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Judgment
Heard Mr. Kishan Rawat, Advocate, for the complainant, Mr. Chaitanya, Advocate, for opposite party-1 and Mr. Shantanu Krishna, Advocate, for opposite party-2.
Tejinder Singh has filed CC/600/2016 for directing the opposite parties to (i) handover possession of the flat allotted to him, complete in all respect within reasonable period and execute Flat Buyer’s Agreement and Maintenance Agreement, in his favour; (ii) pay delay compensation in the form of interest @21% per annum on his deposit from March, 2009 till actual handing over possession; (iii) restrain the opposite parties from charging interest on the balance amount for delayed or deferred period; (iv) restrain the opposite parties from realizing any amount for power backup, club membership, sinking fund and other charges, mentioned in the statement of account dated 11.01.2016 till handing over possession, completion of the entire project and all common facilities (v) pay Rs.20/- lakhs, as compensation for mental agony and harassment; (iii) pay the costs of litigation; and (iv) any other relief which is deemed fit and proper in the facts and circumstances of the case.
The complainant stated that M/s. Shipra Estate Limited & Jai Kishan Estate Developers Pvt. Ltd. (opposite party-1) were companies, 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. Ghaziabad Development Authority is a statutory authority, constituted under U.P. Urban Planning and Development Act, 1973. The opposite parties launched a group housing project, in the name of “Shipra Krishna” at Ahinsa Khand, Indirapuram, Ghaziabad in the year 2006 and made wide publicity of its facilities and amenities. Believing upon the representations of the opposite parties, the complainant booked a flat on 26.09.2006 and deposited booking amount of Rs.500000/-. The opposite party-1 allotted Flat No.Amaltas-1301, for a consideration of Rs.11465640/-, vide Allotment Letter dated 09.04.2007. Balance amount was payable in 7 instalments from 08.05.2007 till 31.10.2008. Opposite party-1 revised the price to Rs.10976100/-, accordingly the amount of instalments were also revised and informed the complainant vide letter dated 11.05.2007. Clause-9 of the allotment letter provides that construction of the building is likely to be completed within 22 months from the date of commencement of construction. As per demand, the complainant deposited Rs.595300/- on 05.06.2007, Rs.1100000/- on 30.06.2007, Rs.1463500/- on 28.07.2007, Rs.1463500/- on 31.10.2007 and Rs.1463500/- on 01.02.2008. However, the construction work ran with slow pace during this period. The President, Srishti Welfare Society held a meeting with Mr. Mohit Singh, Managing Director, of Shipra Estate Limited, who assured to arrange new construction equipment and work force and complete the buildings Gulmohar, Deodar and Amaltas till February, 2009. He also assured that no interest would be charged from the buyers, for delay in payment of instalments. The President informed the buyers through letter dated 28.02.2008 about the above decisions. Opposite party-1 however, further delayed the construction hence vide letter dated 26.08.2009, addressed to Srishti Welfare Society, offered delay compensation from January, 2009 till July, 2009 @Rs.5/- per sq.ft. per month and from August, 2009 @Rs.7/- per sq.ft. per month. Opposite party-1, vide letter dated 23.10.2009 written to the complainant, offered delay compensation from January, 2009 till July, 2009 @Rs.5/- per sq.ft. per month and from August, 2009 @Rs.5/- per sq.ft. per month. Opposite party-1, vide letter dated 12.06.2013, informed the buyers in building nos. 1 and 2 that the construction of these two buildings was completed, “partial completion certificate” was awaited and delivery of possession was expected till September, 2013. After September, 2013, they would pay delay compensation in the form of interest @14% per annum on the deposit of the buyers. Opposite party-1, through email dated 24.04.2015, offered possession to the buyers in building nos. 1 and 2, including the complainant along with final statement of account. In final statement of account, opposite party-1 demanded interest for delayed payment, maintenance charges and other charges and adjusted delayed compensation till October, 2014. The complainant, vide email dated 02.05.2015 asked to provide “completion certificate” of the project and raised objection for charging interest and not giving delay compensation till offer of possession. Opposite party-1, vide email dated 08.01.2016, issued reminder for deposit of the demanded amount and taking possession. Then this complaint was filed on 05.04.2016, alleging deficiency in service.
Opposite party-1 (the builder) has filed its written reply on 19.09.2017, in which, booking of the flat on 26.09.2006, allotment of Flat No.Amaltas-1301, on 09.04.2007 and deposits made by the complainant, are not disputed. The builder stated that the complainant paid instalment on 05.06.2007, which was payable till 08.05.2007, as such interest accrued on it due to delay in payment of instalment. The builder, through letter dated 01.10.2007 demanded the interest and next instalment payable till 31.10.2007. The complainant deposited the amount of instalment on 02.01.2008 and not the interest. The builder, through letter dated 01.10.2007 demanded the interest and next instalment payable till 31.10.2007. The complainant deposited the amount of instalment on 02.01.2008. The builder, through letter dated 02.01.2008 demanded the interest and next instalment payable till 31.01.2008. The complainant deposited the amount of instalment on 01.02.2008. The builder, vide letter dated 03.05.2008, demanded next instalment payable till 31.05.2008, which was not deposited. The builder, vide letter dated 13.03.2009, revised payment plan of balance instalments, which was duly communicated. As per revised plan, the remaining instalments were payable on or before 31.03.2009, 30.06.2009, 30.09.2009 and 30.11.2009 but the complainant did not deposit any instalment. The builder was facing financial difficulties in completing the project, which was duly apprised to the customers through letter dated 19.08.2009. The builder, vide letter dated 23.10.2009, apprised the complainant that the delay compensation would be adjusted against outstanding dues. The builder, vide letter dated 14.01.2012, informed the complainant that after adjusting the delay compensation payable up to 31.12.2011, a sum of Rs.3786952/- was payable and rescheduled it in three equal instalments payable on or before 31.01.2012, 25.02.2012 and 20.03.2012 but the complainant did not deposit any instalment. The builder, vide letter dated 11.06.2013, demanded total dues of Rs.3597892/- payable till 01.07.2013, adjusting delay compensation of Rs.955200/- and issued a credit note to the complainant on 04.07.2013. The builder, vide letter dated 01.03.2014, informed the complainant for permissive possession over the unit and also about the balance amount payable by him. The builder, vide letter dated 07.06.2014, informed the complainant that final finishing work was going on in his unit and possession would be handed over till August, 2014. The construction was completed till October, 2014 and the builder applied for “completion certificate”. Statement of account of the complainant shows balance of Rs.7142160/- as on 24.04.2015, Rs.11333209/- as on 02.09.2015. The complainant was offered possession, vide letter dated 11.01.2016. About 74 buyers have taken possession but the complainant did not turn up. The builder issued reminder dated 15.09.2016 to the complainant to complete the formalities and take possession. The construction was delayed for force majeure reasons. Immediately after floating the project, the builder issued work order to M/s. CTC Geotechnical Pvt. Ltd. on 12.07.2007. Later on it was observed that the contractor was not working satisfactorily as such new contractor namely M/s ATR Construction (P) Ltd. was engaged on 15.11.2011. Real Estate Industry saw adverse market scenario from 2008, which continued throughout thereafter. Due to deflation in market, the various allottees, including the complainant stopped payment of the instalments, since 2008, which created paucity of fund and crores of rupees had become due. Outstanding dues against the complainant was about Rs.43.90 lacs on 13.03.2009, after adjusting delay compensation and rescheduling the balance amount but the complainant did not start payment. Delay in completion of the project resulted in escalation of costs, causing heavy loss to the builder. Even then the builder completed the project. Demands raised by the builder were in terms of allotment letter. There was no deficiency in service on their part.
Ghaziabad Development Authority (opposite party-2) has filed its written reply on 08.01.2019. Opposite party-2 stated that for development of Module-II Indirapuram Residential Scheme, tenders were invited. Bid of M/s. Shipra Estate Limited & Jai Kishan Estate Developers Pvt. Ltd. (a partnership firm) was most suitable and accepted and a Memorandum of Understanding was executed on 08.01.2001, under which, the developer had responsibility to develop the scheme as per approved layout plan and right to sell its unit. Opposite party-2 has only obligation to execute sub-lease deed in favour of the buyer as and when it is provided by the developer.
The complainant filed Rejoinder Reply to the Written Reply of opposite party-1, Affidavit of Evidence of Tejinder Singh, documentary evidence. Opposite party-1 filed Affidavit of Evidence of Ajay Gupta and documentary evidence. Opposite party-2 filed Affidavit of Evidence of C.P. Tripathi and documentary evidence. All the parties have filed their written submission.
We have considered the arguments of the parties and examined the record. Clause-9 of the allotment letter dated 09.04.2007 provides that construction of the building is likely to be completed within 22 months from the date of commencement of construction. Nobody has given the date of commencement of the construction as such due date of possession is being considered from the date of allotment and expired on 08.02.2009. According to the builder, the construction was completed in October, 2014 and they applied for issue of “completion certificate”, which was issued on 19.10.2015 and possession was offered on 11.01.2016. In final statement of account, delay compensation of Rs.1353200/-, was paid till October, 2014 as per Clause-11 of the allotment letter, which provides for delay compensation subject to force majeure and other circumstances as given under clause-10 and letter dated 23.09.2009.
The builder took plea that the construction was delayed for force majeure reasons. Immediately after floating the project, the builder issued work order to M/s. CTC Geotechnical Pvt. Ltd. on 12.07.2007. Later on, it was observed that the contractor was not working satisfactorily as such new contractor namely M/s ATR Construction (P) Ltd. was engaged on 15.11.2011. Real Estate Industry saw adverse market scenario from 2008, which continued throughout thereafter. Due to deflation in market, the various allottees, including the complainant stopped payment of the instalments, since 2008, which created paucity of fund and crores of rupees had become due, consequently construction was delayed.
As per allotment letter, instalments were payable on 08.05.2007, 31.07.2007, 31.10.2007, 31.01.2008, 30.04.2008, 31.07.2008 and 31.10.2008. The complainant made payments on 05.06.2007, 30.06.2007, 28.07.2007, 31.10.2007 and 01.02.2008 (total amount of Rs.6585800/- out of sale price of Rs.10976100/-). The complainant stopped payment thereafter, although the builder, vide letter dated 03.05.2008, demanded next instalment payable till 30.04.2008. The builder, vide letter dated 13.03.2009, revised payment plan of balance instalments and communicated to the complainant. As per revised plan, remaining instalments were payable on or before 31.03.2009, 30.06.2009, 30.09.2009 and 30.11.2009 but the complainant did not deposit any instalment. The complainant wrote an email dated 24.02.2010 and letter dated 25.03.2010, seeking clarification of the account but did not make payment. On the request of the complainant, the builder again through letter dated 14.01.2012, rescheduled the instalments payable on 31.01.2012, 25.02.2012 and 20.03.2012. The builder again vide letter dated 11.06.2013, asked the complainant to deposit the balance amount of Rs.3597892/- (adjusting Rs.955200/- as delayed compensation. According to the complainant, demand of instalment was deferred due to delay. The complainant placed reliance of a letter dated 28.02.2008, written by the President, Srishti Welfare Society. There is no any letter of the builder for deferring payment of instalment. On the other hand, the builder through out demanded instalments. From the above facts, it is proved that the complainant was defaulter in deposit instalments since May, 2008. Supreme Court in Prasant Kumar Shahi Vs. Ghaziabad Development Authority, (2000) 4 SCC 120, held that the builder was not expected to deliver possession in the absence of payment of agreed amount. The buyer is liable to pay interest on the dues.
Supreme Court, in Ireo Grace Realteck Private Limited Vs. Abhishek Khanna, (2021) 3 SCC 241, held that once possession was offered after obtaining “occupation certificate” then the home buyer is obligated to take possession after deposit of balance amount. The complainant, however, relying upon the judgment in Utpal Trehan Vs. DLF Home Developers Ltd., (2022) 10 SCC 409, submitted as offer of possession was accompanied by a demand letter, in which, illegal demands were made as such offer of possession was invalid. In the complaint, demand of interest for deferred period and non-payment of delay compensation till offer of possession have been challenged. In the written argument demands for “Terrace Area Charge” and “Sinking Fund” have also been challenged.
We find that there is no evidence to prove that the builder has ever deferred payment of the instalment rather the builder has throughout raised demand. The complainant was allotted penthouse as such, the terrace will be in his exclusive use and charge in this respect cannot be said to be illegal. “Sinking Fund” was charged as per clause-19 of the allotment letter. In the fact that the complainant was a rank defaulter, the builder decided to adjust delay compensation till October, 2014 then the complainant at his own level cannot say that demand was illegal. In the present case, opposite party-1 has not exercise its right to cancel the allotment rather offered possession giving delay compensation till date of completion of the construction. Supreme Court in Civil Appeal No. 556 of 2012 Shripati Lakhan Mane Vs. The Member Secretary, Maharashtra Water Supply and Sewerage Board, (2022) 3 JT 492 (decided on 30.03.2022) held that when one party absolutely refused to perform or has rendered himself incapable of performing his part of obligation under the contract, he puts in power of other party either to sue for breach of it or to rescind the contract and sue on quantum meruit for the work actually done, under Section 75 of the Contract Act, 1872.
ORDER
In view of the aforesaid discussions, the complaint is partly allowed. Opposite party-1 is directed to issue fresh statement of account charging interest @9% per annum on the balance amount payable by the complainant after 12.01.2016, within a period of one month from the date of this judgment. The complainant will be given one month time to deposit the balance amount. On deposit of the balance amount, the opposite parties will execute conveyance deed and handover possession of the flat allotted to the complainant complete in all respect within six weeks thereafter. If the complainant fails to deposit the balance amount, opposite party-1 shall cancel the allotment of the complainant and return the amount deposited by the complainant with interest @9% per annum from the date of respective deposit till the date of refund, after deducting 10% of the basic sale price of the flat, within a period of two months thereafter.