Chandigarh

StateCommission

CC/255/2019

Mr. Anil Mehta - Complainant(s)

Versus

DLF Homes Panchkula Pvt. Ltd. - Opp.Party(s)

Anamika Mehra Adv.

22 Nov 2021

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	255 of 2019
Date of Institution	:	19.11.2019
Date of Decision	:	22.11.2021

 

Mr.Anil Mehta and Mrs. Sudha Mehta, R/o 12329-Funarocrest, Windsor, Ontario, Canada. Amehta@theprecaster.com.

•  

Versus

 

 

1. DLF Homes Panchkula Pvt. Ltd., having its Registered Office at DLF Gateway, Second Floor, DLF City, Phase-III, Gurgaon-122002, Haryana, through its Chairman/Managing Director/Director/Authorized Signatory/Representative.
2. Second Address:-SCO No.190-191-192, Sector 8-C, Chandigarh-160009.

Through Sh.Rakesh Kerewal, Director of DLF Homes Panchkula Pvt. Ltd., having its Registered Office at DLF Gateway, Second Floor, DLF City, Phase-III, Gurgaon-122002, Haryana.

….Opposite Parties

BEFORE:       JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                      MR. RAJESH K. ARYA, MEMBER

 

Present:-       Ms.Anamika Mehra, Advocate for the complainants (on voice call).

Sh.Kunal Dawar, Advocate for the opposite parties.

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   In the instant case, the complainants are seeking possession of the unit.

2.           Brief facts of this case are that on 29.03.2010, the complainants booked a residential unit bearing no.DLF/217/DVF-E-4/27-FF, measuring 1450 square feet, in the project of the opposite parties launched by them under the name and style “DLF Valley”, Sector 3, Kalka-Pinjore Urban Complex, total price whereof was fixed at Rs.35,08,999/-. It has been stated that despite the fact that  the complainants paid an amount of Rs.39,99,313/- for the period from 29.03.2010 to 18.02.2016 to the opposite parties, towards price of the said unit, yet, they failed to deliver possession thereof by the committed date i.e. on or before  16.01.2014, as envisaged under clause 11 (a) of the agreement dated 17.01.2012, Annexure C-1, yet, it was not so offered, for want of construction and development activities. It has been pleaded that when requests were made in the matter to the opposite parties, they kept on lingering the matter, on one pretext or the other. Ultimately, possession of the unit in question was offered vide letter dated 05.10.2016, Annexure C-4 which was just an eye wash.  When, neither compensation for the period of delay was paid to the complainants nor actual physical possession of the unit was delivered to them, left with no alternative, they served legal notice, Annexure C-5, upon the opposite parties but to no avail. Hence this complaint
3.           Their claim has been contested by the opposite parties, on numerous grounds, inter alia, that in the face of arbitration clause contained in the agreement this Commission is not competent to entertain and  decide this complaint; that this Commission did not vest with territorial jurisdiction to entertain this complaint; that the complainants being NRIs have purchased the unit in question for commercial purposes, as such,  they did not fall within the definition of consumer; that the parties are bound by terms and conditions of the agreement; that they are seeking complete amendment/modification/ rewriting of the terms and conditions of the agreement as such, only civil court is competent to entertain and decide this complaint; that since possession of the unit was offered to the complainants vide letter dated 05.10.2016, Annexure C-4, after obtaining occupation certificate dated 05.04.2016, Annexure R-3, as such, this complaint having been filed on  19.11.2019 is barred by limitation; that the complainants were well aware that the layout and service plans of the project were tentative and subject to change and were not approved at the time of purchase of the unit; that possession of the unit in question could not be offered by the committed date on account of stay on construction activities by the Hon’ble Supreme Court of India in the years 2010 and 2012; that the said stay was ultimately vacated on 23.07.2010 and 12.12.2012 respectively and subsequent thereto, the company tried its level best by arranging labour etc. to complete the construction and development work at the project site;  that delay in possession of the unit also took place because there was delay on the part of competent authorities in granting statutory approvals; that approval regarding revision in layout plan and service plans sought on 11.3.2013 and 20.05.2013, was received on 06.09.2013 and 14.08.2014 respectively; that option was given to the complainants to get refund of the amount paid but they did not opt the same; possession so offered to the complainants vide letter dated 05.10.2016, Annexure C-4 was complete in all respects but the complainants failed to take over the same on frivolous grounds; that the area of the unit in question was increased as a result whereof, the complainants were asked to make differential amount alongwith other charges, but till date they have not come forward either to take possession of the unit in question or to make the remaining payment; that the complainants are still liable to make  payment of more than Rs.17 lacs which includes holding charges, delayed interest, statutory charges etc.
4.           On merits, purchase of the unit in question, in the manner explained in the complaint; execution of agreement; payments made by the complainants as mentioned in the complaint; and that there was delay in delivery of possession of the unit in question have not been disputed by the opposite parties. Prayer has been made to dismiss the complaint with heavy costs.
5.           The complainants filed rejoinder wherein, they reiterated all the averments contained in the complaint and controverted those contained the written reply of the opposite parties.
6.           This Commission has afforded adequate opportunities to the contesting parties to adduce evidence in support of their respective contentions, by way of filing affidavit. In pursuance thereof, the parties have adduced evidence by way of affidavits and also produced numerous documents including written arguments filed by the complainants and the opposite parties.
7.           We have heard the contesting parties and have also gone through the entire record of the case, including the rejoinder as well as written arguments aforesaid, very carefully.
8.            First we will deal with the objection taken by the opposite parties, to the effect that the complainants did not fall within the definition of ‘consumer’, because they are NRIs; it may be stated here that the mere fact that the complainants are NRIs and residing in Canada, is not a valid ground to snub them out of the purview of ‘consumer’. The complainants are seeking possession of the unit in question, by way of filing this consumer complaint. No law debars NRIs to purchase a residential property in India for their personal use. Similar view was expressed by the Hon’ble National Commission in Smt. Reshma Bhagat & Anr. Vs. M/s Supertech Ltd. Consumer Complaint No. 118 of 2012, decided on 04.01.2016.

                   Furthermore, the objection raised to the effect that the complainants are investors is not supported by any documentary evidence and as such the onus shifts to the opposite parties to establish that the complainants have purchased the unit in question to indulge in ‘purchase and sale of units’ as was held by the Hon’ble National  Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since they failed to discharge their onus, hence we hold that the complainants are consumers. In this view of the matter, objection taken in this regard stands rejected. 

9.           The next question falls for consideration is with regard to the objection taken regarding territorial jurisdiction of this Commission; it may be stated here that it is settled law that even an infinitesimal fraction of a cause of action will be part of the cause of action and confer jurisdiction on the Court/Tribunal/Fora within the territorial limits of which that occurs. In this case, it is clearly evident that the agreement dated 17.01.2012, Annexure C-1, containing detailed terms and conditions in respect of the said unit in question, has been signed at Chandigarh office of the opposite parties. Not only as above, even the following payments receipts, Annexure C-2 colly., placed on record, also reveal that the same have been issued by the opposite parties from their Offices located at Chandigarh, meaning thereby that the company was actually and voluntarily residing and carrying on its business and personally work for gain thereat:-

S.No.	Payment Receipt dated	Issued by the opposite parties from
	29.03.2010	SCO No.101-102, DLF City Centre, IT Park, Kishangarh, Chandigarh,
	05.04.2010	SCO No.101-102, DLF City Centre, IT Park, Kishangarh, Chandigarh,
	07.06.2010	SCO No.101-102, DLF City Centre, IT Park, Kishangarh, Chandigarh,
	05.10.2010	SCO No.101-102, DLF City Centre, IT Park, Kishangarh, Chandigarh,
	21.12.2010	SCO No.101-102, DLF City Centre, IT Park, Kishangarh, Chandigarh,
	01.12.2011	Chandigarh Technology Park, Plot No.2, Tower D, Ground Floor, Chandigarh
	24.04.2012	Chandigarh Technology Park, Plot No.2, Tower D, Ground Floor, Chandigarh
	11.05.2012	Chandigarh Technology Park, Plot No.2, Tower D, Ground Floor, Chandigarh
	19.11.2013	SCO No.190-191-192, Sector 8-C, Chandigarh
	21.04.2014	SCO No.190-191-192, Sector 8-C, Chandigarh
	21.04.2014	SCO No.190-191-192, Sector 8-C, Chandigarh
	18.02.2016	SCO No.190-191-192, Sector 8-C, Chandigarh

 

As such, objection taken by the opposite parties with regard to territorial jurisdiction stands rejected. 

10.           The next question that falls for consideration is, as to whether, in the face of existence of Arbitration clause in the agreement, jurisdiction of this Commission is barred, as has been contended by the opposite parties? It may be stated here that this issue has already been set at rest by the larger Bench of the Hon’ble National Commission in a case titled as  Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, wherein, vide order dated 13.07.2017, it has been held that an Arbitration Clause in the Agreements between the buyer and the Builder cannot circumscribe the jurisdiction of a Consumer Fora notwithstanding the amendments made to Section 8 of the Arbitration Act. The said order has attained finality, because Civil Appeal bearing No.23512-23513 of 2017 filed against the same before the Hon’ble Supreme Court of India, stood dismissed vide order dated 13.02.2018 and even the Review Petition (C) Nos.2629-2630 of 2018 filed by the builder against order dated 13.02.2018, also stood dismissed by the Hon’ble Supreme Court of India, vide order dated 10.12.2018. As such, objection taken in this regard stands rejected.
11.           Purchase of the unit in question, possession whereof was to be delivered latest by 16.01.2014 as per clause 11 (a) of the agreement dated 17.01.2012 is not in dispute. It has also not been disputed by the opposite parties that possession of the unit in question was offered after a delay of more than 2½  years i.e. on 05.10.2016. Admittedly, possession of the unit in question has been handed over to the complainants on 01.06.2020 i.e. during pendency of this complaint and that too on orders of this Commission passed on 27.01.2020.  
12.           To wriggle out of the question, as to why possession of the unit was delayed and was ultimately offered on 05.10.2016, the opposite parties submitted that they faced following  force majeure circumstances:-
    1. that the competent authorities delayed in granting statutory approvals with regard to service and layout plans; and
    2. that on account of stay on construction activities by the Hon’ble Supreme Court of India for the period from 06.04.2010 to 23.07.2010 and also 19.04.2012 to 12.12.2012, the construction activities were put to halt and on vacation of the said stay, it took considerable time to rearrange the labour/material for resuming the construction and development work at the project site.

On the other hand, counsel for the complainants contended with vehemence that though possession was offered vide letter dated 05.10.2016, Annexure C-4, yet the opposite parties failed to either pay the delayed compensation for the period of delay and also at the same time, raised illegal demands viz. holding charges, increase in area of the unit etc., which remained unresolved, as such,  the complainants were forced to file this complaint.

13.           First coming to the plea raised by the opposite parties with regard to delay in granting statutory approvals by the competent authorities, it may be stated here that the opposite parties have not been able to convince this Commission, that if they knew that the said approvals were still awaited, then why they committed the complainants vide clause 11 (a) of agreement dated 17.01.2012 to offer possession of the unit by 16.01.2014. The opposite parties should have obtained all the approvals/sanctions before booking the said unit. If the opposite parties chose to accept booking without obtaining statutory approvals, they are to blame to themselves only.  The purchaser of the units, who had nothing to do with grant of statutory approvals, cannot be penalized, by postponing the possession. Our this view is supported by the observations made by the Hon’ble National Commission in M/s. Narne Constructions Pvt. Ltd. Vs. Dr. Devendra Sharma & 4 Ors., Revision Petition No. 4620 of 2013, decided on 17 Dec 2015. Relevant part of the said order reads as under:-

 

“…..As far as final sanction of layout by HUDA is concerned, in my view, the petitioner cannot penalize the complainants/respondents for the delay in the aforesaid sanction since delay cannot be attributed to any act or omission on the part of the complainants/respondents.  In fact, in my opinion, the petitioner should not even have accepted the booking without final sanction of the layout by HUDA.  If the petitioner chose to accept booking on the basis of provisional sanction of the layout by HUDA, it is to blame to only itself for the delay, if any, on the part of the HUDA in issuing the final sanction of the layout.  The purchaser of the plot, who had nothing to do with the sanction of the layout by HUDA cannot be penalized, by postponing the possession or registration of the plot and therefore any escalation in the registration charges on account of delay in final sanction of layout by HUDA must necessarily be borne by the builder and not by the allottee of the plot…..”

 

It has thus been proved by the admission of the opposite parties only that money had been collected from the prospective buyers including the complainants starting from March 2010 itself, without obtaining statutory approvals. Collecting money from the perspective buyers and selling the project, without obtaining the required permissions/approvals is an unfair trade practice on the part of the project proponent. It was so said by the Hon’ble National Commission, in a case titled as M/s Ittina Properties Pvt. Ltd. & 3 Ors. Vs. Vidya Raghupathi & Anr., First Appeal No. 1787 of 2016, decided on 31 May 2018. Relevant part of the said order reads as under:-

“…………….This Commission in Brig. (Retd.) Kamal Sood Vs. M/s. DLF Universal Ltd., (2007) SCC Online NCDRC 28, has observed that it is unfair trade practice on the part of the Builder to collect money from the perspective buyers without obtaining the required permission and that it is duty of the Builder to first obtain the requisite permissions and sanctions and only thereafter collect the consideration money from the purchasers.

It is an admitted fact that the sale deeds were executed in the year 2006 and by 2009 the completion certificate was not issued. The Occupancy Certificate was issued only on 25.09.2017 during the pendency of these Appeals before this Commission. Allotting Plots or Apartments before procuring the relevant sanctions and approvals is per se deficiency…………”

 

It is therefore held that the opposite parties were deficient in providing service and were negligent on this count and in no way can claim immunity out of the said plea.

14.           Now coming to the second plea taken by the opposite parties seeking immunity on account of stay on construction activities by the Hon’ble Supreme Court of India for the period from 06.04.2010 to 23.07.2010 and also 19.04.2012 to 12.12.2012,  it may be stated here that we are not disputing the fact regarding the stay aforesaid, yet, the opposite parties have failed to clarify this Commission that if the construction activities were suspended during the aforesaid period i.e. 06.04.2010 to 23.07.2010, then why and for what purposes, they received payment of Rs.3,01,824/- from the complainants vide cheque dated 01.06.2010 for which they issued receipt dated 07.06.2010 (at page 39 of the paper book). Similarly, if the construction activities were again suspended during the aforesaid period i.e. 19.04.2012 to 12.12.2012, then why and for what purposes, they received the following payments on 24.04.2012 and 10.05.2012 as under:-

 

S.No.	Amount	Date of receiving amount by the opposite parties	Payment Receipt issued by the opposite parties
	500000.00	24.04.2012 vide chq.no.969694	24.04.2012
	363000.00	10.05.2012 Vide chq no.969695	11.05.2012

 

Thus, in our considered opinion, once the opposite parties did not stop receiving amount from the complainants during the period of stay aforesaid, as such, now at this stage, they cannot claim any immunity therefrom.

                   Deficiency in providing service and adoption of unfair trade practice on the part of the opposite parties is writ large because perusal of record reveals that they kept on receiving amount from the complainants starting from March 2010, yet, agreement was executed after an inordinate delay i.e. only on 17.01.2012. In this manner, they utilized the amount paid by the complainants without providing them anything for the period from March 2010 to 16.01.2012 and thereafter again took advantage of 24 months from 17.01.2012 (when agreement was executed) for delivering possession of the unit in question but they miserably failed to offer possession by the committed date even i.e. 16.01.2014. However, now the opposite parties want complete immunity from payment of delayed compensation, and, if this Commission accepts the same, that will amount to causing great injustice to the complainants. In this view of the matter, it is held that the complainants are entitled to get compensation for the period of delay in offering possession of the unit in question, starting from 16.01.2014 to 05.10.2016.   

15.           The next question that falls for consideration is, as to what amount of compensation, the complainants are entitled to get, for the period of delay in offering possession of the unit in question. It may be stated here that this issue has been set at rest by the Hon’ble Supreme Court  of India in  Civil Appeal No.6239 of 2019 (Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. v. DLF Southern Homes Pvt. Ltd. (now Known as BEGUR OMR Homes Pvt. Ltd. and Ors.) decided on 24.08.2020, wherein, while discarding the one-sided terms of the Buyer’s Agreements, simple interest @ 6% per annum on the amount deposited by the complainant therein, in addition to the penalty amount, as prescribed in the agreement for delay in delivery of possession till delivery of actual and physical possession of the unit has been awarded. Relevant part of the said order is reproduced hereunder:-

 “…..Allowing the appeals in part, we set aside the impugned judgment and order of the NCDRC dated 2 July 2019 dismissing the consumer complaint. While doing so, we issue the following directions:

(i) Save and except for eleven appellants who entered into specific settlements with the developer and three appellants who have sold their right, title and interest under the ABA, the first and second respondents shall, as a measure of compensation, pay an amount calculated at the rate of 6 per cent simple interest per annum to each of the appellants. The amount shall be computed on the total amounts paid towards the purchase of the respective flats with effect from the date of expiry of thirty-six months from the execution of the respective ABAs until the date of the offer of possession after the receipt of the occupation certificate;

(ii) The above amount shall be in addition to the amounts which have been paid over or credited by the developer at the rate of Rs 5 per square foot per month at the time of the drawing of final accounts; and

(iii) The amounts due and payable in terms of directions (i) and (ii) above shall be paid over within a period of one month from the date of this judgment failing which they shall carry interest at the rate of 9 per cent per annum until payment…….”

                   Furthermore, in Lucknow Development Authority v. M K Gupta (1994) 1 SCC 243, the Hon’ble Supreme Court discussed about the extent of the jurisdiction of the Consumer Fora to award just and reasonable compensation for the harassment and agony suffered by a consumer. In Bharathi Knitting Company Vs.DHL Worldwide Express Courier Division of Airfreight Ltd.- (1996) 4 SCC 704, the Hon’ble Supreme Court accepted the contention that in an appropriate case, the Consumer Forum without trenching upon acute disputed question of facts may decide the validity of the  terms of the contract based upon the fact situation and may grant relief, though, each case depends upon its own facts.  In view of the observations of the Hon’ble Supreme Court in the above noted cases, we are of the view that the provision of penalty @ Rs.10/- per square feet per month of the saleable area of the unit in question as per Clause 15 of the agreement, which comes to a very meager amount, is not sufficient to compensate the complainants for the delay in delivery of possession and the mental agony, harassment and financial loss suffered by them on account of delay. Therefore, in addition to aforesaid penalty @ Rs.10/- per square feet per month of the saleable area of the unit in question, after the expiry of stipulated date of delivery of possession, the complainants are also entitled to simple interest @ 6% per annum on the entire amount deposited by them i.e. from 16.01.2014 (due date of possession) till 05.10.2016 (the date when possession has been offered to the complainants).

16.           To defeat the claim of the complainants, it has been vehemently contended by Counsel for the opposite parties that this complaint is barred by limitation. We do not agree with the contention raised for the reasons to be recorded hereinafter.

                   It may be stated that it is not in dispute that possession of the unit was offered on 05.10.2016, which infact was required to be handed over latest by 16.01.2014 i.e. within a period of 24 months from the date of execution of agreement dated 17.01.2012 meaning thereby that there is a delay of about 2 ½  years. Clause 15 of the agreement provides that in case of delay in offering possession, the opposite parties are committed to pay compensation @Rs.10/- per square feet of the saleable area of the unit for the said period of delay. In this very clause, it has been committed by the opposite parties that the said compensation amount shall be paid at the time of execution of conveyance deed. Nothing has been placed on record by the opposite parties to prove that the complainants have given up the said right under the agreement. Since, neither actual physical possession of the unit has been delivered to the complainants by the date when this complaint had been filed and the same has been handed over only during pendency of this complaint on 01.06.2020; nor sale deed has been executed; nor compensation for the period of delay in offering possession has been paid by the opposite parties to the complainants as envisaged in clause 15 of the agreement; nor the complainants have given up their right in the matter, as such, there is a continuing cause of action in their favour in view of principle of law laid down by the Hon’ble Supreme Court of India in Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal   Shah and anr., II 2000 (1) CPC 269=AIR 1999 SC 380, wherein it was held that if the rights under the agreement had not been given up, the builder will be constantly under an obligation to provide a flat to the complainants and deliver possession thereof to them, and under those circumstances there will be a continuing cause of action and the claim cannot be said to be barred by time.  

17.           At the same time, it is also held that there was no need to refer the present complaint to the civil court. It is a simple case of non delivery of actual physical possession of the unit by the committed date; nonpayment of compensation for the period of delay; illegal charging of amount on the false ground that there is an increase in the area of the unit etc., as a result whereof the complainants have approached this Commission for redressal of their grievances. In our considered opinion, since, the opposite parties have received substantial amount of Rs.35,98,237.36ps. from the complainants towards the said unit, and also the grievances raised by the complainants, referred to above, remained unresolved, the nature of such transaction is covered by the expression ‘service’. Our this view is supported by the principle of law laid down in Narne Construction P. Ltd., etc. etc. Vs.  Union of India and Ors. Etc., II (2012) CPJ 4 (SC), wherein it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of the Act.  Similar principle of law was laid down by the Hon’ble Supreme Court of India in  Haryana State Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766), while holding as under:-

“…….We would reiterate that the statutory Boards and Development Authorities which are allotting sites with the promise of development, are amenable to the jurisdiction of consumer forum in case of deficiency of services as has already been decided in U.T. Chandigarh Administration & Anr. v. Amarjeet Singh & Ors.[1]; Karnataka Industrial Areas and Development Board v. Nandi Cold Storage Pvt. Ltd.[2]. This Court in Narne Construction (P) Ltd. v. Union of India [3] referred to its earlier decision in Lucknow Development Authority v. M.K. Gupta [4] and duly discussed the wide connotation of the terms “consumer” and “service” under the consumer protection laws and reiterated the observation of this Court in Lucknow Development Authority v. M.K. Gupta (supra) which is provided hereunder :

 

“5. In the context of the housing construction and building activities carried on by a private or statutory body and whether such activity tantamounts to service within the meaning of clause (o) of Section 2(1) of the Act, the Court observed: (LDA case, SCC pp. 256- 57, para 6):

“…when a statutory authority develops land or allots a site or constructs a house for the benefit of common man it is as much service as by a builder or contractor. The one is contractual service and the other statutory service. If the service is defective or it is not what was represented then it would be unfair trade practice as defined in the Act….”

 

Furthermore, as stated above, the opposite parties did not deliver possession of the unit purchased by the complainants by the promised date i.e. latest by 16.01.2014 (delivered during pendency of this complaint), as such, it can very well be said that there is a denial of service on their part. Our this view is supported by the principle of law laid down in Lucknow Development Authority Vs. M.K.Gupta, 1994 AIR 787, 1994 SCC (1) 243,  wherein the Hon’ble Supreme Court held that where the developer is at fault in not delivering possession of a property by the committed date, the act so amounts to denial of service, and consumer complaint is maintainable before the Consumer Fora. In no way, filing of this complaint amounts to seeking rewriting/modification of the terms and conditions of the agreement. It is therefore held that the plea taken by the opposite parties that this consumer complaint is not maintainable before this Commission and that the same needs to be relegated to the civil court, being devoid of merit, stands rejected.

18.           At the same time, it is also held that if, in the present case, the complainants after making payment of substantial amount, did not pay the remaining amount or stopped the same for some time, when they came to know that the company is not in a position to deliver possession of the unit by the committed date and that there will be a huge delay in completing the construction and development activities; neither sale deed will be going to be executed; that even the delayed compensation has also not been paid, they were right in doing so, in view of principle of law laid down by the Hon’ble Supreme Court of India in Haryana Urban Development Authority Vs. Mrs. Raj Mehta, Appeal (Civil) 5882 of 2002, decided on 24.09.2004, wherein it was held that if the builder is at fault in not delivering possession of the units/plots by the stipulated date, it cannot expect the allottee(s) to go on paying installments to it. Similar view had also been taken by the Hon’ble National Commission, in Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), wherein it was held that when development and construction work was not carried out at the site, the payment of further installments was rightly stopped by the purchaser. Under these circumstances, it is held that the company was not entitled to charge delayed interest from the complainants. 
19.           Now we will like to decide, as to how much amount, the complainants are liable to make towards price of the said unit to the opposite parties.

                   Before deciding this issue, we would like to mention here that during pendency of this complaint, the complainants deposited an amount of Rs.5 lacs with this Commission which is lying deposited in the shape of FDR and another amount of Rs.5 lacs stood paid by them to the opposite parties, through bank transfer dated 18.03.2020, Annexure-D.  In this manner, against the amount of Rs.35,98,237.36, the complainants had paid an amount of Rs.40,98,237.36ps. to the opposite parties and Rs.5 lacs is lying deposited with this Commission in the shape of FDR.

                   Perusal of payment plan attached with the agreement dated 17.01.2012 opted by the complainants reveals that the total sale consideration of the unit in question was fixed at Rs.35,81,499.69 (to which the complainants agreed) as under:-

 

TABLE A
Description	Due Amount
Basic sale price	2764424.97
External Development Charges	264305.96
Infrastructure Development Charges	32363.96
Preferential Location Charges	202274.96
Maintenance security	72500.00
Interest	245629.84
Total	3581499.69

 

Over and above the said charges, the complainants were also liable to make payment of Rs. 353727/- as under, at the time of taking over possession of the unit in question:-

 

TABLE B
Description	Due amount
Charges as per Clause 1.11 of the agreement	143281.00
Service tax	10145.00
Electricity, water and sewerage charges	91371.00
Electric Meter and connection charges	30497.00
Service tax	18281.00
VAT	22902.00
Club charges	15000.00
Club security	20000.00
Service tax	2250.00
Total	353727.00

 

Thus, the complainants were liable to make payment of total amount of Rs.39,35,227/-  (Rs.3581499.69 as per Table-A plus (+) Rs.353727/- as per Table B) to the opposite parties. Admittedly, against the said amount of Rs.39,35,227/- the complainants have already paid an amount of Rs.40,98,237.36ps. to the opposite parties, in the manner, stated above. Over and above that an amount of Rs.5 lacs stood deposited by the complainants with this Commission, which is lying in the shape of FDR. In this view of the matter, it is held that the amount of Rs.1,63,010/- (Rs.40,98,237.36ps (-) Rs.39,35,227/- ) has been received in excess by the opposite parties from the complainants, which needs to be refunded to them.  

20.           As far as the demand raised by the opposite parties towards alleged increase in area of the unit in question is concerned, it may be stated here that to prove their stand, the company was required to place on record some cogent and convincing evidence in that regard. However, to strengthen their case, counsel for the opposite parties has placed reliance on occupation certificate dated 05.04.2016, Annexure R-3. It is pertinent to mention here that we have minutely gone through the contents of the said occupation certificate and find that it has been issued by the Senior Town Planner-cum-Chairman, Building Composition Committee, Panchkula, for an area measuring 117.054 square meters i.e. 1259.95 square feet only. Other than this document (occupation certificate), there is no other reliable/over-riding document wherefrom, the final area of the unit could be ascertained. In this occupation certificate, it has been clearly mentioned that this certificate will stand automatically cancelled, if the permitted use of building or part thereof is change or any additional construction or alteration in the said building is raised without approval of the competent authority or the portion of the building for which occupation certificate has not been granted is occupied. Thus, from this occupation certificate, it transpired that there has been no increase in the area of the unit in question. It was further made clear in the said occupation certificate that the allottee is not entitled to carry out any additional construction or alteration over and above the area of the unit (1259.95 square feet in the present case) approved vide the said certificate. It is therefore held that the actual area of the unit sold to the complainants, as assessed by the competent authorities, in the said occupation certificate is 1259.95 square feet square feet only and not more than that, and, as such, the complainants are not liable to make payment, over and above, the area of 1259.95 square feet of the unit.  Even otherwise, in our considered opinion, 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 unit or in the area of any of the common buildings or the total area of the project (plot area) is changed.  To prove that there was actually an increase in the area of the unit, the company was required to provide a comparison of the areas of the original approved common spaces and the flats with finally approved common spaces/buildings and the flats and also the said fact was also required to be mentioned in the final occupation certificate issued by the competent authorities, before offering possession of the unit, which they failed to do so. It has been observed by this Commission that it has become a common practice of the builders/developers, just with a view to  extract extra money from the gullible allottees at the stage, when they cannot quit the deal, as their substantial amount is locked with the company and they are about to take possession. This inaction on the part of opposite parties needs to be deprecated.

                   A similar question, as to whether, the builder can charge for excess area, without giving any justification in that regard, fell for determination before the Hon’ble National Commission in Pawan Gupta vs Experion Developers Pvt. Ltd., consumer complaint bearing no.286 of 2018, decided on 26 August, 2020, which was answered in favour of the allottees by holding that by increasing the area at the final stage of possession, without any justification is an unfair trade practice on the part of the builder/developer. Relevant part of the said order reads as under:-

 

“…..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…...”

 

Civil Appeal No(s).3312/2020 filed by the builder against the order dated 26.08.2020 aforesaid passed by the Hon’ble National Commission was dismissed by the Hon’ble Supreme Court of India, while holding that the complainant is entitled to get refund of the amount paid towards the excess area. 

21.           At the same time, it is also held that since the opposite parties themselves failed to honour the commitment made by them vide the agreement regarding delivery of possession of the unit in question by the committed date and also did not pay the amount of compensation for the period of delay, as a result whereof when the grievances raised by the complainants were not redressed, they (complainants) were forced to file this consumer complaint, as such, in this view of the matter, the opposite parties are not entitled for any holding charges.
22.           For the reasons recorded above, this complaint is partly accepted with costs and  the opposite parties, jointly and severally, are directed:-

 

1. To get the sale deed executed in respect of the unit in question,  in favour of the complainants, within a period of 30 days from the date of receipt of a certified copy of this order, on payment of requisite charges from them (complainants), if not yet done.
2. To refund the amount of Rs.1,63,010/-  received in excess from the complainants, as explained above, within a period of 30 days from the date of receipt of a certified copy of this order, failing which, thereafter, the entire accumulated amount shall attract 9% penal interest from the date of passing of this order, till realization.
3. To pay interest penalty @ Rs.10/- per square feet per month of the saleable area of the unit in question, after the expiry of stipulated date of delivery of possession, and also simple interest @ 6% per annum on the entire amount deposited by the complainants starting from 16.01.2014 (due date of possession) till 05.10.2016 (the date when possession has been offered to the complainants), within a period of 45 days from the date of receipt of a certified copy of this order, failing which, thereafter, the entire accumulated amount shall attract 9% penal interest from the date of passing of this order, till realization.
4. To pay Rs.25,000/-, towards compensation for causing mental agony and harassment and Rs.25,000/- as cost of litigation, to the complainants within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the said amounts shall carry interest @9% p.a. from the date of passing of this order, till realization.

 

23.           The office of this Commission is directed to release the amount of Rs.5 lacs alongwith interest accrued thereon to the complainants, which stood deposited by them, after adopting due procedure.
24.           Certified Copies of this order be sent to the parties, free of charge.
25.           The file be consigned to Record Room, after completion.

Pronounced

22.11.2021

 

Sd/-

 [JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

Sd/-

(RAJESH K. ARYA)

MEMBER

 Rg.