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Judgment
V.K. Jain, J.
The complainants booked residential flats with the opposite party in a project namely “The Seven Lampsâ€, which the opposite party was to
develop in Sector 82 of Gurgaon. The complainants then executed individual Apartment Buyers agreements with the opposite party on different dates,
incorporating the respective obligations of the parties in respect of the said transactions. In terms of the schedule for possession contained in the said
Apartment Buyers agreements, the possession was to be delivered within a period of three years from the execution of the said agreements.
Computed from the date of the execution of the said agreements, the possession ought to have been delivered by 26.6.2015 in Consumer Complaint
No. 1176 of 2016, by 29.11.2014 in Consumer Complaint No. 1177 of 2016, by 21.11.2015 in Consumer Complaint No. 1178 of 2016, by 24.8.2014 in
Consumer Complaint No. 1179 of 2016, by 06.12.2014 in Consumer Complaint No. 1180 of 2016 and by 12.10.2014 in Consumer Complaint No. 1181
of 2016.
The opposite party offered possession of the said flats to the allottees on different dates. Admittedly, no occupancy certificate had been obtained by it,
by the date on which the possession was offered. The complainants are therefore before this Commission, seeking possession of the flats allotted to
them, along with compensation. They are also seeking refund of the parking charges paid by them to the opposite party, on the ground that the parking
area being part of the common areas and facilities, were required to be provided free of cost alongwith the apartment. Â
The complaints have been resisted by the opposite party which has taken a preliminary objection that this Commission lack pecuniary jurisdiction to
entertain the complaints. On merits it is alleged that there was some delay in offering possession but it occurred on account of the reasons beyond the
control of the opposite party. It is also the case of the opposite party that they have since obtained the requisite occupancy certificate on 17.10.2017 in
the name of one of its subsidiary namely Shiv Ganesh Buildtech Pvt. Ltd.
As far as the pecuniary jurisdiction is concerned, though the compensation claimed by the complainants is much more, even if the compensation for
the delayed possession with effect from the committed date of possession till the date of filing of the consumer complaints is computed @ 12% per
annum and the amount of parking charges is added to, the aggregate comes to more than Rupees one crore. Therefore, in view of the decision
rendered by a Three-Members of the Commission in CC No.97 of 2016 - Ambrish Kumar Shukla & Ors. Vs. Ferrous infrastructure Pvt. Ltd. decided
on 07.10.2016 , this Commission would have pecuniary jurisdiction to entertain these complaints.
As far as the delay in offering possession of the flats is concerned, one plea taken by the opposite party is that part of the land on which the project
was to come up was notified by GAIL for laying down its gas pipeline. The learned counsel for the complainants has however, pointed out that the
Notification in this regard was issued by GAIL way back in the year 2009 whereas the Apartment Buyers Agreements with the complainants were
executed much later. Having promised to give possession of the flats within three years from the execution of the apartment buyers agreement,
despite the aforesaid Notification issued by GAIL, the opposite party cannot be heard to say that the completion of the project was delayed on account
of the aforesaid issue.
It is also submitted by the learned counsel for the opposite party that Government of Haryana had issued an order stopping the use of the ground
water for construction purposes and that delayed the completion of the project. The learned counsel for the complainants however, has pointed out
that prohibition contained in the order issue by Deputy Commissioner Gurgaon was applicable to only those cases where ground water was being used
for construction purpose, in violation of the terms of which the environmental clearance was granted. The opposite party could not have used the
ground water if the conditions attached to the environmental clearance prohibited it from doing so and if it wanted to use the said ground water for
construction purposes, in violation of the conditions on which the environmental clearance had been granted that would not be a justified reason for
delaying the construction of the flats. In any case, it was for the opposite party to arrange water from the alternate sources for construction purposes
if it was prohibited by law from using the ground water at the site of the project for construction purposes. The flat buyers cannot be blamed for the
situation which the opposite party created by its own act and conduct.
It is an admitted case that the requisite occupancy certificate has since been obtained on 17.10.2017. The learned counsel for the opposite party
states that Shiv Ganesh Buildtech Pvt. Ltd. in whose name the occupancy certificate is obtained is a subsidiary of the opposite party Under Section 2
(87) of the Companies Act 2013. He further states that M/s. Alden Developers Pvt. Ltd., whose name finds reference in the apartment buyers
agreement was also a subsidiary of the opposite party Vatika Ltd., and later on the aforesaid company had merged with Shiv Ganesh Buildtech Pvt.
Ltd. in terms of the order passed by the Hon’ble High Court of Delhi on 16.3.2012. Subsequently, Shiv Ganesh Buildtech Pvt. Ltd. is stated to
have become Vatika One India Next Pvt. Ltd., in the year 2015. It is therefore evident that the opposite party is now in a position to offer possession
of the flats allotted to the complainants. The earlier offer made by the opposite party, before obtaining the requisite occupancy certificate was illegal
since the law does not permit it to give possession of the flat without obtaining the occupancy certificate.
The next question arises for consideration is as to whether the complainants are entitled to refund of the parking charges recovered from them. The
learned counsel for the complainants has not been able to draw my attention to any legal provision which obligate the builder to provide a parking site
free of cost to the apartment buyers. The opposite party is seeking to charge only such amount as the cost of the parking as was agreed between the
parties and therefore, the complainants in my opinion are required to pay the said amount to the opposite party.
Coming to the quantum of compensation for the period the possession has been delayed the contention of the learned counsel for the opposite party
is that since some of the complainants themselves are in default, they are not entitled to any compensation whatsoever. Reliance in this regard is
placed upon Clause 14 and 17 of the Apartment Buyers agreement. I have perused the aforesaid clauses. Though, the opposite party was entitled to
recover interest for the delayed payment, it has in its wisdom chosen to waive the said interest. The complainants, on the other hand have not waived
or relinquished their legal right to claim compensation for the deficiency in the services offered to them. Therefore, in my opinion, they are entitled to
appropriate compensation for the period the possession has been delayed. Consideration the prevailing interest rates in the market rate, I am of the
considered view that the opposite should pay compensation in the form of simple interest @ 8% per annum with effect from three years from the date
of execution of the apartment buyers agreement till the date on which possession is offered, in terms of this order, to the complainants.
For the reasons stated hereinabove, the complaints are disposed of with the following directions:
(i) The opposite party shall issue letters, offering possession of the flats to the concerned complainants within four weeks from today;
(ii) The holding charges and maintenance charges shall be payable only if the complainants commit any delay in taking over the possession of the flats
pursuant to the offer of possession to be issued by the opposite party in compliance of this order;
(iii) All the requisite documents will be executed by the complainants before taking possession of their respective flats in terms of this order.
(iv) The opposite party shall fully comply with the terms and conditions contained in the occupancy certificate dated 17.10.2017 unless all such
conditions have already been complied.
(v) The construction of the flats would be complete in all respects and they will be free from any defect whatsoever at the time the possession is
delivered to the complainants.
(vi) The opposite party shall not be entitled to recover any amount as the administration charges either before or after giving possession of the flats to
the complainants, or before registering and executing requisite conveyance deeds in their favour.
(vii) The balance amount, if any, payable by any of the complainants to the opposite party shall be paid within two weeks from today after adjusting
the compensation payable in terms of this order.
(viii) The opposite party shall in the letter offering possession of the flat indicate the amount payable by such allottees after adjustment of the
compensation payable by them, in terms of this order.
(ix) The opposite party shall pay Rs.25,000/- as the cost of litigation in each complaint.