National Consumer Disputes Redressal
M/S. Athena Infrastructure Ltd. vs Mrs. Urmila Gour on 3 September, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 568 OF 2022 (Against the Order dated 27/05/2022 in Complaint No. 130/2020 of the State Commission Chandigarh) 1. M/S. ATHENA INFRASTRUCTURE LTD. M-62 & 63, FIRST FLOOR, CONNAUGHT PLACE, NEW DELHI CENTRAL DELHI ...........Appellant(s) Versus 1. MRS. URMILA GOUR HOUSE NO. 132, SECTOR 10, CHANDIGARH-160011 CHANDIGARH CHANDIGARH ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER HON'BLE MR. BHARATKUMAR PANDYA,MEMBER
FOR THE APPELLANT : MR. PRAVIN BAHADUR, ADVOCATE
MR. SAURABH KUMAR, ADVOCATE
MR. S. ANJANI KUMAR, ADVOCATE FOR THE RESPONDENT : FOR THE RESPONDENT-1 : MR. ANIL DUTT GAUR, ADVOCATE
Dated : 03 September 2024 ORDER
1. Heard Mr. Pravin Bahadur, Advocate, for the appellant and Mr. Anil Dutt Gaur, Advocate, for respondent-1/1.
2. The office has submitted report that the appeal has been filed with delay of 33 days. The appellant has filed IA/7206/2022 for condoning the delay in filing the appeal. In this IA, the appellant has stated that certified copy of the impugned order was received on 07.06.2022. Thereafter, the appeal was filed on 02.08.2022. For the reasons given in the IA, we condoned the delay in filing the appeal. IA/7206/2022 is allowed.
3. Athena Infrastructure Limited (opposite party-1) has filed above appeal from the order of State Consumer Disputes Redressal Commission, U.T. Chandigarh dated 27.05.2022 passed in CC/130/2020, partly allowing the complaint and directing the appellant (OP-1) to register sale deed and handover possession of the unit allotted to the complainant within 45 days after payment of balance sale consideration of Rs.2019242- + Service tax/GST + Stamp duty and registration charges as applicable; pay delay compensation in the form of interest @9% per annum on the amount deposited by the complainant from 19.03.2015 till 23.01.2021 within 30 days, failing which, the interest would be payable @12% per annum on it.; pay Rs.2/- lacs, as compensation for mental agony and harassment and Rs.50000/- as litigation cost within 30 days, failing which, the interest would be payable @9% per annum on it.
4. Mrs.Urmila Gour (respondent-1) filed CC/130/2020 for directing the appellant and respondents-2-16 to pay delay compensation in the form of interest on her deposit from 20.09.2015 till 06.02.2020. The complainant stated that Athena Infrastructure Limited (OP-1) was a company registered under the Companies Act, 1956 and OPs-2 to 7 were its directors. India Bulls Real Estate Limited (OP-8) was a company registered under the Companies Act, 1956 and OPs-9 to 16 were its chairman/directors. India Bulls Real Estate Limited (OP-8) launched a group housing project in the name of "Enigma" at Section 110, Dwarka Express Highway, Gurgaon in January, 2010 and made wide publicity of its amenities and facilities, which was later on undertaken by Athena Infrastructure Limited (OP-1). Believing upon the representations of the OPs, the complainant booked Unit No.I-011, a 5BHK + SQ flat with 3 car parking and deposited booking amount of Rs.5/- lacs on 20.03.2012. The OPs got her signatures on Flat Buyer's Agreement sometime in the year 2013. As per demands of the OPs, the complainant deposited Rs.13810958/- till 05.12.2013. Cost sheet of the flat allotted to the complainant dated 14.01.2014 shows that total price of the flat was Rs.17330200/-. Clause-21 of the FBA provides that the construction shall be completed within three years with six months grace period from the date of execution of the FBA subject to timely payment by the buyer. The period of three years six months expired on 20.09.2015. The OP issued letter dated 06.02.2020 as 'offer of possession' with final demand of Rs.4804155/-. The amount has to be deposited till 06.04.2020 but lockdown was imposed in the country on 24.03.2020. When the complainant contacted with senior manager of OP-1 on phone, she informed that once lockdown opens, a fresh schedule be provided to deposit the amount. Clause-22 of the FBA provides for delay compensation @Rs.5/- per sq.ft. per month of the super area, which constitutes 2-3% interest on her deposit while under clause 11 of the FBA, the OPs are charging 18% interest, compounded quarterly on delay payment of the instalment. In order to avoid payment of delay compensation, the OPs took stand that the complainant had not signed the FBA although FBA with endorsement no.202731 duly attested and floated by the developer was signed as early as in 2013. Through a belated letter dated 29.05.2017, OPs-1 to 8 conveyed that two sets of FBA (unsigned) had been sent through courier dated 06.05.2017, although as per Real Estate Regulation and Development Act, 2016 (RERA), FBA is required to be executed and registered. The office of the OPs sent an email dated 26.07.2018 that they were in process of preparing Buyer's Agreement to be signed and registered as per RERA. Deposit of consideration is relevant for payment of delay compensation and not the signing of the FBA. The OPs have never intimated the complainant that the construction was stopped due to force majeure. The complainant was entitled for delay compensation from 20.09.2015 till 06.02.2020. On these allegations, the complaint was filed on 07.08.2020.
5. The appellant filed its written reply stating that it entered into collaboration with Varali Properties Limited and obtained Development Licence No.64 of 2012 dated 20.06.2012 for development of the project (in an area of 3.256 acres land). The complainant moved an application on 16.06.2012 for allotment of Unit No.I-011, a 5BHK + SQ flat with 3 car parking in the project "Enigma" before OP-1 and deposited an amount of Rs.5/ lacs, which was en-cashed on 16.07.2012. Date of allotment cannot be 20.03.2012 i.e. prior to payment. When OP-1 started construction, it was noticed that some alternation is required in layout plan in the interest of allottees as such OP-1 applied for sanction of revised layout. OP-1 gave public notice of the revised layout plan, published in the newspapers on 07.02.2013, inviting objection/suggestion of the allottees. Revised layout plan was approved on 23.08.2013. National Green Tribunal, Principal Bench, Delhi used to stopp construction works for a period of 15-20 days at a time in Delhi NCR time to time during 2014 to 2016 in OA. No.21 of 2014 Vardaman Kaushik Vs. Union of India due to deteriorating ambient air quality. On coming into force of RERA and notification of HRERA, OP-1 applied for registration of the project with HRERA in July and October, 2017, which was registered on 20.11.2017. OP-1 completed the construction and applied for issue of 'occupation certificate' on 30.04.2018, which was issued on 17.09.2018. Then the letter offering possession with final demand was issued on 06.02.2020. Clause-39 of the FBA provides that if the construction is delayed for force majeure reason, the developer will be entitled for extension of that period. The construction was delayed due to orders of NGT stopping construction, intervention of RERA and delay in issue of 'occupation certificate'. OP-1 is entitled for extension of that period. The complainant deliberately did not sign FBA as such the complainant is not entitled to any delay compensation. As per allegation of the complainant claimed delay compensation for a period of 4 years 9 months 24 days and cause of action for which arose on 20.09.2015 as such the complaint filed on 07.08.2020 is time barred. The complaint has been filed with malafide intention to extract money and is liable to be dismissed.
6. State Commission, after hearing the parties, by the impugned order found that the complainant was a consumer and the complaint is maintainable. OP-2 to 16 were necessary parties in the complainant. The complainant deposited Rs.13810958/- during 20.03.2012 to 05.12.2013 and Rs.15/- lacs on 10.06.2020, yet possession has not been delivered as such the OPs committed deficiency in service. Non-execution of the FBA does not affect the right of the complainant inasmuch as the OPs have realized about 75% consideration. Three years period as provided in clause-21 of the FBA has to be counted from the date of first payment and completed on 19.03.2015 while possession was delivered on 23.01.2021, in compliance of the direction of the Commission dated 16.12.2020. On these findings the complaint was partly allowed and order as stated above was passed. Hence this appeal has been filed.
7. We have considered the arguments of the parties and examined the record. State Commission considered the date 20.03.2012 i.e. the date of issue of first cheque of Rs.5/- lacs by the complainant at the time of booking, as the date of the agreement. State Commission has failed to consider that prior of enforcement of the RERA, there was no prohibition in State of Haryana for booking in pre-launched housing project. The appellant has stated that Development Licence No.64 of 2012 dated 20.06.2012 for development of the project (in an area of 3.256 acres land) was obtained by it. First cheque deposited by the complainant was en-cashed on 16.06.2012 and tentative allotment was done on that day. As per Payment Plan as contained in FBA, 20% of the consideration had to be deposited within 60 days of the booking. For confirmation of the booking Rs.3104000/- has to be deposited which was deposited by the complainant on 18.08.2012. As such the period of three years and six months has to be counted from 18.08.2012 and due date of possession would be 17.02.2016 and not 19.03.2015 as held by the State Commission.
8. Liability of the developer to pay delay compensation terminates on the date of offer of possession. Admittedly possession was offered on 06.02.2020 with final demand of Rs.4804155/-. The complainant deposited Rs.15/- lacs on 10.06.2020. As per order of the State Commission, the complainant had to deposit Rs.2019242- + Service tax/GST + Stamp duty and registration charges as applicable. Handing over possession is subject to final payment. State Commission has illegally extended liability to pay delay compensation till the date of actual possession i.e. 23.01.2021 although the complainant herself has claimed delay compensation till 06.02.2020, which was correctly claimed. There is nothing on record to prove that after deposit of final payment, the appellant had deliberately delay possession as such liability for delay compensation could not be extended till the date of delivery of possession.
9. We have also checked the calculation done by State Commission in paragraph-23 of the impugned judgment. According the State Commission total consideration payable was Rs.17330200/-. According to the appellant total consideration payable was Rs.17706533/-. As per payment plan, payment and charges as per clause-6 of the agreement was also payable but the State Commission has not considered it in paragraph-23 of the judgment. The case law as relied upon by the counsel for respondent in Utpal Trehan Vs. DLF Home Developer Limited, (2022) 10 SCC 409 will not apply in this case as final demand in the present case is not illegal. So far as delay compensation is concerned, non-offering of delay compensation, which according to the appellant was not payable as delay has occurred due to force majeure reasons and in the absence of any agreement between the parties, it was not payable. It is a debatable issue and on its basis final demand cannot be said to be illegal.
10. A three members Bench of Supreme Court in DLF Home Developers Pvt. Ltd. Vs. Capital Greens Flat Buyers Association, (2021) 5 SCC 537, held that 6% interest on the deposit of home buyers for the delayed period is appropriate delayed compensation. State Commission has illegally ignored the larger Bench judgment of Supreme Court and awarded delay compensation @9% per annum of the deposit of the complainant.
11. So far as the arguments of the appellant that the construction was delayed for force majeure reasons, is concerned, the appellant has not given any information to the home buyers about stopping construction by NGT. In any case, the appellant has realized 75% consideration in the year 2013 as such there was no justification for delaying construction. In any case, the appellant is taking benefit of grace period in order to meet out such contingencies.
ORDER
In view of aforesaid discussions, the appeal is partly allowed. The order of State Commission dated 27.05.2022 passed in CC/130/2022 is modified and it is held that the appellant is liable to pay delay compensation from 18.02.2016 till 06.02.2020 in the form of interest @6% per annum on the deposit of respondent-1. The appellant is entitled to charge interest on the balance amount @9% per annum after 06.04.2020 till the date of deposit. Excess amount realized by respondent-1 in execution of the impugned order will be returned to the appellant within one month from the date of statement of account supplied by the appellant to respondent-1 in respect of excess amount. Failing in refund as directed, respondent-1 will be liable to pay interest on it @9% per annum.
..................................................J RAM SURAT RAM MAURYA PRESIDING MEMBER ............................................. BHARATKUMAR PANDYA MEMBER