JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)

          On 29.09.2012, the complainants booked a residential apartment with the OP in a project namely ‘The Primus’ which the OP was to develop in Gurgaon.  On 11.05.2013, the parties executed an Apartment Buyers Agreement, incorporating their respective obligations in respect of the aforesaid transaction.  As per clause 11(a) of the said agreement, the possession was expected to be delivered within 42 months from the date of the application, subject of course to force majeure conditions and subject to the allottee paying the total price and other charges as per the said agreement. 

2.      Initially, the apartment was booked by complainant no. 1 and one Mr. Rohit Diwan.  Later on, the name of Mr. Rohit Diwan was substituted by the name of complainant no. 2 who is the wife of complainant no. 1. 

3.      Vide letter dated 27.01.2017, the OP requested the complainants to complete the requirements mentioned therein including the payment of the balance amount as per the statement enclosed thereto.  A total sum of Rs.26,42,553.62p was demanded from the complainants.  The complainants sent a legal notice to the OP on 17.03.2017 disputing the amount demanded from them.  The said notice was replied by the OP on 28.04.2017.  Since the complainants were not satisfied with the reply received by them, they approached this Commission with the following prayers:

1. Interest @ 18% per annum on total amount deposited i.e. Rs.1,21,19,865/- (Rs. One Crore Twenty One Lacs Nineteen Thousand Eight Hundred Sixty Five Only) from the date of payment on monthly basis from 29.03.2016 till May 2017 and thereafter on monthly basis before 7^th Day of every month from May 2017, till the delivery of the possession of Flat No.PMC-264;

2. Rs.3,38,625/- against rent incurred by complainants till filing of complaint due to delay in delivery of flat and further till it’s actual delivery of flat no. PMC-264;

3. Rs.5,00,000/- compensation as per clause 15 of agreement dated 11.05.2013 for offering delayed possession of flat in question;

4. Rs.5,00,000/- to the complainants towards the mental harassment suffered by them due to delay in the delivery of flats by the opposite party;

5. Rs.50,000/- to complainants for litigation expenses incurred by them against the opposite party;

6. To provide the actual final statement of flat after waiving of exorbitant charges under the heads of Escalation charges, other costs, cost on super area, service tax etc.;

7. Convey the exact date/month of delivery of possession of the apartment no. PMC-264.

4.      The complaint has been resisted by the OP which has admitted the allotment made to the complainants and the agreement executed with them.  It is inter-alia stated in the written version filed by the OP that the complainants had defaulted in payment on several occasions and therefore, they are not entitled to any compensation. 

5.      Though possession of the allotted flat has not been specifically sought in the consumer complaint, such a prayer, in my opinion, is implicit in the other prayers made in the complaint.  The only questions which arise for consideration in this complaint are as to whether the demand raised by the OP was justified and if so, to what extent and whether the complainants are entitled to any compensation for the delay in offering possession of the apartment and if so, what should be the quantum of such a compensation. 

6.      It transpired during the course of arguments that the super area of the flat, according to the learned counsel for the OP, has increased from 1799 sq. ft. to 1818 sq. ft.  The OP therefore, vide order dated 08.08.2018, was directed to file an affidavit disclosing therein how the said super area had increased.  In compliance of the aforesaid order, the OP has filed the affidavit of its V.P. (Planning) Mr. M.S. Negi.  The said affidavit, to the extent it is relevant, reads as under:

3.      I state that a bare perusal of the old plan indicates the break-up of the Saleable Area of the Complainant’s Apartment which is as follows:-

          a) Apartment Area = 131.527 Sq. Mtr.

b) Prorata Share of Common Areas as may be applicable i.e. entrance lobby, lift lobbies, lift shafts, electrical shafts, fire shaft, plumbing shafts, service ledges, common corridors and passages, staircases, mumties, service areas, lift machine rooms, helipads, OH & UG water tanks, pump room, electric substation, DG Room, fan rooms, maintenance offices/stores/fire control room and architectural features = 35.664 Sq. Mtr.

          Total Super Area (a + b) = 167.171 sq. mtr. or 1799 sq. ft.

4.      I state that as indicated in the old plan there is a deduction of 0.672 sq. mtr. from 132.99 sq. mtr. consequent to which the total apartment area becomes 131.527 sq. mtrs. I state that the deduction in the apartment area is evident from the old plan wherein deduction in the apartment area of 0.672 sq. mtr. is highlighted.  A copy of the old plan indicating the break-up of the saleable area of the complainant’s apartment is annexed herewith as Annexure-A.

5.      I state that the increase in the super area to the tune of 19 sq. ft. in the complainant’s apartment was consequent to the increase of apartment area including balcony and increase in pro rata common area.

6.      I state that as indicated in the new plan there is an increase of 0.663 sq. mt. in the apartment area is a result of increase in the area of the balcony provided with the said apartment allotted to the complainant.  I state that there is also an increase in the common area by 1.105 sq. mt.  A copy of the new plan depicting the break-up of the Saleable Area of the complainant’s apartment is annexed herewith and marked as Annexure-B.

7.      I state that a bare perusal of the new plan indicate the break-up of the Saleable Area of the complainant’s apartment which is as follows:

c) Apartment Area = 132.190 Sq. Mtr.

d) Prorata share of common areas as may be applicable i.e., entrance lobby, lift lobbies, lift shafts, electrical shafts, fire shafts, plumbing shafts, service ledges, common corridors and passages, staircases, mumties, services areas, lift machine rooms, helipads, OH & UG water tanks, pump room, electric substation, DG Room, fan rooms, maintenance offices/stores/fire control room and architectural features=36.749 Sq. Mtr.

Total Super Area (a + b) = 168.939 sq. mt. or 1818 sq. ft.

          It would be seen from the said affidavit that primarily the increase in super area has happened on account of increase in the common areas and only an increase of 0.663 sq. mtrs. can be attributed to the increase in apartment area.  The increase in apartment area is infact the increase in the area of the balcony provided in the apartment.  The complainants are therefore, liable to pay for the increased super area admeasuring 1818 sq. ft. 

7.      As far as the External Development Charges/Infrastructure Development Charges are concerned, this Commission noted that the said charges, according to the OP, increased to Rs.4,49,750/-.  Therefore, the OP was directed to file an affidavit disclosing therein how the External Development Charges/Infrastructure Development Charges had been calculated.  In compliance of the aforesaid direction, the OP has filed affidavit of its Authorised Representative Ms. Enakshi Kulshrestha which shows that the OP had incurred total cost of Rs.28,97,00,000/- towards those charges inclusive of interest and therefore, the allottees including the complainants are liable to pay @ Rs.232/- per sq. ft., as per the details given in Annexure-B to the said affidavit.  Annexure-B to the affidavit would show that the amount paid by the OP towards External Development Charges/Infrastructure Development Charges included Rs.671.31 lacs towards interest other than penal interest.  The penal interest, if any, has not been passed on to the allottees.  The learned counsel for the OP has drawn my attention schedule of payment which is Annexure-III to the agreement.  It shows that the complainants were required to pay Rs.3,95,780/- towards EDC and Rs.53,970/- towards IDC.  Since the same amount has been demanded from them, they are contractually liable to pay the same to the OP. 

8.      As far as the cost of parking is concerned, there is no issue between the parties and the said cost is payable by the complainants to the OP.  As far as demand of Rs.227.28 per sq. ft. towards other charges is concerned, it pertains to proportionate share of all applicable taxes and cesses paid/payable by the OP or it contractors.  The details of the said charges have already been given in the letter dated 02.05.2017 available at page no. 158 of the written version filed by the OP.  Therefore, the said charges are also payable by the complainants to the OP.

9.      As far as escalation charges are concerned, the same have been demanded @ Rs.65.70/- per sq. ft.  The certificate of Chartered Accountant filed by the OP shows that they incurred escalation charges amounting to Rs.8,21,59,756/- during the period from February 2012 to August 2015.  The said amount has been apportioned to the saleable area of 12,50,446 sq. ft. which is given in the above referred letter dated 02.05.2017 available on page no. 158 of the written version.  Therefore, the said escalation charges are also payable by the complainants to the OP. 

10.    Vide order dated 08.08.2018, the OP was also directed to file an affidavit disclosing therein as to how the proportionate charges for bulk power supply have been calculated.  In her affidavit, Ms. Enakshi Kulshrestha, Authorised Representative of the OP has inter-alia stated that the OP had incurred a total cost of Rs.8,23,00,000/- in order to provide electricity connection including creation of infrastructure and installations in the project ‘The Primus’.  The cost of the aforesaid charges recoverable from the allottees comes to Rs.66.55 per sq. ft.  Annexure-A to the affidavit gives the break-up of the aforesaid calculation.  I therefore, hold that the aforesaid charges are payable by the complainants, the same having been demanded @ Rs.66.55 per sq. ft.

11.    Since the OP has also demanded interest from the complainants on account of delayed payment of several installments, it was directed vide order dated 12.06.2018 to file statement supported by an affidavit disclosing therein the date on which a particular installment fell due, the date on which the said installment was paid and the interest payable on account of the said delay.  The said statement having been filed, the OP was also directed to file an affidavit supported by the report of an Architect disclosing therein the dates on which 11^th floor, 17^th floor, 22^nd floor, 27^th floor and terrace were cast, the date on which the finishing work commenced and the date on which the application for Occupancy Certificate was submitted.  The OP was also directed to file copies of the demand letters issued to the complainants from time to time with respect to the amounts payable after 24.01.2014.  In compliance of the aforesaid direction, the OP filed affidavit of Ms. Enakshi Kulshrestha, Authorised Representative of the OP dated 08.08.2018, which to the extent it is relevant, reads as under:

          2.      In compliance of the order dated 14.06.2018 passed by this Hon’ble Commission,

• I state that the demand letter for the 11^th installment was sent by the opposite party company on 07.03.2014 to the complainant asking for payment for an amount of Rs.10,15,341.98/- payable by 29.03.2014.

• I state that demand letter for the 17^th installment was sent by the opposite party company on 09.06.2014 to the complainant asking for payment for an amount of Rs.6,92,927.91/- payable by 30.06.2014.

• I state that demand letter for the 22^nd installment was sent by the opposite party company on 08.09.2014 to the complainant asking for payment for an amount of Rs.6,77,282.16/- payable by 29.09.2014.

• I state that demand letter for the 27^th installment was sent by the opposite party company on 08.12.2014 to the complainant asking for payment for an amount of Rs.6,77,430.98/- payable by 29.12.2014.

• I state that demand letter for the terrace was sent by the opposite party company on 09.03.2015 to the complainant asking for payment for an amount of Rs.13,56,010.98/- payable by 29.03.2015.

• I state that demand letter for the finishing work was sent by the opposite party company on 09.11.2015 to the complainant asking for payment for an amount of Rs.7,20,885.98/- payable by 02.12.2015.

  A copy of the demand letters alongwith the reminder letters sent by the opposite party company to the complainant asking for the payment for completion of construction of particular milestone is annexed herewith and marked as Annexure-A (Colly).

3.      In compliance of the order dated 12.06.2018 passed by this Hon’ble Commission, I state that the table depicting herein the date on which the particular installment fell due, the date on which said installment was paid by the complainant and interest payable on account of the said delay is annexed herewith and marked as Annexure-B.  A copy of the latest delayed interest statement is annexed herewith and marked as Annexure-C.

4.      I state that the opposite party after completing the construction applied for the Occupation Certificate on 30.03.2016 and the same was received by the opposite party company on 07.10.2016 from the concerned authority.  A copy of the application for Occupation Certificate is annexed herewith and marked as Annexure-D.  A copy of the grant of Occupation Certificate is annexed herewith and marked as Annexure-E.

          Annexure-B to the aforesaid affidavit discloses the interest payable by the complainants on account of delayed payments of several installments.  The total interest payable by the complainants comes to Rs.197576.38p due after deducting the interest already paid by the complainants, and is payable by the complainants. 

The learned counsel for the complainants states that other charges demanded vide letter dated 27.01.2017 are not being disputed by the complainants.

12.    The next question which arises for consideration is as to whether the complainants are entitled to compensation if any, for the period the possession has been delayed.  In terms of clause 11(a) of the Buyers Agreement, the possession was to be delivered within 42 months of the date of the application.  Since the application was submitted on 29.09.2012, the possession ought to have been delivered by 29.03.2016.  The possession can be said to have been offered only for the first time vide letter dated 27.01.2017 when the complainants were asked to pay the balance outstanding amount.  The contention of the learned counsel for the OP is that since the complainants themselves were defaulter in payments of several installments, they are not entitled to any compensation.  Reliance in this regard is placed upon clauses 11(a) and 15 of the Buyers Agreement itself.  In my view, since the OP is charging interest @ 15% per annum for the period the payments of the installments was delayed, it cannot deny compensation for the period the possession is delayed.  The OP cannot be allowed to have the benefit of charging interest from the complainants for the delay on their part and at the same time denying any interest/compensation on account of delay on its part.  Such a practice would be totally unfair and cannot be accepted.  The complainants therefore, are entitled to compensation in the form of interest for the period from 29.03.2016 to 26.01.2017.  Though the OP had later on extended the time for payment in terms of letter dated 27.01.2017 till 30.05.2017, nothing prevented the complainants from making payment immediately on receipt of the letter dated 27.01.2017 and taking possession of the apartment.  Though the complainants have claimed rental as compensation in addition to flat compensation for the mental agony and harassment, considering all the facts and circumstances of the case, the complainants, in my opinion, are entitled to an all inclusive compensation in the form of simple interest @ 8% per annum for the period from 29.03.2016 to 26.01.2017 including the compensation for the mental agony and harassment on account of delay in possession.  The compensation would be payable on the entire amount which the complainant had paid to the OP as principal sum till 26.01.2017. 

13.    The learned counsel for the OP submits that they are also entitled to holding charges in view of clause 13 of the Buyers Agreement since the complainant did not come forward to take possession of the apartment despite letter dated 27.01.2017.  As noted earlier, the OP itself had unilaterally extended the aforesaid time till 30.05.2017.  This consumer complaint was instituted on that date itself.  Considering that the matter was sub judice before this Commission with effect from 30.05.2017, the OP in my opinion, is not entitled to any holding charges. 

14.    For the reasons stated hereinabove, the complaint is disposed of with the following directions:

(i)      The complainants shall pay the entire amount demanded vide letter dated 27.01.2017 to the OP within four weeks from today alongwith interest on that amount @ 8% per annum with effect from 01.06.2017 till the date of payment. 

(ii)      While making payment in terms of direction (i) above, the complainants shall be entitled to deduct the amount of compensation payable to them in terms of this order.

(iii)     The OP shall deliver possession of the apartment complete in all respects to the complainants within four weeks of they making payment in terms of this order.

In the facts and circumstances of the case, there shall be no order as to costs.