Chandigarh

StateCommission

CC/17/2021

Mr. Romy Juneja - Complainant(s)

Versus

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

Anamika Mehra & Hasan Kaur Adv.

24 May 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	17 of 2021
Date of Institution	:	15.06.2021
Date of Decision	:	24.05.2022

 

1. Romy Juneja age 57yrs s/o J.C. Juneja,
2. Bindoo Rellan age 58 yrs D/o J.N Rellan

     (Both R/O # 4, Ground floor Pocket C-5, Vasant Kunj, New Delhi)

…… Complainants

V e r s u s

1. DLF Homes Panchkula Private Ltd, SCO.NO. 190-192, Sector 8-Chandigarh. 160009. Second address: Cedar Villa Nav Bahar Shimla (website www.dlf in) (Through its authorized signatories (Mr. Rajeev , Mr.Gurjyot Singh Mr. Manpreet Wahi, Mr.Manish Verma, Mr. Vinod Kumar and Mr. Rajesh Bhatia)
2. DLF Developers Private Ltd, Registered office DLF Gateway Tower Second Floor, DLF city Phase III, Gurgaon, Haryana through its Managing Director.
3. DLF Ltd. Ground Floor DLF Centre, Sansad Marg ,New Delhi 110001 through its Managing Director/authorized signatory Rakesh Kerewal.
4. DLF Ltd Samatra old Beerkhana, Kanlog, Shimla, Himachal Pradesh. 1763206 through its authorized signatory and Director Rajeev Talwar
5. M/S Bemloi Development Infrastructure Co. Pvt Ltd, Gaindamal Hemraj Store, The Mall, Shimla Himachal Pradesh 171001 through its authorized signatory Vinod Kumar, Ananta  Raghav and Kanwaedeep Singh Sekhon

…..Opposite Parties

BEFORE:              JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                             MRS.PADMA PANDEY, MEMBER.

                             MR. RAJESH K. ARYA, MEMBER.

 

Present:-

Ms. Anamika Mehra, Advocate for the Complainants.

Sh. Kunal Dawar, Advocate for Opposite Parties No.1 to 4.

Sh. Anurag Arora, Advocate for Opposite Party No.5.

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                  

                   In this complaint, the complainants are seeking directions to the opposite parties to hand over actual physical possession of the villa bearing no.6, Type-D, measuring 2711 square feet,  in a project launched by them under the name and style ‘Samatara’, Shimla, Himachal Pradesh, total sale price whereof was fixed at Rs.2,29,00,000/-; compensation for the period of delay in delivery of possession thereof and also for mental agony and harassment; litigation expenses etc. It is their case that against the total sale consideration of Rs.2,29,00,000/-, an amount of Rs.2,24,65,940/- i.e. more than 97% of the total sale consideration, stood paid by the complainants starting from 03.01.2011, yet, the opposite parties failed to deliver possession of the unit in question by 06.02.2014 i.e. within a total period of 24 months as specified in Clause 11 (a) of agreement dated 07.02.2012, Annexure C-1, for dearth of construction and development activities at the project site. Legal notice dated 08.04.2021, Annexure C-6 was also served upon the opposite parties, in the matter, but to no avail. Hence this complaint.

2.           Opposite parties no.1 and 2 filed written reply, which was also adopted by opposite parties no.3 and 4, wherein, numerous grounds/ objection were taken by them as under:-
   1. that opposite parties no.1 to 4 being separate legal entities have no relation whatsoever with the project launched and sold by opposite party no.5;
   2. that opposite parties no.3 and 4 have been impleaded with defective title; and
   3. that the complaint is bad for misjoinder and nonjoinder of parties;
3.           Opposite party no.5 in its separate written reply took numerous pleas/objections as under:-
   1.      that in the face of existence of arbitration clause in the agreement this consumer complaint is not maintainable;
   2.      that this complaint is also not maintainable before this Commission as the complainant is seeking modification/re-writing of terms and conditions of the agreement and as such it can be adjudicated by civil court only;
   3.      that the complainants did not fall within the definition of ‘consumer’, as they are investors;
   4.      that the complaint filed is beyond limitation;
   5.      that though as per clause 11 (a) of the agreement, possession of the unit was to be delivered within a period of 24 months from the date of execution thereof, yet, delay took place on account of force majeure circumstances, which were beyond the control of the company, as the competent authorities failed to grant various approvals and also did not approve building plans, which fact was brought to the notice of the complainants, at the time of execution of the agreement;
   6.      that construction of the unit in question is complete in all respects but its occupation certificate could not be obtained because of the reasons beyond the control of the company;
   7.      that total cost of the unit in question is Rs.2,74,03,334.57ps. and the complainants are still liable to make remaining payment of Rs.49,37,394.57ps.
   8.      that after obtaining completion certificate dated 03.02.2020 Annexure OP-5/8 and occupation certificate dated 17.07.2020, Annexure OP-5/9, possession of the unit was offered to the complainants but they failed to take over the same, after making payment of the remaining amount; and
   9.      that parties are bound by terms and conditions agreed to between the parties.
4.           On merits, booking of the unit in question by the complainants; payments made by them as mentioned in the complaint; execution of  agreement; non delivery of possession of the unit by the promised date have not been disputed. Prayer has been made to dismiss the complaint with costs.
5.           In the rejoinder filed, the complainants reiterated all the averments contained in the complaint and controverted those contained in written statement filed by the opposite parties.
6.           This Commission afforded adequate opportunities to the 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 by the complainants, wherein they have reiterated their contentions.
7.           We have heard the contesting parties and have gone through the entire record of the case, including the written arguments filed by the complainants, very carefully.
8.           First, we will deal with the objection taken by the opposite party no.5 to the effect that the complainants did not fall within the definition of ‘consumer’. It may be stated here that the objection raised is not supported by any documentary evidence and, as such, the onus shifts to opposite party no.5 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 as defined under the Act. Even otherwise, opposite party no.5 has failed to convince this Commission, as to how, the complainants who are still seeking possession of their unit can be said as investors. Thus, irrespective of the fact that possession is sought or refund is sought, it is mandatory for the party opposite who is  leveling such allegations, to prove the same (allegations) by placing on  record cogent and convincing evidence, which is found missing in this case. In this view of the matter, objection taken by  opposite party no.5 stands rejected. 
9.           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 opposite party no.5?  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. Civil appeal bearing No.23512-23513 of 2017 and  Review Petition (C) Nos.2629-2630 of 2018 filed by the builder, before the Hon’ble Supreme Court of India, also stood dismissed vide orders dated 13.02.2018 and 10.12.2018 respectively. As such, objection taken in this regard stands rejected.
10.           The next question that falls for consideration is, as to whether, this complaint is bad for misjoinder/nonjoinder of necessary parties or not?. Counsel for opposite parties no.1 to 4 has contended with vehemence that there is no relation, whatsoever, of opposite parties no.1 to 4–DLF with the  project of opposite party no.5-Bemloi Development Infrastructure Co. Pvt. Ltd. We have considered this contention and are of the considered view that the same does not merit acceptance because of the documents referred to below, wherefrom it clearly depicts that opposite parties no.1 to 4 i.e. DLF Company was very much a part of the project in dispute:-
    1. Email dated 26.07.2021, Annexure C-colly whereby the complainants were informed regarding the detail of cost incurred in respect of the unit in question has been sent by Manish Verma, Head Customers, DLF, DLF Homes Panchkula, Pvt. Limited, B1/07, The Valley, Sector-3, Pinjore Kalka Urban Complex, Panchkula, Haryana;
    2. On the statement of account attached with possession offer letter dated 07.05.2021 (placed on record by the opposite parties themselves), it is found that the sender is DLF, The Valley, Sector-3, Pinjore Kalka Urban Complex, Panchkula, Haryana;
    3. Email dated 26.07.2021, Annexure C-A colly whereby the complainants were sent PFA of the account statement and also details with regard to the property tax paid in respect of the unit in question has also been sent by Manish Verma, Head Customers, DLF, DLF Homes Panchkula, Pvt. Limited, B1/07, The Valley, Sector-3, Pinjore Kalka Urban Complex, Panchkula, Haryana;
    4. Payments receipts dated 31.05.2011, 13.07.2011, 20.07.2011, 06.05.2014, 05.06.2014, 11.08.2014, 27.08.2014, Annexure C-2, on the letter head of DLF, reveal that the said payments are to be received under ESCROW Account i.e. DLF and Bemloi;
    5. Almost all the emails sent to the complainants have been sent from crmchandigarh@dlf.in and verma-manish@dlf.in;
    6. Order dated 17.10.2011 having been passed by the Hon’ble High Court of Himachal Pradesh, in the case titled as Tikender Singh Panwar and another Vs. State of H.P. and other, also reveals that Sh.Bhupender Gupta, Sr. Advocate has appeared on behalf of Bemloi Construction and Infrastructure Pvt. Limited and also DLF, who were respondents were 6 and 7 therein; and
    7. Most importantly, on the brochure Annexure C-8 in respect of the project in question, it has been clearly mentioned therein as “DLF, Chandigarh:-SCO 190-191-192, Sector 8-C, Chandigarh-160009”. Email of the company thereon has been mentioned as homes@dlf.in.  

 

Thus, from the documents referred to above, in no way, it can be said that opposite parties no.1 to 4 were not necessary parties to this complaint or that its title is defective or that the DLF has no relation whatsoever with the project in question. As such, objection taken in this regard stands rejected.

11.           There is no dispute between the parties with regard to booking  of the unit in question by the complainants, in the project in question, for which they have paid an amount of  Rs.2,24,65,940/-. It is also not in dispute that the opposite parties failed to deliver possession of said unit by the committed dated (06.02.2014), as  i.e. within a total period of 24 months as specified in Clause 11 (a) of agreement dated 07.02.2012, Annexure C-1.
12.           Perusal of record reveals that possession of the unit in question, was for the first time, offered by the opposite parties, vide letter dated 07.05.2021, Annexure-OP-5/2, which has been challenged by the complainants, through their Counsel, stating the same to be a paper possession on the ground that construction and development activities were not completed at the project site.

                   On the other hand, Counsel for the opposite parties contended with vehemence that possession of the unit in question, when offered was complete in all respects but the complainants failed to take over the same, on making payment of remaining sale consideration. However, it was not disputed that  there has been an inordinate delay in delivery of possession of the unit in question to the complainants.

13.           After hearing rival contention of the parties, when we asked Counsel for the opposite parties, as to what was the reason for such an inordinate delay in delivery of possession of the unit in question to the complainants, Counsel for opposite party no.5 tried to wriggle out of the situation, by stating that it was only on account of force majeure circumstances, which were beyond the control of the company, that possession of the unit in question could not be delivered to the complainants by the committed date i.e. 06.02.2014. Thus, the question which arises for consideration is, as to whether, the opposite parties have been able to prove their case that it was on account of force majeure circumstances that delay in delivery of possession of the unit occurred? To strengthen its case, opposite party no.5 has taken following pleas to justify the said inordinate delay:-

 

1. that Public Interest Litigation (PIL) in CWP No.8945 of 2011-E) against the State of Himachal Pradesh and Ors. was filed on  13.10.2011, in which, vide order dated 17.10.2011, the Hon’ble Himachal Pradesh High Court directed the Municipal Corporation not to give any permissions to opposite party no.5/petitioner till the road reaches the end point;

 

2. that thereafter opposite party no.5/petitioner applied for renewal of licences, and DTCP Shimla vide letter dated 18.02.2016 asked to submit various documents, including revised building plan, as there were minor changes in the alignment of one of the blocks due to some unavoidable circumstances, which were submitted on 27.12.2016;

 

3. that the revised building plans were sanctioned by the competent Authorities only  on 30.08.2019 i.e. with delay of 31 months;

 

4. that thereafter DTCP Shimla renewed the licence vide letter dated 01.01.2019, Annexure OP-5/7 and it was only thereafter that vide letter dated 03.02.2020 completion certificate, Annexure OP-5/8 and occupation certificate dated 17.07.2020, Annexure OP-5/9 were issued by the competent Authorities in respect of 17 villas, which includes the unit of the complainants also;

 

5. that thereafter the Municipal Corporation, Shimla, passed an order dated 26.08.2020, whereby, it recalled letter dated 30.08.2019 regarding approval of revised building plans without issuing any show-cause notice to opposite party no.5 and as such vide notice dated 31.08.2020, the opposite party no.5 asked Municipal Corporation to withdraw the  order dated 26.08.2020;

 

6. that thereafter CWP No.4325 of 2020 was filed by opposite party no.5 on 07.10.2020 against suspension of occupation certificate, whereby the orders dated 26.08.2020 and 10.09.2020 of the competent Authorities were stayed;

 

14.           Counsel for opposite party no.5 contended with vehemence that it was on account of act and conduct of the competent Authorities, referred to above, that delay in delivery of possession took place. We have considered these contentions and are of the considered view that the same does not merit acceptance for the reasons stated hereinafter.

                   It may be stated here that perusal of record reveals that application form in respect of the booking of the unit in question was got filled from the complainants on 03.01.2011, on which date an amount of Rs.25,64,375/- was received by the opposite parties; thereafter another amount of Rs.10 lacs, 40,80,525/-, 15,64,335/- and  Rs.14,45,208/- were received by the opposite parties on 01.04.2011, 31.05.2011, 13.07.2011 and 20.07.2011 respectively. Thus, the total amount of Rs.1,06,54,443/-  stood received from the complainants by the opposite parties till 20.07.2011. It was only thereafter, that agreement was executed between the parties on 07.02.2012, whereby, vide clause 11 (a) thereof, it was committed that possession of the unit will be delivered latest by  06.02.2014 i.e. within a total period of 24 months. It is coming out from the record that thereafter also, the opposite parties kept on receiving amount from the complainants and by 16.08.2016, total amount of Rs.2,24,65,940/- stood received by them from the complainants.

                   It may be stated here that it has not been clarified by the opposite parties, as to why they kept on receiving amount from the complainants in respect of the unit in question when they were not in a position to obtain permissions with regard to the project in question, in the face of Public Interest Litigation (PIL) in CWP No.8945 of 2011-E) filed on  13.10.2011 aforesaid.  The opposite parties also failed to clarify this Commission, as to why they received huge amount of Rs.2,24,65,940/- from the complainants till 16.08.2016,  knowing fully well that revised building plans have not been finalized and approved by the competent Authorities, which were though approved on 30.08.2019, yet, thereafter, the same were recalled vide letter dated 26.08.2020. Even the occupation certificate granted to the project of the opposite parties stood suspended by the competent Authorities and matter is still pending in CWP No.4325 of 2020 before the Hon’ble High Court of Himachal Pradesh, Shimla.

15.           It is very significant to mention here that there is nothing on record to show that the above-said facts were brought to the knowledge of the complainants, at the time of execution of agreement dated 07.02.2012; or by 16.08.2016 i.e. the date when the opposite parties had  already received huge amount of Rs.2,24,65,940/- from the complainants or even thereafter. Whereas, on the other hand, despite the fact the opposite parties were not in a position to deliver possession of the unit by the committed date, on account of the reasons referred to above, even then with a view to extract money from the complainants, they vide email dated 24.06.2015, Annexure C-4 informed them that possession of the  unit is likely to be delivered by third quarter of 2015 but they miserably failed to do so. Relevant part of email dated 24.06.2015 is reproduced hereunder:-

                  

                   “Dear Mr.Juneja,

Apropos out telecom, please find attached the account details for Villa no.6 (Please note that the 10^th installment is not yet demanded), possession of Samatara is expected to begin from the 3 quarter of this calendar year….”

 

In the face of contents of the email referred to above, it can easily be said that the opposite parties were interested in usurping the hard money of the complainants, by misleading information, to the effect that possession of the unit will be delivered to them shortly, whereas, on the other hand by the said date i.e. 24.06.2015 even the  building plans were not got finalized and approved from the competent Authorities and also the project was under litigation. As stated above, the opposite parties have not been able to convince this Commission, that if they knew that the said approvals/building plans were still awaited, then why they committed the complainants vide Clause 11 (a) of agreement dated 07.02.2012, Annexure C-1 to offer possession of the unit by 06.02.2014. 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/building plans and other necessary 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 party no.5 only that money had been collected from the prospective buyers including the complainants starting from January 2011 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, under the garb of force majeure circumstances.

16.           Admittedly, possession of the unit in question has been offered to the complainants, vide letter dated 07.05.2021.  However, in this letter, it has been clearly mentioned that final statement of accounts is under preparation and which shall be reached shortly, whereafter, the complainants can make payment and possession will be delivered accordingly. However, it appears that when statement of accounts was received by the complainants and  when they found that some illegal charges have been levied by the opposite parties and also delayed compensation for the period of delay in offering possession has not been adjusted in the final  demand raised, they filed this consumer complaint before this Commission.
17.           Thus, under  above circumstances, we will like to decide as to what amount of compensation should be granted to the complainants, for the period of delay in delivery of possession, starting from 06.02.2014 (promised date of possession). It may be stated here that failure of the opposite parties to provide complete/effective possession of the unit within the stipulated period amounts to deficiency in service. It is also matter of common parlance that for purchasing the unit/plot, the purchasers take loans from their family members, relatives and friends or financial institutions. In some cases, the purchasers live on rent in the absence of timely delivery of possession. On account of delay in actual delivery of possession within the stipulated period (in the present case by 06.02.2014), the complainants suffered mental agony, hardships and financial loss. In the case titled as 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.

                   Recently 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, while discussing the above authorities and discarding the one-sided terms of the Buyer’s Agreements, the Hon’ble Supreme Court awarded 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. In view of the observations of the Hon’ble Supreme Court in the above noted case, we are of the view that the provision of penalty @Rs.5/-  per square feet per month of the saleable area of the said unit, as per Clause 14 of the agreement, which comes to less than 1% p.a.  even is not sufficient to compensate the complainants for the delay caused in delivery of possession and the mental agony, harassment and financial loss suffered by them on account of this reason. Therefore, in addition to aforesaid penalty @ Rs.5/- per square feet per month of the saleable area of the unit, after the expiry of stipulated date of delivery of possession i.e. 06.02.2014 till the date of actual, physical and legal delivery of possession, the complainants are also entitled to simple interest @ 6% per annum on the entire amount deposited, from 06.02.2014 till delivery of possession of the unit, complete in all respects.

                    Further, opposite party no.5 alongwith opposite parties no.1 to 4 also cannot wriggle out from their liability by saying that the complainants defaulted in making payment of remaining amount, 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. In the instant case also, if the complainants after making payment of substantial amount, did not make the remaining payment, when they came to know that there is a huge delay in completing the construction and development activities, on the part of the opposite parties, and also the opposite parties are still not serious in the matter, they were right in doing so, in view of principle of law, referred to above.

18.           Since, it is an admitted fact that actual physical possession of unit in question, has not been delivered either by the promised date or by the date this complaint has been filed or even thereafter, as explained above, as such, there is a continuing cause of action in favour of the complainants to file this complaint, in view of law laid down in Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal   Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC), wherein it was held that when possession of the residential units is not delivered, there is a continuing cause of action in favour of the allottee/buyer. Objection raised in this regard also stands rejected.
19.           Now the final question, which needs to be decided is, as to what remaining amount, the complainants are liable to pay to the opposite parties, at the time of taking over possession of the unit in question.  To answer this question, we need to refer Summary of Dues, Annexure-III attached with the agreement, as under:-

 

          “SUMMARY OF DUES

Head	Description	Comp. Rate	Due Amount	Service Tax
BSP	Basic Sale Price	8447.00	22,899,817.01	589676.00
		Total	2,28,99,817.01	589676.00

 

Thus, as per afore-extracted clause, the complainants were liable to make payment of total sale consideration of Rs.2,34,89,493/- (Rs.2,28,99,817/- plus (+) Rs.589676/-) towards the unit in question. It is further evident from condition nos.1.2 and 1.6 of the said agreement that over and above the total sale price, the complainants are also liable to make payment of other statutory government taxes or levies which may be announced from time to time. In this view of the matter, it is held that the complainants are liable to make remaining payment of Rs.11,32,047/- as detailed below and also stamp duty & registration charges:-

 

Sale price	=	2,28,99,817.01
Taxes	=	5,89,676.00
Property  Tax	=	1,08,494.00
Total Payable		2,35,97,987.01 (X)
Amount already paid		2,24,65,940.00 (X1)
Balance payable by the complainants (X) - (X1)		11,32,047.01

 

There is nothing on record to show that over and above the amounts referred to above, the complainants are liable to make any other amount(s), as demanded by the opposite parties, in the final statement of accounts dated 12.07.2017. It is also made clear that if on account of inordinate delay of more than 7 years, there is any increase in taxes after the committed date of possession i.e. 06.02.2014, the  complainants cannot be burdened with the same. Had there been any increase in service tax/other taxes by the Government before the date of possession i.e. before 06.02.2014, the matter would have been different. In this view of the matter, the complainants are liable to make payment/amount, which have been agreed upon at the time of execution of buyer agreement and not otherwise. Our this view is supported by the observations made by the Hon’ble National Commission in  M/s. Narne Constructions Pvt. Ltd. Vs. Sushmitha Ramkrishnan & Anr., Revision Petition No. 1630 of 2018, decided on 01 Mar 2019.  In this view of the matter, plea taken by opposite party no.5 that still an amount of Rs.49,37,394.57 ps. is payable by the complainants, being devoid of merit stands rejected. 

20.           For the reasons recorded above, this complaint is partly accepted, with costs and the opposite parties, jointly and severally are directed as under:-
    1. To deliver actual physical possession of the unit in question, to the complainants, complete in all respects, within a period of 30 days from the date of receipt of a certified copy of this order, on receipt of balance amount of Rs.11,32,047/- from them and to get register sale deed within next 30 days, on payment of stamp duty & registration charges, as applicable, by the complainants.
    2. To pay compensation @Rs.5/- per square feet per month of the saleable area of the unit as per Clause 14 of the agreement and also interest @6% p.a. on the entire deposited amount, starting from 06.02.2014 till 31.05.2022, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount shall carry interest @9% p.a. from the date of default till this  entire accumulated amount is paid to the complainants.
    3. To pay compensation @Rs.5/- per square feet per month of the saleable area of the unit, and also interest @6% p.a. on the entire deposited amount w.e.f. 01.06.2022, onwards (per month), by the 10^th of the following month to the complainants till actual delivery of physical possession of the unit in question, complete in all respects, as ordered in clause (i) above.
    4. To pay compensation to the tune of Rs.1,50,000/- for causing mental agony and harassment to the complainants and also for deficiency in providing service and adoption of unfair trade practice and cost of litigation to the tune of Rs.50,000/-, 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.

 

21.           It is also made clear that, in case, the opposite parties have made any part payment to the complainants,  towards compensation for the period of delay in delivery of possession of the unit, in question, they are at liberty to deduct the same, out of the amount awarded in clause (i) of para no.20 above, accordingly.
22.           Certified copies of this order be sent to the parties, free of charge.
23.           The file be consigned to Record Room, after completion.

 

Pronounced.

24.05.2022

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

          [PADMA PANDEY]

MEMBER

         

 

Sd/-

 [RAJESH K. ARYA]

MEMBER

 Rg