Sneh Chaudhary vs M/s Satya Developers Pvt. Ltd

Heard Mrs. Sneh Chaudhary, the complainant, in person and Ms. Kaadambari Jain, Advocate, for the opposite party.

Sneh Chaudhary has filed above complaint for following reliefs:

(a) to direct the opposite party to either handover the possession of Flat No. 402 in Tower-5 in “The Hermitage”, Gurgaon to the complainant or to pay back the amount of rupees eighty nine lacs, eighty three thousand with interest @18% per annum from the date of deposit till the date of payment to the complainant.

(b) further to pay interest @18% -24%, on above amount, from the date deposit till the date of possession.

(c) to pay penalty in the shape of interest @18%, per annum, for delay in possession.

(d) to pay compensation of Rs.30/- lacs, for mental agony and harassment.

(e) direct the opposite party to charge Rs.8040248/- only, as price of flat.

(f) direct to execute sale deed in favour of the complainant.

(g) award exemplary cost to the complainant.

(h) any other order, as may be deemed fit and appropriate may also kindly be passed.

(i) to pay cost of litigation of Rs.5/- lacs.

The complainant stated that M/s. Satya Developers Pvt. Ltd. (the opposite party) (the builder) was a company, registered under the Companies Act, 1956 and is engaged in the business of developing and constructing residential and commercial building and selling its unit to the prospective buyers. The builder launched a project of group housing in the name of “The Hermitage” at Sector-103, Gurgaon, Haryana, in the year 2011. One Mrs. Devika Chhikara w/o Dr. D.V. Chhikara applied for allotment of a flat on 20.01.2012 and deposited Rs.1978750/-. The builder allotted Flat No.T-5-402 (super area 2505 sq.ft., Basic Sale Price Rs.7914998/- and Preferential Location Charge Rs.125250/-) to her in “The Hermitage”. The builder executed Buyer’s Agreement dated 06.02.2012, in her favour, which provided “Construction Linked Payment Plan”. Mrs. Devika Chhikara made payment as per demand of the builder. The complainant was looking for a flat in that locality. Mrs. Devika Chhikara agreed to sell her Flat No.T-5-402 to the complainant. The complainant and Mrs. Devika Chhikara visited the office of the builder and discussed in respect of this flat. The officials of the builder informed that the construction was going on in full swing and they would complete construction and handover possession within 42 months from the date of the agreement. On assurance given by the officials of the builder in respect of timely possession, the complainant decided to purchase Flat No.T-5-402, for which the builder granted permission. Mrs. Devika Chhikara transferred Flat No.T-5-402, in favour of the complainant on 26.02.2014, after taking consideration. Thereafter, the complainant deposited instalments as per demand. Mrs. Devika Chhikara and the complainant deposited total Rs.8983589/- up to 22.04.2016, which was proved from Statement of Account of the complainant as maintained by the builder. Under Buyers Agreement, possession had to be given within 36 months from the date of agreement with grace period of six months. Although promised date of possession had already expired but neither the construction was completed nor possession was delivered to the complainant. The complainant through various emails requested to apprise the status of construction and date of delivery of possession. The builder then issued Final Call Letter dated 13.06.2017 along with Statement of Account, demanding Rs.2064147/-, payable on or before 13.07.2017. The complainant, vide an email dated 05.07.2017, replied that she had to give only last instalment at the time of possession, which was 5% of basic sale price according to payment plan. Super area has been increased unilaterally without her consent. Possession was delayed as such she was entitled for delayed compensation. Demand amounts to unfair trade practice. The builder gave a diplomatic reply vide email dated 20.07.2017. The builder gave a reminder letter dated 10.08.2017, for deposit of the amount as demanded by letter dated 13.06.2017. Then the complaint was filed on 28.08.2017.

The builder filed their written reply on 22.10.2017 and contested the matter. The material facts stated in the complaint have not been disputed. They stated that Director, Town and Country Planning, Haryana granted licence to the builder on 28.03.2011, for development of the land and sanctioned layout plan on 05.10.2011. Unit No.-T-5-402 was earlier allotted to Mrs. Devika Chhikara, in whose favour Buyer’s Agreement was executed on 06.02.2012. Mrs. Devika Chhikara transferred the flat to the complainant on 26.02.2014. At that time, one copy of Buyer’s Agreement dated 06.02.2012 was handed over to the complainant. In clause-2 of Buyer’s Agreement, it has been specifically mentioned that apart from Basic Sale Price and Preferential Location Charges, the buyer had to pay other charges as mentioned in other clauses and Annexure-2 i.e. External Development Charges, Infrastructure Development Charges, Interest Free Maintenance Security, Contingency deposit and Club Membership Charges, Taxes, Levies, Cesses etc. and Electricity Connection Charges. Under Clause-4 of the agreement, it has been clarified that “super area” was tentative and likely to vary up to 10%. In case of increase, in “super area”, the buyer has to pay its price. In this case, “super area” was increased from 2505 sq.ft. to 2640 sq.ft. i.e. within 10%. On various occasions, the complainant has delayed payment of instalments. The builder completed the construction and applied for “Occupation Certificate” on 26.09.2016. The competent authority issued “Occupation Certificate” on 13.06.2017. Thereafter, the builder issued letter dated 13.06.2017, calling upon the complainant to make final payment till 13.07.2017 and complete documentation, for the purposes of delivery of possession and execution of final deed. In the Statement of Account as supplied along letter dated 13.06.2017, demands were made strictly in terms of Buyer’s Agreement. Instead of depositing the balance amount and completing documentation for possession, this complaint was filed for possession. The construction was delayed for the reasons beyond the control of the builder.

The complainant filed rejoinder reply on 02.05.2018. In which, the facts stated in the complaint were reiterated. The complainant filed Affidavit of Evidence of Sneh Chaudhary. The builder filed Affidavit of Evidence of Savita Vashist. Both the parties filed their documentary evidence and written submission. At the time of oral arguments, the complainant pressed for refund of the amount paid to the builder i.e. Rs.8983589/-, along with interest @18% interest, which was strongly opposed by the counsel for the builder.

I have considered the arguments of the counsel for the parties and examined the record. Supreme Court in Laureate Buildwell P Ltd. Charanjeet Singh, 2021 SCC OnLine SC 479 , held that a purchaser steps in the shoes of original allottee with his all the rights and liability. However, date of transfer in favour of the purchaser was taken as the relevant date for awarding interest to the subsequent purchaser. The complainant purchased the flat on 26.02.2014, from previous allottee namely Mrs.Devika Chhikara. The builder executed Buyer’s Agreement dated 06.02.2012, in favour of Mrs.Devika Chhikara, as such, on the date of transfer, Buyer’s Agreement dated 06.02.2012 was in existence and the complainant cannot say that she was unaware of its terms. After knowing the terms of Buyer’s Agreement dated 06.02.2012, the complainant purchased the flat.

The first point raised by the complainant is that there was inordinate delay in completion of construction and offer of possession. Clause-6.2 of Buyer’s Agreement dated 06.02.2012 provides that construction should be completed within 36 months with grace period of six months from the date of the agreement, which period expired on 06.08.2015. According to the builder, construction was completed and they applied for “Occupation Certificate” on 26.09.2016. Thereafter, statutory authority took time in issuing “Occupation Certificate” which was issued on 13.06.2017. In the present case, payment plan was “Construction Linked Payment Plan”, in which, the instalments had to be paid at various levels of the construction. A perusal of statement of account shows that last instalment was realized from the complainant on 22.04.2016 and construction was completed in September, 2016. Thereafter, statutory authority took time in issuing “Occupation Certificate”.

As such, it cannot be said that the construction was unreasonably delayed. Supreme Court in Banglore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 711, held that in a contract involving construction, time is not the essence of contract unless specified.

The other ground raised by the complainant that the builder has raised unjustified demand in Final Demand Letter dated 13.06.2017. A perusal of Statement of Account attached with the letter dated 13.06.2017, shows that all the demands were made as specified under Clause-2 read with Annexure-2 of Buyer’s Agreement dated 06.02.2012. So far as increase in “super area” is concerned, Clause-4 of the agreement, provides that “super area” was tentative and likely to vary up to 10%. In case of increase, in “super area”, the buyer has to pay its price. In this case, “super area” was increased from 2505 sq.ft. to 2640 sq.ft. i.e. 135 sq.ft., which is 5.38%. None of the demand is extraneous to the Buyer’s Agreement dated 06.02.2012. Supreme Court in DLF Home Developer Ltd. Vs. Capital Greens Flat Buyers Association, 2020 SCC OnLine SC 1125 has upheld 10% increase in ‘super area’.

It has been stated that the builder had commitment to build road connecting “The Hermitage” with Dwarka Expressway Road, which has been denied by the builder. According to the builder, “The Hermitage” is connected with road on its two sides. The construction of pitch road falls within the purview of the government.

Supreme Court in Ireo Grace Realtech Vs. Abhishek Khanna, (2021) 3 SCC 241, in which, including grace period, possession had to be offered in July, 2017 but it was offered on 28.06.2019. It has been held that if possession has been offered after obtaining “Occupation Certificate” the buyers were obligated to take possession. In the present case, the delay is about one year. In view of the judgment of Supreme Court, the complainant is obligated to take possession in terms of Buyer’s Agreement dated 06.02.2012. For the delayed period, the complainant is entitled for compensation in terms of Clause-6.3 of Buyer’s Agreement. Supreme Court in Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512, has prescribed delayed compensation as the interest @6% per annum, on the deposit from due date of possession till offer of possession.

So far as refund of money is concerned Clause-2.2. (iii) of Buyer’s Agreement provides that in case of non-fulfilment of terms and conditions of the agreement, by the buyer, his earnest money shall stand forfeited and the agreement stands cancelled without any notice to the buyer. In such eventuality, the developer shall be free to reallot the booked unit. The money paid in excess of earnest money shall be refunded to the buyer without interest.

Supreme Court in Maula Bux Vs. Union of India, (1970) 1 SCR 928 and Kailash Nath Associates Vs. Delhi Development Authority, (2015) 4 SCC 136 held that forfeiture of earnest money must be reasonable otherwise provisions of Section 74 of Contract Act, 1872 would be attracted. This Commission, in CC/438/2019 Ramesh Malhotra Vs. EMAAR MGF Land Ltd. (decided on 29.06.2020) and CC/3328/2017 Mrs. Prerana Banejee Vs. Puri Construction Ltd., (decided on 07.02.2022) held that forfeiture of 10% of basic sale price as the earnest money would be reasonable.

ORDER

In view of the aforesaid discussions, the complaint is disposed of giving liberty to the complainant to give her option within 15 days from the date of this judgment as to whether she wants to refund or possession? In case, the complainant gives option for refund, then her principal amount be returned after deducting earnest money i.e. 10% basic sale price and service tax/VAT paid on the deposit of the complainant, along with interest @9% per annum, within 90 days thereafter. If the complainant gives option for taking possession, then a revised statement of account, giving delayed compensation as interest on the deposit of the complainant @6% per annum from July, 2016 to 13.06.2017, be supplied to her within 15 days, giving at least six weeks’ time to deposit the amount and completing other formalities. On deposit of the amount, possession of Flat-T-5-402 in “The Heritage” be delivered and conveyance deed be executed in her favour.