1.      Heard Mr. Gyan Prakash Saxena (Authorised Representative of the complainants), in the Court Room and Mr. Pravin Bahadur, Advocate and Mr. Aditya Singh, Advocate, for the opposite parties, through video conferencing.

2.      Dr. Shipra Tripathi and Km. Snigdha Ojha (the complainants) have filed this complaint for directing DLF, Home Developers Limited (opposite-party-1), (hereinafter referred to as the builder) (i) to give possession of Apartment No. CGC-243 and Parking No.PC-3036, DFL Capital Green, Shivaji Marg, New Delhi, (ii) to pay compensation due to delay in giving possession, from 17.04.2012, awarding the interest at the rate, which is being charged by the builder from the buyers for delayed payment, on the money deposited by them, (iii) to pay compensation, equivalent to 25% of the cost of apartment, for changing shape of the apartment from its original lay out, (iv) to refund Rs.1,13,866.24, with interest, which was realised as cost of increased area of the apartment, (v) to refund government charges, realised from the complainants, (vi) to pay compensation for mental agony suffered by the complainants and (vii) Any other order which the Commission deemed fit and proper, in the fact and circumstances of the case be passed; In alternative the opposite party be directed to refund the amount deposited by the complainants along with such interest, which would be sufficient for the complainants to purchase other apartment of same standard. The facts as stated in the complaint and emerged from the documents are that DFL Estates (Delhi) Private Limited (which was later on incorporated as DLF, Home Developers Limited) (the builder) was engaged in developing, constructing multi-story buildings and selling its unit, under Down Payment Plan and Time Bound Interest Free Instalments Plan. In March, 2009, the builder advertised construction of residential flats in the name of DFL Capital Green, Shivaji Marg, New Delhi. M/S G.T.S. Exports Pvt. Ltd., 24-A, Opp. Street No.-4, Industrial Area, New Rohat Road, New Delhi-110005 deposited Rs.5,00,000/- on 18.04.2009 and booked a residential flat. The builder allotted Apartment No. CGC-243 and Parking No.PC-3036, DFL Capital Green, Shivaji Marg, New Delhi, admeasuring super area of size 1420 Sq.ft. at the rate of Rs. 6000/- per Sq. ft. The builder gave a letter dated 20.04.2009, to M/S G.T.S. Exports Pvt. Ltd., offering therein that in case, you opt for Down Payment Plan and deposit 95% of sale consideration within 30 days from the date of booking then 8.5% of sale price would be given as Down Payment Rebate along with Rs.500/- per Sq.ft. as Timely Payment Rebate. Remaining 5% of sale price has to be paid at the time of possession. M/S G.T.S. Exports Pvt. Ltd. deposited Rs.70,47,325/- (adjusting Down Payment Rebate and Timely Payment Rebate) on 12.05.2009 and paid 95% of sale price. Apartment Buyer’s Agreement was executed on 12.05.2009, between the parties, in which total cost of the apartment of 1420 Sq.ft. was mentioned as Rs.95,30,000/- (i.e. Rs.85,20,000/- (at the rate of Rs.6000/- per Sq. ft.) as Basic Sale Price, Rs.7,10,000/- as Preferential Location Charge and Rs.3,00,000/- as Parking Space Charge). In clause-11 (a), of this agreement, it was mentioned that subject to all just exceptions, endeavours be made to complete construction within 36 months from the date of Application. M/S G.T.S. Exports Pvt. Ltd. was in need of money and decided to sell this apartment and Dr. Sunit Kumar Ojha (husband of complainant-) and Dr. Shipra Tripathi agreed to purchase it. M/S G.T.S. Exports Pvt. Ltd. moved an application dated 30.08.2010 before the builder for granting permission to sell the apartment. The builder through letter dated 31.08.2010, informed that they had no objecting in selling the apartment and nominating the buyer.  Dr. Sunit Kumar Ojha took a loan of Rs.83,00,000/- from ICICI Bank on 31.08.2010 and Dr. Sunit Kumar Ojha and Dr. Shipra Tripathi arranged remaining sale consideration from their saving bank accounts and paid Rs.83,50,000/- to M/S G.T.S. Exports Pvt. Ltd. and Rs.4,62,625/- had to be paid to the builder. An agreement to sell dated 03.09.2010 was executed between the parties. On 06.09.2010, they deposited Rs.71,000/- with the builder  as nomination charges and got the names of Dr. Sunit Kumar Ojha and Dr. Shipra Tripathi, recorded in the record of builder over the aforesaid apartment, in place of M/S G.T.S. Exports Pvt. Ltd.  Thereafter, the builder, through letter dated 11.10.2010 informed about change of its name. Dr. Sunit Kumar Ojha died on 02.01.2012, leaving the complainants as his heirs. The builder through letter dated 28.02.2013, informed the complainants that to meet out the requirement of Delhi Fire Service, he had increased saleable area of the apartment to 1434.81 Sq.ft. from 1420 Sq.ft. and demanded Rs.99,958/- for increased area. The complainants deposited Rs.1,07,260.24 on 09.01.2014 for the increased area. The builder through letter dated 08.07.2016, informed that Occupation Certificate has been obtained and final statement of account was being prepared for offering possession. The builder, through letter dated 24.08.2016, sent the final Statement of Account of the complainant, showing balance of Rs.17,46,209.80/- and asked to deposit this amount and complete the documentation for taking possession. Then this complaint was filed on 02.09.2016, complaining that the builder had not paid (i) Compensation for delayed possession, (ii) Compensation for changing lay out plan of the apartment and Super Area has been arbitrarily increased, for which they were not liable to pay.                 

3.      The builder filed its written statement on 28.10.2016 and contested the complaint. In written statement, they admitted booking of Apartment No. CGC-243 and Parking No.PC-3036, DFL Capital Green, Shivaji Marg, New Delhi, admeasuring super area of size 1420 Sq.ft. at the rate of Rs.6000/- per Sq. ft., by M/S G.T.S. Exports Pvt. Ltd. and deposit of Rs.5,00,000/- on 18.04.2009, deposit of Rs.70,47,325/- and execution of Apartment Buyer’s Agreement on 12.05.2009, between the parties, and total cost of the apartment of 1420 Sq.ft. was mentioned as Rs.95,30,000/- (i.e. Rs.85,20,000/- (at the rate of Rs.6000/- per Sq. ft.) as Basic Sale Price, Rs.7,10,000/- as Preferential Location Charge and Rs.3,00,000/- as Parking Space Charge), permission granted to M/S G.T.S. Exports Pvt. Ltd. to transfer the apartment to Dr. Sunit Kumar Ojha and Dr. Shipra Tripathi and agreement to sell dated 03.09.2010, recording their names in the records and deposit of Rs.1,07,260.24 on 09.01.2014. They stated that DFL Capital Green Project comprises three Phases, having total 23 towers with 2,856 apartments. The project has various features like rain water harvesting, earthquake resistant building, swimming pool, convenient shopping centre, community space for elderly citizens, playground, dedicated walking and jogging tracks, secured and dedicated three level basement parking and club facility etc. They applied for sanction of Lay-out Plan before Municipal Corporation, Delhi, for Phase-1 in May, 2009, by whom reports/no objections were obtained from various government departments and Lay-out Plan was approved in March, 2010, then the construction work was started. They engaged a renowned Architect namely Hafeez Contractor for architecture and design of the project, M/S Larsen & Toubro Ltd. for construction and Jones Lang Lasalle, a multinational apartment and facilities management company to audit and control quality of the construction. The construction was done with maximum strength, employing about 4500 workers and required heavy machines. Some casualty happened on the site on 17.05.2014 as such the construction work was stopped by Director of Industrial Safety and Heath, Labour Department of Government on 26.05.2014, which was revoked on 16.09.2014, then construction was resumed. After completion of construction of Phase-1, the builder applied for Occupation Certificate in March, 2015, which was issued on 30.06.2016. The builder vide email dated 08.07.2016 informed the complainant about issue of Occupation Certificate. After preparing final statement of account, it was sent to the complainant on 31.08.2016, with request to deposit the amount due and complete documentation for taking possession. The delay has occurred in completing a big project firstly due to delay in approval of Lay-out Plan and secondly due to stopping the work by Labour Department, which were beyond the control of the builder. The builder suffered heavy monetary loss due to escalation of the costs of building materials and labour charges, due to delay. Super area has been increased to meet out the objection of Fire Service Department. In clause-14 (i) of the booking application form and clause-9 of Apartment Buyer’s Agreement, it was disclosed that building plan, designs, specifications, measurements, dimensions, location, number of apartment, building floor  and other terms and conditions were tentative and could be altered at the discretion of the builder. Under clause-18 of the booking application form and clause-11 (a), of Apartment Buyer’s Agreement, handing over possession was subject to force majeure conditions. Clause-18 of the booking application form and clause-14 of Apartment Buyer’s Agreement provide for payment of compensation for delayed possession to the original allottee at the time of handing over of the possession, at the discretion of the builder. The complainants are not original allottee rather a subsequent transferees as such they are not entitled for compensation for delayed possession. The builder has also raised preliminary objections that total valuation of the apartment was Rs.95,30,000/-, which is below the pecuniary jurisdiction of this Commission; In the complaint, neither cause of action nor any deficiency in service have been shown; and nothing has been said that the complainants were consumer and there was deficiency in service by the builder. In the absence of these necessary ingredients, the complaint was not maintainable. The agreement contained an arbitration clause as such the complaint be dismissed with direction to the complainants to go in arbitration. The pleadings are vague and cause of action for filing the complaint is missing in it. There is no pleading regarding deficiency of service or unfair trade practice. 

4.      The complainant filed Rejoinder Affidavit to the written statement of the builder on 06.09.2017, in which she denied material facts contrary to the complaint and reiterated the facts stated in the complaint. It has been stated that the builder had changed design of the lay out plan and increased the area of super structure of the flat to 1579 Sq.ft. from 1420 Sq. ft. The design of the apartment, shown at the time of booking has been changed. The present construction is disadvantageous. Area of balcony connected with master bed room and entrance lobby have been increased in order to raise unfair cost. Change in design of the apartment diminishes its look. Apartment was transferred to complainant-1 and her husband with prior permission of the builder, for which they had charged Rs.71,000/- and recorded the names of the transferee in their record. The benefits provided to original allottee cannot be denied to its transferee. Under the allotment letter and Apartment Buyer’s Agreement, the possession has to be delivered till 17.04.2012, while Occupation Certificate was obtained on 30.06.2016. The builder is liable to pay compensation for delay in possession to the complainant. The complainants took loan for paying sale price for which they were continuously paying interest at higher side. The builder himself is charging interest at the rate of 15% p.a. for a delay of three months and thereafter at the rate of 18% p.a. They are liable to pay same interest to the buyer for delay in possession. The complainants are suffering with mental agony for four years for not getting possession and paying heavy interest to the bank. Illegal demands have been made in the letter dated 31.10.2016, white the benefits available to the buyer has not been given as such it was not possible for the complainants to take possession of the apartment.  

5.      The complainants filed documentary evidence along with the complaint (i) Copy of receipt dated 18.04.2009, (ii) copy of letter dated 20.04.2009, (iii) copy of receipt dated 12.05.2009, (iv) Apartment Buyer’s Agreement dated 12.05.2009, (v) copy of letter dated 31.08.2010, granting permission to sell, (vi) copy of statement of account of ICICI Bank (vii) copy of sale agreement dated 03.09.2010, (viii) Email dated 11.10.2010, changing the name of builder (ix) copy of death certificate of Dr. Sunit Kumar Ojha, (x) copy of Surving Member Certificate, (xi) copy of receipt dated 09.01.2014, (xii) Email dated 08.07.2016, (xiii) Email dated 24.08.2016. An Affidavit of Dr. Shipra Tripathi, relating to Admission/Denial of Evidence of the opposite party.

6.      The builder filed an Affidavit of Evidence of Manish Kumar and an Affidavit of Manish Kumar relating to Admission/Denial of Evidence of the complainants. The builder filed documentary evidence (i) copy of Apartment Buyer’s Agreement dated 12.05.2009, (ii) copy of letter dated 30.08.2010, for granting permission to sell, (iii) copy of sale agreement dated 03.09.2010, (iv) copy of Affidavit of Tarun Sethi, for transferring the names of Dr. Sunit Kumar Ojha and Dr. Shipra Tripathi, (v) copy of affidavit of Dr. Sunit Kumar Ojha, (vi) copy of nomination of Dr. Sunit Kumar Ojha and Dr. Shipra Tripathi, (vii) copy of undertaking of Dr. Sunit Kumar Tripathi, (viii) copy of letter dated 16.09.2010, (ix) copy of letter dated 11.09.2014, (x) copy of letter dated 20.10.2014, (xi) copy of letter dated 14.11.2014, (xii) copy of letter dated 12.01.2015, (xiii) copy of letter dated 07.08.2015,, (xiv) copy of letter of Municipal Corporation Delhi dated 17.03.2010, (xv) copy of letter of Municipal Corporation Delhi dated 12.08.2011, (xvi) copy of letter of Municipal Corporation Delhi dated 12.10.2011, (xvii) copy of letter of North Delhi Municipal Corporation dated 15.02.2013, (xviii) c copy of letter of Municipal Corporation Delhi dated 04.09.2009, (xix) copy of receipt from Delhi Urban Art Commission, (xx) copy of receipt from Delhi Urban Art Commission, (xxi) copy of letter dated 04.09.2009 of Delhi Urban Art Commission, (xxii) copy of letter dated 30.10.2009 of Delhi Urban Art Commission, (xxiii) copy of letter dated 13.11.2009 of Delhi Urban Art Commission, (xxiv) copy of letter dated 24.11.2009 of Delhi Urban Art Commission,  (xxv) copy of letter dated 14.01.2010 of Delhi Urban Art Commission, (xxvi) copy of letter dated 29.01.2010 of Delhi Urban Art Commission, (xxvii) copy of letter of Municipal Corporation Delhi dated 24.08.2009, (xxviii) Copy of letter dated 27.08.2009 of Erama Estate Private Limited, (xxix) copy of letter dated 25.09.2010 of Director Fire Service, Delhi, (xxx) copy of letter of Municipal Corporation Delhi dated 13.08.2009, (xxxi) copy of letter dated 28.01.2010 of Director Fire Service, Delhi, (xxxii) Copy of letter dated 13.02.2016, (xxxiii) Copy of letter dated 08.07.2016, (xxxiv) Copy of letter dated 06.05.2016, (xxxv) Copies of photographs and (xxxvi) Copy of Statement of Account dated 31.08.2016, (xxxvii) Copy of letter dated 27.08.2009 of IRAMA Estates Pvt. Ltd. addressed to The Chief Fire Officer, (xxxviii) Copy of letter dated 27.08.2009 of IRAMA Estates Pvt. Ltd. addressed to the Chief Fire Officer, (xxxix) Copy of letter dated 25.09.2009 of Government of National Capital Territory of Delhi Directorate of Delhi Fire Service New Delhi addressed to the Executive Engineer (B) HQ, (XL)  Copy of letter dated 25.09.2010 of Government of National Capital Territory of Delhi Directorate of Delhi Fire Service New Delhi addressed to the Executive Engineer (B) HQ, (XLI) Copy of letter dated 28.01.2010 of Government of National Capital Territory of Delhi Directorate of Delhi Fire Service New Delhi addressed to the Executive Engineer (B) HQ, (XLII) Copy of letter dated 28.01.2010 of Government of National Capital Territory of Delhi Directorate of Delhi Fire Service New Delhi addressed to the Executive Engineer (B) HQ, (XLIII) Copy of letter dated 28.01.2010 of Government of National Capital Territory of Delhi Directorate of Delhi Fire Service New Delhi addressed to the Executive Engineer (B) HQ, (XLIV)   Copy of letter dated 28.01.2010 of Government of National Capital Territory of Delhi Directorate of Delhi Fire Service New Delhi addressed to the Executive Engineer (B) HQ, (XLV)  Copy of letter dated 28.02.2013 of DLF Home Developers Ltd. addressed to Dr. Sunit Kumar Ojha, (XLVI) Copy of delayed interest statement dated 26.10.2016 (XLVII) Copy of proof of dispatched receipt.

7.      Gyan Prakash Saxena (Authorised representative of the complainants) submitted that according to the allotment letter dated 18.04.2009 and Apartment Buyer’s Agreement dated 12.05.2010, the builder has to deliver possession of the apartment within 36 months from the date of application. 95% of sale price has been realized till 12.05.2009. Under clause-14 of the Apartment Buyer’s Agreement, the builder was liable to pay compensation for delay in possession at the rate of Rs.10/- per Sq. ft. per month for the delayed period. The builder is charging 15% p.a. interest for three months of delayed period and 18% p.a. interest thereafter. The buyer is also liable to pay same interest w.e.f. 18.04.2012 till date of offer of possession as the complainants have taken loan from the bank and paying interest. In final statement of account dated 31.08.2016, no compensation for delayed period of possession has been given. The builder has arbitrarily increased Super Area to the extent of 159 Sq. ft. and is illegally realising its price. The builder has illegally changed the design of the apartment, due to which its look has been diminished. Apartment was transferred to complainant-1 and her husband with prior permission of the builder, for which they had charged Rs.71,000/- and recorded their names in their record. The benefits available to original allottee cannot be denied to its transferee.

8.      The counsel for the builder submitted that the builder had applied for sanction of Lay-out Plan before Municipal Corporation, Delhi, for Phase-1 (in which disputed apartment is situated) in May, 2009. Municipal Corporation called for reports/no objections from various government departments and Lay-out Plan was approved in March, 2010, then the construction work was started. They engaged a renowned Architect namely Hafeez Contractor for architecture and design of the project, M/S Larsen & Toubro Ltd. for construction and Jones Lang Lasalle, a multinational apartment and facilities management company to audit and control quality of the construction. The construction was done with maximum strength, employing about 4500 workers and required heavy machines. Some casualty happened on the site on 17.05.2014 as such the construction work was stopped by Director of Industrial Safety and Heath, Labour Department of Government on 26.05.2014, which was revoked on 16.09.2014, then construction was resumed. After completion of construction of Phase-1, the builder applied for Occupation Certificate in March, 2015, which was issued on 30.06.2016. The builder vide email dated 08.07.2016 informed the complainant about issue of Occupation Certificate. After preparing final statement of account, it was sent to the complainant on 31.08.2016, with request to deposit the amount due and complete documentation for taking possession. The delay has occurred in completing a big project firstly due to delay in approval of Lay-out Plan, secondly due to stopping the work by Labour Department and thirdly in issuing Occupation Certificate, which were beyond the control of the builder. The builder suffered heavy monetary loss due to escalation of the costs of building materials and labour charges, due to delay. Super area has been increased and designed was changed to meet out the objection of Fire Service Department. In clause-1.6 and in Annexure-II of Apartment Buyer’s Agreement, it was disclosed that super area mentioned in the agreement was tentative and it would be confirmed only after completion of construction. No objection can be raised for increase of super area or change of design at this stage.  

9.      We have considered the arguments of the parties and examined the record. According to the commitment made in the allotment letter and Apartment Buyer’s Agreement, the builder had to offer possession on or before 17.04.2012 but it was offered on 31.08.2016 as such there is delay in offering possession. Under clause-14 of the Apartment Buyer’s Agreement, the builder was liable to pay compensation for delay in possession at the rate of Rs.10/- per Sq. ft. per month for the delayed period. Supreme Court in DLF Home Developers Ltd. Vs. Capital Green Flat Buyers Association, 2020 SCC OnLine SC 1125 arising out of same project has not accepted the explanation of the builder for delay and held that the delay was not caused due to force majeure and directed the builder to pay compensation from the date of expected possession. Relying upon Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512, the builder was directed to pay compensation in the shape of interest at the rate of 6% per annum, on the sale price deposited by the buyers. This judgment is binding upon the builder and also upon us.

10.    Under the law, a transferee steps in the shoes of its transferor with same right and liability. If the transferor was entitled for compensation for delay in delivery of possession, then there is no reason to deny the same benefit to the complainant. The apartment was transferred/assigned to the complainants on 03.09.2010, with prior approval of the builder, i.e much before expected date of delivery of possession i.e. 17.04.2012. In case, the transfer was subsequent to the date expected possession, then the builder can say that knowing delay in construction, the property was purchased. 

11.    In clause-1.6 and Annexure-II of Apartment Buyer’s Agreement, it was disclosed that super area mentioned in the agreement was tentative and it would be confirmed only after completion of construction. No objection can be raised for increase of super area or change of design at this stage. If the complainants dislike the present design, they can opt for return of their money in accordance with Apartment Buyer’s Agreement but at this stage, design cannot be changed. Increase of ‘Super Area’ and change in design in this project have been upheld by this Commission in Capital Greens Flat Buyers Association Vs. DFL Universal Ltd. 2020 SCC OnLine NCDRC 3.

12.    The complainants have moved IA/3319/2020 in which 12 additional prayers have been made than the prayers made in the complaint.  We do not find any merit in the additional prayers made in the IA/3319/2020.  Accordingly, it is rejected.  

13.    The complainants moved another interim application i.e. IA/4382/2021 in which 5 additional prayers have been made.  The some of the prayers made in this application is overlapping with the prayers made in the original complaint.  We do not find any justification to consider this application at this stage.  Accordingly, it is rejected.

O R D E R

14.    In view of aforementioned discussions the complaint is partly allowed. DLF Home Developers Ltd., (the builder) is directed (i) to offer possession of the apartment in dispute to the complainants afresh and hand over its possession to the complainants within 6 weeks and execute the sale/conveyance deed in their names, within one month thereafter, on payment of stamp duty, registration charges and other incidental legal charges, (ii) to pay compensation for delay in possession, i.e. interest @ Rs. 6%- per annum from 18.04.2012 till the offer of possession afresh on the sale price deposited by the predecessor of the complainants. The builder is entitled to realise/adjust the price of the increased area, and (iii) pay a cost of Rs.50,000/- to the complainants to meet out their litigation and other expenses.