1.      Heard Ms. Nina R. Nariman, Advocate, for the complainants and Ms. Namrata Mohapatra, Advocate, for the opposite party.

2.      Omar Balsara and Mrs. Zohra Patel Balsara have filed above complaint for directing the opposite party (i) to handover possession of Flat No.4173, in the complex “Prestige Park View” at Pattandur Agrahara, Whitefield, Bengaluru to them, (ii) to pay delayed compensation in the shape of interest @8% per annum on their deposit, from 01.07.2015 till the date of filing of the complainant and thereafter @18% per annum till the date of actual payment, (iii) to bear the cost of registration of conveyance deed and other requisite formalities, (iv) to pay Rs.2/- lacs, as compensation for mental agony and harassment, (v) to pay Rs.one lac, as cost of litigation and (iii) any other relief, which is deemed fit and proper in the facts and circumstances of case.

          In compliance of the order dated 06.09.2019, passed in this complaint, possession was handed over to the complainants on 08.01.2020/12.02.2020.

3.      The notice of the complaint, issued by this Commission, was served upon the opposite party on 24.01.2018. The opposite party put in appearance on 13.04.2018 in the complaint. The opposite party took two weeks’ time for filing written reply in the complaint on 11.05.2018. But written reply was filed on 10.12.2018, along with IA/22843/2018, for condonation of delay. IA/22843/2018 was listed on 27.03.2019. On that day, right of the opposite party to file written reply was closed but inadvertently no order was passed in IA/22843/2018. When the case listed on 02.12.2020, the Bench clarified that IA/22843/2018 stand rejected. The opposite party has filed IA/7916/2021, for recalling the order dated 02.12.2020. As written reply in the complaint was filed after expiry of 45 days from the service of notice as such delay in filing written reply cannot be condoned in view of Constitutional Bench judgment of Supreme Court in New India Assurance Company Ltd. Vs. Hilli Multi-Purpose Cold Storage (P) Ltd., (2020) 5 SCC 757. IA/7916/2021 is rejected.

4.      The complainants stated that M/s. Prestige Estates Project Limited (opposite party) (hereinafter referred to as the builder) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of residential and commercial building and selling its unit to the prospective buyers. The builder launched a project of group housing in the name of “Prestige Park View” at Pattandur Agrahara, Whitefield, Bengaluru, in the year 2012 and made its wide publicity and that possession would be delivered till December, 2014. Allured with attractive representations of the builder, the complainants booked a 3BR flat and deposited booking amount and were allotted Apartment No.4174 (area 2023 sq.ft.), proportionate land cost of Rs.1972425/- and construction cost of Rs.6905095/- (total Rs.8877520/-). Sale Agreement and Construction Agreement were executed between the parties on 29.05.2012. As per demand, the complainants deposited Rs.8682828/- up to 02.08.2014. Balance sale price and additional amount of approximately Rs.1323001/- had to be given at the time of offer of possession. As per Clause-5 (a) of the construction agreement, possession had to be given on or before 31.12.2014. Giving status report, the builder circulated news that they would be able to deliver possession from August, 2015 till December, 2015. However, on 21.12.2015, the builder gave an email, regretting for non-delivery of possession. The builder issued an email dated 02.08.2016, for clearance of dues and completion of documentation for delivery of possession. Thereafter, another email dated 05.08.2016 was sent, informing that the company had taken blanket decision for not providing delayed compensation. The mother of the complainants inspected the flat on 06.08.2016 and found that the construction was not complete in all respect as per specification. The complainants through email dated 13.08.2016 pointed out 22 deficiencies in construction. The builder wrote an email dated 06.09.2016 that the construction was completed. The complainants through legal notice dated 27.09.2016, asked for delayed compensation. The complainants through legal notice dated 01.12.2016, called the builder that they would take possession, reserving their right to claim delayed compensation. As per demand, the complainants paid Rs.479150/- on 13.12.2016 and Rs.843851/- on 14.12.2016. The builder through reply notice dated 05.01.2017, asked to withdraw demand of delayed compensation and to take possession. The complainants through, notice dated 17.01.2017, asked the builder to expedite documentation. The builder did not give any reply for a long time. Vide email dated 25.07.2017 and 21.08.2017 the builder again put a condition to withdraw demand of delayed compensation before taking possession. Then this complaint was filed on 18.12.2017, claiming deficiency in service.

5.      The builder filed their written reply on 10.11.2018, along with delay condonation application. As stated above his right to file written reply has been closed on 27.03.2019. The complainants filed various documentary evidence and Affidavit of Evidence of Omar Balsara. Both the parties filed their short synopsis.

6.      We have considered the arguments of the counsel for the parties and examined the record. In Annexure-II to the Construction Agreement cost of construction is fixed to Rs.6905095/-. In Annexure-I Sale Agreement dated 29.05.2012, cost of land was shown as Rs.1972425/-. Total cost was Rs.8877520/-. From the statement of the account as maintained by the builder, it is proved that the complainants had paid Rs.8682828/- up to 02.08.2014. Balance sale price and additional amount of approximately Rs.1323001/- had to be given at the time of offer of possession.  As per demand, the complainants paid Rs.479150/- on 13.12.2016 and Rs.843851/- on 14.12.2016. As such, it is proved that the complainants made full payment timely as per agreement.

7.      As per Clause-5 (a) of the Construction Agreement, possession had to be given on or before 31.12.2014. Six months grace period has also been provided. Under clause-5 (c) of the Construction Agreement, the builder has agreed to pay interest @8% per annum for delay in delivery of possession. The builder issued an email dated 02.08.2016, for clearance of dues and completion of documentation for delivery of possession. Thereafter, another email dated 05.08.2016 was sent, informing that the company had taken blanket decision for not providing delayed compensation. The complainants through legal notice dated 01.12.2016, called the builder that they would take possession, reserving their right to claim delayed compensation. As per demand, the complainants paid Rs.479150/- on 13.12.2016 and Rs.843851/- on 14.12.2016. The builder through reply notice dated 05.01.2017,asked to withdraw demand of delayed compensation and to take possession.The complainants through legal notice dated 01.12.2016, called the builder that they would take possession, reserving their right to claim delayed compensation. The builder through reply notice dated 05.01.2017, asked to withdraw demand of delayed compensation and to take possession. It is proved that offer of possession without providing delayed compensation vide email dated 02.08.2016 was illegal. The builder did not agree to give possession without withdrawing demand of delayed compensation. As such the builder is responsible for delay in delivery of possession, which was done on 08.01.2020. The complainants are entitled to delayed compensation in the shape of interest @8% per annum on their deposit from July 2015 to December, 2019 according to the construction agreement. 

O R D E R

In view of aforesaid discussions the complaint is partly allowed. The opposite party is directed to pay delayed compensation in the shape of interest @8% per annum on the deposits of the complainants from July 2015 to December, 2019 and execute final deed of conveyance in favour of the complainants, if not already executed, within a period of two months from the date of this judgment.