Taneja Developers & Infrastructure Ltd vs Rajinder Kaur Bains

V.K.Jain, J

The complainant booked a residential flat with the appellant in a project, namely, 'Wellington Heights' which the appellant is developing in Mohali. Flat No.J-0303 admeasuring 1160 sq.ft. was allotted to the complainant for a basic price of Rs.30,74,000/-. The total cost of the flat came to Rs.34,83,600/-. The price of the flat was payable in installments linked with the construction and the last installment comprising 10% of the basic sale price was payable on offer of possession. The case of the complainant is that despite she having paid Rs.33,18,000/- to the appellant, the possession of the flat, which ought to have been offered by 03.05.2015, was not offered. The complainant, therefore, approached the concerned State Commission by way of a consumer complaint seeking possession of the allotted flat along with compensation etc. She also sought refund of the amount of Rs.50,000/- which had been collected from her towards the car parking.

The complaint was resisted by the appellant which interalia alleged that on completion of the construction in February 2016, the complainant was requested to make payment of the balance amount of Rs.11,00,931.99p but the complainant did not make whole of the said payment, she having paid only Rs.3,18,543/- as against the demand of Rs.11,00,931.99p.

Vide impugned order dated 20.09.2017, the State Commission directed the appellant to pay interest @ 12% p.a. to the complainant w.e.f. 03.05.2015 till the actual date of delivery of possession. The demand in respect of maintenance charges and club membership was set aside. However, demand due to escalation in the price on account of increase in the super area was maintained by the State Commission. The appellant was directed to deliver possession of the apartment to the complainant with the requisite completion certificate and requisite approvals within three months from the date of the order after complete renovation/repairs. Being aggrieved from the order passed by the State Commission, the appellant is before this Commission by way of this appeal.

As far as the maintenance charges are concerned, the same cannot be claimed by the appellant before delivery of possession to the complainant. Therefore, I hold that the maintenance charges shall be payable with effect from the date on which the possession of the flat complete in all respects is actually delivered to the complainant.

As far as club charges are concerned, the complainant does not want to use the club facility. Therefore, the club charges shall not be payable by her to the appellant.

It is an admitted position that initially flat was booked by Smt. Maya Sharma and Sh. Surinder Kumar Sharma. The agreement between them and the appellant was executed on 03.05.2012. In terms of clause 6.1 of the said agreement the possession was expected to be delivered to the buyers by 03.05.2015. The said allotment was purchased by the complainant from Smt. Maya Sharma and Sh. Surinder Kumar Sharma on 19.07.2013 and the transfer was duly endorsed in her name. This is also the case of the appellant that the requisite occupancy certificate in respect of the allotted flat was obtained by them in October, 2016. However, the consumer complaint had been instituted on 23.05.2016 about 5 months before the part of the occupancy certificate was obtained by the appellant.

This is not the case of the complainant that the construction had been substantially done by the time the allotment was transferred in her name. Hence, she could not have expected delivery of possession by 03.05.2015. She knew at the time of purchase by her that she was not likely to get possession by that date. Therefore, in view of the decision of this Commission in Consumer Complaint No.427 of 2014 - Satish Kumar Pandey & Anr. Vs. Unitech Ltd. and connected matters decided on 08.06.2015, the complainant having purchased the apartment more than one year after execution of the agreement with the original buyer, the time period for delivery of possession, for the purpose of compensation for the delay in offer of possession should be computed w.e.f. 19.07.2013. The possession, therefore, could be offered to the complainant on or before 19.07.2016. It is an admitted position that even the part occupancy certificate was obtained by the appellant in October, 2016. Therefore, the appellant was not in a position to offer legal possession of the allotted flat to the complainant on or before October, 2016. The complainant therefore is entitled to appropriate compensation at least for the period from 20.07.2016, on the entire amount which she had paid to the appellant by that date.

Though the appellant claims to have obtained the part occupancy certificate in October, 2016 when the consumer complaint was already pending before the State Commission, no letter was sent by it to the complainant offering possession of the flat allotted to her. The complainant was not even intimated that the appellant had obtained the part occupancy certificate in respect of the flat allotted to her. Even in the reply which was filed before the State Commission in November 2016, it was not disclosed that the appellant had already obtained the part occupancy certificate in respect of the flat allotted to the complainant. No intimation of the part occupancy certificate having been obtained by the appellant was given to the State Commission. As a result, neither the complainant nor the State Commission came to know, before the final hearing, that the part occupancy certificate in respect of the allotted flat had been obtained by the appellant in October, 2016. It was only during the course of hearing before the State Commission on 18.09.2017 that the appellant disclosed that it had obtained a part occupancy certificate in respect of the flat allotted to the complainant. The State Commission passed the impugned order on 20.09.2017, within two days of hearing the matter. But, the appellant, instead of complying with the said order chose to approach this Commission by way of this appeal and did not offer possession of the allotted flat to the complainant. In fact, during execution proceedings before the State Commission on 05.09.2018, the learned counsel for the appellant intimated the State Commission that since completion certificate had not been obtained by them for the project, the possession could not be delivered to the complainant due to this reason. Thus, it took the stand that even on 05.09.2018, it was not in a position to deliver possession.

Even in the memo of appeal, the appellant did not offer possession of the allotted flat to the complainant, in terms of the order of the State Commission.

Considering the aforesaid facts and circumstances of the case, the appellant, in my view, needs to pay compensation for the delay in offering possession of the flat to the complainant w.e.f. 19.7.2016, till today.

The learned counsel for the appellant relies upon the decision of the Hon'ble Supreme Court in M/s Supertech Ltd. Vs. Rajni Goyal Civil Appeal Nos.6649-50 of 2018 decided on 23.10.2018. In Rajni Goyal (supra), the possession of the flat was offered to the purchaser in December, 2015 though the full Occupancy Certificate was obtained in April 2016. The aforesaid fact was admitted by the complainant herself in para 4(j) of the Consumer Complaint. It was therefore, held that the complainant could not have any further grievance after April 2016 with respect to the delay in handing over the possession and she should not be allowed to reap the benefits of her own delay in taking possession. The compensation therefore, was restricted till 30.04.2016 at the rate awarded by this Commission. However, in the present case, the complainant had no knowledge of the appellant having obtained the part Completion Certificate which the appellant had obtained on 26.10.2016. The Consumer Complaint was instituted in May 2016 much before the said part Completion Certificate had been obtained by the appellant. At no stage, during the pendency of the Consumer Complaint before the State Commission, the appellant offered possession of the flat to the complainant. The offer which it had made before institution of the complaint, in February 2016, was illegal since the appellant did not even have the partial Completion Certificate on that date. During pendency of this complaint, before the State Commission, the appellant did not intimate either the complainant or the State Commission that it had obtained the part Completion Certificate in October 2016. As noted earlier, even in the written version filed before the State Commission after October 2016, there was no mention of the part Occupancy Certificate obtained in October 2016. Therefore, the complainant came to know of the said part Occupancy Certificate only on 18.09.2017 just two days before the impugned order dated 20.09.2017 came to be passed by the State Commission on 20.09.2017. Even after the order of the State Commission, the appellant did not offer possession to the complainant in compliance of the order passed by the State Commission.

Rather, the counsel representing the appellant expressly stated before the State Commission on 05.09.2018, about more than 11 months after the order of the State Commission, that since the Completion Certificate had not been obtained for the project, the possession could not be delivered to the complainants due to this reason. The appellant thus, did not offer possession to the complainant even on 05.09.2018 and rather, sought to explain the delay by saying that it had not obtained the Completion Certificate for the project. During the pendency of this appeal also, no offer was made by the appellant to the complainant, offering possession of the allotted flat without prejudice to its rights and contentions in this appeal. It is true that the complainant also did not request this Commission to direct the appellant to offer possession of the allotted flat to her without prejudice to the respective rights and contentions of the parties but since the appellant itself had stated before the State Commission on 05.09.2018 that the possession could not be delivered due to the Completion Certificate having not been obtained by it for the project, the complainant obviously, was not expected to submit such an application. Therefore, in my opinion, the compensation to the complainants needs to be paid with effect from 20.07.2016 till the date of this order. In the facts and circumstances of the case, the compensation to the complainant in my opinion, should be awarded @ 8% per annum, which the Hon'ble Supreme Court has upheld in Rajni Goyal (supra). The appeal is therefore, disposed of with the following directions:

(i) The appellant shall deliver possession of the allotted flat, complete in all respects, to the complainant within four weeks from today, failing which it shall also pay compensation in the form of simple interest at the rate of 8% per annum with effect from today till the date on which the possession is given.

(ii) The appellant shall pay compensation in the form of simple interest @ 8% per annum on the entire amount which the complainant had paid to the appellant, w.e.f. 20.07.2016 till today.

(iii) The appellant shall pay a sum of Rs.25,000/- as cost of litigation to the complainant.

(iv) The balance amount payable by the complainant to the appellant will be adjusted against the compensation payable to her in terms of this order.

(v) The payment to the complainant in terms of this order shall be made within four weeks from today.