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Judgment
Heard Mr. Rajiv Dalal and Mr. Shivam Dahiya, Advocates, for the Complainant as well as Mr. Dhananjai Jain, Advocate, for the opposite party.
The Society for Consumer Justice (the complainant) has filed the above complaint under Section 12(1)(b) of the Consumer Protection Act, 1986, redressing the grievances of Mr. Sandeep Purohit (allottee of Flat No.K-508) and Anirudh Sharma (allottee of Flat No.K-1608) in the project “Blossom County” GH 02, Sector 137, Expressway, Noida. In the complaint following prayers have been made:-
“(a) Direct the opposite party to handover the possession of the aforesaid apartments complete in all respects to the buyers immediately as per the buyer’s agreement and execute all the necessary and required documents in respect of their respective apartments in favour of the buyers.
(b) Direct to return the amount paid by home buyers with 24% interest as from specified that being February 13, 2013 as reflected in the tripartite agreement plus the amount paid at instalments to ICICI Bank with 24% interest.
(c) Direct to return the amount paid by home buyers with 24% interest as from specified that being 25/05/2012 as reflected in the tripartite agreement plus the amount paid at instalments to IDBI Bank with 24% interest.
(d) Direct to pay damages for mental harassment plus damages for personal and professional inconveniences caused since 2015 calculated at being equivalent to the complaint’s taxable income for the years 2014-15, 2015-16 And 2016-17 every year with 24% interest on the same.
(e) Direct the opposite party to pay a sum of Rs.100000/- present complainant towards the cost of litigation.
(f) Grant immunity to the buyers from any escalation in cost/taxes and other charges that have arisen due to delay on the part of the OP and pertains to a period after 25/05/2012 in case of Mr. Sandeep Purohit and 13/02/2015 in case of Mr. Anirudh Sharma, which was promised date of possession.
(g) Any other order as may be deemed fit and appropriate may also kindly be passed.”
It has been stated in the complaint that Logix Infrastructure Private 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. State of U.P. allotted about 100000 sq. mt. land at GH 02, Sector 137, Expressway, Noida to the opposite party, in the year 2010. The builder launched a project of group housing in the name of “Blossom County” on the aforesaid land. Sandeep Purohit applied for an allotment of the flat on 03.04.2010 and deposited the booking amount of Rs.290837/-. Thereafter, he was allotted Flat No.K-508 in “Blossom County”. Sandeep Purohit applied for grant of home loan to IDBI bank. The builder entered into a tripartite agreement dated 25.5.2010 with Sandeep Purohit with IDBI bank Ltd., on which a loan of Rs.3000000/- was sanctioned to Sandeep Purohit on 25.5.2010 and was paid to the opposite party time to time as per payment plan. The opposite party executed Builder Buyer Agreement dated 24.03.2010, in favour of Sandeep Purohit. As per demand, Sandeep Purohit deposited Rs.3291952/- upto 20.08.2012, which is proved from Statement of Account of Sandeep Purohit as maintained by the opposite party.
One Better Option Prompart Pvt. Ltd. got allotted Flat No.K-1608 (super area 1145 sq.ft, total sale price Rs.5324248/-) on 25.09.2012 from the opposite party. The opposite party executed Builder Buyer Agreement in favour of Better Option Prompart Pvt. Ltd. on 13.02.2013. With prior permission of the opposite party, Better Option Prompart Pvt. Ltd. sold Flat 1608, “Blossom County” to Anirudh Sharma on 15.04.2013. Better Option Prompart Pvt. Ltd. had deposited Rs.3229004 till 15.04.2013. Thereafter, Anirudh Sharma applied for grant of home loan to ICICI bank and tripartite agreement was executed between the parties. On the basis which, a loan Rs.3400000/- was sanctioned to Anirudh Sharma and was paid to the opposite party on 28.06.2013.
Under the Builder Buyers Agreement, possession has to be handed over within 18 months from the date of agreement with grace period of six months. In the case of Sandeep Purohit (Flat No.508) Builder Buyers Agreement was executed on 24.03.2010 and promised date of possession would be 24.03.2012. In the case of Anirudh Sharma (Flat No.K-1608), Builder Buyers Agreement was executed on 13.02.2013 and promised date of possession would be 13.02.2015. Although promised date of possession had already expired, but neither the construction was completed nor possession was delivered to the allottees. The allottees gave legal notice to the opposite party for completing construction and giving possession, but the opposite party was not giving any heed to it, therefore, the complaint was filed on 14.03.2019. It has been stated in the complaint that CC/1005/16 and CC/1248/16, relating to this project were filed, which were decided by this Commission vide judgment dated 16.05.2018 and 25.10.2017 respectively and the controversy raised in this complaint has already been adjudicated upon by this Commission in the aforesaid judgments.
The opposite party filed their written reply on 04.02.2020 and contested the matter. It has been stated that complaint was filed for the benefit of Sandeep Purohit and Anirudh Sharma, who were not the original allottee rather they purchased the flat through Better Option Prompart Pvt. Ltd. The price of the flat was much below the pecuniary jurisdiction of this Commission, therefore, this Commission has no pecuniary jurisdiction to try it. Being subsequent purchaser, the complainant cannot take plea that the terms of Builder Buyers Agreement were one sided and arbitrary, nor they can claim right of possession according to the schedule as mentioned in it. It has been stated that the construction was delayed for the reasons beyond the control of the opposite party. The delay is liable to be condoned. The opposite party has completed the construction in February, 2020 and endeavour to offer possession to Sandeep Purohit and Anirudh Sharma, but they are claiming delayed compensation exorbitantly although under the agreement, it was agreed that compensation would be given at the rate of Rs.5/- per month per sq.ft. for the delayed period.
The complainant filed rejoinder reply on 26.08.2020. It may be mentioned that this Commission by order dated 26.03.2019 directed to file individual affidavits of the allottees on whose behalf the complaint was filed. In compliance of the order dated 26.03.2019, Affidavits of Sandeep Purohit and Anirudh Sharma were also filed. The complainant filed Affidavit of Evidence and Affidavit of Admission/Denial of Document of Pooja Singh, General Secretary of the Society. The complainant filed written submission.
I have considered the arguments of the counsel for the parties and examined the record. So far as the objection raised in respect of maintainability of the complaint is concerned, Section 12(1)(b) of consumer Protection, Act, 1986 is quoted below:-
“Any recognised consumer association whether the consumer to whom the goods sold or delivered or agreed to be sold or delivered or service provided or agreed to be provided is a member of such association or not.”
Thus, the complaint by registered society is maintainable even if the consumer is its member or not. Full Bench of this Commission in Ambrish Kumar Shukla Vs. Ferrous Infrastructure Pvt. Ltd., I (2017) CPJ 1, held, valuation of all the flats which were subject matter of the complaint have to be counted for the purposes of pecuniary jurisdiction. If the valuation of Flat Nos.-K-508 and K-1608 along with compensation claimed in the complaint are taken together, it would exceed Rs.one crore, i.e. pecuniary jurisdiction of this Commission. 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. As such the preliminary objections raised by the opposite party have no force.
The tripartite agreement executed between Anirudh Sharma, M/s. Logix Infrastructure Pvt. Ltd. and ICICI Bank Ltd. has been filed as Annexure C-3 along with complaint. The tripartite agreement between Logix Infrastructure Pvt. Ltd. Sandeep Purohit and IDBI Bank Ltd. has been filed as Annexure C-5. These documents have not been disputed. A perusal of these agreements and Statement of Account of Sandeep Purohit as maintained by the opposite party (Annexure-C-4) show entire sale consideration of Rs.3291952/- for flat K-508 was paid till 26.09.2012. Similarly, the tripartite agreement between Anirudh Sharma and others Annexure C-3 shows that entire sale consideration for Flat No. K-1608 was paid up to 28.06.2013 which has not been disputed. In such circumstances, the builder has no justification to delay the possession.
So far as the compensation for delayed possession is concerned, although this Commission, in CC/1005/16 and CC/1248/16, relating to this project, decided vide judgment dated 16.5.2018 and 25.10.2017 respectively has directed for payment of delayed compensation in the shape of interest @8% per annum but Supreme Court in Wg. Camdr. Arrifur Rehman Khan Vs. DLF Southern Home Pvt. Ltd., (2020) 16 SCC 512, has held that interest @6% per annum is appropriate compensation for delayed possession. Judgment of Supreme Court is binding and will prevail over the judgment of this Commission.
ORDER
In view of the aforesaid discussions, the complaint is allowed. The opposite party is directed to offer possession of Flat No. K-508 to Sandeep Purohit, in terms of Builder Buyer Agreement dated 24.03.2010 and Flat No. K-1608 to Anirudh Sharma in terms of Builder Buyer Agreement dated 13.02.2013, in the project “Blossom County”, GH-02, Sector-137, Expressway, Noida, complete in all respect, within a period of one month from the date of this judgment, giving at least six weeks’ time to complete formalities. While offering possession, the opposite party shall pay compensation to the aforesaid allottees in the shape interest @6% per annum on their deposit, including the deposit made by their predecessor, from due date of possession, till the date of offer of possession. The compensation due and payable in terms of this order shall be adjusted, in the demand of the opposite party, which will be raised strictly in accordance with the terms of the Builder-Buyers Agreement executed between the parties. There shall be no escalation in the cost of construction unless otherwise permitted under the Builder Buyers Agreement. The opposite party shall also pay a sum of Rs.25,000/- as the cost of litigation to the complainant. On completing formalities as required in the notice of possession, the opposite party shall deliver possession of the flats to Sandeep Purohit and Anirudh Sharma over their flats and execute conveyance deed in their favour forthwith.