1. The present Consumer Complaint (CC) has been filed by the Complainant(s) against Opposite Party (OP) as detailed above, inter alia praying for directions to the OP to:-

1. Deliver legal possession of the Unit to the Complainants by executing a registered conveyance as per the law for the entire Unit sold including (without limitation) basement and extra balconies and to the extent that Complainant has to pay a higher stamp duty than the rate applicable on the date of Occupancy Certificate i.e. on 12.07.2011

2. OP should compensate the Complainant for the excess and pay interest @18% p.a. on the stamp duty and registration charges of Rs.7,25,800/- which were deposited by Complainant on 22.06.2013 till the date of registration of conveyance.

3. Direct OP to revoke and cancel the new demand of Rs.8,32,883/- referable to OP’s letter.

4. Direct OP to pay a sum of Rs.17,87,500/- as compensation for loss of common area; a sum of Rs.6,50,000/- for damage caused to wall by negligent plumbing and consequent seepage and a sum of Rs.1,00,000/- as compensation for the nuisance.

5. Direct OP to pay a sum of Rs.5,00,000/- to Complainants as compensation for deceptive and unfair trade practices and for mental suffering and harassment.

6. Direct OP to pay a sum of Rs.50,000/- to Complainants as compensation as reimbursement of legal expenses.

2. Notice was issued to the OP on 09.07.2015. Parties filed Written Statement/Reply, Rejoinder, Evidence by way of an Affidavit and Written Arguments/Synopsis etc. as per details given in the Table at Annexure-A.  The details of the flats allotted to the Complainant (s)/other relevant details, based on pleadings of the parties and other records of the case are also given in the Table- A.

3. Brief facts of the case, as presented by the Complainant and as emerged from the pleadings of the parties and other case records are that:

1. Grand Omaxe, a project of OP in Sector 93B, Noida offered booking of flats in its project. On 08.08.2008, Complainants jointly submitted booking application for the ground floor flat no. 002 Alexandra A comprising 1625 sq. ft. and 600 sq. ft. basement, for total cost of Rs.1,01,18,475/- payable on Down Payment Plan. Complainants paid the full booking amount of Rs.12,97,084/- through cheques on 08.08.2008.

2. As the Complainants opted for Down Payment Plan, OP issued a demand notice dated 29.08.2008 for the second instalment payable as per DP Plan, for a sum of Rs.76,53,560.55/- due on 04.10.2008. On same day Complainant received a letter from OP styled as “Allotment Letter”. On 16.09.2008, Builder-Buyer Agreement styled as “Allotment Letter” was executed between the parties.  

3. Later, OP averaged the BSP rates to create a uniform rate to both ground floor and basement which was substantially the same as at the time of booking except for a marginal increase. Complainant paid the demand notice amount through a bank loan on 04.10.2008.

4. On 12.07.2011, OP was issued Occupancy Certificate by Noida Authority. Complainant followed up with the OP’s staff for offer of possession in July-August, 2012. However, Complainant protested at the proposed new demand of OP on construction of extra balconies beyond the original bargain. But in response, OP’s officers assured Complainant that they would adjust the amounts under other heads so that Complainant would have to pay no or marginal additional amount. OP delayed in offering the possession and the circle rates of stamp duty were increased on or around August, 2012 which eventually have to be borne by the Complainant.

5. On 05.09.2012, OP issued a letter of offer of possession with statement of account raising new demands relating to extra balcony, meter cost and also increased super-area. In line with their earlier assurance, OP showed a reduced amount of ground floor and basement cost that the total value of the reduction substantially offset the value of the illegal new demands, leaving only a small increase of just Rs.19,351/- and giving time to Complainant to make payment by 10.10.2012.

6. When Complainant sought compensation for delay in delivery of possession, OP informed that a sum of Rs.45,501/- would be adjusted as compensation for delay in delivery of possession. Accordingly, on 05.10.2012 paid to OP an amount of Rs.11,78,533/- (Rs.12,24,033-Rs.45,501).

7. Complainant, after clearing dues on 05.10.2012 chased OP for speedy completion of formalities through emails and personal visits to OP’s office. Since OP had not paid the dues of Noida Authority, OP was not permitted by Noida Authority to register conveyances. As per the lease agreement as well as section 13 of the Uttar Pradesh Unit (Promotion of Construction, Ownership and Maintenance) Act 2010 between Noida Authority and OP, OP cannot hand over the possession.        

8. OP forced Complainant to sign a letter dated 19.11.2012 styled as a request for temporary possession. OP forced Complainant to submit affidavits as per format, to confirm acceptance of delay penalty in full and final settlement and the other to show that Complainant was taking temporary possession for fit out. On 28.11.2012, OP issued a Statement of Account which showed all dues as fully settled and balance as zero.

9. On completion of documentation, Complainant was shocked to find that flat was not habitable as there was extensive water seepage on ground floor and basement. OP’s staff told that work was in progress to repair his flat and on 29.03.2013 Ram Prashad Sharma of OP, asked Complainant to visit the flat but was dismayed to find that the defects, issues and fittings had not been rectified. On 01.04.2013, Complainant sent an email regarding the same issues and followed up with another mail on 02.04.2013

10. On 09.04.2013, Complainant was forced to sign a fit-out possession letter before handing over the keys. Later on 07.06.2013, OP sent an intimation letter to Complainant to submit the required documents for registration and deposit an amount of Rs.7,25,800/- (including ground floor and basement) by way of stamp duty and registration charges for their flat as OP had cleared its dues of Noida Authority and obtained permission to register a conveyances for apartments. OP put a pre-condition for registration before Complainant to sign a Maintenance Agreement and top up the IFMS amount to obtain a no-dues certificate. Subhash of OP’s staff signed a “verification form” on 30.06.2013 confirmed that all payments and documents for registration of conveyance had been received from Complainant.

11. Vide an email dated 08.08.2013 and then a letter dated 19.08.2013 received by Complainant claiming that inadvertently a deficient amount had been shown in the letter of offer of possession and demanding payment of the alleged deficient amount of Rs.8,32,883.59/-. Complainant protested against this illegal demand and asked OP to return the stamp duty and registration charges that he was earlier made to pay on 24.06.2013 but OP refused.

12. OP has not registered conveyance deed till date and demanding an amount of Rs.8,32,883.59/- despite clearing all the dues. Hence, the complaint was filed.     

4. It is averred/stated in the Complaint that:

(i)        OP did not offer the timely possession and increased the super area of the flat with extra balconies. OP did not settle the dues with Noida Authority which delayed the possession of the flat. As Complainant was living in a small flat with his family, was eagerly wanted to get possession early. But due to deficiency on the part of the OP, Complainant did not get timely possession.

(ii)       All the payments were timely made by the Complainant and all the dues were cleared as confirmed by the OP’s staff on 08.08.2013, OP demanded an additional Rs.8,32,883.59/- which Complainant refused to pay.

5. The OP in their written statement/reply stated that:

1. Reliefs claimed by the Complainant are time barred. Reimbursement for stamp duty is time barred as OP demanded on 07.06.2013 and complaint was filed on 29.06.2015.

2. Revocation of Rs.7,03,310/- for extra balcony and Rs.32,890/- for meter costs is time barred. Rs.12,16,558/- towards delay in possession from April 2012 to 09.04.2013 is time barred.   

3. OP further stated that the registration of conveyance of the Unit has not been done because the Complainants failed to pay the entire amount of the Unit i.e. the remaining amount of Rs.8,32,883/-.

4. As per various orders passed by Hon’ble National Green Tribunal, any work within 10 km of Okhla Bird Sanctuary was banned except with additional permission from the National Wildlife Board or only after declaration of Eco Sensitive Zone by the Government of India under the Wild Life Protect Act, 1972 and accordingly, the Project along with other developments falling within the territory got effected.

5. The Builder-Buyer Agreement (BBA) was executed on 16.09.2008, and a demand of Rs.76,53,560/- was paid by the complainants. However, the final area increased to 1641 sq. ft. with an additional balcony of 338.64 sq. ft. 

6. On 05.09.2012, OP issued a possession offer with an incorrect statement of account (SOA), undercharging the BSP for the revised area. After recognizing the error, OP corrected the SOA and demanded an additional Rs.8,32,883/-, based on the correct BSP and additional charges. The complainants' calculation confirmed OP's revised demand of Rs.8,32,883/- was accurate, accounting for an additional 16 sq. ft. i.e. Rs.80,000/- and applicable service tax.

7. The demand for additional BSP of Rs.5,00,761/- is incorrect and unfounded. As Complainant have taken average per sq. ft. i.e. Rs.3886.47/- and calculated BSP for 1625 sq. ft. as Rs.63,15,513.75/- and then compared with corrected demand of Rs.68,16,275/-. This amount was firstly, for total apartment area i.e. 1641 sq. ft. and not the tentative area of 1625 sq. ft. and secondly, at the agreed per sq. ft. price of Rs.4145/- and not the average price of Rs.3886.47/- per sq. ft.

8. OP further contended that extra balcony was constructed per Clause 3-BBA which gave OP right to make changes to Unit. Complainants have waived off objections against extra balcony when intimated on 05.09.2012.

9. Complainants have waived off their objections against stamp duty by refraining from raising any objection when the request was made.

6. Complainant in his rejoinder stated that:

1. The builder-OP cannot arbitrarily, unilaterally and secretly vary the areas and commercials of the resident Unit as per its arbitrary whims and fancies, to extort huge additional amounts from the purchasers which were not part of the original bargain.

2. The increase in areas was manifestly illegal. As to the “additional balcony”, OP has made it clear that this additional balcony will not be shown in the conveyance when it is registered. Hence the demand for something which OP is incapable of conveying to Complainant is manifestly illegal in contract and in law.

3. Further, no dues certificate was issued by OP and the full registration and stamp duty was paid by Complainant on 24.06.2013 which is still lying with the OP. Yet OP failed to register and to justify its delay, it retracted on its settlement and raised a false demand on 08.08.2013.

4. The Complainant has paid the full price and all other dues totalling Rs.1,01,37,991/- which is more than Rs.86,47,395.75/- and if stamp duty registration charges and amounts paid for second parking are included, the total amount paid by Complainant is Rs.1,12,13,791/-. OP has cleverly concealed in this paragraph the cost of extra balconies illegally imposed on him, which was beyond the original BBA and which the OP has stated that it is incapable of registering.

7. Heard learned counsels of both sides.  Contentions/pleas of the parties, on various issues raised in the Complaint, based on their Complaint/Reply, Rejoinder, Evidence, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below:

     7.1       It is contended by the Complainant that there was a full settlement between the parties. For this reason and also on principles of estoppel and waiver, OP cannot withhold registration of conveyance and cannot raise new demand in August 2013.

       7.2       If OP can back out, then so can Complainant. Then Complainant challenges new demands as illegal, claims delay compensation @8% pa (instead of Rs.5 psf pm), claims compensation for usurping of common areas by OP.

       7.3       Without prejudice to Complainant’s earlier submissions, they are entitled to registration of entire flat including extra balcony and basement but since OP cannot register these two areas, amounts for these are refundable with interest.

       7.4       On the other hand, OP contended that Complainants have waived off their objections against the meter cost by refraining from raising any objection when such addition was intimated to the Complainants vide letter dated 05.09.2012.

       7.5       Extra balcony was constructed as per Clause 3-5 of BBA which gave OP the right to make changes to Unit as deemed proper by OP at its sole discretion. Clause 11 of BBA, obligated the Complainants to bear increased sale consideration due to such increase in the area of the Unit.

       7.6       OP further contended that Complainants had accepted the delay in issuing possession for the Unit by adjusting the penalty for delay in the final erroneously quoted down payment. Having agreed and accepted the delay and compensation, they cannot now re-visit this issue and reclaim amounts under same head.

8.  Main dispute centres around demand of Rs.8,32,883/- by the OP vide letter dated 19.08.2013. The OPs stated in this letter that vide their letter for offer of possession dated 05.09.2012, they inadvertently asked the Complainant to remit the balance amount of Rs.11,87,345/- which the Complainant paid. In the Statement of Account attached to the said letter dated 05.09.2012, the net basic sale price was shown as Rs.60,13,186/-, while in the Statement of Accounts attached with the above stated letter dated 19.08.2013, the net basic sale price is shown as Rs.68,16,275/-, thereby leading to additional demand of Rs.8,03,089/- towards net basic sales price, and additional demand of Rs.29,794.59/- towards service tax, bringing the total additional demand of Rs.8,32,883.59/-. While the Complainant contends that he paid all dues demanded vide offer of possession dated 05.09.2012, which is even borne out in the Statement of Account dated 28.11.2012, which shows balance due as nil, the case of OP is that due to inadvertent mistake, they demanded less/wrong amount vide their letter dated 05.09.2012, and on detecting this mistake, they issued a revised demand letter dated 19.08.2013.

9. We have carefully perused the Application form, Allotment letter and other relevant records. As per Application form, the apartment area is 1625 sq. ft. and basement area 600 sq. ft. Rate for apartment area is Rs.4145 per sq. ft. and for basement Rs.3186 per sq. ft., based on which the Basic Sale Price (BSP) works out to be Rs.86,47,225/-. The Annexure attached to the allotment letter stated the BSP to be Rs.3886.47 per sq. ft. It is the case of OP that rate of Rs.3886.47 per sq. ft. mentioned in the Allotment letter is the average rate for apartment area and basement area, and when this average rate is multiplied with the total area of 2225 sq. ft. (apartment area 1625 sq. ft. and 600 sq. ft. basement area) the BSP comes to Rs.86,47,395/- i.e. same as mentioned in the Application form. Hence, there is no variation in the total BSP as per Application form and Allotment letter. As apartment area got enhanced to 1641 sq. ft. subsequently, the BSP towards apartment area works out to be Rs.68,16,275/-, but by mistake it was wrongly mentioned as Rs.60,13,186/- in the Annexure to letter dated 05.09.2012, hence the subsequent letter dated 19.08.2013 was to correct this mistake. The OP did not register the conveyance deed of Complainant on account of two reasons (i) non-payment of additional demand of Rs.8,03,089/- and (ii) restriction imposed by Hon’ble Allahabad High Court on account of pending dues from the OP to the Authority concerned.

10. After careful considering all the facts and circumstances of the case and hearing both sides at length, we are of the considered view that no doubt the mistake is on the part of OP in incorrectly demanding a lesser amount towards BSP vide its letter dated 05.09.2012, considering that total BSP amount as per Allotment letter and Application form is same, the contention of OP that per sq. ft. rate mentioned in Allotment letter is the average of rate for apartment area and basement area, the OP having detected the mistake later on, was justified in demanding the revised BSP vide letter dated 19.08.2013. However, considering that mistake was purely on the part of OP and the fact that OP never explained the basis of revised calculations/demand to the Complainant, it was natural for Complainant to think that OP was wrongfully demanding the additional amount, and hence was justified in resisting such additional demand. Hence in the interest of justice and equity, we hold that at this stage OP is allowed to recover the additional demand of Rs.8,32,883/- (including service tax), but without any interest or penalty. Hence, we grant a period of one month from the date of this order to the Complainant to pay to the OP an amount of Rs.8,32,883/- which was demanded vide OP’s letter dated 19.08.2013, failing which, it will carry interest @12% p.a. after the expiry of 30 days till the date of actual deposit. On receipt of this amount, OP shall take all requisite steps and complete various formalities to register the conveyance deed in favour of the Complainant within a maximum of 30 days of receipt of payments from the Complainants. The concerned registering authority, subject to any orders of the Hon’ble Allahabad High Court, register the conveyance deed within two weeks of receipt of request, along with requisite fee/documents etc. from the Complainant and the OP. It is hereby clarified that Complainant is liable to bear the charges relating to stamp duty, registration fee etc. as per rates prevalent at the time of such registration. However, if the Complainant has already paid any sum to the OP towards Registration and Stamp duty etc., OP shall pay interest @12% on such amount and inform the Complainant to pay the balance amount, if any, as per prevailing rates now. Considering that Complainant has been contesting this case for the last more than 9 years, OP shall also pay litigation cost of Rs.1 lacs to the Complainant, which shall be duly adjusted from the amount of additional demand of Rs.8,32,883/- to be paid by the Complainant and additional demand towards stamp duty/Registration charges, if any. If OP, after receiving all payments from the Complainants as per this order, fails to get the conveyance deed registered in favour of the Complainants, due to any reason(s), whatsoever, OP shall be liable to pay delay compensation @6% p.a. on the total amount paid by the Complainants for the Unit in question from the expiry of 30 days of receipt of pending dues from Complainants till the date of registration of the conveyance deed. CC/546/2015 is disposed off with above stated directions.

11. All pending IAs, if any, also stand disposed off.