Delhi

StateCommission

CC/738/2016

MR. ANIL GAUTAM - Complainant(s)

Versus

SUPERTECH LTD. - Opp.Party(s)

RAHUL RATHORE

26 Nov 2020

ORDER

 IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments :26.11.2020

Date of Decision :04.12.2020

COMPLAINT NO.738/2016

In the matter of:

 

            Mr. Anil Gautam,

            Son of Shri Shyam Sunder,

            R/o. RZ 1/5151, Gali No.3,

            Tugalka Bad Extension,

            New Delhi-110019.                                                                            Complainant

Versus

                                                           

            Supertech  Ltd.,

            1114 Hemkunt Chambers,

            11 Floor, 89 Nehru Place,

            New Delhi-110019.                                                                           opposite Party

 

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                               Yes/No

2.      To be referred to the reporter or not?                                                                                                        Yes/No

Present :           Shri  Rahul Rathore, Counsel for Complainant.

                        Shri Vikas Sethi, Counsel for OP.

Shri O.P. Gupta, Member (Judicial)

JUDGEMENT

1. The case of the complainant is that he booked apartment in Eco Village 2, Plot No.GH-01, Sector-16B, Greater Noida. Originally he was allotted apartment no.C11/301 but subsequently he was allotted C12/301. He submitted an application for booking on 01.05.10 on flexi Payment Plan. He was made to execute the builder buyer agreement dated 28.10.10. Later  it was discovered that original apartment was planned over an area  comprised in the Shahberi Village land acquisition of which was disputed by farmers who were original owners.  The said land had to be returned to the farmers pursuant to decision of Allahabad High Court on 12.05.11. The planned building had to be scrapped, OP offered to shift the allottees of the scrapped building to other towers in the same project, on same terms and conditions. Complainant accepted the same. The new agreement extended time line for promised delivery date of January, 2013 to June, 2015. Since he had already paid 20% which OP refused to refund, He had no option but to sign the new builder buyer agreement that extended  delivery  time. Clause 21 of the new builder buyer agreement added grace period of six months. The rate of compensation was fixed @Rs.5/- per sq. ft. per month but OP to claim higher compensation @24% of the total price of flat. Section 2 (za) The Real Estate (Regulation and Development) Act, 2016 stipulates that rate of interest chargeable from the allottee by the promoter, in case of default, shall be equal to the rate of interest  which the promoter shall be liable to pay to the allottee,  in case of default. The  OP is liable to register conveyance in favour of complainant at the same rate of stamp duty and registration as was applicable at the time flat ought to have been delivered. The complainant came to know from offer of possession issued by OP to other allottees that the OP raises demand of increase in super area which was  never disclosed to the allottee. In order to pre- empt being confronted with such illegal demands at the final stage, complainant issued email to OP seeking  information that he may  be informed that he would not be confronted with any illegal interest  demand. OP issued email dated 27.03.15 forwarding an interest  sheet which contained several new interest charges.
2. The unit sold to the complainant had super area  of 1010 sq. ft.  By email dated 06.04.15 the OP informed complainant that area has increased from 1010  sq. ft. to 1080  sq. ft. Super area is not recognised by any statute, rule or regulation. No calculation or breakup of the super area was provided in the brochure, BBA or any other document. Super area is an elusive concept invented by builders to cheat the buyers. The only possibility of a change in super area is that layout plan has changed. Section 4(4) UP Apartment  promotion of construction,  (ownership and maintenance) Act 2010 forbids  OP from carrying out any changes in layout without taking the permission of the  complainant and other allottees. The OP did not intimate much less take consent of the complainant. As per clause 51 of the old BBC, OP ought to  have intimated the complainant about the super area  if it exceeded +- 5% but OP never did so.
3. Complainant paid Rs.1,72,000/- by cheque on 01.05.10 as booking amount, being 10% of basic sale price. In interest sheet  dated 25.03.15 it was shown that said payment was deficit and interest on deficient payment was claimed. Even one day which took to encash the cheque has been shown as delay. Approval of building plan came only on 30.08.10. OP ought to have not accepted any amount before sanction. Demand letter was pre dated to 28.08.10. The complainant paid Rs.2,25,000/- from his own contribution on 29.10.10. He could not raise any bank loan till building plan has been sanctioned. Tripartite agreement was signed on 15.02.11. Thereafter complainant promptly arranged bank loan and paid the  demand of 46%  of the price in three months time. This amounted to completed 50% of the payment.
4. On 12.05.11 due to order of Allahabad High Court later upheld by  Supreme Court on 06.07.11, the building had to be cancelled. OP had no right to charge interest for any alleged delay in respect of a unit which OP had no right to build. Rather OP ought to give interest to the complainant for the monies taken by it for a unit which could not be delivered. Interest claim in respect of delay in 2010 are barred by limitation in 2015. Interest for delay prior to execution of new BBA is illegal.  Interest @24% p.a. claimed by the OP is exorbitant. OP charged park facing charges of Rs.25,250/-. There is no park in front of his apartment no.C12/301. Hence OP is liable to refund PLC with interest @24% p.a. Demand on account of farmers compensation  is  contrary to multiple public assurances given by OP. it is not justified by BBA also.
5. As per increased super area the demand would be Rs.20,79,969/-. Hence this complaint for directing the OP to deliver possession of the apartment alongwith registered conveyance and occupancy certificate alongwith compensation for delay @24% p.a. from the due date on delivery till the actual date of delivery of possession. OP should be  directed not to charge any amount on account of alleged increase in super area or any interest on alleged delays in payment. OP should be directed to refund Rs.41,899/- charged against park facing charges. OP may be directed not to demand any amount on account of additional payments to farmers and should pay Rs.5 lakhs as mental harassment, Rs.50,000/- as litigation charges.
6. The OP filed WS raising preliminary objection that complainant is guilty of suppression of material facts, complainant has been filed in  collusion and  connivance with a group of allottees of the project  merely to harass and loot and usurp unwarranted monies from OP. The complaint is premature  and no cause of action has arisen. The complaint has been filed on the basis of apprehensions and  own whims and fancies of the complainant. OP has not committed any deficiency in service or any unfair and restricted trade practice. The complaint is barred by limitation. This Commission has no jurisdiction. Clause 50 of the  allotment letter dated 20.02.13 contained arbitration clause. Complainant is not a consumer. He booked the flat for investment/resale/commercial purpose. Some restraint orders were  passed by NGT regarding ground water extraction for construction purposes. OP had to depend on water supply from Noida/ Greater Noida. Supply of raw material labour etc was totally disrupted due to strikes/ agitation at the site by the farmers.
7. The complainant knew that possession could be delayed due to reasons not attributable to OP. That is why the agreement provided for a clause for payment of penalty for delay in possession. No demand for increase in super area has been made from the complainant till date. The complainant was well aware that built up area could be increased/ decreased due to architectural reasons for overall betterment of complex for the purpose of uniformity of complex as better architectural aesthetics.  Proportionate charges for such changes were to be as per clause no.C.7 and C.8  of allotment  letter dated 20.02.143 The complainant is bound to pay additional bonafide and legal charges in terms of allotment letter dated 20.02.13. No demand for farmer compensation charges has been made  from the complainant till date. The terms of letter of allotment are paramount and complainant cannot be allowed to shy away from the terms and conditions of the agreement.
8. On merits the OP repeated  the same plea. OP prayed for dismissal  of the complaint.
9. The complainant filed rejoinder and his own affidavit in evidence.
10. On the other hand  the OP filed affidavit of Shri Shailender Kumar , Senior Manager Legal.
11. Both the parties have filed written arguments.
12. I have gone through the material on record and heard arguments. The counsel for the complainant sticked to his prayer for delivery of possession provided OP shows completion certificate. The counsel for OP submitted that OP has obtained completion certificate  and will file the same within one week from 26.11.20 when the arguments were heard. He has actually filed the copy of completion certificate dated 24.07.20.
13. The complainant is bound by terms and conditions of agreement. Consumer courts can’t go beyond the terms of agreement.
14. The increase in super area is less than 10%. Such change cannot be termed as  malafide. It is likely to change during the course of construction. If area is increased, allottee must pay  for the increase.
15. Reference to Section 2 (za) of Real Estate (Regulation and Development)  Act 2016 for seeking interest @24% p.a. instead of agreed compensation @Rs.5/- per sq. ft. per month, is misfounded. The said section provides that rate of interest chargeable from the allottee would be interest which is payable by the promoter to the allottee. It does not provide for vice-versa. Thus complainant can say that he is liable to pay interest  @3% which comes to Rs.5/- per sq. ft. per month and not 24% per annum. But he cannot claim interest @24% per annum from OP. In DLF Homes vs. D.S. Dhanda AIR 2019 SC 3218 it was held that builder is liable to pay  compensation at the agreed rate of Rs.5/ per sq. ft. per month. Similar view was taken by NC in CC no.2095/16 titled as Yash Manoj Handa vs. Parsvnath decided on 14.02.19.
16. In view of the above discussion the OP is directed to hand over   possession of flat no. C12/301 in Eco Village on to plot no. Plot No.GH-01, Sector-16B, Greater Noida as subsequently booked by the complainant, within three months after making the same habitable. OP is also directed to pay penalty for delay in  possession at the agreed rate of Rs.5/- per sq. ft. per month from the date of assured possession till the date of actual delivery of possession. The OP would get conveyance deed executed immediately after handing over the possession. It goes without saying that complainant would pay stamp duty and registration charges as would be applicable on the date of registration of conveyance deed.
17. Copy of the judgement be sent to both the parties free of cost.
18. File be consigned to record room.

 

(O.P. GUPTA)                                                      MEMBER (JUDICIAL)

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