Sunil Kumar & 4 Ors vs Orris Infrastructure Private Limited

Heard Mr. Sudhir Kathpalia, Advocate, for the complainants and Mr. Reegam S. Bel, Advocate, proxy counsel, for the opposite party.

Initially five sets of home buyers filed above complaint, in representative capacity, for directing the opposite party to (i) handover possession of the Units, allotted to them, in terms of Apartment Buyers Agreement and execute conveyance deed in their favour, within three months; (ii) pay interest @18% per annum compounded quarterly on their deposit for the delayed period of possession; (iii) provide “occupancy certificate” to them; (iv) set aside the demand for increase in saleable area; (v) declare demand of Rs.2.5 lacs towards installation of electricity meter as illegal and over inflated; (vi) take maintenance charges month to month instead of one year advance; (vii) pay Rs.500000/-, as compensation for mental agony and harassment; (vii) pay Rs.55000/-, as costs of the litigation; and (vi) any other relief which is deemed fit and proper in the facts and circumstances of the case.

Thereafter, through IA/18603/2017, Anurag Yadav and Sanjay Kumar Dhiman and through IA/10833/2018, Smt. Sunita Singh and Aman Sharma were impleaded vide order dated 06.06.2018. Permission to sue in representative capacity under Section 12(1)(c) of the Consumer Protection Act, 1986 was granted on 06.06.2018. On publication of notice, through IA22099/2018, IA/1175/2019, IA/1323/2019, IA/1338/2019 (allowed on 25.01.2019), IA/6359/2019 (allowed on 23.04.2019), IA/16511/2019 (allowed on 06.11.2019), various other home buyers were impleaded. Sanjay Kumar Dhiman filed IA/1306/2019 (allowed on 25.01.2019) and IA/10573/2019 (allowed on 10.07.2019), for deleting his name from the complaint. At present there are 22 set of home buyers as the complainants.

The complainants stated that Orris Infrastructure 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. The opposite party launched a group housing project, in the name of “Aster Court” at village Badha, Sector-85, Gurgaon, Haryana, in the year 2010 and made wide publicity of its facilities and amenities. Believing upon the representations and promises of the opposite party, each set of the complainants booked a flat in July, 2010 and deposited booking amount. The opposite party allotted one Unit to each set of the complainants in October, 2010 and executed Apartment Buyer’s Agreement in December, 2010 in their favour. Super area of 3BHK+S was 1550 sq.ft., basic sale price was @Rs.2544/- sq.ft. and total sale price was Rs.4914350/-. The complainants opted for “construction link payment plan”. The complainants diligently followed payment plan and as per demand, they deposited more than the total sale price as mentioned in Apartment Buyer Agreement till May, 2014. Clause-10.1 of the agreement provides 36 months period plus grace period of six months, from the date of the agreement or sanction of the plan or commencement of construction, whichever is later, for completing the construction. Clause-11.5 proves for delayed compensation @Rs.5/- per sq.ft. per month on super area, which is one sided and too less. The opposite party realized instalment of “commencement of construction” on 22.01.2011. The period of 36 months expired on 21.01.2014 and grace period of six months expired on 21.07.2014 but neither possession was delivered nor delayed compensation was paid. The complainants gave an email to the opposite party to pay delayed compensation. The opposite party, vide letter dated 31.05.2016, offered “fit-out possession” to Sunil Kumar Batra, along with final demand. Sunil Kumar Batra gave an email dated 12.07.2016, protesting offer of fit-out possession in the absence of “occupation certificate” and to (i) pay compensation for delay in possession in the form of interest @18% per month on his deposit; (ii) withdraw electricity installation charges; (iii) take maintenance charges month to month; and (iv) withdraw demand of service tax. The opposite party did not respondent. Area of 3BHK has been increased to 1587 sq.ft. from 1550 sq.ft., without previous consent of the complainants. This complaint was filed on 03.11.2016, alleging unfair trade practice.

The opposite party has filed its written reply on 27.02.2017 and written reply to the amended complaint on 24.04.2018, in which, booking of the flat in July, 2010, allotment of flat in October, 2010, execution of Apartment Buyer’s Agreement between December, 2010 to January, 2011 and deposits made by the complainants, have not been disputed. The opposite party stated that M/s. Oscar Land & Housing Pvt. Ltd. and others were owners of the project land. The owners entered into a Collaboration Agreement with the opposite party for development of the township over the land. The project land was contiguous to 5.8 acres land of BE Office Automation Products (P) Ltd., who approached the opposite party for development of its land and executed a Collaboration Agreement dated 22.10.2007, under which 2/3rd share in the flats were given to the opposite party. BE Office Automation Products (P) Ltd. also executed an irrevocable General Power of Attorney, in favour of the opposite party (registered on 24.01.2011), conferring right to develop and sell the flats falling in 2/3rd of the opposite party. The opposite party obtained Licence No.39 dated 24.07.2009 from Director, Town and Country Planning, Haryana and submitted Layout Plan for approval, before the competent authority. The opposite party started construction of the project and completed construction of Towers 2A, 3A, 3B, 3C, 3D, 3E, 3F, 3H, 3I, 3J, 41 and EWS block and applied for issuance of “occupation certificate” on 20.11.2014. Due to frivolous litigations initiated by BE Office and interim orders obtained in it, statutory authority withheld issuing of “occupation certificate”. The opposite party, therefore, offered fit-out possession to the allottees including all the complainants and about 90 flat buyers took possession. “Occupation certificate” was issued on 06.04.2017. Punjab & Haryana High, vide order dated 31.07.2012 passed in CWP No.20032 of 2008, imposed ban upon the builders from using ground water in construction. The opposite party had to arrange water from alternate sources from distant places. Due to which the construction was delayed and cost was increased. On 24.01.2011, the representative of BE Office identified 82 flats falling in its share according to Collaboration Agreement and executed a memorandum of understanding in respect of those 82 flats. However, BE Office revoked Power of Attorney on 24.08.2012 and filed an application under Section 9 of Arbitration and Conciliation Act, 1996 before District Judge Gurgaon, on the allegation that the opposite party was selling the flats falling in its share by misusing Power of Attorney. Additional District Judge, Gurgaon, vide an exparte order dated 20.11.2014, restrained the opposite party from creating interest in third party over the disputed land/flat. The opposite party challenged the aforesaid order in First Appeal Order No.9901 of 2014, in which, Punjab  & Haryana High Court, vide order dated 08.12.2014 modified the order dated 20.11.2014 and later on vacated it, vide order dated 30.01.2015. The opposite party also filed an application (registered as Arbitration Case No.190 of 2014) before Punjab & Haryana High Court for appointment of an Arbitrator to adjudicate dispute between the opposite party and BE Office. High Court, vide order dated 30.01.2015, appointed an Arbitrator, who gave Interim Award on 19.08.2015 and appointed a Local Commissioner to identify the flats falling in the share of BE Office as per Memorandum of Understanding dated 24.01.2011. Local Commissioner identified 82 flats falling in share of BE Office, as per Memorandum of Understanding dated 24.01.2011. Sole Arbitrator then passed final award on 12.12.2016. BE Office took possession of those 82 flats in terms of Final Award dated 12.12.2016 on 18.01.2017 and 09.02.2017, by moving an application before Deputy Commissioner, Gurgaon. BE Office filed an objection under Section 34 of Arbitration and Conciliation Act, 1996 (registered as CIS No.ARB/26/2017), before District Judge, Gurgaon, in which, the application for interim order has been rejected on 20.03.2017. BE Office then took interim order from Commissioner, Gurgaon. The opposite party has challenged the order of Commissioner, Gurgaon in CWP No.9075 of 2017, in which, interim order was granted on 01.05.2017. BE Office also filed a civil contempt petition (registered as COCP No.1851 of 2015) before Punjab & Haryana High Court, for alleged violation of order dated 20.11.2014, which was dismissed on 15.03.2017. Clause-10.1 of the agreement is subject to force majeure reasons. The opposite party is entitled for extension of the period, for which, ‘occupation certificate” is delayed by the statutory authority, under clause-10.1 read with clause 39 of the agreement. The complainants are not consumers rather investors therefore they are avoiding to take possession as they do not need it for their own occupation. Out of 507 allottees, 227 allottees have taken possession and residing in their flats. The opposite party has not committed any deficiency in service.

The complainants filed Rejoinder Reply, Affidavit of Evidence of various complainants. The complainants filed IA/17901/2017, for directing the opposite party to deliver possession to the complainants over the flats allotted to them. This Commission, vide order dated 06.06.2018, directed the opposite party to handover possession to the complainants. The opposite party filed a Compliance Affidavit of Naveen Sharma stating that possession has already been offered to some of the complainants on 07.04.2017 and to some of them on 18.10.2018 but hey have not taken possession. The complainants have filed their written synopsis.

We have considered the arguments of the parties and examined the record. Clause-10.1 of the agreement provides 36 months period plus grace period of six months, from the date of the agreement or sanction of the plan or commencement of construction, whichever is later, for completing the construction. The opposite party realized instalment of “commencement of construction” on 22.01.2011. The period of 36 months expired on 21.01.2014 and grace period of six months expired on 21.07.2014. The opposite party has stated that construction of Towers 2A, 3A, 3B, 3C, 3D, 3E, 3F, 3H, 3I, 3J, 41 and EWS block of the project were completed and they applied for issuance of “occupation certificate” on 20.11.2014. Due to frivolous litigations initiated by BE Office and interim orders obtained in it, statutory authority withheld issuing of “occupation certificate”. The opposite party therefore offered fit-out possession to the allottees including all the complainants. “Occupation certificate” was issued on 06.04.2017. Thereafter, they offered possession to the complainants on 07.04.2017, who had made payment and to some of the complainants on 18.10.2018, in compliance of interim order. In Rejoinder Reply, the complainants have not challenged aforesaid facts but stated that the construction was not complete and amenities were not available as such they did not take possession.

The complainants did not file any application for issue of commission for local inspection in order to verify the facts that the constructions were not complete as per specification. On the other hand issue of “occupation certificate” is prima facie proof of completion of the construction and availability of amenities. Clause-9.1 of the agreement provides that issue of “occupation certificate” shall be conclusive proof that the apartment was fully competed in accordance with plan and specifications.

Relying upon Clauses-11.1, 11.2, 11.3 and clause-39 of the agreement, the opposite party argued that the delay has occurred for following force majeure reasons and liable to be condoned:-

(a)  Punjab & Haryana High Court imposed van on extracting ground water for building construction vide order dated 31.07.2012 passed in CWP No.20032 of 2008. In compliance of the said order, Deputy Commissioner, Gurgaon vide letter dated 01.09.2012, stopping the construction of the opposite party. Although the opposite party has not stated that for what period construction was stopped but from statement of account it is proved that the complainants paid instalment on 08.12.2011 and thereafter on 07.03.2013. The construction was delayed and completed in November, 2014 and the opposite party applied for issue of “occupation certificate” on 20.11.2014.

(b)  Haryana Urban Development Authority unreasonably delayed acquisition of land for constructing 75 mtrs and 60 mtrs wide roads, connecting the project land. In the absence of approach road, the project was delayed but it has not been mentioned that for what period, construction was delayed due to this reason.

(c)  Due to MGNREGA scheme, the construction industries are facing with the problem of labour shortage but this is not a force majeure reason. It has been stated that Supreme Court banned mining operation but the period for which construction was affected due to this ban, has not been mentioned. Similarly allegations that due to agitations, delay was caused in supply of cement & steel which created shortage of stone sand, cement, steel etc. is also vague.

(d)  Due to dispute created by BE Office issuance of “occupation certificate” was withheld during 20.11.2014 to 06.04.2017.

For force majeure reasons, the opposite party is entitled to extension of period for delivery of possession up to 06.04.2017. A perusal of the record shows that part of occupation was issued on 06.04.2017 and part of occupation was issued on 18.10.2018. This Commission by order dated 06.06.2018 directed the opposite party to deliver the possession of the flat allotted to the complainants provided that the requisite occupancy certificate in respect of said flat has been received and the entire payment demanded by the opposite party has been received or is paid within six weeks. Thereafter again this Commission by order dated 25.01.2019 directed the opposite party to deliver possession to the complainants without insisting them to execute Indemnity-cum-Undertaking within four weeks of execution of the documents and payment of balance amount, if any. The opposite party has filed an affidavit of compliance of Naveen Sharma sworn on 15.01.2019 in which it has been stated that in spite of offer of possession Sunil Kumar Batra and Namita Batra, Sushil Kumar Batra and Shilpa Batra, Sushil Kumar Batra, Anurag Chaturvedi and Richat Chaturvedi, Kiran Pathak and Rajni Pandey, Saraswati Prasad Diwedi and Shashi Bhushan Diwedi, Jitender Sharma, Anil Gopalika, Sh. Ram Krishan Singathiya, Anurag Yadav and Sanjay Kumar Dhiman. So far as Sanjay Kumar Dhiman is concerned, he has already transferred his flat to the third party.

Clause 10.2 provides that the opposite party after obtaining certificate of occupation and use from competent authority shall offer in writing to the allottee to take possession. Therefore, for offering possession, occupancy certificate was a necessary condition. Part of occupancy certificate was issued on 06.04.2017 and part of occupancy certificate was issued on 18.10.2018. As such, the offer of fit out possession in the year 2014 was not in terms of the agreement as well as in law applicable on the subject. Offer of possession only after issue of occupancy certificate has to be counted. In such circumstances, the builder is liable to pay delayed compensation to the complainants from 06.04.2017 till the issue of offer of possession after obtaining occupation certificate. 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 @6% per annum on the deposit of the home buyer from due date of possession till the offer of possession is just delayed compensation.

The next dispute has been raised by the complainants in respect of increase of super area. A perusal of the agreement shows super area was 1450 sq.ft. and it was increased to 1587. Thus, total increase within 10% of the originally allotted area. In the agreement in Clause 1.1, super area was mentioned tentatively and in Clause 9.2 of the agreement it is mentioned as in case super area is increased then allottee shall pay sale consideration of increase super area. Supreme Court in DLF Home Developers Ltd. Vs. Capital Green Flat Buyers Association, 2020 SCC OnLine SC 1125, has upheld increase of super area to the extent of 10%.  The complainants have not filed any evidence to show that super area has not actually been increased. So far as the objection of the complainants in respect of demand of one year advance towards maintenance is concerned, it is increased with the Clause 14.2 of the agreement.

ORDER

In the result, complaint is partly allowed. The opposite party is directed to issue fresh statement of account to the home buyers duly crediting delay compensation from 07.04.2017 till the date of offer of possession after obtaining occupancy certificate, in the form of interest @6% per annum on the deposit of the complainants, within one month from the date of this judgment. In case any amount is payable by the opposite party, it shall be paid along with statement of account. If the complainants are liable to pay any amount, the opposite party will charge interest @9% per annum after 07.04.2017. Interest on the dues prior to the stage of “offer of possession” will be charged in terms of the agreement. The complainants will be granted one month time for deposit of the amount, if any. On settlement of statement of account, the opposite party shall execute conveyance deed in favour of the home buyers and deliver possession of unit, complete in all respect as per specification without any further delay.