JUSTICE V.K.JAIN (ORAL)

No one has appeared for the appellant even on the second call.  I have, therefore, heard the Learned Counsel for the complainant/respondent and have considered the record.

2.      The complainant booked a residential apartment with the appellant company in a project namely Uniworld City Horizon which the opposite party was to develop in Kolkata and flat No. 04-09-0901 in the afore-said project was allotted to them vide letter dated 25.08.2005 for a consideration of Rs. 3573384.20/-.  The complainants then executed an agreement with the appellant company on 03.11.2005, incorporating the respective rights and obligations of the parties in respect of the said transaction.  As per clause 5(a)(1) of the agreement the possession to the complainants was to be delivered by 31.03.2008.  The possession, however, was not even offered to them by that date.  Vide letter dated 05.01.2010 the appellant informed the complainant that the flat was ready for possession and requested them to clear their dues as per the enclosed statement which contained a demand of Rs. 213460/- on account of increase in the super area of the apartment from 2052 sq. ft. to 2182 sq. ft   The said demand, however, was disputed by the complainant/respondent.  Further payments, however, were made to the appellant on 03.12.2010 and 29.01.2011.  The partial occupancy certificate was obtained by the appellant on 14.03.2011 and thereafter a demand letter was issued to the complainant requiring him to pay a sum of Rs. 163650/-.  The said amount, however, was not paid by the complainants who approached the concerned State Commission by way of a consumer complaint. 

3.      The complaint was resisted by the appellant primarily on the ground that the complainants were required to make additional payments to them along with maintenance charges and holding charges. 

4.      The State Commission vide order dated 16.07.2018 directed as under:-

1. “The Opposite Party No. 1 is directed to hand over the possession and to execute Deed of Conveyance in respect of the flat in favour of the Complainants as per terms of the Agreement after obtaining Completion Certificate from the competent Authority within sixty (60) days from date;

2. The Opposite Party No. 1 is directed to pay compensation in the form of simple interest @ 8% p.a. from the committed date of possession i.e. from 01.04.2008 till the date of actual delivery of possession;

3. The Opposite Party No. 1 is directed to pay Rs. 10,000/- as cost of litigation to the Complainants;

4. The Opposite Party No. 1 is directed to pay the excess amount, amount of compensation and litigation cost in favour of the Complainants within sixty (60) days from date positively.”

5.      Being aggrieved from the order passed by the State Commission the appellant is before this Commission by way of this appeal.

6.      The first question which arises for consideration in this case is as to whether the appellant is entitled to any additional payment from the complainant on account of the increase in the super area of the apartment. Class 5(d) of the agreement is relevant in this regard and reads as under:

 “Change in Specifications/Super Area:

i) That the allotment of the Apartment is subject to alterations necessitated during the construction of the Apartment. The Developer in pursuance thereof reserves the right to effect suitable and necessary alterations in the layout plan, which may involve change in the position and boundary of the Apartment, if due to such change, there is any increase/decrease in the super area, the revised price shall be calculated at the original rate at which the Apartment was booked for allotment.

ii)         That it is understood by the Purchaser(s) that there could be variations in the Super Area of the Apartment or its location and in such an event, no claim, monetary or otherwise, will be entertained or accepted by the Developer, except that the original rate per sq. mt/ sq. ft. and other charges will be applicable on any increase or decrease in the area. The Developer shall be liable to refund without interest the extra price and other additional proportionate charges recovered from the Purchaser(s) or the Developer shall be entitled to recover from the Purchaser(s) the additional price and other proportionate charges, without interest, as the case may be.  The Purchaser(s) shall satisfy himself in respect of the design, specifications, fittings etc. used by the Developer in the Apartment at the time of delivery of the Apartment.”

It would thus be seen that the super area of the apartment could have increased during the course of construction and in case of such an increase the appellant was entitled to recover the cost of the increased area at the original rates. Therefore, the complainant in my opinion is liable to pay the demand raised by the appellant on account of increase in the super area of the apartment.

7.      As regards maintenance charges, clause 4(a) and (b) of the agreement which are relevant read as under:-

4.a (i) That the Purchaser(s) hereby agrees and undertakes that it shall enter into a separate Maintenance Agreement with the Maintenance Agency appointed or nominated by the Developer, which shall maintain the common Areas and facilities of the Complex for a period of one year after completion of the Complex, as it may not be possible to transfer the responsibility of maintenance to Apartment owners immediately.  In case the apartment owner’s association is not in a position to take charge of the maintenance after the aforesaid period of one year the maintenance agency appointed or nominated by the Developer may continue to provide the services as mutually agreed to between the maintenance agency and the association.

ii)         That the scope of maintenance and general upkeep of various common services within the Building shall broadly include Operation and Maintenance of Lifts, Operation of Maintenance of Generators including Diesel, Maintenance and Fire fighting system, Garbage disposal & upkeep of common areas, Water Supply, Sewerage system, common area lighting.  The Services outside the apartment but within the Complex shall broadly include Maintenance and upkeep of internal roads, pathways, boundary walls/Fencing, Horticulture, Drainage System, Common Area Lighting, Water Supply, general Watch and ward within the Complex.  The Purchaser(s) shall and hereby agrees to enter into a Maintenance Agreement with the Developer or the maintenance Agency nominated by the Developer prior to taking possession  of the said Apartment.  Limited power backup facility shall be provided for each apartment and the consumption charges thereof shall be included in the monthly maintenance bills, which the Purchaser(s) would be liable to pay.

iii)        That the Purchaser(s) shall be required to pay to the Developer/Maintenance Agency maintenance charges @ Rs. 1.5 per sq. ft. per month inclusive of applicable service tax towards maintenance charges of the common area and facilities.  However, the Purchaser(s) shall be required to pay the maintenance charges in advance for 12 months at the time of taking possession of the said Apartment. In case of failure in making the payment of maintenance charges, the Purchaser(s) shall be liable to pay interest @ 18% p.a. for the period of delay. In addition, Sinking fund will be created and will be paid extra by the Purchaser(s) for replacement, refurbishing, major repairs of plants and equipment etc., installed in the Complex or towards any unforeseen contingency in future.  The Purchaser(s) hereby undertakes to comply with all the terms and conditions stipulated in the Maintenance Agreement.

4b.       That the Purchaser(s) undertakes to become a member of the Apartment Owner’s Association and shall continue to pay the maintenance charges as determined by the said Association from the date the Complex is handed over to the said Association.”

8.      It is thus evident that the complainant was required to execute a separate agreement with the maintenance agency. The appeallant company is not entitled to recover the maintenance charges directly from the complainant. Though the complainant is required to pay to the developer/maintenance agency, the maintenance charges at the rate of 1.5 per square feet per month towards maintenance of common areas and facilities and he is also required to  pay maintenance charges in advance for 12 months at the time of taking possession of the apartment, such charges in my opinion cannot be demanded unless all the common areas and facilities are actually made available in the project. Moreover, even if the common areas and facilities are complete the maintenance charges are payable  only from the time of taking possession and not from the time at which the possession is offered. Admittedly, the appellant has not obtained the completion certificate of the whole of this project which indicates that all the common areas and facilities are still not available. Therefore the maintenance charges in my opinion have not become payable as yet.

9.      As regards holding charges, there is no justification for recovery of such charges since cost of the flat is already recovered from the allottee and if there is any shortfall in making payment the developer is entitled to appropriate interest as per the agreement on such an amount.

10.    Though the entire project does not seem to be complete, the partial occupancy certificate in respect of the tower 4 in which the flat allotted to the complainant is located having been issued, the complainant, in my opinion, ought to have taken possession of the flat as soon as it was offered to him after the occupancy certificate had been obtained by the appellant. In the present case the occupancy certificate was obtained on 14.03.2011 and thereafter a reminder is alleged to have been sent to the complainant on 13.05.2012. Therefore the complainant in my opinion is entitled to compensation for the delay in delivery of possession of the allotted flat only for the period with effect from 01.04.2008 to 13.05.2011.

10.    For the reasons stated hereinabove the appeal is disposed off with the following directions:-

(1) the appellant shall deliver possession of the allotted flat complete in all respects to the complainant within 6 weeks from today along with a copy of the partial occupancy certificate.

(2) to appellant shall pay compensation in the form of simple interest at the rate of 8% p.a. to the complainant with effect from 01.04.2008 to 13.05.2011, on the entire amount which had been paid by 01.04.2008,  along with the cost of litigation awarded by the State Commission.

(3)     If all the common services and facilities as per the agreement between the parties were not available in the project on or before 13.05.2011, the complainant shall be entitled to avail such remedy as may be open to him in law for seeking compensation commensurate with the deficient services and facilities.

11.    The complainant shall pay to the appellant the extra price on account of increase in the super area of the apartment, along with interest on that amount at the rate of 8% p.a. with effect from the date on which the said amount was first demanded from them.  The said amount will be adjusted out of the compensation payable to the appellant in terms of this order.