. The period of 36 months expired in 16.09.2013 and grace period of 180 days expired on 16.03.2014, but the opposite parties did not offer possession nor paid delayed compensation. The opposite parties issued letter dated 13.11.2017, as “Intimation for Possession” and demanded Rs.5389704/- in different heads, after adjusting delayed compensation of Rs.1373414/-, to be deposited till 04.12.2017. The complainants, through legal notice dated 18.12.2017 protested the demands of (i) Rs.3181060/- for increase of “super area”, (ii) Rs.88500/- as Club charges, (ii) Rs.271636/- as charges for Electric Sub-station and Legal Charges, (iv) Rs.1283044/-, on receipt of “occupation certificate”, (v) Rs.12624/- as interest on delayed payment, (vi) Rs.430277/- towards Haryana VAT (due to increase of tax), (vii) Rs.211063/- as Common Area Maintenance Charges” and (viii) deficient payment of delayed compensation. In spite of service of the notice, the opposite parties did not respond. Then the complaint was filed on 07.03.2018, alleging unfair trade practice.
The opposite parties have filed its written reply on 21.05.2018 and contested the complaint, in which, booking of the flat on 07.06.2010, allotment of flat, execution of Buyer’s Agreement dated 16.09.2010 and deposits made by the complainants, have not been disputed. The opposite parties stated that building plan was sanctioned on 09.02.2011 and Fire NOC was obtained on 20.12.2011. Due to force majeure reasons i.e. construction of “Commonwealth Game Village” in Delhi, in the year 2009, Mahatma Gandhi National Rural Employment Guarantee Act, 2005 and Jawaharlal Nehru National Urban Renewal Mission, 2005, there had become shortage of labour in NCR region. Punjab and Haryana High Court vide order dated 16.07.2012 in CWP No.20032 of 2009, restrained the builders for using ground water. National Green Tribunal vide order dated 08.11.2016 stopped construction works till 15.11.2016. Demonetization took place in the country vide order dated 08.11.2016, due to which, there had been migration of labourers from urban area to their villages, the construction was delayed. The opposite parties gave contract for construction to M/s. Prathibha Industries Pvt. Ltd. on 09.12.2010, under which, the construction of the project had to be completed till 23.09.2013. However, the contractor was not proceeding according to time line. In March, 2013, the opposite parties found that construction would not be completed till 23.09.2013 as such the opposite parties engaged M/s. Urban Ecoinfra Pvt. Ltd. on 25.03.2013, for completing the project, within 18 months and foreclosed the contract of M/s. Prathibha Industries Pvt. Ltd. on 07.05.2013. M/s. Urban Ecoinfra Pvt. Ltd. also delayed construction and its contract was terminated on 31.05.2016. The opposite parties then undertook the project in their hand and completed construction and applied for issue of “occupation certificate” on 18.07.2017, which was issued on 14.11.2017. The opposite parties, vide letter 13.11.2017, intimated for possession to the complainants and demanded Rs.5389704/-, crediting delayed compensation of Rs.1373414/- in the account of the complainants, which was payable in terms of the agreement. Clause-1 of the agreement clarified that consideration of Rs.23820932/-, was for 4111 sq.ft. super area, two parking space, proportionate cost of lift, generator sets, electrical installations etc. Electrical installation means, installation inside the flat. It does not mean installation of Electric Sub-Station, which was mentioned in List of General Common Area & Facilities, in Annexure-IV of the agreement. According to total load of the project, Electricity Department required for installation of Electric Sub-Station for supply of electricity. The buyers have to bear its cost on pro-rata basis of their super area, which is common facility. Clause-1.3 of the agreement, clarified that “super area” as mentioned in the agreement was tentative and final area would be confirmed on issue of occupation certificate. Under clause-1.8, the buyers had agreed to make payment, if super area is increased up to 10%. In the agreement super area was mentioned as 4111 sq.ft. In final calculation super area was increased 273 sq.ft., which is about 6.6%. Under clause-2 of the agreement, the buyers have agreed to reimburse all the taxes paid by the developer to the government department. The complainants are liable to pay Haryana VAT, CGST, SGST. Two instalments i.e. one on receipt of “occupation certificate” and other on “intimation for possession” were due, which were demanded adjusting delayed compensation of Rs.1373414/-. Club Membership charges has been mentioned in Annexure-III of the agreement, for which the buyers have agreed to pay under clause-14. As per clause-13.2, the buyers have agreed to pay Interest Bearing Maintenance Security. Rs.12980/- was demanded as legal charges for registration of conveyance deed. Payment of Instalment payable on “completion of excavation” was delayed as such interest of Rs.12623.92 was demanded. The complainants, instead of depositing demanded amount and taking possession, gave legal notice dated 18.12.2017. The complaint has been filed on various false and frivolous allegations and is liable to be dismissed. Preliminary objection that the complainant was not a consumer and the agreement contained an arbitration clause as such the complainant be relegated for arbitration have been raised.
The complainants filed Rejoinder Reply, Affidavit of Evidence of Devki Nandan Verma and documentary evidence. The opposite parties filed Affidavit of Evidence of Kapil Bansal and documentary evidence. The complainants filed their written submissions.
We have considered the arguments of the parties and examined the record. The opposite party completed the construction and applied for issue of “occupation certificate” on 18.07.2017, which was issued on 14.11.2017. The opposite parties, vide letter 13.11.2017, intimated for possession to the complainants. Clause-9.2 of the agreement provides 36 months period from the date of signing the agreement, for applying for “occupation certificate” and grace period of 180 days, for obtaining “occupation certificate” and offer of possession. Agreement was executed on 16.09.2010. Due date for possession was 16.03.2014. As such there was delay in offer of possession.
The opposite parties took ground of force majeure reasons for delay. The reasons of construction of “Commonwealth Game Village” in Delhi, in the year 2009, Mahatma Gandhi National Rural Employment Guarantee Act, 2005 and Jawaharlal Nehru National Urban Renewal Mission, 2005, were very much there at the time of agreement. A perusal of statement of account shows that the opposite parties realized instalments up to the stage of “on completion of final roof slab” till 23.06.2014, i.e. 90% of total consideration. If the construction was not of that stage, then instalments would not have been demanded. In any case, agreement does not provide for extension of period due to force majeure. The opposite parties are liable to pay delayed compensation after 16.03.2014. The complainants have claimed delayed compensation of Rs.2433120/-. The opposite parties could not point out any illegality in it.
The complainants have challenged the demands of (i) Rs.3181060/- for increase of “super area”, (ii) Rs.88500/- as Club charges, (ii) Rs.271636/- as charges for Electric Sub-station and Legal Charges, (iv) Rs.1283044/-, on receipt of “occupation certificate”, (v) Rs.12624/- as interest on delayed payment, (vi) Rs.430277/- towards Haryana VAT (due to increase of tax), (vii) Rs.211063/- as Common Area Maintenance Charges”. Clause-1 of the agreement clarified that consideration of Rs.23820932/-, was for 4111 sq.ft. super area, two parking space, proportionate cost of lift, generator sets, electrical installations etc. Electrical installation means, installation inside the flat. List of General Common Area & Facilities, are given in Annexure-IV of the agreement, which was payable under clause-13.3. The buyers have to bear its cost on pro-rata basis of their super area. Clause-1.3 of the agreement, clarified that “super area” as mentioned in the agreement was tentative and final area would be confirmed on issue of occupation certificate. Under clause-1.8, the buyers had agreed to make payment, if super area is increased up to 10%. In the agreement super area was mentioned as 4111 sq.ft. In final calculation super area was increased 273 sq.ft., which is about 6.6%. Under clause-2 of the agreement, the buyers have agreed to reimburse all the taxes paid by the developer to the government department. The complainants are liable to pay Haryana VAT, CGST, SGST. Two instalments i.e. one on receipt of “occupation certificate” and other on “intimation for possession” were due, which were demanded adjusting delayed compensation of Rs.1373414/-. Club Membership charges has been mentioned in Annexure-III of the agreement, for which the buyers have agreed to pay under clause-14. As per clause-13.2, the buyers have agreed to pay Interest Bearing Maintenance Security. Rs.12980/- was demanded as legal charges for registration of conveyance deed. Payment of Instalment payable on “completion of excavation” was delayed as such interest of Rs.12623.92 was demanded. Supreme Court in Utpal Trehan Vs. DLF Home Developers Ltd., 2022 SCC OnLine SC 813, l Supreme Court in DLF Home Developers Ltd. Vs. Capital Green Flat Buyers Association, 2020 SCC OnLine SC 1125, upheld 10% increase in ‘super area’ and demand of its price. Other demands of the opposite parties were in accordance of terms of agreement.
ORDER
In view of the aforesaid discussions, the complaint is partly allowed. The opposite parties are directed to issue a fresh statement of account, duly crediting delayed compensation of Rs.2433120/- as on 13.11.2017, within one month of the judgment. On the balance amount (except stamp duty and registration charges), the opposite parties will charge interest @9% per annum, from 14.11.2017 till the date of payment. The complainants be given one month time to deposit the amount. On settlement of the account, the opposite parties will execute conveyance deed in favour of the complainants and handover possession of the unit, complete in all respect to them without any further delay.