1.       The complainant has come up praying for relief (a), (b), (d) and other consequential reliefs.  The complainant’s counsel has however prayed that he is not pressing prayer clause (c) and (e) in respect of the allegation of deficiency in handing over of a flat that was booked and purchased by the complainant from the opposite party.  The dispute is regarding the delivery of possession of residential flat T18-201 in La Tropicana, Khyber Pass, Delhi.

2.       It is this deficiency in service for which the reliefs prayed for as referred to above have been pressed into service and the matter had been taken up on previous occasions when the learned counsel for the opposite party had sought time to tender payments.  On 01.05.2024 it was intimated that three post-dated cheques had been tendered pursuant to the order dated 07.11.2023 but the said cheques bounced.  Consequently, no settlement could take place nor any payments were made and accordingly the matter was posted for 25.06.2024 for being heard finally.  An adjournment was sought on 25.06.2024 by the learned counsel for the opposite party and this is how the matter was placed on 26.06.2024.

3.       Mr. Prabhakar Tiwari had sought time to bring on record an affidavit regarding delivery of possession which he said was pursuant to the understanding with the association of which the complainant is a member.  Nonetheless, this request was declined as enough time had already been spent in getting the matter negotiated through settlement which had ultimately failed.

4.       The facts as on record of the evidence filed by the complainant as well as along with the written version of the opposite party demonstrates that the booking of the premises and the issuance of provisional allotment letter for the said flat was made through Emperor International Ltd. stated to be a broker of the opposite party.  The provisional allotment of the flat was made on 18.02.2005 in favour of the said broker in respect of the same premises which is a 5 bedroom flat with a payment plan which was attached with the said letter that is on record.

5.       So far as the complainant is concerned, a change of right to purchase was approved and consequently the flat was purchased by the complainant.  The document to support this has been filed by the complainant with their evidence as annexure C-7 dated 01.03.2006 which document remains undisputed.  Consequently, the complainant became an allottee and thereafter the complainant has brought on record the documents to indicate that all payments were tendered by them and the receipts issued were also endorsed in their favour.  It is then submitted that the fact that the complainant was admitted as an allottee stands confirmed with all the payments that have been received by the opposite party. 

6.       A flat buyer agreement had been entered into between the parties which is dated 04.11.2009 and is on record.  This agreement was entered into after the change of the ownership had taken place as indicated above and it also records that the complainant at the time of the said agreement had already paid a sum of Rs.59,83,312.50 ps.  This is recorded in clause 3(a) of the said agreement.

7.       The payments were to be made as per the payment plan and the flat was to be delivered within a period of 36 months plus a grace period of six months.  This is contained in clause 11 of the agreement.  The period was to start with the date of the commencement of the constructions, and in order to substantiate that the constructions commenced in April 2010, learned counsel for the complainant has invited the attention of the Bench to the letter dated 18.03.2010 addressed to the complainant by the opposite party intimating that the foundation shall commence on 02.04.2010.  This fact does not seem to be disputed by the opposite party. 

8.       Learned counsel has then invited the attention of the Bench to the statement of accounts as furnished by the opposite party in their written version to establish that they have made the payments as was demanded by the opposite party and the said statement of accounts has been filed along with IA No. 225 of 2023.  According to the same, a sum of Rs.1,97,67,131.05 ps. is stated to have been received by the opposite party.

9.       It may be noted that IA No. 225 of 2023 was filed on 06.01.2023 which has not been controverted by the opposite party.

10.     The said application also brings on record the fact that when the complainant had to make certain payments, which were delayed, the complainant was charged interest @ 24%.  This fact has been stated in clause (C)(ii) of the said application and it has been substantiated by pointing out an entry made in the statement of accounts filed along with the said application where a sum of Rs.1,58,046/- was paid on 01.03.2006.  With the aid of this entry, it is urged that the rate of interest charged by the opposite party for delayed payments was 24%.

11.     Learned counsel for the complainant then invited the attention of the Bench to orders passed in respect of the same project in similar matters in Consumer Complaint No. 1988 of 2016 and other connected matters, decided on 07.10.2022.  It is submitted that the ratio of the aforesaid orders also squarely applies on the facts of the present case and the execution of the said matters has already commenced before this Commission.  It is further submitted that against the aforesaid orders, the opposite party had approached the Apex Court from where they withdrew their Special Leave Petitions.

12.     It has been finally contended that the delay in delivery of possession stands admitted by the opposite party as in their statement of accounts they themselves have indicated the extension of a rebate on account of delay in possession, compensating the complainant in terms of the agreement.  Learned counsel has pointed out to annexure A-2 appended along with IA No. 225 of 2023 where the recital contained in clause (c)(vii) in bracket recites the period of delay from January 2013 to December 2022 i.e. 120 months.  Learned counsel submits that with this admission in their own revised accounts, the period of delay does not require any further explanation except for the fact that possession in accordance with the agreement has not been delivered till date.

13.     Mr. Tiwari, learned counsel for the opposite party, advancing his submissions urges that the complainant cannot claim any delay compensation beyond the terms of the contract and therefore the relief prayed for is unfounded.  He further submits that the rate of interest which is sought to be claimed is highly excessive and not in accordance with the rate of interest as granted by the Apex Court in the cases of delay compensation.  He therefore submits that the reliefs prayed for do not deserve consideration.  Mr. Tiwari was however trying to persuade the Bench to grant further adjournment in order to enable the opposite party to explore the possibility of making acceptable offers but this Bench is not inclined to prolong the agony of the complainant by keeping this matter pending.  As already noted above, the attempts made for payments to be made have failed on several occasions.

14.     Having heard learned counsel for the parties, there is no dispute that delay has already been caused.  Mr. Tiwari however submits that possession was offered to the complainant and it is for this reason that the calculation shown in the ledger accounts for delay compensation indicates the period of delay from January 2013 to December 2022.  The submission seems to be that no further period of delay should be added.  To this, the complainant has maintained that no possession has been delivered till today and even otherwise, in the absence of any occupancy certificate, lawful possession could not be delivered by the opposite party.  There were several deficiencies according to the complainant which impeded the taking of physical possession of the premises and hence the period of delay as already admitted by the opposite party is sufficient to grant delay compensation. 

15.     The question as to whether physical possession has been given or not need not be gone into, inasmuch as the fact that there was a delay, is clearly indicated from the ledger accounts as prepared by the opposite party where rebate was offered to the complainant on account of this delay which had occurred from January 2013 to December 2022.  The said period is categorically stated in the document of the ledger account of the opposite party which has been filed along with IA No. 225 of 2023.  This document has neither been disputed nor denied by the opposite party.  Consequently, compensation for the delay has to be paid.  Since the complainant has also disputed the handing over of physical possession, the complainant is entitled for being compensated for this deficiency.

16.     There is nothing on record to indicate that actual physical possession of the premises has been handed over and delivered to the complainant.

17.     In the light of the aforesaid facts, the complaint deserves to be allowed with a direction for handing over of physical possession of the flat together with delay compensation for the period as reflected in the ledger account of the opposite party and also for such delay compensation till the date of actual handing over of possession of the premises.

18.     Accordingly, this complaint is allowed as there is a clear deficiency on the part of the opposite party in handing over possession of the flat in question within the promised period and there is a huge delay from January 2013 onwards.

19.     The question now is of calculating the delay compensation on the basis of the rate of interest that has been made the criteria for awarding such compensation. 

20.     The complainant claims 24% interest on the amount paid by it on the ground that the opposite party has charged the same rate of interest on delayed payment of instalments.  In my opinion, the argument of mutual application of the same rate of interest has to be considered in the light of various judgments on delay compensation that have been rendered by the Apex Court as well.  The Apex Court has been extending the benefit of interest @ 9% in such cases for calculating delay compensation.  Reference be had to the cases of Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna & Ors (2021) 3 SCC 241 and Experion Development Pvt. Ltd. Vs. Sushma Ashok Shiroor (2022) SCC OnLine SC 416.  Since in the present case one of the instalments as pointed out by the complainant was realized with 24% interest, keeping in view the ratio of the judgments of the Apex Court in the aforesaid cases, it would be justified to award in the special circumstances of this case the interest @ 12% per annum for calculating the delay compensation.   

21.     Accordingly, delay compensation to the tune of 12% interest on the amount already paid by the complainant shall be paid by the opposite party as delay compensation within a period of three months from today.

22.     Consequently, for all the findings and reasons recorded hereinabove, the complaint is allowed with a direction to handover physical possession of the premises to the complainant within a period of three months from today complete in all respects and also to pay the delay compensation in the terms as directed hereinabove.  In the event of default the rate of interest shall stand enhanced to 18% from the date of default till actual payment.