Vishal Sharma & Anr vs RPS Ltd. & Anr

V.K. Jain, J

The complainants/appellants booked a residential unit with the OP in a project, namely, 'RPS Savana Colony', which the OP was to develop in Sector 88 of Faridabad. The said unit was allotted to the complainant for a consideration of Rs.2276300/-. The appellants made payment of Rs.2138223/- to respondent. Vide letter dated 1.1.2015, the respondent offered possession to the complainants subject to payment of Rs.794941/- towards balance sale consideration, interest on delayed payment and enhanced EDC along with interest on enhanced EDC. The case of the complainants/appellants is that they tendered a demand draft of Rs.474607/- to the respondent but since the said demand draft was refused by the respondent, they got it cancelled. The possession of the flat having not been offered, the complainants approached the concerned State Commission by way of a consumer complaint.

The complaint was resisted by the respondents which interalia stated in its written version that the complainants had failed to make payment of Rs.794941/- due from them and therefore, possession could not have been given to them.

The State Commission vide its order dated 23.4.2018, directed the respondent to refund the entire principal amount paid to the complainants to the respondent without any interest though the prayer made in the complaint was for possession of the flat allotted to the complainants and execution of the sale deed in their favour. Being aggrieved from the order passed by the State Commission, the parties are before this Commission.

A perusal of the Buyers Agreement executed between the parties on 22.8.2006 would show that in terms of Clause 13 of the said agreement, the possession was to be delivered within 36 months of its execution. The possession of the flat therefore ought to have been offered to the complainant by 22.8.2009. Admittedly, that was not done. The initial allotment was made in favour one of the complainants, namely, Mr. Vishal Sharma. Later on, the name of his wife Mrs. Preeti Sharma was added as co-allottee and a second agreement between Vishal Sharma and his wife Preeti Sharma on one hand and the respondent on the other hand was executed on 9.1.2014. A perusal of the undertaking obtained from Vishal Sharma and Preeti Sharma at the time of including the name of Preeti Sharma as a co-alllottee, would show that the parties agreed to remain bound by the original terms and conditions of allotment. Therefore, it cannot be said that there was innovation of the contract whereunder the possession of the flat could be delivered to the complainants within three years from the execution of the second agreement. In my opinion, despite execution of the second agreement, the last date for delivery of possession of the flat continued to be 22.8.2009. As noted earlier, the possession of the flat was offered to the complainants only vide letter dated 1.1.2015. Therefore, there was substantial delay of more than 5 years in offering possession of the flat.

The learned counsel for the respondent submits that there was delay in completion of the construction on account of litigation by the Residents' Welfare Association and Developer Association of Faridabad. However, admittedly no order was passed by any Court staying the construction of the project in which the allotment was made to the complainants. Therefore, irrespective of the aforesaid litigation, the respondents ought to have continued with construction and ought to have offered possession to the complainants by 22.8.2009. I, therefore, find no justification for the delay in offering possession of the allotted flat to the complainants.

Coming to the demand raised vide letter dated 1.1.2015 since the complainants offered part payment which according to them was payable to the respondents as is evident from the demand draft which they had got issued from HDFC Bank and which they later got cancelled and since the respondent did not accept the aforesaid demand draft, the question which arises for consideration is as to whether rest of the amount demanded by the respondents was justified or nor. The amount being questioned by the complainants comprises interest on delayed payment, additional EDC and interest on additional EDC. As far as the interest on delayed payment is concerned that was payable as per the terms and conditions of the agreement and therefore, ought to have been paid by the complainants on receipt of the demand letter dated 1.1.2015. As far as enhanced additional EDC is concerned, it is stated in the letter sent by the respondent to the complainants on 3.8.2011 that Directorate of Town and Country Planning (DTCP), Haryana had demanded additional enhanced/revised EDC which according to the respondents had resulted in increase of EDC by Rs.131/- per sq.ft. of the super built up area of the unit. On receipt this letter from the respondents, the complainants did not dispute the alleged enhancement/revision of EDC by DTCP, Haryana.

Therefore, it would be difficult to say that the said EDC was not actually enhanced/revised by the said Directorate. If the respondent had paid the additional EDC to DTCP, Haryana, it was entitled to recover the same from the complainants in terms of Clause 3 of the Buyers Agreement. However, no proof of payment of enhanced/revised EDC to DTCP, Haryana was filed by the respondents before the State Commission. It is also an admitted position that the demand of enhanced/revised EDC was challenged before the Punjab and Haryana High Court which had stayed the said demand and the stay still continues to be in force. However, if the enhanced/revised EDC has been paid either in full or in part to DTCP, Haryana, the respondent is entitled to recover the same from the complainants on proportionate basis, along with interest from the date on which payment was made by the respondent to DTCP, Haryana. If any interest on the revised/enhanced EDC was paid by respondent to DTCP, Haryana, it shall be entitled to recover interest on the proportionate amount of the revised /enhanced EDC from the complainants at that very rate. If no interest was paid to DTCP, Haryana, the respondent shall be entitled to interest on the said amount at the rate of 10% per annum from the date the payment was made to DTCP, Haryana till the date payment is received/adjusted from the complainants.

As far as delay in offering possession of the flat is concerned, considering all the facts and circumstances of the case, the respondents, in my opinion, should pay compensation in the form of simple interest @ 8% p.a. to the complainants on the entire amount which they had paid to the respondent, w.e.f. 22.8.2009 till 15.1.2015 when the possession was offered.

For the reasons stated hereinabove, the appeal is disposed of with the following directions:-

The respondent shall deliver possession of the allotted flat, complete in all respects to the complainants within three months from today.

The respondent shall be entitled to proportionate payment of revised/additional EDC, to the extent payment if any was made by it to DTCP, Haryana along with interest if any at the same rate at which it was paid by the respondent to DTCP, Haryana or in case no such interest was paid then @ of 10% p.a. w.e.f. 3.8.2011 when the said amount was demanded.

The respondents, shall pay compensation in the form of simple interest @ 8% p.a. to the complainants on the entire amount which they had paid to the respondent till 22.08.2009, w.e.f. 22.8.2009till 15.1.2015 when the possession was offered.

The balance principal amount payable by the complainants to the respondent, the interest on the overdue payment in terms of the demand letter dated 1.1.2015, revised/enhanced EDC, if any, and interest on revised/enhanced EDC, if any shall be adjusted by the respondent out of the compensation payable to the complainant in terms of this order. If after making the said adjustment, any amount remains payable to the complainants by the respondent, it shall be paid within six weeks from today. If any, amount remains payable to the complainants and not to the respondent in terms of this order, that shall be paid at the time of offering possession in terms of this order.