Chandigarh

StateCommission

CC/448/2018

Bharat Wahi - Complainant(s)

Versus

M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. - Opp.Party(s)

In Peron

04 Jul 2019

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	448 of 2018
Date of Institution	:	29.12.2018
Date of Decision	:	04.07.2019

 

Bharat Wahi son of Sh.Vishan Dass, aged 48 years, # 521, Sector 7, Kurukshetra, Haryana.

……Complainant

 

V e r s u s

 

1. M/s Omaxe Chandigarh Extension Developers Private Limited, Corporate and Sales Office at India Trade Tower, 1st Floor, Madhya Marg Extn. Road, New Chandigarh, Dist. SAS Nagar, Mullanpur, Punjab, through its General Manager/Director/ Authorized Signatory.
2. M/s Omaxe Chandigarh Extension Developers Private Limited, Registered Office at 10, L.S.C. Kalkaji, New Delhi-110019 through its Chairman/Managing Director/Director/Authorized Signatory.
3. Sh.Rohtas Goel, Chairman & Managing Director, M/s Omaxe Chandigarh Extension Developers Private Limited, Registered Office at 10, L.S.C. Kalkaji, New Delhi-110019.

.... Opposite Parties No.1 to 3

 

4. Greater Mohali Area Development Authority (GMADA) PUDA Bhawan, Sector-62, SAS Nagar Mohali, Punjab-160062, through its Chief Administrator/Sub Divisional Officer (B).

….Proforma Opposite Party No.4

 

Complaint under Section 17 of the Consumer Protection Act, 1986.

BEFORE:         MRS. PADMA PANDEY, PRESIDING MEMBER

                        SH. RAJESH K. ARYA, MEMBER

                       

Argued by:       Complainant in person.

      Sh.Sanjeev Sharma, Advocate for opposite parties    no.1 to 3.

      Service of opposite party no.4 dispensed with vide    order dated 08.01.2019.

 

PADMA PANDEY, PRESIDING MEMBER

                The complainant has filed this complaint seeking actual physical possession of flat bearing no.AICF/FF/489, measuring 1425 sq. ft. (later on area increased to 1646 sq.ft.),  purchased by him, in the project of opposite parties no.1 to 3 named Ambrosia Independent Floor Chandigarh, New Chandigarh, Mullanpur, Punjab, total price whereof was fixed at Rs.26,62,902.52ps. It is definite case of the complainant that despite the fact that out of the total sale consideration of Rs.26,62,902.52ps., he had paid an amount of Rs.24,92,699.58ps. till 12.02.2013, under down payment plan, yet, the opposite parties no.1 to 3 failed to send allotment letter/buyer agreement, for his signatures. However, when, after much persuasion, Allotment Letter was sent for signatures of the complainant in August 2014, it was found that terms and conditions contained therein, were one sided i.e. heavily loaded in favour of opposite parties no.1 to 3, as a result whereof, the complainant vide letter dated 30.08.2014 Annexure C-7, returned the Agreement with a request to amend terms and conditions regarding penalty and also to apprise him the date of possession of the unit, as construction did not take place by that time despite the fact that already period of more than two and half years had expired. In response to the said letter, vide letter dated 05.09.2014 Annexure C-8, opposite parties no.1 to 3 informed the complainant that construction of the units will be started by September 2014. Allotment Letter/Agreement was executed between the parties on 23.01.2015 i.e. after a period of more than four years of booking. It is definite case of the complainant that though as per clause 7 (a) of the Allotment Letter/Agreement, opposite parties no.1 to 3 committed to deliver possession of the unit within a maximum period of 21 months (15 months plus (+) 06 months grace period) from the date of signing of Allotment Letter i.e. upto 22.10.2016, yet, they miserably failed to do so, for want of construction and development work.  On the other hand, already more than 95% of the basic sale consideration, stood paid by the complainant, under down payment plan. It was stated that, as per Penal Clause contained in the Allotment Letter/Agreement, opposite parties no.1 to 3 agreed that, in case, they failed to offer possession of the flat within a period of 24 months after receiving 95% of basic sale price, they will compensate the complainant, for such period i.e. from the date when 95% of payment stood paid till delivery of actual physical possession of the unit, in question. When possession of the unit was not offered to the complainant, he started making requests to opposite parties no.1 to 3, to complete construction and offer possession thereof. It was further stated that opposite parties no.1 to 3 sent letter dated 19.03.2018 Annexure C-10 terming it as Offer of Possession of the said unit, with new description of the unit as Ambrosia S+3 (Stilt + 3) instead of G+2 (Ground + 2). It was further stated that in the said letter, it was in a very candid manner mentioned that development of the project is on the verge of completion and that construction work of the flat has been completed and ready for possession.  Alongwith the said letter, statement of account was also sent to the complainant, whereby he was asked to make payment of Rs.11,36,042.60ps., however, it was found that various charges made in the said statement of account were illegal.  Even the area of the unit was increased to the extent of more than 15% without obtaining any consent of the complainant. Opposite parties no.1 to 3 also levied Rs.98,263.33ps. towards car parking charges, under stilts only and no separate garage was provided.  It was also found in the said statement of account that opposite parties no.1 to 3 have levied Rs.3,19,382.94ps. towards corner PLC, but, it no more remained corner one because of installment of water pump with huge basement, manholes and water tanks, adjacent to it, unsafe for the habitants.  Even lift was also not provided. When the matter was taken up with opposite parties no.1 to 3, they did not hear to the same, and, on the other hand, started pressing the complainant, to make the remaining payment.  When various communication exchanged between the parties did not yield any result, the complainant served notice dated 24.07.2018 Annexure C-19 followed by number of letters/emails requesting opposite parties no.1 to 3, to complete construction  and development work; withdraw illegal demand raised; offer actual physical possession of the unit, in question; make payment of compensation by way of interest for the period of delay etc. but to no avail. Hence this complaint.

2.         Service of opposite party no.4/GMADA was dispensed with, vide order dated 08.01.2019.
3.         In the joint written reply filed by opposite parties no.1 to 3, it was stated that the complainant did not fall within the definition of “consumer” as defined under Section 2(1)(d) of the Act. He is an investor. He is already residing in a house at Kurukshetra, Haryana. Pecuniary and territorial jurisdiction of this Commission were challenged.
4.         Purchase of the unit, in question; payments made by the complainant, as mentioned in the complaint were not seriously disputed. It was also not seriously disputed that as per clause 7 (a) of the Allotment Letter dated 23.01.2015,  opposite parties no.1 to 3 committed to deliver possession of the unit, within a maximum period of 21 months (15 months (+) 06 months grace period) from the date of signing thereof. It was stated that the said period was to be computed excluding Saturdays, Sundays and Bank Holidays. However, it was said that since no definite period was mentioned in the agreement and as per the said Clause, Company only offered to put its best efforts to complete development, within the said period, and also the fact that it falls under the category of immovable property, as such, time was not to be considered as essence of the contract. In the same breath, it was pleaded that the complaint filed is barred by limitation. While admitting the fact that Allotment Letter, for the first time, was sent to the complainant for signatures, in 2014, it was pleaded that, delay, if any, was on his part, as he failed to send back the same and on the other hand, raised vague issues.  Possession of the unit, in question, was offered to the complainant vide letter dated 19.03.2018, after completion of all basic amenities and development at the project site and that too after obtaining occupation and completion certificates, from the Competent Authorities. Many reminders were sent to the complainant, to make payment of remaining amount of Rs.11,36,042/- but he failed to do so. To the reply of contents of para no.30 of the complaint that the complainant visited the office of opposite parties no.1 to 3 to withdraw offer letter dated 19.03.2018, it was very fairly admitted by them (opposite parties no.1 to 3) in para no.30 of the joint written statement that some interior paint and plastering was going on and the same was to be completed soon. It was stated that opposite parties no.1 to 3 are ready to pay delayed compensation for the period of delay i.e. from the committed date till 19.03.2018 and that too as per terms and conditions of the Allotment Letter. It was averred that water tanks, basement of water pump adjacent to the tower in question, is for the welfare and utility of the residents. The area of the unit was subject to change, which was agreed to between the parties by way of execution of the Allotment Letter. As such, the complainant is bound to pay PLC. As far as objection regarding construction of the units on stilts is concerned, it was said that as per Rules of the Government, in such like projects, construction of flats is allowed to be constructed on stilts and the ground floor area is to be kept for parking of the cars. Remaining averments were denied being wrong. Prayer was made to dismiss the complaint.
5.         In the rejoinder filed, the complainant reiterated all the averments contained in the complaint and repudiated those, contained in written version of opposite parties no.1 to 3.
6.         The parties led evidence in support of their case.
7.         During pendency of this complaint, under orders passed by this Commission, possession of the unit was taken over by the complainant on 14.04.2019.
8.         We have heard the contesting parties and have gone through the evidence and record of the case, very carefully.
9.         First, we will like to decide an objection raised by opposite parties no.1 to 3 that for want of pecuniary jurisdiction, it is not open to this Commission to entertain and adjudicate this complaint. It may be stated here that as per Section 17 (1) (a) of the Act, the State Consumer Disputes Redressal Commission shall have pecuniary jurisdiction to entertain any complaint, where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore. It was also so elucidated elaborately by a Large Bench of the National Commission in the case titled as Ambrish Kumar Shukla and 21 ors. Vs. Ferrous Infrastructure Pvt. Ltd., Consumer Case No.97 of 2016, decided on 07.10.2016.  In the present case, total value of the unit, in question i.e. Rs.26,62,902.52ps. plus (+) interest @12% on deposited amount of Rs.24,92,699.58ps. plus (+) compensation @Rs.10/- per square feet per month of the area of the unit, in question, plus (+)  compensation claimed to the tune of Rs.2 lacs for mental agony etc. and other reliefs are added, the same exceeds Rs.20 lacs and fell below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide this complaint. Objection taken by opposite parties no.1 to 3, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.
10.         The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not.

                According to Section 17 of the Act, a consumer complaint can be filed, by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to him. In the instant case, perusal of almost all the documents placed on record reveals that the same have been issued by the opposite parties No.1 to 3 from their Chandigarh Office. The Allotment letter was also executed at Chandigarh, as it bears round stamp of Chandigarh Office of opposite parties no.1 to 3, on all the pages. Even as per clause 59 (e) the Allotment Letter/Agreement, reveals that all the communication in respect of the unit, in question, was to be carried out with “SCO 139-140, 1^st Floor, Madhya Marg, Sector 8-C, Chandigarh-160008”. Under these circumstances, opposite parties no.1 to 3 cannot wriggle out of the same, by taking a contrary plea in their joint written statement. Since, as per the documents, referred to above, a part of cause of action arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide this complaint.  Objection taken by opposite parties no.1 to 3 in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

11.         The next question that falls for consideration, is, as to whether, the complainant is an investor, as such, he would not fall within definition of consumer, as defined under Section 2 (1) (d) of the Act, 1986.

                It may be stated here that the complainant, in his complaint, supported by the affidavit, has stated that his son is pursuing Degree in Mechanical Engineering in a College near Chandigarh, who is residing in a rented accommodation and that the unit was purchased so that he is able to reside therein and also, at the same time, the complainant had a dream to settle alongwith his family, in or around Chandigarh, after his retirement. Still the complainant by way of filing this complaint has sought actual physical possession of the unit, in question, alongwith compensation for the period of delay in offering it and other reliefs.  It is significant to add here that there is nothing on record to prove that the complainant is a property dealer and deals in the sale and purchase of property, on regular basis, and as such, the unit, in question, was purchased by him, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof.  Mere fact that the complainant is residing in a house at Kurukshetra, Haryana, is no ground to eliminate him out of the purview of consumer. A citizen of India has liberty to feel free, to decide, as to where, he/she wanted to shift, in any part of the Country. Thus, in the absence of any cogent evidence, in support of the objection raised by opposite parties no.1 to 3, mere bald assertion to that effect, cannot be taken into consideration. Since opposite parties no.1 to 3 have levelled allegations against the complainant, the onus lay upon them, to place on record, documentary evidence in that regard, which they failed to do so. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, decided by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  2016 (2) CPJ 316, Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, and recently in Shashi Kala Gupta Vs. M/s. Omaxe Chandigarh Extension Developers Pvt. Ltd. & Anr., First Appeal No. 1281 of 2017, decided on 15 Mar 2019. Relevant part of the said order (FA 1281 of 2017) reads thus:-

“……..This Commission in Kavit Ahuja Vs. Shipra Estate Ltd. & Jai Krishna Estate Developers Pvt. Ltd.  (I) (2016) CPJ 31 (NC)  held that when there is a specific pleading stating that the additional plots/flats purchased are for the personal use of the family members, the onus is on the Opposite Parties to establish that the purchaser is dealing in real estate i.e. purchase and sale of plots/flats and are indulging in commercial activity.  In the instant case there is no documentary evidence filed by the Developer to establish that the Complainant was indulging in any commercial activity in real estate, involved in the purchase and sale of plots…….. ”

 

                The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The complainant, thus, falls within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by opposite parties no.1 to 3, therefore, being devoid of merit, is rejected. 

12.         It is not in dispute that the complainant has purchased the unit, in question, in the project of opposite parties no.1 to 3, in the manner explained in the main complaint, total price whereof was fixed at Rs.26,62,902.52ps. inclusive of all charges. It is also not disputed that against total sale consideration of Rs.26,62,902.52ps. an amount of Rs.24,92,699.58ps. stood received by opposite parties no.1 to 3 till 12.02.2013, under down payment plan, yet, possession thereof was not offered by 22.10.2016 i.e. 21 months (15 months (+) 06 months grace period) from the date of signing of Allotment Letter dated 23.01.2015, as stipulated under clause 7 (a) thereof. Admittedly, actual physical possession of the unit, in question, was delivered to the complainant, on 14.04.2019, which was taken over by him, under orders of this Commission, during pendency of this complaint.

                It is the case of the complainant that despite the fact that construction and development work was not completed, yet, opposite parties no.1 to 3 issued paper possession vide letter dated 19.03.2018, just with a view to wriggle out of their liability. On the other hand, it was strongly contended by Counsel for opposite parties no.1 to 3 that, by the time, possession was offered to the complainant, vide letter dated 19.03.2018, construction of unit was complete; basic amenities were provided at the project site; and that occupation and completion certificates had been obtained from the Competent Authorities.

                As such, at this stage, the moot question which arises for consideration, is, as to whether, by the time when possession of the unit, in question, was offered to the complainant, vide letter dated 19.03.2018, opposite parties no.1 to 3 had completed construction of the unit or not or that it was a paper possession. It is very significant to mention here that to prove his case that by 09.10.2018, the unit was not ready for possession, the complainant has placed on record photographs thereof (unit in question). The said photographs showing the no. of flat (489) have been clicked by the complainant, alongwith newspaper of the even date (09.10.2018). Opposite parties no.1 to 3 did not place on record any document, to prove that the said photographs did not pertain to the said unit or that the same are fabricated one. As such, the authenticity of the said photographs cannot be doubted. Perusal of the said photographs clearly goes to show that the unit in question was not at all ready for habitancy. Work relating to Kitchen, washrooms, electricity, water fittings, plaster, painting was still to be carried out in the unit. Not only as above, even at the time of filing rejoinder to the written statement filed by opposite parties no.1 to 3, the complainant has again clicked the photographs of the incomplete unit (alongwith newspaper dated 17.03.2019), which still show that by 17.03.2019 even, the work referred to above, is pending to be completed. The another reason with this Commission to say that by the time, possession was offered to the complainant vide letter dated 19.03.2018, construction of the unit was not complete, is the self-admission of opposite parties no.1 to 3 in para no.30 of their written version only, to the effect that “…some interior paint and plastering was going on the same was complete soon…”. This reply has been given by opposite parties no.1 to 3 to the averment raised by the complainant in para no.30 of his complaint to the effect that opposite parties no.1 to 3 were requested to withdraw the letter dated 19.03.2018 because of incomplete construction of flat, for which photographs were also provided to them, by him. Furthermore, even in the letter dated 19.03.2018 also, it has been written by opposite parties no.1 to 3 that development work is on the verge of completion. Therefore, in this view of the matter, it is very strange and not known, as to how, when by October 2018 or by 17.03.2019, the unit in question was not ready for possession and also lifts/elevators had not been installed, the Greater Mohali Area Development Authority (GMADA) has issued occupation certificate. Be that as it may. It is, therefore, held that by the time, when possession was offered to the complainant, vide letter dated 19.03.2018, the unit, in question, was not ready in all respects, as such, offer of possession made is nothing but a paper one, which is not sustainable in the eyes of law. The complainant was, therefore, not liable to take over possession of the incomplete unit, in question.

13.         There is no dispute that possession of the unit, in question, was taken over by the complainant on 14.04.2019, under orders of this Commission. At the time of arguments, we asked the complainant, who was present in person, as to whether possession of the unit which has been taken over by him, is complete in all respects or not. He stated that some minor defects were noticed, which have been brought to the notice of representatives of opposite parties no.1 to 3 but at the same time, lift/elevator has not been made available. As such, under these circumstances, we feel appropriate to grant compensation to the complainant, for the period of delay i.e. from the committed date of making compensation, as per penal clause, referred to above, till 14.04.2019, the date when actual possession was taken over by the complainant. We expect that opposite parties no.1 to 3 will provide lift/elevator in the tower in question, shortly, probably in one month from the date of receipt of certified copy of this order.
14.         Facing with the situation, Counsel for opposite parties no.1 to 3 contended that as per Clause 7 (a) of the Agreement, beyond the period of 15 months, opposite parties no.1 to 3  can get further six months to deliver possession of the unit and while computing the above said period, Sundays, Saturdays, Bank Holidays, etc. are to be ignored, and that  the complainant, at the most, is entitled to compensation @Rs.10/- per square feet of super area of the unit.

                First coming to the question, as to whether, while computing the above said period of delay in handing over possession of the unit, Sundays, Saturdays, Bank Holidays, etc. are to be taken into account or not, it may be stated here that a similar question came up for consideration before this Commission in Ankur Gupta Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. and another, Consumer Case No.309 of 2016 decided on 22.11.2016,  and when dealing this issue, it was observed by this Commission, as under:-

 “We feel that the contention raised is liable to be rejected. In Clause 23(b) of the Agreement, it is stated that possession will be delivered within 24 months, from the date of allotment letter, with six months extension. It is further stated that when computing the said period all Saturdays, Sundays and Bank Holidays will be excluded. A similar issue came up for consideration before this Commission qua another project of the opposite parties, in the case of Dr.Divya Dahiya Vs. M/s Omaxe Chandigarh Extension Developers Private Limited and another, Consumer Complaint No.57 of 2016, decided on 15.07.2016, wherein, it was observed as under:-

“The first question, which falls for consideration, is, as to whether there was delay in offering possession of the plot, in question, and if so, to what extent. The allotment letter for independent floor in Row-Housing Project “Silver Birch” in the project of the Opposite Parties (Annexure C-4) was issued to the complainant on 30.08.2011. As per Clause 31(a) of the allotment letter, the Opposite Parties were to complete the development of the unit within 24 months or within an extended period of six months from the date of start of construction, subject to force majeure conditions. Since allotment letter is dated 30.08.2011, by computing 24 months plus 6 months period, the Opposite Parties were bound to deliver possession of the plot, in question, by 01.03.2014. The Opposite Parties have stated that period was to be computed by excluding Sundays, Bank Holidays, enforced Govt. holidays and the days of cessation of work at site in compliance of order of any Judicial/concerned State Legislative Body. Apparently, for seeking six months extension beyond 24 months or beyond six months extended period, the Opposite Parties owe an explanation, if the delay was on account of force majure conditions but nothing by way of cogent evidence to this effect has been placed on record. Thus, when no explanation for extension of six months period has been furnished, the Opposite Parties at the most could be allowed one out of the two benefits i.e. either six months extension beyond 24 months or period on account of Sundays/Holidays etc. This Commission in Consumer Complaint No.153 of 2015 titled ‘Mr. Madan Lal Taneja and another Vs. M/s Omaxe Chandigarh Extension Developers P. Ltd.’ decided on 03.11.2015, facts of which were almost identical, held that Opposite Parties were to hand over possession within 30 months from the date of start of construction. Thus, the possession of the unit, in question, was to be delivered by 01.03.2014.”

 

                Similar view has also been reiterated by this Commission, in number of cases, thereafter, in respect of the same project. It was specifically held that when there is no explanation of getting extension of 6 months’ period to deliver possession beyond the stipulated date, the benefit of exclusion of Saturdays, Sundays, Bank Holidays etc. cannot be given. Out of the two benefits, only one can be made available to opposite parties no.1 to 3. In this view of the matter, the contention raised by Counsel for opposite parties no.1 to 3, being devoid of merit, must fail and the same stands rejected.

                Now coming to the plea taken by opposite parties no.1 to 3 to the effect that the complainant is entitled to compensation, only @Rs.10/- per square feet per month of the super area of the unit, it may be stated here that the said paltry compensation would be attracted only in a case, in which the delay is for reasonable period and it has occurred because of cogent unfavorable circumstances.  This clause would not apply in the cases, where builder after receiving substantial amount against the agreed consideration, deliberately failed to take any steps for completing construction of the units. In the instant case, opposite parties no.1 to 3  have not shown any cogent circumstances or reason, which prevented them to complete construction of the unit and deliver possession thereof within the stipulated period. As such, plea taken in this regard, stands rejected.

                What relief can be granted to a consumer, in case of delay, in offering possession of a residential unit purchased, in the absence of any force majeure circumstances having been faced by the builder, also came up for consideration before this Commission in Ankur Gupta`s case (supra), wherein dealing with similar issue, it was observed as under:-

“What relief can be granted to a consumer, in case of delay, in offering possession, came up for consideration before the Hon’ble National Commission, in a case titled as Parsvnath Exotica Ghaziabad Resident's Association Vs. Parsvnath Buildwell Pvt. Ltd. & Anr., consumer complaint no.45/2015, decided by the Hon’ble National Commission, on 06.05.2016, wherein, it was argued by the project proponent that at the maximum, as provided in the Agreement, the consumer will be entitled to claim penalty for delayed compensation @Rs.5/- per square feet, per month. Noting that in case of delay in making payment, the project proponent was charging heavy penal interest, instead of penal amount, the interest on the deposited amount, for the period of delay was granted, by holding as under:-

“Though, the Agreement between the developer and the flat buyers provides for payment of compensation in case of delay @ Rs.5/- per square feet of the super area per month, such clauses have been found to be unfair trade practice and have been consistently rejected by this Commission in several decision, including  Consumer Complaint No. 427 of 2014 Satish Kumar Pandey & Ors. Vs. Unitech Ltd. and connected matters decided on 08.6.2015.  Therefore, the aforesaid clauses cannot be taken into consideration, while determining the compensation payable to the members of the complainant association for the aforesaid delay in completion of construction.”

Not only this, in another case, titled as Capt. Gurtaj Singh Sahni & anr. Vs Manager, Unitech Limited & anr., consumer complaint bearing no.603/2014, decided on 02.05.2016, the Hon'ble National Commission, directed the opposite party/builder to pay interest  on the deposited amount, for the period of delay, till delivery of possession of the unit. Relevant contents of the said order reads thus:-

“8.   If the compensation for the delay in construction is restricted to what is stipulated in the Buyers Agreement, there will be no pressure upon the builder to complete the construction since he will be more than happy to keep on paying paltry compensation of about 3% per annum of the capital investment, instead of arranging funds at much higher cost, to complete the construction.

9.      xxxxxxxxxxxxx

10.    For the reasons stated hereinabove, the complaints are disposed of with the following directions:

(1)     xxxxxxxxxxxxxx

(2)     The opposite party shall pay compensation in the form of simple interest @ 12% per annum from the expected date of possession till the date on which the possession is actually offered to the complainants after completing the construction in all respects and obtaining the requisite completion certificate.”

Thus, keeping in view the principle of law laid down by the Hon'ble National Commission, in the cases, referred to above, if interest @12% on the deposited amount for the period of delay, till delivery of possession of the unit, is awarded, that would meet the ends of justice.”

                Not only as above, in H.P. Housing Board Vs. Janak Gupta [2009] INSC 627 (26 March 2009) (Civil Appeal No. 6346 of 2002), it was clearly held by the Hon’ble Supreme Court of India that in the cases of delay, in delivery of possession, award of interest @ 12% per annum, on the deposited amount, for the period of delay, would meet the ends of justice. Taking note of above said proposition of law, in the present case also, ends of justice would meet, if interest @12% p.a., is granted to the complainant, as compensation for the period, as mentioned in the Agreement, in case of delay in delivering possession. 

15.         The next question that falls for consideration, is, as to for which period, the complainant is entitled to interest on the deposited amount. It is very significant to add here that in similar cases, we have been granting interest from the committed period of delivery of possession till the date when the possession is taken over by the allottee, however, the present case is a different one. In the present case, opposite parties no.1 to 3 had engraved an additional penal clause in the Agreement (at page 89 of the file) forming part of the Allotment Letter/Agreement, which says that in case the Company fails to deliver possession of the unit, in question, within a period of 24 months with extended period of 6 months, after receiving 95% of basic sale price, it shall pay compensation to the complainant. Admittedly, in the present case, 95% of the basic sale price i.e. Rs.20,27,302.36 (95% of the basic sale price being Rs.21,34,002.49ps. as is evident from Annexure A forming part of the Allotment letter/Agreement) stood paid by the complainant by 12.02.2013. As such, if the period of 30 months are taken from 12.02.2013, the date, by which 95% of the basic sale price stood received by opposite parties no.1 to 3, the complainant is held entitled to interest on the deposited amount starting from 11.08.2015 (30 months from 12.02.2013) till 14.04.2019, when possession of the unit, in question, was actually delivered to the complainant, during pendency of this complaint. In this view of the matter, plea taken by the complainant that he is required to be additionally compensated for delay in execution of Agreement cannot be considered, especially in the face of the fact that period of 24 months with extended period of 6 months, for possession was to be counted, from the date when 95% of basic sale price stood received by opposite parties no.1 to 3. Though, it is a deficiency in providing service and negligence on the part of opposite parties no.1 to 3, but we are now inclined to grant additional compensation in that regard, as the complainant has been suitably compensated in the manner, referred to above. Plea taken by the complainant, in this regard, stands rejected.
16.         Counsel for opposite parties no.1 to 3 contended that since it was mentioned in the Allotment Letter/Agreement that the Company shall make its best efforts to deliver possession of the unit within a period of 15 months, with further grace period of six months, as such, time was not to be considered as  the essence of contract. The contention raised is devoid of merit. It may be stated here that once a specific period of 15 months, with extended period of 6 months was mentioned in Clause 7 (a) of the Allotment Letter/Agreement with commitment of best efforts, to complete the development/construction work, now at this stage, opposite parties no.1 to 3  cannot wriggle out of the same. Other than this Clause contained in the allotment letter, there is no Clause, which speaks about the period/date for delivery of possession of the unit, to the complainant. A clear-cut promise was made to deliver possession of the unit, within a maximum period of 21 months. As stated above, it is not the case of opposite parties no.1 to 3 that they encountered any force majeure circumstances, as a result whereof, they were legally entitled for extension of time for delivering possession of the unit to the allottees, including the complainant.

                At the same time, it is also submitted that opposite parties no.1 to 3 cannot evade their liability, merely by saying that since the words ‘best efforts’ were mentioned in the allotment letter, for delivery of possession of the unit, as such, time is not to be considered as essence of the contract. The act of non-mentioning of exact date in the allotment letter/Agreement is violation of CHAPTER II Regulation of Promotion of Construction, Sale, Transfer and Management of Apartments, Plots and Properties, Condition no. 3(2) (g) of the Punjab Apartment and Property Regulation Act, 1995 (PAPRA), which says that the project proponent is duty bound to specify, in writing, the date by which possession of the plot or apartment is to be handed over and it shall hand over such possession accordingly. Relevant contents of condition no.3(2) (g) of PAPRA are reproduced below:-

“(g) specify, in writing, the date by which possession of the plot or apartment is to be handed over and he shall hand over such possession accordingly”;

Furthermore, non-mentioning of exact date of delivery of possession of the unit(s) in the Buyer’s Agreement/allotment letter, is an unfair trade practice on the part of the Builder. The builder is bound to mention the exact/specific date of delivery of possession of the plots/unit(s) to the allottees/purchasers thereof.  It was so said by the Hon`ble National Commission, in Rajeev Nohwar & Anr. V/S Sahajanand Hi Tech Construction Pvt Ltd, 2016 (2) CPR 769. Relevant portion of the said case reads thus:-

“Merely making possession by a particular date will also not meet the requirement of law and the promotor is under a legal mandate to stipulate a specific date for delivery of possession of the flat in the agreement which he executes with the flat buyer”.

 

17.          Another objection taken by opposite parties no.1 to 3 that since the unit, in question, falls under the category of immovable property, as such, in that event also, time is not to be considered as essence of the contract, is also bereft of merit, in view of ratio of judgment titled as Saradamani Kandappan vs S. Rajalakshmi & Ors., Civil Appeal Nos. 7254-7256  of 2002 &                                      and  Contempt Petition (C) No. 28-29 of 2009, decided on 4^th  July, 2011, wherein the Hon`ble Supreme Court held as under:-

“A correct perspective relating to the question whether time is not of the essence of the contract in contracts relating to immovable property, is given by this court in K.S. Vidyanadam and Others vs. Vairavan - (1997) 3 SCC 1 (by Jeevan Reddy J. who incidentally was a member of the Constitution Bench in Chand Rani). This Court observed:

"It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect.

In the case of urban properties in India, it is well-known that their prices have been going up sharply over the last few decades - particularly after 1973. .........We cannot be oblivious to the reality and the reality is constant and continuous rise in the values of urban properties - fuelled by large scale migration of people from rural areas to urban centres and by inflation.

Indeed, we are inclined to think that the rigor of the rule evolved by courts that time is not of the essence of the contract in the case of immovable properties - evolved in times when prices and values were stable and inflation was unknown - requires to be relaxed, if not modified, particularly in the case of urban immovable properties. It is high time, we do so."

(emphasis supplied) Therefore there is an urgent need to revisit the principle that time is not of the essence in contracts relating to immovable properties and also explain the current position of law with regard to contracts relating to immovable property made after 1975, in view of the changed circumstances arising from inflation and steep increase in prices. We do not propose to undertake that exercise in this case, nor referring the matter to larger bench as we have held on facts in this case that time is the essence of the contract, even with reference to the principles in Chand Rani and other cases. Be that as it may.”

 

18.         As far as objection taken to the effect that the complaint filed is time barred, it may be stated here that since possession of the unit, in question, had not been delivered to the complainant before filing of this complaint i.e. by the date when this complaint was filed on 29.12.2018 and the same was delivered only on 14.04.2019, during pendency of this complaint, as such, the complaint filed is within limitation. If two years are counted from the date when paper possession was offered to the complainant vide letter dated 19.03.2018, even then the complaint filed is within limitation. In this view of the matter, objection taken stands rejected.
19.         Now the remaining issues which needs to be decided are with regard to charging of Preferential Location Charges (PLC) to the tune of Rs.3,19,382.94ps.; and payment of differential amount of Rs.6,12,613.06ps. towards enhanced area of the unit from 1425 square feet to 1646 square feet.

                First coming to the  contention raised by the complainant to the effect that opposite parties no.1 to 3 have wrongly charged the amount towards Preferential Location Charges (PLC) to the tune of Rs.3,19,382.94ps. from him, as the said unit no longer remains as preferentially located on account of the reason that they have installed water pump with huge basement, manholes and water tanks, adjacent to it (unit), and, as such, he is not liable to make payment of the said amount. We do not agree with the contention raised, for the reasons to be recorded hereinafter. It may be stated here that from perusal of record, it is evident that the complainant had agreed for making aforesaid payment towards PLC, as his unit was located at corner/park facing/wide road. It is not in dispute that still the unit of the complainant is located at corner/park facing/wide road. Therefore, if adjacent to the tower in question, any water pump with basement, has been installed for the welfare and utility of the residents of the locality, the complainant should not have any objection to it. Had the said water pump been installed in the park, which is facing the unit, in question, or had there been no wide road or had the said unit not been corner located, the matter would have been different and only in those circumstances, it would have been held that the complainant is not liable to make payment towards PLC, as referred to above. Under these circumstances, contention raised by the complainant stands rejected. It is, therefore, held that the complainant is liable to make payment of Rs.3,19,382.94ps. towards Preferential Location Charges (PLC) i.e. for his unit located at corner/park facing/wide road.  

                Now coming to the contention raised by the complainant with regard to payment of differential amount of Rs.6,12,613.06ps. towards enhanced area of the unit from 1425 square feet to 1646 square feet. For this, we have to refer to Clause 16 of the Allotment Letter/Agreement which says that in case of increase in area of the unit, the complainant was liable to pay for the initial 10% of the increased area at the rate of basic cost of the unit prevailing at the time of booking and over and above 10%, he was liable to pay at the then prevailing Company’s Rate/Marketing Rate. In the present case, there has been an increase of 221 square feet of area in the unit which comes to 15.5% of the area, meaning thereby that for 10% (142.50 square feet) out of the same, the complainant is liable to pay at the old rates (@Rs.1497.55 per square feet) and for remaining 5.5% (78.38 square feet) at the prevailing Company’s Rate/Marketing Rate (@Rs.2772/- per square feet) i.e. totaling Rs.4,30,656.37ps. as explained below and not Rs.6,12,613.06ps. as demanded by opposite parties no.1 to 3 :-

Total increased area                 =      15.50% (221 sq. feet).

10% of increased area              =      142.50 square feet

Rate at the time of booking       =      Rs.1497.55 per sq. feet

142.50 sq. feet x Rs.1497.55    =      Rs.213400.87ps.

 

        5.5% of increased area             =      78.38 square feet.

        Prevailing rate/Company rate   =      Rs.2772/- per sq. feet.

        78.38 sq. feet x Rs.2772/-                =      Rs.217255.50ps.

                        GRAND TOTAL        =      RS.4,30,656.37PS.

                       

20.         Now the question arises is, as to whether, the complainant is liable to pay any further amount to opposite parties no.1 to 3 towards the unit, in question, and, if yes, to what extent? It is evident from the document i.e. Payment Plan Annexure-B forming part of the Allotment Letter/Agreement that total sale consideration of the unit, in question was fixed at Rs.26,62,902.52ps. as under:-

 

Basic Sale Price	21,34,002.49
PLC	2,76,500.02
Club cost	50,000.00
Power Backup Equipment Cost	57,000.00
IFMS	20,000.00
EDC	1,25,400.00
Total	26,62,902.52

 

Apart from above, it is also evident from the said document, that over and above the amount of Rs.26,62,902.52ps., the complainant was also liable to pay service tax, stamp duty and registration charges, cost towards electricity meter, water and sewerage, EDC etc., which are also found mentioned in statement of account Annexure A (at page 93 of the file), forming part of letter dated 19.03.2018 vide which paper possession was offered to the complainant.  

                It is evident from the record that the complainant had already paid an amount of Rs.24,92,699.58ps. out of Rs.26,62,902.52ps., to opposite parties no.1 to 3, which fact is not disputed. As such, under above circumstances, it is held that an amount of Rs.8,04,407.37ps., comes payable on the part of the complainant, as calculated below:-

Remaining sale consideration (balance towards PLC, club cost, power backup equipment, IFMS and EDC)	=	Rs.	170203.00 (Rs.26,62,902.52ps. minus (-) Rs.24,92,699.58ps.)
Difference amount (increase in area)	=	Rs.	430656.37
Difference amount (EDC)	=	Rs.	19448.00
Car parking	=	Rs.	98263.33
Meter cost	=	Rs.	42433.33
Infrastructure Cost/Cess	=	Rs.	15463.33
External electrification	=	Rs.	11113.35
Utility cost	=	Rs.	10263.33
Electric substation cost	=	Rs.	6563.33
Total payable by the complainant		Rs.	804407.37

 

21.         No other point, was urged, by the contesting parties.
22.         For the reasons recorded above, this complaint is partly accepted, with costs. Opposite parties no.1 to 3, jointly and severally, are directed as under: -
    1. To execute and get registered the sale deed, in respect of the unit, in question, in favour of the complainant, possession of which had already been delivered on 14.04.2019 during pendency of this complaint, within three months, from the date of receipt of a certified copy of this order, on payment of registration and stamp duty charges, by him to the Registering Authorities.
    2. To pay compensation, by way of interest @12% p.a., on the entire deposited amount, to the complainant, from 11.08.2015 (30 months from 12.02.2013, the date, by which 95% of the basic sale price stood received by opposite parties no.1 to 3) till 14.04.2019 (the date when possession delivered), within two months, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% p.a. instead of 12% p.a. for the entire period aforesaid, till the payment is made.

                Opposite parties no.1 to 3 are allowed to deduct/adjust the amount of Rs.8,04,407.37ps. payable by the complainant, as referred to above. However, it is made clear that this amount shall be deducted/adjusted out of the total compensation payable by opposite parties no.1 to 3, to the complainant and no interest shall be charged from the complainant on the said amount.

1. To install lift(s)/elevator(s) in the block/tower, wherein, the unit, in question, is located and also to remove the defects/deficiencies pointed out by the complainant at the time of taking over possession of the unit, within a period of one month, from the date of receipt of a copy of this order, failing which they shall pay compensation by way of interest @12% p.a. on the deposited amount from the date of passing of this order, till realization.
2. To pay compensation, in the sum of Rs.1,00,000/-, on account of mental agony, physical harassment, caused to the complainant, deficiency in providing service and adopting unfair trade practice, within two months from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing this complaint till realization.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the complainant, within two months from the date of receipt of a certified copy of this order, failing which, the same shall also carry interest @12% p.a., from the date of filing this complaint till realization.

23.         Certified Copies of this order be sent to the parties, free of charge.
24.         The file be consigned to Record Room, after completion.

Pronounced.

04.07.2019

Sd/-

 (PADMA PANDEY)

        PRESIDING MEMBER

 

 

Sd/-

 (RAJESH K. ARYA)

MEMBER

 

 Rg.