JUSTICE V.K. JAIN (ORAL) The complainant booked a residential apartment with the opposite party, namely, Parsvnath Developers Ltd. in a project, namely, Parsvnath Exotica which the opposite party is developing in Waziarabad, Sector 53 of Gurgaon. A residential flat was allotted to the complainant in Block D-4 in the aforesaid project. Initially the allotment of an apartment was made on the 12th floor but later on the allotment was changed to an independent villa in Block D-4 bearing No.V-3. The area of the villa is 4130 Sq.ft. and it was allotted to the complainant at a price of Rs.3797.15 per sq.ft. The parties entered into a buyers agreement on 30.5.2011 in respect of the aforesaid villa. Clause 10(a) of the buyers agreement, which related to the delivery of possession of the villa, reads as under:- “10 (a) Construction of the Flat is likely to be completed within a period of thirty six (36) months of commencement of construction of the particular Block in which the Flat is located, with a grace period of six (6) months, on receipt of sanction of building plans/revised building plans and approvals of all concerned authorities including the Fire Service Deptt., Civil Aviation Deptt., Traffic Deptt., Pollution Control Deptt., as may be required for commencing and carrying on construction subject to force majeure, restraints or restrictions from any courts/authorities, non-availability of building materials, disputes with contractors/work force etc. and circumstances beyond the control of the Developers and subject to timely payments by the Flat Buyers in the Scheme. No claim by way of damages/compensation shall lie against the Developers in case of delay in handing over possession on account of the said reasons. The date of submitting application to the concerned authorities for issue of completion/part completion/ occupancy/part occupancy certificate of the Complex shall be treated as the date of completion of the Flat for the purpose of this clause/agreement/Date of booking whichever is later.” The villa allotted to the complainant being situated in Tower/Block D-4, a literal construction of the aforesaid clause would mean that the construction of the villa was to be completed within 36 months of commencement of construction of the said block, unless this is taken as a case of fresh booking in which case the period of 36 months would commence from the date of booking of the villa. In my view, considering that the villa in question was allotted to the complainant in lieu of a residential flat allotted to her in the same block, this cannot be taken as a case of ‘booking of a villa’. It was held by this Commission in C.C. No.91 of 2009 – Col. Rajyavardhan Singh Rathore Vs. M/s Parsvnath Developers Ltd. dated 21.1.2016 that the construction of Block D-4 had commenced on 27.4.2005 though the stand taken by the opposite party was that the construction in the aforesaid block had commenced on 14.4.2006. Admittedly, the villa had not been constructed by the time the buyers agreement was executed on 30.5.2011. Therefore, it cannot be said that at the time of execution of the said agreement, the parties intended that the possession of the villa would be delivered within 3 years of the commencement of construction in Block D-4. The learned counsel for the OP states that in the present case, the date of the buyers agreement should be taken as the commencement date for the purpose of working out the period stipulated for completion of the construction, meaning thereby that the construction of the villa was to be completed, within 36 months from 30.5.2011. Adding a grace period of 6 months, according to the learned counsel, the possession could be offered by 30.11.2014. However, nowhere has it been pleaded in the written version filed by the OP that at the time of allotment of the villa to the complainant in lieu of the flat which was initially allotted to her in this block, the parties had agreed that the construction of the villa would be completed within 3 years from the date of the said agreement and thereafter the OP would be entitled to a grace period of 6 months. The contention advanced by the learned counsel is, therefore, without any pleading to this effect. In fact, it has been expressly stated in Para V(ix) of the written version that the balance payment was agreed to be in 5 installments spreading between March 2011 and December 2011. The contention of the learned counsel for the OP, therefore, runs counter to the aforesaid plea taken in the written version of the OP since this is also his contention that the construction of the villa was to be undertaken on a self-financing basis and admittedly a substantial amount had already been adjusted towards sale consideration of the villa at the time the buyers agreement was executed on 30.5.2011. In my view, considering all the facts and circumstances of the case including that the construction in Block D-4 had commenced at least 6 years before the buyers agreement in respect of the villa was executed and the entire payment was to be made by December 2011, a period of one year from the date of execution of the buyers agreement, i.e., period upto 30.5.2012 would be a reasonable period for completion of the construction of the villa and offering its possession to the complainant. 2. Giving benefit of a grace period of 6 months to the OP, the possession of the villa in any case ought to have been offered to the complainant by 30.11.2012. 3. The learned counsel for the opposite party states that they had applied for occupancy certificate in respect of the villa allotted to the complainant sometime in the year 2013 but the said occupancy certificate has not been issued so far. Obviously, there must be defects, deficiencies or short-comings on the part of the opposite party on account of which the issuance of the occupancy certificate is getting delayed. Therefore, the opposite party has to blame itself for a situation in which the occupancy certificate is not being issued despite it having applied more than 3 years ago. In any case, the complainant cannot be made to suffer due to delay on the part of the OP in obtaining the requisite occupancy certificate. 4. Considering all the facts and circumstances of the case, the opposite party in my opinion should obtain the requisite occupancy certificate within 6 months from today and offer possession of the villa complete in all respects to the complainant within 3 months thereafter. 5. As far as compensation is concerned, the OP has already credited an amount of Rs.991200/- in the account of the complainant on account of delay for the period from November 2009 to October 2011. In addition to the aforesaid amount, the complainant is entitled to appropriate compensation w.e.f. 1.12.2012 till the date on which the possession in terms of this order is offered to the complainant after obtaining the requisite occupancy certificate. The learned counsel for the complainant states on instructions taken from the complainant on telephone that though this Commission had awarded compensation @ 12% p.a. in Col. Rajyavardhan Singh Rathore (supra), considering the recent downward trend in the rate of interest, the complainant would be satisfied if she is awarded compensation in the form of simple interest @ 9% p.a. 6. The complaint is, therefore, disposed of with the following directions:- (i) The opposite party shall obtain the requisite occupancy certificate in respect of the villa allotted to the complainant at its own responsibility, within 6 months from today. (ii) After obtaining the occupancy certificate in respect of the villa allotted to the complainant, the opposite party shall offer the possession of the villa complete in all respects, to the complainant within 9 months from today. (iii) In addition to the amount of Rs.9,91,200/- already credited in the account of the complainant as compensation on account of delay for the period from November 2009 to October 2011, the OP shall pay compensation in the form of simple interest @ 9% p.a. on the entire amount paid by the complainant to the opposite party w.e.f. 1.12.2012, till the date on which the possession in terms of this order is offered to the complainant. (iv) The compensation shall be paid while offering possession of the villa to the complainant in terms of this order. (vi) The opposite party shall also pay a sum of Rs.10,000/- as cost of litigation to the complainant. |
