JUSTICE SUDIP AHLUWALIA, MEMBER

2. The factual background, in brief, is that the Complainants purchased a unit in the project "Araya" developed by the Opposite Party at Sector 62, Golf Course Extension Road, Gurgaon, Haryana. The Opposite Party had promoted the project as an unparalleled ultra-luxurious housing development combining the comforts of city life with a prime location in Gurgaon, being a mere 10-minute drive from HUDA City Centre Metro Station. On 28.08.2012, the Opposite Party issued an Allotment Letter to the Complainants, allotting them Residential Unit No. A-1502 on the 15th floor of Tower A, with a super area of 5,514 square feet. Subsequently, on 18.10.2012, the Apartment Buyer’s Agreement was executed in favor of the Complainants. The Opposite Party collected Rs. 40,00,000/- even before executing the Agreement, compelling the Complainants to sign it under duress, as any protest would have led to cancellation of the allotment, and forfeiture of the earnest money, amounting to 10% of the total sale price of the unit. Clause 11.2 of the Agreement stipulated that possession would be offered within 39 months from the date of excavation, excluding a 6-month grace period. Excavation commenced on 04.06.2012, and thus, possession was to be delivered latest by 04.03.2016, including the grace period. Despite receiving a substantial amount of Rs. 6,01,83,300/-, the Opposite Party failed to deliver possession within the promised time frame. It was only on 28.08.2018, after an inordinate delay of more than two years from the promised date of possession, that the Intimation for Possession was issued. Aggrieved by the deficiency in service on the part of the Opposite Party, the Complainants filed the present complaint.

3. In view of the aforesaid facts, the Complainants have prayed as following - 

“a. Direct the Opposite Party to handover the physical possession of the Apartment to the Complainants, 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 and execute all necessary and required documents in respect of the said Apartment in favour of the Complainants within 6 months of this petition being filed before this Hon'ble Commission or as this Hon'ble Commission deems fit and appropriate;

 

b. Direct the Opposite Party to pay interest @ 18% per annum as delayed possession compensation from the promised date of possession, i.e. from 04.03.2016 till the date the actual possession is handed over by the Opposite Party along with all necessary documents and common areas and facilities as promised during the initial booking made by the Complainants;

 

c. Direct the Opposite Party to pay compensation of Rs. 10,00,000/- (Rupees Ten Lakh Only) to the Complainants 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);

 

d. Direct the Opposite Party to pay a sum of Rs. 2,00,000/- (Rupees Two Lakh Only) to the Complainants towards litigation costs; ”

4. Evidence by way of Affidavit has been filed by Complainant No. 1 Mr. Inderjit Walia and Complainant No. 2 Mrs. Meera Walia; Evidence by way of Affdiavit has been filed on behalf of Opposite Party by Mr. Rajender Kumar, Authorized Representative, M/s Pioneer Urban Land & Infrastructure Ltd.

5. This Commission has heard both the Ld. Counsel for Complainants and the Opposite Party, and perused the material available on record.

 

6. Ld. Counsel for Complainants has argued that that the present dispute is akin to various disputes already adjudicated by this Commission regarding the same project and Opposite Party, notably in "Vishal Malik and Anr. v. Pioneer Urban Land & Infrastructure Ltd., CC/1238/2017" and "Geetu Gidwani Verma and Anr. v. Pioneer Urban Land & Infrastructure Ltd., CC/238/2017," which was also upheld by the Hon'ble Apex Court in "Geetu Gidwani Verma" (supra); That as per Clause 11.2 of the Agreement, possession of the Unit was promised within 39 months from the date of excavation, excluding an additional grace period of 6 months to complete the project. The excavation of the project started on 04.06.2012, hence possession of the Unit was to be delivered by 04.03.2016. However, the Opposite Party failed to offer possession within the promised time period; That the Agreement contained various one-sided and arbitrary terms and conditions, which the Complainants had to sign under duress, lest the ernest money would have been forfeited; That the Complainants diligently adhered to the payment plan and made all payments as demanded by the Opposite Party; That it was only on 28.08.2019, after an inordinate delay of more than 2 years from the promised date of possession, that the Opposite Party sent the Letter of Intimation for Possession. Upon visiting the project site to inspect the Unit, the Complainants were shocked to find it incomplete and uninhabitable. The Opposite Party acknowledged the defects and assured that they would be rectified soon, yet continued to demand final payments.

7. Ld. Counsel for Opposite Party argued that it is a matter of record that the Complainants, after the offer of possession on 28.08.2018 and after making necessary queries, accepted the possession on 18.11.2020. Subsequently, a Conveyance Deed has been registered between the parties, and the Unit now stands transferred in the name of the Complainants as per the Deed dated 18.11.2020. Since then, the Complainants have leased out the premises on 31.07.2021; That although the Complainants accepted the possession under protest, they are estopped from raising any dispute regarding compensation or the readiness of the Unit. Further, as per the email dated 27.09.2018, the Complainants were fully satisfied with the Unit as all the amenities were delivered and the Unit and Project were in a habitable condition; That a perusal of the complaint indicates that the Complainants based their complaint on the fact that the Project overall was not complete and the amenities were not provided, which is contrary to the email dated 27.09.2018, in which the Complainants expressed their satisfaction with the booked Unit; That an application for direction bearing No. 17777 of 2019 was filed by the Opposite Party seeking directions from this Commission to direct the Complainants to file a list of properties owned by them. The Complainants, in reply to the said application, conceded that they own other properties used for residential purposes; That since the Complainants have let the Unit on lease, any loss suffered by them would be limited to rental income, which would be the only relief available, without prejudice to the contentions herein; That the Complainants seek compensation in addition to the compensation stipulated under the BBA, which has been offered and adjusted in the final demand. However, if this Commission is pleased to grant additional compensation, it should be in accordance with recent decisions of the Hon'ble Apex Court, i.e., at the rate of 6%, as followed by this Commission.

8. It may be noted first of all that on 20.8.2019, it was submitted on behalf of the Complainants that without prejudice to their rights and contentions, they were ready to take possession of their Flat subject to payment of admitted balance amount, if any, to the Opposite Party and to deposit the disputed amount with this Commission during pendency of the Complaint.  Such request on behalf of the Complainants was allowed by the then Hon’ble Presiding Member, Mr. Justice V.K. Jain. 

9. Subsequently, the Complainants have taken possession of the Flat on 18.11.2020, as seen from the document-Exh. OPW/5, although in their Affidavit in Evidence, they remained silent on this development.

10. It nevertheless transpires that there was correspondence exchanged between the parties after the possession had been offered to the Complainants on 28.8.2018.  But the Complainants’ contention is that inspite of such offer of possession, they were unable to move in because the Apartment was not in a ready condition.  This Commission has perused the correspondence exchanged between the parties by way of Emails, and found that it was tacitly admitted on behalf of the Opposite Party that the Apartment was actually not in a finished condition.  Such admissions are contained in the Emails sent to the Complainants by the Opposite Party on 31.8.2018, 27.9.2019 and 22.5.2019 which are on Pages 146, 143 and 127 respectively of the Paper Book.  So it cannot be said that the Complainants had no justification to not accept the possession inspite of the same being offered on 28.8.2018. These Emails also go to negate the contention of the Opposite Party that the Complainants had raised the issue regarding non-completion of the Apartment only in December, 2018, as claimed by the Opposite Party’s witness in Para 4 of his Affidavit.

11. The Complainants would therefore certainly be entitled to delay compensation in the case.  As per the BBA, such delay compensation had been originally fixed @ Rs. 10/- p.m. per sq.ft. area.  But, as held by the Hon’ble Supreme Court in various decisions, such agreements in which the Flat Purchasers are forced to sign on the dotted lines, because they stand to suffer forfeiture of very substantial booking amounts already paid by them, would not stand the test of legitimacy or equity, and so the right of the Purchasers to claim additional delay compensation cannot be defeated.  But willingness to take possession on 20.8.2019 and the lack of any further grievance regarding the condition of the Flat being raised during pendency of the Complaint would therefore entitle the Complainants to seek such delay payment only till 27.9.2019, which is the last date of acknowledgment by the Opposite Party regarding incompletion of the Flat.

12. In this regard, contention of the Opposite Party is that if at all any additional compensation is to be awarded to the Complainants, it should be limited only to the loss of rental income which they would have otherwise suffered on account of the delay, since undoubtedly the Complainants did not move in to reside in the Apartment in question by themselves even though possession was taken by them on 18.11.2020.  The Complainants had filed the Complaint mentioning their address as 216 A, 16 F, Aralias Condonium Block-II, DLF, Golf Link Road, DLF City, Phase-V, Gurugram, of which they are the Owners.  In addition, it transpires from the brief notes of facts filed by the Opposite Party, that the Complainants also own another residential Flat bearing No. 1101, 11F, MGF- The Villas Apartment, Tower B, Akashneem Marg, DLF City, Phase-II, Gurugram. Now, after having taken possession on 18.11.2020, the Complainants instead of shifting there personally continue to live at their original address, but have rented out the Flat in question to “Transtek Infoways Private Limited” at a monthly rental of Rs. 1,30,000/-, and a copy of the registered Lease Deed executed between the parties has also been placed on record on behalf of the Opposite party.  In these circumstances, this Commission is convinced that any additional compensation payable to the Complainants on account of the delay in possession should not exceed the rental value which is being actually realised by them after letting out the same.

13. However, the fact that on 20.8.2019, the complainants had themselves expressed their willingness to take possession of the Flat very shortly after having filed their Complaint, and thereafter did not raise any further grievance regarding its alleged incomplete condition in spite of having taken possession during the pendency of the Complaint, would clearly go to indicate that they were satisfied with its condition at the time of submitting that they were willing to accept its possession on 20.8.2019, after which ultimately the possession was taken on 18.11.2020. Consequently, this Commission is of the view that they would be entitled to delay compensation from the original scheduled date of possession i.e. 4.3.2016 only till 27.9.2019, which was the last date of correspondence pertaining to the alleged incomplete condition, as already noted in the preceding paragraph No. 11.

14.    The Lease Deed in question was entered into by the Complainants and their Lessees on 31.7.2021, and recital of the same goes to show that it is to be effective from 15.8.2021. For the period of delay, to which the Complainants are found entitled for compensation i.e. between 4.3.2016 to 27.9.2019, it is natural that the rent realizable for the same Apartment would have been somewhat on the lower side earlier, more particularly considering that the Project itself was a new one, and such rent would then certainly proceed in the direction of increase as the time would go by year after year. After having carefully considered the overall facts and circumstances, this Commission is of the view that for the first year of delay i.e. from 4.3.2016 to 3.3.2017, the compensation by way of loss of rental income at the rate of Rs.1,10,000/- per month may be awarded to the Complainants.  For the following two years, i.e. up till  3.3.2018 and 3.3.2019, they are held entitled to compensation at the rate of Rs.1,15,000/- and Rs. 1,20,000/- per month respectively, and for the last period of the delay i.e. from 4.3.2019 to 27.9.2019, delay compensation at the rate of Rs.1,25,000/- per month may be held as the compensation to which they are entitled, since, as already noted earlier, even after having received possession on 18.11.2020, the Complainants never actually shifted to the flat in question, but continued to reside in their own other properties, and simply let out the said Flat on rent.

15. The Complaint is, therefore, allowed by holding that the Complainants, in addition to the delay compensation in terms of their original Builder Buyers Agreement, are also entitled to an additional delay compensation at the rates, and for the periods specified in the preceding Para No. 13.  In addition, they are also awarded an amount of Rs.1.00 lakh as the costs of litigation.

16. The Opposite Party is now directed to pay the aforesaid amount with interest upto date at the rate of 6% p.a. for the period after  27.9.2019, within 02 months from the date of this Order, failing which, any outstanding payment(s) shall attract interest @ 8% p.a. till the date of final realisation.

17. Pending application(s), if any, also stand disposed off as having been rendered infructuous.