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Judgment
The present Consumer Complaint has been filed under Section 21 of the Consumer Protection Act, 1986 (for short "the Act") by the Complainants, against the Opposite Party M/s. Ireo Private Ltd. (hereinafter referred to as the 'Developer'), seeking compensation for delay in handing over the possession of the Flat booked by them in the Project launched by the Developer in the name and style of "SKYON" Golf Course Extension Road, Sector-60 in the revenue estate of Village Ullawas, Tehsil Sohna, District Gurgaon, Haryana, (hereinafter referred to as the Project) within stipulated period.
According to the Complainants, the facts of the case are that in response to the Applications invited by the Opposite Party Developer for allotment of flats in their upcoming Project, "SKYON" (hereinafter referred to as the Project) located at Golf Course Extension Road, Sector-60 in the revenue estate of Village Ullawas, Tehsil Sohna, District Gurgaon, Haryana, Mr. Shyam Sundar Sarrof and Mrs. Jyoti Sarrof (hereinafter referred to 'original allottee') booked an Apartment in the said Project. They were allotted provisional Apartment No. C-07-4 and an Apartment Buyer's Agreement (hereinafter referred to as the 'Agreement') was executed by them on 23.11.2011. The Complainants purchased the said Apartment from original allottee and got transferred the same in their favor by the Opposite Party Developer on 16.05.2012. It is the say of the Complainants that as per Clause 13.3. of the Agreement, the possession of the Unit was to be handed over within a period of 42 months from the date of approval of the Building Plans. The OP was also entitled for additional 180 days' grace period for giving the possession of the Unit. Clause 13.3 of the Agreement reads as under:
" Subject to Force Majeure, as defined herein and further subject to the allottee having complied with all its obligations under the terms and conditions of this Agreement and not having defaulted under any provision(s) of this Agreement including but not limited to the timely payment of all dues and charges including the total Sale Consideration, registration charges, stamp duty and other charges and also subject to the Allottee having complied with all formalities or documentation as prescribed by the Company, the Company proposes to offer the possession of the said Apartment to the Allottee within a period of 42 (Forty Two) months from the date of approval of the Building Plans and/or fulfillment of the preconditions imposed thereunder ("Commitment period"). The Allottee further agrees and understands that the Company shall additionally be entitled to a period of 180 days ("Grace period"), after the expiry of the said Commitment Period to allow for unforeseen delays beyond the reasonable control of the Company. "
The Complainants made payment of 1,09,92,668/- (Rupees One Crore Nine Lacs Ninety Two Thousand Six Hundered Sixty Eight only), i.e., 95% of the sale consideration, on different dates upto the date of filing of the present Complaint as per demand of the Opposite Party Developer, despite that the Opposite Party Developer failed to deliver the possession of the Unit within stipulated period, i.e, by 22.09.2015. The OP Developer issued Notice of Possession on 6. 09.2016 in which false/illegal demand of 15,45,244/- under following distinct heads, was raised:-
a.
Non-Refundable Skyon Club Deposit
5,00,000/-
b.
Infra Augmentation Charges (IAC)
16,459/-
c.
Labour Cess on Project
66,995/-
d.
Applicable carrying cost
87,386/-
e.
Interest on Delayed payment, if any
1,97,030/-
f.
Internal Gas pipe laying & meter charges
19,878/-
g.
Internal electrical charges
28,270/-
h.
Service Tax Component, where applicable
4,99,024/-
i.
Recovery towards cost on account of Indirect taxes
1,22,200/-
j
Administrative charges for Registration
8,000/-
TOTAL
15,45,242/-
It was averred that the above amount should be borne by the Opposite Party Developer and should not be asked from the Complainants. Alleging deficiency in service and Unfair Trade Practice on the part of the Opposite Party Developer, the Complainants have filed the present Complaint with following prayer:-
"(a) Direct the Opposite party to pay the Complainants towards interest on the whole amount deposited by the Complainants interest @ 18% per annum compounding quarterly for the delay of 18 moths in offered in the possession of Unit/Flat NO. C-07-04 in SKYON Project situated at:- Golf Course Extension Road, Sector-60 in the revenue estate of Village Ullawas, Tehsil Sohna, District Gurgaon, Haryana;
(b) Direct the Opposite party to pay the complainants interest 18% per annum compounding quarterly till the delivery of physical possession of the above said Unit/Flat to the complainant duly completed in all respects;
(c) Direct the Opposite Party to recall the unjustifiable demands so raised in their " Notice of Possession " dated. 06.09.2016 under the heads as enumerated in Para No.3.10 of present complaints; also to refund/adjust the Service Tax amount as claimed in the said Notice of Possession.
(d) Direct the Opposite party to pay the Complainants towards loss of rent at the rate of Rs.50,000/- per month from 26/03/2015 i.e. from the promised dated of handing over possession till the actual delivery of possession;
(e) Award the cost and litigation expenses &compensation for harassment & mental agony to the tune of Rs.5,00,000/- to complainants;
(f) Pass such other or further orders as this Hon;ble Commission may deem fit and proper in the interest of justice.
(g) Direct the Opposite party to pay an additional compensation of Rs.20,00,000/- (Rs. Twenty Lacs only) since the opposite party had changed the Layout/ Design of the apartment without any knowledge and notice of the complainant;
(h) Direct the Opposite party to pay compensation for Rs.5,00,000/-(Rs.5,00,000/-) for not providing the complete Home Automation System as per their commitments and as shown in their brochure;
(i) Direct the Opposite Party to refund undue/extra charges paid by the Complainants with interest @18% p.a. for Electricity thereby further directing them to not charges extra charges for electricity over and above Haryana Government rates."
Upon notice, the Complaint was resisted by the Opposite Party by filing Written Statement in which the allegations levelled by the Complainants were denied and it was stated that there is no delay in delivery of possession of the Flat and the possession was offered well before the stipulated period. The demand of 15,45,244/- under distinct heads raised vide Notice of Possession dated 06.09.2016 is in terms of the Agreement and the Complainants are bound to pay the same. There is no deficiency in service on their part and prayed that the Complaint may be dismissed.
Mr. Deepak Kumar Khushalani, learned Counsel appearing on behalf of the Complainants submitted that there is a delay of about 23½ months in handing over the possession in terms of clause 13.3. of the Agreement. He relied upon Judgment passed by the Hon'ble Supreme Court in IREO Victory Valley Pvt. Ltd. vs. Shamshul Hoda Khan [Civil Appeal 4801/2019] affirming the Order passed by this Commission in CC No. 1062/2018 'Shamshul Hoda Khan vs. Ireo Victory Valley Pvt. Ltd.' in which it has been held that Fire NOC w.r.t.present project was not a pre-condition because the main reason that 5 th payment, i.e., casting of Ground Floor roof slab' had been taken prior to grant of fire NOC.' and submitted that the period should be counted from the date of Building Plan Approval. It was also submitted that the OP Builder has illegally raised demand for Club House, Infra Augmentation Charges, Labour Cess on Project, Applicable Carrying Cost. It was further submitted that the Club Charges had been claimed by one unknown entity 'M/s. Quick Real Estate Pvt. Ltd.' which was not a party to the Agreement. He prayed that the present Consumer Complaint be allowed and the reliefs sought in the prayer clause of the present Complaint be granted.
Per contra, Mr. Abhimanyu Bhandari, learned Counsel appearing on behalf of the Opposite Party Developer submitted that the Three-Judge Bench of the Hon'ble Supreme Court vide their Judgment dated 11.01.2021 in the case " Ireo Grace Realtech Pvt. Ltd. vs. Abhishek Khanna & Ors. " [Civil Appeal No. 5785 / 2019 & other connected Appeals] has also considered the Judgment of IREO Victory Valley Pvt. Ltd. vs. Shamshul hoda Khan (supra) relied upon by the Complainants, and held that " the 42 months' period in Clause 13.3, of the Agreement for handing over possession of the apartments would be required to be computed from the date on which Fire NOC was issued, and not from the date of the Building Plans being sanctioned. " Relying on the above Judgment, he submitted that they were granted Fire NOC on 25.09.2013 and computing 42 months commitment period from 25.09.2013, they were bound to give the possession of the Flat to the Complainants on 25.03.2017 and by further adding grace period of 180 days the Possession of the Flat was to be delivered by 25.09.2017. But they gave the possession of the Flat to the Complainants on 14.03.2017, i.e., much before the commitment period. Therefore, there is no deficiency in service on their part. In response to demands raised vide Notice of Possession on 06.09.2016, it was submitted that all the demands were raised in terms of the Agreement and the Complainants are bound to pay them. Club Membership Charges were raised in terms of Clause 17 of the Agreement and 'M/s. Quick Real Estate Pvt. Ltd.' was appointed in terms of the said clause and the Club Membership was optional, if the Complainant wan to avail the services of Club House he has to pay the charges; Infra Augmentation Charges (IAC) were charged in terms of Clause 8.1 of the Agreement; Labour Cess was demanded in terms of Clause 3.6, Applicable Carrying Cost was demanded in terms of Clause 3.5. The Complainant was a chronic defaulter in making the payment, therefore, in terms of Cluase 7.4, penal interest was charged; Keeping in mind the safety of the Apartment owners, Internal Gas Pipe Line was installed to ensure that the cylinders are kept outdoors and gas is supplied to the Apartment through pipelines and meters were installd to monitor the gas usage, therefore, internal Gas Pipe Laying and Meter charges were demanded; Internal electrical charges were demanded in terms of Clause 23.2 of the Agreement; service tax was demanded in terms to Clause 3.6 and 8.1 of the Agreement; Recovery towards cost of other indirect expenses were demanded in terms of Clause 8 of the Agreement; the Administrative Charges for Registration are demanded as the OP had hired services of a third party for the purpose of registration of conveyance deed of the Apartment. It was, therefore, submitted that all the demands were as per the terms of the Agreement and the Complainants are bound to pay the same. It was prayed that the present Consumer Complaint be dismissed.
We have heard Mr. Deepak Kumar Khushalani, learned Counsel appearing on behalf of the Complainants, Mr. Abhimanyu Bhandari, learned Counsel appearing on behalf of the Opposite Party and have given a thoughtful consideration to the arguments advanced by them.
The Hon'ble Supreme Court in the case " Ireo Grace Realtech Pvt. Ltd. vs. Abhishek Khanna & Ors. " [Civil Appeal No. 5785 / 2019 & other connected Appeals] has considered the Judgment of IREO Victory Valley Pvt. Ltd. vs. Shamshul Hoda Khan (supra) relied upon by the Complainants, and held that. The Hon'ble Supreme Court had held that 27.11.2018 would be the relevant date for offer of possession by observing as under:-
"17. ..........
(f) The Respondents placed reliance on the order passed in the case of IREO Victory Valley Pvt. Ltd. v. Shamshul Hoda Khan, wherein the National Commission held that the Fire NOC was not a pre-condition for commencement of the construction work. The Appeal of the Developer was rejected by this Court vide order dated 03.05.2019, and the Review Petition was dismissed on 15.10.2019.
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18.8 We are of the view that it was a mandatory requirement under the Haryana Fire Safety Act, 2009 to obtain the Fire NOC before commencement of construction activity. This requirement is stipulated in the sanctioned Building Plans, as also in the Environment Clearance.
18.9 The 42 months' period in Clause 13.3. of the Agreement for handing over possession of the apartments would be required to be computed from the date on which Fire NOC was issued, and not from the date of the Building Plans being sanctioned. "
Respectfully following the Principle laid down by the Hon'ble Supreme Court in the case of "IREO Grace Realtech Pvt. Ltd. (supra)", we are of the view that computing the 42 months commitment period plus 180 days grace period from 25.09.2013, i.e., the date of obtaining Fire NOC, the OP Developer was bound to deliver the possession of the Flat to the Complainants by 25.09.2017. In the present case, admittedly the physical possession of the Flat was given to the Complainants on 14.03.2017, i.e., much before 25.09.2017.
Therefore, there is no delay on the part of the OP Developer in giving the Possession of the Flat to the Complainants.
As far as the demands raised vide Notice of Possession dated 06.09.2016 are concerned, we have gone through the various clauses of the Agreement and found that the demand raised by the OP Developer under the head 'Non-Refundable Skyon Club Deposit', Infra Augmentation Charges (IAC), Labour Cess on Project Applicable carrying cost, Interest on Delayed payment, Internal electrical charges, Service Tax Component, Recovery towards cost on account of Indirect taxes' are in terms of the Agreement. As far as the 'Internal Gas pipe laying & meter charges' and 'Administrative Charges for Registration' are concerned, keeping in mind the safety of the Apartment owners, the OP Developer has installed Internal Gas Pipe Line to ensure that the cylinders are kept outdoors and gas is supplied to the Apartment through pipelines and meters were installed to monitor the gas usage. Since the OP Developer has hired the services of a third party for the purpose of Registration of Conveyance Deed of the Apartment, the demand for 'Administrative Charges for Registration' is raised. In the afore-noted circumstances, we are of the view that the OP Developer was justified in raising the demand vide Notice of Possession dated 06.09.2016 and the Complainants are bound to pay the same.
In view of above, we see no merit in the present Consumer Complaint and the same is dismissed with no order as to Costs.