1. Heard Ms. Reena Rao, Advocate and Mr. Sandiv Kalia, Advocate, for the complainants and Mr. Gautam Mishra, Advocate, for the opposite parties.
2. Rahul Agarwal and Minnal Agarwal have filed above complaint for directing the opposite parties to (i) obtain completion certificate/occupation certificate, execute conveyance deed and hand over possession of the villa allotted to them; (ii) pay delay compensation in the form of interest @ 18% per annum compounded annually on the amount deposited by them from due date of possession till the handing over possession; (iii) reimburse Rs.6,80,000/- of the rent and Rs.25,000/- as shifting charges incurred by them due to delay in delivery of possession; (iv) pay Rs.10 lacs as compensation for mental agony and harassment; (v) complete all the amenities and facilities as per brochure and provide it to them and other residents; (vi) complete the fitting and fixture in the villas as provided in the brochure; (vii) cure structural defect of car parking slot, which should be of an appropriate size where a decent sedan can be parked with access to the passengers to open doors and come out like the one provided with 142 sq. yd. villas; (viii) not to change the layout plan without intimation and consent of at least 2/3 majority of buyers; (ix) pay Rs.75,000/- as litigation cost; and (x) any other relief which is deemed fit in the fact of the case.
3. The complainants stated that Panchsheel Buildtech Pvt. Ltd. (OP-1) was a company registered under the Companies Act, 1956, Mr. Ashok Chaudhary (OP-2) was it chairman and Mr. Anuj Chaudhary (OP-3) was its director, who were actively involved in day to day activities of construction and administration of the company. The OPs launched a group housing project of villas and flats in the name of “Panchsheel Villas” at Plot no. GH-01A, Sector 16, Greater Noida, in the year 2010. In the brochure, the OPs published that 480 villas of 2BHK and 3BHK would be constructed in the project, which would be fully loaded luxury villas, equipped with all modern facilities. Although in the brochure, the price of villa of 144 sq. yd. was mentioned as Rs.68,59,500/-, but, when the complainants went to book the villa, they were informed that the price of the villa was increased to Rs.85,01,256/-, due to the order of Allahabad High Court enhancing the compensation in the land acquisition cases. Believing upon the representation of the OPs, the complainants booked Villa no.159, type III, size 144 sq. yd. and deposited Rs.8,48,000/- on 19.04.2012, as at that time 10% of the total price had to be deposited as booking amount. Later on, the OPs raised a demand of Rs.4,21,548/- through letter dated 28.09.2012, which was protested by the complainants through email dated 03.10.2012, but, the OPs declined to hear anything, therefore, this amount was deposited on 04.02.2013. Due to enhancement of the price, the complainants changed their villa to Villa No.116, Type II size 120 sq. yd. Thereafter, the OPs issued allotment letter dated 21.06.2013, allotting Villa type II, Unit no.116, size 120 sq. yd., in the project “Panchsheel Green II”. The allotment letter contains three types of payment plan. The complainants opted for ‘flexi payment plan’, under which, 15% of BSP+PLC had to be deposited at the time of booking, 30% of BSP+PLC within 45 days of booking, two instalments of 15% BSP+PLC, two instalments of 10% BSP+PLC and 5% of BSP+PLC+IFMS + other charges at the time of offer of possession. The complainants deposited instalments time to time and Rs.59,30,789/- (including interest for delayed payment) was deposited upto 19.06.2015 and TDS of Rs.6973 was deposited on 03.07.2015. As per allotment letter due date of possession was 36 months from date of booking or sanction of plan from authority, whichever is later, subject to receipt of entire basic sale price, extra charges, registration charges and any other charges. The complainants booked the villa on 19.04.2012, therefore, due date of possession expired on 18.04.2015, but, the OPs have neither completed the construction nor offered the possession. On inquiry, they used to reply that it would be delivered within six months. After taking payment, the OPs changed layout plan and reduced number of villas from 480 to 188 without consent of the allottees and the land earmarked for villas were changed in towers of multi-storied building. Without completing the allotted project, the OPs launched other projects namely “Pratishtha”, “Pebbles”, “Pinnacle”, “Hynish”, “Premium 24”, “Prime 90” and “Wellington 2 Towers” at different places, syphoning money of this project. In case of delay in payment of instalment, the OPs are charging 24% interest as such the complainants are also entitled for same interest on their deposit for the delayed period. The complainants are living in rented accommodation, they had to change their rented accommodation, in which, they had incurred extra amount of rent and shifting expenses. The complainants gave a legal notice on 30.12.2016 to hand over possession of the villa, complete in all respect as per specification. In spite of service of legal notice, the OPs did not respond, then, this complaint was filed on 04.12.2017.
4. The opposite parties filed their written reply on 16.01.2018, in which, the booking and allotment of the villa and deposits made by the complainants have not been disputed. The opposite parties stated that the project of villa was part of “Panchsheel Greens II”, Plot No. GH-01, Sector-16, Greater Noida and basic sale price at the time of allotment was Rs.85,01,256/-. The price was enhanced prior to booking of the complainants, therefore, they were not concerned with the initial price as mentioned in the brochure. As the opposite parties had to pay additional compensation to the land owners as such the price was enhanced. Later on, their allotment was changed on their request. Due to the order of Allahabad High Court and the farmer’s protest, the project was halted during 21.10.2011 to 24.08.2012 on the spot. NCR Planning Board took time in framing the policy of development and thereafter, sanction of the layout plan was delayed. Due to which the project was further delayed and resumed almost after two years. The complainants opted for the “flexi payment plan”, under which, they were required to deposit 15% of BSP at the time of booking, as such demand dated 03.10.2012 was issued to them, as they had deposited 10% of BSP. The complainants deposited this amount on 04.02.2013. So far as, the change in layout plan was concerned, the opposite parties gave public notice published in newspapers “Hindustan Times” and “Dainik Jagran”, inviting objections from the allottees. GNIDA also published notice inviting objections from the allottees on 23.04.2017. In spite of publication of notices, nobody filed any objection, as such the complainants cannot raise any objection in respect of change of the layout plan. Although in the brochure some more amenities in the villas were announced, but due to unreasonable delay for the reasons beyond their control, certain items like Chimney & Hob, Fancy lights, Video door phone and geyser were reduced, considering viability of the project. Although due to delay for force majeure, the costs of building materials and labourers were increased but the opposite parties did not enhance the cost of the villa. In the allotment letter, specification has been mentioned and accordingly the prices were charged, therefore, the complainants cannot claim the amenities in the villa as per brochure. Time for delivery of possession as mentioned in the allotment letter was tentative and subject to force majeure. Delay was caused due to farmer’s agitation, NCR Planning Board took further time in framing the policy of development and sanction of the layout plan by the statutory authority, which were force majeure and the opposite parties are entitled for extension of these period. They denied allegations of diversion of fund in other projects and committing unfair trade practice. In allotment letter, there is a clause for resolution of the dispute through arbitration, therefore, complaint is not maintainable and is liable to be dismissed. Total cost of villa is Rs.67,83,187/- as such the complaint does not fall within pecuniary limit of this Commission.
5. The complainants filed their Rejoinder on 30.01.2018 and Affidavits of Evidence and Affidavits of Admission/Denial of the documents and the opposite parties filed Affidavit of Evidence of Rahul Tomer. IA/22092/2018 has been filed for bringing on record the tracking report showing that Affidavits of Evidence filed on 01.10.2018, was served upon the opposite parties. IA/1534/2021 was filed for hearing through video conferencing, which has become infructuous.
6. In the meantime, the opposite parties vide email dated 05.04.2017, offered possession with final demand. The opposite parties obtained ‘occupation certificate’ on 17.12.2021 and vide email dated 18.12.2021, offered possession to the complainants, raising final demand. The opposite parties issued remainders for the payment of the balance amount on 16.03.2022 and 25.04.2022. As the complainants did not respond, the opposite parties issued pre-cancellation notice dated 08.10.2022.The complainants filed IA/10459/2023 for obtaining an inspection report of the villa from an architect. This Commission vide order dated 06.11.2023, appointed Mr. A R Prashant Kr. Sahai, Architect, for inspection of the villa, who after inspection of the villa has submitted a report dated 11.12.2023. The opposite parties have filed their objection to the report.
7. We have considered the arguments of the complainants and examined the records. The allotment letter dated 21.06.2013, provides that possession will be delivered within 36 months from the date of booking or from the date of approval of the layout plan whichever is later. The allotment letter further clarified that the building plan was tentative and the company may make such changes, modifications, alterations and additions as may be deemed necessary or may be required to be done by the company and Greater Noida authority. It is also mentioned that since it is a large project, the construction will be completed in phases. All major common facilities will be completed only after completion of construction of all phases. As such the allottee must take possession of the villa as soon as it is made available for the possession.  The opposite parties stated that initially due to farmer’s agitation and thereafter NCR Planning Board took time in notifying Master Plan, the project was halted during 21.10.2011 to 24.08.2012. Thereafter, layout plan was approved on 25.11.2014 as such due date of possession was 24.11.2017. The opposite parties completed the construction and applied for issue of “part occupation certificate” on 06.10.2016, along with revision of the layout plan. Greater Noida Industrial Development Authority published notices in newspapers on 23.04.2017, inviting objections of the allottees. No objection was filed any allottee. The “occupation certificate” was issued on 17.12.2021 and possession was offered on 18.12.2021 with final demand dated 20.12.2021. The opposite parties issued remainders for the payment of the balance amount on 16.03.2022 and 25.04.2022. As the complainants did not respond, the opposite parties issued pre-cancellation notice dated 08.10.2022.
8. As stated above, although in the brochure some more amenities in the villas were announced, but due to unreasonable delay for the reasons beyond their control, certain items like Chimney & Hob, Fancy lights, Video door phone and geyser were reduced, considering viability of the project. Although due to delay for force majeure, the costs of building materials and labourers were increased but the opposite parties did not enhance the cost of the villa. In the allotment letter, specification has been mentioned and accordingly the prices were charged, therefore, the complainants cannot claim the amenities in the villa as per brochure. Several years after of allotment the complainants cannot raise the same dispute again. The complainants booked villa of 120 sq. yards but they demand parking of the size of the villa of 142 sq. yards.
9. The architect in its report dated 10.11.2023 has raised a different issue relating to deficient area of plot and construction. As per allotment letter size of the plot was 1080 sq.ft., while Architect found 1089 sq.ft. Architect has not clarified that while measuring, he has included the outer walls of the villa or not.  The architect shows various deficiencies in the construction, which were not specification. The deficiencies as pointed out in the architect report at serial no.4 to 7 relate to the specification as given in the allotment letter and the opposite parties are liable to remove these defects. Rest of the deficiencies are not as per specifications in allotment letter.
10. There is a dispute in respect of parking space. The architect in his report has mentioned that the staircase is coming to the parking space at the basement from the upper portion of the villa. According to the opposite parties this staircase was provided on the demand of the complainants, therefore, some area of the parking has been reduced due to it. If the complainants do not wish any staircase, the opposite parties shall remove the staircase from the parking area. The parking space is mentioned as 7 ft. 1 inch wide and 15 ft. 1 inch long. The opposite parties are directed to attend this issue and provide the parking space with appropriate width (not of the size of villa of 142 sq. yard).
11. Supreme Court in Ireo Grace Realtech Private Limited Vs. Abhishek Khanna (2021) 3 SCC 241, held that if possession is offered after obtaining “occupation Certificate”, then the allottee is contractually obligated to take possession. Normal practice of the developer is that after deposit of final amount and completion of the paper formalities, they used to furnish the flat/villa finally. As stated above, due date of possession was 24.11.2017 and possession was offered on 20.12.2021 as such, there was delay in offer of the possession and the complainants are entitled for delay compensation. From 15.03.2020, due to spread of pandemic Covid-19, there was lockdown in the country. The opposite parties are liable to pay delay compensation from December, 2017 to 15.03.2020. Supreme Court in Wing Cdr Arifur Rahman Khan and Ors. Vs. DLF Southern Homes Private Limited & Ors. (2020) 16 SCC 512 and DLF Home Developers Vs. Capital Green Flat Buyers Association, (2021) 5 SCC 537 has awarded @ 6% interest on the deposit of home buyers as delay compensation. Therefore, the complainants are entitled for delay compensation in the form of interest @ 6% per annum on their deposit (excluding rebate) from December, 2017 to 15.03.2020.

O R D E R

In view of the aforesaid discussion, the complaint is partly allowed with cost of Rs.50000/-. The opposite parties are directed to remove the deficiencies as pointed out in the Architect Report dated 11.12.2023 at Serial Nos.4 to 7, furnish the villa as per specifications and provide appropriate width for the car parking. The opposite parties shall issue a fresh statement of account crediting delay compensation in the forms of interest @ 6% per annum on deposit of the complainants from December, 2017 till 15.03.2020. The opposite parties are entitled to charge interest @9% per annum on the balance amount payable by the complainants. After adjusting the amount payable by the complainants, balance amount with cost will be paid to the complainants along with statement of account. Above directions will be complied with within a period of two months from the date of the judgment. After completing the paper formalities, the opposite parties shall execute sub lease deed/ conveyance deed and hand over possession to the complainants without any further delay.