1.       Heard Mr. Nithin Chandran, Advocate, for the complainants and Mr. Sanchar Anand, Advocate, for the opposite party. 

2.       Above complaint has been filed for directing the opposite party to handover possession of the apartment, complete in all respects within a period of six months, to pay compensation for delay in possession in the form of interest @ 12% per annum on the deposit of the complainants w.e.f. September 2015 till the date of possession, to refund the amount charged towards car parking space along with interest @ 18% per annum, to pay Rs.6000/- per month, in case the opposite party fails to deliver the apartment within six months, to pay Rs.10/- lacs, as compensation for mental agony and harassment, to pay Rs.1/- lac, as cost of litigation, or in alternative to refund Rs.8668504/- along with interest @ 18% per annum, from the date of respective deposit till the date of payment and refund the charges realized in the head of taxes along with interest @ 18% per annum and any other relief which is deemed fit and proper in the facts of the case.

3.       The complainants 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. In the year 2011, the opposite party launched a project in the name of ‘Palm Gardens’ at Sector-83, Gurgaon, Haryana and made publicity of it. On coming to know about this project, Rajesh Sam Suri (the predecessor-in-interest of the complainants) booked a flat on 01.05.2011 and deposited booking amount. The opposite party provisionally allotted Apartment No.PGN-10-1104 (super area 1720 sq.ft. total price of Rs.8817198/-) to Rajesh Sam Suri on 09.05.2011. The opposite party executed Apartment Buyers Agreement dated 20.05.2011 in favor of Rajesh Sam Suri. Rajesh Sam Suri transferred the above flat to the complainants on 22.05.2014, which has been duly acknowledged and endorsed by the opposite party on 28.05.2014. Rajesh Sam Suri and the complainants deposited the installments according to the demand of the opposite party on time and deposited total amount of Rs.8668504/- up to August, 2018. Under clause 10 of the agreement, due date of possession was 36 months from the start of construction with grace period of three months. The date of start of construction was on 09.08.2012. As such, the period of 39 months completed on 09.11.2015. In spite of the substantial payment, the opposite party was unable to hand over possession to the complainant. After waiting for a substantial period, the present complaint has been filed on 18.03.2019.

4.       The opposite party filed its 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 delayed period. Under clause 12 of the Agreement, it was agreed between the parties that in case any delay occurs then the allottee would be entitled for compensation @ Rs.7.50/- per sq.ft, per month on the super area of the flat. The complainants purchased the apartment in May 2014. At that time, they were very well aware about the delay in construction. For the complainants, 39 months period shall be calculated from the date of their purchase.

5.       The complainants filed rejoinder reply on 11.07.2019 and Affidavit of Evidence of both the complainants. The opposite party filed Affidavit of Evidence of Rajendra Prasad on 25.07.2019. 

6.       During the pendency of the complaint, the opposite party obtained “Occupation Certificate” and offered possession to the complainants on 07.05.2019. This Commission, vide order dated 24.06.2019 passed in IA/9239/2019, permitted the complainants to take possession of the flat subject to paying the admitted balance amount without prejudice to their rights in respect of the contentions raised in the complaint. Even after the order dated 24.06.2019, the complainants could not take possession as some dispute arose between the parties on the spot. 

7.       At present, the complainants is ready to take possession but only dispute is in respect of the compensation for holding charges and maintenance charges. The counsel for the complainants 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 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, a 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 shape of interest @ 6% per annum on the deposit of the complainant. The counsel for the complainants 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 judgment 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 complainants @ 6% per annum on their deposits from August 2017 till the date on which possession was originally offered to them. The delayed compensation shall be adjusted in the other amounts payable by the complainants.  On deposit of money, if any, by the complainants, the opposite party shall hand over possession of the flat, complete in all respects, to the complainant and execute Conveyance Deed without any further delay.