1.       Heard Mr. Aditya Parolia, Advocate, for the complainant and Mr. Sunil Mund, Advocate, for the opposite party. 

2.       Above complaint has been filed for directing the opposite party to pay compensation for delay in possession equal to interest @12% per annum on the deposit of the complainant from November, 2015 till the date of offer of possession, to provide car parking space and to refund the amount charged for car parking space along with service tax with interest @18% per annum from the date of payment, to pay Rs.20/- lacs, as compensation for mental agony and harassment, to pay Rs.1/- lac, as cost of litigation, to refund the charges realized in the heads of EDC/IDC, PLC, green cover etc. along with interest @ 18% per annum and any other relief which is deemed fit and proper in the facts of the case.

3.       The complainant stated that M/s Emaar MGF Land Limited (the opposite party) was a company engaged in the business of development and construction of group housing project. The opposite party launched a project in the name of ‘Palm Gardens’ at Sector-83, Gurgaon, Haryana in the year, 2011 and made publicity of it. On coming to know about this project, the complainant booked a flat and deposited Rs.750000/- on 02.08.2011. The opposite party issued Provisional Allotment Letter dated 11.08.2011, allotting Unit No.PGN-07-12A06, Tower-7, super area 1900 sq.ft., basic price Rs.7634200/- + Rs.300000/- for car parking space. The opposite party executed Buyer’s Agreement in favour of the complainant in August, 2011, in which total consideration was mentioned as Rs.9591000/-. Under Clause-10(a) of the agreement, the possession has to be delivered within 36 months from the start of the construction with grace period of six months. The complainant deposited the installments according to the demand of the opposite party on time and total amount of Rs.9303280/- has been deposited. In the present case, the start of construction was on 09.08.2012 as such, the period of 39 months completed on 09.11.2015.  Inspite of the substantial payment, the opposite party was unable to hand over possession to the complainant. The opposite party issued letter of offer of possession on 19.03.2018 to the complainant but the project was not in habitable condition. The present complaint has been filed on 10.04.2018.

4.       The opposite party filed the written reply in which the material facts have not been disputed. The opposite party took defense that the construction was delayed for the force majeure reasons inasmuch as the contractor to whom the contract for construction was given, has delayed the construction. The opposite party is entitled for extension of period under clause 10(b) of the Agreement. Clause-12 of the agreement provides that in case any delay occurs then the allottee would be entitled for compensation @ Rs.7.50/- per .qs.ft. per month on the super area of the flat.

5.       The complainant filed rejoinder reply on 26.03.2019 and Affidavit of Evidence of Amarjot Singh Brar. The opposite party filed Affidavit of Evidence of Rajendra Prasad on 25.07.2019 and short synopsis. 

6.       Under the order dated 30.10.2018, the complaint took possession on 21.11.2018 paying admitted balance amount without prejudice to his right in respect of the contentions raised in the complaint. The conveyance deed has also been executed on 04.02.2019 in his favour. 

7.       At present, the dispute in respect of delayed compensation and holding charges are alone pressed. The counsel for the complainant relied upon the judgment of this Commission in CC/351/2015 Capital Greens Flat Buyer Association Vs. DLF Universal Limited & Anr. and other connected matters, decided on 03.01.2020, which has been upheld by Supreme Court in DLF Home Developers Ltd. Vs. Capital Greens Flat Buyers Association & Ors. (2021) 5SCC 537 and argued that holding charges are not payable. The counsel for the opposite party relied upon the judgment of this Commission in CC/2253/2019 Pushpa Gogia Vs. Emaar MGF Land Limited decided on 22.08.2022, in which it has been held that the holding charges are payable from the date of offer of possession till the date of taking possession.

8.       We have considered the arguments of the counsel for the parties.  Supreme Court has not recorded its own finding in respect of the holding charges. Therefore, larger Bench decision of this Commission in CC/2253/2019 Pushpa Gogia Vs. Emaar MGF Land Limited (supra) decided on 22.08.2022 is binding upon us. We do not find any reason to waive the holding charges in this case. However, for the same period, the builder is not entitled for maintenance charges with holding charges. It is made clear that in the statement of account both the maintenance charges and holding charges shall not be charged for the same period. 

9.       Supreme Court in Wg. Cdr. Arifur Rahman Khan & Ors. vs DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 769 and DLF Home Developers Ltd. Vs. Capital Greens Flat Buyers Association & Ors. (2021) 5SCC 537, held that compensation for delayed possession is payable in the form of interest @6% per annum on the deposit of the complainant. The counsel for the complainant relied upon the judgment of this Commission in CC/3315/2017 Ravinder Kumar & Anr. Vs. Emaar MGF Land Ltd. decided on 14.02.2022 which has been upheld Supreme Court in Civil Appeal No.2791 of 2022 Emaar India Ltd. Vs. Ravinder Kumar & Anr.,decided on 13.04.2022 and submitted that the compensation for delayed possession is payable in the shape of interest @ 9% per annum on the deposit of the complainants. We respectfully do not agree with the said judgments in view of the judgments of the Supreme Court. 

ORDER

          In view of the above discussion, the complaint is partly allowed.  The opposite party is directed to give a fresh statement of account within a period of six weeks from today giving the compensation to the complainant in the form of interest @6% per annum on his deposit, from December, 2016 till 19.03.2018. The delayed compensation shall be adjusted in the other amounts payable by the complainant. If any amount is payable to the complainant, same shall be given along with statement of account.