1.      Heard Mr. Shushil Kaushik, Advocate, for the complainants, Mr. Sunil Mund, Advocate, for opposite parties-1 & 2 and Mr. Pragalbh Bhardwaj, Advocate, for opposite party-3.

2.      Shekhar Shethu and Smrita Jain have filed above complaint, for directing the opposite parties to (i) handover possession of apartment No. TDP-F-F06-602, complete in all respect as per specification and execute conveyance deed in favour of the complainants; (ii) pay compensation for delayed possession in the form of interest @12% per annum on the deposit of the complainants from due date of possession till handing over possession, (iii) exempt the complainants from paying the escalation in cost including enhanced service tax, (iv) pay Rs.5/- lacs, as compensation for mental agony and harassment and litigation cost; and (v) any other relief which is deemed fit and proper in the facts and circumstances of the case.

3.      The complainants stated that the opposite parties were companies, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing projects and selling its unit to the prospective buyers. Opposite parties-2 and 3 were owners of approximately 31.62 acres land at village Badshahpur, Sector-66, Gurgaon. Opposite parties-2 and 3 through a development agreement dated 18.03.2006 authorised M/s. Emaar MGF Land Limited (opposite party-1), (for short the developer) for development and construction of group housing projects and selling its unit to the prospective buyers over the aforesaid land. They obtained licence from Director, Town and Country Planning, Haryana, for development of township on 27.09.2007. The developer launched a group housing project in the name of “The Palm Drive” at village Badshahpur, Sector-66, Gurgaon and made wide publicity of its facilities and amenities in the year 2007. Believing upon the representations and lucrative advertisement of the developer, Aneet Singh Virk and Ms. Anjali Ranger Virk, the predecessor-in-interest of the complainants applied for provisional registration on 27.12.2007 and deposited required amount time to time. The opposite parties allotted Unit No. TPD-F-F06-602, super area 2125 sq.ft. and two car parking space, in the project “The Palm Drive”, for total sale price Rs.10949175/- (at the rate of Rs.4600/- per sq.ft.) and executed Buyer’s Agreement dated 12.02.2008 in their favour. The complainants purchased aforesaid Unit from Aneet Singh Virk and Ms. Anjali Ranger Virk, with prior permission of the opposite parties though Agreement For Sale dated 10.05.2012, for total sale consideration of Rs.11573459.63, including service tax, out of which Rs.10861100/- had already been paid to the developer. The developer endorsed the names of the complainants in Buyer’s Agreement. Clause-14 of the Buyer’s Agreement provides that possession would be offered till December, 2010, with grace period of 90 days. At the time of purchasing the apartment, the time line as provided in the agreement had expired. The complainants inquired from the office of the developer for possession, then they informed that possession would be delivered till January, 2013. After, January, 2013, the complainants visited the site several times but found that the construction was not in progress and seemed to be abandoned. The complainants booked apartment from the opposite party in their project “Premier Terraces”, in which, also the opposite parties failed to deliver possession on due date. The opposite parties, after collecting money from the home buyers, were utilising it for their own purpose and did not care for timely completion of the project. The complainants were in acute need of the residence and due to delay in possession, they were facing problem. The developer uploaded construction updates in November, 2017, which showed that the construction was near to completion. The complaint was filed on 19.01.2018, alleging deficiency in service. 

4.      M/s. Emaar MGF Land Limited (the developer) filed its written reply on 23.04.2018 and contested the complaint. The material facts relating to the project, allotment of the apartment to the predecessor-in-interest of the complainants, execution of Buyer’s Agreement dated 12.02.2008 in their favour, transfer of the unit in favour of the complainants on 10.05.2012 and payments made by them, have not been disputed. The developer stated that timeline as provided in Agreement dated 12.02.2008 was subject to timely payments by the allottees, timely sanction of various approvals from government authorities, availability of materials and labours and other force majeure. In civil construction matter, time cannot be an essence of contract. It has been denied that the complainants were told that possession would be handed over till January, 2013. The developer completed construction of the project and offered possession to the complainants vide letter dated 22.02.2018. Instead of paying balance amount and taking possession, the complainants are litigating for possession. It is incorrect to say that the complainants were attracted with any advertisement of the developer. The complainants purchased the unit from open market vide Agreement For Sale dated 10.05.2012, knowing well that the construction was delayed as such they cannot claim the timeline as mentioned in Agreement dated 12.02.2008 or any compensation. On the application of the complainants dated 06.06.2012, their names were endorsed in the Buyer’s Agreement. The complainants gave an Indemnity cum Undertaking dated 01.06.2012, for abiding with terms of the Buyer’s Agreement. The complainants had their own house. They booked apartment in the project “Premier Terraces” and again purchased the present unit, which shows that they are investors for commercial purpose and are not consumers. It has been denied that money collected from home buyers of the project was utilised for any other purpose. Clause-11 of the Buyer’s Agreement provides that escalation of cost would be borne by the buyer. The complaint has no merit and liable to be dismissed.

5.      M/s. Conscient Infrastructure Private Limited (opposite party-3) filed its written reply on 02.04.2018 and contested the matter. Opposite party-3 stated that opposite parties-2 and 3 through a development agreement dated 18.03.2006 authorised M/s. Emaar MGF Land Limited (opposite party-1) for development and construction of group housing projects and selling its unit to the prospective buyers over the aforesaid land as such they are not liable for delay in construction of the project. In the Buyer’s Agreement, opposite party-3 was only a confirming party. Opposite party-3 also raised similar plea as raised by the developer.     

6.      The complainants filed separate Rejoinder Reply to the replies of opposite party-1 and 3, on 27.09.2018, in which, the facts stated in the complaint were reiterated. The complainant filed Affidavit of Evidence and Affidavit of Admission/Denial of documents of Shekhar Sethu. Opposite party-1 filed Affidavit of Evidence of Rajendra Prasad. Opposite party-3 filed Affidavit of Evidence and Affidavit of Admission/Denial of documents of Pradeep Garg. 

7.      We have considered the arguments of the parties and examined the record. The preliminary issues raised by the opposite parties have no substance. For excluding a buyer from the definition of ‘consumer’ as defined under Consumer Protection Act, 1986, it is required to be proved that goods was bought or service was availed for ‘commercial purpose’. Number of flats/houses owned or booked by the buyer is not decisive as held by Supreme Court in Lilavati KirtilaL Mehta Medical Trust Vs. Unique Shanti Developers, (2020) 2 SCC 265. In the present case the opposite party has not adduced any evidence that the flat in question was booked for commercial purpose.

8.      The complainants have raised plea that due to delay in construction, cost of the construction was increased due escalation of material and labour charges. Similarly, Service tax was also increased. The developer is responsible for delay in construction, as such, the developer shall be liable to bear escalation charges. Agreement to Sell dated 10.05.2012 between Aneet Singh Virk & Ms. Anjali Ranger Virk and Shekhar Sethu & Ms. Smrti Jain has been filed by opposite party-1, along with written reply. In this agreement, it has been mentioned that total consideration, inclusive of service tax of Rs.11573459.63 was payable to the developer. Out of which Rs.10839026/- had been paid by the transferors and Rs.734436.13 was payable at the time of offer of possession. Final Statement of Account has been attached along with letter dated 22.02.2018 does not depict that any amount was demanded towards escalation of material and labour charges or increase in Service tax. As such, the reliefs claimed in this respect are substantiated.

9.      So far as compensation for delayed possession is concerned, Clause-16 of Buyer’s Agreement provides for delayed compensation @Rs.5/- per sq.ft., per month on the super area after an extended period of 3 months. Supreme Court in Wing Commander Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512, and in DLF Home Developers Limited Vs. Capital Greens Flat Buyers Association (2021) 5 SCC 537, held that fair compensation for delay in possession ought to be in form of interest on the deposit @6% per annum from due date of possession till the offer of possession. In Bangalore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 442, held that in the matter of contractual obligation, there is no scope for compensation for mental agony and harassment. In DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda, II (2019) CPJ 117 (SC) held when interest is awarded as compensation then awarding additional compensation was not justified.

10.    The counsel for the developer, relying upon the judgment in Wing Commander Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512, submitted that the complainants are transferee from original allottees. At the time of their transfer on 10.05.2012, the deadline for possession as provided in Buyer’s Agreement dated 12.02.2008 had already expired. Knowing well that the construction was delayed, the complainants purchased the flat from open market as such they are not entitled for any compensation for delay in possession. However, Supreme Court in Supertech Ltd. Vs. Rajni Goyal, (2019) I SLT 210, DLF Homes Panchkula Pvt. Ltd. Vs. Sushila Devi, (2020) 17 SCC 429 and Laureate Buildwell Pvt. Ltd. Vs. Charanjeet Singh, AIR 2021 SC 4229, held that the transferee steps in the shoes of transferor and they cannot be denied the benefit of the agreement between the builder and the transferor. In the case of transfer, delay has to be counted from the date of transfer.

11.    Clause-14(a) of Buyer’s Agreement dated 12.02.2008 provides due date of possession as December, 2010 and grace period of 3 months. Clause-16 further provides an extended period of 3 months. Thus roughly period of possession was 40 months from the date of agreement. In the present case, this period of 40 months have to be counted from 10.05.2012. Due date of possession for the complainants comes to 10.11.2014. The developer offered possession vide letter dated 22.02.2018. The complainants are entitled for delayed compensation in the form interest @6% per annum on their deposit from 10.09.2015 to 21.02.2018.

ORDER

In view of aforesaid discussions, the complaint is partly allowed. The opposite party-1 is directed to prepare a fresh statement of account of the complainants in respect of final demand giving them compensation for delay in possession in the form interest @6% per annum on their deposit (including deposit of their predecessor) from 10.09.2015 to 21.02.2018, within a period of one month from the date of this judgment. If any amount is payable to the complainants, it shall be paid by opposite party-1 at the time of giving statement of account. If any amount is payable by the complainants, they will be given at least one month time to deposit the amount. On settlement of account, the opposite party-1 shall deliver possession of the Unit allotted to the complainants complete in all respect as per specification forthwith and execute conveyance deed in their favour.