National Consumer Disputes Redressal
Vishal Malik & Anr. vs Pioneer Urban Land And Infrastructure ... on 29 March, 2019
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1238 OF 2017 1. VISHAL MALIK & ANR. S/o. Late Mohinder Kumar Malik, K-40, Kalkaji, New Delhi - 110 019. 2. Mrs. Meena Malik W/o. Mr. Vishal Malik, K-40 Kalkaji, Nwe Delhi - 110 019. ...........Complainant(s) Versus 1. PIONEER URBAN LAND AND INFRASTRUCTURE LTD. Through Its Directors, Paras Downtown Centre, 7th Floor Golf Courser Road, Sector -53, Gurgaon Haryana - 122 002. ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER
For the Complainant : Mr. Aditya Parolia, Advocate
Mr. Kumar Pradyuman, Advocate For the Opp.Party : Mr. Nikhil Nayyar, Advocate
Mr. T.V.S. Raghavendra, Advocate
Ms. Gayatri Gulati, Advocate
Dated : 29 Mar 2019 ORDER
MR. JUSTICE V.K.JAIN (ORAL)
The complainants booked a residential flat with the opposite party in a project, namely, Araya, which the opposite party was seeking to develop at Village Ghatta, Sector-62 of Gurgaon. Unit No. C-2302 in Tower-C of the project was allotted to the complainant pursuant to the booking made by them on 17.4.2012. The parties then executed a Buyers Agreement dated 25.5.2012. As per Clause 11.2 of the Buyers Agreement, the developer was to make all efforts to apply for the Occupancy Certificate within 39 months from the date of excavation though it was also entitled to a grace period of 180 days. As per Clause 11.5 of the Agreement, the possession was to be delivered to the complainant within 45 months from the date of excavation. The construction, therefore, was expected to be completed within 45 months from the start of the excavation. Admittedly, excavation of the tower in which the flat allotted to the complainants was located, started on 4.6.2012. The construction, therefore, should have been completed by 4.3.2016.
2. The grievance of the complainants is that the possession of the allotted flat has not been offered to them despite they having already paid Rs.41231546/- to the opposite party as against the total consideration of Rs.44169244/-. The complaints are, therefore before this Commission with the following prayers:-
Direct the Opposite Party to handover possession of Unit to the Complainant, complete in all respects and in conformity with Apartment Buyers' Agreement, 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 Complainant within 8 months of this petition being filed before this Hon'ble Commission or as directed by the Commission;
Direct the Opposite Party for an immediate 100% refund of the total amount, including taxes and charges, paid by the Complainant, along with a penal interest of 18% per annum from the date of the receipt of the payments made to the Opposite Party, in case the Opposite Party cannot deliver or fails to deliver the absolute, complete and final possession of the flat within a period of 8 months of this petition being filed before this Hon'ble Commission or as directed by this Hon'ble Commission;
Direct the Opposite Party to pay interest @12% per annum on the amount deposited by the Complainant with the Opposite Party, with effect from August 2015 i.e. date when possession was promised, till the date of actual possession as per clause (i) above 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 Complainant;
Direct the Opposite Party to provide adequate car parking space and to refund the amount charged towards car parking space along with interest @ 18% from the date when the payment was made;
Direct the Opposite Party to pay Rs.6000/- (Rupees Six Thousand Only) per day in case the Opposite Party fails to deliver the Unit within 8 months or as directed by this Hon'ble Commission;
Direct the Opposite Party to pay compensation of Rs.1,00,000/(Rupees One Lakh Only) to the Complainant, due to the 'exclusive' club now being shared with Project 'Presidia';
Direct the Opposite Party to pay compensation of Rs.20,00,000/(Rupees Twenty Lakhs Only) to the Complainant 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;
Direct the Opposite Party to pay a sum of Rs.1,50,000/(Rupees One Lakh Fifty Thousand Only) to the Complainant as a whole, towards litigation costs;
Direct the Opposite Party to refund wrongfully charged taxes and other charges along with the interest on that amount at the rate of 12% from the date of receipt of such wrongfully levied charges and taxes;"
3. The complaint has been resisted by the opposite party which has sought to justify the delay in completion of the construction on the ground that the said delay happened on account of reasons beyond its control. The learned counsel for the opposite party, however, states on instructions that the opposite party is ready to deliver possession of the allotted flat to the complainants on or before 30.6.2019.
4. It is not disputed before me that the delay in completion of construction is sought to be justified on the grounds which this Commission has already rejected in CC/239/2017 - Govindran Raghavan Vs. Pioneer Urban Land & Infrastructure Ltd., decided on 23.10.2018. The said grounds, therefore, need not be revisited in this complaint.
5. The decision of this Commission in Govindran Raghavan (supra) to the extent it is relevant for the purpose of this complaint, reads as under:-
"3. The complaints have been resisted by the OP which had admitted the allotment made to the complainants as well as the payment received from them. It is inter-alia stated in the written version filed by the OP that the construction could not be completed within the stipulated time on account of reasons beyond its control. The said reasons, according to the OP, are as under:
(a) The delay on the part of several flat buyers in making timely payment, (b) the dispute of the developer with the contractor, (c) shortage of water, (d) Lack of infrastructural support from the State Government, (e) Shortage of raw material, (f) Delay in approvals, (g) Jat reservation agitation, (h) NGT order stopping construction and (i) Demonetization of the currency.
4. As far as the delay on the part of the several flat buyers is concerned, admittedly, the OP had a right to cancel the allotment due to the alleged non-payments. After cancelling the allotments made to the defaulting customers, the OP could have sold those flats in the open market to other willing buyers. Having not exercised the right available to it, to cancel the allotment on account of the alleged non-payment, the OP, in my view, cannot deny refund and compensation to the flat buyers who have been making payments in time or from whom interest for delay in payment has been charged. Therefore, I find no merit in the aforesaid ground.
6. As far as the alleged dispute with the contractor is concerned, the case of the OP is that initially, the work was awarded to M/s Urban Eco Infra Pvt. Ltd. which did not maintain the assured timeline and therefore, the OP took over the construction work from the said contactor and awarded the same to another contractor M/s Leighton Contractors Pvt. Ltd. In my view, the dispute if any, between OP and the contractor engaged by it, cannot justify the delay in completion of the construction. If the OP suffers any loss or has to pay compensation/damages on account of the delay committed by the contractor engaged by it, it will be entitled to avail such remedy as may be available to it in law against the contractor responsible for the delay, but it cannot deny refund and a fair compensation to a flat buyer who does not wish to wait any more for the possession of the alleged flat and wants refund of the money paid by him alongwith compensation.
7. As far as the alleged water shortage and labour shortage is concerned, there is no evidence on record to prove that no water or labour was actually available in the market at the relevant time to carry out construction. The delay cannot be justified on such bald allegations without substantiating the same by hard evidence showing actual non-availability of water and labour in the market.
8. As far as the alleged delay on the part of the Government agencies in laying infrastructure is concerned, there is no evidence of any particular timeline having been committed by such agencies to the developer for laying infrastructure and having not maintained the said timeline. As far as the alleged shortage of raw material is concerned, the case of the OP is that sand was not available in the vicinity of the complex due to restriction on mining imposed in Aravali region and therefore, they had to procure sand from the neighbouring city of Rajasthan. In its written version, the OP has referred to an order dated 08.05.2009 stated to have been passed by the Hon'ble Supreme Court stopping the mining operations in Aravali range. The agreement with the complainant having been executed much much later on 04.06.2012, the said order was already in the knowledge of the developer and therefore, it knew that it will have to procure sand from other places, on account of mining having been stopped in Aravali region. Therefore, shortage of sand in Aravali region cannot be a good ground for delaying the construction.
9. As regards the delay in grant of approvals from the State Government is concerned, neither any particulars of the alleged delay have been given nor any evidence has been led to prove that there was abnormal delay on the part of Government Authorities in granting approval and the said delay had contributed to the delay in completion of the construction.
10. As regards the Jat reservation agitation, there is no evidence of the said agitation having actually resulted in stoppage of work at the site of the project. More importantly, the aforesaid protest is stated to have started in February 2016 whereas the construction was required to be completed by September 2015, much before the said agitation started in Gurgaon.
11. As regards NGT having stopped construction in April 2015 and November 2016, no order of NGT passed in April 2015 and stopping construction on the project in question has been placed on record. As far as the order of NGT dated 08.11.2016 is concerned, that came to be passed much later than the last date stipulated in the Buyers Agreement for completion of the construction. Moreover, the said order was operative only for a period of one week.
12. As far as demonetization is concerned, I fail to appreciate how it could have affected the construction since there was no restriction on payment by means of cheques/demand drafts and through other modes of banking transactions. Moreover, the demonetization came to force on 08.11.2016, much after the last date stipulated for completion of the construction had already expired.
13. The learned counsel for the OP has drawn my attention to clause 11.5 (ii) & (iv) and clause 20 of the agreement which read as under:
11.5. (ii) In the event of further delay by the Developer in handing over of the possession of the Unit even after 12 months from the end of grace period, then in such case, the intending Allottee shall have an additional option to terminate this Agreement by giving termination notice of 90 days to the Developer and refund of the actual installment paid by him against the Unit after adjusting the taxes paid/interest/penalty on delayed payments.
(iv) Developer shall, within ninety (90) days from the date of receipt of termination notice of said Unit, refund to the intending Allottee, all the monies received excluding the service tax collected on various remittances, till the date of refund, from the intending Allottee under this Agreement. In case the Developer fails to refund the Sale Price, the Developer shall pay interest to the intending Allottee @ 9% per annum for any period beyond the said period of ninety (90) days. The intending Allottee shall have no other claim against the Developer in respect of the said Unit alongwith the parking space. The intending Allottee in this event shall have no right to seek any compensation apartment from the interest as stipulated herein.
20. RIGHT OF CANCELLATION BY THE ALLOTTEE
Except to the extent specifically and expressly stated elsewhere in this Agreement, the intending Allottee shall have the right to cancel this Agreement solely in the event of the clear and unambiguous failure of the warranties of the Developer that leads to frustration of the contract on that account. In such case, the Allottee shall be entitled to a refund of the installments actually paid by it alongwith interest thereon @ 6% per annum, within a period of 90 days from the date of communication to the Developer in this regard less any payments made towards taxes paid by the Developer or interest paid, due or payable, any other amount of a non-refundable nature. No other claim, whatsoever, monetary or otherwise shall lie against the Developer nor shall be raised otherwise or in any manner whatsoever by the Allottee. Save and except to this limited extent, the Allottee shall not have any right to cancel this Agreement on any ground whatsoever.
Relying upon the aforesaid clauses contained in the agreement, it is contended by the learned counsel for the OP that though the complainants did not exercise the option to terminate the agreement despite delay of more than 12 months from the end of the grace period, had they exercised the said option, they would have been entitled only to refund with interest @ 9% per annum after deduction of the service tax or in any case they had exercised the option available in clause 20, they would have been entitled to refund that interest @ 6% per annum, after deduction of taxes and other amount of a non-refundable nature paid by them. Somewhat similar clauses came up for consideration of this Commission in CC No. 2000 of 2016 Geeta Bansal Vs. M/s Ireo Grace Realtech Pvt. Ltd. & Ors. decided on 24.09.2018. The clauses relied upon in Geeta Bansal (supra), read as under:
43. Subject to Force Majeure, as defined herein and further subject to the applicant having complied with all its obligations under the terms and conditions of this Agreement and the applicant not having defaulted under any provision(s) of this Agreement including but not limited to the timely payment of the total Sale Consideration, stamp duty and other charges prescribed by the Company, the Company proposes to offer the possession of the said Apartment to the applicant within a period of 42 months from the date of approval of the building plans and/or fulfillment of the pre-conditions imposed thereunder ("Commitment Period"). The applicant further agrees and understands that the Company shall additionally be entitled to a period of 180 (6 months) days ("Grace Period"), after the expiry of the said commitment period to allow for unforeseen delays beyond the reasonable control of the Company. Subject to the condition contained herein, if the Company fails to offer possession of the said apartment to the applicant by the end of the Grace Period, it shall be liable to pay to the applicant compensation calculated at the rate of Rs. 7.5/- (Rupees Seven and Fifty Paisa only) per sq. ft. of Super Area ("Delay Compensation") for every month of delay thereafter until the actual date fixed by the Company for offering the possession of the said such 'Delay Compensation' only at the time of 'Notice of Possession' or at the time of payment of the final installment, whichever is earlier.
44. Subject to the above, in the event of delay by the Company in offering the possession of the said Apartment beyond a period of 12 months from the end of the Grace Period (such month period hereinafter referred to as the 'Extended Delay Period' then the applicant shall become entitled to opt for termination of the Agreement and refund of the actual paid up installment paid by it against the said Apartment. It is clarified that the delay compensation calculated for the fixed period of 12 months only shall be paid by the Company alongwith the installments refundable under this Clause without any interest. This option may be exercised by the applicant only up till dispatch of the Notice of Possession by the Company to the Applicant. No other claim, whatsoever, monetary or otherwise shall lie against the Company nor be raised otherwise or in any other manner by the Applicant.
49. Notwithstanding anything contained in this Agreement, timely performance by the applicant of all its obligations under this Agreement, including without limitation, its obligations to make timely payment of the Sale Consideration, maintenance charges and other deposits and amounts, including any interest, in accordance with this agreement shall be of essence under this Agreement. If the applicant neglects, omits, ignores, or fails in the timely performance of its obligations agreed or stipulated herein for any reason whatsoever or to pay in time to the Company any of the installments or other amounts and charges due and payable by the Applicant by respective due dates, the Company shall be entitled to cancel the allotment and terminate this Agreement in the manner described hereunder.
Clause 21.3 of the Buyers Agreement on which reliance was placed by the learned counsel for the OPs, reads as under:
21.3 The allottee understands, agrees and consents that upon such termination, the Company shall be under no obligation save and except to refund the amounts already paid by the Allottee to the Company, without any interest, and after forfeiting and deducting the Earnest Money, interest on delayed payments, brokerage/commission/charges, service tax and other amounts due and payable to it, only after resale of the said Apartment. Upon termination of this Agreement by the Company, save for the right to refund, if any to the extent agreed hereinabove, the Allottee shall have no further right or claim against the Company and/or the Confirming Parties which, if any, shall be deemed to have been waived off by the Allottee and the Allottee hereby expressly consents thereto. The Company shall thenceforth be free to deal with the said Apartment in any manner whatsoever, in its sole and absolute discretion and in the event that the Allottee has taken possession of the said Apartment and everything whatsoever contained therein and in such event, the Allottee and/or any other person/occupant of the said Apartment shall immediately vacate the said Apartment and otherwise be liable to immediate ejectment as an unlawful occupant/trespasser. This is without prejudice to any other rights available to the Company against the Allottee.
Rejecting the contentions based upon the aforesaid clauses of the Buyers Agreement, this Commission inter-alia held as under:
11. As far as clause 44 of the indicators from the terms and conditions of the Apartment Buyers Agreement is concerned, this Commission has vide its order dated 18.09.2018 passed in CC No.190/2017 and connected matters, has already held that the said clause is wholly unfair besides being one sided and therefore, refund of the principal amount with appropriate compensation can be directed by this Commission despite the said clause The decision of this Commission in CC No.190/2017, to the extent it is relevant, reads as under:
7. The learned senior counsel for the OP has drawn my attention to clause 44 of the terms and conditions, extracted hereinabove and he submits that the aforesaid clause gives only a limited right to the complainants to terminate the agreement and seek refund of the amount paid by them. He also submits that in terms of the aforesaid clause, the contract could be terminated after a delay of at least 12 months, and only the delay compensation in terms of the agreement, for twelve months, is payable alongwith installments refundable to the allottee without any interest. However, in my view, since the OP failed to deliver possession of the allotted flats to the aforesaid complainants, it amounted to a deficiency in rendering service to them and therefore, this Commission is entitled to direct refund of the amount paid by them to the OP alongwith appropriate compensation. In my view, clause 44 which postpones the right of the flat buyer to terminate the agreement and seek compensation even after the grace period has expired, is wholly unfair besides being one sided and therefore, refund of the principal amount with appropriate compensation can be directed by this Commission despite clause 44 extracted hereinabove.
12. As far as clause 21.3 of the Buyers Agreement extracted hereinabove is concerned, the said clause, when read in conjunction with the other clauses of the agreement extracted hereinabove, is patently unfair, besides being one sided. If these clauses are given effect, it would result in a situation where a flat buyer, despite the failure of the builder to offer possession within the time stipulated in this regard and without there being any justification for doing so, will be practically remediless for 1½ years from the date of the default, no interest or compensation will be paid to him for the period his money is utilized by the builder, and even the principal amount will be repaid to him in an uncertain future, when the builder has already sold the apartment which was allotted to him. Such a term in the contract would be wholly one sided, unfair and unjust particularly when examined in the light of the fact that as far as the builder is concerned, he has a right to terminate the transaction in the event of even a single default on the part of the flat buyer and not only forfeit the earnest money but also deduct the other charges specified in clause 21.3 of the Buyers Agreement.
14. The learned counsel for the OPs submits that the parties having agreed to all the above referred stipulations, are bound by the same and cannot be allowed to have a grievance at a later date claiming the same to be unfair or one sided. No doubt the parties are ordinarily bound by the terms and conditions agreed between them in respect of a particular transaction, but the position would be altogether different where such terms are found to be wholly one sided and unfair, operating only to the detriment of the flat buyers without any corresponding detriment to the builder.
15. If a builder fails to deliver possession of the flat/plot booked with him, within the time period committed for this purpose and is unable to justify the said delay, this, in my opinion, would constitute a defect or deficiency in the services rendered by him to the buyer and in such a case, this Commission, in exercise of the powers conferred upon it by Section 14(1)(c)&(d) of the Consumer Protection Act would be competent to direct refund of the amount paid by the buyer to the builder, alongwith appropriate compensation for the loss or injury suffered by the buyer due to the defect/deficiency in the services rendered to him by the builder.
14. Therefore, the clauses on which reliance is placed by the learned counsel for the OP being wholly one sided and unfair, the complainants would not be bound by the same and if the developer is unable to justify the delay, this Commission would be competent to direct refund of the amount payable by them to the developer alongwith appropriate compensation."
6. The learned counsel for the complainants states on instructions that the complainants are ready and willing to take possession of the allotted flat if offered on or before 30.6.2019 alongwith compensation in the form of simple interest @ 8% p.a. from the committed date for delivery of possession till the date on which the possession is actually offered to the complainants after obtaining the requisite Occupancy Certificate.
7. The learned counsel for the opposite party, however, submits that the complainants are not entitled to compensation based upon interest and are at best entitled to rental value of a similar flat for the period the possession has been delayed. In support of his contention, the learned counsel for the opposite party relies upon the decisions of the Hon'ble Supreme Court in Bangalore Development Authority Vs. Syndicate Bank [(2007) 6 SCC 711], decided on 17.5.2007, Ghaziabad Development Authority Vs. Union of India [(2000) 6 SCC 113] decided on 12.5.2000and Fortune Infrastructure (Now known as M/s Hicon Infrastructure) & Anr. Vs. Trevor D'Lima & Ors. [(2018) 5 SCC 442] decided on 12.3.2018.
8. In Bangalore Development Authority (supra), the Hon'ble Supreme Court was dealing with a case relating to allotment of residential flats constructed by Bangalore Development Authority under a Self-Financing Housing Scheme. The Hon'ble Supreme Court interalia observed that the allottee who accepts possession and had the benefit of appreciation of the house is not entitled to interest on the price paid and, therefore, the direction of this Commission awarding interest @ 18% p.a. was set aside. The Hon'ble Supreme Court further observed that the loss of the allottee was the rental income which the house would have fetched had it been delivered earlier, from the agreed due date to the date of actually delivery of possession. It was also noted that no evidence to prove the prevalent rent was produced though this was not case of the complainant that such an evidence was not available. After making the above-referred observations, the Hon'ble Supreme Court also dealt with the question as to whether there was actually any negligence and deficiency on the part of Bangalore Development Authority in service necessitating the award of compensation or not. It was noted that the brochure relating to BDA Scheme did not mention any specific date for the delivery of possession of the house and no agreement was entered into between the parties stipulating any time for performance or delivery of houses. It was further noted that the scheme being a self-financing scheme, the allottee could not expect completion of construction if he did not pay the installments. It was further noted that the payment had been received by BDA without charging any interest from the allottee by way of adjustment, at a much later date on 15.5.1989. It was also noted that BDA had explained that the delay was on account of contractor stopping e wok and raising a dispute whereupon BDA sought government intervention and having failed in its efforts it ultimately cancelled the contract with the contractor and got the work completed through an alternative agency. The Hon'ble Court emphasized that that the BDA was constructing the houses under self-financing scheme on no profit no loss basis by using the installments paid by the allottees. The above-referred judgement, in my opinion, would not apply to the case of a private builder such as the opposite party in this case which undertakes development activity for making profit and not on a no profit no loss basis. In a venture undertaken by a public body such as Bangalore Development Authority on no profit no loss basis, the compensation if awarded against the development authority will have to come out of the public funds. On the other hand, a private builder undertakes such an activity for the purpose of making profit out of it and therefore, the compensation if awarded to the allottee goes out of the profits which the builder seeks to make out of the venture undertaken by him. Moreover, in the present case a specific time limit was fixed in the agreement itself for completion of the construction and even a grace period of six months was kept reserved by the builder for unforeseen circumstances. On the other hand, no such time limit had been fixed in Bangalore Development Authority (supra). Also, no evidence of appreciation in the value of the flat has been led. Hence, it cannot be known as to whether there was any appreciation and if so, to what extent.
9. If the allottee is paid only the potential rental value of the house booked by him which otherwise it is very difficult to prove for a consumer, it would result in a situation where the builder, after collecting funds from the allottees, diverts those funds to another project undertaken by him or for his other business purposes and there is no compulsion on him to complete the construction within the time stipulated by him with the flat buyers. He would in that case, be inclined to prolong the construction, knowing it well that he would at best have to pay the potential rental value of the apartment to the flat buyer, such rental value being only a fraction of the interest which the builder would have to pay if he arranges funds from other sources such as banks and financial institutions. It would therefore, be necessary in such cases where a private builder undertakes development of a project and commits a timeline for completion of the construction, to award such compensation which would dissuade the builder from engaging into an unfair trade practice in diverting the funds collected from the flat buyers to the other projects undertaken by him or to his other business ventures and activities.
10. To put it in another way if a private builder despite collecting the price from the flat buyers does not complete the construction, the money of the flat buyer should be taken as a deposit with the builder which he uses for his business purposes and therefore, compensation payable to the buyer needs to be worked out considering also the benefit which the private builder derives from using the funds collected from the flat buyers.
11. In Ghaziabad Development Authority Vs. Union of India (supra), the question before the Hon'ble Supreme Court was whether compensation could be awarded for mental agony suffered by the claimants and whether in the absence of any contract or promise, held out by the Ghaziabad Development Authority any amount by way of interest could be directed to be paid by MRTP Commission. In para 6 of the decision, the Hon'ble Supreme Court interalia observed as under:-
"6. The ordinary heads of damages allowable in contracts for sale of land are settled. A vendor who breaks the contract by failing to convey the land to the purchaser is liable to damages for the purchaser's loss of bargain by paying the market value of the property at the fixed time for completion less the contract price. The purchaser may claim the loss of profit he intended to make from a particular use of the land if the vendor had actual or imputed knowledge thereof. For delay in performance the normal nature of damages is the value of the use of the land for the period of delay, viz. usually its rental value (See Chitty on Contracts, ibid, para 26.045).
7. In our opinion, compensation for mental agony could not have been awarded as has been done by the MRTP Commission."
The above-referred judgment in my view would not apply to the present case since difference between the value of the flat at the time it was booked and its current value is not being paid to the complainant. Moreover, in Ghaziabad Development Authority Vs. Balbir Singh [(2004) 5 SCC 65, decided on 17.5.2004, the Hon'ble Supreme Court expressly recognized that compensation can be paid to a consumer even for the harassment suffered by him even at the hands of a public authority. As far as a private builder is concerned, the compensation can certainly be awarded in view of the powers conferred upon this Commission by Section 14 of the C.P. Act which expressly empowers this Commission to not only give a direction for removal of the defects in the goods or deficiencies in the services in question but also to pay such amount as may be awarded by it as compensation for any loss or injury suffered by the consumer due to the negligence of the opposite party. If the possession of a residential house booked by a person is not delivered to him without any justification, within the timeframe stipulated in the agreement executed within it, it would in my opinion, be a case of deficiency on the part of developer in rendering services to him and therefore in addition to giving a direction for delivery of possession of the house, this Commission is also competent to award appropriate compensation.
12. In M/s Supertech Ltd. Vs. Rajni Goyal [Civil Appeal Nos.6649-50 of 2018] decided by the Hon'ble Supreme Court on 23.10.2018, this Commission while directing delivery of possession of the allotted flat to the complainant / respondent before the Hon'ble Supreme Court had also directed the builder, appellant before the Hon'ble Supreme Court, to pay compensation to him in the form of interest @ 8% p.a. The direction for payment of the interest @ 8% p.a. was upheld by the Hon'ble Supreme Court, though the period upto which the compensation was payable was restricted till the date on which the occupancy certificate had been obtained. Thus, the award of compensation for the delay in delivery of possession, by way of interest @ 8% p.a. w.e.f. the committed date for delivery of possession has been upheld by the Hon'ble Supreme Court in the above-referred recent decision.
14. For the reasons stated hereinabove, the complaint is disposed of with the following directions:-
(i) The opposite party shall complete the construction of the flat allotted to the complainants in all respects, obtain the requisite Occupancy Certificate at its own cost and responsibility and offer possession of the said flat to the complainants on or before 30.6.2019.
(ii) The opposite party shall pay compensation in the form of simple interest @ 8% p.a. to the complainants w.e.f. 4.3.2016, till the date on which the possession in terms of this order is actually offered, on the entire amount which the complainants had paid to it on or before 4.3.2016.
(iii) If the opposite party fails to obtain the requisite Occupancy Certificate and/or offer possession to the complainants in terms of this order, it shall refund the entire amount received from the complainants to them along with compensation in the form of simple interest @ 10.75% p.a. from the date of each payment till the date of refund. The said rate of interest is based upon the rates notified under Rule 15 of Haryana Real Estate (Regulation And Development) Rules 2017 which inter-alia provide for payment of interest by the promoter to the allottee at State Bank of India highest marginal cost of lending + 2%.
(iv) The opposite party shall also pay Rs.25,000/- as the cost of litigation to the complainants.
......................J V.K. JAIN PRESIDING MEMBER