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Judgment
Ram Surat Ram Maurya, Presiding Member
Heard Mr. Chandrachur Bhattacharyya, Advocate, for the complainants, Mr. Chaitanya, Advocate, for opposite party No.1 and Mr.Animesh Tripathi, Advocate, for opposite party No.2.
Sh. Vivek Garg and Smt. Sarita Garg have filed the above complaint for directing the opposite parties to (i) handover possession of the flat No.OAK 802 allotted to them within stipulated period and if possession is not handed over within time fixed, then to pay penalty thereafter; (ii) pay delay compensation in the form of interest @21% per annum on their deposit from January, 2014 till November, 2017; (iii) not to realize Rs.345000/-, for increase of ‘super area’ from 2450 sq.ft. to 2550 sq.ft. (iv) provide stilt car parking space; (v) pay Rs.1000000/- as compensation for mental agony and harassment; (vi) pay Rs.250000/- as the litigation costs; and (vi) any other relief which is deemed fit and proper in the facts and circumstances of the case.
The complainants stated that M/s. Shripra Estate Limited & Jai Krishna Estate Developers Pvt. Ltd. (a partnership firm) (the developer) and Ghaziabad Development Authority (a statutory authority) as a Joint Venture launched a group housing project in the name of “Shipra Krishna Srishti” at Plot No.15, Ahinsa Khand, Indirapuram, Ghaziabad, in the year, 2011 and made wide publicity of its amenities and facilities. Believing upon the representations of the developer, the complainants booked a flat on 10.12.2011 and deposited booking amount of Rs.410000/-. The developer allotted Unit No.OAK-802, super built-up area 2450 sq.ft. + two covered car parking space, price Rs.9060900/- and executed Flat Buyer Agreement dated 17.12.2011. Payment plan was “construction link payment plan”. As per demand, the complainants paid the instalments time to time and till October, 2014 paid total Rs.8596477/-. Clause-VII of the agreement provides that the construction of the building likely to be completed by 30.06.2013 with grace period of six months. The developer did not make any communication after October, 2014. The developer, through email dated 24.11.2016, informed they were in process of obtaining NOC from different departments and “completion certificate” and offered for permissive possession. The developer again gave similar email dated 21.03.2017 and informed that ‘super built-up area’ has been increased from 2450 sq.ft to 2550 sq.ft. and demanded Rs.345000/- for increased area. The complainants gave a legal notice dated 21.08.2017, for possession and delay compensation. The developer gave a reply to the notice on 21.09.2017, in which, the date for possession has not been mentioned. The complainants then visited the site and found that stilt car parking has been converted into flats. The complainants filed CC/3147/2017 for two flats i.e. OAK-702 and OAK-802. This Commission directed to file separate complaints then CC/3147/2017 was got dismissed as withdrawn on 15.11.2017 with liberty to file separate complaints and this complaint was filed on 16.01.2018.
The developer has filed its written reply on 10.05.2018, in which, booking of the flat on 10.12.2011, allotment of the flat, execution of Flat Buyer Agreement on 17.12.2011 and the deposits made by the complainants, have not been disputed. The developer denied that the complainants had made timely payment of instalment. The developer stated that on allotment, an amount of Rs.3795652/- + Rs.162141/- as PLC was payable till 24.01.2012. The developer issued demand letters dated 29.12.2011 and 24.01.2012. Next instalment “on stilt floor slab” was payable till 12.03.2012. The developer issued demand dated 21.02.2012, Reminder dated 23.02.2012, Final notice dated 02.05.2012. The complainants deposited these instalments with delay of about five months. The complainants used to deposit other demands dated 07.08.2012, 28.08.2012, 28.09.2012, 19.10.2012, 09.11.2012, 05.01.2013, 07.10.2013, 28.10.2013 and 17.09.2014 with delay of about one month. The developer completed the construction and applied for issue of “part completion certificate”. “Part completion certificate” for building nos.3 and 4 was issued on 20.03.2017. The developer, vide letter dated 31.05.2016, informed the complainants to clear the dues and complete documentation for possession but the complainants did not turn up and made issue of increased ‘super built-up area’. The developer gave emails dated 14.07.2016 and 22.12.2016, in this respect. The developer filed ‘Deed of Declaration’ containing loading factor on 08.10.2015, which was uploaded on website. The developer was entitled to load common area to the extent of 36.39%, however the developer loaded common area to the extent of 25%. The complainants have to pay balance amount of Rs.1522813/-. The construction was raised as per approved layout plan. Car Parking space is in basement. The construction was delayed as many allottees (including the complainants) delayed payment of instalment and about Rs.32/- crores had become. Due to which paucity of the fund was created. Delay in construction has created increase of the cost, which was borne by it. After completion of the construction, statutory authority delayed issuance of “completion certificate. Interest of the complainants is secured by providing delay compensation. The complaint has no merit and liable to be dismissed.
Ghaziabad Development Authority (opposite party No.2) filed its written reply on 26.09.2018 and stated opposite party No.1 was developing the project under Joint Venture Agreement. Opposite party-2 is only liable to sign final conveyance deed in favour of buyers.
The complainants filed Rejoinder Replies and Affidavit of Evidence of Vivek Garg and documentary evidence. Opposite party-1 filed Affidavit of Evidence of Amit Walia and documentary evidence. Opposite party-2 filed Affidavit of Evidence of C.P. Tripathi. Opposite party-1 filed “completion certificate issued on 27.10.2018 and Letter of offer of possession issued on 02.11.2018 with IA/8221/2021 and Additional Affidavit on 29.03.2023. All the parties have filed written synopsis.
We have considered the arguments of the parties and examined the record. So far as issue increase in area is concerned, the developer filed an Additional Affidavit on 29.03.2023, annexing sanctioned layout plan of the building and Deed of Declaration dated 08.10.2015. The developer stated that total covered area of Flat No.OAK-802 was 189.50 sq.mt. equal to 2039.761 sq.ft. and undivided share in common area is its 25% i.e. total super area was 2549.70 sq.ft. The developer was entitled to load common area to the extent of 36.39%, however the developer loaded common area to the extent of 25%. Deed of Declaration was given in this respect. Statutory authority has not raised any objection against Deed of Declaration. As such, there is no reason to disbelieve the statement of the developer. As super area has been increased, the developer is entitled for realizing costs of increased area.
Clause-VII of the agreement provides that the construction of the building is likely to be completed by 30.06.2013 with grace period of six months. Possession was offered on 02.11.2018. As such there was delay in offer of possession. The developer has taken defence of force majeure. 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.
Payment plan was “construction link payment plan”. The developer has stated that the complainants and other allottees delayed payment of instalment, which created paucity of fund. As such construction was delayed, which increased the cost of construction. Payment receipt shows that the complainants paid instalment till end of the year, 2014. As such, the developer is liable to pay delay compensation from January, 2015 till October, 2018. Supreme Court in Wg.Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512 and DLF Home Developers Pvt. Ltd. Vs. Capital Greens Flat Buyers Association, (2021) 5 SCC 537, held that 6% interest on the deposit of home buyers for the delayed period is appropriate delayed compensation.
ORDER
In view of the above discussions, the complaint is partly allowed. Opposite party No.1 is directed to issue a fresh statement of account duly crediting delay compensation in the form of interest @6% per annum on the deposit of the complainants from January, 2015 till October, 2018, in the account of the complainants. Opposite party No.1 is entitled to charge interest @9% per annum on its dues from November, 2018 till the date of payment. If any amount is payable by opposite party No.1, it will be paid along with statement of account. If any amount is payable by the complainants, they will be allowed one month time to deposit it. On settlement of the account opposite party No.1 shall deliver possession of the flat allotted to the complainants, complete in all respect as per specification and execute conveyance deed in their favour, without any further delay.