1. Heard Mr. Sanjeev Kr. Sharma, Advocate, for the complainants and Mr. Prabhakar Tiwari, Advocate, for the opposite party. 2. Above complaint has been filed, for directing the opposite party to (i) handover possession of Flat No.B-5-1002 and two car parking space, in the building “Parsvnath Exotica”, complete in all respect as per specifications, forthwith, (ii) pay Rs.3855985/- towards reimbursement of overdue of 2/3rd EMI, since October, 2013 till August, 2016 and pay EMI continuously till payment of 2/3rd EMI, (iii) pay Rs.2169600/- as delayed compensation from May, 2011 till August, 2016 and go on paying till delivery of possession, (iv) refund Rs.4/- lacs, charged for two car parking spaces, (v) pay Rs.50036/- per month, due to increase in interest of EMI from June, 2008 to December, 2008 and further to pay increase interest as and when it is increased on the loan amount till payment of 2/3rd EMI, (vi) pay interest @24% per annum on the deposit of the complainants; or in alternative to pay Rs.63692253/-, with interest @24% per annum from the date of filing the complaint till the date of realization, (vii) pay Rs.25/- lacs, as compensation for mental agony and harassment, (viii) pay the costs of litigation; and (ix) any other relief which is deemed fit in the facts and circumstances of the case. 3. The complainants stated that M/s. Parsvnath Developers Limited (the opposite party) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing projects. The opposite party launched a group housing project in the name of “Parsvnath Exotica”, at village Wazirabad, Sector-53, Gurgaon, in the year 2006 and made wide publicity. Ram Shanker Mahalaha and his wife Mrs. Shiw Kanti Mahalaha booked a 4BR flat on 16.10.2007 and deposited Rs.3165513/-. The opposite party allotted Flat No.B-5-1002 and executed Flat Buyer Agreement dated 15.11.2007 in favour of Ram Shanker Mahalaha and Mrs. Shiw Kanti Mahalaha of Flat No.B-5-1002, admeasuring 3390 sq.ft. at the rate of Rs.6207.5/- per sq.ft., basic price of Rs.21043425/-+ Rs.400000/- for two covered Car Parking spaces, in “Parsvnath Exotica”. The complainant opted for “Down Payment Plan”, under which 15% of sale price was payable at the time of booking, 80% of sale price + PLC + Car Parking Charges were payable within 60 days and remaining 5% of sale price was payable at the time of possession as the opposite party offered to 2/3rd EMI in case payment was made in “Down Payment Plan”. An agreement was executed between the parties on 16.11.2007 in this respect. The complainants applied for loan to ICICI Bank, which was sanctioned and an amount of Rs.16834739/- + Rs.400000/- was directly disbursed to the opposite party on 18.11.2007. The complainants deposited Rs.20391252/- till 18.11.2007. Mrs. Shiw Kanti Mahalaha died on 26.10.2012. In her place, name of Anil Mahalaya was endorsed by the opposite party on 07.12.2013, under her will. As per clause-10(a) of the agreement, the construction of the flat had to be completed within 36 months from the date of agreement with grace period of six months. The period of 42 months expired in May, 2011. But the possession was unreasonably delayed. The opposite party paid EMI till June, 2008 and thereafter stopped payment of EMI. With effect from 01.08.2008, interest on the home loan of the complainants was enhanced from 11% to 11.75% by the ICICI Bank. The complainants gave a notice dated 08.12.2008 to the opposite party to pay EMI, overdue from 01.07.2008 but the opposite party did not respond for payment of EMI. The complainants visited the site on 31.03.2009 but no sign of the construction was found on the spot. The complainants met the representatives of the opposite party but they could not give any satisfactory reply. The opposite party issued a letter dated 29.04.2009, assuring the home buyers that possession would be delivered in phase-wise from October, 2009. The complainants arranged money from their relatives and paid the total dues of ICICI Bank on 21.06.2012. The complainants gave a reminder notice dated 27.08.2014, for delivery of possession and payment of overdue EMI. After a long time, the opposite party issued a letter dated 07.01.2016, stating that overdue EMI would be adjusted in remaining amount at the time of possession. The opposite party has illegally charged extra amount of Rs.4/- lacs towards car parking charges. Under the agreement, the opposite party is liable to pay compensation for delay in possession. The opposite party was charging interest @24% per annum, as such, they were liable to pay interest @24% per annum on the deposit of the complainants for the delayed period. The complainants gave a notice dated 16.06.2016, demanding compensation for delay in possession. In spite of service of notice, the opposite party did not respond. Then the complaint was filed on 26.09.2016, alleging unfair trade practice and deficiency in service. 4. The opposite party filed its written reply on 19.12.2016 and contested the case. The material facts relating to the project, allotment of the flat to the complainants and deposits made by them, have not been disputed. The builder stated that Real Estate sector was facing problems like (i) Lack of adequate sources of finance, (ii) Shortage of labours (iii) Rising of the costs of materials and labour, (iv) Obtaining various approvals from Government departments, (v) Global slowdown of economy since 2008, which seriously affected foreign investment in real estate sector and (vi) Default in payment of instalment by various allottees. The owners of the land obtained licences from Director, Town & Country Planning Haryana, for development of group housing project. Through various development agreements with the owners of the land, M/s. Parsvnath Developers Limited acquired development right. The builder submitted Layout Plan of the project for approval, which was approved on 10.04.2009 then construction was started. Out of 18 multi-storeyed residential towers (excluding EWS towers), 11 towers have been completed and physical possession over more than 450 flats have been given. Remaining 5 towers (B-1, C-4, D-4, D-5 and D-6) were completed and the builders have applied for issue of “Occupation Certificate” and offered fit-out possession to the allottees. Superstructure and plaster work of remaining towers was completed and finishing works are in progress. In order to expedite construction the builder engaged M/s. Parsvnath Hessa Developers Limited through agreement dated 09.12.2009. Due to force majeure reasons the construction could not be completed. Under the agreement, the allottees are entitled for delayed compensation at the time of offer of possession. The builder gave discount of Rs.991575/- to the complainants in lieu of payment under “Down Payment Plan’. The complainants foreclosed the loan in June, 2012. The builder paid EMI up to 30.09.2013 (total amount of Rs.7711970/-) and vide letter dated 07.01.2016 assured the complainants that their overdue EMI would be adjusted at the time of possession. The builder has not committed any unfair trade practice. The complaint has been filed malafide. 5. The complainants filed Rejoinder Reply, Affidavit of Evidence, Affidavit of Admission/Denial of the documentary evidence of Ram Shanker Mahalaha and documentary evidence. The opposite party filed Affidavit of Evidence and Affidavit of Admission/Denial of documents of Madan Dogra and documentary evidence. Both the parties filed their short synopsis. 6. I have considered the arguments of the parties and examined the record. The opposite party allotted Flat No.B-5-1002, to the complainants on 16.10.2007 and executed Flat Buyer Agreement dated 15.11.2007 in their favour of Flat No.B-5-1002, admeasuring 3390 sq.ft. at the rate of Rs.6207.5/- per sq.ft., basic price of Rs.21043425/-+ Rs.400000/- for two covered Car Parking spaces, in “Parsvnath Exotica”. The complainants deposited Rs.20391252/- till 20.11.2007. As per clause-10(a) of this agreement, the construction of the flat has to be completed within 36 months of commencement of construction with grace period of six months, which period expired till December, 2013. The opposite party realized more than Rs.2/- crores till November, 2011, from the complainants but neither construction was completed nor possession was offered on due date. As such there was deficiency in service on the part of the opposite parties. In the written submission, the opposite parties have stated that Supreme Court in Civil Contempt Petition No.642 of 2020, extended the period for completion of the construction by the opposite parties up to 04.01.2021 but due to lockdown in the country, the construction could not be completed till then. Then Supreme Court again extended the period for construction up to July, 2022, which period has also expired. 7. The builder along with Affidavit of Evidence has filed copy of letter dated 22.03.2018, offering fit-out possession to the complainants but in the absence of “Occupancy Certificate” no one can be forced to take possession of group housing project. As such offer of fit-out possession is not a valid offer of possession. Supreme Court in Wg. Cdr Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512 and Civil Appeal No.1232 of 2019 R.V. Prasannakumar Vs. Mantri Castles Pvt. Ltd. (decided on 11.02.2019), held that delayed compensation is payable in the shape of interest @6% per annum on the deposit of home buyer from due date of possession till the offer of possession. 8. So far as the claim of the complainants of 2/3rd EMI on their loan under the agreement dated 17.11.2007, is concerned, the builder in paragraph-2 of written reply has stated that he had paid EMI up to 30.09.2013 (total amount of Rs.7711970/-). This fact has been denied by the complainants but at the same time they claimed overdue EMI from October, 2013. Entire loan was repaid by the complainants till June, 2012. Under the agreement dated 17.11.2007, the builder is liable to pay EMI of the loan. As the builder was paying EMI, the complainants cannot claim interest on this amount, as delayed compensation. The builder would be liable to pay EMI up to June, 2012 and thereafter, delayed compensation in the form of interest @6% per annum on the loan amount also. Supreme Court in Wg. Cdr Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512, upheld demand for car parking space. ORDER In view of the aforesaid discussions, the complaint is partly allowed. The opposite party is directed to handover possession of Flat No.B-5-1002, in the building “Parsvnath Exotica”, complete in all respect as per specifications, to the complainants within a period of two months from the date of this judgment and pay delayed compensation in the form of interest @ 6% per annum, on the deposit of the complainants till the date of offer of possession. So far as loan amount is concerned, the builder will pay EMI up to June, 2012. From July, 2012, it will be treated as the deposit of the complainants and delayed compensation is payable on it. After payment/adjustment of account, the builder shall execute conveyance deed and handover possession to the complainants without any further delay. |
