1.      This complaint under section 21 of the Consumer Protection Act, 1986 (in short, the ‘Act’) has been filed against the opposite party alleging deficiency in service in delay in handing over possession of the flats booked by the complainants in the project ‘Gulmohar Gardens’ at NH-58, Raj Nagar Extension, Noor Nagar, Ghaziabad promoted and executed by the opposite party. The complainants filed a joint complaint under section 12(1)(c) of the Act since they were all allottees of flats in the same project and had identical grievances and prayers for relief.

2.     The facts, as per the complainants, are that pursuant to the launching of the scheme by the opposite party, they booked flats and made advance payment as per the payment plan. The brochure for the flats promised flats of good quality construction to be available for possession in June 2010, with a grace period of 2-3 months. Identical allotment letters were issued to all complainants who made payments as per a construction linked plan. However the pace of progress was extremely slow and despite follow up by complainants and assurances by the opposite party, progress continued to be slow. The opposite party unilaterally revised the date of possession to June, 2011 on its website. Possession was, however, offered on 03.07.2012 with conditions regarding no liability of builder/ opposite party towards quality, penalties and other charges in case of default in taking possession within a time frame of 90 days apart from deductions in case of cancellation. According to the complainants, as the quality of construction left much to be desired and the flats were not habitable, the offer of possession was premature. It was also without completion of amenities such as lifts, entrance gates, car parking, internal areas, etc., promised. Enquiries with Ghaziabad Development Authority (GDA) by complainants revealed that the project had not been issued the Completion Certificate or other relevant certificates by the Fire Services, Pollution Control Board, Electricity Department, etc., as per evidence filed. Complainants wrote to the opposite party highlighting the state of the project and also complained to the GDA. The opposite party took no steps to enable the complainants to take possession and instead threatened to cancel the allotment, which the complainants state was an unfair trade practice under the Act. The opposite party also failed to compensate the complainants @ Rs 3/- to Rs 5/- per sq ft per month for each month of delay as per the terms and conditions of the allotment for the continuing period of delay. Complainants claim damages/compensation aggregating to Rs.4,20,82,691/- as detailed in Annexure A of the complaint. The complainants are before this Commission with the prayer to:

(a)     direct the opposite party to handover possession of the flats to the complainants after carrying out various outstanding and incomplete works and rectifications and making good defects deficiencies and shortcomings within a specified time;

(b)     direct the opposite party to pay to the complainants damages/compensation in respect of delay as per the terms of the agreement for each month of delay for the period of delay from the stipulated date of position till actual position is handed over after completion of various jobs shortcomings and shortfalls referred to hearings also damages/ compensation inter alia and timely unavailability of accommodation and/or for defect deficiencies, shortcomings and actual shortfall in the stipulated area as also for inconvenience harassment mental pain and anguish as per statement “A” annexed hereto;

(c)     award to the complainants costs of and relating to the present complaint; and

(d)     grant to the complainant search other and/or further relief(s) as this Hon’ble Commission may deem fit in the facts and circumstances of the present case and render justice.

3.      The complaint was resisted by way of evidence by the opposite party. The opposite party alleges that the complaint is not maintainable as the same has been filed with ulterior motives and malafide intentions to extract money from the opposite party. Learned counsel for the opposite party submits that the co-applicant, Mr Sanjeev Kaushal, is not incorporated as party/ complainant along with Smt Manisha Kaushal; therefore the complaint is not maintainable due to non-joinder of party.  The complainants have also not fulfilled the terms and conditions of the allotment letter-cum-agreement and not paid the remaining outstanding amount of 5% of the cost of flat along with interest on delayed payment as per the terms and conditions of the agreement/ allotment. Learned counsel for the opposite party states that the project stood completed and had received the completion certificate from the concerned authority on depositing of compounding fee. He further submits that some members/ allottees preferred to obtain possession on an as-and-where basis after depositing the requisite outstanding amount and had requested to issue offer of possession. He further submits that of the 40 allottees 31 have received the offer of possession, however, they did not pay the outstanding amount of 5% of the cost of flat and interest on delayed payment and preferred to approach this Commission. Learned counsel for the opposite party submits that the entire construction work of the project is complete. He further submits that as per the UP Apartment Act, no possession can be handed over to allottee unless they get the flat registered in their favour. He also states that several allottees have already taken possession and are residing there and were satisfied with the facilities provided.  

4.     Learned counsel for the opposite party also submits that the complainants are defaulters in making payments of installments and had failed to make payment as per the demand letters as per the payment plan and had instead filed the present complaint. Learned counsel for the opposite party submits that the complainants are illegally levelling allegations that the possession was being delayed by the opposite party which was without any substance. He further states that in case of delayed delivery of possession of the flats there was a provision of compensation @ Rs.3/- per sq ft in the allotment letter. The delay is due to non-provision of completion certificate by the concerned authority/ GDA. He further submits that the complaint has not been filed within the prescribed period of limitation under the Act and that it has been wrongly stated that this Commission has the pecuniary jurisdiction to entertain the present complaint. He submits that the process of handing over the possession was under progress as per order dated 23.01.2015 of this Commission and the same was to be done by 20.02.2015 subject to realization of the cheques for the entire outstanding payment to be made by all the allottees concerned.

5.      I have heard the learned counsels for the parties and perused the records carefully.

6.      On behalf of the complainants it was argued that there was inordinate delay in the handing over of the flats and that the quality of construction was poor. The offer of possession placed conditions on the allottees that were based on unfair trade practices. The claim of compensation is justified by the complainants in view of the loss incurred by them on account of delay in possession and reliance is placed on the judgment of the Hon’ble Supreme Court in Wg Cdr Arifur Rahman Khan & Aleya Sultana & Ors. Vs. DLF Southern Homes Private Limited, Civil Appeals Nos. 6239 of 2019 and 6303 of 2019 dated 24.08.2020, (2020) 16 SCC 512 that laid down that an award of compensation has to be based on a finding of loss or injury and must correlate to it. Reliance is also placed on the judgment of the Hon’ble Supreme Court in R.V. Prasannakumaar & Ors Vs. Mantri Castles Pvt. Ltd. & Anr. in Civil Appeal No. 1232 of 2019 with Nos. 1443-44 of 2019 dated 11.02.2019, (2020) 14 SCC 769 which held that the power to award just compensation cannot be constrained by the agreement and that the consumer forum can award additional compensation. The complainants therefore argue for the reliefs prayed for.

7.      Learned counsel for the opposite party contended that the project was delayed on account of default in timely payments by allottees including complainants. However, possession was offered in 2012 and 10 allottees accepted the offer of possession after the balance 5% payment in October 2012. The present complainants were in default of the terms and conditions of the allotment letter as the balance 5% amount was not paid by them. The opposite party executed sale deeds on receipt of payments and handed over possession. As this amount was paid only on 19.01.2015, there was no question of payment of damages for any period prior to this date. Due to recession in the real estate sector, it claims that it is not possible to pay damages although as a goodwill gesture the opposite party was willing to pay the penalty amount. It was argued that of the 40 original complainants, only 25 remained as the others had withdrawn their cases. According to the opposite party, complainants had prayed for a two-fold relief, (a) direction for handing over of possession of the flats and (b) for compensation for delay in offer of possession. The Commission had directed complainants to make payment of the balance amount to the opposite party and thereafter ordered handing over of possession and compensation for the delay vide its order dated 05.11.2015. Compensation of Rs 5,000/- for every day of delay after 20.02.2015 in handing over possession was ordered by the Commission. However, the complainants did not come forward to accept the cheques. It was argued that there was no prayer for compensation from 2012 and the Commission’s order was that penalty be paid from 20.02.2015, the date the full payment was to be made by complainants.

8.      In Civil Appeal No 1132 of 2016 filed by the complainants the Hon’ble Supreme Court set aside this Commission’s order dated 05.11.2015 relating to the imposition of the fine of Rs 5,000/- per day of delay in handing over possession of the flats if possession was not given till 20.02.2015 and directed as below:

“In our view, bearing in mind the above factual material and having heard learned counsel appearing on behalf of the appellants and learned counsel appearing for the developer, it is but appropriate and proper that the entitlement to additional compensation is considered afresh.

The basis on which the impugned order was passed was that an erroneous statement was made on behalf of the complainants and that as a matter of fact, payment was made only in the month of January 2015. The appellant’s explanation deserves to be considered afresh.

We are not expressing any opinion on the merits of the case of the appellants. We have only adverted to the material which has been placed on the record of this court with a view to provide a basis for the request to the NCDRC to consider the matter afresh. In order to facilitate this exercise, we allow the appeal and set aside the impugned order dated 5 November 2015 passed by the NCDRC. The appeal is, accordingly, allowed. There shall be no order as to costs.

All the rights and contentions of the parties are kept open.

The NCDRC shall, it is needless to say, pass orders afresh after hearing the submissions of both sides.”

9.      This complaint has been filed under section 21 of the Act and a joint complaint under section 12(1)(c) was permitted on 18.10.2012. While the primary prayer was for handing over of possession of the flats, the complainants have also claimed compensation for the inordinate delay in handing over of possession and other costs. This Commission, on 05.11.2015 ordered that possession be handed over to the complainants, subject to the payment of the outstanding amount. Parties reported compliance of this order on 19.01.2015. The only issue that now remains is that of compensation for delay and costs. Learned counsels for the complaints argued to be compensated with effect from the stipulated date of June 2010 whereas on behalf of the opposite party it was argued that compensation was payable only with effect from 20.01.2015, i.e. after the final installment was paid.

10.    From the records, it is evident that the allotment letter stipulated that the construction would be completed by June, 2010 with a grace period of 2 to 3 months. Thus, the offer of possession should have been September 2010 as per this schedule. The complainants aver that this schedule was changed to June 2011 arbitrarily by the opposite party. This is not denied.  The opposite party contends that the delay is attributable to defaults in payments by allottees. It contends that the offer of possession is dated 03.07.2012 and that the balance 5% payment which was a condition precedent to handing over of possession was paid only on 19.01.2015 from which date any liability for delay should apply. While the offer letter imposes stringent conditionalities upon the allottees apart from various costs and expenses, these are now not an issue as possession has been taken by the complainants.

11.   It is evident that the opposite party failed to comply with its obligation to hand over possession of the flats in question on or before September 2010, allowing for a grace period of 2-3 months. No evidence to justify the unilateral extension of the date of delivery to June 2011 has been brought on record. The possession of the flats was handed over only after the order of this Commission dated 05.11.2015 which imposed a cost of Rs 5,000/- per day of delay on the opposite party in case it failed to hand over possession. Deficiency in service in delay in delivery of the flats booked by complainants against consideration is thus writ large. The conditionalities imposed in the offer of possession are entirely one-sided and loaded against the allottees/complainants and manifestly constitute an unfair trade practice. Complainants are entitled to compensation from the promised date of possession till the date of offer of possession as per details provided by the opposite party along with the short synopsis. The details are as under:

12.    For the reasons stated above, the complaint is found to have merits and is liable to succeed. The complaint is accordingly allowed. The complaint is disposed of with the following directions:

(i)     Opposite party shall compensate the complainants for the delay in handing over possession @ 6% simple interest per annum on the sum deposited with the opposite party by the individual complainant from the respective date of stipulated possession till the date on which possession was offered;

(ii)    This order shall be complied within 8 weeks of receipt of the certified copy of this order failing which the applicable rate of interest will be 9% simple interest per annum; and

(iii)    The opposite party shall also pay litigation cost of Rs 25,000/- to each of the complainants.

 13.  The consumer complaint as well as all other pending IAs are also stand disposed of by this order.