Chandigarh

StateCommission

CC/75/2019

Mrs. Madhu Mehta - Complainant(s)

Versus

Emaar MGF Land Limited - Opp.Party(s)

Mrs. Ritam Aggarwal & Ms. Neel Kamal

27 Aug 2021

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	75 of 2019
Date of Institution	:	04.04.2019
Date of Decision	:	27.08.2021

 

1. Satish Kumar Mehta, resident of H.No.120, Sector 16-A, Chandigarh (instead of Madhu Mehta, since dead).
2. Raghav Mehta (elder son) DOB: 13 Apr 1974, aged 46 Years, resident of 942E, Kensington Lane, Streetsboro, OHIO, OH-44241, USA through his Father i.e. Satish Kumar Mehta, resident of H.No.120 Sector 16-A, Chandigarh.
3. Arjun Mehta aged 42 years s/o Satish Kumar Mehta resident of H.No.120 Sector 16-A, Chandigarh through his father Satish Kumar Mehta, resident of H.No.120, Sector 16-A, Chandigarh.

…… Complainants

V e r s u s

1. Emaar MGF Land Limited, ECE House, 28 Kasturba Gandhi Marg, New Delhi-110001.
2. Sales Office; Emaar MGF Land Limited, MG Road, Sikandarpur Chowk, Sector 28, Gurgaon.
3. Emaar MGF Land Limited, SCO 186/187, IInd Floor, Sector 8-C, Chandigarh.

…..Opposite Parties

BEFORE:              JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                             MRS.PADMA PANDEY, MEMBER.

                             MR. RAJESH K. ARYA, MEMBER.

 

Present through Video Conferencing:-

                         Ms.Ritam Aggarwal, Advocate for the complainants.

                         Sh.Simranjit Singh Sidhu, Advocate proxy for Sh.Anil Mehta, Advocate for the opposite parties.

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                  

                   Initially, on 04.04.2019, this consumer complaint had been filed by Mrs.Madhu Mehta and Arjun Mehta, mother and son respectively, as they had purchased the unit in question, in their joint names. However, during the pendency of this complaint, Mrs.Madhu Mehta died on 12.02.2020, as a result whereof, application bearing no.572 of 2020 was filed by complainant no.2-Arjun Mehta, for impleading Satish Kumar Mehta and Raghav Mehta, husband and elder son, respectively, of deceased Mrs.Madhu Mehta. The said application was allowed by this Commission vide order dated 23.02.2021 and they were ordered to be impleaded as complainants no.1 and 2 alongwith Mr.Arjun Mehta, as complainant no.3 (hereinafter referred to as the complainants). Amended memorandum of parties in that regard was also taken on record.

2.           In this complaint, the complainants are seeking directions to the opposite parties to hand over actual physical possession of the apartment bearing no.EEA-C-F09-04, 9^th Floor, Block No.C, measuring 1395 square feet, (in short the unit) in a project launched by them under the name and style ‘Emerald Estate’, Village Maidawas, Tehsil and District Gurgaon, Sector 65, Urban Estate, Haryana, total sale price whereof was fixed at Rs.54,43,255/- and also compensation for the period of delay in delivery of possession thereof alongwith litigation expenses. It is their case that against the total sale consideration of Rs.54,43,255/-, the opposite parties vide their statement of accounts dated 31.05.2019, Annexure-1 have themselves admitted that they have received an amount of Rs.54,36,212/- i.e. more than 99% of the total sale consideration. It has been pleaded that on the other hand, the opposite parties failed to deliver possession of the unit in question by 25.02.2014 i.e. within a total period of 42 months (36 months plus 6 months grace period) from the date of start of construction (26.08.2010), as envisaged under Clause 11 (a) of the Agreement dated 09.02.2010 (Annexure C-3) for dearth of construction and development activities at the project site. It has been stated that incomplete possession of the unit in question was, for the first time, offered by the opposite parties, vide letter dated 23.04.2018, Annexure-3. It was pleaded that instead of completing the construction and development works, the opposite parties started making demands of illegal amount from the complainants. Hence this complaint.
3.           Their claim has been contested by the opposite parties on numerous grounds, inter alia, that this Commission did not vest with pecuniary and territorial jurisdiction; that the complainants being speculators did not fall within the definition of consumer, as they are owning two more residential properties in Chandigarh; that since it was provided in the agreement that  for any delay in offering possession of the unit in question, interests of the complainants were safeguarded by way of payment of delayed compensation for the period of delay, as such, time was not the essence of contract; that amount towards delayed compensation has already been credited in the account of complainants, maintained by the company, which fact is evident from the entry made in that regard in the statement of account dated 31.05.2019, Annexure-1; that the complainants delayed in making payment towards price of the unit in question; and that this complaint filed is barred by limitation.
4.           On merits, purchase of the unit in question by the complainants, in the manner narrated in the complaint; amount received towards the unit in question, as mentioned in the complaint; and that there was delay in offering possession of the said unit has not been disputed by the opposite parties. However, it has been stated that possession of the unit in question was offered to the complainants vide letter dated 23.04.2018, Annexure-3 followed by reminders dated 09.10.2018 and 11.12.2018 but they failed to take over the same and on the other hand, filed this consumer complaint. Prayer has been made to dismiss the complaint with costs.
5.           In the rejoinder filed, the complainants reiterated all the averments contained in the complaint and controverted those contained in written statement filed by the opposite parties.
6.           This Commission afforded adequate opportunities to the parties to adduce evidence in support of their respective contentions, by way of filing affidavit. In pursuance thereof, the parties have adduced evidence by way of affidavits and also produced numerous documents including written arguments by the parties, wherein they have reiterated their contentions.
7.           We have heard the contesting parties and have gone through the entire record of the case, including the written arguments filed by the parties, very carefully.
8.           First, we will deal with the objection taken by the opposite parties to the effect that the complainants did not fall within the definition of ‘consumer’. It may be stated here that the objection raised is not supported by any documentary evidence and, as such, the onus shifts to the opposite parties to establish that the complainants have purchased the unit in question to indulge in ‘purchase and sale of units’ as was held by the Hon’ble National Commission in Kavit Ahuja Vs. Shipra Estates I (2016) CPJ 31 but since they failed to discharge their onus, hence we hold that the complainants are consumers as defined under the Act. The mere fact that the complainants are allegedly having two residential properties in their name at Chandigarh also, is not a ground to shove them out of the definition of ‘consumer’. In our considered opinion, a  person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots.  In Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, under similar circumstances, the Hon’ble National Commission negated the plea taken by the builder, while holding as under:-

“….In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots.  A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city.  A person may buy two or three houses if the requirement of his family cannot be met in one house. 

Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose…..”

 

In this view of the matter, objection taken by the opposite parties stands rejected. 

9.           Now we will deal with the objection taken by the opposite parties with regard to pecuniary jurisdiction. It may be stated here that this complaint has been filed under the Consumer Protection Act, 1986, under which, for determining pecuniary jurisdiction, this Commission is required to take into consideration the value of the goods and compensation claimed if any, by the complainants. It is significant to mention here that on 13.05.2019, Counsel for the complainants stated that in Clause (iv) of the prayer clause, the complainants restrict claim interest on the amount paid @10% p.a. and further in Clauses (v) & (vi), they limit for the claim to Rs.2.50 lakhs instead of Rs.5 lakhs and Rs.2 lakhs instead of Rs.6 lakhs respectively. The said reduction in rate of interest and also compensation claimed in consumer complaint was done by the complainants in order to bring it within the pecuniary jurisdiction of this Commission, which was allowed by this Commission and it was only thereafter that this complaint was registered; admitted; and notice was ordered to be issued to the opposite parties.  Under these circumstances, if the value of the unit purchased by the complainants and compensation claimed by decreasing the interest rate and also other reliefs, are clubbed together, the same exceeds Rs.20 lacs and fell below Rs.1 crore. In this view of the matter, this Commission has pecuniary Jurisdiction to entertain and decide this complaint. As such, objection taken by the opposite parties in this regard stands rejected.
10.           Now coming to the objection raised with regard to territorial jurisdiction of this Commission, it may be stated here that it has been vehemently contended by Counsel for the complainants that the project in question was advertised by opposite party no.3 located at Chandigarh; and that even the brochure in respect of the project in question had also been circulated to the complainants by Chandigarh office of the opposite parties. A specific plea in this regard has also been taken by the complainants in paragraph no.2 of their complaint, which has not been denied by the opposite parties in their written statement. Not only as above, during the course of part arguments heard on the issue of territorial jurisdiction by this Commission on 15.03.2021, Sh.Anil Mehta, Advocate for the opposite parties, obtained instructions from the opposite parties and submitted that they are ready to deliver possession of the unit in question. In this view of the matter, objection taken in the written statement with regard to territorial jurisdiction, which was filed prior to taking instructions aforesaid from the company by Sh.Anil Mehta, Advocate, otherwise also stands rejected, having been rendered infructuous.
11.           There is no dispute between the parties with regard to the fact that initially, this consumer complaint had been filed by Mrs.Madhu Mehta and Arjun Mehta, mother and son, respectively, as they were joint owners of the unit in question, and thereafter, on death of Mrs.Madhu Mehta on 12.02.2020 (during pendency of this complaint), complainants no.1 and 2 being her legal heirs were also impleaded alongwith Mr.Arjun Mehta, complainant no.3. It is also not in dispute that despite the fact that substantial amount of Rs.54,43,255/- stood received by the opposite parties, yet, possession of the unit in question was not offered and delivered to them, by the committed date i.e. 25.02.2014 (36 months plus 6 months grace period from the date of start of construction being 26.08.2010), for dearth of construction and development works at the project site.
12.           Perusal of record reveals that possession of the unit in question, was for the first time, offered by the opposite parties, vide letter dated 23.04.2018, Annexure-3. However, the said letter has been challenged by the complainants stating the same to be a paper possession on the ground that construction and development activities were not completed at the project site. On the other hand, Counsel for the opposite parties contended with vehemence that possession of the unit in question offered was complete in all respects but the complainants failed to take over the same.
13.           Under above circumstances, the main question which arises before this Commission is, as to whether, the possession so offered by the opposite parties vide letter dated 23.04.2018 was genuine or not. For coming to any conclusion on this issue, this Commission is to find out:-
    1. Whether construction and development activities were completed at the project site before 23.04.2018 or not?
    2. Whether occupation certificate in respect of the unit in question and completion certificate in respect of the project in question, had been obtained by the opposite parties before offering possession of the unit in question to the complainants on 23.04.2018 or not?

 

14.            Coming to the first question, as to whether, construction and development activities were completed at the project site before 23.04.2018, i.e. the date when possession of the unit in question had been offered to the complainants, it may be stated here that it is settled law that onus to prove the stage and status of construction and development work at the project site and that all the permissions/approvals have been obtained in respect thereof, is on the builder/developer. It was so said by the Hon’ble National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. It is very strange that in the present case, not even an iota of evidence has been placed on record by the opposite parties to prove that construction/ development works and basic amenities were completed at the project site, by 23.04.2018 i.e. the date when possession of the unit in question was offered to the complainants. In case, the development and construction activities were undertaken and completed at the project site by 23.04.2018 or even thereafter, then it was for the opposite parties, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development/construction activities are completed at the site or not but they failed to do so. Thus, in the absence of any documentary evidence to prove that construction and development activities were completed at the project site, mere bald assertions taken by the opposite parties in their joint written statement did not merit acceptance. It is therefore held that construction and development activities were not completed at the project site by 23.04.2018.

                   Not only as above, there is another valid reason with this Commission to believe that the opposite parties were not in a position to deliver possession of the unit in question, so offered vide letter dated 23.04.2018  and the said reason  is the candid admission made by them in their letter dated 24.05.2019, Annexure C-8, whereby  it has been conveyed to the complainants that the company is not able to deliver physical possession of the unit in question which was offered on 23.04.2018 because of interse dispute between them and the contractor hired by them. Relevant part of the said letter is reproduced hereunder:-

“To

 

Madhu Mehta

House No 120,

Sector-16-A Chandigarh,

160015, Chandigarh,

 

Subject: Possession of Unit No. EEA-C-F09-04 allotted to you in "Emerald Estate Apartments" project

 

Dear Sir/Madam,

 

Kindly refer to the captioned unit allotted to you. The Company through "Intimation of Possession" demand, requested you to take possession after completion of formalities and clearing of all outstanding dues as per the schedule of payments in the Buyer's Agreement.

 

During the intervening period, we could not proceed further in the process of handing over of possession due to disputes with our Contractor namely B.L. Kashyap & Sons (BLK) who had been engaged for carrying out construction work in the overall project.

 

Relating to our disputes with BLK, the Hon'ble High Court of Delhi at New Delhi appointed RITES as Local Commissioner to carry out measurement, inventory in the Project. An Arbitral Tribunal has been constituted to decide the dispute between the Company and BLK. The process of handing over of Units was struck due to pendency of commission work by the Local Commissioner in terms of Hon'ble High Court's Order. After completion of commission work and submission of Report by the said Local Commissioner, the Hon'ble Arbitral Tribunal vide Order dated 27.04.2019 was pleased to allow the Company to handover the Units in respect of which Occupancy Certificate has been received. Even then, the handing over process was stuck as the said Contractor was illegally retaining the keys of the locks in the units in the Project. In this regard, the Hon'ble Arbitral Tribunal passed order dated 13.05.2019 directing the Contractor to handover the keys to the company.

 

You would consider and appreciate that the process of handing over of the Unit could not progress during the intervening period from the intimation of possession till this date because of the reasons beyond the control of the company……..”

 

The afore-extracted contents of letter Annexure C-8 leave no doubt to say that  the opposite parties were not in a position to deliver actual physical possession of the unit in question because of the dispute which arose between the company and its Contractor namely B.L. Kashyap & Sons (BLK) who had been engaged for carrying out construction work at the project in  question. In this letter, it has been candidly stated by the opposite parties that the process of handing over possession of units was struck due to pendency of commission work by the Local Commissioner in terms of Hon'ble High Court's Order and thereafter also the said contractor withhold the keys of the units located in the said project. Thus, in the face of contents of letter Annexure C-8 having been written by the opposite parties to the complainants, letter dated 23.04.2018 whereby possession of the unit in question was offered, has no significant value in the eyes of law.

15.           Coming to the second question, regarding occupation and completion certificates, it may be stated here that in the instance case, the opposite parties, themselves, vide clause 11 (a) of the agreement had committed that they will obtain occupation and completion certificates from the competent authorities before offering possession of the unit in question. Relevant part of the said clause is reproduced hereunder:-

 

“11 POSSESSION

 

(a) Time of handing over the Possession

 

Subject to terms of this clause and subject to the Allottee(s) having complied with all the terms and conditions of this Buyer's Agreement, and not being in default under any of the provisions of this Buyer's Agreement and compliance with all provisions, formalities, documentation etc., as prescribed by the Company, the Company proposes to hand over the possession of the Unit within 36 months from the date of commencement of construction and development of the Unit. The Allottee(s) agrees and understands that the Company shall be entitled to a grace period of six months, for applying and obtaining the completion certificate/occupation in respect of the Unit and/or the Project”.

 

At the same time, it is also a settled law that before offering possession of the residential unit/plot to the purchaser, the builder/developer is legally bound to obtain occupation and completion certificates from the competent authorities. An allottee is not obliged to take possession of a residential plot/flat, unless it is complete in every respect, including the occupation and completion certificates. It was also so said by the Hon’ble National Commission, in Inderjit Singh Bakshi Versus S.M.V. Agencies Private Limited, FA No. 729 of 2013, decided on 30.11.2015. Relevant part of the said order reads as under:-

 

‘….An allottee is not obliged to take possession of a flat unless it is complete in every respect, including the completion certificate….’

 

 

The Hon'ble National Commission in its order dated 13.06.2018 passed in First Appeal No.855 of 2018 (Vision India Realtors Pvt. Ltd. & Anr. v. Sanjeev Malhotra) also, categorically held that legal possession cannot be delivered in the absence of completion certificate issued by the competent authority. It was held in Para No.5 as follows:-

 

5. During the course of hearing, it was submitted by the learned counsel for the appellant that the completion certificate in respect of the project was obtained by the appellant on 15.03.2016. A copy of the communication dated 15.03.2016 from Municipal Council, Kharar has been placed on record. It is therefore, evident that the completion certificate having been received only on 15.03.2016, the appellant could not have offered legal possession of the apartment to the complainant at any time before that date. As noted earlier, the amount of Rs.1,81,375/- was demanded on 20.04.2015 and the amount of Rs.2,12,489/- was demanded on 06.02.2016. The complainant was requested to pay the aforesaid amount so that the appellant could offer the possession of the flat. The said offer of possession was meaningless being unlawful as the requisite completion certificate had not been obtained by that date......."

 

The Hon'ble National Commission in its order dated 23 Apr 2019 passed in First Appeal No. 487 of 2019 (Proud Nature Buildtech Private Limited Vs. Amandeep Singh & Anr.) also, categorically held that the allottee is not under an obligation to take over possession in the absence of occupancy and completion certificates. Relevant part of the said order reads as under:-

“….Again, I find no merit in the contention. Having agreed to construct a flat for the complainant and deliver its possession to her, the appellant was under an obligation to obtain the requisite Occupancy Certificate and Completion Certificate before delivering possession of the flat to the complainants. Such an obligation is implicit in the obligation to deliver possession of the flat subject matter of the agreement between the parties. The appellant could not, in law, have even offered possession of the flat to the complainant without obtaining the requisite Occupancy Certificate and the Completion Certificate…”.

16.           However, in the present case, no occupation and completion certificates, if any, issued by the competent authorities, have been produced on record by the opposite parties. At the time of arguments also, Counsel for the opposite parties failed to apprise this Commission as to whether occupation and completion certificates have been obtained by the company or not. It may be stated here that had the said certificates been obtained by the opposite parties, it would have been very easy for them to place on record the same to prove their case, but they failed to do so. In these circumstances, an adverse inference could easily be drawn that the said certificates have still not been obtained by the opposite parties. Not only as above, even during pendency of this complaint, when on the admission of the opposite parties themselves that they are ready to deliver possession of the unit in question, as such, vide order dated 15.03.2021 they were directed to do so and were also conveyed that remaining issues regarding dues towards the complainants etc. shall be decided at the time of deciding this complaint, yet, they failed to do so and on the other hand, moved application bearing no.352 of 2021 seeking clarification regarding payment of dues towards the complainants with regard to the said unit. Thus, the act and conduct of the opposite parties show that they were not in a position to deliver possession of the unit, in question, to the complainants. We are, therefore, of the considered opinion that in the absence of any evidence to prove that the project in question was complete in all respects and also in the absence of occupation and completion certificates, it can safely be said that the possession so offered vide letter dated 23.04.2018, was nothing but a paper possession, which is not sustainable in the eyes of law and is accordingly ordered to be quashed.
17.           As far as objection taken by the opposite parties to the effect that  time was not the essence of contract, it may be stated here that, in the absence of any force majeure circumstances, having been faced by the opposite parties, they were legally bound to deliver possession of the unit in question, by the committed date i.e. by 25.02.2014 [within a total period of 42 months (36 months plus 6 months grace period) from the date of start of construction (26.08.2010), as envisaged under Clause 11 (a) of the Agreement dated 09.02.2010] but they miserably failed to do so. Other than the Clause referred to above, there is no Clause, which speaks about the period/date for delivery of possession of the unit to the complainants. Under these circumstances, the possession period has to be reckoned from the period specified in the agreement.  Our this view is supported by the principle of law laid down by the Hon’ble Supreme Court of India in M/s. Imperia Structures Ltd. Versus Anil Patni and another, Civil Appeal No.3581-3590 of 2020, decided on November 02, 2020, wherein it was held that the period of possession has to be reckoned in terms of the contract/agreement only. In this view of the matter, it is held that the objection taken by the opposite parties to the effect that time is not to be considered as essence of the contract, being devoid of merit stands rejected.
18.           Further, the opposite parties also cannot wriggle out from their liability by saying that the complainants defaulted in making some payment, in view of principle of law laid down by the Hon’ble Supreme Court of India in Haryana Urban Development Authority Vs. Mrs. Raj Mehta, Appeal (Civil) 5882 of 2002, decided on 24.09.2004, wherein it was held that if the builder is at fault in not delivering possession of the units/plots by the stipulated date, it cannot expect the allottee(s) to go on paying installments to it. Similar view had also been taken by the Hon’ble National Commission, in Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), wherein it was held that when development and construction work was not carried out at the site, the payment of further installments was rightly stopped by the purchaser. In the instant case also, if the complainants after making payment of substantial amount, stopped the same for some time, in-between, when they came to know that there will be a huge delay in completing the construction and development activities, on the part of the opposite parties, they were right in doing so, in view of principle of law, referred to above.
19.           Since, it is an admitted fact that actual physical possession of unit in question, has not been delivered either by the promised date or by the date this complaint has been filed or even thereafter, as explained above, as such, there is a continuing cause of action in favour of the complainants to file this complaint, in view of law laid down in Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal   Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC),  wherein it was held that when possession of the residential units is not offered and delivered, there is a continuing cause of action in favour of the allottee/buyer. Objection raised in this regard also stands rejected.
20.           Now the next question that falls for consideration is, as to what amount of compensation should be granted to the complainants, for the period of delay in delivery of possession, starting from 25.02.2014 (promised date of possession). It may be stated here that failure of the opposite parties to provide complete/effective possession of the unit within the stipulated period amounts to deficiency in service. It is also matter of common parlance that for purchasing the unit/plot, the purchasers take loans from their family members, relatives and friends or financial institutions. In some cases, the purchasers live on rent in the absence of timely delivery of possession. On account of delay in actual delivery of possession within the stipulated period (in the present case by 25.02.2014), the complainants suffered mental agony, hardships and financial loss. In the case titled as Lucknow Development Authority v. M K Gupta (1994) 1 SCC 243, the Hon’ble Supreme Court discussed about the extent of the jurisdiction of the Consumer Fora to award just and reasonable compensation for the harassment and agony suffered by a consumer.

                   Recently in Civil Appeal No.6239 of 2019 (Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. v. DLF Southern Homes Pvt. Ltd. (now Known as BEGUR OMR Homes Pvt. Ltd. and Ors.) decided on 24.08.2020, while discussing the above authorities and discarding the one-sided terms of the Buyer’s Agreements, the Hon’ble Supreme Court awarded simple interest @ 6% per annum on the amount deposited by the complainant therein, in addition to the penalty amount, as prescribed in the agreement for delay in delivery of possession till delivery of actual and physical possession of the unit. In view of the observations of the Hon’ble Supreme Court in the above noted case, we are of the view that the provision of penalty @Rs.5/-  per square feet per month of the super area of the said unit, as per Clause 13 (a) of the agreement, which comes even less that 2% p.a. (around 1.7% p.a.), is not sufficient to compensate the complainants for the delay caused in delivery of possession and the mental agony, harassment and financial loss suffered by them on account of this reason. Therefore, in addition to aforesaid penalty @ Rs.5/- per square feet per month of the super area of the unit, after the expiry of stipulated date of delivery of possession i.e. 25.02.2014 till the date of actual, physical and legal delivery of possession, the complainants are also entitled to simple interest @ 6% per annum on the entire amount deposited, from 25.02.2014 till delivery of possession of the unit, complete in all respects.

21.           Now the final question, which needs to be decided is, as to what remaining amount, the complainants are liable to pay to the opposite parties, at the time of taking over possession of the unit in question.  To answer this question, we need to refer to Clause 1.2 (a) (i) of the agreement, as under:-

“……The sale price of the Unit ("Total Consideration") payable by the Allottee(s) to the Company includes the basic sale price ("Basic Sale Price") of Rs.4462605/-, cost towards car parking space(s) of Rs.250000/-, External Development Charges (EDC) of Rs.334800/-, Infrastructure Development Charges (IDC) of Rs.41850/- and applicable PLC of Rs.279000/-, if any and Club Membership charge of Rs.75000/-. Save as aforesaid, the Allottee(s) understands that the Total Consideration does not include any other charges, as reserved in this Buyer's Agreement and the Allottee(s) shall be under an obligation to pay such additional cost as may be intimated to him by the Company, from time to time. The Allottee(s) specifically understands that time is the essence with respect to the Allottee(s) obligations and undertakes to make all payments in time, without any reminders from the Company through A/c Payee Cheque(s)/Demand Draft(s) payable at Delhi. The Allottee(s) agrees that the payments on due dates as set out in Annexure-3 shall be made promptly and the Company shall not be required to send any notice or demand for payment as per the Schedule of Payment……..”

 

Thus, as per afore-extracted clause, the complainants were liable to make payment of total sale consideration of Rs.54,43,255/- towards the unit in question, as per chart below, culled out from the aforesaid clause only:-

Basic Price	4462605.00
IDC & EDC	376650.00
Car Park	250000.00
Park Facing	279000.00
Club Membership	75000.00
Total	5443255.00

 

It is further evident from the payment plan, Annexure-3 (at page 75 of the paper book) that over and above the total sale consideration of Rs.54,43,255/-, the complainants are also liable to make payment of interest free maintenance charges (IFMS) and stamp duty & registration charges. Perusal of statement of accounts show that total amount of Rs.54,36,212/- stood credited (paid by the complainants) in the account maintained by the opposite parties against total sale consideration of Rs.54,43,255/-.  In this view of the matter, it is held that the complainants are liable to make remaining payment of Rs.7,043/- (Rs.54,43,255/- minus (-) Rs.54,36,212/-); payment towards interest free maintenance charges and also stamp duty & registration charges. There is nothing on record to show that over and above these amounts, the complainants are liable to make any other amount(s) under any head(s) like GST/service tax etc. and as such, the opposite parties are not entitled to claim the same from the complainants.

                   At the same time, since it has been held above that in the absence of occupation and completion certificates and also in the absence of any evidence to prove that construction and development activities were completed by 23.04.2018 (the date when incomplete possession of the unit was offered- as discussed above), as such,  the question of levying holding charges upon the complainants did not at all arise. As such, plea taken by the opposite parties in this regard stands rejected. 

22.           For the reasons recorded above, this complaint is partly accepted, with costs and the opposite parties, jointly and severally are directed as under:-
    1. To deliver actual physical possession of the unit in question, to the complainants, complete in all respects, after obtaining occupation and completion certificates from the competent authorities, within a maximum period of 6 months from the date of receipt of a certified copy of this order or earlier, if possible, on receipt of balance amount of Rs.7,043/- (Rs.54,43,255/- minus (-) Rs.54,36,212/-); interest free maintenance charges and also stamp duty & registration charges, from the complainants.

                 However, it is made clear that the opposite parties shall issue fresh offer letter for possession of the unit in question, after obtaining occupation and completion certificates from the competent authorities, so that the complainants are able to make the aforesaid payments accordingly, for taking over possession thereof.   

2. To pay compensation @Rs.5/- per square feet per month of the super area of the unit, as per Clause 13 (a) of the agreement, and also interest @6% p.a. on the entire deposited amount, starting from 25.02.2014 till 31.08.2021, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount shall carry interest @9% p.a. from the date of default till this  entire accumulated payment is made, to the complainants.
3. To pay compensation @Rs.5/- per square feet per month of the super area of the unit, and also interest @6% p.a. on the entire deposited amount w.e.f. 01.09.2021, onwards (per month), by the 10^th of the following month to the complainants till actual delivery of physical possession of the unit in question, complete in all respects, as ordered in clause (i) above.
4. To pay compensation to the tune of Rs.1 (one) lac for causing mental agony and harassment to the complainants and also for deficiency in providing service and adoption of unfair trade practice and cost of litigation to the tune of Rs.50,000/-, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amounts shall carry interest @9% p.a. from the date of  passing of this order till realization.

 

23.           It is also made clear that, in case, the opposite parties have made some part payment to the complainants,  towards compensation for the period of delay in delivery of possession of the unit, in question, they are at liberty to deduct the same, out of the amount awarded in clause (ii) of para no.22 above.
24.           Certified copies of this order be sent to the parties, free of charge.
25.           The file be consigned to Record Room, after completion.

 

Pronounced.

27.08.2021

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

          [PADMA PANDEY]

MEMBER

         

 

Sd/-

 [RAJESH K. ARYA]

MEMBER

 Rg