JUSTICE SUDIP AHLUWALIA, MEMBER

2. The factual background, in brief, is that the present complaint has been filed by the Complainants who purchased a Unit originally booked by Ms. Prachi Aggarwal in the "Araya" Project developed by the Opposite Party at Sector 62, Golf Course Extension Road, Gurgaon, Haryana. The Complainants purchased the Unit for their residential requirements. The Opposite Party had announced the Project as an unparalleled ultra-luxurious housing development blending the tranquillity of nature with the comfort of city life, featuring 3 to 5 BHK apartments and penthouses with world-class landscaping. The Opposite Party issued a letter to the Original Buyer allotting Unit No. C-1901 on the 19th Floor in Tower C, with a super area of 4,690 Sq. Ft. Subsequently, the Apartment Buyer’s Agreement was executed on 24.07.2012 between the Original Buyer and the Opposite Party, promising delivery of possession within 45 months from the date of excavation, including a 6-month grace period for obtaining the Occupation Certificate. The excavation began on 04.06.2012, so possession was expected by 04.03.2016. The Agreement contained various one-sided and unreasonable clauses, but the Complainants had to sign under the threat of forfeiture of ernest money. Upon purchasing the Unit, the Agreement was transferred to the Complainants via endorsement dated 11.07.2014. Based on the Opposite Party's assurances that the Project would include all necessary luxurious amenities and be completed on time, the Complainants purchased the Unit from the Original Buyer on 10.07.2014. The Complainants paid a substantial amount to the Original Buyer, who had already made several payments to the Opposite Party. To finance the purchase, the Complainants took a home loan of Rs. 1,65,00,000/- from HDFC Bank and entered into a Tripartite Agreement with the Opposite Party and the Bank, whereby the loan amount was disbursed directly to the Opposite Party. To date, Rs. 35,86,000/- out of the total sanctioned loan amount has been disbursed by the Bank, with the remaining instalments paid by the Complainants. When the Opposite Party failed to deliver possession by 04.03.2016, the Complainants sent an email on 04.06.2018 requesting adequate compensation for the delay. The Opposite Party did not respond. Subsequently, the Opposite Party sent an intimation of possession on 17.06.2019. Upon visiting the site, the Complainants were shocked to find that the tower containing their Unit was far from completion despite the possession offer. Aggrieved by the deficiency of service on the part of the Opposite Party, the Complainants have filed the present complaint.

3. In view of the aforesaid facts, the Complainants have prayed as following - 

“a) Direct the Opposite Party to handover possession of the Unit to the Complainants, complete in all respects and in conformity with the Apartment Buyer's Agreement and for the consideration mentioned therein, with all additional facilities and as per quality standards promised, and execute all necessary and required documents in respect of the said Unit in favor of the Complainants as soon as the same is completed or as this Hon'ble Commission deems fit and appropriate; 

 

b) Direct the Opposite Party to pay interest @ 12% per annum on the amount deposited by the Complainants with the Opposite Party, with effect from the date of delivery promised in the Agreement, till the date of actual possession as per clause (a) above is handed over by the Opposite Party along with all necessary documents and common areas and facilities as promised during the initial booking made by the Complainants; 

 

c) Direct the Opposite Party to pay INR 6,000 (Rupees Six Thousand only) per day to the Complainants in case of failure to provide the possession within the stipulated time as directed by this Hon'ble Commission; 

 

d) Direct the Opposite Party to pay compensation of INR 10,00,000/- (Rupees Ten Lakh only) to the Complainants for mental agony, harassment, discomfort and undue hardships caused to the Complainants as a result of the above acts and omissions on the part of the Opposite Party; 

 

e) Direct the Opposite Party to pay a sum of INR 2,50,000/- (Rupees Two Lakh and Fifty Thousand only) to the Complainants in the Project "Araya" towards litigation costs.”

 

4. The Opposite Party in its Reply has resisted the Complaint by stating that the Complainants are not entitled to any reliefs pertaining to compensation as they have failed to prove their loss; That the Opposite Party despite the delay in handing over possession on account of factors beyond its control, voluntarily adjusted a sum of Rs. 18,77,538/- as penalty charges under the Agreement; That the Complainants had not raised any issue till the date of filing which amounts to accepting the factors of delay as justified and thus, not making them entitled to any relief; That the delay has been due to various factors which are covered under force majeure such as delay in payments by many customers, dispute with contractors, water shortage, shortage of raw material, delay in approvals by the State Government, Jat reservation agitation, NGT Order, Demonetization etc.

5. Evidence by way of Affidavit has been filed by Complainant No. 1 Mrs. Pooja Bajaj Malhotra and Complainant No. 2 Mr. Shalendra Malhotra; Evidence by way of Affidavit has been filed on behalf of the Opposite Party by Mr. Rajender Kumar, Authorized Representative of M/s Pioneer Urban Land & Infrastructure Ltd.

6. Ld. Counsel for Complainants has argued that the present dispute is in pari materia with various disputes already adjudicated by this Commission concerning the same project and the same Opposite Party, including "Geetu Gidwani Verma and Anr. v. Pioneer Urban Land and Infrastructure Ltd., CC No. 238 of 2017," which has been upheld by the Hon’ble Apex Court in "Pioneer Urban Land and Infrastructure Ltd. v. Geetu Gidwani Verma and Anr., CA No. 1677 of 2019". As per Clause 11.2 of the Agreement, the Opposite Party was obligated to deliver possession of the Unit within 39 months from the start of construction, with an additional grace period of 6 months. Consequently, possession was to be delivered by 04.03.2016.; That the Complainants, in anticipation of timely and complete delivery, diligently complied with the payment plan, making payments amounting to Rs. 4,63,24,557.16/-. They purchased the Unit from the initial Allottees based on promises and assurances from the Opposite Party that the project would be completed on time with all amenities and facilities, as evidenced by the Agreement to Sell dated 10.07.2014; That the Opposite Party failed to hand over possession within the promised time frame. It was only on 17.06.2019, after an inordinate delay of 3 years and 3 months from the promised date, that the Opposite Party sent the Letter of Intimation for Possession. Even then, the Unit was far from completion. The Complainants conveyed their distress and dissatisfaction regarding the delay and the state of the Unit through various meetings and telephonic conversations, but received no satisfactory response from the Opposite Party.

7. This Commission has heard both the Ld. Counsel for Complainants and the Opposite Party, and perused the material available on record.

8.   During pendency of the Complaint, and in disposing off IA No.17661 of 2019, the then Presiding Member Hon’ble Justice V.K.Jain had directed that the Opposite Party shall deliver possession of the Flat to the Complainants without prejudice to the respective rights and contentions of the parties, and without paying the entire balance amount to the Opposite Party but by depositing the same with this Commission, which deposit was thereafter to be kept in an automatically renewable FDR of a Nationalised Bank.  In pursuance of such order, possession of the Flat was delivered to the complainants on 20.7.2020 as a follow-up to the letter offering possession (Ex.OP-W5).  Thereafter the conveyance deed was also executed in favour of the Complainants on 28.12.2020.

9.    Now, it has been the claim of the Complainants that in spite of the alleged earlier offer of possession dated 17.6.2019, the Flat was not in a habitable condition on account of which they were unable to accept such possession.  To substantiate this contention, the Complainants –CW1 Ms. Pooja Bajaj Malhotra had stated in her Affidavit in Evidence that –

“I say that after the possession of the Unit had been offered to me, I visited the site of the Project in order to inspect the Unit however I was shocked to see that even though the possession of the Unit had been offered to me, the Project as a whole and even the tower containing my Unit was still very far from completion

I further say that the photographs of the Project as taken by me after the intimation of possession is annexed in the present complaint as Annexure C-10 (colly) and same has been exhibited as Exhibit CW- 1/10 (Colly).”

 

10.  The photographs allegedly taken by the Complainants which are on pages 180 to 182 of the Paper Book have been disputed on behalf of Opposite Parties, who had contended that the same do not pertain to the concerned Tower No. C, for which Occupancy Certificate had been already obtained on 14.6.2019.  A bare perusal of the aforesaid photographs also do not indicate how it can be confirmed that the building seen in the same is actually that of the disputed Tower ‘C’, or of any other structure. At any rate, it is a matter of record that following the Offer of Possession dated 17.6.2019, there was no correspondence issued from the Complainants’ side, to the Opposite Parties alleging that the Flat in question was not complete.  Consequently, it is held that the Complainants would be entitled to delay compensation at the rate of 6% p.a. for the period between 4.3.2016 till 17.6.2019, which shall be in addition to the compensation already agreed upon by the parties in terms of the Builder’s Buyers’ Agreement.  It may also be mentioned that this Complaint was heard simultaneously along with CC No.1575 of 2019, pertaining to the same Project, in which the delay compensation has been granted to the Complainants on the basis of their notional rental income loss, since those Complainants in spite of having taken possession during the pendency of the Complaint did not personally occupy the Flat and merely let it out for rent.  However, there is no such allegation against the present Complainants, who are therefore, entitled to compensation delay at a Flat rate of interest at the rate of 6% p.a. from the date of each respective deposit, and not for any supposed loss of rental income.

 11.  The Complaint is, therefore, allowed with a direction upon the Opposite Parties to pay the aforesaid delay compensation apart from the compensation already agreed upon by the parties in their original Builder’s Buyer’s Agreement, and to make payment of the entire composite amount including interest at the rate of 6% p.a. from the date of each respective deposit within two months, from the date of this order, failing which, any outstanding payment shall attract interest at the rate of 8% p.a. till the date of final realization. 

12. Pending application(s), if any, also stand disposed off as having been rendered infructuous.