Chandigarh

DF-I

CC/755/2013

Mr. Deepak Rai - Complainant(s)

Versus

M/s Ansal Lotus Melange Projects Pvt. Ltd. - Opp.Party(s)

24 Apr 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

========

 

                                     

Consumer Complaint No.	:	CC/755/2013
Date of Institution	:	10/12/2013
Date of Decision	:	24/04/2015

 

1.      Mr. Deepak Rai

2.      Mrs. Kestina Rai, both residents of H.No.2250, 1^st Floor, Sector 68, Mohali.

…..Complainants

V E R S U S

M/s Ansal Lotus Melange Projects Pvt. Ltd., SCO No.183-184, Sector 9-C, Madhya Marg, Chandigarh, through Ms. Nidhi Manchanda, Sr. Executive (Sales & Mktg.).

……Opposite Party

 

 

QUORUM:	P.L.AHUJA	PRESIDENT
	MRS.SURJEET KAUR	MEMBER

                                               

                                               

For complainants	:	Sh. Rajinder Singh Raj, Advocate
For OP	:	Sh. Vaibhav Narang, Advocate

PER P.L.AHUJA, PRESIDENT

1.         Mr. Deepak Rai and Mrs. Kestina Rai, complainants have filed this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against M/s Ansal Lotus Melange Projects Pvt. Ltd., Opposite Party (hereinafter called the OP), alleging that the OP advertised in various newspapers (Annexure C-1) about the construction of residential apartments in the proposed Palm Grove Luxury Apartments with assured possession within 24 months.  The complainants applied for an apartment in the proposed group housing and they were allotted Flat No.24 on the first floor, Sector 115, Mohali having a super built-up area of 1525 sq. ft. @ Rs.1950.82 per sq. ft. total amounting to Rs.29,75,000/- vide allotment letter dated 30.6.2009.

                According to the complainants, the OP failed to complete the construction in time despite various visits, letters and emails sent by them.  The OP finally handed over the possession to the complainants on 7.11.2012 and at the same time intimated the complainants that the area of the flat is 1678 sq. ft. A demand of Rs.2,98,475/- plus Rs.39,273/- as tax was made from the complainants for the alleged enhanced area of 153 sq. ft., which was paid by them in good faith.  In addition, the OP also illegally charged a sum of Rs.60,000/- as open car parking charges and Rs.25,000/- as interest free maintenance and security deposit. It has been pleaded that the OP is also not executing the sale deed in their favour. It has been contended by the complainants that the possession of the flat had been handed over to them without proper infrastructure; the area is without proper roads and without lifts; there is no sufficient parking place and that the quality of construction is sub-standard. Even the promised amenities like club, tennis court, badminton and basket ball grounds, swimming pool, jogging track etc. have not been provided.  It has been averred that the OP is also demanding maintenance charges @ Rs.2/- per sq. ft. in favour of M/s Star Facilities Management Ltd., a sister concern. The complainants served a legal notice dated 30.9.2013 upon the OP, but to no avail.  Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the OP, the complainants have filed the instant complaint. 

2.         In its written reply, the OP has taken a number of preliminary objections including that disputed questions of fact and law are involved in the present case which cannot be decided in summary proceedings; that the complainants have got no locus standi to file the present complaint. It has been averred that since all the payments have been made and the possession has been taken by the complainants, after duly satisfying themselves, as such they are estopped from filing the present complaint. It has been further averred that clause 10 of the allotment agreement contemplated that possession was likely to be completed within 24 months and no definite period was mentioned. It has been pleaded that the allotment agreement is the agreement entered between the parties and its terms and conditions are binding upon the parties. It has been submitted that the possession had been offered to the complainants on 21.8.2012 and there was a minor delay which can occur in construction.  It has been pleaded that as per clause 8 & 9 of the allotment letter, OP was entitled to charge the amount for the increased area and there is no illegality to that extent. Further, as per clause 8 and 9 of the allotment agreement, the complainants had given their unconditional consent to any variation and modification in the area. It has been pleaded that nothing was charged by the OP which was beyond the terms and conditions of the allotment agreement. Pleading that there is no deficiency in service or unfair trade practice on its part, OP has prayed for dismissal of the complaint.
3.         In their rejoinder, the complainants have controverted the stand of the OP and reiterated their own.  It has been contended that increase of a huge area of 153 sq. ft. is possible only if the drawings are changed.
4.         The parties led evidence in support of their contentions.
5.         During the pendency of the complaint, the complainants filed an application for appointment of a Local Commissioner for measurement of their flat. After hearing arguments of both the sides, that application was allowed vide order dated 4.6.2014.  Sh. Kamaldeep Singh, Architect filed a report on 29.9.2014 in accordance with which the super area of the apartment of the complainants was found to be 1587.291 sq. ft. (147.463 sq.m).
6.         The OP filed an objection petition wherein it was alleged that the inspection report by the Local Commissioner is not acceptable to it. It has been contended that Sh. Kamaldeep Singh did not visit the site on 24^th August and 28^th August for the purpose of taking measurements and in fact he has visited the site on 29^th August as per entry register.  It has been contended that the date informed to the OP was 24.8.2014, which was Sunday, and the architect of the company could not come due to unavoidable circumstances from Delhi. Sh. Kamaldeep Singh, Architect assured that he would intimate about his visit at the site.  The entry marked on register for dated 24.8.2014 and 28.8.2014 is Annexure O-1 (colly.).  It has been contended that it was decided between the company official and Sh. Kamaldeep Singh that he would visit on some other day with prior intimation to the company but as per his version, he again visited on 28.8.2014 to take the measurements without any prior intimation. It has been contended that the measurements produced on record by the architect are not based on true and factual surmises.   The measurements were never taken in the presence of the architect of the company or other responsible official of the company and the same are incorrect. It has been alleged that the area of the flat has been calculated without including the width of the walls, the sit outs/balconies on the ground floor and external services. The MB books provided with the reply have also not been referred.  According to the OP, there are following variations in the area measured by the Local Commissioner and as per the architect of the company :-

SUMMARY
Built Up area of the flat (Flat No.24 1st Floor	As per LC appointed by Court	As per Architect of the Company.
Area of the flat	111.286 Sq.m	113.041 Sq.m
Common Area of Balconies & Sunshades	14.34 Sq.m	15.392 Sq.m
Common area of lift well Proportionally added to Flat	0.354 Sq.m	0.354 Sq.m
Common area of staircase Lobby on Ground Floor Proportionally added to flat.	8.744 Sq.m	8.744 Sq.m
Common area of staircase Lobby at Terrace level Proportionally added to flat.	2.915 Sq.m	2.915 Sq.m
Common area of Machine Room Proportionally added to Flat.	3.326 Sq.m	3.326 Sq.m
Common Area of Pergola Proportionally added to flat	1.861 Sq.m	1.861 Sq.m
Common area of Elevation Features Proportionally added to flat	1.85 Sq.m	1.85 Sq.m
Common area of water tank Proportionally added to flat.	2.787 Sq.m	2.787 Sq.m
External services (U.G. Water Tank, Service Station, Pump Room, S.T.P. Exhaust and Fresh Air Shaft, Generator Fuel Shaft, Guard Room Meter Room, Driver Room]	Not calculated	4.850 Sq.m
SUPER AREA	147.463 Sq.m	155.12 Sq.m
	1587.291 Sq.m	1669.323 Sq.m

 

It is pertinent that in the above summary, the OP has wrongly mentioned the super area as per Local Commissioner as 1587.291 sq.m and as per architect of the company as 1669.323 sq.m whereas the same should have been sq. ft.

7.         The objection petition has been contested by the complainants. It has been stated that the OP was intimated that local commissioner will visit the site on 24.8.2014 but the architect of the OP was unable to be present.  It has been averred that the OP was in regular touch with the local commissioner but the OP intentionally and willfully did not remain present on the site.  The record produced by the OP is forged and fabricated. It has been averred that the local commissioner has included all the areas which could come within the definition of super built-up area as mentioned in the agreement.  All the areas including common areas and external services are included in the report. 
8.         We have appraised the entire evidence and written arguments of both sides. 
9.         The first question that arises for determination is whether the complainants are covered under the definition of ‘consumer’ as defined in Section 2(1)(d) of the Consumer Protection Act or not?  It has been urged by the OP in its written arguments that the complainants have not pleaded that they have purchased the flat for their residential purposes and they want to shift for their self consumption.  It has been contended that from the memo of parties it becomes clear that the complainants are residents of House No.476, Phase 9, Mohali and are not residing in the flat which they have purchased.  It has been urged that the complainants are investors for profit and they are not consumers as contemplated under the definition of the Consumer Protection Act and in fact the owning of a second house is for commercial purpose.
10.         We have carefully considered the above contentions but we are not impressed with the same. It is significant to note that there is no such specific objection in the written statement of the OP that the complainants are residing in a house in Mohali.  In fact, the complainants have indicated their address in the complaint as H.No.2250, 1^st Floor, Sector 68, Mohali.  The complainants have not mentioned in their complaint that they are owners of H.No.2250, 1^st Floor, Sector 68, Mohali. In the instant case, the complainants have purchased the apartment from the OP after payment of consideration and they hired the services of the OP for consideration. The OP has not produced any such evidence that the complainants are owners of the flat in Mohali and they had purchased the apartment from it for the purpose of investment and the returns thereof.  There is no positive evidence to prove that the complainants have not bought the flat in question for the purpose of their own living.  Hence, we feel that the complainants are very well covered under the definition of ‘consumer’ as defined under the Consumer Protection Act.
11.         The next contention of the OP is that the allotment letter is a legally enforceable agreement and in case of any dispute the same is to be decided by the Civil Court and not by the Consumer Forum. However, we feel that the above arguments are devoid of any substance. Even if the allotment letter is a legally enforceable agreement, the District Forum can still decide the disputes arising out of the contract as per the terms and conditions of the contract. The facts of the case do not require a detailed and complicated investigation of facts incapable of being undertaken in a summary and speedy manner. Thus, there is no need to relegate the complainants to Civil Court.
12.         It has been contended by the complainants that the OP is not executing sale deed because the land is still not transferred in its name. However, it is pertinent that the complainants have not produced even a single letter which could show that they ever made a request to the OP for execution of the sale deed but the same was refused/not considered by the OP. Further, it is significant to note that the complainants have not sought the relief for a direction to the OP to execute the sale deed. Otherwise also, since the cost of the flat is mentioned as Rs.29,75,000/- as per the allotment letter (Annexure C-2), this Forum has no jurisdiction to pass an order regarding the execution of the sale deed.
13.         The complainants have next contended that OP has made an illegal demand of Rs.60,000/- on account of car parking, which is in the common area of the society and the builder cannot sell the same. It has also been contended that the OP is not entitled to overcharge towards any area which was actually never increased or to charge any amount towards open/stilt car parking area. The complainants in this regard have referred to a judgment of the Hon’ble Supreme Court titled Nahalchand Laloochand Pvt. Ltd. Vs. Panchali Co-operative Housing Society Ltd.-Civil Appeal No.2544 of 2010 decided on 31.8.2010. However, we are not impressed with the above contention because as per case of the OP, the summary of dues attached with the allotment letter shows that an amount of Rs.60,000/- was to be paid by the complainants towards open car parking space. It is also stated that the said summary of dues is duly signed by the complainants. However, the complainants have failed to produce the copy of summary of dues attached with the allotment letter which draws an adverse inference against them.  The copy of payment plan Annexure R-1 clearly shows that an amount of Rs.60,000/- was to be paid towards car parking on completion of 1^st floor roof slab. The complainants cannot wriggle out of the amount mentioned in the allotment letter duly signed by them. The ruling Nahalchand Laloochand Pvt. Ltd. Vs. Panchali Co-operative Housing Society Ltd. (supra) cited by the complainants relates to Maharashtra Ownership Flats (Regulations of Promotion Construction Sale, Management & Transfer) Act, 1963 and the same is not applicable to the facts of the present case. Hence, at this stage it cannot be contended by the complainants that the OP is not entitled to the car parking charges of Rs.60,000/-.
14.         The next question, which falls for consideration, is, as to whether, the OP was right in recovering the maintenance charges @ Rs.2/- per sq. ft. and Rs.25,000/- towards interest free security deposit from the complainants? To appreciate this controversy, we consider it appropriate to refer to Clause 24 of the allotment letter, which is extracted hereunder:-

“24. THAT the Company shall look after the maintenance and upkeep of the Common areas and facilities until these are handed over to some body corporate or other agency nominated by the Company for maintenance, upkeep, repairs, security etc. of the building (s) including the landscaping and common areas. The Apartment Allottee agrees and consents to the said arrangement and he shall pay interest free security deposit to be worked at the time of handing over of possession on super area basis and maintenance charges determined by the company or its nominee from time to time depending upon the maintenance cost. In addition to maintenance charges, there will be contribution to the Replacement fund etc. Any delay in payments will make the Allottee liable for interest @18% per annum. Non payment of any of the charges within the time specified shall also disentitle the Apartment Allottee to the enjoyment of common services including lifts, electricity, water etc. The Allottee also undertakes to execute a separate agreement with the maintenance agency in the usual format which has been seen and approved by the Allottee.”

It is clear from the afore-extracted clause that the complainants agreed and consented to pay interest free security deposit to be worked at the time of handing over of possession on super area basis and maintenance charges determined by the OP from time to time depending upon the maintenance cost. Therefore, such charges were legally payable by the complainants and the payment thereof does not amount to any unfair trade practice.

15.         The next contention of the complainants is that the flat has been handed over to them without proper infrastructure. According to the complainant, the area is without proper roads and without lifts, there is no sufficient parking place, the quality of construction work is sub-standard, wooden flooring is decaying, there is water seepage on the walls and the promised amenities like club, tennis court, badminton and basketball grounds, swimming pool etc. have not been provided by the OP.  The allegations of the complainants have been denied by the OP.  It has been contended that there are proper roads, lifts and parking place and the quality of construction work is good.  It has been averred that the complainants before taking the actual physical possession had enough time to satisfy themselves regarding the quality, facilities and comfort in the project and after making payment without any protest or demur, their objections are meaningless. 
16.         We have given our thoughtful consideration to the above arguments. It is important to note that the complainants have not produced any documentary evidence to prove that the abovesaid facilities are not available/ operational. Pertinently, no request for appointing a Local Commissioner was made by the complainants specifically for making a report about the non-availability of the abovesaid facilities. So far as the contention of the complainants that they were not provided with all the facilities/amenities as provided in the brochure like the swimming pool, skate rink, central park (complete in all respect) and club house with all facilities is concerned, according to the OP, all these facilities are there and very much operational.  The OP has produced photographs at Annexure R-6 showing that all the facilities regarding which complaint has been made by the complainants are existing. Furthermore, gym, table tennis, snooker table and club are operational and functional. Consequently, we do not find any deficiency in service on the part of the OP on this count. 
17.         The complainants have next contended that the OP at its own has increased the super area of the flat from 1525 sq. ft. at the time of booking to 1678 sq. ft. at the time of offering possession. It has been contended that the consent of the complainants was not obtained for increasing the area and the complainants have been burdened with another sum of Rs.2,98,475/- and tax Rs.39,273/-. The complainants have urged that the OP be directed to refund the amount charged for increasing the area.
18.         We have given our anxious consideration to the above contentions of the complainants. As per allotment letter Annexure C-2 the total super area of the apartment was 1525 sq. ft. approximately. Clause 8 and 9 of the allotment letter also show that the plans, designs, specifications shown to the allottee were tentative. The said plans and specifications were accepted by the allottee with such additions, deletions, alterations, modifications in the lay out, building plans etc. or change of entire scheme by the company. Since each page of the allotment letter is signed by the complainants and there is no averment that the allotment letter was signed under any mis-representation, fraud, inducement or coercion, it would be deemed that the allotment letter was signed by the complainants with open eyes and after understanding the terms and conditions of the same. Otherwise also, the complainants cannot challenge the terms and conditions of the allotment letter admittedly signed on 30.6.2009 before this Forum in the year 2013 and even if the terms and conditions were to be challenged, the same could have been challenged in the civil court within the period of limitation. Since the complainants are bound by the terms and conditions of the allotment letter, there is no merit in this contention that the super area of the flat could not be increased from 1525 sq. ft.
19.         The next question that arises for determination is whether the super area of the apartment of the complainants has actually been increased from 1525 sq. ft. to 1678 sq. ft. or not? As already mentioned, Sh. Kamaldeep Singh, Architect was appointed as a Local Commissioner for giving a report about the measurement of flat of the complainants. A perusal of the report of Sh. Kamaldeep Singh, Architect reveals that the actual measurements were taken at site by him on 24^th & 28^th August, 2014 and the drawings and details were provided by the OP.  The OP was informed well in advance but no one from its side was present at the time of his visit to the site.  The copy of the sanctioned plan provided by the OP is unreadable.  The measurement report shows that the Local Commissioner measured area of flat, area of balconies and sunshades, common area of lift well, common area of stair case lobby on third floor, common area of staircase lobby at terrace level, common area of machine room, common area of pergola, common area of elevational features and common area of water tank, proportionally added to flat. He has come to the conclusion after all these measurements that super area of the flat in question is 147.463 sq.m/1587.291 sq.ft.
20.         The above said report of the Local Commissioner has been disputed by the OP on the ground that Sh. Kamaldeep Singh did not visit on 24^th and 28^th August as per the entry marked on register Annexure O-1 (colly.).  It has been urged that in fact Sh. Kamaldeep Singh visited the site on 29^th August.  He had informed the date to the OP as 24.8.2014 but since it was Sunday and the architect of the company could not come due to unavoidable circumstances from Delhi, Sh. Kamaldeep Singh assured that he would give prior intimation about his visit at the site. However, as per Sh. Kamaldeep Singh, he again visited the site on 28.8.2014 to take the measurements without any prior intimation to the OP.  It has also been urged on behalf of the OP that the measurements were not taken in front of the architect of the company or any other responsible official of the company.  It has also been averred that the entire saleable area has not been measured and the few areas have been missed advertently. It has also been argued that the area of the flat has been calculated without including the width of the walls and the sit outs/balconies on the ground floor and external services were ignored. Further, the MB books provided with the reply has not been referred. It has been urged that in view of the discrepancies in the report of Sh. Kamaldeep Singh, same is not a correct report and not acceptable. The correct report based on correct measurements alongwith lay out duly approved by the architect has been annexed as Annexure O-3 by OP.  It has been contended by the OP that the report of Sh. Kamaldeep Singh, Local Commissioner is liable to be rejected.
21.         We have given our thoughtful consideration to the above arguments of the OP but we regret our inability to accept the same. The circumstances on record show that the conduct of the OP after the filing of the application for the appointment of Local Commissioner by the complainants has not been above board. The application for appointment of Local Commissioner was opposed by the OP. Though the OP had every right to oppose the application for appointment of Local Commissioner, yet after the same was allowed on 4.6.2014, both the parties were given an opportunity to suggest the names of the persons for appointment as Local Commissioner but, the OP did not furnish any name either on 11.6.2014 or on 26.6.2014 or on 10.7.2014. Thus, we were left with no alternative but to appoint one of the persons suggested by the complainants as a Local Commissioner. Even after the order dated 10.7.2014 passed by this Forum appointing Sh. Kamaldeep Singh, Architect as Local Commissioner, no objection against his appointment was filed.  The OP did not file any application prior to the filing of objections on 4.12.2014 that the Local Commissioner was not accommodating it and he had visited the site on 29.8.2014 without prior intimation to the OP. To cap it all, the report of the Local Commissioner was filed on 29.9.2014, in the presence of the learned proxy counsel for the OP and the case was listed for filing of the objections on behalf of the parties on 21.10.2014. However, on that date, objections were not stated to be ready and the case was adjourned to 11.11.2014. On 11.11.2014, objections were not filed on the ground that the copy of the report of the Local Commissioner was not received. The case was again adjourned to 2.12.2014 for filing of the objections.  Again on 2.12.2014, the counsel for the OP made a request for adjournment for filing objections and the same were filed only at 2:01 p.m. on 4.12.2014. The OP has been delaying the process of report of the Local Commissioner and objections on one ground or the other knowing well the proceedings before this Forum are summary in nature.  There is no such application in writing moved to the Local Commissioner that the architect of the company could not reach the site on 24^th August being Sunday. Even if it is assumed that the architect of the company could not reach the site on 24^th August, none prevented the OP from sending any other responsible person in whose presence the measurements could be taken. The objections of the OP against the report of the Local Commissioner are supported only by a short affidavit of Mr. Deepak Makhija, authorised signatory. That affidavit is no affidavit in the eyes of law. The OP has not filed any affidavit of a responsible officer of the company to show that the Local Commissioner visited the site without prior intimation to him. Thus, we do not find any merit in this contention that no prior intimation of visit was given to the OP by Sh. Kamaldeep Singh, Architect.  We may mention that in consumer complaint No.220 of 2013 titled as Vikramjit Singh & Anr. Vs. Ansals Lotus Melange Projects Pvt. Limited & Anr., one Architect was appointed as Local Commissioner in similar circumstances and during that visit the representative of the OP joined the proceedings but still a report unfavourable to the OP was given by the architect appointed in that case. It appears that in this case no representative of the OP participated in the proceedings of the Local Commissioner deliberately knowing well that the super area of the flat is not 1678 sq. ft.  In fact, the OP wanted to create a ground for challenging the report of the Local Commissioner by not joining the proceedings being taken by the Local Commissioner.  The entries of the copy of register Annexure O-1 (Colly.) cannot be believed because the same were prepared by an employee of the OP who has not even filed his own affidavit. 
22.         As far as the contention of the OP that the measurements have not been taken properly and the area of the flat has been calculated without indicating the width of the walls, the sit outs/balconies on the ground floor etc. is concerned, it is significant that the report Annexure O-2 prepared by the architect of the OP alongwith lay out, copy of which is Annexure O-3, is not supported even by the affidavit of Mr. Anil Tyagi, Architect of the OP.  Consequently, no reliance can be placed on the report produced by the OP. We do not find any reason to disbelieve the measurement report and the lay out prepared by Sh. Kamaldeep Singh, Architect, Local Commissioner. The objections against the report of the Local Commissioner are also not verified. The copy of the measurement book or summary of areas Annexure R-3 is not signed or verified by any engineer of the OP.  The OP has also not produced the affidavit of any of its engineers about the authenticity of the super area calculated by it. The OP has also not produced the copies of the alleged occupation certificate and completion certificate of the unit issued by the competent authorities after due verification of the site measurement books, building plans etc.  We are of the opinion that the measurement report of Sh. Kamaldeep Singh, Architect, Local Commissioner is based on sound reasons and actual measurements and there is no reason to disbelieve that the super area of the apartment of the complainants was found to be 1587.291 sq. ft. instead of 1678.323 sq. ft. calculated by the architect of the OP.  In this view of the matter, the demand of the OP of an amount of Rs.2,98,475/- alongwith tax of Rs.39,273/- representing the super area as 1678.323 sq. ft. is illegal.  Since the complainants have already made the payment of Rs.3,37,748/-, the OP is required to re-calculate the amount after treating the super area to be 1587.291 sq. ft. instead of 1678.323 sq. ft. and refund the excess amount charged from the complainants.
23.         The complainants have further contended that as per the allotment letter dated 30.6.2009 (Annexure C-2), the possession of the said premises was to be delivered by the OP company within a period of 24 months from the date of agreement i.e. by 30.6.2011 whereas the possession of the flat was actually offered vide letter dated 7.11.2012. It has been urged that the OP utilized the amount deposited by the complainants for such a long period, therefore, it is liable to pay compensation for inordinate delay in delivering possession and causing mental agony and harassment to the complainants.
24.         On the other hand, the OP has urged that para 10 of the allotment letter contemplates that possession is likely to be delivered within 24 months from the date of agreement and no definite period is mentioned.  It has been further contended that the possession of the flat was offered to the complainants vide letter dated 21.8.2012 Annexure R-2. It has also been contended that the offer of possession was made within a reasonable time and there is only a delay of a few months which can arise in any high rise construction and there is no deficiency in service on the part of the OP on this count.  
25.         We have given our anxious consideration to the rival contentions. Clause 10 of the allotment letter (Annexure C-2) reads as under :-

                “10.   THAT the possession of the said premises is likely to be delivered by the company to the apartment allottee within a period of 24 months from the date of this agreement subject to force majeure circumstances, & on receipt of all payments punctually as per agreed terms and on receipt of completed payment of the basic sale price and other charges due and payable up to the date of possession according to the payment plan applicable to him. The Company on completion of the construction shall issue final call notice to the Apartment Allottee who shall within 30 days thereof, remit all dues and take possession of the Apartment. In the event of his failure to take possession for any reason whatsoever, he shall be deemed to have taken possession of the allotted unit for purposes of payment of maintenance charges or any other levies on account of the allotted unit, but the actual physical possession shall be given on payment of all outstanding payments as demanded by the Company. The Allottee would be liable to pay holding charge @ Rs.5/- per sq. ft. per month if he fails to take possession within 30 days from the date of issue of offer of possession.”

A perusal of clause 10 itself makes it clear that the complainants were told that the possession of the said premises was likely to be delivered by the company to them within a period of 24 months from the date of agreement i.e. 30.6.2009. It was not a definite commitment by the OP that the possession of the premises shall be delivered, within 24 months of the date of agreement.  We are of the opinion that a period of three years would be a reasonable period for delivery of the possession from the date of the agreement i.e. by 30.6.2012. The copy of letter dated 21.8.2012 (Annexure R-2) shows that the offer of possession was made to the complainants on 21.8.2012 i.e. after about 38 months of the issuance of allotment letter.  In other words, in this case, the possession of the flat was not handed over within a period of three years from the date of allotment letter. The OP has failed to establish as to what were the force majeure circumstances on account of which the offer of possession was made only on 21.8.2012. Accordingly, we feel that the delivery of possession of the flat has been unreasonably delayed by the OP, therefore, the complainants are entitled to compensation for deficiency in service, mental agony and harassment on this count.

26.         For the reasons recorded above, we find merit in the complaint and the same is partly allowed.  The OP is directed as under :-

i)      To recalculate the amount of super area by treating the same to be 1587.291 Sq. ft. instead of 1678.323 sq. ft. and refund the excess amount charged from the complainants.

ii)     To pay an amount of Rs.80,000/- as compensation to the complainants on account of mental agony and harassment caused to them and deficiency in service and unfair trade practice  on the part of the OP.

iii)    To also pay an amount of Rs.10,000/- towards litigation expenses to the complainants.

27.         This order be complied with by the OP within one month from the date of receipt of its certified copy failing which it shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above with interest @ 9% from the date of filing of the present complaint till realization.
28.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-
24.04.2015	[Surjeet Kaur]	[P. L. Ahuja]
hg	Member	President