Ved Prakash Aggarwal vs Logix City Developers Pvt Ltd Through Its Director

Binoy Kumar, Member

The present First Appeal has been filed under Section 51(1) of the Consumer Protection Act, 2019 (hereinafter referred to as “the Act”) against the Order dated 05.10.2020 passed by the State Consumer Disputes Redressal Commission Uttar Pradesh, (hereinafter to be referred as “the State Commission”), in Consumer Complaint No. 364 of 2020, whereby the Complaint filed by the Appellant / Complainant was partly allowed.

The brief facts leading upto the present case are that the Respondent /Opposite Party is engaged in developing one township in the name and style “Blossom Zest” at Sector – 143, District – Gautam Budh Nagar Noida. One Flat No. SAT 201, Tower-2 was allotted in the name of Shri Anish Singhal S/o Shri Ishwar Singhal R/o D-306, Defense Colony, New Delhi-110024 who paid a sum of Rs.1,50,000/- to the Respondent/Opposite Party as a booking amount.

The Appellant/Complainant returned the deposited amount to the original allottee Mr. Anish Singhal and paid a sum of Rs.2,50,000/- through cheque on 02.11.2011 to the Respondent/Opposite Party. On 28.11.2011, the Respondent/Opposite Party transferred the flat no. SAT 201, Tower-2, Floor-2nd, area admeasuring 470 sq. ft., Blossom Zest, Sector-143, Gautam Budh Nagar, Noida in the name of Appellant/Complainant as per previous terms and conditions.

The Flat Buyer Agreement (hereinafter to be referred as “the Agreement”) and Transfer/Assignment/Endorsement was duly signed and executed on 28.11.2011 by all the parties for a total basic price of Rs.18,21,763/-. In accordance of provisions of 6.1 of agreement/ contract, possession of flat was to be given within the period of 18 (Eighteen) months, i.e. 27.05.2013. The period of construction of the flat is given in Clause 6.1 of the Agreement reads as under:

“Subject to the sanction of the building plans for the Project (including revision thereof), and to all the buyers of the apartments in the Project making timely payment the Company shall endeavor to complete the construction of the Apartment within 18 months from the date of the execution of this Agreement. After the expiry of the said aforesaid 18 months, the Company shall have a grace period of 4 months for the Apartments situated in Towers M,P,I,B,S,L,Q,R and J and a period of 6 (Six) months to complete the construction of the Apartment situate in other Towers (the “Grace Period”). , the Company shall have a grace period of . ”;

The Appellant/Complainant made a total payment of Rs. 13,60,043/- (More than 50% of the total consideration) as per the construction linked payment plan to the Respondent/Opposite Party. The last payment was made on 04.04.2014 for which receipt was issued on 09.06.2014 by Respondent/Opposite Party. Further as per Clause no. 6.1, it is mentioned that the possession of the flat shall be handed over within the period of 18 months. Even after six years and even after the said delay, the Respondent/Opposite Party did not hand over the possession of the flat.

The Appellant/Complainant sent various letters to Respondent/Opposite Party in connection with giving the physical possession of flat, but the Appellant did not get any fruitful result. Aggrieved by the acts and conduct of the Respondent/Opposite Party on 15.05.2015, the Appellant/Complainant filed a complaint before District Forum, Gautam Budh Nagar which was dismissed due to lack of pecuniary jurisdiction.

Aggrieved by the order of the District Forum, the Appellant/Complainant preferred an appeal before State Commission, Lucknow, U.P. wherein the State Commission decided that the valuation of the complaint is more that Rs.20 Lacs, therefore, the complaint before the District Forum was not maintainable. On this ground, the appeal filed by the Complainant was dismissed vide order dated 01.05.2019. However, liberty was granted to the Complainant to file the fresh complaint before the State Commission.

Aggrieved by the Order of State Commission, the Complainant filed the Revision Petition before this Commission wherein the RP was dismissed and liberty was granted to the Complainant to file a fresh Complaint before the State Commission. The State Commission was asked to try to decide the same as soon as possible as Complainant had already suffered for four years.

Aggrieved by the Order of this Commission, the Appellant/ Complainant filed a Review Application in aforesaid Revision Petition wherein there was an error apparent in Paragraph No. 8 of the Order. Inadvertently, the word ‘State Commission’ was mentioned in place of ‘District Forum’. Accordingly, the review application is disposed of.

Aggrieved by the Order passed by National Commission on aforesaid RP and RA, the Appellant/Respondent filed Special Leave Petition (SLP) before the Hon’ble Supreme Court wherein the, Hon’ble Supreme Court observed that “in the event the Complaint is refiled before the State Consumer Dispute Redressal Commission, it be disposed of expeditiously having regard to the facts and circumstances of the case”. The Special Leave Petition was accordingly disposed of.

In the meantime, the Appellant/Complainant received the letter of offer of possession on 13.02.2019. Further he averred that, the Respondent/Opposite Party charged the annual interest @18% for causing delay in payment. The Opposite Party failed to complete the construction work within stipulated period, and till date construction is not completed.

The Appellant/Complainant also averred that, the Opposite Party charged 50% additionally on the actual amount of flat, which is illegal as the flat comes in the category of Janta Flat and it is illegal to charge the additional charge on such Janta Flat. Further, the Completion Certificate was to be issued to the Complainant from concerned departments hand over the physical possession of flat on getting no objection certificates.

Aggrieved by the aforesaid acts of the Appellant/Opposite Party, the Appellant/Complainant filed a Complaint before the State Commission, with the following prayer :-

A. To comply the order passed by Hon’ble Supreme Court to maintain the decorum of order passed by Hon’ble Supreme Court.

B. That give the directions to opposite party to hand over the physical possession of flat with no objection certificate and also completion certificates from concerned departments after completing whole construction work in favour of complainant.

C. That give the directions to opposite party to pay the annual interest of 18% delay charges from the date i.e. 27.05.2013 of giving physical possession of flat in accordance of agreement/ contract to till the date of giving the actual physical possession of flat and in the condition of not completed the construction work of flat, the delay charge is to be paid to the date of passing order in favour of complainant and against the opposite party.

D. That give the directions to opposite party to return/pay 50% additionally charged amount on flat with interest by opposite party after adjusting in favour of complainant and against opposite party.

E. That give the directions to opposite party to pay a sum of Rs.5,00,000/-(Rupees Five Lac Only) towards mental and physical suffering in favour of complainant and against opposite party.

F. That give the directions to opposite party to pay a sum of Rs.50,000/-(Rupees Fifty Thousand Only) towards incurred legal expenses in instituting the present complaint.

G. That give the directions to opposite party to pay the monthly rent of Rs.10,000/- (Rupees Ten Thousand Only) for causing delay in giving the physical possession of flat in favour of complainant and against opposite party.

H. That give the directions to the concerned to register and trye the case under section 420 Indian Penal Code against opposite party.

I. That any other relief in favour of complainant, which is Hon’ble Commission deems fit and proper in the interest of justice.

The Respondent/Opposite Party ( M/s. Logix City Developers Pvt. Ltd.) has filed its written version in State Commission, Lucknow, U.P. and resisted the Appellant/Complaint by taking objections as under:-

a) The present Complaint is not maintainable as the Complainant is not a Consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986. The Unit was booked for the commercial purpose and investment purposes.

b) The Opposite Party also credited delay penalty to the Complainant and tried to settle the dispute and requested Complainant to take the possession but Complainant has denied the same on the pretext that Complainant is entitled for interest @18%. The delay penalty to the tune of Rs.1,17,970/- has been duly adjusted in the final demand.

c) Timely payment was not being made by the Complainant. The Opposite Party sends various demand letters to the Complainant regarding timely payment.

d) The entire construction of the tower was complete and the Occupancy Certificate was obtained by Opposite Party thereafter on 08.02.2019 and thereafter, Opposite Party has been requesting the Complainant to assume the possession, but Complainant is denying the same on some or other pretext.

The State Commission has passed the following order :

“To give possession of the flat to the Complainant from 28-05-2013 till the date of giving possession of the flat at the rate of Rs.5/- per sq. ft. per month. Provide compensation at the rate of Rs.2350/- monthly on the area of 470 sq. ft. of the flat of the Complainant and also pay interest on this monthly compensation amount to him at the rate of @18% per annum from the date of liability to the date of payment. Along with this, the Opposite Party will also pay Rs.10,000/-litigation expenses to the complainant.”

“In addition to the above, the Opposite Party is ordered to complete the construction of the flat and obtain a certificate from the competent authority after adjusting the above amount of compensation and interest payable to the Complainant in the remaining amount as per the agreement flat be given to him within two months from the date of this decision and Execute the necessary deed.

“After completing the construction of the flat within the aforesaid period of two months, after obtaining the necessary certificate from the competent authority, after obtaining the balance money in the above manner, if the Opposite Party fails to give possession of the flat to the Complainant. Then as per Clause 6.6 of the Buyers Agreement, the Opposite Party will pay a compensation @ 9% per annum on the deposited amount of Rs.13,60,043/- from the date of expiry of two months till the date of handing over the possession.

Aggrieved by the Order passed by the State Commission, the Appellant/Complainant has filed this present Appeal. In the Memo of Appeal the Appellant stated that the Complainant is regularly striving since last 6 years to get justice before different Courts and for this purpose, he has already spent thousands of rupees, hence these unwarranted expenses should be paid by the Opposite Party to the Appellant.

The Appellant –Complainant has filed the present Appeal before this Commission with the following prayer:

(i) Dismiss the Judgment /Order on dated 05.10.2020, passed by Hon’ble Mr. Justice Akhtar Hussain Khan President Hon’ble State Commission, U.P. in Complaint No. 364 of 2019 failed to deliver justice & got the Decision for all claimed.

(ii) To comply the order passed by Hon’ble Supreme Court to maintain the decorum of order passed by Hon’ble Supreme Court.

(iii) That give the directions to opposite party to hand over the physical possession of flat with no objection certificate and also completion certificates from concerned departments after completing whole construction work in favour of complainant.

(iv) That give the directions to opposite party to pay the annual interest of 18% delay charges from the date i.e. 27.05.2013 of giving physical possession of flat in accordance of agreement/contract to till the date of giving the actual physical possession of flat and in the condition of not completed the construction work of flat, the delay charge is to be paid to the date of passing order in favour of complainant and against the opposite party.

(v) That give the directions to opposite party to return/pay 50% additionally charged amount on flat with interest by opposite party after adjusting in favour of complainant and against opposite party.

(vi) That give the directions to opposite party to pay a sum of Rs.5,00,000/-(Rupees Five Lac

Only) towards mental and physical suffering in favour of complainant and against opposite party.

(vii) That give the directions to opposite party to pay a sum of Rs.50,000/-(Rupees Fifty Thousand Only) towards incurred legal expenses in instituting the present complaint.

(viii) That give the directions to opposite party to pay the monthly rent of Rs.10,000/- (Rupees Ten Thousand Only) for causing delay in giving the physical possession of flat in favour of complainant and against opposite party.

(ix) That give the directions to the concerned to register and trye the case under section 420 Indian Penal Code against opposite party.

(x) That any other relief in favour of complainant, which is Hon’ble Commission deems fit and proper in the interest of justice

We have heard the Appellant/Complainant in person and the Learned Counsel for the Respondent/Opposite Party and have gone through the material available on record.

There is no dispute to the fact that there has been an unreasonable delay on the part of the Respondent/Opposite Party in completing the construction and in handing over the legal possession of the flat to the Appellant/ Complainant as per the Agreement. The Appellant/Complainant booked flat in the project of the Respondent/ Opposite Party, who issued allotment on 17.06.2011 for Unit No. SAT 201, Second Floor, Sector-143, Noida (U.P.), admeasuring area 460 S.ft. The Buyer’s agreement was executed between the parties on 28.11.2011. After execution of flat buyer agreement, a transfer letter was submitted by the original allottee Mr. Anish Singhal and accordingly the transfer was made in name of the Complainant/Appellant on 28.11.2011 wherein the cost of the flat was mentioned as Rs.18,21,763/-. The Appellant/Complainant opted for construction linked payment plan. The Opposite Party has admitted that the letter for offer of possession was given only on 23.02.2019 after obtaining Occupancy Certificate on 08.02.2019 to the Appellant/Complainant.

From the above facts, The Appellant/ Complainant cannot wait for an indefinite time as he has invested heavily his hard earned money with the intention to get legal possession of the Flat. Since, the Agreement is a valid legal document, as per its terms and conditions, possession should have been given in 18 months i.e. by May, 2013 or by November, 2013 if the grace period of 6 months is added. There has been delay of about 6 years by the Respondent/Opposite Party in obtaining the Occupancy Certificate and offer of possession. The Respondent/Opposite Party has not been able to explain the reason for this long delay. There are a number of Case Laws wherein the Hon’ble Supreme Court and this Commission who have decided favourably on the right of the flat buyers for getting delay compensation for the unreasonable delay by the Developers in giving possession in terms of the Agreement.

We would like to rely on the the Order of the Hon’ble Supreme Court in Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna & Anr. in Civil Appeal No. 5785 of 2019 decided on 11.1.2021, wherein it was held as under:

“ (i) We are of the view that allottees at Serial Nos. 1 and 2 in Chart A are obligated to take possession of the apartments, since the construction was completed, and possession offered on 28.06.2019, after the issuance of Occupation Certificate on 31.05.2019. The Developer is however obligated to pay Delay Compensation for the period of delay which has occurred from 27.11.2018 till the date of offer of possession was made to the allottees.

In the instant case, it is our considered view that the Appellant/Complainant is entitled to get legal possession of his Unit alongwith a reasonable compensation for the delay. The State Commission has rightly taken into account the aspect of delay in its Order.

In view of the discussion above, we partly uphold the Order of the State Commission with the modification that if the possession of the flat is not offered within two months, the Opposite Party will pay delay compensation @ 9% per annum from the respective dates of deposits till possession is handed over complete in all respects.