Varun Goyal vs M/s Suncity Pvt. Ltd

Heard Mr. Shekhar Gehlot, Advocate, for the complainant and Mr. Pravin Bahadur, Advocate, for the opposite party.

The complainant has filed IA/5889/2018, for adducing additional documentary evidence, IA/12613/2018, for condoning the delay in filing the amended complaint and IA/12612/2018 for amending the complaint, which are allowed. Amended complaint and documentary evidence are taken on record.

Varun Goyal filed above complaint, for directing the opposite party to pay (i) Rs.700548/-, towards loss of rent from 15.02.2014 to 01.09.2017, (ii) Rs.713359/-, towards excess payment of tax due to delay, (iii) Rs.921612/-, towards loss of extra interest on the amount paid to builder due to erroneous charging, (iv) Rs.142881/-, the amount of GST and other taxes enforced after 15.02.2014, (v) Rs.5/- lakhs, for not providing Jacuzzi, Shower, Cubicle in all bathrooms and modular kitchen, (vi) Rs.10/- lakhs, as compensation for mental agony and harassment, (vii) pay Rs.100000/- as cost of the litigation, (viii) Rs.7040194/-, for illegal retention of money during 15.02.2014 to 01.09.2017; and (ix) any other relief which may be deemed fit and proper in the facts and circumstances of the case be granted. In the amended complaint, the complainant has revised prayers as (i) Rs.1059372/-, towards loss of rent from 15.02.2014 to 01.09.2017, (ii) Rs.713359/-, towards excess payment of tax due to delay, (iii) Rs.921612/-, towards interest on excess payments & GST, (iv) Rs.142881/-, the amount of GST and other taxes enforced after 15.02.2014, (v) Rs.5/- lakhs, for not providing Jacuzzi, Shower, Cubicle in all bathrooms and modular kitchen, (vi) Rs.10/- lakhs, as compensation for mental agony and harassment, (vii) pay Rs.100000/- as cost of the litigation, (viii) Rs.7040194/-, for illegal retention of money during 15.02.2014 to 01.09.2017.

The complainant stated that M/s. Suncity Projects 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 project of group housing, in the name of “Parikrama” at village Kundi, Sector-20, district Panchkula, Haryana, in the year 2010 and made wide publicity of the facilities and amenities of the project. The opposite party claimed to have requisite approval for construction, financial, administrative and legal capacity to complete the project by 2014. The opposite party claimed to provide world class facilities including modular kitchen, Jacuzzi fitted bathrooms among others. Believing upon the representations and tall promises of the opposite party, the complainant, who was in need of his residence, booked a flat on 23.12.2010 and deposited booking amount of Rs.5/- lakhs. After booking, the opposite party allotted Flat No.1001, Tower-10-A, super area 2150 sq.ft. at the rate of Rs.4500/- sq.ft. to the complainant and executed Apartment Buyer Agreement (ABA) on 15.02.2011, in his favour. Clause-25 of ABA provides three years period from the date of agreement or approval of all services plans, whichever is later and subject to timely payment by the allottee, for delivery of possession. Annexure-IV of the ABA provides for “construction link payment plan”. ABA contains one sided arbitrary clauses inasmuch as in case of delay in payment of instalments, the complainant was liable to pay interest @24% per annum while in case of delay in possession, the compensation @ Rs.10/- per sq.ft., per month on super area was payable. The complainant took loans from the banks for making payments. As per demand, the complainant paid Rs.500000/- on 23.12.2010, Rs.951250/- on 03.01.2011, Rs.976500/- on 12.02.2011, Rs.1693125/- on 31.10.2011, Rs.416880/- on 03.02.2012, Rs.725625/- on 09.02.2012, Rs.435375/- on 25.06.2012, Rs.312000/- on 25.06.2012, Rs.399094/- on 06.10.2012, Rs.326531/- on 06.10.2012, Rs.399094/- on 22.12.2012, Rs.371375/- on 26.12.2012 and Rs.298850/- on 29.12.2012 (total Rs.7805699/-). The opposite party could neither complete the construction nor offered possession to the complainant on due date, which expired in February, 2014. The complainant wrote emails dated 24.06.2014, 26.06.2014, 02.07.2014 and 07.07.2014, to the opposite party, inquiring the date of delivery of possession. The opposite party vide letter dated 18.08.2014 admitted that the construction had been delayed. The complainant met with the officers of the opposite party, in November, 2014, then they informed that possession would likely to be given in March, 2016. The opposite party issued a demand letter dated 08.02.2016, demanding Rs.1884238/-, (including Rs.605257/- as interest). The complainant met Mr. Amit, an officer of opposite party, on 05.07.2016 and discussed the issues. He agreed to waive the interest and informed that possession would be given till December, 2016. The opposite party issued another demand letter dated 03.08.2016, for Rs.1784501/-, which was paid by the complainant. However, deadline of December also expired and possession was not delivered. The opposite party, vide letter dated 01.09.2017, offered possession and raised demand of Rs.1480143/- (including Rs.921612/- as interest). The complainant tried to resolve issues but the opposite party did not permit meeting, then the complainant gave a legal notice dated 11.09.2017, to withdraw demand dated 01.09.2017 and give fair compensation for delay in possession. The opposite party instead of giving fair compensation threatened that holding charges @ Rs.10/- per sq.ft. on super area would be charged from the date of offer of possession. Under coercion, the complainant deposited above amount on 29.09.2017. When the complainant went to inspect the flat, he found that as per specification, modular kitchen, Jacuzzi, bathing tub in one bathroom, shower cubicle in another bathroom were not installed. The complainant took possession on 23.11.2017 under protest. The opposite party committed deficiency in service, in not giving possession on due date, charging interest exorbitantly on delayed instalment, not completing construction as per specification and not providing fair compensation for the delayed period. Due to delay in possession the complainant borne double burden i.e. paying rent and also paying EMI on the bank loan. The complainant has suffered loss in Income tax rebate, levy of new taxes, enhancement of taxes after February, 2014, interest on the deposits made by the complainant due to illegal retention and not providing amenities as per specification. Thereafter, this complaint was filed on 10.07.2018.

The opposite party filed its written reply in the complaint on 04.09.2018, in which, allotment of the flat and execution Apartment Buyer Agreement (ABA) on 15.02.2011 in favour of the complainant, have not been disputed. Clause-25 of the ABA provides three years period from the date of agreement or approval of all services plans, whichever is later and subject to timely payment by the allottee. The service plans/estimates were approved by the DTCP, Haryana on 27.12.2013 as such three years period has to be counted from this date. Clause-25 is further subject to force majeure reasons as given under Clauses-27 and 28. M/s. Odeon Builders Pvt. Ltd. was technical partner and associate company of the opposite party, who was given liability for completing construction of the project “Parikrama”. Due to certain issues with regards to assurances of quality, timelines and cost, the technical partnership with M/s. Odeon Builders Pvt. Ltd. was split, due to which, the construction work of the project was stopped. The opposite party underwent the herculean task of settling accounts with M/s. Odeon Builders Pvt. Ltd. after split. Measurement of the work at site, demobilization of equipment, plant & machinery, fitting & fixtures, housing colony for the labourers etc. were done. Due to which, the work remained stopped during 2013-2014. The opposite party then engaged a new contractor, namely Fastech Project Pvt. Ltd. for completing the project. As per payment plan, demand letters were issued to the complainant as and when the instalment had become due but he had committed default in payment of instalment on time, as such, the reminders dated 11.08.2011, 19.11.2012, 10.01.2013, 13.09.2013, 22.10.2013, 03.04.2015 and 08.06.2016 were issued in which interest was charged on delayed payment as per ABA. It has been denied that interest on delayed payment was ever waived. The complainant did not make timely payment of the instalments, as such he cannot expect timely completion of the project. The complainant has deliberately suppressed these material facts. The opposite party is entitled for extension of these periods. Under the agreement, the opposite party is liable to pay compensation for delay in possession @ Rs.10/- per sq.ft., per month on the super area. In final demand letter dated 01.09.2017, delayed compensation of Rs.927367/- w.e.f. March, 2014 has been adjusted. Apartment from the compensation as agreed in the ABA, the complainant was not entitled for any other compensation i.e. rent or EMI on bank loan. The complainant agreed to pay the consideration of the flat in terms of the ABA, the opposite party has no concern with EMI on bank loan. It has been denied that any term of the ABA was one sided or arbitrary. ABA was executed on 15.02.2011 and the complainant cannot be permitted to challenge various terms and conditions of the ABA after expiry of more than seven years and after taking possession of the unit. It has been denied that the opposite party ever discouraged the complainant from adopting any legal action. The complainant is not entitled to claim alleged loss of Income tax rebate. Interest was charged for delayed payment as per ABA, it cannot be treated any loss to the complainant due to any act of the opposite party. As per clause-15, the complainant is liable to pay EDC, IDC and other charges on pro-rata basis. As per clause 19, the complainant is liable to pay taxes or cesses on pro-rata basis. The complainant has been charged EDC, IDC, other charges, taxes and cesses on pro-rata basis, on the basis of actual payment made by the opposite party. The opposite party did not retain money of the complainant rather invested in construction of the project. The complainant is not entitled for any compensation. The complainant is liable to be dismissed with cost. Preliminary objection that the complainant was not a consumer as after taking possession he had let out the flat, which is commercial use as such the complaint is not maintainable, has been raised. Exorbitant claims are made in order to achieve pecuniary jurisdiction of this commission. Relation between the complainant and the opposite party is based on a contract as such the complainant be relegated to go before civil court.

The complainant has filed Rejoinder Reply on 12.02.2019, Affidavit of Declaration of Assets, Affidavit of Evidence of Varun Goyal  and Affidavit of Varun Goyal under Section 65-B of Evidence Act, 1872. Vide IA/5889/2018, Additional Evidence i.e. Under-taking dated 23.09.2017, has been filed. The opposite party has filed Affidavit of Evidence of Rajendra Kumar. The complainant filed short synopsis.

We have considered the arguments of the parties and examined the record. Apartment Buyer Agreement (ABA) in favour of the complainant was executed on 15.02.2011. Clause-25 of the ABA provides three years period for possession, from the date of agreement or approval of all services plans, whichever is later and subject to timely payment by the allottee. As such due date of possession was 15.02.2014. The opposite party offered possession on 01.09.2017 as such there was delay in offer of possession. The opposite party took plea that as service plans/estimates were approved by the DTCP, Haryana on 27.12.2013 as such three years period has to be counted from this date. But this plea is not liable to be accepted inasmuch as the opposite party realised 13 instalments i.e. total Rs.7805699/- up to 29.12.2012. As the opposite party was realizing instalments of various stages of the construction, he cannot take any benefit of sanctioning service plan on a subsequent stage.

Force Majeure is a clause that is included in contract to save from the liability for unforeseen and unavoidable catastrophic that interrupt. Force Majeure has been statutorily recognised under Section 56 of the Contract Act, 1872. Supreme Court in Dhanrajmal Govindram Vs. Shyamji Kalidas, AIR 1961 SC 1285, held that an analysis of the rulings on the subject shows that where reference is made to “force majeure” the intension is to save the performing party from the consequences of anything over which he had no control. In IREO Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241, the period of delay caused in issuing NOC by Fire Department, was excluded from counting the period of delay. Clause-25 is subject to force majeure reasons as given under Clauses-27 and 28. Clause-27 provides that if due to dispute with construction agency, the construction is delayed; the owner is entitled for extension of that period. The opposite party took plea that M/s. Odeon Builders Pvt. Ltd. who was technical partner and associate company of the opposite party, was given liability for completing construction of the project “Parikrama”. Due to certain issues with regards to assurances of quality, timelines and cost, the technical partnership with M/s. Odeon Builders Pvt. Ltd. was split, due to which, the construction work of the project was stopped. The opposite party underwent the herculean task of settling accounts with M/s. Odeon Builders Pvt. Ltd. after split. Measurement of the work at site, demobilization of equipment, plant & machinery, fitting & fixtures, housing colony for the labourers etc. were done. Due to which, the work remained stopped during 2013-2014. The opposite party then engaged a new contractor, namely Fastech Project Pvt. Ltd. for completing the project. Payment table as given in paragraph-4 of the complaint shows that the complainant did not make any payment during 2013-2014. As such, the opposite party is entitled for extension of two years period for force majeure reason under clause-27 of ABA and due date of possession would be 14.02.2016.

Under clause-25 of the ABA, the opposite party is liable to pay compensation for delay in possession @ Rs.10/- per sq.ft., per month on the super area. However, 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 IREO Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241, held that delayed compensation is payable in the shape of interest @6% per annum on the deposit of home buyers from due date of possession till the offer of possession. The complainant is entitled for delayed compensation for the period of 15.02.2016 to 31.08.2017, in the form of interest @6% per annum on his deposit. Interest @6% per annum on the deposit is fair compensation as fixed by Supreme Court, the complainant is not entitled for any other compensation for delay i.e. loss of rental income, loss of rebate in Income tax, burden of EMI etc.

The opposite party is charging interest @24% per annum, on the amount of instalment, payment of which was delayed. Looking to the fact that the construction has been unreasonably delayed, we scale down the interest @9% per annum on the amount of instalments, payment of which have been delayed. There is no evidence to prove that the opposite party has waived interest at any stage. For the period of 2013-2014, the construction was stopped as such, the opposite party would not be entitled to charge interest during this period, on the defaulted amount of instalment.

As per clause-15, the complainant is liable to pay EDC, IDC and other charges on pro-rata basis. As per clause 19, the complainant is liable to pay taxes or cesses on pro-rata basis. The complainant has been charged EDC, IDC, other charges, taxes and cesses on pro-rata basis, on the basis of actual payment made by the opposite party. The complainant cannot evade the liability of statutory charges and taxes on the ground that some of the liability has accrued after due date of possession. Supreme Court in Banglore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 442, held that in the matter of contractual obligation, there is no scope for compensation for mental agony and harassment. In DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda, II (2019) CPJ 117 (SC) held when interest is awarded as compensation then awarding additional compensation was not justified.

The complainant has stated that modular kitchen, Jacuzzi, bathing tub in one bathroom, shower cubicle in another bathroom were not installed. As per specification, these amenities were liable to be provided by the opposite party. The opposite party may remove these deficiency in construction within two months. If the opposite party has not executed final conveyance deed, they execute final conveyance deed, in favour of the complainant after charging stamp duty, registration charges and other legal expenses.

ORDER

In view of the aforesaid discussions, the complaint is partly allowed. The opposite party is directed to remove deficiency in construction as per specification, if not already removed, within two months. The opposite party is directed to prepare a fresh statement of account giving compensation for delayed possession in the form of interest @6% per annum on the deposit of the complainant from 15.02.2016 to 31.08.2017 and charging interest @9% per annum on the amount of instalment for the defaulted period (except during 2013-2014). If any amount is payable to the complainant, it will be paid within one months from today. If the complainant is liable to pay any amount, he will pay within two month. After settlement of the account, if conveyance deed has not been executed, it will be executed within two months after charging stamp duty, registration charges and other legal expenses.