Case No. 185/2023   

IN THE MATTER OF

Suhail Hamid Siddiqui S/o Late Abdul Hamid age about 70 years R/o Nayyer Villa Badar Bagh Civil Lines, Aligarh

                                                         V/s

Greater Noida Industrial Development authority, 169 Chitvan Estate, Sector- Gamma, Greater Noida City, Greater Noida District Gautambudhnagar

CORAM

 Present:

1. Shri Hasnain Qureshi, President
2. Shri Alok Upadhayay, Member
3. Smt. Purnima Singh Rajpoot, Member

PRONOUNCED by Shri Hasnain Qureshi, President

JUDGMENT

1. The present complaint has been filed by the complainant before this commission for  the following reliefs:-

1. The op be directed to pay compensation @ 18% per annum from 15.3.2017 to 3.8.2021 on the amount Rs.3315602 with pendente lite and future interest till the date of actual payment @18% per annum.s.38500.
2. Ops be directed to pay compensation Rs.500000 for harassment.
3. Op be directed to pay as  litigation expenses Rs.10000.

1. Complainant has stated that he was allotted a flat no.702/B, Tower B  of sector Omicron-1A by the Op on 15.1.2014 vide allotment cum allocation letter dated 29.1.2014. Complainant had pay the registration money Rs. 257000 and allotment money Rs. 514600. Complainant had borrowed the money Rs.2000000 from the Allahabad Bank Now Indian Bank AMU Branch, Aligarh for payment towards consideration of the flat. Op delivered the possession of the flat on 3.8.2021 whereas the Op was under obligation to deliver the possession of the flat within a period of three years i.e. by the date 15.3.2017 after allotment made on 15.3.2014. Op could not fulfil its obligations in handing over the possession of the flat within stipulated period and there was delay in delivery of the possession which amounts to   deficiency in service. Complainant further stated that he had paid the registration and allotment money total Rs.771600 and he had borrowed Rs.2000000 from the Bank for payment towards considerations of the flat on which he had to pay the interest etc. RS. 544002 on the loan amount within three years and thus he invested the total amount Rs. 3315602 within three years from the date of allotment i.e. from 15.3.2014 to 15.3.2017. Complainant was deprived from use and occupation of the flat after the stipulated period three years for handing over the possession of the flat till the date of occupation of the flat by the complainant on taking over possession of the flat on 3.8.202. Complainant is entitled for compensation in terms of interest @18% per annum. Complainant has referred to the ruling given by the Hon’ble Supreme Court in the case o Wg. Cdr. Arifur Rahman Vs DIF Southern Home Pvt. Ltd. decided on 24.8.2020 for compensation to the beneficiary who are deprived from the use of the investment and consequence of delay in not handing over possession which amounts to deficiency in service and to be compensated for delay.               

2. OP stated in reply that the complainant was allotted a flat no. 702/B Tower B Sector Omicron-1 A area 58.18 sq. m. in a multiple story building under the allotment scheme BHS 17. As per allotment letter dated 29.1.2014 allotment money Rs.514600 was to be paid before 15.3.2014 and the remaining amount was to be paid in 10 half yearly installments. Complainant has paid Rs.2268700 along with all installments till 26.3.2014. the probable  time of possession was June, 2019 but the delivery of possession was delayed due to some unforeseen circumstances and therefore to compensate the allotees,  authority issue order dated 14.8.2019 whereby options were given to the Ops for relocating/ shifting to sector 12 and to get possession of the flats in Omicron 1 which were ready to move for which the allotees were required to give a consent letter within 30 days or the allotees who were not willing for relocation they could away 10% discount on return over the possession. Complainant did not avail any of the options despite of having knowledge. Complainant was informed through checklist paper dated 29.5.2021 and thereafter lease deed was executed and complainant got the possession on 3.8.2021.OP has claimed outstanding amount Rs. 1337730.09 along with interest and has also alleged the compliant being time barred.                            
3. Complainant has filed his affidavit and papers in support of his pleadings. Op have also filed affidavit in support of their pleadings.
4. We have perused the material available on record and heard the parties counsel.
5. The first question of consideration before us is whether the complainant is entitled to any relief?
6. Admittedly, complainant was allotted flat no. 702/B Tower B sector Omicron 1A by the Op vide allotment letter dated 29.1.2014. Complainant had pay the registration money Rs.257000 and allotment money Rs.514600 as per allotment cum allocation letter annexure 1. Complainant has filed the statement of account issued by Indian Bank AMU Branch, Aligarh to prove the amount Rs.2000000 borrowed for payment of the the consideration of the flat. Thus it is proved that an amount of Rs. 2771600 was paid to the OP., It is also proved on the basis of statement of account that an amount of Rs.544002 was paid by complainant as interest etc. on the borrowed amount. Thus it is proved that the complainant had invested total amount Rs.3315602 within three year from the date of allotment on 15.3.2014 to 15.3.2017. OP as alleged the outstanding amount Rs.1330730.09 against the complainant but the op has admitted in para no.9 of the reply that the complainant had paid   all the installments till 26.3.2014, meaning thereby all the installments were paid by the complainant and nothing remained due against the complainant before handing over possession of the flat. Admittedly, the possession of flat was delivered on 3.8.2021and it is beyond imagination that the possession of the flat was handed over without receiving the amount due and it is inferred that the total amount of consideration was paid by the date of handing over possession of the flat on 3.8.2021. Thus no amount as alleged by the Op is due against the complainant and the op is not entitled to get any amount whatsoever as alleged by the Op.
7. Op has alleged the unforeseen circumstances as a cause of delay delivery of possession but the Op has not stated any specific cause of delay in delivery of possession of the flat and the plea of unforeseen circumstances cannot be taken  into consideration for exempting the op from the liability. Op has also alleged the options for another allocation of the flat for exemption from the liability of delay. Op had entered into contract with the complainant with the flat in question and there was no provision for reallocation of another flat. Parties are bound by the terms of the contract in respect of the flat in question and the reallocation of flat was not within the purview of the said contract and therefore complainant cannot be compelled for reallocation of flat on the basis of contract in respect of the flat in question. There may be separate contract in regard to reallocation of the flat and the Op is not authorized to change the contract in respect of flat in question without consent of the complainant. Any terms or condition in regard to relocation another flat are not applicable in the matter and are meaning less for the purpose of delayed delivery of possession of flat in question.
8.   As per brochure issue by the Op, it is evident from clause 9 Execution of lease deed  and Possession  that the possession was offered to the allotees within a period of three years from the date of issue of allotment letter.  Op was under obligation to hand over possession of the flat to the complainant by the date 29.1.2017 i.e. within three years from the date of issuing allotment letter on 29.1.2014 but complainant was handed over possession of the flat on 3.8.2021. There is delay on the part of the op in handing over in possession of the flat and in view of Lucknow Development Authority  Vs M.K.Gupta decided by Hon’ble Supreme Court on 5.11.1993, dealay in handing over possession of the flat amounts to deficiency in service under the Act which renders the OP liable to compensate the complainant.  Complainant was deprived from use and enjoyment of the flat from 29.1.2017 till the date of handing over possession on 3.8.2021 and he may be compensated for the same in terms of interest @18% per annum on the amount Rs.3315602 invested by the complainant which is calculated at Rs.2681549 and thereafter complainant is also entitled for compensation on the same rate of interest on the said amount Rs.2681549 for the period from the date of filing the case till the date of actual payment.
9. Complainant has stated the grounds for condonation of delay in filing the complainant U/s 69 (2) of the Act supported by affidavit and the commission  having satisfied with the cause for delay, admitted the complaint and the OP has not filed any  evidence to rebut  the ground of condonation of delay stated by the complainant. Thus the challenge of the complaint on the ground of limitation is not tenable.       
10. The question formulated above is decided in favor of the complainants.
11. The rulings given by Hon’ble Supreme Court in the case  Wg.Cdr. Afifur Rahman V/s DIF Southern Home Pvt. Ltd. decided on 24.8.2020 and Lucknow Development Authority V/s M.K. Gupta decided on 5.11.1993 are applicable in the present case.
12. We hereby direct the Op to pay the compensation Rs.2681549 in terms of interest @18% per annum on the amount Rs.3315602 from 29.1.2017 to 3.8.2021 and to pay interest @ 18% per annum on the said amout Rs.2681549 from the date of filing the complaint i.e. 3.10.2023 till the date of actual payment. Op is also directed to pay compensation for harassment at Rs.50000 and litigation expanses Rs.20000.
13. Op shall comply with the direction within 30 days failing which Ops shall be prosecuted for non-compliance in accordance with section 72 of the Act for awarding punishment against him.
14. A copy of this judgment be provided to all the parties as per rule as mandated by Consumer Protection Act, 2019. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.

File be consigned to record room along with a copy of this judgment