1.      Heard counsel for both the parties.

2.      Vashnoo Malhotra and Anil Malhotra have filed above complaint for directing the opposite party to (i) give possession of the Unit, complete in all respect, forthwith, along with promised amenities with delay compensation in the form of interest on the amount as paid by the complainants from the date of promised date of possession till delivery of possession; (ii) waive of the illegal demand raised by the opposite party by way of increase in area as the same has been raised without justification; (iii) pay compensation of Rs.1000000/- lacs for mental agony and harassment; (iv) pay Rs.100000/- as litigation cost; and (vi) any other relief which is deemed fit and proper in the facts and circumstances of the case.

3. The complainants 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 group housing project in the name of ‘DLF Capital Greens’ at 15, Shivaji Marg, New Delhi. On coming to know about the said project, the complainants booked a flat on 22.11.2010 and deposited application money. The opposite party allotted Apartment No.W-101, 10^th floor, Block W, Super area-2985 sq.ft. (later on increased to 3500 sq.ft.) on 22.11.2010 and executed Apartment Buyers Agreement on 07.05.2011 in respect of Apartment no.W-101 having super area of 2985 sq. ft. for basic sale price of Rs.39700500/- and Rs.1650000/- for two car parking spaces. Clause 11(a) of the Agreement provides that construction will be completed  within 36 months from the date of the application. Clause-14 provides that if the builder is not able to give possession within the aforesaid period, then the buyer will be entitled for compensation. The complainants diligently followed payment plan and deposited Rs.38000000 till 16.07.2014. The period of 36 months expired on 07.05.2014 but neither the building was completed nor possession was offered. The complainants took loan of Rs.14000000/- from HDFC Bank for paying instalments and was paying its EMI. After agreement, the area has been increased without any basis.

4. The opposite party filed its written statement on 15.06.2018 and contested the matter. The material facts relating to the project, allotment of the apartment to the complainants, execution of the ABA dated 07.05.2011, in their favour and payments made by them, have not been disputed. The opposite party stated that construction of phase-III of the project, was delayed as the building plan was delayed and approved on 15.02.2013. The opposite party issued letters dated 01.03.2013, to the allottees of phase-III, including the complainants, giving them an option to withdraw from the project as time schedule as fixed for completion of construction as 36 months was revised as 53 months. The opposite party vide letter dated 28.06.2017 offered possession to the complainants after obtaining “occupation certificate”. The complainants are avoiding to pay the balance amount and malafide filed this complaint. Under clauses-10 and 16 of the ABA dated 07.05.2011, 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 complainants are liable to pay cost of increased area and interest for delay in payment of instalments.

5. The complainants filed Rejoinder Reply, Affidavits of Evidence of Vashnoo Malhotra, Anil Malhotra, documentary evidence and short synopsis. The opposite party did not file Affidavit of Evidence and short synopsis.

6. We have considered the arguments of the counsel for the parties. The complainants have 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, and found it in accordance with the agreement. 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 form of interest @ 6% per annum on the deposit of the buyers from due date of possession till the date of offer of possession. The opposite party has charged total Rs.895250.19 as interest from the complainants. As we are awarding delay compensation from due date of possession as per agreement as such the opposite party would be entitled to charge interest as per agreement.

ORDER

In view of the aforementioned discussions, this complaint is partly allowed. The builder 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 complainants, from due date of possession till the offer of possession, within a period of eight weeks. If after adjusting delayed compensation, if any amount is payable, the opposite party will charge interest on it @ 9% per annum from July 2017. The complainants 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 builder 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 complainants without any further delay.