FINAL ORDER/JUDGEMENT

Smt. SAHANA AHMED BASU, Member,

The short  facts giving rise to the present case are that the complainant vide application No. 32876 had applied for booking of an apartment (712 Sq.Ft) in the project Hiland Greens of the OPsand an Allotment letter dated  01.03.2014 was issued to him by the OP1. Complainant was allotted Apartment No. 3A2 on the 3^rd Floor, Tower 24 at Hiland Greens. The total consideration price of the apartment is Rs.17,80,000/-  and a car parking space also allotted tothe complainant by the OP1 issuing an allotment letter dated 15.05.2014 being Car Parking No. K103 at a total sale consideration of Rs.2,75,000/-. The complainant has paid 7 instalments amounting to Rs.17,60,291+ Rs.97,253 for the flat including taxes in total Rs.18,57,544/- and Rs.1,41,749 (including service tax) in respect of covered car parking space to the OP1. As per General Terms & Conditions, possession of the apartment is to be handed over within 42 months from the date of allotment i.e. 01.03.2014 but the OP miserably failed to comply such condition. As per GTC the stipulated period of 42 months was slated to expire on 01.09.2017. There is a specific clause in the General Terms & Conditions that the OP shall pay compensation to be calculated at the rate of Rs.12.50 per sq. ft. of the chargeable area of the apartment per month effective from the schedule date of possession till the date of possession to such of the allottee who have not committed any default or delay. The OP accepted and received instalments amount without any objection. Thus, the complainant is entitled to get compensation at the rate of 12.50 per sq. ft. of the chargeable area. By a letter dated 11.06.2018 and 02.01.2019 the OP1 has admitted that there has been a continuing delay on its part to hand over the possession of the said flat and the said car parking space to the complainant and also reiterated that it would pay the compensation in terms of GTC to the complainant and as such the compensation would be adjusted against the future dues. On or around 06.02.2020 the complainant received a demand letter/notice dated 03.02.2020 from the OP1 claiming that they are ready to hand over the possession of the said flat to the complainant on 20.02.2020 and called upon the complainant to pay a sum of Rs.4,42,748/- on account of 8^th instalment for the said flat which also included the 2^nd instalment for the Covered  Car Parking Space without adjusting the compensation due and payable from their end to the complainant. It is also the reality that the car parking space was not yet ready for delivery as on 03.02.2020. The OP7 vide letter dated 14.05.2020 informed the complainant that the OP1 is not giving compensation to any of the customers in view of an alleged “grave financial crisis” that it was going through and requested the complainant to take the possession of the said flat without the said covered car parking space. Thereafter the complainant sent alegal notice dated 06.07.2020 to the OPs 2,3, & 5 demanding occupancy certificate or completion certificate along with the possession of the said covered car parking area.  The OP1 replied the said legal notice vide its letter dated 18.08.2020 admitting that the said car parking area is not accessible and/or possession of the same cannot be handed over to the complainant and offered an alternate car parking space which is not acceptable by the complainant. Again on 09.10.2020 the OP1 called upon the complainant to make payments of due Common Area Maintenance charges.  Alleging deficiency in service and unfair trade practice on the part of the OPs the complainant prayed for relief/reliefs.

Upon notice of the complaint, OPs appeared by filing WV and denying the allegations made in the complaint petition. The contention of the OPs is that the total all-inclusive cost of the said Apartment along with car parking space was Rs.20,55,000/-. The OP1 raised a demand notice vide its letter dated 03.02.2020 asking the complainant to pay a sum of Rs.4,42,748/- towards he 8^th and final instalment and offered possession of the Apartment to the complainant. Further it would be evident from a perusal of the letter dated 14.05.2014 that the OP1 was ready and willing to provide an alternate car parking spacein place of the said car parking space being No. K103 until the said K103 was ready for possession. Moreover the complainant has not paid the final instalment demanded by the OP1 despite of repeated reminders in this regard. Clause 15 of the GTC makes it categorically clear that the maintenance charges and expenses for the common areas and facilities of the said project are to be proportionately divided amongst the respective allottees. Therefore the complainant is liable to pay CAM charges. In view of the same the complainant is not entitled for any reliefs.

In support of their claim, boththe parties have tendered evidence and the complainant has also relied upon necessarydocuments annexed with the complaint petition. Both the parties have filed BNA. We have heard argument on merit and have also perused the record.

The Ld. Advocates for the parties vehemently argued and reiterated the facts.

The Point that falls for our consideration is whether there is any deficiency of service from the OPs and if so, how much the complainant is entitled for compensation.

We note, admittedly the complainant has paid Rs.  19,99,294/- out of total sale consideration for his apartment being No. 3A2 on the 3^rd  floor , Tower-24 at Hiland Greens in pursuant to General Terms & Conditions on

20.02.2014 (48501+1499) = 50000 (Application money + Tax)

15.03.2014(229500+8250) =237750 (Allotment money for flat + Tax)

14.04.2014(356000+11001 = 367001 (1^st Instalment + Tax)

11.08.2015(178000+5500) = 183500 (2^nd instalment + Tax)

08.08.2015(178000+6230) = 184230 (3^rd instalment + Tax)

31.102015(85310+11943) = 97253 (Adhoc charges for flat + Tax)

11.12.2015(177998+6453) = 184451(4^th instalment + Tax)

04.03.2016(356000+12906) = 368906 (5^th& 6^th instalments + Tax)

30.03.2016(178000+6453) = 184453 (7^th instalment + Tax)

The promised time for delivery of possession of the apartment was 42 months from the date of allotment i.e.  01.03.2014 but the OP did not offer possession of the apartment within stipulated period. On the contrary the OP1 vide letter dated03.02.2020 intimated the complainant that the complainant is liable to pay the final instalment along with due car parking charge and CAM charges. It is also noticed by us that the letter dated 14.05.2020states that the OP1 is not going to pay  compensation amount to the allottees on the ground of delay payment of instalments on account of “a very grave financial crisis”.

We will like to refer to the Clause 11 of the General Terms & Conditions which is reproduced below for ready reference.

POSSESSION:-

a.Subject to force majeure RDPL will endeavour to give possession of the Apartment to the allottee(s) within 42 months from the date of allotment of the Apartment.

b.  Force majeure, inter alia, include that will not be limited to non-availability or irregular availability of building materials, water supply, electricity other supplies or utilities, strike, slow down by/disputes within the contractor/ construction agencies employed/to be employed, war, lockout or civil commotion, terrorist action, litigations, acts of God, any act, any notice, order, rule or notification of the government and/or any other public or competent  authority or any change  in the policy of the government/statutory, bodies action or inaction or omission of any person or authority delay in certain decisions/grant of clearances by the statutory bodies and such other reasons beyond the control of RDPL.

c.  RDPL  as a result of such a contingency arising reserves the right to alter or vary these General Terms & conditions or if the circumstances so warrant, RDPL may suspend the fulfillment of its obligations for such period as it may consider expedient and the allottee agrees not to claim compensation of any nature whatsoever for the period of such suspension.

d. In the event, RDPL does not endeavour to give possession of the apartment to the allottee within the stipulated time [subject to force majeure as started in paragraph Ii (a)  and (b)], then RDPL will pay compensation to be calculated  at the rate of Rs. 12.50 per sq. ft. of the chargeable  area of the Apartment per month, effective  from the schedule date of possessiontill the “date of possession” (as defined hereinunder) to such of the allottees who have not committed any default or delay.

It is apparent as per the terms of Clause II (a) of the General Terms & Conditions, the possession of the apartment is to be delivered within 42 month from the date of allotment.Allotment Letter was issued on 01.03.2014 to the complainant. The OP never offer possession of the apartment within 42 months.We find thatdelay is admitted vide letter dated11.06.2018issued by the OP1 stating that:

We reiterate our promise to make up for this delay through the payment of the compensation committed to you under Clause No. 11(d) of the General Terms and Conditions that we agreed between us. This compensation will be adjusted against your future dues.

Another letter dated02.01.2019 issued by the OP1 stating that:

We are grateful for the patience you have shown and we would request your indulgence for these additional few months. And we reiterate our obligation to bear the compensation committed to you for this delay.

Ld. Advocate for the complainant alleged that despite ofrepeated assurance and non-delivery of the said flat and car parking space within stipulated time, the OP1 sent a demand notice to the complainant claiming an amount of Rs.4,42,748 which includes 8^th instalment of the said flat , due car parking amount and also demandedCAM charges of Rs.15,829/- without adjusting the due compensation amount.

Controverting the allegation Ld. Advocate for the OPs argued that it is clearly mentioned in the GTC that final instalment has to be paid before possession and the CAM charges is to be paid by the all allottees on monthly basis either from the date of possession or deemed possession whichever is earlier.

On perusal of the record it is observed that the Allotment Letter was issued on 01.03.2014. As per GTC the possession of flat was supposed to be handed over to the complainant within 42 months i.e. on01.09.2017. Ld. Advocate for the OPs has failed to place any evidence on record to prove that the reasons of delay was beyond their control for which  they offered the possession of the flat to the complainant by 29 months delay. Complainant cannot be made to wait indefinitely for delivery of possession. Complainant has not committed any default in making payment till 7^th instalments and did not express her unwillingness to pay 8^thinstalment and due car parking amount. The OP accepted and received instalments amount without any objection. Therefore as per Clause 11(d) of the GTC the complainant is entitled to get compensation of Rs.2,58,100/-(712 x 12.50 x 29).Moreover , letter dated 18.08.2020 issued by the OP1 to the complainant states that:

please note the car parking space allotted is assessable yet however we will provide you suitable alternate parking space within the Project till the parking space becomes accessable.

In view of the above, it is crystal clear that the car parking space was not completed on 03.02.2020 when the OP1 sent the said demand notice claiming the due car parking charge along with other charges. Act of the OP in denying the compensation on account of “a very grave financial crisis” and offering an alternate car parking space and sending demanding notice without adjusting the compensation amountwhile retaining amounts deposited by complainant is not only act of deficiency in service but also of unfair trade practice.

In the light of the above discussion, we find both deficiency in service within the meaning of Section 2(11) and unfair trade practice within the meaning of section 2(47) of the Consumer Protection Act,  2019 to be well and truly evident on the part of the OP1. OPs 2 to 7 are the Directors and employees of the OP1 who have not any liabilities towards the complainant. It is the company and the company alone upon whom the liability can be fixed at all.

In remedy, it would be just and equitable to direct the OP1

1. to hand over the possession of the said flat and car parking space and also pay compensation charges to be calculated  @ of  RS.12.50 per square feet of the chargeable area of the apartment per month with effect from the schedule date of possession till the date of possession to the complainant as per General Terms & Conditions.

2. OP1 is also directed to pay compensation to the tune of Rs. 20,000/- for mental agony and harassment to the complainant together with litigation costs of Rs.  10,000/-.

3. The aforesaid direction shall be complied with within a period of six weeks from today, failing which the amount shall carry interest @ 9% per annum till its realization. 

A copy of the judgment be supplied to the parties as per rules. Upload this order on the website of this Commission immediately for perusal of the parties.