For the Appellants                Mr Madhurendra Kumar, Advocate along

                                                                                with appellant – IN PERSON

For the Respondent              Mr Shantwanu Singh, Advocate (VC)

ORDER

PER SUBHASH CHANDRA

1.     The present appeal has been filed under Section 19 of the Consumer Protection Act, 1986 (in short, ‘the Act’) against the order dated 17.05.2022 passed by the Delhi State Consumer Disputes Redressal Commission, Delhi (in short, ‘the State Commission’) in complaint no. 861 of 2016, whereby the complaint was partly allowed.

2.     The brief facts of the case are that in the year 2013, the appellant applied in the respondent’s residential Group Housing Complex by the name of ‘Shalimar City’ at Delhi Wazirabad Road, Ghaziabad, Uttar Pradesh for a residential flat for personal use. The respondent represented to the appellant that the respondents are the absolute owners of the land measuring 71,180 sq mtrs, purchased on the basis of sale deeds from the respective owners and had obtained all the requisite permissions and licenses for the development of the said Group Housing Complex and had also got the Sanctioned Plan of the project approved from the Ghaziabad Development Authority (GDA). The respondent further intimated the appellant that they would develop/ construct the housing complex as per the terms and conditions of the sanctioned plan of the GDA. The respondent further stated that they would complete the construction of the said housing project in all respects and obtain the requisite Completion Certificate as well as NOC from the concerned authorities and hand over the possession of the flat, latest by the end of September 2014. Respondents further stated that in case they fail to hand over the possession of the flat by the said date they would compensate the allottees at the same rate they were charging (18% per annum for late payment) on the investment made by the respective allottees.

3.     The appellant thereafter, booked a 3 BHK flat in the said project, being Flat/ Unit no. A – 001, Silver Bell Tower admeasuring 1638 sq ft Super Area for a total sale consideration of Rs.56,89,540/- including IFMS charges. An allotment letter dated 19.12.2013 was executed by the respondent in favour of the appellant. The appellant submitted that the allotment letter dated 19.12.2013 was entirely contrary to the assurances given by the respondents at the time of booking of the flat. The appellant was however, forced to sign the allotment letter against his wishes as he had already paid more than 10% of the total price at the time of booking of the flat. The appellant submitted that a sum of Rs.55,26,058/- as on January 2014 including the service tax stood paid by him which was within the stipulated period of time as agreed at the time of booking of the flat. The appellant stated that as on January 2014, he had paid more than 95% of the total price of the flat.

4.     In April 2016, the appellant received a pre-possession-cum-demand letter dated 15.04.2016 from the respondent. According to appellant, this was totally illegal and against the agreed terms and conditions of the allotment of the flat. Appellant submitted that the respondents demanded advance maintenance charges, electric connection and meter charges and interest which are illegal and without any justification. The appellant alleges that the respondents had included IFMS charges in the basic price of the flat at the time of allotment and had assured free maintenance of flat for two years. However, now the respondents were demanding maintenance charges for two years in advance.

5.     The appellant and other allottees visited the site office of the respondent and found that the housing complex was still under construction and was not in a habitable condition. The appellant further alleged that the flats were not as per the specifications and measurements etc., and that the respondent had not even applied for the Completion Certificate as the project had not yet been completed. NOC from the concerned authorities has also been received illegally and in violation of the sanction plan.  The appellant further stated that they were willing to pay the balance amount provided the respondent completed the project as per the sanctioned plan passed by the GDA and handed over possession.

6.     The appellant issued a Legal Notice dated 23.05.2016 to the respondent to hand over possession of the flat to the appellant along with compensation for the delayed period as interest at 18% per annum as assured at the time of the booking of the flat. It is contended that the respondent neither took any action nor replied to the legal notice of the appellant.  According to the appellant, the respondent failed to complete the project as assured at the time of booking of the flat and to hand over possession of the flat within the stipulated period of time i.e., by 30.09.2014. As there was no positive response from the respondent, the appellant filed a Complaint Case no. 861 of 2016 before the State Commission, Delhi with the following prayer:

1. To obtain the completion certificate from the concerned authorities and hand over the possession of the Flat/ Unit no. A 001, Silver Bell Tower, admeasuring 1638 sq ft super area along with open parking space to the complainant after receiving the balance amount of sale price as agreed under the allotment letter dated 19.12.2013 and in case the area of the flat is less than 1638 sq ft than the price of the flat may be proportionately reduced/ adjusted against the total sale price;
2. To direct the opposite party to the compensation/ interest for delayed possession from 01.10.2014 till actual physical possession of the flat is handed over to the complainant at 18% per annum on the total investment of complainant as on 30.09.2014;
3. To direct the opposite party to pay the compensation of Rs.2,00,000/- for harassment, mental torture and agony suffered by the complainant;
4. To direct opposite party to provide free maintenance for 2 years as agreed at the time of booking of the flat as the opposite party including the IFMS charges in the basic price of the flat;
5. To direct the opposite party to install and charge for the electricity meter only on actual expenses basis as charged by the concerned department;
6. To direct the opposite party to make operational of the club in terms of the allotment letter dated 19.12.2016;
7. To direct respondent to pay Rs.50,000/- as cost of litigation incurred by the appellant; and
8. Pass any other order or further order deems fit and proper in the facts and circumstances of the present case.

7.     When the matter came up for hearing before the State Commission on 17.05.2022, none appeared on behalf of the parties. The State Commission proceeded to dispose of the matter on merits after perusing the material on record and passed the following order:

18.     Keeping in view the facts of the present case and the extensive law as discussed above, we direct the complainant to pay the balance amount on the date on which the physical possession was offered by the opposite party. We further direct the opposite party:

(a)     to hand over the actual physical possession of the said flat as per allotment letter dated 19.12.2013 within six months from the date of present judgment.

(b)     To pay the penalty for delayed possession @ Rs.5/- per sq ft of the super area per month from 01.10.2014 ( the date on which possession of the said flat has to be given to the complainant as per allotment letter dated 19.12.2013) till the actual date of handing over possession of the said flat to the complainant.

19.     In addition to the aforesaid and taking into consideration the facts of the present case, the opposite party is directed to pay a sum of:

(a)     Rs.2,00,000/- as cost for mental agony and harassment to the complainant; and

          (b)     The litigation cost to the extent of Rs.50,000/-.

20.     The opposite party is also directed not to deduct any TDS on the amount being paid/ refunded.

8.     Aggrieved by the order of the State Commission the appellant has filed the present first appeal before this Commission.

9.     Notice of the appeal was issued to the respondent for 01.02.2023, and served by way of Dasti; however, none appeared on behalf of the respondent on 21.09.2023.  Reply to the IAs was filed by the respondent. On 08.03.2024, the counsel appearing on behalf of the respondent submitted on instruction that the respondent was willing to hand over the possession of the flat subject to adjudication of the issues raised in the appeal. The respondent was directed to hand over the possession of the flat within four weeks, subject to the finalization of the claims in this appeal and the matter was listed on 22.05.2024. On 22.05.2024, the learned counsel appearing on behalf of the respondent through VC submitted that possession of the flat in question had been handed over to the appellant. Counsel for the appellant also confirmed that the flat had been handed over to the appellant on 27^th April 2024.

10.   Learned counsel for the parties was directed to file a short note on the points urged by them at the time of final arguments within a week. Learned counsel for the appellant has filed his brief note, however, the respondent has not filed his brief of note of arguments as directed on 22.05.2024.

11.   Vide his written submission, the learned counsel for the appellant stated that in Consumer Case no.439 of 2018 – Shalimar City Samajik Kalyan Samiti vs M/s M R Proview Real Tech Pvt. Ltd., decided on 31.03.2022 has decided all the issues pertaining to the subject project ‘Shalimar City’ proposed to be developed by the respondent at Wazirabad Road, Ghaziabad, UP. The learned counsel for the appellant has stated that in the said residential project, the appellant is having a residential flat. Learned counsel for the appellant further submits that in CC no.439 of 2018, the appellant was not a party to the same, however, the appellant further submits in CC no. 439 of 2018 this Commission had allowed the complaint in favour of the complainant with the following observations:

26.     For the aforesaid reasons, the Complaint is partly allowed with the following directions to the Opposite Party Developer to:-

(i) Remove the defects in the Apartments pointed out by the Members of the Complainant Association at the time of taking the possession, within a period of six months from today failing which the same shall be get cured by the Society at their costs;

(ii) Duly obtain the requisite Occupancy Certificate at its own cost if not already obtained and to execute the required legal documents.

(iii) Pay delay Compensation to the Members of the Society @ 9 % per annum from proposed date of possession, which would include grace period as per their respective Allotment Letters on the amount deposited, till handing over the actual possession, within a period of six weeks from today failing which the delay compensation will be @ 12% per annum for the same period.

(iv) To collect the Maintenance Charges, if any payable by the Members of Society, from the date of receipt of Occupancy Certificate;

(v) If any amount is collected on account of Maintenance Charges from the Members of the Society before the receipt of Occupancy Certificate, the same shall be adjusted against the payable maintenance charge, if any or shall be refunded with interest @9% p.a. from the respective date of deposit till the receipt of Occupancy Certificate;

(vi) To calculate the amount of EMI payment payable under the Subvention Payment Scheme by the Developer till the date of actual possession and adjust the same against any amount payable by the Members of the Society or to refund the same with interest @9% p.a. from the due date till actual payment. 27. We further direct the Registry to release the disputed amount deposited by the Members of the Complainant Society in terms of the orders dated 23.07.2018 and 01.11.2019 to them along with interest accrued, if any.

12.    The learned counsel for the appellant further submit that on 27.04.2024 the respondent had issued the possession letter merely of the subject flat, without handing over the possession of covered car parking space. Learned counsel for the appellant further submits that the appellant has already paid the entire cost of the subject flat and the facilities as per the agreement with the respondent. The respondent had also issued a No Dues Certificate on 30.11.2023 to the appellant. Learned counsel for the appellant further submits that the respondent had delivered the possession of the subject flat after a long delay of almost 9 years, 6 months and 27 days, therefore, the respondent was liable to pay interest compensation @ 12% per annum from 01.10.2014 till 27.04.2024 to the appellant. Learned counsel for the appellant further submits that the appellant had also paid Rs.49,460/- towards the Interest Free Maintenance Security (IFMS) charges to the Shalimar City Apartment Owners Association. Learned counsel for the appellant further submits that the respondent in an illegal manner and without any valid reasons received an amount of Rs.70,800/- towards electric meter charges, appellant is also paying Rs.21,600/- per day installment to the PVVNL towards installation of electric meter in the said flat. The learned counsel for the appellant submits that the amount of Rs.70,800/- be refunded to them with interest @ 12% per annum. The learned counsel for the appellant has prayed before this Commission for the following reliefs sought from the respondent:

1. Respondent may be directed to deliver the possession of the cover car parking space to the appellant at the earliest;
2. Respondent may be directed to execute the sale deed of the subject flat in favour of the appellant as per GDA format at the earliest;
3. Respondent may be directed to near the liability for payment of House Tax and other tax liability for the subject flat upto 27.04.2024, i.e., uptill the date of delivery of possession of the flat to the appellant;
4. Respondent may be directed not to deduct any TDS on the amount being paid as per the orders of the State Commission and the National Commission in the present consumer case.  

13.   Despite the directions of the State Commission in the impugned order to obtain the occupation certificate, if not already obtained and to execute the required legal documents, the respondent has not brought on record the occupation certificate. As despite directions in the impugned order (17.05.2022) the same was not complied with, deficiency in service in handing over the possession within the prescribed period is manifest. The appellant is therefore, entitled for compensation on account of delay in handing over the possession of the flat in question.

14.   As regards the quantum of compensation, in light of the law laid down by the Hon’ble Supreme Court in the case of Wg Cdr Arifur Rahman Khan & Ors. Vs. DLF Southern Homes Pvt. Ltd. & Ors., Civil Appeal No. 6239 of 2019 decided on 24.08.2020, (2020) 16 SCC 512 which held that compensation @ 6% p.a. for delay in offer of possession is justifiable and equitable compensation where possession is being handed over and in DLF Homes Panchkula Pvt. Ltd., vs D S Dhanda (2020) 16 SCC 318, decided on 10.05.2019 which held that compensation under multiple heads is not justified for a singular act constituting deficiency in service under the Act, the impugned order cannot be sustained in entirety and warrants interference.

15.   In view of the above, directions of the State Commission as per the impugned order to pay ‘Rs.2,00,000/- as cost for mental agony and harassment to the complainant’, is liable to be set aside. However, in view of the judgment of the Hon’ble Supreme Court in the case of Santhosh Narasimha Murthy and Ors., vs M/s Mantri Castles Private Limited and Anr., in Civil Appeal no. 8418 of 2022 dated 25.07.2023 the compensation awarded @ Rs.5/-  sq ft of the super area per month is upheld.

16.    In view of the fact that the respondent has already handed over possession of the flat on 27.04.2024 to the appellant, the respondent shall pay interest @ 6% per annum from 17.05.2022 (the date of offer of possession) till 27.04.2024 (the date of handing over the possession) on the amount deposited with the respondent within a period of eight weeks from the date of pronouncement of this order, failing which the applicable rate of interest will 9% per annum.

17.    The respondent shall also pay the appellant litigation expenses of Rs.50,000/- .

18.    All other directions of the State Commission are set aside.

19.    Pending IAs, if any, stand disposed of with this order.