The present Appeal has been filed against the order dated 14.01.2021 of the State Consumer Dispute Redressal Commission, Delhi (for short “the State Commission”) in Complaint No.638 of 2018. 2. The brief facts of the case are that the Respondent (hereinafter referred as “the Complainant”) booked a residential apartment in the project of the Appellant (hereinafter referred as “the Opposite Party”) called “Tuscan Heights” situated at Tuscan City, Kundli, District Sonipat Haryana. An allotment letter dated 18.08.2011 for unit No.T-7/0503, measuring 1520 sq. ft. was issued to him and he had paid a sum of ₹3,50,000/- for the said purpose on 21.01.2010. A Builder Buyer Agreement was subsequently executed between the parties on 18.11.2011 for a total consideration of ₹41,18,726/-. 3. The case of the Complainant was that he had paid a sum of ₹39,80,699/- till the date of filing of the Complaint in the year 2018 and no offer of possession had been made to him, rather the Opposite Party had made untimely demands as car parking charges along with 14th instalment while the same was to be made at the time of possession. As per Clause 30 of the Builder Buyer Agreement, the possession was to be delivered within 30 months from the date of execution of the Agreement, i.e., by May 2014. He had also contended that the Opposite Party had unilaterally enhanced the area by 288.80 sq. ft. which was reflected in the final statement of account dated 03.03.2018 and the Opposite Party had wrongly charged additional amount of ₹10,89,449/- for increased area. He had further contended that vide letter dated 10.04.2018, he had asked for explanation about the increased area and also mentioning about the delayed possession. He had further contended that even after eight years from the date of booking, the possession had not been offered to him and the project is under construction. He had further contended that the Opposite Party was deceitful, fraudulent and malicious from the very beginning and is guilty of unfair trade practice and there is deficiency in service on their part. He had paid approximately 96% of the total consideration by February 2017. Opposite Party had also used its position and strength in dictating one side terms. On these contentions, the Complainant had prayed for handing over of the possession of the apartment complete in all respects within six months of the date of filing of the Complaint and in case of failure on the part of the Opposite Party in handing over the possession within that period, for refund of the total amount paid by him along with interest @ 18% p.a., ₹6,000/- per day for failure to provide the possession within the stipulated time, compensation of ₹5 Lakh for mental agony, harassment, discomfort and undue hardships and ₹1 Lakh towards litigation costs. 4. The Opposite Party before the State Commission was served on 16.01.2019 and put in appearance through Counsel Sh.Bhrigu Dhami. Copy of the Complaint was supplied to him and he was directed to file written version within 30 days. Written statement was, however, filed on 05.03.2019 which was beyond the statutory period of 30 days and the delay was condoned on the no objection of the Counsel for the Complainant on payment of costs of ₹3,000/- vide order dated 05.03.2019. Since the Opposite Party failed to pay the costs by 24.10.2019, the Opposite Party was given one more opportunity to pay the costs by 13.03.2020. However, by that date also, the costs were not paid and vide order dated 13.03.2020, the written statement was taken off from the record. The Complainant filed its affidavit in evidence and also written arguments. 5. After hearing the arguments, the State Commission allowed the Complaint and ordered for refund of the deposited amount with interest @ 9% p.a. 6. This order is impugned before us on several counts. On the date of hearing, learned Counsel for the Complainant/Respondent was also present on caveat. Arguments of learned Counsel for the parties were heard. 7. The Appellant has challenged the impugned order alleging that the order is illegal and liable to be set aside. It is submitted that the Complainant had failed to prove the allegation that the construction was not complete since no photographs to support the allegation that the construction was not complete had been filed by the Complainant. It is further submitted that the conduct of the Complainant in making the payment of the instalments which was based on the stages of construction, shows that the Complainant had failed to prove that the unit was not complete. It is further contended that although the final statement of account had been relied upon by the State Commission to conclude that the area of the unit was increased, the State Commission had failed to take into account the fact that the said very letter shows that the construction of the unit was complete and the final charges are being conveyed. It is submitted that the final statement of account dated 03.03.2018 clearly shows that the construction of the unit was complete. It is further contended that the Complainant was a defaulter and therefore, he is not entitled for any relief. It is submitted that the State Commission had acted with high handedness and refused to even record the submissions and objections of the Counsel, thus, causing prejudice to the Opposite Party. The impugned order is against the principle of “Audi Alterem Partem” being the principle of natural justice as enshrined in Article 14 of the Constitution of India. It is further contended that the State Commission had failed to consider that the Complainant had himself sent an e-mail dated 30.07.2016 thereby requesting for conversion of his allotted alleged parking from basement to stilt parking and agreed to pay the differences. It is further contended that the State Commission has also failed to consider the fact that as per the Builder Buyer Agreement, the Opposite Party is entitled to increase the area even unilaterally and therefore, such objection amounts to causing injustice to the Opposite Party. It is further submitted that if the impugned order is not set aside, the Opposite Party shall suffer irreparable loss and injury and will be left without any remedy in law which would amount to miscarriage of justice and refusal to consider the genuine claim of the Opposite Party. On these contentions, it is submitted that the impugned order is liable to be set aside. 8. During the course of arguments, learned Counsel for the Appellant has relied on the letter dated 03.03.2018, the document which had been filed by the Complainant before the State Commission and is part of the State Commission’s record. Learned Counsel submits that an offer of possession had been made by the Opposite Party to the Complainant and the finding of the State Commission that no offer of possession was made is contrary to the record. It is also contended that in the Complaint, in fact, the Complainant has nowhere stated that the offer of possession had not been made to him; rather the Complainant has relied on the final statement of account in his Complaint vide which an offer of possession had been made by the Opposite Party. Learned Counsel has also relied on the para (8) of their Written Statement alleging that an offer of possession had been made vide letter dated 03.03.2018 and this fact is very much in the knowledge of the Complainant. It is further contended that as per Clause 2 of the Builder Buyer Agreement, the Complainant is liable to make extra payment in case of increase in super area immediately on demand and the Complainant instead of making such payment has rushed to the Commission. It is further argued that since the first prayer of the Complainant being of possession, order of refund of the deposited amount, instead of passing an order of possession, is illegal and therefore, the impugned order suffers with illegality, infirmity and is liable to be set aside. 9. It is argued by learned Counsel for the Complainant that the Opposite Party had not put up any defence before the State Commission and therefore, their reliance on clauses of their Written Statement is uncalled for and cannot be considered. The Written Statement was not part of the State Commission’s Record. It is further contended that the Opposite Party themselves had placed on record the letter dated 03.03.2018 whereby they asked the increased final payment and that letter does not anywhere contain any offer of the possession. It is submitted that till the date of filing of the Complaint, there was no offer of possession and the argument raised by the Opposite Party is meritless. It is further argued that the Opposite Party cannot demand extra money on the plea of increase in the area of the unit and they are required to prove such an increase by cogent evidences. It is submitted that there is not even an iota of evidence on record to suggest that there was any increase in the area of the unit. No document to support the contention and the demand of extra money on plea of increased area of the unit had been supplied to the Complainant despite his writing a letter to them. It is submitted that the proposed date of handing over of possession was after 30 months from the date of execution of the Builder Buyer Agreement which was dt.28.11.2011 and it is submitted that till now the Opposite Party is not in possession of any Occupancy Certificate. It is submitted that the Opposite Party in their Appeal has nowhere disclosed that they have obtained the Completion Certificate and were in a position to hand over the possession. It is further argued that no doubt the Complainant was interested in taking possession of the subject property but he had made a condition in the Complaint that he would accept the possession only when the unit is delivered within six months of filing of the Compliant and since there was no such offer, no fault can be found with the State Commission’s order directing refund of the deposited amount. It is submitted that the order of the State Commission is based on the evidences before it and does not suffer with any illegality and infirmity. It is further argued that the Complainant cannot be made to wait continuously for indefinite period for the possession. Reliance is also placed on order of this Commission in “Pawan Gupta vs. Experion Developers Pvt. Ltd., Consumer Complaint No.286 of 2018 decided on 26.08.2020” wherein this Commission has clearly held that the burden is upon the Opposite Party to justify its demand for excess area. Learned Counsel for the Complainant has also placed on record an order of the Hon’ble Supreme Court dated 12.01.2021 in Civil Appeal No.3703-3704 of 2020 vide which the order in Pawan Gupta’s case (supra) was upheld. 10. We have heard the arguments and perused the relevant record. From the perusal of the file and from the arguments and contentions in the Appeal, it is apparent that till date the Opposite Party has not been able to tell whether they have obtained the Occupancy Certificate or not. Even in the Appeal, there is no mention of the fact whether the Occupancy Certificate has so far been obtained or not although, during the arguments, learned Counsel for the Opposite Party has submitted that under the directions of H-RERA, once the builder applies for Occupancy Certificate, it shall be deemed to have been obtained. From perusal of the Appeal, it is apparent that there is no such contention that the Opposite Party had applied for Occupancy Certificate. Rather the Appeal is devoid of any contention related to Occupancy Certificate. It is apparent that as per the Builder Buyer Agreement dated 28.11.2011, the possession was to be handed over within 30 months and till date, there is nothing on record which could show that the Occupancy Certificate had been obtained and the possession could be given. The order of the State Commission to refund the money on account of failure of the Opposite Party to hand over the possession as desired by the Complainant cannot be found fault with. The possession was to be handed over in May 2014 but till date, i.e. July 2022 we do not find any Occupancy Certificate being placed on record to show that there is any possibility of handing over of possession to the Complainant. It is about eight years since due date of possession and it has been held by Hon’ble Supreme Court in number of cases that where there is a delay in handing over the possession, the Complainant cannot be compelled to accept the possession. Few of the cases have been relied upon by the State Commission in para (8) of its order. In light of these settled principles of law, the order for refund of money in view of failure on the part of the Opposite Party to hand over the possession, cannot be said to be suffering with illegality and infirmity. 11. Learned Counsel for the Opposite Party has vehemently relied on the letter dated 03.03.2018 which is annexed as Annexure 11 and has placed on this file at page no.105. This is the final statement of account. Learned Counsel for the Opposite Party submits that vide this letter an offer to take possession was made to the Complainant. We have seen this letter. We do not find any mention of the expression “offer” in this letter. It is only a demand letter showing the final statement of account. 12. Learned Counsel for the Appellant has also contended that the Complainant/Respondent had been a defaulter in making the payment, however, they have failed to raise or prove any such contention before the State Commission. As regards the final demand raised by the Appellant on account of increased area is concerned this Commission in the case of Pawan Gupta’s case (supra) has clearly held as under: 17. The complaints have been filed mainly for two reasons. The first is that the opposite party has demanded extra money for excess area and second is the delay in handing over the possession. In respect of excess area, the complainant has made a point that without any basis the opposite party sent the demand for excess area and the certificate of the architect was sent to the complainant, which is of a later date. The justification given by the opposite party that on the basis of the internal report of the architect the demand was made for excess area is not acceptable because no such report or any other document has been filed by the opposite party to prove the excess area. Once the original plan is approved by the competent authority, the areas of residential unit as well as of the common spaces and common buildings are specified and super area cannot change until there is change in either the area of the flat or in the area of any of the common buildings or the total area of the project (plot area) is changed. The real test for excess area would be that the opposite party should provide a comparison of the areas of the original approved common spaces and the flats with finally approved common spaces/ buildings and the flats. This has not been done. In fact, this is a common practice adopted by majority of builders/developers which is basically an unfair trade practice. This has become a means to extract extra money from the allottees at the time when allottee cannot leave the project as his substantial amount is locked in the project and he is about to take possession. There is no prevailing system when the competent authority which approves the plan issues some kind of certificate in respect of the extra super area at the final stage. There is no harm in communicating and charging for the extra area at the final stage but for the sake of transparency the opposite party must share the actual reason for increase in the super area based on the comparison of the originally approved buildings and finally approved buildings. Basically the idea is that the allottee must know the change in the finally approved lay-out and areas of common spaces and the originally approved lay-out and areas. In my view, until this is done, the opposite party is not entitled to payment of any excess area. Though the Real Estate Regulation Act (RERA) 2016 has made it compulsory for the builders/developers to indicate the carpet area of the flat, however the problem of super area is not yet fully solved and further reforms are required. 13. These findings were duly confirmed by the Hon’ble Supreme Court vide its order dated 12.01.2021. It is apparent that there was no contention before the State Commission showing justification of the increase in the area and no document in support of the contention that the payment of excess area was justified had been placed on record. In view of these contentions, the findings of the State Commission which are based on the evidences and contentions before it cannot be said to be illegal findings or suffering with any infirmity. 14. For the reasons discussed above, we do not find any merit in the present Appeal. The Appeal is dismissed. |
