PER MR. JUSTICE RAM SURAT RAM (MAURYA), MEMBER 

1.      Heard Mr. Deepak Kr. Khushalani, Advocate, for the complainants and Mr. Sameer Chaudhary, Advocate, for the opposite parties.

2.      Above complaints relate to same project “Skyon” and against same opposite party for the relief of compensation for delay in handing over possession and other consequential reliefs as such these complaints were heard together and are decided by common order.

3.      Sanjay Gopinath and Preethi Gopinath have filed CC/1902/2016, for directing the opposite party to (i) pay interest @18% per annum compounded quarterly from April, 2015 till the date of delivery of possession; (ii) pay Rs.50000/- per month, from April, 2015 till the date of delivery of possession; (iii) refund/adjust the amount of “service tax” as realized from the complainants, towards his other dues; (iv) pay Rs.500000/- as compensation for mental agony and harassment; and (v) any other relief which is deemed fit and proper in the facts and circumstances of the case. The complainants stated that M/s IREO Private Limited (Opposite Party) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project and selling its unit to the prospective buyers. The opposite party launched a group housing project, in the name of “Skyon” at Village Ullawas, Tehsil Sohna, Golf Course Extension Road, Sector-60, Gurgaon, in the year 2012 and made wide publicity of its facilities and amenities. The opposite party invited booking applications in its upcoming project “Skyon”. The complainants booked a flat on 08.11.2012 and deposited booking amount. The opposite party issued Allotment Offer Letter on 15.11.2012, allotting Unit No. SY-A-06-10, super area 2033 sq.ft. Along with allotment letter, “construction linked payment plan” was attached, in which, basic sale price @Rs.9100/- per sq.ft. and Preferential Location Charge @Rs.1500 per sq.ft. were mentioned. The complainants inquired in this respect from the opposite party, who assured delivery of possession in schedule time. The opposite party executed Apartment Buyer’s Agreement on 27.12.2012. In clause-13.3 of the agreement provides 42 months period from the date of approval of the Building Plan and/or fulfilment of the preconditions imposed thereunder with grace period of 180 days as “commitment period”. Clause-13.4 provides for delay compensation after expiry of aforesaid period. The complainants, vide letter dated 04.11.2016, made a query from the opposite party in respect of date of approval of building plan, which was informed as 27.09.2011, vide email dated 16.11.2016. “Commitment Period” expired on 26.03.2015 and grace period expired on 26.09.2015. As per demand, the complainants deposited Rs.22255263/- till June, 2016. Although the complainants deposited about 95% of the consideration but the opposite party neither offered possession nor gave delay compensation.  Delhi High Court in Suresh Kumar Bansal Vs. Union of India, held that “service tax” was not payable on building construction. The amount of “service tax” realized from the complainants is liable to be refunded/adjusted. The complaint was filed on 23.11.2016.

The opposite party in the Affidavit of M.K. Singh, filed on 20.12.2022, stated that the complainants completed formalities of papers and deposited Rs.1295000/- through cheque dated 10.02.2018 and took possession on 16.02.2018.

4.      Paramjit Singh Bawa and Chanda Bawa have filed CC/3165/2017, for directing the opposite parties to (i) pay interest @18% per annum compounded quarterly on the amount paid for the delay of 30 months in offering possession of the flat in question; (ii) pay interest @18% per annum compounded quarterly till the delivery of physical possession of the above said flat to the complainants duly complete in all respects; (iii) recall the unjustifiable demands raised in their ‘Notice of Possession’ dated 18.9.2017and also to refund/adjust the service tax amount as claimed in the said notice of possession; (iv) restrain the opposite parties to levy any future/further interest and/or claim holding charges upon the demand made as per the alleged notice of possession letter dated 18.09.2017; (v) pay to the complainants towards loss of rent @Rs.50000/- per month from 26.03.2015 i.e. from the promised/actual date of handing over possession till the actual delivery of possession; (vi) award the cost and litigation expenses and compensating for harassment & mental agony to the tune of Rs.500000/- to the complainants and (vii) any other relief which is deemed fit and proper in the facts and circumstances of the case. The complainants stated that M/s IREO Private Limited (opposite party-1) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project and selling its unit to the prospective buyers. Other opposite parties were its subsidiary companies. The opposite party-1 launched a group housing project, in the name of “Skyon” at Village Ullawas, Tehsil Sohna, Golf Course Extension Road, Sector-60, Gurgaon, in the year 2012 and made wide publicity of its facilities and amenities. The opposite party invited booking applications in its upcoming project “Skyon”. The complainants booked Unit No. SY-A-02-11, super area 1374 sq.ft. basic sale price @Rs.10525/- per sq.ft. on 12.09.2012 and deposited booking amount. The opposite parties executed Apartment Buyer’s Agreement on 21.11.2012. In clause-13.3 of the agreement provides 42 months period from the date of approval of the Building Plan and/or fulfilment of the preconditions imposed thereunder with grace period of 180 days as “commitment period”. Clause-13.4 provides for delay compensation after expiry of aforesaid period. The complainants inquired from the opposite party in respect of date of approval of building plan, which was informed as 27.09.2011. “Commitment Period” expired on 26.03.2015 and grace period expired on 26.09.2015. As per demand, the complainants deposited Rs.14754380/-. Although the complainants deposited about 95% of the consideration but the opposite party neither offered possession nor gave delay compensation. The opposite party issued notice of possession dated 18.09.2017 along with demand of Rs.2776496/-. The complainants, vide email dated 12.10.2017, inquired about “occupation certificate”. The opposite party vide email dated 13.10.2017 informed that “occupation certificate” was applied on 20.02.2017 and issued on 16.09.2017. Delhi High Court in Suresh Kumar Bansal Vs. Union of India, held that “service tax” was not payable on building construction. The amount of “service tax” realized from the complainants is liable to be refunded/adjusted. Various demands viz. Non-refundable Skyon club deposit, Increased area charges, Infra augmentation charges, labour cess, applicable carrying cost, interest on delayed payment, internal gas-pipe laying & meter charges, internal electrical connection charges, service tax and administrative charges are arbitrary and illegal. Delay compensation was inadequate. The complaint was filed on 30.10.2017.

          The opposite party in the Affidavit of M.K. Singh, filed on 20.12.2022, stated that the complainants deposited the demanded amount on 08.05.2018 and completed documentations and took possession on 28.12.2018.

5.      Reena Puri Lekhi and Mahesh Kumar Lekhi have filed CC/3206/2017, for directing the opposite parties to (i) pay interest @18% per annum compounded quarterly on the amount paid for the delay of 30 months in offering possession of the flat in question; (ii) pay interest @18% per annum compounded quarterly till the delivery of physical possession of the above said flat to the complainants duly complete in all respects; (iii) recall the unjustifiable demands raised in their ‘Notice of Possession’ dated 27.09.2017and also to refund/adjust the service tax amount as claimed in the said notice of possession; (iv) restrain the opposite parties to levy any future/further interest and/or claim holding charges upon the demand made as per the alleged notice of possession letter dated 27.09.2017; (v) pay to the complainants towards loss of rent @Rs.50000/- per month from 26.03.2015 i.e. from the promised/actual date of handing over possession till the actual delivery of possession; (vi) award the cost and litigation expenses and compensating for harassment & mental agony to the tune of Rs.500000/- to the complainants and (vii) any other relief which is deemed fit and proper in the facts and circumstances of the case. The complainants stated that M/s IREO Private Limited (opposite party-1) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project and selling its unit to the prospective buyers. Other opposite parties were its subsidiary companies. The opposite party-1 launched a group housing project, in the name of “Skyon” at Village Ullawas, Tehsil Sohna, Golf Course Extension Road, Sector-60, Gurgaon, in the year 2010 and made wide publicity of its facilities and amenities. The opposite party invited booking applications in its upcoming project “Skyon”. Mrs. Charu Sasan and Mr. Rajeev Sasan (predecessor-in-interest of the complainants) booked Unit No. SY-F-00-08, super area 1295 sq.ft. basic sale price @Rs.6500/- per sq.ft. on 31.10.2010 and deposited booking amount. The opposite parties executed Apartment Buyer’s Agreement on 31.01.2012. The complainants purchased the said unit from Mrs. Charu Sasan and Mr. Rajeev Sasan on 07.05.2012 with the permission of the opposite party, which was duly endorse in the agreement. In clause-13.3 of the agreement provides 42 months period from the date of approval of the Building Plan and/or fulfilment of the preconditions imposed thereunder with grace period of 180 days as “commitment period”. Clause-13.4 provides for delay compensation after expiry of aforesaid period. The complainants inquired from the opposite party in respect of date of approval of building plan, which was informed as 27.09.2011. “Commitment Period” expired on 26.03.2015 and grace period expired on 26.09.2015. As per demand, the complainants (included their predecessors) deposited Rs.8254694/-. Although the complainants deposited about 90% of the consideration but the opposite party neither offered possession nor gave delay compensation. The opposite party issued notice of possession dated 27.09.2017 along with demand of Rs.3034607/-. The complainants deposited Rs.500000/- but the opposite party was insisting for deposit of full amount for taking possession. The complainants inquired about “occupation certificate”. The opposite party vide email dated 13.10.2017 informed that “occupation certificate” was applied on 20.02.2017 and issued on 16.09.2017. Delhi High Court in Suresh Kumar Bansal Vs. Union of India, held that “service tax” was not payable on building construction. The amount of “service tax” realized from the complainants is liable to be refunded/adjusted. Various demands viz. Non-refundable Skyon club deposit, Increased area charges, Infra augmentation charges, labour cess, applicable carrying cost, interest on delayed payment, internal gas-pipe laying & meter charges, internal electrical connection charges, service tax and administrative charges are arbitrary and illegal. Delay compensation was inadequate. The complaint was filed on 30.10.2017.

          The opposite party in the Affidavit of M.K. Singh, filed on 20.12.2022, stated that the complainants deposited the demanded amount on 08.01.2018 and completed documentations and took possession on 07.12.2018.

6.      The opposite party filed its written replies and contested the matter.  The facts relating to the project, allotment of the apartment to the complainants, execution of ABA in their favour and payments made by them, have not been disputed.  The opposite party stated that although building plan was approved on 27.09.2011 but “No Objection Certificate” from Fire Department was delayed and issued on 25.09.2013 although it was applied on 16.01.2012. The period of 42 months is liable to be counted from 25.09.2013 and due date of possession including grace period would be 24.09.2017. Sanjay Gopinath has also booked Apartment No.CD-C6-09-901, in the project “The Corridors”, which shows that the complainants are investors in real estate and not consumers. Under Finance Act, 2010, “service tax” has been imposed upon “building construction”. The amount realized by the opposite party towards “service tax” has already been deposited. The construction of first phase, which consisted 250 apartments were completed “occupation certificate” was issued and possession was offered to the home buyers in those towers. The construction of the tower, in which, the complainants were allotted flat was going on with full spring and likely to be completed within two months. In reply to the subsequent complaints, the opposite party stated that after completing construction, “occupation certificate” was applied on 20.02.2017, which was issued on 16.09.2017. Thereafter possession was offered to all the complainants, with final demand.  Terms of the agreement are binding upon the parties. The CC/1902/2016 was pre-mature and is liable to be dismissed. Other complainants have no merits. Various demands were made as per terms of the agreement.

7.      The complainants filed Rejoinder Replies, Affidavits of Evidence, Affidavits of Admission/Denial of documents of Sanjay Gopinath, Preethi Gopinath, Paramjit Singh Bawa, Chanda Bawa, Reena Puri Lekhi, Mahesh Kumar Lekhi and documentary evidence. The opposite party filed Affidavit of Evidence of Subhasis Lahiri. Along with Affidavit of Evidence, the opposite party filed copy of “occupation certificate” dated 14.09.2017 and Notice of Possession dated 25.09.2017. The complainants filed IA/16477/2017, seeking permission of this Commission to deposit the amount of final demand dated 25.09.2017 (except stamp duty and club membership charge), which was disposed of vide order dated 03.11.2017. The opposite party copy of Deed of Declaration dated 07.12.2017, along with IA/1354/2019. All the parties have filed their written synopsis of arguments.

8.      The complainants claimed compensation for delay in handing over possession. According to the complainants, clause-13.3 of the agreement provides 42 months period from the date of approval of the Building Plan with grace period of 180 days as “commitment period” for handing over possession. Admittedly building plan was approved on 27.09.2011 as such “Commitment Period” has expired on 26.03.2015 and grace period expired on 26.09.2015, while possession was handed over on 16.02.2018. As such they are entitled for compensation for the period of 27.09.2015 to 15.02.2018.   

9.      We have considered the arguments of the parties and examined the record. Clause-13.3 of the agreement is quoted below:-

“13.3.-Subject to force majeure, as defined herein and further subject to the Allottee having complied with all its obligations under the terms and condition of this agreement and not being in default of any provisions of this agreement including but not limited to the registration charges, stamp duty and other charges and also subject to the allottee having complied with all formalities or documentation as prescribed by the Company the Company proposes to offer possession of the said apartment to the allottee within a period of 42 months from the date of approval of the Building Plan and/or fulfilment of the preconditions imposed thereunder (“commitment period”). The Allottee further agrees and understands that the Company shall additionally be entitled to a period of 180 days “grace period”, after the expiry of the said commitment period to allow for unforeseen delays beyond the reasonable control of the Company.”

10.    Similar term of the agreement has been considered by Supreme Court in Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna (2021) 3 SCC 241, in which, it has been held that that Fire NOC is mandatory under Haryana Fire Safety Act, 2009 and also a condition under approved Building Plan, as such, 42 months period has to been counted from the date of issue of Fire NOC. This Commission in CC/1639/2016 Vandana Kapila Vs. M/s. Ireo Private Limited (decided on 21.12.2021), which was in respect of same project “Skyon”, held that 42 months period has to be counted from issuance of Fire NOC. Fire NOC was issued on 25.09.2013 although it was applied on 16.01.2012. The period of 42 months is liable to be counted from 25.09.2013 and due date of possession including grace period would be 24.09.2017. In the present case, the opposite party obtained “occupation certificate” on 14.09.2017 and issued notice of possession to the complainant on 25.09.2017. As such there was no delay in offer of possession.

11.    Demand in various head made in final demand letter was according to the terms of the agreements. The counsel for the complainants could not point out any illegality in it. Under Finance Act, 2010, “service tax” has been imposed upon “building construction”. The amount realized by the opposite party towards “service tax” has already been deposited.

ORDER

ln view of aforesaid discussions, the complaints are dismissed.