1.      Heard counsel for both the parties.

2.      Above complaint has been filed for directing the opposite party to (i) hand over possession of the flat to the complainant and execute the relevant sale document, (ii) to pay Rs.4154439/-, as compensation for delay of 24 months in completing the construction of the flat despite having received payment of Rs.11540107/- by 28.10.2010, (iii) to pay compensation on account of rentals for the delayed period, (iv) pay compensation of Rs.10/- lacs, for mental agony and harassment, (v) pay Rs.100000/-, as litigation costs; and (vi) any other relief which is deemed fit and proper in the facts of the case.

3.      The complainant stated that the opposite party was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. The opposite party launched a project of group housing in the name of “DLF Capital Greens’ Phase-ll”, at Shivaji Marg, Najafgarh Road, New Delhi. On coming to know about the said project, the complainant booked a flat on 26.09.2009 and deposited application money. The opposite party allotted Apartment No.CGV-203 on 29.09.2009 and executed Apartment Buyers Agreement on 16.06.2010 in respect of Apartment no.CGV-203 having super area of 1520 sq. ft. for basic sale price of Rs.7500/- per sq. ft. Payment Plan was “construction link payment plan”. Clause 11(a) of the Agreement, provides that construction had to be completed within 36 months from the date of the application. Clause-14 of the agreement provides that if the builder is not able to give possession within the aforesaid period, then the buyer would be entitled for compensation at the rate of Rs.10/- per sq.ft. per month on super area. The opposite party vide letter dated 10.03.2010, informed that construction had commenced. The complainant diligently followed payment plan and deposited Rs.10968219/- till 18.10.2010. The complainant also paid Rs.435944/- for one extra car parking space and Rs.135944/- for shifting car parking from 3^rd basement to 2^nd basement. The opposite party, vide letter dated 19.07.2012, unilaterally revised the completion schedule from 36 months to 52 months. The opposite party gave a revised payment plan on 10.12.2010, in which, the opposite party informed that construction would be completed within 52 months. The opposite party sought for confirmation of new schedule. As the complainant had already paid entire consideration, she raised protest for revised schedule, vide letter dated 17.08.2012. The opposite party offered early payment rebate to the complainant @12.5% per annum calculated on the basis of the number of days by which remittance has been paid in advance, vide letter dated 27.08.2012. The opposite party, vide letter dated 28.02.2013, informed that super area has been increased to 1591.91 sq.ft from 1520 sq.ft. and demanded Rs.599717/- towards increased super area. The opposite party issued another demand letter dated 14.03.2013 and reminder dated 09.04.2013, for Rs.407290/-. The complainant, vide letter dated 20.03.2013, requested to adjust these demands from early payment rebate (along with calculation sheet), as provided vide letter dated 27.08.2012. The opposite party referred the issue of “early payment rebate” to an Arbitrator Mr. P.K. Sharma, Advocate, who issued notice to the complainant, for hearing, fixing 20.04.2013. The complainant vide letter dated 17.04.2013, informed that she did not accept reference and appointment of arbitrator. The opposite party issued Reminder-I dated 09.04.2013, Reminder-II dated 16.04.2013 and final notice dated 03.05.2013. The opposite party, vide letter dated 24.11.2016, offered possession to the complainant, along with demand of Rs.3047313.66 and Rs.163600 for Interest Bearing Maintenance Security. The complainant, vide letter dated 20.02.2017, requested for adjusting early payment rebate and compensation for delay in possession but of no response. This complaint was filed in January, 2019, after dismissal of CC/322/2017, by State Commission, on the ground of pecuniary jurisdiction.

4.      The opposite party filed its written statement on 05.07.2019, in which, material facts relating to the project, allotment of the apartment to the complainant on 29.09.2009, execution of the ABA dated 16.06.2010, in her favour and payments made by her, have not been disputed. The opposite party stated that they have applied for sanction of layout plan of Phase-II in December, 2009, which was approved in June, 2010. The opposite party then applied for approval of Building Plan on 03.08.2010, which was approved on 20.10.2011. The construction of phase-Il of the project, was delayed as approval of building plan was delayed. The opposite party issued letter dated 19.07.2012, to the buyers of Phase-ll, including the complainant, giving them an option to withdraw from the project as time schedule as fixed for completion of construction as 36 months was revised as 52 months. The complainants did not opt for withdrawal from the project. During the year 2014, an unfortunate accident took place on the site, causing fatal injury to one workman. Director of Industrial Safety and Health (Labour Department) Govt. of Union Territory Delhi issued prohibitory order dated 26.05.2014, stopping construction work on the site, which continued till 15.09.2014 to 30.01.2015 in respect of different towers. After completing construction and obtaining “occupation certificate”, on 24.11.2016, the opposite party vide letter dated 20.02.2017 offered possession to the complainant and other buyers also. About 93% buyers have taken possession. In the complainant is avoiding to pay the balance amount and malafide filed this complaint. In the Final statement of account, Rs.657268/- was adjusted towards Early payment rebate and Rs.300000/- was adjusted for delayed compensation. Under clause-10 of the ABA dated 16.06.2010, it has been mentioned that super area was tentative and liable to increase to the extent of 15% and shall be informed on completion of the construction. In the present case, super area has been increased to 12.2%. The complainant is liable to pay cost of the increased area and balance amounts.

5.      The complainant filed Rejoinder Reply, Affidavit of Evidence and Affidavit of Admission/Denial of Meenu Jain. The builder did not file any Affidavit of Evidence.

6.      We have considered the arguments of the counsel for the parties. The complainant has challenged the demand for increase in super area. Supreme Court, in the judgment in Civil Appeal No.3864-3889 of 2022 DLF Home Developers Ltd. Vs. Capital Greens Flat Buyers Association, decided on 14.12.2020, upheld the decision of this Commission in respect of the demand of the builder for increase in super area, in respect of same project. However, the decision of this Commission in respect of delayed compensation has been modified. It has been finally decided that the builder is liable to pay compensation for the delay in possession in the shape of interest @ 6% per annum on the deposit of the buyers from due date of possession till the date of offer of possession.

7.      So far as early payment rebate is concerned, the complainant is claiming Rs.3606000/-, while the opposite party has been credited Rs.657268/-, in the account of the complainant. The letter dated 27.08.2012 states as “our offer of an Early Payment Rebate equivalent to 12.5% per annum calculated on the basis of the number of days, remittance has been paid in advance to us”. The interest of 12.5% per annum was payable on the amount which was in excess and had to be adjusted towards future instalment, for the number days, for which it was in advance. The complainant has stated that she had paid Rs.10968219/- till 18.10.2010. The construction schedule was revised from 36 months to 52 months i.e. 16 months period was increased. The claim of Rs.3606000/- does not appear to be correct. The complainant could not point out any illegality in the amount paid by the opposite party in this head.

8.      The opposite party issued letter dated 19.07.2012, to the buyers of Phase-ll, including the complainant, giving them an option to withdraw from the project as time schedule as fixed for completion of construction as 36 months was revised as 52 months and due to which early payment rebate has been granted. The complainant did not opt for withdrawal from the project. Therefore due date of possession would be 25.03.2014. The opposite party would be entitled for extension of 7 months period on account of prohibitory order of  Director of Industrial Safety and Health (Labour Department) Govt. of Union Territory Delhi dated 26.05.2014 and due date of possession would be 25.10.2014. The opposite party offered possession on 20.02.2017 to the complainant.

ORDER

In view of the aforementioned discussions, this complaint is partly allowed. The opposite party is directed to issue fresh statement of account duly crediting the compensation for delay in possession in the shape of interest @ 6% per annum on the deposit of the complainant, from due date of possession till the offer of possession, within a period of eight weeks. If after adjusting early payment rebate and delayed compensation, any amount is payable by the complainant, the opposite party will charge interest on it @9% per annum from March 2017. The complainant will have one month time thereafter to deposit the amount, if any. On deposit of the amount as demanded in the statement of account, the opposite shall hand over possession of the flat, complete in all respects as per specifications in the agreement and execute Conveyance Deed in favour of the complainant without any further delay.