1. Heard Mr. Vinay Gupta, Advocate, for the complainant and Mr. Himanshu Gupta, Advocate, for the opposite party. 2. At the time of arguments on 06.12.2023, the counsel for M/s. Sethi Buildwell Private Limited (the OP) informed that vide Diary No.42854, he had filed an application, for directing the complainant to supply lease agreements executed by the flat owners of the flats in allotted to them, on whose behalf the complaint has been filed and also to disclose their other properties owned or rented in Delhi NCR and payment receipts for the maintenance charges, issued by Apartment Owner’s Association, raising the issue that the flat buyers, on whose behalf this complaint has been filed, are not the consumers. The counsel for the complainant informed that out of remaining 10 flat buyers on whose behalf the complaint has been filed, 4 are residing in their flat, 3 flat owners have let out their flats as they are posted out of city and 3 flat owners have let out their flat or part of it, for meeting out their medical expenses as after retirement from service, their source of income are limited. We found that this application was filed for fishing and roving inquiry only with an intension to delay the hearing as such we have heard the arguments of the counsel for the parties on merit and reserved the case for judgment on 06.12.2023. On the request of the counsel for the OP, ten days time was allowed to him to file his summary of arguments along with citations. IA filed vide Diary No.42854 is now rejected. 3. The OP filed another application, on 18.12.2023 vide Diary No.44810, for listing the complaint for further hearing along with written arguments, filed vide Diary No.44811. During pendency of the complaint, the OP issued final demand letters to the members of the complainant in January-February, 2016, offering possession. As the amount was not deposited within time, the OP issued cancellation letters in March, 2016. The flat buyers deposited bank drafts of the demanded amount through IA/3690/2016 (filed on 13.04.2016) and prayed that the OP be directed to accept this amount without prejudice to their right to agitate their other grievance raised in the complaint. This Commission, vide order dated 27.05.2016, directed the OP to accept the demanded amount and handover possession of the flat to the members of the complainant. Then the OP accepted demand drafts on 29.05.2016 and delivered possession on 10.07.2016 and executed sub-lease deeds, thereafter. 4. The disputes in the complaint remain to be decided in respect of delay compensation claimed by the flat buyers and holding charges claimed by the opposite party. Hearing of the complaint was adjourned since 23.02.2017, in order to enable the parties to settle their dispute. On 11.09.20117, this Commission recorded that talks of settlement could not succeed and granted time to the parties to file their evidence. The complainant filed its evidence on 13.12.2017 and the OP filed its evidence on 23.01.2018. The complainant filed written synopsis on 23.02.2018 and the OP filed written arguments on 08.03.2018. Thereafter, the case was adjourned on 20.04.2018, 26.08.2019, 06.09.2019. After pandemic period, when the case was listed on 03.06.2022, Mr. Rushil Anand, Advocate took adjournment, on the ground that he had been engaged by the OP and he had to file vakalatnama. On 11.04.2023, Mr. Shreyan Das, Advocate and Mr. Ritik Arora, Advocate appeared for the OP and took adjournment. On 05.07.2023, Mr. Rohit Kumar, Advocate appeared for the OP and took adjournment by way of last opportunity. While adjourning the case, the Commission directed the complainant to file an affidavit, clearly stating the names of remaining flat owners, which was filed on 25.07.2023. On 11.10.2023, the counsel for the OP took adjournment. When the case was listed on 27.10.2023, the counsel for the OP took adjournment on the ground that the OP would settle the dispute with remaining 10 flat Buyers. When the case was listed on 10.11.2023, the counsel for the OP raised an objection that complete copy of the affidavit filed on 25.07.2023 was not served to him. Then complete copy of the affidavit was supplied in court. When the case was listed next on 30.11.2023, the counsel for the OP circulated an application for adjournment. Ms. Ekta, Advocate appeared as a proxy counsel for the OP and informed, the counsel for the OP had not received complete paper-book of the complaint from previous counsel and had applied for issue of certified copy, which had not been received. On which, the counsel for the complainant undertook to supply complete copy of the paper-book within 24 hours, which was supplied and the arguments was heard on 06.12.2023. After reserving for judgment, the OP filed written arguments and an application, vide Diary No.44810 on 18.12.2023, for listing the complaint for further hearing. This application is malafide and amounts to abuse of the process of the court and is rejected. The office shall allot number to these applications. 5. Max Royal Flat Owner’s Association, a registered society, has filed above complaint for directing the opposite party to (i) deliver possession of the flats, complete in all respect with all facilities, as per the buyer’s agreement; (ii) pay delay compensation in the form of interest @14% per annum on the deposits of the buyers, from 31.12.2012 till the date handing over possession in terms of the buyer’s agreement; (iii) pay Rs.175000/- as litigation costs; and (iv) any other relief which is deemed fit and proper in the facts and circumstances of the case. Initially this complainant was filed on behalf of 23 flat buyers. The OP has settled the dispute with 13 flat buyers. Now 10 flat buyers remain in the complaint and dispute is in respect of delay compensation as claimed by the flat buyers and holding charges claimed by the OP. 6. The complainant stated that M/s. Sethi Buildwell Private Limited (the OP) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. The OP launched a group housing project in the name of “Sethi Group-Max Royal”, at leasehold Plot No.GH-2-B, Sector-76, Noida, Gautam Budh Nagar in the year, 2010 and made wide publicity of its amenities and facilities. Believing upon the representations of the OP, 23 buyers, on whose behalf the complaint was filed, booked one flat for each of them and deposited booking in the year 2010. The OP issued Flat Allotment Letters, allotting one unit to each of them in the said project shortly after booking, in the year 2010. Annexure-III of the Flat Allotment Letter provides “flexi payment plan” in which, entire consideration was payable in 10 instalments. 9th instalment was payable ‘on casting of 13th Floor slab” and 10th instalment was payable ‘on offer of possession’. Total price of 2BHK-II was Rs.2773500/-, 3BHK-I was Rs.3083100/- 3 BHK-III was Rs.4192500/-. The flat buyers diligently followed payment plan and deposited instalments on time. The OP realized 9th instalment, payable ‘on casting of 13th Floor slab” in July, 2012. Under clause-17 of the Flat Allotment Letter, the OP assured for delivery of possession by 31.12.2012, with grace period of 8 months. After, 31.08.2013, the OP agreed to pay delay compensation in the form of interest @14% per annum on the deposit of the flay buyers for the delayed period. However, the construction was unreasonably delayed. When the flat buyers used to inquire about the possession, then the OP used to shift date of possession time to time and now he gave tentative date of possession from July, 2016 to March, 2017, although the OP had realized about 93% of consideration in July, 2012. Although the possession was unreasonably delayed but the OP is not giving any delay compensation. The flat buyers are living in rented accommodation and paying monthly rents. Then, this complaint was filed on 23.11.2015 alleging deficiency in service on the part of the OP. 7. The OP filed its written reply on 20.05.2016, in which, booking of the flats, allotment of the flats and deposits made by the members of the complainant, have not been disputed. The OP stated that New Okhla Industrial Development Authority allotted the project land to the OP vide lease deed dated 10.06.2010, for development of the group housing project. Thereafter, the OP applied for sanction of layout plan. However, development authority took unreasonable time in sanction of building plan. After sanction of the building plan, the OP started the construction with full swing. But due to agitations of the farmer’s against acquisition of the land, the construction was stopped time to time. In the meantime, then the District Magistrate imposed ban on mining operation of the sand, which created strike of the transporters as a result there was shortage of building materials. National Green Tribunal (NGT) stopped extracting ground water for construction purpose in this district, due to which, the OP had to arrange water from alternate source which required transportation of the water through tanker, due to which speed of the construction had become slow. NGT, vide order dated 14.08.2013, stopped unauthorised constructions within a radius of 10 KM from Okhla Bird Sanctuary. NGT, by order dated 28.10.2013, directed that building constructions within radius of 10 KM from Okhla Bird Sanctuary would be subject to clearance of National Board of Wildlife and till the clearance of the Board is not obtained, the authority concerned would not issue completion certificate. NGT by a subsequent order dated 03.04.2014, stopped all the construction within radius of 10 KM from Okhla Bird Sanctuary. Although the builders challenged this order by moving recall application and also approaching Supreme Court but could not succeed. This order continued till notification of Echo-sensitive Zone by the Government dated 19.08.2015. The OP completed the construction of the buildings and applied for issue of “completion certificate” on 19.02.2015. Noida Authority, vide letter dated 29.06.2015, informed about the restriction regarding issue of ‘completion certificate’. Various allottees had taken loan and were paying EMI for the loan and rent for their tenanted house. On their request, the OP offered provisional possession to all the allottees in January, 2015 and 40 allottees took possession. The members of the complainant however declined to take possession till issue of “completion certificate”. The authorities did not process the application for issue of “completion certificate” till 19.08.2015. “Completion certificate” was issued on 22.12.2015. Thereafter, the OP started issuing offer of possession letter from January, 2016 to the allottees including the members of complainant. Out of total 726 allottees, 600 allottees have taken possession. Delay in offer of possession was caused for the reasons beyond the control of the OP and liable to be condoned. The OP raised preliminary issues that (i) formation of “Max Royal Flat Owner’s Association” is in contravention of the provisions of U.P. Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010 and the complaint filed by it is not maintainable (ii) total value of one flat is below Rs.one crore and the complaint does not fall within pecuniary jurisdiction of this Commission; (iii) the members of the complainant are not consumers rather investors; (iv) the office bearers of the complainant used to create seen at the site and office of the OP and are damaging image and goodwill of the OP and are liable to pay compensation of Rs.15/- lacs; and (v) joint complaint is not maintainable. The complaint is liable to be dismissed. 8. The complainant filed Rejoinder Reply, Affidavit of Evidence of R.G. Badadhe and documentary evidence. The opposite party filed Affidavit of Evidence of G.M. Sethi and documentary evidence. Both the parties have filed written synopsis. 9. We have considered the arguments of the parties and examined the record. Preliminary issues raised by the OP have no merit. Under Section 12(1)(b) the Consumer Protection Act, 1986 (for short the Act) “any recognised consumer association” can file a complaint in respect of the grievances of a consumer. The complainant association has been registered under Societies Registration Act, 1860, having Registration No.S/ND/620/2015 dated 31.03.2015. The arguments of the OP that on the date of registration, its members were not the owners of the flat as such its nomenclature as “Max Royal Flats Owners Association” is contrary to the provisions of U.P. Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010. This issue is not relevant for this Commission. As registration of the complaint association has not been cancelled under the provisions of Societies Registration Act, 1860, it is a ‘recognised consumer association’ and can maintain complaint for the grievances of any consumer even if it is not a residents welfare association. Section 21 of the Act provides that where value of the goods/service together with compensation claimed exceeds Rs.one crore, the complaint can be filed before this Commission. Full Bench of this Commission in Ambrish Kumar Shukla Vs. Ferrous Infrastructure Pvt. Ltd., I (2017) CPJ 1, held that for the purposes of pecuniary jurisdiction, value of services of all the complainants have to be added in the case of joint complaint. The value of the services together with compensation claimed in the complaint exceeds Rs.one crore. The OP has not adduced any evidence to prove that the members of the complainant are doing business of purchase and sale of the flat as such they cannot be held as the investors and booked the flat for any commercial purpose. After taking possession of residential flat, if some of them have let out due to their posting outside the city or to meet out their medical expenses as due to their retirement from service, they have no source of income then it cannot be termed that they are doing commerce. 10. As stated above, during pendency of the complaint, the OP issued final demand letters to the members of the complainant in January-February, 2016, offering possession. As the amount was not deposited within time, the OP issued cancellation letters in March, 2016. The flat buyers deposited bank drafts of the demanded amount through IA/3690/2016 (filed on 13.04.2016) and prayed that the OP be directed to accept this amount without prejudice to their right to agitate their other grievance raised in the complaint. This Commission, vide order dated 27.05.2016, directed the OP to accept the demanded amount and handover possession of the flat to the members of the complainant. Then the OP accepted demand drafts on 29.05.2016 and delivered possession on 10.07.2016 and executed sub-lease deeds, thereafter. The disputes in the complaint in respect of delay compensation claimed by the flat buyers and holding charges claimed by the OP remain to be decided. 11. Flat Allotment Letters, allotting one unit to each of the members of the complainant were issued in the year 2010. Annexure-III of the Flat Allotment Letter provides “flexi payment plan” in which, entire consideration was payable in 10 instalments. 9th instalment was payable ‘on casting of 13th Floor slab” and 10th instalment was payable ‘on offer of possession’. The flat buyers followed payment plan and deposited instalments on time as per demand. The OP realized 9th instalment, payable ‘on casting of 13th Floor slab” in July, 2012. Under clause-17 of the allotment letter, the OP assured for possession by 31.12.2012, with grace period of 8 months. As such due date of possession was 31.08.2013. The OP offered possession from January, 2016 to the members of complainant as such there is delay in offer of possession. 12. The OP took plea of force majeure for delay in offer of possession and claimed for condonation of delay under clause 17 of the allotment letter. The OP stated that development authority took unreasonable time in sanction of building plan. Due to agitations of the farmer’s against acquisition of the land, the construction was stopped time to time. In the meantime, then the District Magistrate imposed ban on mining operation of the sand, which created strike of the transporters as a result there was shortage of building materials. National Green Tribunal (NGT) stopped extracting ground water for construction purpose in this district, due to which, the OP had to arrange water from alternate source which required transportation of the water through tanker, due to which speed of the construction had become slow. NGT, vide order dated 14.08.2013, stopped unauthorised constructions within a radius of 10 KM from Okhla Bird Sanctuary. NGT, by order dated 28.10.2013, directed that building constructions within radius of 10 KM from Okhla Bird Sanctuary would be subject to clearance of National Board of Wildlife and till the clearance of the Board is not obtained, the authority concerned would not issue completion certificate. NGT by a subsequent order dated 03.04.2014, stopped all the construction within radius of 10 KM from Okhla Bird Sanctuary. Although the builders challenged these orders by moving recall application and also approaching Supreme Court but could not succeed. This order continued till notification of Echo-sensitive Zone by the Government on 19.08.2015. Noida Authority, vide letter dated 29.06.2015, informed about the restriction regarding issue of ‘completion certificate’. Various allottees had taken loan and were paying EMI for the loan and rent for their tenanted house. On their request, the OP offered provisional possession to all the allottees in January, 2015 and 40 allottees took possession. The members of the complainant declined to take possession till issue of “completion certificate”. The OP completed the construction and applied for issue of “completion certificate” on 19.02.2015, which was issued on 22.12.2015. The authorities did not process the application for issue of “occupation certificate”. 13. The plea taken by the OP is not liable to be accepted. Statement of account filed by the complainant (pg-53) shows that the OP has realized instalments on 04.02.2011, 16.10.2011, 09.01.2012, 15.02.2012, 15.03.2012, 30.04.2012 and 05.07.2012. Only last instalment on offer of possession remained. National Green Tribunal, vide order dated 14.08.2013, stopped unauthorised constructions within a radius of 10 KM from Okhla Bird Sanctuary. Noida authority, in its reply dated 06.09.2016 (pg-55 of Rejoinder), informed, the construction of the OP was never stopped. Although, the OP applied for issue of “completion certificate” on 19.02.2015 but letter of Noida authority dated 29.06.2015 (pg-69 Rejoinder) shows that it was incomplete in various respect therefore issuance of ‘completion certificate’ was delayed. As such, delay is not due to any force majeure and is not liable to be condoned. 14. As per allotment letter due date of possession was 31.08.2013. Possession was offered in January, 2016 onward. As such the OP is liable to pay delay compensation from September, 2013 till the date of offer of possession. The OP claims holding charges under clause-18 of the allotment letter, which is @Rs5/- per sq.ft per month. Neither in final demand letter nor in reminder, the OP has given any time for deposit of the demanded amount. As such, it is reasonable that one month from service of demand letter, the allottee is liable to deposit the demanded amount. The demanded amounts were tendered on 13.04.2016 through IA/3690/2016. Clause-18 of the allotment letter provides that possession will not be handed over unless execution of sub-lease deed. If an allottee fails to take possession, when offered by the company, the allotee shall be liable to pay holding charges. Possession was handed over before execution of sub-lease deed in this case. As such from the date of possession, the allottee is liable to pay holding charges. 15. Although in clause-17 of the allotment letters, delay compensation was payable in the form of interest @14%. per annum on the deposit of the buyer but we find that it is unreasonable. Supreme Court in Wg.Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512 and DLF Home Developers Pvt. Ltd. Vs. Capital Greens Flat Buyers Association, (2021) 5 SCC 537, held that 6% interest on the deposit of home buyers for the delayed period is appropriate delayed compensation. ORDER In view of aforesaid discussions, the complaint is partly allowed. The opposite party is directed to pay delay compensation to the remaining members of the complainant in the form of interest @6% per annum on their deposit from September, 2013 till offer of possession. The OP will charge ‘holding charges’ from the date of handing over possession. Delay compensation will be paid within two months from the date of judgment to the remaining members of the complainant, after adjusting holding charges. This judgment will not applicable to those home buyers, who have settled their dispute and have taken possession |
