1. The present batch of Consumer Complaints (CCs) have been filed by the Complainants against Opposite Parties(OPs) as detailed above, inter alia praying for directions to the OPs to:-

1. To pay delay compensation.
2. Refund the excess amount charged on account of super area.
3. Pass an order on dilution of equity in land underneath the tower.
4. Compensation for deficiency in services.
5. Pay litigation fee.

2. Since the facts and question of law involved and the reliefs prayed for in these complaints are similar/identical and against the same Opposite Parties except for minor variations in the dates, events and flat numbers etc., which are summarized in the Table at Annexure-A, these complaints are being disposed off by this common order. However, for the sake of convenience, Consumer Complaint (CC) No. 1687 of 2017 is treated as the lead case and facts enumerated herein under are taken from CC/1687/2017.
3. Notice was issued to the OPs.  Parties filed Written Statement/Reply, Rejoinder, Evidence by way of an Affidavit and Written Arguments/Synopsis etc. as per details given in the Table at Annexure-A.  The details of the flats allotted to the Complainants/other relevant details, based on pleadings of the parties and other records of the case are also given in the Table-A.

4. It is averred/stated in the Complaint that:

(i) The complainant booked a flat on 21.01.2012 in the group housing colony known as AURA of the OPs in Sector 110 Gurgaon Haryana for a total consideration of Rs.1,26,35,988/- and was allotted a flat number J-1102. ABA was signed on 19th March 2012. Committed date of possession as per ABA was 32 months from the date of start of the construction of the tower in which the unit in question is located. The possession of the flat was given on 31.01.2017. On inspection of the flat, it was found that the apartment was not fit for habitation.

(ii) On 31.05.2017, the complainant received an email from the OP wherein it was stated that the rectification work has been completed and the complainant was requested to collect their keys from the OP.

(iii) As per detailed site layout plans of  ABA, tower J and K of AURA was to consist of 12 floors each, however the opposite party on 28^th May 2013 intimated the complainant about change of building plans of  H, I, J, K towers and unilaterally increased the number of floors from 12 to 18. The said intimation came after the opposite party had collected an amount of 60% of the total sale consideration.

(iv) The opposite party has increased the Super area from the original 2300 square feet to 2397 square feet.

(v) The opposite party paid delay compensation at the rate of ₹5 per square feet per month.

(vi) The flat delivered finally was not fit for habitation.

5. The OP-1 in their written statement/reply stated that:

1. The complainant admitted that he purchased the flat after due inspection of the documents and satisfied with layout plans of the project, sanctioned and approved by Director General, Town & Country Planning (DTCP).  This naturally includes the Apartment Buyer Agreement (ABA) and all terms therein.

2. Utilisation of left over FAR for building additional floors, etc. is allowed in terms of para 2 of Clause 6 even when RWA has been formed in a completed project as provided for in Clause 28 of the ABA. The OP applied for revision of building plan of towers H,I,J,K and community centre and Economically Weaker Section for utilising the left over FAR.  The OP got in-principle approval vide memo dated 6 May 2013.  The DTCP directed the OP to publish the proposed revision of building plans in leading newspapers and also send a letter regarding this to each allottee.  This was duly complied with by the OP and has been accepted by the complainant as well.  DTCP finally gave approval on 10.06.2014.

3. OP submits that the quantum of payment at the time of revision is legally not relevant.  There is no ‘legal threshold’ in terms of payment beyond which the OP cannot move to use the left-over FAR.  Clauses 6 and 28 of the ABA allow the OP to do this even when allottees have moved in and RWA has been formed for a completed project.

4. There is no evidence on record that there is any defect in the apartment. There is no deficiency on the part of the OP.

6. Heard counsels of both sides.  Contentions/pleas of the parties, based on their Complaint/Reply, Rejoinder, Evidence, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

7.  It was argued by the OP that the delay in delivery of possession does not have any connection with the construction of additional floors. The complainant has accepted the delay compensation at the rate of ₹5 per square feet per month and did not contest it at the time of acceptance. The rate of ₹5 per square feet per month for delay in handover, if the reasons for the delay are not covered by force majeure, is deemed entirely reasonable. OP gave a undertaking to the DTCP stating that there will be no change or reduction to the open or common areas and facilities. Clause 6 of the ABA authorises the construction of additional floors. As per clause 5 (iii) of the ABA carpet area is not specified and apartments are sold based on super area, there is no connection between the Super area and the carpet area, the increase is within the permissible range. The underlying land has only nominal value and its price is not separately quantified. The complainant did not seek to withdraw from the contract when the competent authority has permitted to use FAR or when the Super area was expanded.

8. The complainant on the other hand argued that the flat which was delivered after a delay of 25 months was not fit for habitation, which the complainant discovered during an inspection of the said flat on 1st February 2017. Again on an inspection on 9th May 2017, the complainant discovered that the flat was still not habitable. Relying on the judgement of the Hon’ble Supreme Court in Fakir Chand Gulati vs. Uppal Agencies Pvt. Ltd. and Anr. (2008)10 SCC 345, the complainant stated that sharing of floors was a consideration which cannot be termed at ‘joint venture’. The complainant argued that the OP was always aware of construction of 18 floors and failed to inform the buyers at the time of execution of the agreement. The additional floors are hazardous and technically not feasible thereby increasing the chances of structure collapsing, the additional floors have increased the load on the existing foundation which was originally planned for 12 floors and not 18 floors, the consequent result is that the areas and facilities originally earmarked for the apartment allottees were substantially compressed. The complainant never had an opportunity to back out of the said transaction, even though such changes to the layout plans were not agreeable to the complainant as on the termination of the agreement, the opposite party would be under no obligation to refund the consideration amount to the allottee till the time said apartment is resold to another allottee. The agreement is a standardised contract form offering the apartment to the complainant on take it or leave it basis thereby giving no opportunity to the complainant to negotiate terms that would benefit his interest. The time was made essence of the project only for the payment of the price and performance of all obligations on the part of the complainant whereas opposite party failed to make time as the essence for themselves to deliver the possession in time.

9. The OP(s) have failed to deliver the possession of the unit to the complainant within the committed date and therefore, the cause of action is continuing. The contention of the OP(s) that the parties are bound by the agreement is not acceptable.

10.  In the instant case, from the facts and circumstances of the case, the delay in completion of the project and consequent handing over of the unit appears to be due to increase in the floors from 12 as per the original plan to 18. No doubt approval of the competent authority for such increase of floors has been obtained but such increase was affected after the agreement between the parties have been signed. Obviously the increase in the floors from 12 to 18 will lead to increased pressure on the common facilities and amenities and hence the grievance of the complainants appear genuine. The payment of delay compensation at the rate of ₹5 per square feet per month by the OP(s)  is an admission of delay on their part. Hence, the complainant(s) in the present circumstances have a legitimate right to claim fair delay compensation/interest from the OP(s). The plea of OP(s) for entitlement of compensation to the complainant in accordance with provisions of the agreement is not valid.

11. For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, all the five Consumer Complaints viz. CC No. 1687, 1688, 1689, 1690 and 1691 of 2017 covered under this order are allowed/disposed off with the following directions/reliefs: -

(i)  The OP(s) shall pay delay compensation in the form of simple interest @ 6% per annum on the amount paid by the complainants from the committed date of possession (November 2014) till the date of offer of possession (29.09.2016).

(ii) The OP(s) shall pay a sum of Rs.50,000/- as cost of litigation   to the Complainants in each of the five cases covered under this order.  

                   (iii) The liability of the OP(s) shall be joint as well as several.

 (iv) The payment in terms of this order shall be paid within three

months from today.

12. The pending IAs, in any of the Consumer Complaints, if any, also stand disposed off.