The Opposite Party has filed its written version wherein all the allegations have been denied and the following objections have been raised:
a.The complainants are not consumers as the property was purchased for commercial purposes, the transaction between the parties is not relating to ‘goods’, there is no defect or deficiency in services, the present complaint involves civil rights of parties which can only be adjudicated before a civil court and the complaint is time barred. The opposite Party further submitted that the act of delay in offering possession has been condoned by the Complainant, and this Commission lacks jurisdiction to hear the present complaint. b.The Complainants defaulted in making payments in terms of the Agreement, despite which the Opposite Party has completed construction and obtained the Occupation Certificate and the possession has been offered vide letter dated 26.12.2019. At the time of offer of possession payment payable form Complainant was Rs.3,42,340/- after adjusting delayed compensation of Rs.7,61,905/-. The Complainant failed to pay the said dues. c.The parties entered into the Buyer’s Agreement which was in the nature of civil contract and the parties were bound by the terms and conditions of the said Buyer’s Agreement. No relief other than what has been provided in the Agreement can be granted to the Complainant. The Complainant has agreed to delay penalty @Rs.7.5/- per sq. ft. per month.d. The Opposite Party was to provide possession to the Complainant on 24.02.2014 as the date of commencement of construction was 25.02.2011, however, the present complaint has been preferred by the Complainant on 27.02.2020 i.e. more than 6 years after the alleged date of possession, thus the act of Opposite Party has been condoned by the Complainant. e. As per clause 11(a), Opposite Party has only PROPOSED to handover possession of the unit in question within 33 months plus 3 months grace period. f. The Complainant has not filed any evidence of actual damage suffered by them.g. The delay has been caused due to work slowing down due to issues with contractor. It was due to contractor’s lackadaisical performance that the construction of the project was slowed down and got delayed. Hence, due to the reasons beyond the control of the Opposite Party, the progress in construction of project was affected.h. As per the revised National Building Code, 2016, all the high rise buildings were to have two stair cases, hence, subsequently the Opposite Party had to construct the second stair case. Thereafter the Opposite Party obtained Occupation Certificate and offered possession. The construction was complete in all respects to handover the physical possession in the year 2017 end itself but due to change in government policy, the Opposite Party could not offer Possession.
7. Hence, the Opposite Party has prayed that the present complaint may be dismissed with costs.
8. Rejoinder has been filed behalf of the Complainants. Complainants have at the outset have denied all the contents of Reply. Complainants have averred that the price of the unit escalated from Rs.55,68,643/- to Rs.59,41,955 due to delay caused by Opposite Party and the Opposite Party has failed to draw nexus between force majeure factors and their role in delaying the possession.
9. Three interim Applications are also pending along with the present complaint. The complainant filed IA no. 2833/2020 seeking exemption from filing originals/certified copies of the Annexures and IA no.7960/2021 seeking permission of this Hon’ble Commission to file Rejoinder to the Reply of Opposite Party and Evidence by way of Affidavit on behalf of the Complainants. And IA no. 8143/2022 has been filed by the Opposite Party seeking condonation of delay of 43 days in filing the affidavit of admission/denial and Evidence by way of Affidavit.
10. Affidavit in Evidence has been filed by Mrs. Itty Gupta on behalf of the complainants. Affidavit in Evidence has been filed by Mr. Arvind Kumar Gaur on behalf of the Opposite Party.
11. Written synopsis has been filed by the Complainant.
12. Heard the Ld. Counsel for the parties. Perused the material available on record.
13. It is to be noted first of all that the possession of the dwelling unit was offered to the Complainants on 26.12.2019. So it can be said that the Complainant’s first prayer seeking handing over of possession of the Unit by the Opposite Party to is much or less redundant although admittedly there are certain riders attached to the exercise. Claim of the Complainants in this regard is that undue payments are being charged before delivering of possession to them. On perusal of the material on record especially Clause 1.3 (c ) (material) of the Buyers Agreement dated 17.10.2010 between the parties, it is seen that the Agreement on the question of parking space being provided alongwith the dwelling unit was as under-
“1.3 (c ) The Allottee(s) agrees and understands that the reserved car parking spaces or any un-allotted car parking spaces in the Project shall form part of Common Areas and facilities of the said Unit for the purpose of the declaration to be filed by the Company under Haryana Apartment Ownership Act, 1983 (“Act”) as amended from time to time. The Allottee (s) agrees and confirms that the reserved car parking space allotted to him/her/them/it shall automatically be cancelled in the event of cancellation, termination, surrender, relinquishment, resumption, re-possession etc. of the said Unit under any of the provisions of this Agreement or otherwise.”
14. It is clear from the aforesaid Clause pertaining to the parking space, that any un-allotted car parking spaces in the Project were to form a part of the Common areas and facilities for the Unit in question. There was no stipulation regarding any consideration price for such un-allotted parking space which was to be treated as a part of the common Areas. It is nobody’s case that any reserved car parking space was either sought by the Complainants, or was granted to them by the Opposite Party. Consequently, inclusion of the amount of Rs. 2.00 Lakhs of the Car Parking Facility charges by the Opposite Party at a later stage is in contradiction to the Agreement between the Parties and is therefore not justified.
15. Similarly, the demand for holding charges made on behalf of the Opposite Party in the event of the Complainant’s failure to take possession of the flats/ dwelling Unit within the time given to them after the offer of possession is also untenable since for the same time, the Opposite Party is also demanding two years of maintenance charges in advance before delivering possession. If the said maintenance charges are to be applicable from the date of delivery of possession, then imposition of holding charges would not be justified. However, if the same are to commence from the date of taking over actual possession by the Complainants, then the Complainants would be liable to pay such holding charges in the intervening period between the date of offer and actual possession, but no maintenance charges for the same period would be justified.
16. Regarding the liability of the Opposite Party to pay compensation for the delay in offering possession, its contention is that an amount of Rs. 7,61,905/- has already been credited towards the Complainants in terms of Clause 13 (a) of the Buyers Agreement. The said Clause provides for payment of compensation to the buyers at a rate of Rs. 7.50/- only per sq.ft. per month. Considering Clause 1.2(b) of the Agreement regarding liability of the purchasers/ allottees, it is seen that the interest for such delayed payment to the Opposite party was actually exorbitant @ 24% p.a. Such inequitable liability of both sides on the question of delay in either payment by the Complainants or in delivery of possession by the Opposite Party is ex facie unjust, inequitable and unfair in view of the decisions of the Apex Court in “Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna & Ors., Civil Appeal No. 5785 of 2019, decided on 11.1.2021” and “Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, Civil Appeal No. 12238 of 2018” With “Pioneer Urban Land & Infrastructure Ltd. Vs. Geetu Gidwani Verma & Anr., Civil Appeal No. 1677 of 2019, decided on 2.4.2019”; The relevant portion of the both the judgments are re-produced as below-
“Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna & Ors.
“19.7 We are of the view that the incorporation of such one-sided and unreasonable clauses in the Apartment Buyer‘s Agreement constitutes an unfair trade practice under Section 2(1)(r) of the Consumer Protection Act. Even under the 1986 Act, the powers of the consumer fora were in no manner constrained to declare a contractual term as unfair or one-sided as an incident of the power to discontinue unfair or restrictive trade practices. An ―unfair contract‖ has been defined under the 2019 Act, and powers have been conferred on the State Consumer Fora and the National Commission to declare contractual terms which are unfair, as null and void. This is a statutory recognition of a power which was implicit under the 1986 Act.
In view of the above, we hold that the Developer cannot compel the apartment buyers to be bound by the one-sided contractual terms contained in the Apartment Buyer‘s Agreement.”
“Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan
“6.7. A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the Agreement dated 08.05.2012 are ex-facie one-sided, unfair, and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder.”
17. So the explanation that the Complainants have been duly compensated for the delivery in possession of the dwelling Unit by way of crediting the amount covered under Clause 13 (a) of the Agreement is not found to be tenable. On the other hand, the decisions of a coordinate Bench of this Commission in C.C. No. 1037 of 2018- Rajeev Kumar Vohra Vs. Emaar MGF Land Limited and C.C. No. 458 of 2019- Rajiv Kumar & Anr. Vs. Emaar MGF Land Limited, which were against the same Opposite Party as in the present case for the purpose of assessing the compensation for delay in delivery of possession are found to be applicable to the facts and circumstances of the present case. In both those cases, the present Opposite Party in similar situation had been directed to pay delay compensation to the Complainants @ 6% p.a. on their deposits made with the Opposite Party till the date on which possession of the concerned dwelling Units was offered to them. Such date in the present case happens to be 26.12.2019.
18. Consequently, the Complainants are found entitled to delayed compensation @ 6% p.a. on the payments made by them to the Opposite Party, from the date of each individual payment till 26.12.2019. As already noted earlier, the payment of Rs. 2.00 lakhs as car parking space is also not correct. Similarly, the payment of holding charges and advance maintenance charges for two years, simultaneously from the date of offer of possession is also not justified. The Opposite Party is entitled to demand either of these two charges from the Complainants at the time of delivering of possession.
19. With the above directions, the Complainant’s case is allowed and the Opposite Party is directed to deliver possession of the dwelling Unit within two months from the date of this Order, subject to adjustment of any outstanding dues payable or paid in excess by the Complainants in conformity with the decision of this Commission in this matter, against the delay compensation to which they have been found entitled against the Opposite Party.
20. Pending applications, if any, shall also stand disposed off.
