1.      Heard Mr. R.P. Dangi, Advocate, for the complainant and Mr. Ritu Raj, Advocate, for opposite party.

2.      Harpal Singh has filed above complaint, for directing the opposite party to (i) handover possession of Unit No.CGD-121, complete in all respect, as per specification, with all permission including “completion certificate” & “occupation certificate” and pay delay compensation in the form of interest @18% per annum compounded quarterly on his deposit from due date of possession till the date of possession; (ii) bear the brunt of increase in taxes, after due date possession; (iii) set aside the demand for increase in saleable area; (iv) if promised facilities and amenities are not provided then to compensate for it; (v) pay Rs.10/- lacs, as compensation for mental agony and harassment; (vi) pay compensation under Section 14(hb) of Consumer Protection Act, 1986; (vii) pay Rs.1/- lacs, as litigation costs; and (viii) any other relief which is deemed fit and proper in the facts and circumstances of the case.

3.      The complainant stated that the opposite party was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. The opposite party launched a group housing project, in the name of “Capital Greens” at 15, Shivaji Marg, New Delhi-110015, in the year, 2010 and made wide publicity of its amenities and facilities. Believing upon the representations of the opposite party, the complainant booked a flat and deposited booking amount of Rs.1538625/- on 20.01.2011. The opposite party allotted Flat No.CGD121, area 1465 sq.ft. and two parking spaces, total consideration of Rs.16865000/-. Payment plan was “construction link payment plan”, under which entire consideration was payable in 11 instalments till 20.04.2013. The opposite party executed Apartment Buyer’s Agreement dated 13.09.2011 in favour of complainant. For timely payment of instalment, the complainant took loan of Rs.6576100/- from State Bank of Bikaner and Jaipur, which was sanctioned on 23.01.2011. As per demand, the complainant paid Rs.17535633/-. Clause-11(a) of the agreement provides to complete the construction within 36 months from the date of application, which was expired on 19.01.2014. The opposite party, vide letter dated 20.08.2016, offered possession with demand of Rs.2571753/- + Rs.162300/- as Interest Bearing Maintenance Security. Cost of the unit was increased about 20% and several other authorised charges were added, in final demand letter. After due date of possession taxes were revised/increased. Although possession was delayed but delay compensation has not been paid. The complainant visited the site and found that essential service viz. electricity, water connection sewage line etc. were missing and club related facilities were not complete. There were several construction defects in the flat. The complainant, vide email dated 04.05.2017, supplied list of the snags to the opposite party and requested to remove deficiencies. But the opposite party did not respond. Then this complaint was filed on 15.05.2017, alleging deficiency in service.        

4.      The opposite party has filed its written reply on 03.08.2017, in which, booking of the flat, allotment of the flat, execution of Apartment Buyer’s Agreement and the deposits made by the complainant, have not been disputed. The opposite party stated that the project comprises three phases i.e. Phase-I, Phase-II and Phase-III, total 23 towers varying from 21 to 29 stories with 2856 apartments. Terms and Conditions as contained in Apartment Buyer’s Agreement, are same as given in Booking Application, therefore it cannot be said to be one sided. In any case, it cannot be challenged after five years. The apartment allotted to the complainant is in Tower-D. Phase-1 comprises Towers-A, B, C, D, E, F, G, H, J and K (10 towers). The opposite party completed construction of Phase-I and applied for issue of “occupation certificate” on 12.03.2015, which was issued on 30.06.2016 and possession was offered on 20.08.2016. The opposite party offered good-will package under which on payment within 60 days, 7.5% discount was provided and on payment within 120 days 6% discount was provided. But the complainant did not pay the final demand and avoided to take possession. The delay has occurred for the reasons beyond the control of the opposite party i.e. (i) Approvals were delayed by statutory authorities. (ii) Closure of the work at the site by BOCW. (iii) Scarcity of construction labour. (iv) An unfortunate incident took place at the site and one labour received fatal injury. Directorate of Industrial Safety and Health (Labour Department) of Govt. of National Territory of Delhi stopped the construction on site vide order dated 26.05.2014, which continued till 16.09.2014, in respect of 5 towers. By order dated 06.01.2015, permission for construction was given in respect of 5 more towers and vide order dated 30.01.2015, permission was given for 5 more towers. Finally on 30.07.2015, ban was fully lifted. Delay for force majeure is liable to be condoned under clause-11 of the agreement. Super area has been tentatively mentioned and in clause-1.6 of the agreement, it was provided that super area would be calculated after completing the construction and any increase or decrease of ‘super area’ shall be payable or refundable. After issue of “occupation certificate” super area was finally calculated as 1623 sq.ft. Taxes are statutory liability and has to be paid. All other demands were in accordance with agreement. It has been denied that the complainant had timely paid the instalment. Instalments due on 20.03.2011 was delayed for 16 days, 20.07.2011 was delayed for 37 days, 29.10.2011 was delayed for 16 days, 20.01.2012 was delayed for 42 days, 20.04.2012 was delayed for 96 days, 20.07.2012 was delayed for 143 days, 29.03.2013 was delayed for 56 days, 07.02.2014 was delayed for 47 days and 07.03.2014 was delayed for 19 days. It has been denied that there was no access to electricity, water, road etc. Most of the allottees have taken possession of their unit and are living in it without any complaint. Final finishing work used to be done after deposit of final demand. As the complainant has not deposited final demand nor completed formalities of documentation as such he is not entitled to raise any objection in respect of final finishing work. The opposite party has not committed deficiency in service or any unfair trade practice. Various preliminary objections were raised. The complaint has no merit and liable to be dismissed.

5.      The complainant filed Replication, Affidavit of Evidence of Harpal Singh and documentary evidence. The opposite party filed Affidavit of Evidence, Affidavit of Admission/Denial of documents Rahul Vohra of and documentary evidence. The complainant has filed written synopsis.

6.      We have considered the arguments of the counsel for the parties and examined the record. Clause-11(a) of the agreement provides to complete the construction within 36 months from the date of application, which period was expired on 19.01.2014. The opposite party stated that construction was completed in March, 2015. The opposite party applied for issue of “occupation certificate on 12.03.2015, which was issued on 30.06.2016 and possession was offered on 20.08.2016. As such there was delay in offer of possession. The opposite party took plea that construction was delayed for force majeure reasons. So far as delay in obtaining sanction for construction, is concerned, it happened prior to the agreement dated 13.09.2011 and is not relevant. Payment plan was “construction link payment plan”. As per schedule of payment as given in Allotment Letter dated 22.01.2011, last instalment before the instalment “on offer of possession” was payable on 20.01.2013 but it was demanded on 10.02.2014. Thereafter, Directorate of Industrial Safety and Health (Labour Department) of Govt. of National Territory of Delhi stopped the construction on site vide order dated 26.05.2014, which continued till 16.09.2014, in respect of 5 towers.    

7.      So far as delay in issue of “occupation certificate” is concerned, the opposite party has not stated there was no objection raised by statutory authority. If issuance of “occupation certificate” was delayed due to the objection, then the opposite party will not get any benefit of it. Force majeure as defined in the agreement only covers four months period, for which, construction was stopped by Directorate of Industrial Safety and Health Department and two months period for obtaining “occupation certificate”.  

8.      In the present case, super area has been increased from 1465 sq.ft to 1623 sq.ft. i.e. total 158 sq.ft.) i.e. 10.7%. Supreme Court in DLF Home Developers Ltd. Vs. Capital Green Flat Buyers Association, (2021) 5 SCC 537, upheld the demand for increased area. Other demands are in the terms of the agreement. Supreme Court in Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes (P) Ltd., (2020) 16 SCC 512 and DLF Homes Developers Ltd. Vs. Capital Green Flat Buyers Association, (2021) 5 SCC 537, held that interest @6% per annum on the deposit of home buyer from due date of possession till the date of offer of possession, was just delay compensation.

ORDER

In view of aforesaid discussions, the complaint is partly allowed with cost of Rs.50000/-. The opposite party is directed to issue a fresh statement of account giving delay compensation to the complainant in the form of interest @6% per annum on his deposit from August, 2014 to 20.08.2016, within a period of one month from the date of this judgement. The opposite party is entitled to charge interest @9% per annum on the excess amount after adjusting delay compensation, from 21.08.2016. If any amount is payable by the opposite party, it will be paid to the complainant along with statement of account. If any amount will be payable by the complainant, he shall be given one month time to deposit it. After settlement of the account, the opposite party will handover possession of the apartment to the complainant, complete in all respect as per specification and execute conveyance deed in his favour within two months thereafter.