JUDGMENT

JUSTICE DEEPA SHARMA

The present complaint is filed against Godrej Premium Builders Private Limited, developer of the project ‘Godrej Summit’ ( hereinafter referred to as the ‘Project’) in residential sector-104, Gurgaon-Manesar Urban Complex and Magic Info Solutions Private Limited, collaborator and one of the land owners of the land on which the said project was sought to be developed.  Case of the complainants are that they had jointly booked residential unit in the said project vide their application dated 11.09.2012. Vide allotment letter dated 23.01.2013, apartment no. E-0705 in the said project was allotted to them. It is submitted that subject apartment was booked for their own residential use. The apartment buyers agreement was executed.  The area of the apartment was 117.93 sq. meters (1269 square feet).  The payment schedule was construction linked payment plan.  It is contended that as per the said agreement, the possession of the apartment was to be handed over within 30 months from the date of issuance of allotment letter with a grace period of six months, thus on or before 23.01.2016.  However, the opposite parties failed to hand over the possession of the subject apartment to them.  It is further submitted that complainants have never defaulted in payments and have so far paid a sum of Rs.82,62,271/- to the opposite parties. It is submitted that the opposite parties are offering belatedly the possession of the said apartment without even paying any compensation for the delay and hardship and mental agony suffered by them.  It is submitted that since the possession was not given within the stipulated period, it amounts to deficiency in service.  The letter relating to offer for possession is dated 05.10.2017,  issued after delay of 21 months.  A legal notice dated 26.10.2017  and 13.11.2017 were sent to the opposite parties demanding compensation for the entire period of delay with interest @ 15% p.a. on the deposited amount since this money has been utilized by the opposite parties for their commercial advantage / business and in the alternative refund of the deposited amount alongwith interest @ 15% p.a. from the date of respective payments till actual realization.  The opposite parties were also called upon to issue an amended possession letter crediting compensation towards delay in handing over possession or refund the entire amount within seven days of the receipt of notice.  Notice, however, was not replied with by the opposite parties.  It is submitted that opposite parties are liable to refund to the complainants the deposited amount of Rs.82,62,271/- with interest @ 15% pa from filing of the complaint till its realization.  In alternate, it was prayed that opposite parties be directed to hand over the possession and pay compensation for the period of delay @ 15% p.a. on the amount paid by the complainant till filing of the present complaint with further interest @ 15% p.a. on the deposited amount for the pendent lite period. Damages @ Rs.3,00,000/- is claimed towards mental agony and harassment and Rs.50,000/- is claimed towards litigation expenses.

2.         The claim is contested by the opposite parties.  They have filed separate written statements.  OP No.1 Godrej Premium Builders Private Limited have not disputed the issuance of the allotment letter and the execution of the Apartment Buyer Agreement dated 11.05.2013. It is further contended that since Apartment Buyer Agreement contain the arbitration clause, arbitration clause should have been invoked and the present complaint is not maintainable.  It is contended that OP No.2 had entered into a development agreement dated 05.08.2011 with M/s Godrej Properties Limited and other land owners for the purpose of development of the subject project.  OP No.2 executed General Power of Attorney dated 05.08.2011 in favour of OP No.1 to enable them to develop and construct the said project in terms of the development agreement.  In consideration of the grant of development rights, parties to the development agreement agreed to share the apartments in the said project as per the ratio detailed in the development agreement.  The said development agreement also empowers M/s Godrej Properties Limited to assign its rights and obligation under the said development agreement dated 05.08.2011 to its affiliate / subsidiary.  Pursuant to this right under the agreement, M/s Godrej Properties Limited has assigned its rights and obligations under the agreement to M/s Godrej Premium Builders Private Limited vide deed of Substitution dated 27.12.2011.   Pursuant to an order dated 03.07.2015 of High Court of Judicature at Bombay in Company Petition No. 153 of 2015, all rights, title, entitlement and interest of M/s Godrej Premium Builders Private Limited have been vested in M/s Godrej Projects Development Private Limited.  On 22.11.2017, M/s Godrej Projects Development Private Limited was converted into M/s Godrej Premium Builders Private Limited.  It is further contended that in view of the area sharing arrangement between the opposite parties, the apartment alloted to the complainants is part of the share that fell to OP No.2 and accordingly all the transactions with regard to the said apartment, such as raising invoices towards due consideration, instalments, issue of allotment letter, reminders apart from the other compliances, receiving amounts from the complainants were carried by opposite party no.2  and opposite party no.1 has played no role in this regard.  It is further contended that record also reveals that complainants throughout dealt with opposite party no.2 and, therefore, there is no cause of action qua opposite party no.1.  It is further contended that complainants are not consumers within the meaning of Section 2 (i) (d) of the Consumer Protection Act and there are no specific allegations against opposite party no.1 and since opposite party no.1 is not a service providers, the complaint qua opposite party no.1 is not maintainable.  It is denied that opposite party no.1 had issued any allotment letter or is signatory to the letter of allotment or Apartment Buyer Agreement and it does not contain stamp of opposite party no.1.  It is submitted that possession letter was issued by opposite party no.2 who under the sharing arrangement between opposite parties no.1 and 2 is entitled to give possession of the said apartment and opposite party no.1 has no role to play.  On these contentions, it is contended that complaint is liable to be dismissed against opposite party no.1.

3.         Opposite Party no.2 has filed its separate written statement.  It is contended that time of completion of the project in question was 48 months excluding the grace period of six months.  It is submitted that inadvertently, in the Apartment Buyer Agreement for such apartment, the column for showing time period for handing over the possession remained blank.  Taking advantage of this fact, the complainants had on their own, filled up this blank with number 30. It is submitted that before filing the present complaint and before receiving the possession letter dated 05.10.2017, the complainants had never approached the answering opposite party complaining about delay in possession.  They have approached this Commission only on receiving possession letter as they have realized that  after taking possession they have to bear monthly maintenance charges etc. and, therefore, a frivolous legal notice dated 26.10.2017 was issued.  It is further submitted that complaint is bad for non-joinder of necessary parties since other parties to the agreement, namely, land owners have not been arrayed as proforma parties in the complaint.  It is further submitted that an effective alternative remedy in terms of clause 19 of the Apartment Buyer’s Agreement is available to the complainants which stipulates the resolution of their disputes by mutual discussion and amicable settlement and failing which through process of arbitration.  It is further submitted that complainants have booked the residential unit from the investment point of view and they had no intention to live in it and hence they are not the consumers within the meaning of Act.  The allotment letter dated 23.01.2013 and the Apartment Buyer Agreement dated 11.05.2013 are not disputed.  It is submitted that applicants have not approached this Commission with clean hands and had manipulated the Apartment Buyer Agreement by mentioning the figure ‘30’ as the period of handing over of the possession while the actual period of handing over of the possession was 48 months excluding the grace period of six months .  Opposite Party no.2  alongwith their written version has placed on record copy of two agreements in the names of Kalawati Sharma and Narinder Kumar Kochhar in respect of units of apartment no. H-405 and G-905 respectively in same project in support of their contention that period of handing over the possession was 48 months.  It is submitted that there is no delay in offer of possession and it was offered before the expiry of period of 48 months.  It is submitted that complainants had never raised any dispute before issuance of the possession letter.  Receipt of legal notice date 26.10.2017 is not denied.  However, receipt of notice dated 13.11.2017 is denied.  It is further submitted that as per clause 4.3 of Apartment Buyer Agreement, the opposite party is only required to pay compensation for the delayed period at the rate of Rs.5/- per month per square feet of the super built up area of the apartment and since there is no delay, opposite party no.2 is not liable to pay any compensation.  It is submitted that complaint is liable to be dismissed. 

4.         Parties have led their evidences.  I have heard the arguments of the parties and have perused the record.  My findings are as under:   

5.         The admitted facts of the case  are  that  opposite party no.2   had   entered   into  a Development  Agreement   dated   05.08.2011 with Godrej Properties Limited  (hereinafter referred to as GPL) to develop and construct the said project.

6.         The complainants applied for allotment of a flat and flat in Tower-E was allotted to them.  They made the payments. Subsequently, Apartment Buyer’s Agreement dated 11.05.2013 was executed between the parties.  The copy of the said Apartment Buyer’s Agreement has been placed on record by both the parties.  As per clause 24.1 of said agreement, two original copies of this documents were prepared.  One original copy was retained by the developer and the other original copy was handed over to the buyer i.e. the complainants.  Both the parties have produced on record the copy of this agreement.  The contention of the complainants is that as per clause 4.2 of this agreement, the opposite parties undertook to give possession of the subject flat within 30 months from the date of allotment letter dated 23.01.2013 with grace period of six months i.e. maximum period of 36 months and so they were bound to give possession by January 2016.  It is submitted that till that time, there was no offer of possession.

7.         Opposite Party No.2 has stated that by mistake, the period within which the construction was to be completed could not be mentioned in the Apartment Buyer’s Agreement which was executed between the parties on 11.05.2013 as is clear from the agreement, one original copy of which was retained by opposite party No.2.  It is submitted that complainants taking advantage of this fact inserted the period of 30 months in the said column.  It is further submitted in the written submissions by opposite party No.2 dated 30.11.2018 that Consumer Complaint No. 1276 of 2018 titled as Pratibha Bansal & Another Versus Godrej Premium Builders Limited & Others and Complaint No. 1277 of 2018 titled as Nupur Bansal and Another Versus Godrej Projects Development Private Limited and Others, which are pending before this Commission may be perused, which shows that the period for completion of flat was 48 months with grace period of six months.

8.         The issue before this Commission, therefore, is what was the agreed stipulated period of handing over period for the possession of the subject flat?  According to the complainants, it is 30 months.  In order to prove this fact they have filed on record the Apartment Buyer’s Agreement which is duly signed by opposite party no.1 and  opposite party no.2 through its Authorized Representatives. There seems to be no manipulation or interpolation on the said entry.  Clause 24.1 also clearly envisages that two original copies were prepared of this document and one was  handed over to the complainants.  The complainants, therefore, have retained the original copy of the said agreement, which clearly stipulates that possession period was 30 months.  On the other hand, in the copy of the opposite parties, the relevant column showing the stipulated period of handing over of possession, is blank.  The opposite party is relying on other evidences like the other agreements with other allottees. They alongwith their written version have filed copies of two agreements relating to Apartment No. H-405 and G-905 executed with Kalawati Sharma and Narinder Kumar Kochhar.  It is clear that both these agreements belong to different towers i.e. Tower-H & Tower-G.  The flat of the complainants is in Tower–E and the opposite parties have not produced any Apartment Buyer’s Agreement relating to Tower-E showing period of completion as 48 months in support of its claim. No explanation has been given as to why no Apartment Buyer’s Agreement relating to Tower-E has been produced on record.  However, alongwith their written submissions, they have relied on Consumer Complaints no. 1276 and 1277 of 2018 pending before this Commission.  This Commission had summoned these consumer complaints and it relates to  Apartment Nos. D-503 and H-1505 in towers D and H of same project.  It is apparent that opposite parties have not placed any Apartment Buyer Agreement of Tower-E in support of their contention that for Tower-E also, the stipulated period of possession was 30 months. There is no reason to doubt the genuineness of the document produced by the complainants which bears signature of parties.  It is clear that where there is a written document to prove a fact, no other evidence contrary to the content of the document are admissible unless it is shown that document is not a genuine document.  The complainants have produced one of the two original copies of the document duly filled in all aspects and, therefore, there is no reason to doubt the genuineness in all aspects.  The opposite parties have relied on two Apartment Buyer Agreements, copies of which they allege, have been filed by complainants in CC No.1276 of 2018 and 1272 of 2018 (supra) which further shows that they were in the habit of mentioning the stipulated period for handing over the possession of flat in the copy of allottees.  Even otherwise, if the opposite parties had given the original copy of this document to the complainants without mentioning any period within which the possession was to be handed over, thereby keeping the allottees under suspense, it would have amounted to unfair trade practices.  I am satisfied that as per the agreement, the stipulated period for handing over of the possession was 30 months with grace period of six months.  The argument of the opposite parties that it was 48 months with grace period of six months is, hereby rejected.

9.         It is argued by the opposite parties that complainants have not come before this Commission with clean hands.  It is submitted that present complaint is filed after the offer of possession dated 05.10.2017 was issued.  It is further contended that in terms of clause 4.2 of the agreement, in certain eventualities, the period for  handing over of the possession can be extended. The relevant clause is reproduced as under:

“4.2.    The Apartment shall be ready for occupation within _____ months from the date of issuance of allotment letter (“Tentative Completion Date”), however the Developer is entitled for a grace period of 6 months over and above this ___ month’s period.  Upon the Agreement being ready for possession and occupation of the Developer shall issue the Possession Notice to the Buyer of the Apartment.

            Nothwithstanding the above, the Developer shall be entitled to an extension of time from the Tentative Completion Date for issue of the Possession Notice, if the completion of Construction of the said Apartment or the part / portion of the Project where the said  Apartment is situated is delayed on account of any of the following reasons:

(i)         Non-availability of steel, cement, other building materials, water or electric supply or labour, or

(ii)        Any change in the Applicable Law or existence of any injunction, stay order, prohibitory order or directions passed by any Court, Tribunal, Body or  Competent Authority; or

(iii)       Delay in securing any permission, approvals, NOC, sanction building plan, building completion and / or occupation certificate, water, electricity, drainage or sewerage connection from the Competent Authority for reasons beyond the control of the Developer ; or

(iv)       Force Majeure Event or any other reason ( not limited to the reasons mentioned above) beyond the control of or unforeseen by the Developer, which may prevent, restrict, interrupt or interfere with or delay the construction of Project on the Subject Lands or which may prevent the Developer in performing its obligations under the Agreement.

            In case there is any delay on account of the aforesaid reasons, the Developer shall kept the Buyer fully informed about the same along “with a revised tentative date of possession.

10.       It is, however, argued on behalf of the complainants that pursuant to clause 4.3, the opposite parties could have extended the said period only with their consent and not unilaterally.  The relevant clause 4.3 is reproduced as under:

“Subject to the provisions of Clause 4.2 herein above, in the event the Developer fails or neglects to issue the Possession Notice on or before the Tentative Completion Date and / or such date as may be extended by mutual consent of the Parties, then the Developer shall be liable to pay to the Buyer a compensation for the entire period of such delay computed at the rate of Rs.5/- ( Rupees Five only) per month per square feet of the Super Built Up Area of the Apartment.

In the alternative, the Developer, at the request of the Buyer, may refund the total amounts already received in respect of the said Apartment together with simple interest at the rate of 15% per annum to the Buyer.  It has been agreed between the parties that  upon such repayment, the agreement shall stand terminated and the Buyer shall not be entitled to any loss and / or damages whatsoever.  The said refund by the Developer to the Buyer, sent through cheque / demand draft by registered post acknowledgment due or by courier at the address of the Buyer mentioned herein, shall be full and final satisfaction and settlement of all claims of the Buyer under this Agreement, irrespective of whether the Buyer accepts / encashes the said cheque / demand draft or not.  Thereafter the Buyer shall cease to have any interest or claim on the said Apartment and the proportionate undivided interest in the common Area and Facilities and Limited Common Area and Facilities whatsoever or howsoever. The Developer thereafter shall be entitled to sell the said Apartment along with undivided interest in the Common Areas and Facilities and Limited Common Areas and Facilities to any prospective buyer / third party of its choice.”

11.       It is further argued on behalf of the complainants that under the said very clause i.e. 4.3., if parties do not mutually agree for the extension of the completion date, the buyer can ask for the refund of the money deposited by them and the opposite party in that eventuality is bound to refund the total amount deposited with them with simple interest @ 15% p.a. to the buyer. 

12.       The conjoint reading of both the clauses clearly shows that though under the agreement, the opposite parties has the authority to extend the period for handing over the possession, but the opposite parties could do so only with the consent of the allottee  and when such consent is given, then the developer is liable to pay compensation for the period of delay.  However, in the alternative i.e. where the buyer does not agree to the extension of the period of completion, then in that eventuality buyer is entitled to the refund of the deposited amount with simple interest @ 15% p.a.  It is settled proposition of law that both the parties are equally bound by the terms of the agreement and none of them can change the terms of the agreement unilaterally.  In view of these clauses of the agreement entered into between the parties, the opposite parties was bound to hand over possession within 30 months plus 6 months which they have failed to do since letter of possession is dated 05.10.2017 and period of 36 months had expired on 22.01.2016. The opposite parties have not produced on record any communication which can show that they had written to the complainants seeking their consent for extension of time.  This shows that there was no mutual agreement between the parties for extension of time of handing over of the possession beyond 36 months.  In that eventuality, the opposite parties in terms of  clause 4.3 of the Apartment Buyer’s Agreement are bound to refund the deposited amount with simple interest @ 15% per annum.  Since the possession was not handed over within the stipulated period, there is deficiency in service on the part of the opposite parties.

13.       It is further argued on behalf of the opposite parties that since opposite parties are now in a position to handover the possession of the flat, the complainants be directed to take possession of the apartment instead of asking for the refund of the deposited amount.  The complainants have submitted that due to this delay they do not want possession of the apartment and are interested in the refund of their amount in terms of Clause 4.3 of the agreement.  In a recent case, Hon’ble Supreme Court in Civil Appeal No. 12238 of 2018 titled Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghvan with Civil Appeal No. 1677 of 2019 titled Pioneer Urban Land & Infrastructure Ltd. Vs. Geetu Gidwani Verma & Anr. decided on 02.04.2019, has upheld the order of this Commission wherein this Commission had held that flat purchaser cannot be compelled to take possession at belated stage.  Moreover, in the present case, the agreement between the parties itself states that in case of default in handing over of the possession within the stipulated period and where there is no mutual agreement relating to extension of period between the parties, the allottees are entitled for refund of their money alongwith simple interest @ 15% p.a.

14.       It is argued on behalf of the opposite party no.1 that OP No.1 has no role to play in regard to the apartment allotted to the complainants since the said apartment had fallen in the share of OP No.2 under the area sharing arrangement between them.  Admittedly, no copy of the document showing area sharing arrangement between opposite parties has ever been supplied to the complainants.  The Apartment Buyer’s Agreement also bears the signature of OP No.1 who had signed it through his authorized representative.   It is to be noted that both OP No.1 & 2 have authorized the same person to act on their behalf.  It is also undisputed fact that money paid by the complainants had gone into the account of OP No.1.  OP No.1, therefore, cannot be absolved of its liability. Both OP Nos. 1 & 2 are jointly and severally liable.

15.       It is further argued that in view of the arbitration clause in the agreement, present complaint is not maintainable.   The said argument is also rejected in view of the decision dated 13.7.2017 rendered by a three-Members Bench of this Commission in Aftab Singh Vs. Emaar MGF Land Limited & Anr. And connected matters in CC No. 701 of 2015, and upheld by the Hon’ble Supreme Court vide order dated 13.2.2018 passed in Civil Appeal Diary No.37997/2017, M/s. Emaar MGF Land Ltd. & Anr. Vs. Aftab Singh.

16.       For the reasons discussed above, the Complaint is allowed with following directions:

(a)       Opposite Parties No. 1 & 2 are jointly and severally liable to refund the deposited amount of Rs. 82,62,271/- alongwith simple interest @ 15% p.a. from the date of respective deposits till realization;

(b)       Opposite Parties No. 1 & 2 shall also pay compensation of Rs.1,00,000/- lakh towards mental agony and  harassment, and litigation cost of Rs.50,000/- is also awarded to the complainants.

            With these directions the present consumer complaint stands disposed of.