Delhi

StateCommission

CC/616/2017

GURVINDER SINGH & ANR. - Complainant(s)

Versus

M/S ANANT RAJ LTD. - Opp.Party(s)

SAIKRISHNA

19 Jun 2019

ORDER

 

IN THE STATE COMMISSION: DELHI

(Constituted under section 9 of the Consumer Protection Act, 1986)

 

 

Date of Hearing: 19.06.2019

                                                                                                              

                                                                   Date of decision: 05.07.2019

 

 

1. Complaint No. 610/17

         

IN THE MATTER OF:

 

Manisha Singh

A-55E, Palam Vihar,

Gurgaon, Haryana        

 

Chandan Kumar Verma

          A-55E, Palam Vihar,

Gurgaon, Haryana                                                          ….Complainant                       

VERSUS

 

M/s Anant Raj Ltd.,

H-65, Cannaught Circus

New Delhi-110001                                                       ….Opposite Party

 

 

2. Complaint No. 611/17

         

IN THE MATTER OF:

 

Dhanya Manoj

D-14/24, Ground Floor,

Adree City,

Sector-52, Gurgaon,

Haryana     

 

Manoj Kumar

          D-14/24, Ground Floor,

Adree City,

Sector-52, Gurgaon,

Haryana                                                                         ….Complainant                       

VERSUS

 

M/s Anant Raj Ltd.,

H-65, Cannaught Circus

New Delhi-110001                                                         ….Opposite Party

 

3. Complaint No. 612/17

         

IN THE MATTER OF:

 

Akshat Diwedi

29/3D,

Rail Vihar, Sector-56,

Gurgaon

 

Kanchan Diwedi

29/3D,

Rail Vihar, Sector-56,

Gurgaon                                                                        ….Complainant                       

VERSUS

 

M/s Anant Raj Ltd.,

H-65, Cannaught Circus

New Delhi-110001                                                         ….Opposite Party

 

 

4. Complaint No. 613/17

         

IN THE MATTER OF:

 

Deepika Bhatia

H.No-4144, 1^st Floor,

Sector-23A, Gurgaon

Haryana

 

Varun Gupta

H.No-4144, 1^st Floor,

Sector-23A, Gurgaon

Haryana                                                                          ….Complainant                       

VERSUS

 

M/s Anant Raj Ltd.,

H-65, Cannaught Circus

New Delhi-110001                                                         ….Opposite Party

 

 

5. Complaint No. 614/17

         

IN THE MATTER OF:

 

Jayant Kr. Bhardwaj

H.No. 586,

Village and P.O. Bijwasan,

New Delhi-110061                                                         ….Complainant                       

VERSUS

 

M/s Anant Raj Ltd.,

H-65, Cannaught Circus

New Delhi-110001                                                         ….Opposite Party

 

 

6. Complaint No. 615/17

         

IN THE MATTER OF:

 

Vaneet Bansal

Flat No. 73, HEWO Apartments

Sector-15, Part-2,

Gurgaon, Haryana        

 

 

Namita Bansal

Flat No. 73, HEWO Apartments

Sector-15, Part-2,

Gurgaon, Haryana                                                         ….Complainant                       

VERSUS

 

M/s Anant Raj Ltd.,

H-65, Cannaught Circus

New Delhi-110001                                                         ….Opposite Party

 

 

7. Complaint No. 616/17

         

IN THE MATTER OF:

 

Gurvinder Singh

H.No. 1515, Sector-7, Ext.

Gurgaon-122001

Haryana     

 

Sandeepa

H.No. 1515, Sector-7, Ext.

Gurgaon-122001

Haryana                                                                         ….Complainant                       

VERSUS

 

M/s Anant Raj Ltd.,

H-65, Cannaught Circus

New Delhi-110001                                                         ….Opposite Party

 

 

8. Complaint No. 617/17

         

IN THE MATTER OF:

 

Surender Kumar Batra

H. No. 211, 2^nd Floor,

Sector-5, Gurgaon

Haryana-122001

 

 

Sagar Batra

H. No. 211, 2^nd Floor,

Sector-5, Gurgaon

Haryana-122001                                                            ….Complainant                       

VERSUS

 

M/s Anant Raj Ltd.,

H-65, Cannaught Circus

New Delhi-110001                                                         ….Opposite Party

 

 

9. Complaint No. 618/17

         

IN THE MATTER OF:

 

Abhinash Rana

1458-A, Maruti Vihar,

Sector-28, Gurgaon

Haryana                                                                         ….Complainant                       

VERSUS

 

M/s Anant Raj Ltd.,

H-65, Cannaught Circus

New Delhi-110001                                                         ….Opposite Party

 

 

10. Complaint No. 619/17

         

IN THE MATTER OF:

 

Bobby Thomas

Flat No. 330, Sector-E, Pocket-2

Vasant Kunj,

New Delhi-110070                                                                  

 

Elizabeth Chako

Flat No. 330, Sector-E, Pocket-2

Vasant Kunj,

New Delhi-110070                                                         ….Complainant                       

VERSUS

 

M/s Anant Raj Ltd.,

H-65, Cannaught Circus

New Delhi-110001                                                         ….Opposite Party

 

 

11. Complaint No. 620/17

         

IN THE MATTER OF:

 

Hitender Mahajan

H. No. 24/13, Khasra No. 112,

Rajpur Extension Colony

New Delhi-110068                                                         ….Complainant                       

VERSUS

 

M/s Anant Raj Ltd.,

H-65, Cannaught Circus

New Delhi-110001                                                         ….Opposite Party

 

 

12. Complaint No. 621/17

         

IN THE MATTER OF:

 

Rahul Gupta

115/6, Dewan Colony,

Karnal, Haryana                                                             ….Complainant                       

VERSUS

 

M/s Anant Raj Ltd.,

H-65, Cannaught Circus

New Delhi-110001                                                         ….Opposite Party

 

 

13. Complaint No. 622/17

         

IN THE MATTER OF:

 

Anurag Shrotriya

Flat no. 1001, Tower-9,

Takshila Heights, Sector-37

Gurgaon-122001 

 

Suniti Agarwal

Flat no. 1001, Tower-9,

Takshila Heights, Sector-37

Gurgaon-122001                                                            ….Complainant                       

VERSUS

 

M/s Anant Raj Ltd.,

H-65, Cannaught Circus

New Delhi-110001                                                         ….Opposite Party

 

 

 

14. Complaint No. 623/17

         

IN THE MATTER OF:

 

Amit Agarwal

Flat no. 403,

New Sathi Apartment,

Sector-54,

Gurgaon-122002 

 

Monica Sighania

Flat no. 403,

New Sathi Apartment,

Sector-54,

Gurgaon-122002                                                            ….Complainant                       

VERSUS

 

M/s Anant Raj Ltd.,

H-65, Cannaught Circus

New Delhi-110001                                                         ….Opposite Party

 

 

 

15. Complaint No. 624/17

         

IN THE MATTER OF:

 

Lalit Narayan

GF-53, Vardaan Apartments

Abhay Khand 3,

Indirapuram, Ghaziabad

Uttar Pradesh-210104             

 

Nidhi Goel

GF-53, Vardaan Apartments

Abhay Khand 3,

Indirapuram, Ghaziabad

Uttar Pradesh-210104                                                   ….Complainant                       

VERSUS

 

M/s Anant Raj Ltd.,

H-65, Cannaught Circus

New Delhi-110001                                                         ….Opposite Party

 

 

16. Complaint No. 625/17

         

IN THE MATTER OF:

 

Vinay Mukhija

Flat No. 415, C&D Block,

Kanisha Apartments

Shalimar Bagh

Delhi                                                                               ….Complainant                       

VERSUS

 

M/s Anant Raj Ltd.,

H-65, Cannaught Circus

New Delhi-110001                                                         ….Opposite Party

 

 

 

17. Complaint No. 626/17

         

IN THE MATTER OF:

 

Nitin Gupta

H. No. 238, Sector-2,

Opposite BSNL Exchange

Channi Himmat,

J & K- 180015                                                                ….Complainant                       

VERSUS

 

M/s Anant Raj Ltd.,

H-65, Cannaught Circus

New Delhi-110001                                                         ….Opposite Party

 

 

HON’BLE  SH. ANIL SRIVASTAVA, MEMBER                            

                                 

 1.   Whether reporters of local newspaper be allowed to see the judgment?            Yes     

 2.   To be referred to the reporter or not?                                                                   Yes

Present:       Sh. Sahil Seth with Ms. Nikita Sharma, Counsel for the Complainants

                   Sh. Rohit Aggarwal with Sh. Mitashcharan and Sh. Varun Pratap Singh, Counsel for the OPs.

                  

ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.           These seventeen complaints involving same facts and the law points have been filed before this Commission under Section 17 of the Consumer Protection Act 1986, the Act, against M/s Anant Raj Ltd., hereinafter referred to as OPs, alleging deficiency of service on the part of the OPs, and these have been accordingly clubbed together and are being disposed of by one common order. Facts of C-610/17 are detailed hereinafter as the lead case. Disposal of C-610/17 would dispose of remaining sixteen complaints.
2.           The complaint (C-610/17) has been filed by Ms. Manisha Singh and Anr resident of Gurgaon, Haryana alleging unfair trade practice on the part of the OPs owing to the delay done by them in handing over the possession of the flat booked by them within the agreed period despite they having made the payment and praying for the relief as under:-

 

1. Direct the respondent to handover physical possession of apartment, to the complainants, complete in all respects and in conformity with the agreement and for the considerations mentioned therein (without any additional demand on account of increase in super area or otherwise), with all additional facilities and as per quality standards promised, and execute all the necessary and required documents in respect of the said apartment in favour of the complainants;
2. Direct the respondent to pay compensation in the form of interest to the complainants, at the rate of 12% per annum with effect from 36 months from the date of the agreement till the date possession is delivered to the complainants in terms of clause (i) above interest amount-Rs. 5,93,740/-
3. Declare that clauses 12.3 and 12.6 of the agreement are ‘unfair’ and the respondent will be entitled to collect maintenance charges on monthly basis and only until formation of the association of apartment owners;
4. Direct the respondent to provide car parking space to the complainants refund the excess amount collected from the complainants towards car parking slot(s), with interest at the rate of 12% per annum.
5. Direct the respondent to make adequate arrangements to mitigate the inconvenience caused on account of the ‘Revenue Rasta’ and pay compensation amounting to 20% of the total consideration of the apartment for loss of value of the apartments caused due to its presence;
6. Direct the respondent to pay a sum of Rs. 50,000/- to the complainants, towards costs.
7. Pass any other and further relief which the Hon’ble Court thinks fit and proper in the facts and circumstances of the case in favour of the plantiff and against the defendants.

 

3.           Facts of the case necessary for the adjudication of the complaint(s) are these.
4.           The complainants, consumers within the meaning of Section 2(1)(d) of the Act, had booked an apartment for self use, paying the booking amount in a Group Housing Colony “MACEO” situated at Sector-91, village Mewka, Gurgaon, Haryana and in response thereto they were initially allotted flat number 1404 in Tower K which allotment by virtue of a letter dated 28.02.2013 came to be changed to flat number 303 in tower M for which no consent was obtained from them though essentially required. Total sale consideration for the purpose was Rs. 46,13,045/-. On receipt of the booking amount an allotment letter was issued. Apartment Buyer Agreement executed between the complainants and OPs on 08.05.2013 at New Delhi followed thereafter. Clause 7 of the agreement on the subject of schedule for possession and holding charges, vital for the adjudication of the complaint is indicated as under:-

 

The developer based on its present plans and estimates and subject to all just expectations, proposes to complete construction/development of the said project and handover the possession of the said apartment to the Allottee(s) within a period of 36 months from the date of execution of this agreement unless there shsall be any delay or failure due to force majeure. The Allottee(s) understand and agrees that the developer shall be entitled to a grace period of 180 days after the expiry of the aforesaid 36 months. The developer after completing the construction shall apply and obtain the Occupation Certificate in respect of the residential apartment(s) from the concerned authorities. However, in case any condition arises that is beyond the control of the company including but not limited to force majeure condition, the remaining period available shall commence after the expiry such condition.

The developer upon completion of construction of the said apartment and after obtaining occupation/completion certificate and use from the competent authority shall offer in writing, to the allottee to take over possession of the said agreement in terms of this agreement within 60 days from the date of issue of such other and the developer shall handover possession of the said apartment to the allottee, provided that the allottee is not in default in making payment of any amount/charges, etc. under any of the provisions of this agreement andhas complied with all provisions formalities, documentation etc, as may be prescribed by the Developer in this regard. The allottee shall be entitled to the possession of the said apartment only after the entire amount due and/or payable by the allottee under the agreement has been paid to the developer.

The allottee before taking possession of the said apartment shall completely satisfy himself regarding the construction, facilities and amenities in respect thereof and hereby agree not to raise any dispute on such account thereafter either individually and or by joining as member(s) in the society and or otherwise, in any capacity. The allottee(s) after taking possession of the said apartment, shall make no claim against the developer in respect of any item of work in the said apartment, which may be said not to have been carried out or for non compliance or any designs, specification, building material or any other reason whatsoever.

The allottee shall take possession of the said apartment after making full payment and he shall get the all the documents executed. Any delay by the allottee(s) to take possession would require the allottee to pay holding charges amounting to a sum of Rs. 10/- per sq. ft. per month of the super area of the said apartment for any delay of full month or any part thereof in taking possession of the said apartment for the entire period of delay. The allottee shall be entitled to the possession of the said apartment only after the entire amount due and or payable and the holding damages by the allottee under this agreement has been paid to the developer. Further the allottee agrees that in event of the allottee failure to take possession of the said agreement within the time stipulated by the company, the allottee(s) shall have no right or claim in respect of any item of work of the said apartment which the allottee(s) may allege not to have been carried out or completed in respect of design specifications, building materials or any other reason whatsoever and the allottee(s) shall be deemed to have been fully satisfied in all respect concerning constructions and all other work relating to the said apartment/said project.

If the allottee fails to take over possession of the said apartment within the time as specified in the offer of possession, then the developer shall have the option to cancel the allotment of the said apartment and this agreement shall stand terminated.

The allottee(s) agrees, if as a result of any legislation, order or rule or regulation made or issued by the Govt. or any other authority or if any competent authority refuses, delays, withholds, denies the grant of necessary approvals for constructions or if any matters, issues relating to such approvals, permissions, notice, notifications by the Competent Authority become subject matter of any litigation or due to any force majeure conditions or due to any circumstances beyond the control of the developer or its officials, then the developer as a result the control of the developer so warrants, the developer may suspend the project for such period as it may consider expedient or may cancel the allotment in which case the developer in its sole discretion refund the monies and then it shall be liable only to refund the amount received from the allottee(s) without any interest or compensation of any nature whatsoever.

In case the developer is unable to give possession within the period as mentioned above or such extended period as permitted under this Agreement, due to reasons other than those mentioned in this agreement the developer agrees to pay only to the allottee and not to anyone else, subject to the allottee, not being in default under any terms of this agreement compensation @ 10 per sq. ft. of the super area of the said apartment per month for the period of such delay. The adjustment of such compensation shall be done only at the time of execution of the conveyance deed of the said apartment to the allottee and not earlier.

The developer hereby covenants with the allottee that in case, due to any unforeseen event, the developer is not in a position to hand over the possession at all, the allottee(s) shall be entitled to the refund of amount received by the Developer together with an interest at an agreed rate of 9% per annum for the period the developer holds the amount received from the allottee(s).

 

5.           The complainants have alleged that the OPs having failed to hand over the physical possession of the apartment no: 303 in Tower M allotted to the complainants within the time as agreed to including the extended grace period of 180 days i.e. 08.10.2013 despite the fact that 80% of the payment has been made are guilty of unfair trade practice particularly when no tangible grounds have been advanced by the OPs for the delay done. The next allegation of the complainant is that the money received by the OPs for the purpose of construction of apartment was diverted in some other project leading to unfair trade practice. Third allegation is that the OPs have enhanced the super area of the apartment without seeking due consent causing avoidable financial hardship to them. Sale consideration of the flat is based on the super area of the flat. As per the agreement total price in respect of the said apartment means its pro rata share of the common areas in the entire building and pro rata share of other common areas outside building, as may be applicable, earmarked for all allottees of the said project including other facilities. In other words, “Super Area” is understood as the internal area of the apartment together with the common areas in the project. It is submitted that the respondent company is now claiming that the super area of the apartments has increased from 1285 sq. ft. to 1405 sq. ft. for a 2BHK Type A, as a consequence of which additional financial burden on the complainants.  This act on their part is contrary to the provisions of the Haryana Apartment Ownership Act 1983. Fourthly the allegation of the complainant is that the act of the OPs charging from them an extra amount towards reserved car parking is contra jus the clause 15.2 of the agreement which says that the apartment and car parking space shall be deemed to form a single unit for all intents and purpose. Infact Section 3(j) of the Haryana Apartment ownership Act 1983 posits that definition of common areas and facilities specifically includes “parking area”. Fifth the allegation of the complainant is that the presence of Revenue Rasta obstructs the hassle free and comfortable living, defeating the very purpose of booking an apartment in the OPs project. Sixth, the demand for the maintenance charges before handing over the possession of the apartment is improper and contrary to the Haryana Development and Regulation of Urban Areas Act 1975 and Haryana Development and Regulation of Urban Areas Rules 1976. Rule II posits that the builder after development of roads, drainage, sewage, water supply and electricity inside the colony has to maintain it only for a period of four years or till the association of plot owners takes the responsibility and release the builder of the maintenance responsibility. As long as association of the the apartment owners of the project, does not take charge of services of the project, Anant Raj is bound to provide essential services to the project in terms of maintenance agreement, but once an association of apartment owners takes over the responsibilities of the project, it will have the liberty to engage new service provider and to enter into fresh contracts in pursuance thereto. Finally the terms of agreement are arbitrary.
6.           In these circumstances the complainants have prayed for early handing over possession of the apartment and secondly relying on the judgment of the Hon’ble NCDRC in the matter of Satish Kumar Pandey and Anr. Versus M/s Unitech Ltd. in CC-427/14 for compensation for the delayed period.
7.           OPs were noticed and in response thereto they have filed their reply resisting the complaint both on technical ground and on merit. OPs have stated that no cause of action as against them subsists. Secondly, the complainants having agreed to their proposal that the handing over of the possession of the apartment would commence by October 2017, are estopped from raising the point of delay. According to the OPs the complaint so filed in pre-mature. Thirdly, as agreed to, the dispute between them is to be deliberated upon by Arbitrator. Fourthly, the complainant’s being investors are not consumers within the meaning of Section 2(1)(d) of the Consumer Protection Act 1986. Fifth, as regards the change of the apartment, the OPs have made the averment that the allotment made initially on 08.09.2011 in favour of the complainants was on provisional basis which was subjected to alteration. Sixth, the OPs have denied that the terms of agreement are arbitrary. Seventh, the OPs have averred that due to unforeseen circumstances like shortage of water the progress of the project was hampered. Orders passed by the National Green Tribunal from time to time also accounted for the delay in the projects, the factors beyond their control. On merits the OPs have denied the averments made by the complainant.
8.           The complainants have thereafter filed rejoinder rebutting the contentions raised by the OPs in their reply and reiterating their averments contained in the complaint. Evidence by way of affidavit have also been filed in support of the pleadings. Written submissions are also on record. This matter was listed before this Commission for final hearing with the consent of the parties during vacation on 19.06.2019 when the counsel for both sides appeared and advanced their arguments, the complainants for the delivery of the possession of the flat at an early date and for compensation for the delayed period and the OPs, for the dismissal of the complaint(s), as according to them no ease having been made out since the delay done was due to force majure on which they had no control and secondly, the complainants having impliedly and implicitly agreed for the possession of the apartment at a later date, the delay done cannot be coupled with impunity.
9.           So far, so good.
10.  Point for adjudication in the bunch of cases is whether there was delay in handing over the possession of the apartment and, if so, whether, having regard to the agreement arrived at between the parties, the OPs are under an obligation to compensate to the complainants and the extent thereof.
11. On perusal of the records and based on the arguments advanced, it is clear that there has been delay in handing over the physical possession of the apartment within the time as agreed to as neither the project is complete nor occupancy certificate or completion certificate has been obtained from the local authorities, leading to an inescapable and inevitable conclusion that on the face of it the OPs have been deficient in rendering service to the complainants as contemplated under Section 2(1)(g) of the Act and they are guilty of unfair trade practice in terms of Section 2(1)(r). But before finally adjudicating on the subject, I may deal with the averments made by the OPs in their reply.
12. Their first argument that there exists no cause of action against them have no legs to stand since the complainants are aggrieved by the OPs owing to their falling short in the matter of handing over possession of the apartment giving rise to the cause of action. Cause of action as per the ruling of the Hon’ble NCDRC in the matter of Santa Banta Com. Ltd. versus Parsche Cars as reported in I [2014] CPJ 516 (NC) gives occasion for and forms the foundation of suit.
13. The argument of the OPs that the complainants having been informed of the delay done in the matter of delivery of the apartment by way of a letter and the complainants raising no objection on their subsequent correspondence cannot be accepted as it is the agreement and the terms thereof between the parties binding on them and not the content of the correspondence exchanged subsequent to the agreement. Accordingly this argument fails.
14. The argument of the OPs that the dispute between them has to be referred to the Arbitrator, keeping in view the agreement, is overruled relying on the judgment of the Hon’ble NCDRC in the matter of Aftab Singh and ors versus Emaar MGF Land Limited and Anr. as reported in III [2017] CPJ 270 (NC) holding as under:-

 

“Consequently, we unhesitatingly reject the argument on behalf of the builder and hold that an Arbitration Clause in the aforestated kind of agreements between the complainants and the builder cannot circumscribe the jurisdiction of a consumer forum, notwithstanding the amendments made to Section 8 of the Arbitration Act”

 

15. The next argument of the OPs to the effect that the complainants having transacted in the matter as investor, are not consumer within the meaning of Section 2(1)(d) of the Act is outrightly rejected since no cogent and tangible evidence has been led to this effect. The Hon’ble NCDRC in the matter of Kavita Ahuja vs. Shipra Estate as reported in I [2016] CPJ 31 have laid down the principle that the onus of establishing that the complainant was dealing in real estate is on the Developer which in the instant case they failed to discharge or failed to file any documentary evidence to prove their case that the complainants are investors and not consumers. On the contrary the complainants have made an averment that they have transacted in the matter for purchase of an apartment for self use. Therefore I am of the considered view that the complainants are consumer within the meaning of Section 2(1)(d) of the Act. I am not at all impressed with the argument of the OP that the progress in the project delayed on account of unforeseen circumstances like shortage of water and a few other factors. This cannot by any stretch of imagination be a condition or circumstances leading to the delay in completion of the construction in the project. The law in relation to force majeure has been explained by the Hon’ble Supreme Court in M/s Dhanrajamal Gobindram versus M/s Shamji Kalidas and Co-AIR 1961 SC 1285., referring to Lebeaupin versus Crispin (1920) 2 K.B.714, M. Hidayatullah J (as his Lordhip then was ) speaking for a three Judge Bench, observed that where reference is made to ‘force majeure’ the intention is to save the performing party from the consequences of anything over which, he has no control. It belies my conviction that a developer having entered into agreement, having organised a gigantic project, having received the bulk amount from the persons having applied for the apartment like the complainants, failed to anticipate the problem and to organise the project having all the options available in the event of any difficulty and accordingly I have no hesitation in rejecting the defence. Besides no tangible evidence has been led to this effect.
16. The complainants have raised the point during argument that the demand of the OPs towards maintenance charges, relying on clause 12.3 of the agreement amounts to unfair trade practice. The said clause of the agreement posits as under:

 

12.3 This agreement is contingent upon the maintenance agreement been signed/initiated by the allottee in token of acceptance of the terms thereof. In the event the allottee fails or refuses to sign the maintenance agreement before at the time of offer of possession of the said apartment to the allottee, his/her/its allotment shall be liable to be cancelled forthwith and the company shall refund the principal amount paid by the allottee towards the sale price, without interest within 90 days of cancellation of the allotment.

 

17. Arguments of the complainants is that as per the Haryana Ownership Act, 1983 and the Haryana Apartment Ownership Rules, 1987, the complainants are obliged to pay “Common expenses” including expenses of administration, maintenance, repair or replacement of the common areas and facilities, as lawfully assessed by the association of apartment owners and not as per the demands raised by the developer, i.e. Anant Raj. The allegation of the complainants is that the aforesaid agreement clause being contrary to the legal position, tantamount to unfair trade practice. The ld. Counsel for the respondents on the other hand argued that the amount sought for under this head is as per the agreement with which both of them are bound. However relying on the judgment of the Hon’ble NCDRC in the matter of Kamal Kishore versus Supertech as reported in II [2017] CPJ 483 (NC) holding as under:-

 

“Maintenance charges would be payable only after the date when occupancy certificate is obtained. Therefore the maintenance charges, in my opinion, would be payable from the date on which the possession is offered to the complainant after obtaining the occupancy certificate provided the construction of the villa is complete in all respect at that time”,

 

I am of the view that the contention of the complainant appears to be correct and accordingly the demand of the OP in this behalf since not proper is not in order.

18. The complainant has further alleged that the act of the OPs, enhancing the super area of the apartment without seeking their consent is in violation of the provisions of Section 6 of the Haryana Apartment Ownership Act 1983. The said provision of the Act posits as under:

 

1. Each apartment owner shall be entitled to an undivided interest in the common areas and facilities in the percentage expressed in the declaration. Such percentage shall be computed by taking as a basis the value of the apartments in relation to the value of the property; and such percentage shall reflect the limited common areas and facilities.
2. The percentage of the undivided interest of each apartment owner in the common areas and facilities as expressed in the declaration shall have a permanent character and shall not be altered without the consent of all of the apartment owners and expressed in an amended declaration duly executed and registered as provided in this Act. The percentage of the undivided interest in the common areas and facilities shall not be separated from the apartment to which it appertains and shall be deemed to be conveyed or encumbered with the apartment even though such interest is not expressly mentioned in the conveyance or other instrument.

 

19. The sale price/consideration of the apartments in the project is calculated, charged and paid on the basis of the “Super Area”, which is understood as the internal area of the apartment together with the proportionate share in common areas of the project. Although the internal area of apartments has not changed even by an inch,  but, the respondent is claiming that the super area of the apartment has increased from 1285 sq. ft. to 1404 sq. ft. as a consequence of which additional financial burden on the complainants. The calculation of super area is to be done by the respondent based on the details of all common areas and facilities as per the approved layout plan or building plan. The respondents has violated the provisions of the Haryana apartment Ownership Act, 1983 as no consent of the complainants were taken. In fact, the respondent has not offered any calculation/proof to justify the increase in the super area. The argument of ld. Counsel for the OP in this behalf is that as per agreement no consent is required if the enhancement of the super area is less than 10%. In the given case the enhancement is less than 10%. It has been stressed that even if stipulations to vary the super area are provided in the terms and conditions handed over to the buyers, the same being contrary to statutory provisions are void and cannot be binding on the complainants. This view is fortified by the judgment of Hon’ble NCDRC in the matter of G.G. Associates and Ors versus Commodore Ravindra Kumar Narad and Anr. (RP-1647/2014), which judgment has been upheld by the Hon’ble Supreme Court of India. However the agreement between the parties cannot be overtaken by the provisions of the Act. If that be the case the demand raised by the OPs in this behalf is not proper, as no consent was obtained. With consent on record, the additional demand could have been justified, which is not the case.  
20. Further the complainant relying on the judgment of the Hon’ble Apex Court in the matter of Nhakhand Laloochand Pvt. Ltd. versus Panchali Cooperative Housing Society Ltd. (Civil Appeal No. 2544/2010) and on another judgment of the Hon’ble NCDRC in the matter of Developers Township Property Owners Welfare Society versus Jaiprakash Associates (Consumer Complaint case number 1479/2015) has objected to the demand of the OP regarding space for car parking. The developer at best can charge for the space for car parking only as part of common areas and facilities. The ld. Counsel for the OP argued that their demand in this behalf is in conformity with the terms of the agreement but once terms of the agreement are contrary to the law laid by the Hon’ble Supreme Court of India, the reliance on the agreement would be misplaced  in which event the plea of the complainant has to be accepted.
21. The next allegation of the complainant is that the OPs had concealed from them the fact that the project land is divided into four parts by a “Revenue Rasta” which divides 2BHK, 3BHK and 4BHK apartments from the common facilities adjoining them. This would make the living in the apartment very unhealthy as hassle free and comfortable living is not possible. The complainants stating that remedial measure to this effect since not possible, have sought for the adequate and suitable compensation. OPs in their reply or the ld. Counsel appearing for them made no material submission to this effect.
22. Finally the complainant has made two folded allegation against the OPs, namely,

 

1. Terms of agreement unfair and one sided, and, secondly,
2. Variation from the original plan.

 

Both the allegations have been disputed and denied by the OPs.

23. I have heard the arguments of both sides and read and re read the records of the case.
24. In brief the case of the complainants is that they have not got the possession of the apartment despite the payment having been made and the agreed period of time having elapsed. At this stage I may refer to the proceedings recorded by this commission on 12.04.2019:-

 

“On 18.03.2019 following orders were passed:

 

“No.   C-610/2017, C-611/2017, C-612/2017, C-613/2017,C-614/2017,
C-615/2017, C-616/2017, C-617/2017, C-618/2017, C-619/2017, C-620/2017, C-621/2017, C-622/2017, C-623/2017, C-624/2017, C-625/2017, C-626/2017,

Present	:	Counsel for the complainants Sh. Sahil Seth, Advocate and Ms. Nikita Sharma, Advocate
		Counsel for the OP Sh. Anjan Chakaroborty and Mitashcharan, Advocate with Anil Mahendra, VP of the OP Company

 

          In terms of the order dated 28.02.2019 VP of the OP company Sh. Anil Mahendra appeared. At the very outset he makes a statement that in 14 out of 17 cases, they will handover the possession of the flat in the living condition after receipt of the occupancy certificate from the concerned authority on or before 10.04.2019 without enforcing any additional demand and the complainants would take the possession without prejudice to their rights to complainants to claim compensation for the delayed period which would be decided on the next date. 

 

          As regards remaining 03 cases namely Sh. Surender Kumar Batra & Anr. in CC No. 617/2017, Sh. Bobby Thomas & Anr. in  CC No. 619/2017 and Sh. Hitender Mahajan in CC No. 620/2017, the Ld. Counsel for the complainants Sh. Sahil Seth will speak to VP of the OP Company Sh. Anil Mahendra after 4 days within which time Sh. Anil Mahendrawould check up inventory of the available flats in his project and confirm to the Ld. Counsel for the complainant.  The Ld. Counsel for the complaint would respond to it without 04 days thereafter.

 

          As regards compensation and other ancillary issues the Ld. Counsel for the complainant prays interest  @ 8% per annum.  Both the Counsel would sit together on 02.04.2019 and try to reach to a mutual settlement and report to this Commission on the next date.”

 

          Today the Ld. Counsel for the OP states that they could not get the Occupancy Certificate (OC) for the flats as Mr. Pandu Ram Director Officer responsible for issuance of OC is not available owing that he having been deployed for election duty.  This argument does not attract me at all as there is always a link officer.  The Ld. Counsel for the complainant states that he has no difficulty waiting a little more provided the counsel for the OP undertakes that the possession would be handed over after completion of the formalities. 

          The Ld. Counsel for the complainant insists that before possession is handed over the matter of compensation for the delayed period and other two subjects as per prayer be adjudicated. 

          At this stage Counsel for the OP states that he would seek instructions from his client within two weeks.  He very fairly agreed to take up the matter with the department   and try to persuade them to pay the compensation as is normally awarded by the Hon’ble National Consumer Disputes Redressal Commission or Hon’ble Supreme Court in the matter of the kind.  As consented by both the parties the matter to come up on 26.04.2019. 

          Last but not the least Mr. Bobby Thomas who was in the second category has now shifted to first category and states that he would be interested in possession of the premises on receipt of OC. 

 

25. It is apparent on perusal of the proceedings that the OPs have agreed to hand over the possession soonafter the receipt of the occupancy certificate without enforcing any additional demand. The ld. Counsel for the OP during the course of the final arguments on 19.06.2019 placed before this Commission occupancy certificate issued by the appropriate authority in respect of one Tower and made a statement that occupancy certificate in respect of other tower would be issued within a month, say on or before 31.07.2019. To put is differently physical possession of the apartment in respect of fifteen complainants seeking possession, can be handed over by 31.07.2019 since by then occupancy certificate would be issued, in which event grievances of those fifteen complainants, except to the extent of compensation and interest for the delayed period would stand redressed. The issue regarding compensation and interest is being dealt with hereinafter.
26. These are 17 complaints. 15 of the 17 complainants have sought for possession of the apartment booked by them as also compensation for the mental agony caused and interest for the delayed period at the rate at which the developer would demand in the event of delay in making the payment by the complainant and remaining two complainants, namely, Surendra Kumar Batra and Anr (C-617/2017) and Hitendra Mahajan (C-620/2017), the possession having not been handed over within the time agreed, have sought for the refund with interest and compensation.
27. I may in the first instance deal with the cases of the two complainants falling in the second category praying for refund with compensation and interest. The law as settled by the Hon’ble Apex Court or Hon’ble NCDRC is indicated and detailed hereinafter.
28. There appears to be no good ground delaying the completion of construction and offer of possession by the OPs. Reliance of the orders passed by the Hon’ble NCDRC in the matter of Emaar MGF Land Ltd. and ors versus Amit Puri as reported in II [2015] CPJ 568 NC would be appropriate while adjudicating these complaints. It has been laid down in that judgment that after the promised date of delivery it is the discretion of the complainant whether he/she wants to accept the offer of possession, if any, or seek refund of the amounts paid with reasonable interest. In the instant case, the complainants sought for refund of the principal amount with interest and compensation as construction with occupancy certificate was not complete on the date of filing of the complaint. Infact this is still not complete at least in respect of one tower. In these circumstances I am of the considered view that the complainants cannot be made to wait indefinitely for the delivery of possession and the act of the opposite party in relying on Force Majeure clause while retaining the amounts deposited by the complainants, is not only an act of deficiency of service but also of unfair trade practice, especially in light of the view and the fact that the Developer charges interest @24% p.a. for any delay in the payments made by the Flat purchasers, but at the same time, stipulates in Clause 10© of the Agreement that compensation would be paid at Rs.5/- per sq. ft.. of the super area per month for the period of delay, which approximately amounts to only 1.5% per annum. I feel that such terms in Clauses are extremely unfair and one-sided and fall within the definition of ‘unfair trade practice’ as defined under Section 2(r) of the Act. At this juncture, I find it a fit case to place reliance on the recent judgment of the Hon’ble Apex Court in Pioneer Urban Land and Infrastructure Ltd. Vs. Govindan Raghavan, II (2019) CPJ 34 (SC), wherein the Apex Court has observed as follows:

 

“6.7. A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the Agreement dated 08.05.2012 are ex-facie one-sided, unfair, and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder.

          7. In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyer’s Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent-Flat Purchaser. The Appellant-Builder could not seek to bind the Respondent with such one-sided contractual terms.”

For all the aforenoted reasons, this judgment squarely applies to the facts and circumstances of this case.

29. I find it a fit case to place reliance on the judgement of the Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, II (2019) CPJ 29 (SC), in which the Hon’ble Apex Court has observed as hereunder:

“…….. It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years is beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund.

In the circumstances, we are of the view that the orders passed by the SCDRC and by the NCDRC for refund of moneys were justified.”

 

30. In the instant case also the complainants cannot be made to wait indefinitely for possession of the unit, as the possession is not possible to be delivered even after lapse of substantial period from the date of Agreement. Therefore I am of the considered view that the complainants are entitled for refund of the principal amount with reasonable interest.
31. Having bestowed my consideration to the facts at hand, I am of the opinion that the complaint deserves to be accepted, the possession of the flat not having been delivered within the time as agreed to despite the payment having been made as per the demand of the OP.  In these circumstances I reach to an inevitable conclusion that there was gross deficiency, as defined in Section 2(1) (g). It is a trite law that where possession of the property is not delivered within the stipulated period the delay so caused is not only deficiency in rendering service, such deficiencies or omission tantamount to unfair trade practice as defined in the Act as well. For reference Lucknow Development Authority versus M.K. Gupta-(1994) 1 SCC 243.
32. Having arrived at the said conclusion, the point for consideration is as to how the Complainants are to be compensated for the monetary loss, mental and physical harassment they have suffered at the hands of OPs on account of non-delivery of the allotted flat.
33. The provisions of the Act enable a consumer to claim and empower the Commission/Forum to redress any injustice done to a consumer. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The word compensation is of very wide connotation.  It may constitute actual loss or expected loss and may extend the compensation for physical, mental or even emotional suffering, insult or injury or loss. Therefore, for the purpose of determining the amount of compensation, the Commission/Forum must determine the extent of sufferance by the consumer due to action or inaction on the part of the Opposite Party. In Ghaziabad Development Authority Vs. Balbir Singh - (2004) 5 SCC 65, while observing that the power and duty to award compensation does not mean that irrespective of facts of the case, compensation can be awarded in all matters on a uniform basis, the Hon'ble Supreme Court gave certain instances and indicated the factors, which could be kept in view while determining adequate compensation.  One of the illustrations given in the said decision was between the cases, where possession of a booked/allotted property was directed to be delivered and the cases where only monies paid as sale consideration, are directed to be refunded. The Hon'ble Court observed, in this behalf, that in cases where possession is directed to be delivered to the Complainant, the compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting.  But in cases where monies are being simply refunded, then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot. He is not only deprived of the flat/plot, he has been deprived of the benefit of escalation of the price of the flat/plot. Additionally, in my view, in such a situation, he also suffers substantial monetary loss on account of payment of interest on the loans raised; depreciation in the money value and escalation in the cost of construction etc.
34. Now,  I may address on the percentage of interest that has to be awarded to meet the ends of justice.
35. Though it is the case of the complainants that since for any default, the Developer charges interest @24% p.a. from the buyers, they be also awarded interest @ 24% as compensation but having regard to the fact that the Banks have lowered the interest rate and the Hon’ble Supreme Court has been awarding interest keeping in view the current market situation and the recent decline in the cost of borrowing and return on the investments made with the Banks, I am of the considered view that the ends of justice would be met if direction is issued to the OPs to refund to the two complainants namely, Surendra Kumar Batra and Anr (C-617/2017) and Hitendra Mahajan (C-620/2017) the principal amount with simple interest at the rate of 12% from the date of receipt of the amount till its realisation and compensation of Rs. 50,000/- each for the mental agony caused. This would be in line with the orders passed by the Hon’ble NCDRC in the matter of Pratima Rajpal and anr. versus Parasvnath Developers Ltd. (CC-1328/2017) decided on 30.05.2019. The refund of the principal amount, compensation and interest be paid to the aforementioned two complainants within 75 days from the date of receipt of the certified copy of this order. Ordered accordingly.
36. Now coming to the fifteen complaints falling in the first category praying for delivery of the possession of the apartment booked by them as also interest for the delayed period and compensation for the mental agony caused, I note from the proceedings recorded on 12.04.2019 that the OPs have already agreed to hand over the physical possession of the apartment without enforcing the additional demand, on receipt of the occupancy certificate. The ld. Counsel for OPs while arguing the matter finally on 19.06.2019 has brought home to this Commission that occupancy certificate in respect of one tower has already been issued and placed on record of this Commission and in respect of other tower, the said certificate would be issued in a month time. Recording the statement, the OPs are directed to hand over the physical possession of the apartment to fifteen complainants without enforcing any additional demand on or before 31.07.2019.
37. This leaves deliberations on the subject of interest for the delayed period and compensation in respect of fifteen complaints. The law on the subject is very clear. OPs are under on obligation to pay to the complainant interest and compensation in the event of delay in handing over possession. The Hon’ble NCDRC relying on their earlier decisions in the matter of Swarn Talwar and ors vs. M/s Unitech was pleased to issue following directions in the similar circumstances in the matter of Parvinder Singh and ors versus M/s Unitech (CC-449/2013) decided on 12.02.2016 [MANU/CP/0028/2016]:-

 

1. The OP shall take necessary steps and deliver possession of the plot booked by the complainant to them within a period of six months from today.
2. The OP shall pay to the complainants compensation in the form of simple interest @12% p.a. for the period starting after 18 months from the date of agreement, i.e., from 13.11.2012, till the possession is delivered to the complainant. The compensation in the form of interest till 29.02.2016 shall be paid to the complainant by 31.03.2016. Thereafter, compensation in the form of interest in terms of this order shall be paid on monthly basis by 10^th day of each succeeding month.
3. If the OP fails to deliver the possession of the plot to the complainant within 6 months from today, they shall pay compensation in the form of interest @18% p.a., for each day’s delay beyond six months from today in delivery of the possession of the plot, to the complainant.
4. The OP shall also pay 10,000/- as cost of litigation.

 

38. The Hon’ble NCDRC in the matter of Manoj Verma and ors versus Jaipuria Infrastructure Developers Pvt. Ltd., Consumer Complaint No. 38/2007 decided on 30.08.2018 is pleased to hold as under:-

 

Considering all the facts and circumstances of the case, the OP is directed to pay compensation in the form of simple interest @ 8% p.a. to the complainants for the period the possession has been delayed i.e. from the date committed by the OP for the delivery of possession till the date of execution of the sale deeds, on the entire amount which they had deposited with the OP on or before the committed date of possession.

                                                                                                                                                                                                                                            

39. For the reasons stated herein above, the fifteen complaints bearing numbers C-610/17- Manisha Singh and Anr, C-611/17- Dhanya Manoj and Anr, C-612/17- Akshat Diwedi and Anr, C-613/17- Deepika Bhatia and Anr, C-614/17- Jayant Bhardwaj, C-615/17- Vaneet Bansal and Anr, C-616/17- Gurvinder Singh and Anr, C-618/17- Abhinash Rana, C-619/17- Bobby Thomas and Anr, C-621/17- Rahul Gupta, C-622/17- Anurag Shrotirya and Anr, C-623/17- Amit Agarwal and Anr, C-624/17- Lalit Narayan and Anr, C-625/17- Vinay Mukhija and C-626/17- Nitin Gupta,  falling in the category of those seeking possession are disposed of with the following directions:-

 

1. The OPs shall deliver possession of the apartments to the complainants on or before 31.07.2019 after receipt of the occupancy certificate from the concerned authorities.
2. The OPs shall pay to the complainants compensation for the delayed period simple interest at the rate of 12% per annum with effect from the date the complainants were to be delivered the possession of the apartment. This be paid to the complainants within 75 days from the date of receipt of certified copy of this order.

 

40. Finally directions contained in para 35 of this order in respect of two complaints numbers C-617/17- Surender Kr. Bhatia and Anr, and C-620/17- Hitendra Mahajan, refunding the principal amount with interest and compensation be also complied within the time indicated there failing which rate of interest shall stand raised to 14% from the date of completion of 75 days.
41. Ordered accordingly. This order disposes of 17 complaints. The Registrar of this Commission is requested to place certified copy of this order in all the seventeen files for records.
42. A copy of this order be forwarded to the parties to the case free of cost as statutorily required. Files be consigned to record.

 

 

(ANIL SRIVASTAVA)

                                                                                 Member