PER MR SUBHASH CHANDRA, MEMBER

                This is a complaint under section 12 (1) (a) of the Consumer Protection Act, 1986 filed by the complainants alleging deficiency in service and unfair trade practice in respect of the flat booked by them in the project ‘Palm Gardens’, Sector, 83, Gurugram, Haryana, promoted and developed by the opposite party M/s Emaar MGF Land Limited.

2.     In brief, the facts of the case are that the complainants had booked a flat in the above said project of the opposite party on 10.12.2010 by paying an amount of Rs.7,50,000/-. Vide allotment letter dated 24.01.2011, complainants were allotted flat no. PGN 05 - 0504, 5^th floor, Tower 5, with super area of 1720 sq ft. A Builder Buyer Agreement was executed on 30.03.2011 for a total sale consideration of Rs.91,63,574/-. Vide clause 10 (a) of this argument delivery of the possession was to be offered to the complainants by the OP within 36 months with a grace period of six months from the date of start of the construction. The construction of the tower was commenced in August 2012 and therefore, the possession was to be offered by November 2015. It is averred by the complainants that between 2011-2015 a sum of Rs.91,68,785/- was paid by them to the opposite party on various dates as and when demanded. However, in November 2015 the possession was not offered by the opposite party despite having complied with various demands for payment that were raised by the opposite party between 2016-2018. On 20.03.2018 an offer of possession was made by the opposite party. The final payment was made by the complainants in April 2018 and possession of the said apartment was taken by them between May and November 2018. In November 2018, the conveyance deed was executed by the opposite party in favour of the complainants, six months after the offer of possession. The opposite party has not, however, paid any compensation to the complainants for the delay in handing over the possession except an amount of Rs.2,78,640/- @ Rs.7.50 sq ft per month, as per the compensation clause in the agreement which was adjusted against the amount to be paid by the complainants in the final demand for payment. The complainants have alleged that although time was of essence under the Builder Buyer Agreement, the opposite party had delayed the project beyond the agreed period of 36 months and six months grace period as promised in the said Agreement and had, through unfair trade practice, altered the plans and demanded additional payments such as Rs.3.00 lakh for covered parking. The delay in execution of the conveyance deed caused the complainants to pay an additional amount for registration which the State Government of Haryana increased from Rs.15,000/- to Rs.40,000/- in October 2018. On account of the delay and consequential financial loss the complainants are before this Commission with the following prayer:

1. Direct the opposite party to pay a delayed possession compensation equal to interest @ 18% per annum on the amount deposited by the complainants with the opposite party, with effect from November 2015, i.e., the date when possession was promised, till the date of actual possession was handed over by the opposite party along with all necessary documents and common areas and facilities as promised during the initial booking made by the complainants;

2. Direct the opposite party to pay compensation of Rs.5,00,000/- to the complainants for mental agony, harassment, discomfort and undue hardships caused to the complainants as a result of the above acts and omissions on the part of the opposite party;

3. Direct the opposite party to pay a sum of Rs.2,50,000/- to the complainants as a whole, towards litigation costs;

4. Direct the opposite party to pay the complainants an amount of Rs.25,000/- that the complainants were forced to pay as registration charges due to the delay in execution of conveyance deed by the opposite party;

5. Direct the opposite party to refund wrongfully charged taxes and other charges along with the interest on that amount at the rate of 18% per annum from the date of receipt of such wrongfully levied charges and taxes; and

6. That any other and further relief in favour of the complainants as Hon’ble Commission may deem fit and proper in the fact and circumstances of the case.

3.     The opposite party has resisted the complaint by way of reply and affidavit and contended that the complainants were defaulters in payment on several occasions and there was no commitment of 36 months and grace period of six months for the construction of the said apartment. He has also contended that the delays were caused on account of delay by the main contractor, i.e., IL&FS in execution of the project. He has also contended that the complainants had booked the flat in question for speculating in real estate and that they were not “consumers” as they had already executed the conveyance deed. He has also relied upon the judgment of the Hon’ble Supreme Court in Ghaziabad Development Authority vs Balbir Singh  in Appeal no. 7173 of 2002 decided on 17.03.2004 - (2004) 5 SCC 65 wherein it has been held that prayer for refund of tax was beyond the scope of NCDRC. It has also been argued that since the compensation claimed does not exceed Rs.1.00 crore, the complaint is filed without pecuniary jurisdiction before this Commission and is liable to be dismissed.

4.     Parties have led their evidence and filed written submissions. We have heard the learned counsel for the parties and perused the records carefully.

5.     In this case, the possession of the flat has already been taken by the complainants after making all the residual payment beyond the amount that had already been paid. The only issue, therefore, is that of compensation for the delayed possession. The complainants have relied upon the orders of this Commission in the case of Emaar MGF Land Limited vs Govind Paul in FA no. 402 of 2017, decided on 26.07.2018, wherein it had been held that a consumer/complainant before the NCDRC is seeking consumer justice from a quasi-judicial machinery for redressal of consumer disputes under the provisions of the Consumer Protection Act, 1986 and not specific performance of a contract. It has also been held that sum and substance and import of the clauses in the Builder Buyer Agreement regarding the time for delivery of the flat read in conjunction with the clause relating to the builder’s liability to pay compensation for delay at a rate per square foot of built up super area is that while the builder will hand over the possession of the flat in the time frame indicated to the allottee, in case of a ‘short reasonable delay’ in offering possession, the builder company would a pay a reasonable compensation. Such a compensation cannot be for an unreasonably protracted period of time or indefinite. Accordingly, it has been held that:

“to say that the possession can be delayed indefinitely or unreasonably and a token compensation for delay can be paid indefinitely or for an unreasonably protracted period is erroneous. Indefinite or unreasonable delay with token compensation for delay cannot continue ad nauseam, ad infinitum (such situation would be absurd).”

In the instant case, the offer of compensation was done after two and a half years which cannot be classified as a reasonable or short delay. The compensation paid to the complainant by way of adjustment in the amount due to be paid is, therefore, contrary to this ruling and is liable to be rejected.

6.     The date of handing over the possession as per the Builder Buyer Agreement was November 2015. The possession was actually offered on 20.03.2018, based upon the occupation certificate obtained on 10.01.2018. The opposite party cannot be absolved of deficiency in service..

7.     The argument of the opposite party that this Commission has no pecuniary jurisdiction cannot sustain in view of the judgment passed in Ambrish Kumar Shukla vs Ferrous Infrastructure Pvt. Ltd., - 2016 SCC Online NCDRC 1117, wherein it was held that :

“The consideration paid or agreed to be paid by the consumer at the time of purchasing the goods or hiring or availing of the services, as the case may be, is to be considered, along with the compensation, if any, claimed in the complaint, to determine the pecuniary jurisdiction of a consumer forum”.

This position was reiterated by this Commission in the case of Renu Singh vs Experion Developers Pvt. Ltd., CC/1703/2018 decided on 26.10.2021 wherein the finding in Ambrish Kumar Shukla (supra) was reaffirmed and both sale consideration and interest claimed was to be considered while determining pecuniary jurisdiction. The contention that this Commission lacks pecuniary jurisdiction in the instant matter is accordingly not found to be valid.

8.      In the instant case the complainant, while having taken possession of the flat in question, has claimed compensation for the delay. While deciding the issue of pecuniary jurisdiction, the cost of the flat and the compensation claimed needs to be considered in terms of the above judgments.   Merely considering the quantum of interest would be contrary to the harmonious reading of the statute which Ambrish Kumar Shukla (supra) and Renu Singh (supra) have underlined. This contention of the opposite party cannot, therefore, sustain.

9.      The complainants have sought to be compensated for the enhancement in the rate of registration by the Government of Haryana in the interregnum between their taking possession of the flat and the execution of the conveyance deed by the opposite party. The complainant has also not been able to establish that this was attributable to any delay on part of the opposite parties except to allege that during the period between May and November 2018 during which period possession was taken. We agree with the opposite party that this was due to revision of rates by the government which was beyond its control as the rates were revised by the state government, being statutory dues. The averment of the complainants in this regard does not sustain.

10.   The issue to be decided, therefore, is the quantum of compensation to be paid by the opposite party to the complainants as compensation for the delay in handing over the possession since other relevant charges and dues stand settled between the parties. Admittedly there has been a delay of nearly 2.5 years (30 months) in offer of possession. The Hon’ble Supreme Court in the case of Wg Cdr Arifur Rahman Khan and Aleya Sultana and Ors., vs DLF Southern Homes Pvt. Ltd., (now known as BEGUR OMR Homes Pvt. Ltd.,) and Ors. in Civil Appeal no. 6239 and 6303 of 2019 decided on 24.08.2020 held that “the flat buyers are entitled to compensation for delayed handing over of possession and for the failure of the developers to fulfil the representations made to flat buyers in regard to the provision of amenities”.  Further, it has been held that delay in payment of compensation is to be reckoned for the period from the agreed date of offer of possession and the actual date of making the offer of possession by the opposite party. Therefore, the complainants are liable to compensation for this period only.  The complainant has also admittedly received, by way of adjustment against the instalment due, a compensation of Rs.2,78,640/- @ 7.50 sq ft for the delay. Any compensation for the complainants will necessarily include the amount of Rs.2,78,640.

11.   We, therefore, find merit in the complaint which is partly allowed with the following directions:

1. The opposite party shall pay compensation to the Complainant with 9% simple interest on the amount paid by the complainant as on the promised date of making the offer of possession November 2015 till the actual date of offer of possession, i.e., 10.01.2018. The amount of Rs 2,78,640/- already adjusted in the complainant’s accounts will be deducted from the amount so computed;
2. The Opposite Party shall also pay Rs.50,000/- as litigation costs to the complainant;

       iii.   Payment shall be made within three months of this order. In case of default, the compensation shall be payable with a penal interest of         12% simple interest for the period of delay.