1.      Heard counsel for the parties. 

2.      Above complaint has been filed for directing the opposite party to (i) handover possession of Flat no.PGN-10-12A02 in the project ‘Palm Gardens’, Sector-83, Gurgaon, (ii) pay compensation for delay in handing over possession in the form of interest @ 18% per annum on total sale price from 09.08.2015 till the date of delivery of possession, (iii) pay pendentelite future interest @ 12% per annum, (iv) refund the charges levied under the heads of ‘electricity connection charges’, (v) pay Rs.100000/- as litigation cost and (vi) other relief which may deem fit and proper in the facts and circumstances of the case. 

3.      The complainants have stated that the opposite party was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project.  The opposite party launched a group housing project in the name of ‘Palm Gardens’ at Sector-83, Gurgaon. Sky Net Enterprises Pvt. Ltd. (predecessor-in-interest of the complainants) booked a flat and deposited booking amount on 29.09.2011. The opposite party allotted Unit no. PGN-10-12A02 size 1900 sq. ft. for basic sale price of Rs.5000/- per sq.ft. on 14.10.2011 and executed Buyers’ Agreement on 23.11.2011 in respect of said unit in its favour. The complainants were in need of a house in that locality and purchased Unit no. PGN-10-12A02, from the previous allottee. The opposite party acknowledged the transfer in favour of the complainants and endorsed in the Buyers’ Agreement on 20.02.2013. The mode of payment was “construction linked payment plan”. As per demand, the complainants deposited more than 95% of total consideration upto 01.07.2017. As per clause 10(a) of the Agreement, possession had to be delivered within 36 months from the date of start of construction with grace period of three months. Due date of possession as per clause 10(a) of the Agreement expired in August 2015 but the opposite party neither completed the construction nor offered possession to the complainants. Therefore, the complaint was filed for possession, delayed compensation etc. on 27.06.2019. 

4.      The opposite party filed its written reply and contested the matter.  Material facts relating to the project, allotment of Unit no. PGN-10-12A02 to the complainants and deposits made by them and their predecessor, have not been disputed. The opposite party stated that delay in construction has occurred for force majeure circumstances. The opposite party completed the construction and obtained “occupancy certificate” with delay. After obtaining “occupancy certificate”, the complainants were offered possession vide letter dated 07.05.2019 Possession date was re-schedule as 15.07.2019. The complainants took possession and conveyance deed was executed on 05.08.2019.

5.      The complainants filed rejoinder reply and affidavits of evidence of Pankaj Kumar and Kailasho Devi. The opposite party filed affidavit of evidence and affidavits of admission/denial of documents of Rajendra Prasad. Both the parties filed their short synopsis of arguments. 

6.      We have considered the arguments of the counsel for the parties. It is not disputed that possession was offered vide letter dated 07.05.2019 and the complainants have taken possession in pursuance thereof. Only dispute is in respect of compensation for delayed possession and other reliefs claimed in the complaint. The counsel for the complainants submitted that as per clause-10 (a) of the agreement dated 23.11.2011, possession had to be delivered within 36 months from the date of start of construction with grace period of three months and due date of possession expired in August 2015. The possession was offered on 07.05.2019. Relying upon judgment of three members Bench of this Commission in CC/423/2016 Altaf Ahmed Lal & Anr. Vs. M/s Emaar MGF Land Ltd. & other connected matters, decided on 11.10.2021, in respect of the same project, he claimed delayed compensation in the form of interest @ 8% per annum on the deposits.

7.      Section 71 of the Contract Act, 1872 prescribes for compensation for breach of the contact, which amounts to actual loss suffered by the party due to such breach. In the cases of delay in delivery of flat, the allottee is getting flat with appreciated value and loss is only of the rent. Supreme Court in Lanco Hills Technology Park Private Limited Vs. Manisha Balkrishna Kulkarni & Anr. (2020) 11 SCC 699, R.V. Prasannakumaar & Ors. Vs. Mantri Castles Private Limited & Anr., (2020) 14 SCC 769 and Wg. Cdr. Arifur Rahman Khan and Aleya Sultana & Ors. Vs DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512, held that fair delayed compensation would be interest @ 6% per annum on the deposit. Although the judgment of this Commission is in respect of same project but it is not between the same parties. So for as binding precedent is concerned, judgment from Supreme Court has an overriding effect over contrary judgement of any other sub-ordinate court or tribunal. Therefore, the complainants are entitled for delayed compensation in the form of interest @ 6% per annum on the deposit made by them. The period of 39 months in this case has to been counted from the date of purchase by the complainants, for the reasons that the complainants purchased the unit knowing well the construction has been delayed as held by Supreme Court in Laureate Buildwell Pvt. Ltd. Vs. Charanjeet Singh, (2021) III CPJ 48 (SC) and that the payment plan was “construction linked payment plan” and the complainants paid instalments till 01.07.2017. Delayed compensation has to be counted till the date of offer of possession. 

ORDER

          The complaint is partly allowed. The opposite party is directed to prepare a fresh statement of account in respect of delayed compensation in the form of interest @ 6% per annum on the deposits of the complainants from September 2016 till 07.05.2019 adjusting delayed compensation already paid if any and pay it to the complainants within two months from today.