PER MR SUBHASH CHANDRA, MEMBER

                This complaint has been filed alleging deficiency in service and unfair trade practice by the opposite party with regard to an apartment booked by the complainant in the project “Paras Dews”, Sector 106, Dwarka Expressway, Daultabad, Gurgaon, Haryana. The complainant has sought physical possession along with compensation for the delay in handing over possession along with other compensation and costs.

2.     The opposite party had allotted flat no. T-C/0405, 4^th Floor, Tower – C, ad-measuring 1760 sq ft to the complainant for a total sale consideration of Rs.1,14,47,200/- on 29.12.2012. An Apartment Buyers Agreement (in short ‘ABA’) was executed on 26.03.2013 by when Rs.19,36,000/- had been deposited by the complainant with the Opposite Party. Possession was promised within a period of 42 months with grace period of six months from the date of the ABA by March 2017. The complainant avers that he had paid Rs.1,09,53,363/- to the opposite party by 26^th May 2017. The Opposite Party intimated the complainant about revision in the super area and sought an additional amount of Rs.13,83,928/-. The complainant is before us with the prayer to:

1. Direct the opposite party to pay delayed possession compensation equal to interest @ 18% per annum on the amount deposited by the complainant with the opposite party with effect from April 2017, i.e., date when possession was promised till the date the physical possession of the apartment, complete in all respects and in conformity with the Builder Buyer Agreement and for the consideration mentioned therein, with all additional facilities and as per quality standards promised along with all necessary documents is handed over to the complainant;

2. Direct the opposite party to pay compensation of Rs.5,00,000/- to the complainant for mental agony, harassment, discomfort and undue hardships caused to the complainant as a result of the above acts and omissions on the part of the opposite party (s);

3. Direct the opposite party to pay a sum of Rs.2,00,000/- to the complainant towards litigation costs;

4. That any other and further relief in favour of the complainant as the Hon’ble Commission may deem fit and proper in the fact and circumstances of the case.

3.     The opposite party has not put up any defence in the matter.

4.     We have heard the learned counsel for the complainant and perused the records carefully. Learned counsel for the complainant submitted that the matter is squarely covered by the orders of this Commission Ravinder Kumar and Anr., vs Emaar MGF Land Ltd., in CC No.3315 of 2017 decided on 14.02.2022 which has been confirmed by the Hon’ble Supreme Court in Civil Appeal no. 2791 of 2022, insofar as the complaint relates to the payment of compensation for delay in handing over possession.  It has also been submitted that the matter is also covered by the orders of this Commission Capital Greens Flat Buyers Association vs DLF Universal Limited and Anr., in CC no. 351 of 2015 decided on 03.01.2020 which was also confirmed by the Hon’ble Supreme Court in Civil Appeal nos. 3864-89 of 2020, insofar as it relates to handing over possession subject to levying of various charges but without imposing holding charges once the possession has been handed over.

5.     We have perused the records carefully and gone through the judgments in the cases cited by the learned counsel for the complainant. Admittedly, the unit was to be delivered within 42 months from 26.03.2013, i.e. by 25.09.2016. Payments were continued to be demanded and received by the opposite party between 2013-2017 amounting to Rs.1,09,53,363/-.  An offer of possession was finally made on 24.01.2019 along with a demand for Rs.13,83,928/- which was also paid. Despite the delay of 27 months the opposite party failed to adjust the compensation towards delay in possession towards the dues, and has collected Rs.1,23,37,291/-. The prayer of the complainant is for possession with compensation for delay in handing over possession, compensation and litigation costs.

6.     Complainant submitted that possession be granted by has sought exemption from holding charges, relying upon this Commission’s orders in Capital Greens Flat Buyer Association and Ors., vs DLF Universal Ltd., and Anr., in CC no. 351 of 2015 and related matters dated 03.01.2020, confirmed by the Hon’ble Supreme Court in Appeal that:

“as far as maintenance charges are concerned, the same should be paid by the allottee from the date the possession is offered to him unless he was prevented from taking possession solely on account of the OP insisting upon execution of the Indemnity-cum-Undertaking in the format prescribed by it for the purpose. If maintenance charges for a particular period have been waived by the developer, the allottee shall also be entitled to such a waiver. As far as holding charges are concerned, the developer having received the sale consideration has nothing to lose by holding possession of the allotted flat except that it would be required to maintain the apartment. Therefore, the holding charges will not be payable to the developer. Even in a case where the possession has been delayed on account of the allottee having not paid the entire sale consideration, the developer shall not be entitled to any holding charges though it would be entitled to interest for the period the payment is delayed.”

7.     We find merit in the contentions of the complainant above. Having deposited in excess of the sale consideration of the unit with the opposite party including for the excess of the super area, and in view of the indisputable fact that the opposite party has been deficient in service having delayed possession for over two years, for which complainant is entitled to compensation in terms of judgment in the case of Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra (Civil Appeal No. 3182 of 2019), Pioneer Urban Land & Infrastructure Ltd. V. Govindan Raghavan and Wg. Cdr. Arifur Rahman Khan v DLF Southern Homes Pvt Ltd (Civil Appeal No. 6239 of 2019), we allow the complaint with the following directions:

1. Opposite party is directed to hand over possession of the unit allotted to the complainant within a period of three months along with compensation for delay @ 9% per annum simple interest from the committed date of possession i.e., 26.03.2017 till the date of offer of possession, i.e., 24.01.2019;
2. Opposite party shall not impose any holding charges in respect of the unit;
3. Order be complied with within eight weeks failing which penal interest of 12% per annum simple interest shall be paid.

8.             The complaint is disposed off accordingly.