1.       Heard counsel for the parties.

2.       Above complaint has been filed for directing the opposite party to (a) hand over the vacant and peaceful possession of the flat bearing No.CGV-203, DLF Capital Greens Phase-II, Shivaji Marg, Najafgarh Road, New Delhi-110015 to the complainant after executing the relevant sale deed; (b) pay to the complainant compensation of Rs.4154439/- due to delay of 24 months by  the opposite party in completing the construction of the flat of the complainant despite receiving entire consideration amount; (c) pay to the complainant the compensation on account of rentals for the delayed period; (d) pay Rs.10 lacs on account of mental agony and harassment; (e) pay Rs.1 lac as litigation cost; and (f) any other appropriate relief which this Hon’ble Forum may deem fit and proper under the facts and circumstances 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-213 on 29.09.2009 and executed Apartment Buyers Agreement on 16.06.2010 in respect of Apartment no.CGV-213 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.3809/- for one extra car parking space and Rs.435944/- for shifting car parking from 3rd basement to 2nd 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. The complainant 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.414926/-. 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. This complaint was filed in January, 2019, after dismissal of CC/321/2013, 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 02.02.2017 offered possession to the complainant and other buyers also. About 93% buyers have taken possession. 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. 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 of Praveen Lata Jain. The opposite party 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 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 complainant booked the flat on 26.09.2009. Possession was to be handed over within 36 months from the date of booking of the flat. The opposite party failed issued offer of possession within the stipulated period and issued offer of possession on 02.02.2017. Therefore, the complainant is entitled for delay compensation from the due date of possession till the date of offer of possession.

O R D E R

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 form of interest @ 6% per annum on the deposit of the complainant, from 27.09.2012 till 01.02.2017, within a period of one month. The opposite party will be entitled to charge interest on it @9% per annum on the balance amount, if any after 03.03.2017 till the date of issue of statement of account. On supply of statement of account if any amount is payable by the complainant, the complainant will pay it within one month thereafter. If any amount is payable by the opposite party, it will be paid alongwith statement of account. On settlement of accounts, the opposite party shall handover possession and execute conveyance deed in favour of the complainant without any further delay.