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Judgment
Heard Mr. Nitin Chandran, Advocate, for the complainant and Mr. Abhishek Singh, Advocate, for the opposite party.
SS Coralwood Apartment Buyers Association has filed above complaint on behalf of 12 flat buyers. Later on Sandeep Bansal (named at Sl. No.11) filed IA/194/2021 and Adarsh Jain & Jagriti Gupta (named at Sl. No.6) filed IA/2671/2021 for withdrawal of their names from the complaint. These IAs are allowed. The names of Sandeep Bansal and Adarsh Jain & Jagriti Gupta are deleted. It has been informed that Vishwanath G (Sl. No.4) has settled his dispute and after taking possession, sold his unit to third party. The name of Vishwanath G (Sl. No.4) is also deleted. Details of the flat buyers as mentioned in paragrapg-18 of the complaint are given below:-
S.No.
Complainant Name
Flat No.
BBA date
(MM/DD/YYYY)
Committed
date of possession
Cost of Flat
Amount paid
1
Shiv Shanker
H-1603
11/01/2011
11/01/2014
5176420
5397585
2
Pratibha
Gupta
A-0603
10/19/2011
10/19/2014
6043920
5572934
3
Shikha Goel
H-1701
08/09/2012
08/09/2015
5709250
5053990
4
Vishwanath G
C-1403
10/04/2012
04/10/2015
6220340
5656458
5
Vijay Kumar
A-0702
05/30/2012
05/30/2015
6217590
5838988
6
Adarsh Jain
C-1001
08/11/2012
08/11/2015
8299340
7443057
7
Abhinav Goel
I-0502
11/01/2011
11/01/2014
5011570
5177389
8
Ray Atreyee Dutta
I-0603
11/03/2011
11/03/2014
5411920
5351920
9
Praduman Pratap
I-1203
06/19/2012
06/19/2015
7404250
6971539
10
Anil Kumar Sagar
A-1901
08/06/2012
08/06/2015
8393840
8787542
11
Sandeep Bansal
H-1202
11/07/2011
11/07/2014
4918560
5019420
12
Aloke Anand
A-1203
05/11/2012
05/11/2015
8083880
4976085
SS Coralwood Apartment Buyers Association (a registered association) has filed above complaint, for directing the opposite party to (i) handover possession of the flats in the project “The Coralwood” or any alternate property of similar size in the same locality to 12 flat buyers, named in paragraph-18 of the complaint and execute conveyance deeds in their favour, or in alternative, refund the money deposited by them with interest @18% per annum; (ii) pay compensation in the form of interest @12% per annum on their deposit, for the delayed period of possession; (iii) pay Rs.10/- lacs, as compensation for mental agony and harassment; (iv) withdraw unwarranted demands of money and insistence for execution of indemnity bond; (v) refund/adjust the amounts collected from them in the heads of increase in super area and service tax; (vi) pay costs of the litigation; and (vii) any other relief which is deemed fit and proper in the facts and circumstances of the case.
The complainant stated that the complainant was an association of the flat buyers in the project “The Coralwood”, registered under the Haryana Registration and Regulation of Societies Act, 2012, on 06.07.2016, having Unique Identification Number-200011351 and was a voluntary consumer’s association. M/s. North Star Apartments Private Limited 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. M/s. SS Group Private Limited (the opposite party) 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. M/s. North Star Apartments Private Limited was amalgamated with M/s. SS Group Private Limited in the year 2015, since then the opposite party undertook the project “The Coralwood”. M/s. North Star Apartment Private Limited (the developer) launched a group housing project, in the name of “The Coralwood” at village Sihi, Sector-84, Gurgaon, Haryana, in the year 2010 and made wide publicity of its facilities and amenities. Believing upon the representations and promises of the developer, above 12 members of the complainant booked a flat each on different dates in the year, 2010 and deposited booking amounts. The developer allotted one flat to each of them in the year, 2010 and executed Apartment Buyer’s Agreement on different dates in the year, 2011-2012 in their favour. Clause-9 of the Allotment letter and clause-8.1(a) of the agreement provide 36 months period from the date of signing of the agreement, for obtaining “occupation certificate” and handing over possession with grace period of 90 days. Annexure-I of the agreement provides payment plan as “construction link payment plan”. As per demand, above 12 members of the complainant deposited about 90% of the consideration till 2015. The period of 36 months and grace period of 90 days expired in the year, 2015 for all the 12 members. The opposite party raised demand in August, 2016, on the ground that super area has been increased from 1570 sq.ft to 1750 sq.ft. The flat buyers asked for supply of copy of initial drawing and revised drawing vide email dated 15.08.2016. But the opposite party did not respondent. The complainant issued a legal notice on 09.06.2018, to the opposite party, for handing over possession and paying compensation for delayed period of possession to the above home buyers. In spite of service of this notice, the opposite party did not respond. Then this complaint was filed on 12.10.2018, alleging deficiency in service and unfair trade practice.
The opposite party filed its written reply on 01.04.2019, in which, booking of the flat in 2010, allotment of flat, execution of Apartment Buyer’s Agreement in the year, 2011-2012 and deposits made by the members of the complainant, have not been disputed. The opposite party stated that terms of the agreement were incorporated in the allotment letters and disclosed to the members of the complainant before signing the agreement and are binding on the parties. Clause-9 of the Allotment letter and clause-8.1(a) of the agreement are subject to timely payment of the instalments. Clause-6 of the agreement provides that timely payment of the instalment as essence of contract. Interest @18% per annum was payable on the defaulted/delayed amount. The members of the complainant were rank defaulter in payment of instalments from very beginning. Details of dues of 12 members of the complainant as in August, 2018, have been given in tabulated form in paragraph-3.6 of written reply and Annexure-D-3. Due to defaults in payment of instalment by large numbers of the buyers, construction of the project was delayed and the opposite party sustained heavy loss due to escalation of the price of materials and labours. Although the members of the complainant committed several defaults in payment of the instalments, but the opposite party completed the construction and obtained “occupation certificate” on 17.10.2018. The opposite party vide letters issued in August, 2018 offered possession to the members of the complainant and other flat buyers of the project along with statement of account, requiring them to deposit dues and complete documentation. Most of the flat buyers of the project deposited their dues and took possession and conveyance deeds were also executed in their favour. Vijay Kumar (Sl. No.5) cleared his dues and took possession 17.11.2018. Pradumn Pratap (Sl. No.9) cleared his dues and took possession 24.01.2019. Clause-4 of the allotment letter and clauses-1.2(d) and 7.2 of the agreement provide that super area was tentative and subject to variation. The buyers have agreed to pay price of increased super area. It has been denied that the members of the complainant have paid 90% of the consideration. The preliminary objections that the complainant was not a consumer and the agreement contained arbitration clause, have also been raised. The complaint has been filed on various false and frivolous allegations and is liable to be dismissed.
In view of willingness of the members of the complainant to deposit the originally agreed amount with interest @12% per annum for the period of 9 months, the complainant filed IA/7822/2019 for directing the opposite party to handover possession on deposit of the said amount. This Commission, vide order dated 01.11.2019, directed the members of complainant to deposit the said amount within four weeks and the opposite party was directed to handover possession of the flat to buyers who deposit that amount leaving other issues between the parties to be decided at the time of final decision. Six buyers took possession at that time and Adarsh Jain took possession later on, complying order dated 01.11.2019. Pratibha Gupta (Sl. No.2), Shikha Goel (Sl. No.3), Abhinav Goel (Sl.No.7), Ray Atreyee Dutta (Sl. No.8) and Alok Anand (Sl. No.12) did not take possession.
The complainants filed Rejoinder Reply, Affidavit of Evidence, Affidavit of Admission/Denial of documentary evidence of all the 12 members and documentary evidence. The opposite party filed Affidavit of Evidence and Affidavit of Admission/Denial of documentary evidence of Bijimol Mani and documentary evidence. Both the parties have filed their written submissions.
We have considered the arguments of the parties and examined the record. The complainant has challenged the demand for increased area. A perusal of statement of account as filed by the opposite party along with IA/3154/2020, shows that area of the flats of 1570 sq.ft. were increased to 1750 sq.ft. Total increase is 180 sq.ft. which is 11.84% increase. Clause-4 of the allotment letter and clauses-1.2(d) and 7.2 of the agreement provide that super area was tentative and subject to variation. The buyers have agreed to pay price of increased super area. In the notice dated 09.06.2018, the complainant did not raised any objection in respect of increase in super area. 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.
The complainant claims compensation for delay in possession in the form of interest @12% per annum on the deposit from due date of possession till the date of delivery of possession. The claim of interest @12% per by the complainant on the deposit is not justified. The members of complainant did not deposit money under any deposit scheme, fetching interest @12% per annum rather they paid consideration of their flat in instalments. The payments of the members of the complainant have been utilized for raising construction of flat for them and it will not yield any interest.
Due date of possession, including grace period expired in the year, 2015, for all the members of the complainant. The opposite party offered possession vide letter dated 10.08.2018 to the members of the complainant. The opposite party stated that after completing construction, application for “occupation certificate” was moved, which was issued on 17.10.2018. As the construction was complete, the opposite party issued letter dated 10.08.2018, in anticipation of the “occupation certificate”, as the buyers used to take time for deposit of balance amount and fulfil the other formalities of documentation, which were pre-requisite for possession. The opposite party urged that delay in offer of possession be attributed to the flat buyers as they had not paid the instalments in time. Due to delay in payment of the instalments, the opposite party had suffered huge loss due to escalation of price of material and labour.
The opposite party is charging interest @18% per annum on the defaulted instalment as such its liability for timely handing over possession cannot be absolved. In the present case, on the date of offer of possession, the opposite party did not have “occupation certificate” as such its liability extends till issue of “occupation certificate”. The opposite party is liable to pay compensation for delay in possession from due date of possession till 17.10.2018. Supreme Court in Civil Appeal No.1232 of 2019 R.V. Prasannakumar Vs. Mantri Castles Pvt. Ltd. (decided on 11.02.2019), Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes, Pvt. Ltd., (2020) 16 SCC 512 and Civil Appeal No.4690 of 2022 Utpal Trehan Vs. DLF Home Developers Ltd. (decided on 11.07.2022), held that delayed compensation is payable in the form of interest @6% per annum on the deposit of the home buyer from due date of possession till the offer of possession.
The complainant disputes demand of registration charges. If the complainant takes responsibility of getting the conveyance deed executed and registered, the opposite party will not take any amount for registration charges. The home buyers will be liable to pay installation of electricity meter and holding charges from the date of issue of “occupation certificate”. There is no justification for the opposite party for charging interest @18% per annum after 17.10.2018 as the construction has been completed. It is appropriate that the opposite party be charge simple interest @9% per annum, after 17.10.2018.
ORDER
In view of the aforesaid discussions, the complaint is partly allowed. The opposite party is directed to issue fresh statement of account within a period of one month from the date of this judgment duly crediting compensation for delay in possession in the form of interest @6% per annum on the deposit of the members of complainant from due date of possession as per their agreement till 17.10.2018. The opposite party will charge interest @9% per annum on balance amount from 18.10.2018 till the date of payment. If the amount is payable by the opposite party then it will be paid along with statement of account. If amount is payable by the flat buyers then on issue of statement of account, the members of the complainant will pay it within one month. Thereafter, the opposite party will execute conveyance deed and handover possession of the flat complete in all respect without any further delay to those members who have not taken possession.