JUDGEMENT

Heard Mr. Sushil Kaushik, Advocate, for the complainant and Mr. Aditya Narain, Advocate for the opposite party. 

2.       Above complaint has been filed for directing the opposite party to complete the flat in question in all respect of construction by obtaining valid permission from various authorities, to commit a firm date to hand over the physical possession of the flat, to pay compensation @ Rs.5000/- per day till the date of actual handover of possession, to pay compensation @ Rs.7.50 per sq.ft. per month of the super area of the apartment from the date by which the possession was to be handed over i.e. 31.7.2015 and further pay compensation at the same rate till the possession is granted, in view of clause No. 16(a) of the buyers agreement, pay interest @24% p.a. on the total amount paid till date and further interest till the date of actual handing over the possession , to pay Rs.25,00,000/- towards compensation towards mental torture and agony and to pay a sum of Rs.1,00,000/- towards cost of litigation and any other relief which is deemed fit and proper in the facts of the case.

3.       The complainant stated that M/s Emaar MGF Land Limited (the opposite party) was a company engaged in the business of development and construction of group housing project. The opposite party launched a project in the name of ‘Palm Terraces Select’ at Sector-66, Urban Estate, Gurgaon, Haryana in the year, 2010 and made publicity of it. On coming to know about this project, the complainant booked a flat on 15.07.2010. The opposite party  vide letter dated 03.08.2010 allotted a residential unit No. PTS-10-0802 measuring 2410 sq.ft.  The opposite party executed Buyer’s Agreement in favour of the complainant on 29.10.2010, in which total consideration was mentioned as Rs.1,69,71,100/-. Under Clause-10(a) of the agreement, the possession has to be delivered within 36 months from the start of the construction with grace period of three months. The complainant deposited the instalments according to the demand of the opposite party on time and total amount of Rs.­­­­­­1,60,37,300/- has been deposited. In the present case, the start of construction was on 31.07.2012 as such, the period of 39 months completed on 31.10.2015.  Inspite of the substantial payment, the opposite party was unable to hand over possession to the complainant. The opposite party issued letter of offer of possession on 16.08.2019 to the complainant but the project was not in habitable condition. The present complaint has been filed on 19.07.2017.

4.       The opposite party filed the written reply in which the material facts have not been disputed. The opposite party took defense that the construction was delayed for the force majeure reasons inasmuch as the contractor to whom the contract for construction was given, has delayed the construction. The opposite party is entitled for extension of period under clause 10(b) of the Agreement. Clause-12 of the agreement provides that in case any delay occurs then the allottee would be entitled for compensation @ Rs.7.50/- per sq.ft. per month on the super area of the flat.

5.       The complainant filed rejoinder reply on 22.11.2017 and Affidavit of Evidence of Narender Gupta. The opposite party filed Affidavit of Evidence of Shipra Saboo on 02.03.2020 and short synopsis. 

7.       At present, the dispute in respect of delayed compensation and holding charges are alone pressed. The counsel for the complainant relied upon the judgment of this Commission in CC/351/2015 Capital Greens Flat Buyer Association Vs. DLF Universal Limited & Anr. and other connected matters, decided on 03.01.2020, which has been upheld by Supreme Court in DLF Home Developers Ltd. Vs. Capital Greens Flat Buyers Association & Ors. (2021) 5SCC 537 and argued that holding charges are not payable. The counsel for the opposite party relied upon the judgment of this Commission in CC/2253/2019 Pushpa Gogia Vs. Emaar MGF Land Limited decided on 22.08.2022, in which it has been held that the holding charges are payable from the date of offer of possession till the date of taking possession.

8.       We have considered the arguments of the counsel for the parties.  Supreme Court has not recorded its own finding in respect of the holding charges. Therefore, larger Bench decision of this Commission in CC/2253/2019 Pushpa Gogia Vs. Emaar MGF Land Limited (supra) decided on 22.08.2022 is binding upon us. We do not find any reason to waive the holding charges in this case. However, for the same period, the builder is not entitled for maintenance charges with holding charges. It is made clear that in the statement of account both the maintenance charges and holding charges shall not be charged for the same period. 

9.       Supreme Court in Wg. Cdr. Arifur Rahman Khan & Ors. vs DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 769 and DLF Home Developers Ltd. Vs. Capital Greens Flat Buyers Association & Ors. (2021) 5SCC 537, held that compensation for delayed possession is payable in the form of interest @6% per annum on the deposit of the complainant. The counsel for the complainant relied upon the judgment of this Commission in CC/3315/2017 Ravinder Kumar & Anr. Vs. Emaar MGF Land Ltd. decided on 14.02.2022 which has been upheld Supreme Court in Civil Appeal No.2791 of 2022 Emaar India Ltd. Vs. Ravinder Kumar & Anr.,decided on 13.04.2022 and submitted that the compensation for delayed possession is payable in the shape of interest @ 9% per annum on the deposit of the complainants. We respectfully do not agree with the said judgments in view of the judgments of the Supreme Court. 

ORDER

          In view of the above discussion, the complaint is partly allowed.  The opposite party is directed to give a statement of account within a period of one month from today giving the compensation to the complainant in the form of interest @6% per annum on his deposit from July 2015 to May 2020.  The delay compensation shall be adjusted in the other amounts, if any, payable by the complainant. After settlement of accounts, the OP shall execute the conveyance deed in favour of the complainant. It may be mentioned here that after offer of possession on 16.08.2019, the OP shall charge interest on the amount payable by the complainant @9% p.a., except on stamp duty and Registration charges.