JUSTICE SUDIP AHLUWALIA, MEMBER

            The Complainants had booked  a Duplex Apartment in the Project “Palm Gardens” constructed/developed by the Opposite Party by filling an Application Form dated 27.8.2011 and paying a booking amount of Rs. 10,00,000/-, for a total consideration of Rs. 1,33,46,079/-.  The Opposite Party issued a Provisional Allotment Letter dated 6.9.2011 whereby the Complainants were allotted Apartment No. PGN-11-0003 measuring a super area of 3750 sq.ft. approx.  A copy of the Buyers Agreement was sent to the Complainants for execution.  However, in the midst of executing the Buyers Agreement, the Opposite Party informed the Complainants that due to inability in receiving the requisite approvals for building a Duplex Apartment, the Apartment allotted to the Complainants was being converted into a 4-BHK single Unit measuring a super area of 1900 sq.ft.  The Complainants accepted the change in Apartment from Duplex to a Single Floor Apartment.  The Opposite Party issued a new Allotment Letter dated 19.1.2012 whereby the Apartment allotted to the Complainants remained the same, however, the super area was changed from 3750 sq.ft. to 1900 sq.ft.  Thereafter, the Opposite Party executed a fresh Apartment Buyer’s Agreement dated 16.2.2012.  As per Clause 10(a) of the Agreement, the possession was to be handed over within 36 months from the date of start of construction alongwith a grace period of 03 months i.e. by 1.3.2016.

2.      The Complainants made timely payments as and when demanded by the Opposite Party to the tune of Rs. 1,14,37,433/- (Rupees One Crore Fourteen lakh Thirty Seven Thousand Four Hundred and Thirty Three Only).  However, the Opposite Party failed to deliver possession within the stipulated time period and had offered possession of the Apartment vide Letter of Offer of Possession dated 12.11.2019 i.e. after a delay of nearly 04 years from the promised date of possession.

3.      The Complainants visited the Project site to inspect the Apartment.  To their shock and surprise, the north side of the Apartment which was to be a dedicated play area for children was completely covered by multiple 33000KW transformers.  Furthermore, 1.5 acre mini golf course towards the east side of the Apartment, for which PLC was charged by the Opposite Party, was reduced to an open gymnasium.  Aggrieved by the change in layout and the absence of the main elements for which the Apartment was booked, the Complainants sent a letter dated 3.12.2019 regarding their grievances. Vide said letter, the Complainants pointed out missing play area and the mini golf course and further emphasized on arbitrarily charged PLC towards corner house which was never demanded vide allotment letter dated 06.09.2011 yet was unilaterally demanded vide allotment letter dated 19.12.2012.  The Opposite Party neither acknowledged nor responded to the said letter and the defects pointed out were not cured.

4.      The Complainants have also raised concerns towards lack of water supply, Lack of exit road, availability of only 11KVA of power instead of approved 33 KVA and lack of drainage line. The Complainants have further averred in their Complaint that the Opposite Party has charged exorbitant and unwarranted charges in the form of Car Parking Charges and Club Membership Charges. Due to such deficient services and unfair trade practices of the Opposite Party, the Complainants had to suffer severe financial and mental stress. Hence, this Complaint has been filed by the Complainants for seeking physical possession of the Apartment complete in all respects, interest @18% p.a. from promised date of possession till date of actual possession, for waiving off of wrongly charged PLC, refund of wrongly collected charges, removal of electrical substation and other ancillary reliefs.  The specific reliefs sought by the Complainants in their complaint are set out as below-

a.      Direct the Opposite Party to handover the physical possession of the Apartment to the Complainants, complete in all respects and in conformity with the Apartment Buyer’s Agreement, specifically the layout plan, and for the consideration mentioned therein, with all additional facilities and as per quality standards promised and execute all necessary and required documents in respect of the said Apartment in favour of the Complainants within 6 months of this petition being filed before this Hon’ble Commission or as this Hon’ble Commission deems fit and appropriate;

b. Direct the Opposite Party to pay interest at the rate of 18% per annum as delayed possession compensation from the promised date of possession, i.e. from 29.02.2016 till the date of actual possession is 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;

c. Direct the Opposite Party to waive of the wrongly charged PLC amounting to ₹19,00,000/- (Rupees Nineteen Lacs) towards the Ground Floor;

d. Direct the Opposite Party waive off the wrongly charged PLC amounting to ₹8,55,000/- (Rupees Eight Lacs Fifty Five Thousand Only) towards the Mini Golf View and the Corner House;

e. Direct the Opposite Party to remove the electrical substation installed adjacent the unit of the complainants;

f. Direct the Opposite Party to refund/adjust as the position emerges, the amount of Car Parking Charge and Club Membership Charge, wrongly collected against the provisions of law;

g. Direct the Opposite Party to pay compensation of ₹10,00,000/- (Rupees Ten Lakh only) to the Complainants for mental agony, harassment, discomfort and undue hardships caused to the complainant as a result of the above acts and omissions on the part of the Opposite Party(s);

h. Direct the Opposite Party to pay is sum of ₹2,00,000/- (Rupees Two Lakh Only) to the Complainants towards litigation costs;

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

5.      The complaint has been resisted by the Opposite Party which has admitted the allotment made to the Complainants as well as the payment received from them.  It is stated in the written version that the Complainants were offered possession vide Letter of Offer of Possession dated 12.11.2019 wherein the Complainants were requested to pay their final dues and other statutory charges for taking possession, and to complete the formalities which the Complainants did not complete. It has been further averred that the Complaint is not maintainable due to lack of pecuniary jurisdiction of this Commission to hear this matter as the interest claimed cannot be beyond Rs.1 Crore to invoke the original jurisdiction of this Hon’ble Commission. It is stated that the Opposite Party in compliance of the agreed terms, had given a compensation of Rs. 6,22,042/- to the Complainants towards the delay and the same is also reflected in the Statement of Accounts. The Complainants have also defaulted in the deposit of the demanded amounts within their due dates.  Further, it is stated that this complaint is not maintainable as  the Complainants are not ‘Consumers’ under Section 2(1) (d) (ii) of the Consumer Protection Act, 1986, since  they had purchased the said Unit for investments/commercial purpose.  It is also stated in the Reply that the construction of the Unit was started in November, 2012, however, several allottees defaulted in making payment and also the Contractors delayed the Construction, which resulted in slow development.  It is also stated in the written version of the Opposite Party that the delay in the project delivery was totally out of their control. However, the project was completed and possession offer was given to the Complainants. It is stated that in the event of delay, liquidated damage @ 7.50/- per sq. ft. per month are payable to the Complainants in terms of Clause 12 of the Buyers Agreement dated 16.2.2012. Hence, the claim of Complainant is barred by law in terms of Section 74 of the Indian Contract Act. It is further stated in the written version that the issues involved in the present Complaint cannot be decided in summary proceedings and can only be adjudicated by a Civil Court. It has been submitted that Clause 10(a) of the Buyer’s Agreement cannot be read in isolation but has to be read with Clauses 7,8,13,16 & 26 of the Agreement. It has also been stated, relying on the decisions of Hon’ble Supreme Court of India, that the agreed clauses of the Contract are binding on the parties and that the Courts shall not interfere with the terms agreed between the parties. Further the Opposite Party has averred in its written version that the Complaint is filed beyond the time prescribed and the Complaint is not maintainable in terms of Clause 32 of the Buyers Agreement which provides for adjudication of disputes by a sole arbitrator and in Clause 34, the parties had agreed for exclusive jurisdiction of Hon’ble courts at Gurgaon.   

6.      Rejoinder to the Written Statement of the Opposite Party has been filed by the Complainants denying that the averments, assertions and allegations made in the Reply by the Opposite Party and reiterating the contents of the Complaint.  It has been submitted that the Opposite Party is trying to mislead this Commission by making false, misleading and incorrect statements. It has further been stated that the Opposite Party has failed to adequately compensate for delay and failed to draw nexus between force majeure factors and their role played in delaying the possession. It has further been submitted that the cause of action continues to be in the Complainants’ favour and the present case shall be determined on aggregate value of the unit, mental agony etc., interest @18 p.a. for the period of delay, etc. It is further averred that the amount of Rs.6,22,042 was highly miniscule and was calculated in accordance with one of the arbitrary and one-sided clauses of the Agreement. Further, the onus was on the Opposite Party to prove that the flat in question was booked for commercial purpose and the Complainants shall not be made to suffer due to shortcomings of other buyers and contractors.       

7.      Evidence by way of Affidavit has been filed by the Parties.

8.      Heard Ld. Counsel for both sides at length and perused the material available on record.

9.       In addition to the averments made above, Opposite Party has argued that no PLC was charged by the Opposite Party for the Mini Golf Course but it was only for the unit having a view of the Mini Golf Course, that the PLC charged for the ground floor and corner unit has not been compromised  and no PLC has been charged for alleged children play area and no evidence has been placed on record by the Complainant to support its contentions.     

10.    Heard both sides.  Perused the entire material available on record.

11.    It is undisputed that the Complainants were intimated regarding change of their original preference of a Duplex Unit to a normal one in the light of certain changes necessitated on account of modifications in the original site Plan for reasons which were not entirely within the control of the Opposite Party/Developer.  The Complainants opted to accept the modified Unit instead of the original Duplex dwelling Unit, and did not prefer to rescind from the original understanding.  As a consequence of such modification in the Development Plans as approved by the Competent Authority, there were bound to be some changes in the Project Layout from that which had been depicted in the original site Plan, and the Complainants raised no objections to the altered Unit being offered to them. To that extent, exfacie, it would not appear justified to seek any compensation on account of such alterations except the cost factor, or for any deviation from the original site Plan except in a situation where any specific preferential location charges had been collected from them by the Developer/Opposite Party, and the relevant categories under which those charges were collected were not actually fulfilled while offering them the possession.

12.    Now, the detail of the PLCs levied upon the Complainants are covered in Annexure- A-2, which forms a part of the Apartment Buyer’s Agreement dated 16.2.2012 (Annexure- C-3).  Such relevant PLC and additional charges specified in the said Annexure 3 to the Apartment Buyer’s Agreement, are available on page 79 of the Paper Book.  These happen t

          “PLC & Additional Charges:-

          Mini Golf View              -        6,65,000

          Ground Floor                -      19,00,000

Corner                           -        1,90,000

Car Park                       -        3,00,000”

13.    Now, it is verified from the Statement of Accounts dated 12.11.2019 (Annexure -C-4) issued by the Opposite Party that no charges beyond the four above mentioned PLC and additional charges, have been included in the same.  It is an admitted position that not only the Unit finally offered to the Complainants is located on the Ground Floor, but also happens to be located on the corner.  So, there is no deviation from the Heads under which the Preferential Location Charges on these two counts were claimed by the Opposite Party.  Regarding the Mini Golf View for which an amount of Rs. 6,65,000/- is claimed, it is admitted that the Mini Golf Course is located on the back side of the Complainants’ Ground Floor Unit, and there is no intervening structure which can block its view from the dwelling Unit. The contention of the Complainant in this regard is that an open-air Gymnasium has also been developed upon the open land which obstructs the view of the Mini Golf area.  This contention would not appear to be sustainable in the given facts and circumstances, firstly, because the view to the Mini Golf Course cannot be obstructed simply because the open area which is utilised as a Gymnasium cannot have the effect of doing so.  Also, the game of Golf can be played throughout the day time, and in case flood lights are available, then even after dark.  On the other hand, utilisation of the open space as Gymnasium by the residents can be done normally only at suitable timings in the earlier part of the day or in the evenings, not during mid-day when there is excessive sunlight.

14.    Annexure- A-3 to the Apartment Buyer’s Agreement reveals that no additional charges on account of the Children’s Play Area which was depicted in the original site Plan (since modified) were levied upon the Complainants.  However, they have contended that their preference for a Ground Floor dwelling Unit was actually in view of the expectation that the same would be readily accessible from the Children’s Play Area.  But this internal expectation of the Complainants could not have been known to the Opposite Party, unless it was consciously intimated to them before making the choice for a Ground Floor Unit, in a manner which could be verified at a later stage.  For this reasons, it can also not be said that the Complainants are prejudiced in any manner for not including the Children’s Play Area in the final development Plan, since they had paid no additional charges for the same.

15.    Regarding the objection to the existence of the Electric Sub-station which was not depicted in the original site Plan, again it may be said that an Electric Sub-station in a given Developed Project, is an absolute necessity, and placement of the same has undoubtedly been done only after approval of the modified Sanction Plan.  Inspite of existence of such Electric Sub-station, the Complainants still insists on getting possession of the dwelling Unit being offered to them, and have chosen not to refuse the same or seek refund of their money from the Opposite Party alongwith interest or any other ancillary reliefs.  As such, in the totality of these circumstances, their claim and insistence regarding removal of the already installed Electric Sub-station would not appear to be justified or practical.

16.    However, the Complainants are certainly entitled to appropriate compensation in view of the inordinate delay in offering of possession of their dwelling Unit to them. As already noted, according to the Apartment Buyer’s Agreement, such possession was to be offered within 36 months alongwith an additional grace period of three months, which would have ended on 1.3.2016.  But the possession was actually offered as late as on 12.11.2019 i.e. after a delay of nearly three years and 8 months.  The Complainants are, therefore, certainly entitled to delayed compensation for this long span of time. To this end, they have themselves relied on the decision of the Hon’ble Supreme Court in the case of “M/s. Supertech Ltd. Vs. Rajni Goyal, Civil Appeal Nos. 6649-50 of 2018”, which has been quoted in Para 13 (D) (12) which is on record in their complaint at Pages 19 and 20 of the Paper Book. It has been averred therein-

“12.     In M/s. Supertech Ltd.  Vs. Rajni Goyal, Civil Appeal Nos. 6649-50 of 2018, decided by the      Hon’ble Supreme Court on 23.10.2018, this Commission while directing delivery of possession of the allotted flat to the complainant/ respondent before the Hon’ble Supreme Court had also directed the builder, appellant before the Hon’ble Supreme Court, to pay compensation to him in the form of interest @ 8% p.a.  The direction for payment of the interest @ 8% p.a. was upheld by the Hon’ble Supreme Court, though the period up to which the compensation was payable was restricted till the date on which the occupancy certificate had been obtained. Thus, the award of compensation for the delay in delivery of possession, by way of interest @ 8% p.a. w.e.f. the committed date for delivery of possession has been upheld by the Hon’ble Supreme Court in the above-referred recent decision.”

17.    Consequently, following the aforesaid decision “M/s. Supertech Ltd. Vs. Rajni Goyal, (supra) specifically quoted and relied upon by the Complainants themselves in their complaint, this complaint is allowed in part. The Opposite Party is found liable to pay compensation for delay in offering possession of the Apartment in question from the stipulated date for that purpose i.e. 1.3.2016 till such possession was actually offered i.e. 12.11.2019 with interest on the amount deposited by the Complainants @ 8% p.a. from the date of each respective deposit.

18.  The Opposite Party is directed to deliver possession of the Apartment to the Complainants within two months from the date of this order and also to execute the requisite Deed of Conveyance in their favour within this time.  The admissible delay compensation thus awarded shall also be paid within this period of two months after adjusting any maintenance charges borne by the Opposite Party. Such maintenance charges shall be adjustable from the 76^th day onwards after 12.11.2019 till the date of this order.  However, the same will be actually deductible only on verification by the Complainants of the actual maintenance related payments, if any, made by the Opposite Party specifically for the Complainants’ Apartment, and such verification shall be on the basis of actual documents in that regard to be produced by the Opposite Party.

19.    No order as to costs.

20.    Pending application(s), if any, also stand disposed off.