6. Surya Vir Singh Puri, Director of Florentine Estates of India Ltd. and Vice President of Puri Construction Pvt. Ltd., 112-115, First Floor, Tolstoy House 15 & 17, Tolstoy Marg, New Delhi 110001.
7. Om Prakash Dhingra, Director of Florentine Estates of India Ltd. 112-115, First Floor, Tolstoy House 15 & 17, Tolstoy Marg, New Delhi 110001.
8.  Yashpal, Director of Florentine Estates of India Ltd. 112-115, First Floor, Tolstoy House 15 & 17, Tolstoy Marg, New Delhi 110001.
9. Ankur Nagar, Director of Florentine Estates of India Ltd., 112-115, First Floor, Tolstoy House 15 & 17, Tolstoy Marg, New Delhi 110001.

Through: Sh.B.S.Mittal, Advocate appearing for the opposite parties.

…..Opposite Parties

CORAM:    S.P.Sood, Judicial Member

                   Suresh Chander Kaushik, Member

Present:-    Mr. Parunjeet Singh, Advocate for the complainants.

                   Mr.B.S.Mittal,  Advocate for the opposite parties.

O R D E R

PER: S.P.SOOD, JUDICIAL MEMBER:

ORDER

1.      The present complaint has been filed by the complainants before this commission alleging interalia that despite several requests, opposite parties had handed over possession of the apartment very late than was assured therefore complainants pray for the following reliefs:

 (A)    Opposite parties, jointly and severally, to compensate for delayed possession in the sum of Rs.1,04,64,377/- being simple interest @ 18% p.a. on the amount of Rs.77,23,139/- deposited by 31.01.2016 and on Rs.45,24,776/- being  deposits made during the period 31.01.2016 to 10.08.2021 with further interest @ 18% p.a. till realization of the whole amount.

(B)     Opposite parties, jointly and severally, to refund the excessive amount paid by the complainant of Rs.7,86,532/- being the difference between the originally agreed total price of Rs.1,14,61,383/- and the unilaterally escalated price of Rs.1,22,47,915/- together with further interest @ 18% p.a. till realization of the whole amount.

(C )   Opposite parties jointly and severally, to pay compensation to the tune of Rs.5 lacs, on account of mental agony, physical harassment, financial loss caused to the complainant, deficiency in rendering service, negligence, and adoption of unfair trade practices;

(D)    Opposite parties jointly and severally to pay compensation to the tune of Rs.2 Lacs to the complainant, on account of alluring them by way tall promises on behalf of opposite parties, with regard to possession of the unit in question, which turned out to be false and loss of opportunity to buy any other property at the right time;

(E)     Opposite parties to pay cost of litigation to the tune of Rs.1 lac to the complainants; and

(F)     Any other relief/directions which this Hon’ble Commission may deem fit in the facts and circumstances of the case.”

2.      The brief facts of the case are that on 31.01.2013, complainant No.1 booked an apartment bearing No.A3-2102, Tower A-3, 21^st Floor measuring 2450 sq ft. @ Rs.4000/- per sq. feet in Emerald Bay, Sector 104 Gurugram, Haryana. The total price of the apartment was agreed to be Rs.1,14,61,383/-, which included charges for 2 car parkings besides EDC/IDC/PLC and club membership. The complainants had opted construction linked plan.   OPs promised them to hand over the possession after  completing development work within a period of 36+6 months from the date of Buyers Agreement. This is how the builder buyer agreement dated 10.03.2015 duly signed by builder was signed by complainant on 26.07.2021 came into existence  In all complainants had paid Rs.1,22,47,915/- from 31.01.2013 till 10.08.2021. As per agreement, the possession was supposed to be handed over to the proposed allottee (s) within 36+6 months from the date of execution of this agreement. The OPs agreed to provide possession complete after carrying out the construction in all respects latest by 31.01.2016 to the complainants but the needful was not done despite lapse of targeted date.  The complainant No.1 got totally frustrated and ran out of funds so they  decided to sell the apartment and this is how he had to sign the buyers agreement at the insistence of builder on 26.07.2021 so as to get substituted the complainant no.2 in the same and also to get it approved by Ops. So the complainant No.1 sold the unit to complainant No.2. Thus there was deficiency in service on the part of the OPs. 2 which did not stic to various terms and conditions of the agreement and hence the complaint.

3.      Upon notice, OPs appeared and filed  written statement of defence alleging interalia that  the present complaint has been filed by two complainants-Mr.Daya Singh and Mr.Viraaj Gaur whereas  Mr.Daya Singh has already sold the said apartment in favour of Mr.Viraaj Gaur.  Mr.Viraaj Gaur was not the original allottee and was purchaser in the secondary market. Originally there was no privity of contract between he opposite party and Mr.Viraaj Gaur rather latter appeared on scene much afterwards. All the amounts claimed to be paid by Mr.Viraaj Gaur were actually paid by Mr.Daya Singh for purchase of apartment in question to the OP.   therefore when Mr.Daya Singh had already transferred all his rights, title and interest in the said apartment to Mr.Viraj Gaur, so this complainant No.1 no longer remained either allottee or a consumer ever since he relinquished all his claims whatsoever in favour of complainant No.2.    Both the complainants are asking for some sort of compensation but since complainant No. 1 is a transferor of the unit and holds no right in the said unit and complainant No.2 is a transferee who obtained the apartment in resale from Daya Singh, thereafter complainant No.2 being a transferee has no right to claim any compensation from OP. The transfer of the apartment in favour of complainant No.2 has taken place on 11.08.2021 i.e. much after three years of Ops obtaining occupation certificate for the said project and also after Ops having offered possession of apartments to respective allottees. Moreover, the complainant No.1 did not pay the installments in time and even he did not sign the agreement handed over to him by OP way back on 10.03.2015 till the year 2021 and there was no contract between the parties and hence there was no question of any delay beig entailed by OPs. When complainant No.1 booked the unit in the year 2013, he opted for construction linked payment plan. All the payments made were not on time. OP No.1 honestly intended to complete the construction of the project within 48 months  from the date of sanction of the building plans, environment plans and fire fighting plans or execution of buyers agreement.  OP No.1 has already offered the possession on 21.01.2019 almost two and half years ago. The OP No.1 had already obtained the occupation certificate on 21.11.2018 and thereafter offered the possession to the complainant No.1 vide letter dated 21.01.2019.  The buyer agreement was signed on 11.08.2021 when the transfer occurred at the behest of complainant No.1 to complainant No.2. Thus there was no deficiency in service on the part of the OPs. The present complaint was liable to be dismissed on the above said grounds.

4.                When the complaint was posted for recording evidence of the parties, complainants in their evidence tendered two affidavits one is (Ex.CA) of Mr.Viraaj Gaur and second affidavit as (Ex.CA/1) of Mr. Daya Singh vide which he reiterated all the averments raised in the complaint and further tendered the documents Ex.C-1 to Ex.C-8 and closed their evidence.

5.                On the other hand, in order to rebut the evidence led on behalf of the complainants, O.Ps. have tendered the affidavits of Mr.Ashok Rawat Ex.OPA Authorised signatory of OPs alongwith alongwith documents Ex.OP-1 to Ex.OP-15 alongwith Ex.9-A and thereafter closed the evidence on behalf of OPs.

6.                We have perused the material available on record and heard the learned counsel for the parties.

7.                  The first question of consideration before us is whether the present complainants are entitled for compensation for delayed possession ? 

8.                While unfolding the arguments it was argued by Mr.Parunjeet Singh, learned counsel for the complainants that basic price of the flat was Rs.1,14,65,383/-.  It is also not in dispute that complainant No.1 Mr.Daya Singh sold the said apartment in favour of Mr.Viraaj Gaur i.e. complainant No.2.  Infact, complainant No.1 had booked the flat in the year 2013 but OPs could not deliver the possession of the unit till September 2021 despite OPs having promised them to hand over the possession after completing development work within a period of 36+6 months from the date of Buyers Agreement. On 10.03.2015/26.07.2021, the Apartment buyer Agreement came into existence between the parties.  In total, the complainant No.1 had already paid Rs.1,22,47,915/- to Ops between 31.01.2013 to 10.08.2021. As per agreement, the possession was to be handed over to the proposed allottee (s) within 36+6 months from the date of execution of this agreement. The OPs were to provide possession complete in all respects latest by 31.01.2016 to them, but, possession was not offered to him.   The complainant No.1 got frustrated and became starved of funds so he  decided to sell the apartment and when the developer insisted upon him to sign the Buyers Agreement first then, he had no other option and under these compelling reasons he signed the buyers agreement on 26.07.2021 and finally complainant No.1 sold the apartment to complainant No.2 in the year 2021. Learned counsel for the complainants further argued that the OPs have delayed the possession of the flat in question  so they were entitled for  compensation. The amount of compensation for delayed possession is of the tune of Rs.1,04,64,377/- being simple interest @ 18% p.a. on the amount of Rs.77,23,139/- deposited by 31.01.2016 and on Rs.45,24,776/- being deposits made during the period 31.01.2016 to 10.08.2021 with further interest @ 18% p.a. till realization of the whole amount; alongwith reliefs mentioned in the prayer clause.  They placed reliance upon authority of Hon’ble Supreme Court titled Faquir Chand Gulati Vs. Uppal Agencies Pvt. Ltd. & Anr. 2008 (4) RCR (Civil) 318, Bunga Daniel Babu Vs. M/s Sri Vasudeva Constructions, 2016(3) RCR (Civil) 924  and opinion of Goa State Commission in Mr.Santan Derrick Vs. M/s Mazarelos Enterprises law finder doc id # 930627.

9.                Learned counsel for the opposite parties vehemently argued that  the present complaint has been filed by two complainants-Mr.Daya Singh and Mr.Viraaj Gaur. Continuing further he argued that Mr.Daya Singh has sold the said apartment in favour of Mr.Viraaj Gaur.  There was no privity of contract between the opposite party and Mr.Viraaj Gaur. All the amounts claimed to be paid by Mr.Viraaj Gaur were actually paid by Mr.Daya Singh for purchase of this apartment to the OP.  Therefore since Mr.Daya Singh has already transferred his all rights title and interest in the said apartment to Mr.Viraj Gaur, so he was neither remained as allottee nor a consumer on account of his having already relinquished all his claims whatsoever in favour of complainant No.2.    The transfer of the apartment in favour of complainant No.2 took place  on 11.08.2021 i.e. almost three years of OPs obtaining occupation certificate for the said project and also having offered possession of apartments to respective allottees. The buyer agreement was executed in the year 2021 and prior thereto there was no contract between the parties and hence there was no question of any delay. When complainant No.1 booked the unit in the year 2013, he opted for construction linked payment plan. All the payments made were also not made intime. OP No.1 needs to complete the construction of the project within 48 months  from the date of sanction of the building plans, environment plans and fire fighting plans or execution of buyers agreement.  The OP No.1 had already obtained the occupation certificate on 21.11.2018 and thereafter offered the possession to the complainant No.1 vide letter dated 21.01.2019.  The buyer agreement was signed on 11.08.2021 when the transfer occurred from complainant No.1 to complainant No.2.  So the complainants were not entitled for the relief as prayed for.

10.     Perusal of the complaint shows that the complainant No.1 admitted that he signed the buyer agreement in the year 2021.  The fact admitted need not to be proved.  Since the buyer agreement was executed in the year 2021 only so the complainant No.1 was not entitled for compensation for delayed possession. Another aspect was that the present complaint was filed by Sh.Daya Singh only after selling of the apartment to complainant No.2.  Mr.Daya Singh has sold the said apartment in favour of Mr.Viraaj Gaur.  There was no privity of contract between the opposite parties and Mr.Viraaj Gaur. Mr.Daya Singh has already transferred his all rights title and interest in the said apartment to Mr.Viraj Gaur. The complainant No.1 was neither an allottee nor a consumer as he has already relinquished all his rights, titles and claims whatsoever in favour of complainant No.2.   The OP No.1 had already obtained the occupation certificate on 21.11.2018 and thereafter offered the possession to the complainant No.1 vide letter dated 21.01.2019.  The buyer agreement was signed on 11.08.2021 when the transfer occurred from complainant No.1 to complainant No.2. If the present complaint would have been filed before 2021, then complainant No.1 perhaps would have been entitled for the  delayed possession.  The case laws relied upon by the complainants titled Faquir Chand Gulati Vs. Uppal Agencies Pvt. Ltd. & Anr. (supra), Bunga Daniel Babu Vs. M/s Sri Vasudeva Constructions (supra) and Mr.Santan Derrick Vs. M/s Mazarelos Enterprises (supra) are not applicable in the case in hand because the facts and circumstances of the case are different from that of the present case. Hence, in view of the above, the complainants are not entitled for any compensation by way of delayed possession interest and other relief as prayed for. The complaint stands dismissed on merits.

11.              Application(s) pending, if any, stand disposed of in terms of the aforesaid order.

12.              A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The order be uploaded forthwith on the website of the commission for the perusal of the parties.

13.              File be consigned to record room.

                                                                   (S.P.Sood)

                                                                   Judicial member

                                                                                    (S.C.Kaushik)

                                                                     Member

Pronounced On: 03.02.2023                                                                   

S.K.