National Consumer Disputes Redressal
Para Military Forces Welfare Society vs M/S. Sidhartha Buildhome Pvt. Ltd. on 12 September, 2019
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 371 OF 2015 1. PARA MILITARY FORCES WELFARE SOCIETY Through Its President, Registered office at Tower 7, Flat No. 1104, BSF Tower, Valley View Estate, Gwalpahari, Gurgaon Haryana ...........Complainant(s) Versus 1. M/S. SIDHARTHA BUILDHOME PVT. LTD. Plot No. 128 G.F., Sector - 44, Gurgaon - 122 003. ...........Opp.Party(s) CONSUMER CASE NO. 372 OF 2015 1. PARA MILITARY FORCES WELFARE SOCIETY Through Its President, Registered office at Tower 7, Flat No. 1104, BSF Tower Valley View Estate, Gwalpahari, Gurgaon Haryana ...........Complainant(s) Versus 1. M/S. SIDHARTHA BUILDHOME PVT. LTD. Plot No. 128 G.F, Sector -44, Gurgaon -122 003. ...........Opp.Party(s) CONSUMER CASE NO. 373 OF 2015 1. PARA MILITARY FORCES WELFARE SOCIETY Through Its President, Registered Office at Tower 7, Flat No. 1104, BSF Tower Valley View Estate, Gwalpahari, Gurgaon Haryana ...........Complainant(s) Versus 1. M/S. SIDHARTHA BUILDHOME PVT. LTD. Plot No. 128 G.F., Sector -44, Gurgaon - 122 003. ...........Opp.Party(s) CONSUMER CASE NO. 374 OF 2015 1. PARA MILITARY FORCES WELFARE SOCIETY Through Its President, Registerd Office at Tower 7, Flat No. 1104, BSF Tower Valley View Estate, Gwalpahari, Gurgaon Haryana ...........Complainant(s) Versus 1. M/S. SIDHARTHA BUILDHOME PVT. LTD. Plot No. 128 G.F, Sector -44, Gurgaon - 122 003. ...........Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER
For the Complainant : Mr. Sukumar Pattjoshi, Sr. Advocate Mr. Sunil Mund, Advocate Mr. Amit Kumar, Advocate Mr. Manoj Kumar, Advocate For the Opp.Party : Mr. Peeyoosh Kalra, Advocate Mr. Sudhindra Tripathi, Advocate Ms. Sona Babbar, Advocate Dated : 12 Sep 2019 ORDER JUSTICE V.K. JAIN, PRESIDING MEMBER
The complainant is a society formed by the members of the Para Military Forces, and is registered under the provisions of Society Registration Act. One of the aims and objectives of the complainant society is to sue and file cases in any legal Forum or Consumer Court on behalf of its members. Other aims and objectives of the complainant include, to arrange loan for its members for acquiring, dwelling houses and to construct and develop or get constructed and developed schools, hospital, community centres etc. The complainant entered into a Memorandum of Understanding (MoU) with Pashupati Buildwell Pvt. Ltd. Predecessor of Sidhartha Buildhome Pvt. Ltd., the name by which the opposite party was known at the relevant time, on 05.11.2008, for booking residential flats on behalf of its members, in Sector - 95 of Gurgaon.
Some of the terms of the MoU executed between the parties read as under:
"(3) That, the prices of the flats and other charges as agreed between the parties are as under:
Basic Sale Price - Rs. 1701 per sqft.
EDC / IDC - As applicable PLC - NIL Covered car parking (a) - 1,50,000/- for basement stilt car parking (b) 1,10,000/-
Power back up - 15,000/kv I.B.M.S. - Rs. 50 per sqft.
Club membership - Rs. 25,000/-
Firefighting - Rs. 30 per sqft.
(4) That the paramilitary forces welfare society have proposed to book 200 assorted flats of 2, 3, 3+S and 4+S at the initial stage at the agreed rates for a period of 02 months from the date of MoU.
(5) That the builder may increase the basic sale price of the flat by Rs.150/- per sqft at his sole discretion after the expiry of initial period of 2 months. The increase in the basic sale price agreed with a view to accommodate the prospective members of society.
(6) ........ The builder shall have the obligation to handover the flat on completion to the allottee after obtaining occupation / completion and NOC from the competent authority in all respects for transfer of flat. (emphasis supplied) (8) That the payment of instalment shall be linked with the progress of construction as per the schedule attached at Appex-'E'. In case of delay in the payment of instalment, the allottee shall be liable to pay interest @ 12% per annum for the delayed period. Similarly, if the builder does not hand over the possession of the flat to the allottees within the agreed period, he shall be liable to pay an interest of 12% per annum for the delayed period except the circumstances which are beyond control.
9. That, all the flats with complete specification, as agreed and accepted will be constructed and completed in all respects by the builder within a period of three years and the possession will be handed over to the allottee members through society by builder within the period from the date of MOU with a grace period of two months. (emphasis supplied)
10. That, it has been mutually agreed and accepted that the builder will construct 200 dwelling units for the members of the society at one place / tower..........."
12. .............................. Final list of members will be handed over to the builder within the time of 3 months from the date of MoU or earlier .........
15. .................. Any change or modification in plans shall be mutually agreed between the parties subject to the cost payable by the allottee members for their allotted units. The carpet area covered area and super area of the flats shall be strictly in accordance with the Government policies." (emphasis supplied)
16. ............... The possession of the flat shall be handed over to the allottee complete in all respect within three years from the date of booking of the flat.............................."
2. The complainant, its members who booked apartments in the above referred project and the opposite party then executed individual flat buyers' agreement (FBA). Some of the terms of the FBA read as under:
"D. AND WHEREAS the DEVELOPER has specifically made it clear that the layout plan of NCRone as is presently approved by DTCP, Chandigarh / Haryana Govt. and the Buyer hereby agrees that it shall not be necessary on the part of the developer to seek consent / permission of the buyer for the purpose of making any changes in the approved layout plans and that the layout plan of the project NCRone, as may be amended and approved from time to time shall supersede the present approved layout plan as the case may be. The performance of the DEVELOPER of its obligation under the agreement will be as per the approved building plans by the DTCP Chandigarh / Haryana Govt. and any subsequent amendments / modifications in the building plans as may be by the Developer and approved by DTCP Chandigarh / Haryana Govt. from time to time." (emphasis supplied)
2. SUPER AREA AND CARPET AREA 2.1 The term 'super area' wherever appearing in the present agreement shall mean the sum of (i) the entire area of the said flat enclosed by its periphery walls including half of the area under common walls between two flats, and full area of wall in other cases; area under columns, cupboard, window projects and balconies ; and (ii) proportionate share of service areas to be utilized for common use and facilities, including but not limited to lobbies, staircase, circulation areas, lifts, shafts passage, corridors, stilts, lift machine room, area for water supply arrangements, maintenance office, security / fire control room etc. The method of calculation of super area stated herein shall be binding upon all the parties.
2.3 The super area of the said flat / apartment, as given in this agreement is only the tentative area and the actual size of the said flat may vary at the time of final measurement. The buyer undertakes and agrees that the final sale consideration of the flat, payable by it to the developer will be as per the actual super area of the said flat.
3.3 External Development Charges (EDC) and Infrastructure Development Charges (IDC) as demanded by DTCP/Haryana Urban Development Authority (HUDA) or any other authorities shall be payable in addition to the basic sale price. Subsequent increase / decrease, if any, in amount of EDC and / or IDC as may be notified by DTCP shall also be payable / deductible by the buyer when demanded,. Provision to this effect shall be incorporated in the sale / conveyance deed to be executed in favour of the Buyer. It has been made clear to the buyer and the buyer has understood and agreed that the EDC / IDC, as on date, is approx.. Rs.200/- per sq. ft. and the same is subject to increase / decrease as may be notified by DTCP from time to time and all such increase / decrease will be payable / deductible by the buyer when demanded."
8. Alteration / Modification in the layout plan, design and specifications 8.1 The buyer has seen and accepted the approved layout plans, building plans, designs and specifications. The buyer hereby authorizes the developer to effect and gives his consent to sell such alterations / modifications in the lay out plan / building plans, designs and specifications as modified / approved by the concerned authority and / or as the developer may deem fit on the advice of its architects and / or necessitated / required to be carried out, by the exigencies of the circumstances beyond the control of the development from time to time in consultation with the society.
8.2 Such alterations may include change in size of the flat, its area, boundaries and also increase or decrease in total number of flats, location of the flats, its number, location floor etc. planned to be constructed in the Block / complex. In such case, the buyer will not question the change or make any claims whatsoever and the buyer hereby confirms that all such changes will be than acceptance to them if the said alterations do not result in more (-+)5% change in the cost of the flat. (emphasis supplied) 8.4 In case of any major alterations / modification, resulting -+5% change in the cost of the flat, the developer shall intimate, in writing to the buyer such changes and the resultant change in the cost of flat on account of the said changes / modifications is not acceptable to the buyer, he can raise his objection within thirty days of the receipt of intimation from the developer. In such an event, the present agreement shall be treated as cancelled and the amount paid by the buyer to the developer under this agreement shall be refunded to the buyer without any interest and / or compensation of whatsoever nature. In case, buyer fails to raise his objection in writing within the prescribed period of thirty days, he shall be deemed to have given his full consent to the alterations / modifications and be bound by it, in the event of such alteration / modification, the buyer will not question the same or make any claims whatsoever against the developer.(emphasis supplied) 10.1 The developer based on its sanctioned plans and estimates and subject to all just exceptions, contemplates to complete the construction of the said flat, within a period of 36 months from the date of MOU i.e. 05.11.2008 with a grace period of two months. (emphasis supplied) 10.2 If however, completion of the said building / said tower / said complex is delayed by reason of war or enemy action or terrorist action or natural calamities .............or act of God of if non-delivery of possession is as a result of any Act, Notice, Order, Rule, Law or Notification of the Government and / or other Public or Competent Authority or for any other reasons beyond the control of the company, then the Flat Allottee/society agrees that company shall be entitled to the extension of time for delivery of possession of the said flat in consultation with the society. The company as a result of such a contingency arising, reserves the right to alter or vary the terms and conditions of this agreement or if the circumstances beyond the control of the company so warrant, the company may suspend the scheme for such period, as it may consider expedient and the flat allottee agrees not to claim compensation of any nature whatsoever for such delay / extended period and such extended period shall be excluded, while computing the period of delay, if any, in completion of the construction. This entire agreement shall be subject to force majeure clause.
10.3 For the purpose of this Agreement, the date of making an application to the concerned authorities for issue of completion / part completion / occupancy certificate/part occupancy certificate of the complex shall be treated as the date of completion of the construction of the flat.
15.3 The buyer shall pay to the Developer a sum of Rs.50/- (Rupees Fifty) per sq. ft. of the super area of the said flat towards interest bearing Maintenance Security (IBMS) as replacement fund to be established for meeting expenses relating to repair / replacement of capital equipment including such as lifts, pumping sets, water mains, electric valves, transformers, generators, firefighting installations, services and equipments, painting of exterior walls of the complex, major repair of common areas and facilities, as and when required to be attended to, in the absolute discretion of the developer."
3. The opposite party offered possession to the allottees, subject to payment of the dues as per the statement of account enclosed to the offer. The opposite party required the allottees to pay FFC @ Rs.30/- PSF, IBMS @ Rs.50/- psf., for power back up @ Rs.25,000/- per KVA, Club Membership Rs.25,000/-, ECE, ESS @ Rs.100/- per sq. ft., in addition to the cost on account of difference in the area of the apartment.
4. The case of the complainant is that as per the agreement between the parties, the increase in the area of the flat was not to have impact of more than 5% and there was no increase by the Government in the EDC/ IDC, which were rather reduced by the Government. The complainant is disputing the additional demand raised by the opposite party. The complainant is therefore, before this Commission seeking a direction to the opposite party to hand over possession of the allotted flats on the originally agreed price, on payment of balance 5% sale consideration, after adjustment of delay charges as per the agreement, along with compensation. Four different complaints have been filed on behalf of the allottees in different blocks / towers.
5. The complaints have been resisted by the opposite party which has inter-alia stated in its written version that this project has faced lot of hurdles, including amendments implemented by the statutory authorities such as HUDA, DTCP, AAI and MOEF. It is also alleged that the opposite party was restrained by the order of the Hon'ble Supreme Court from using the ground water for construction purposes and the delay is attributed to the reasons which were beyond the control of the opposite party. It is further stated that the super area has not changed due to any alteration, but has changed due to increase in the areas of the flats / residential units and the saleable area has been correctly calculated and includes circulation area and common areas etc. It is also alleged that though the complainant had promised that 200 flat will be booked, only 100 flats were eventually booked, as a result of which the opposite party had to incur huge financial losses. The opposite party has also sought to justify the demand raised by it. It is stated in the written version that there has been some erroneous calculation of super area at the time of the soft launch of the project.
6. Increase in super area The term 'super area' is defined in Clause 2.1 of the FBA and includes not only the area of the flat but also the proportionate service areas to be utilized for common use and facilities. The case of the opposite party is that there has been increase in the super area of the flats. Though, it is alleged in para-10 of the preliminary objections taken in the reply of the opposite party that the super area of the project has not changed due to alteration but has changed due to tentative increase in the area of the flats, it is also stated in para-10 of the reply on merits that the opposite party has not charged the complainant for the increase in super area on the ground of alteration or modification in the layout plans, designs and modifications, and therefore Clause 8.4 of the BBA which applies only in case of any alteration or modification of the layout plan, design and specifications is not applicable. It is not quite clear from the written version as to how the super area of the flat has increased if there is no alteration or modification in the layout plan, designs etc. As per Clause 2D of the FBA, the developer was to perform its obligations as per the approved plans and any subsequent amendments / modifications thereto. There cannot be increase in the super area without amendment / modifications of the layout plans unless, the builder deviates from the approved plans, during the course of construction and later seeks compounding of those deviations by submitting a completion plan, incorporating the deviations made by it and pays the requisite compounding fee.
The complainants have placed on record the occupancy certificate issued by Directorate of Town & Country Planning, Haryana, which would show that the increase in the FAR of the project was only marginal, the said increase being less than 5%.
The opposite party has placed on record, what purports to be a computation of the saleable area of the flats made by its Architect, which shows the FAR area as well as non-FAR area of the balcony circulation, mumty, guard-room, sunshades and elevation features as well as the unit FAR of the residential unit. The case of the opposite party during the course of arguments was that it is the non-FAR area of the flats which has increased and since the said non-FAR area also forms the part of the super area, the allottees are required to pay for the increase in the super area.
7. Assuming that there has been increase in the non-FAR area of the flat, and that has resulted in the increase in the super area, the question which arises for consideration is as to whether the allottees are liable to pay for the increase in the super area and if so, to what extent. Though, in terms of Clause 2D of the FBA, the Developer did not require consent of the buyers for making any changes in the layout plans, the above referred clause cannot be read in isolation and has to be read along with other clauses, including Clause 8.2 of the FBA which precluded the flat buyers from questioning any change in the plans, so long as alteration did not result in increase of more than 5% in the cost of the flat. In terms of Clause 8.4 of the FBA, if the cost was to increase by more than 5%, the developer was required to intimate the flat buyers in writing. On receipt of such intimation, the flat buyers could convey their non-acceptance to the proposed increase and in such an event, the agreement was to be treated as cancelled and the amount paid by the buyer was to be refunded to him. Admittedly, the opposite party never intimated the flat buyers that the cost of the flat is likely to increase by more than 5% on account of change in the plans and / or increase in the area of the flat. Therefore, in my opinion, whatever be the super area of the flats, the flat buyers cannot be asked to pay more than 5% of the cost of the flat, on account of alleged increase in the super area.
8. IFMS It was conceded by the learned counsel for the opposite party during the course of hearing that the maintenance security would be interest bearing and not interest free as per the agreement between the parties. Accordingly, I hold that the interest would be payable on the maintenance security.
9. Power Backup As per the agreement between the parties, the flat buyers were to pay Rs.15,000/- per KV for the power backup. The power backup as per the agreement was to be 3 KV per flat. The case of the opposite party is that initially, they had agreed to provide limited power back up to the allottees but later, they had to provide higher power backup as per requirement of the concerned authorities and that is why they have demanded @ Rs.25,000/- per KVA from the allottees. In my view, the opposite party could have demanded only the agreed charges for the power back up, to the extent it was agreed between the parties, i.e. for 3 KVA, though, it can charge the actual proportionate cost for the increase in the power backup provided by it. Thus, the allottees will have to pay @ Rs.15,000/- per KV for the agreed 3 KV power backup and at the actual cost of the opposite party, for the additional / excess power back up provided by it.
10. EDC/IDC/ECC/ESS charges As per the agreement between the parties, the EDC/IDC was to be paid @ Rs.200/- per sq. ft. The opposite party has demanded additional payment of Rs.100/- per sq. ft. towards ECC/ESS. As per clause 3.3 of the FBA, subsequent increase / decrease, if any, in the EDC and / or IDC as notified by DTCP was payable by the buyers. Though, the EDC/IDC applicable on the date of FBA was about Rs.200/- per sq. ft., the same was subject to increase / decrease as notified by DTCP from time to time. Thus, the EDC / IDC initially charged @ Rs.200/- per sq. ft. could either increase or decrease, depending upon the change in charges by DTCP, in view of Clause 3.3 of the FBA, As per Circular dated 25.11.2008, issued by Directorate of Town & Country Planning, Haryana, the EDC was fixed at Rs.206.7 lacs per acre. This was later reduced to Rs.176.28 lacs vide public notice issued by Directorate of Town & Country Planning, Haryana, which refers to a Memo dated 23.11.2010, whereby the revised EDC of Rs.176.28 lacs per gross acre was conveyed. I therefore, hold that as far as EDC is concerned, the opposite party can recover the same from the allottee only on proportionate basis calculated at the rate of Rs.176.28 lacs per acre, notified by DTCP.
In its additional affidavit, the opposite party has stated that the amount of EDC was paid by it to Haryana Government as per the applicable notification and no amount has been refunded to them till date. It is further stated that as and when any amount is refunded by the Government to the OP, the same shall be passed on to the allottee on proportionate basis. In my view, the allottees cannot be made to wait for the refund of the excess payment, if any, made by the OP to the Government towards EDC. It is for the opposite party to recover the excess amount, if any, paid by it from the Government. The allottees cannot be made to pay more than their share in the EDC as revised by the Government. I have no hesitation in holding that the opposite party can demand and the flat buyers are liable to pay only the proportionate EDC as per the payment made by the OP to the DTCP in this regard. It will be for the opposite party to work out the proportionate EDC / IDC and issue a revised demand accordingly.
As far as the demand towards ECC/ESS charges is concerned, the OP has failed to justify the demand raised by it @ Rs.100/- per sq. ft. The allottees therefore, can be required to pay ECC /ESS charges only on proportionate basis.
11. Maintenance Charges As far as maintenance charges are concerned, the same would be payable only with effect from the date on which the possession was taken by the allottees, during pendency of this complaint or with effect from 22.09.2017, when they were permitted by this Commission to take possession, without prejudice to the respective rights and contentions of the parties, whichever be earlier.
12. Club Membership The club membership fee / charges have to be paid only on the date the club is ready and functional, and cannot be demanded earlier.
13. It was contended by the learned counsel for the OP that though, the complainant had committed booking of residential flats for 200 of its members, eventually less than 100 persons applied for the said booking which resulted in financial loss to the OP. In my opinion, if 200 members of the Society had not come forward to book the flats and 200 bookings was a pre-condition for the construction, nothing prevented the OP refusing to commence the construction till 200 booking were made by the members of the complainant society. The OP on the other hand, not only accepted the booking from about 100 members, it also executed the Flat Buyers Agreement with them, whereby it became obliged to construct the apartments and deliver possession to the concerned allottees within the timeframe agreed in this regard. In any case, no evidence of the alleged financial loss on account of lesser bookings has been proved by the OP. Therefore, the numbers of allottees being less than 200 would have no bearing on the consumer complaints and would not disentitle the allottees from seeking directions and compensation on account of the deficiencies on the part of the builder, in rendering services to them.
14. Another important issue which arises for consideration in these complaints is as to whether the allottees are entitled to any compensation for the delay in delivery of possession and if so, for which period they can claim such compensation. It would be pertinent to note here that as per Clause 8 of the MoU in case of delay the allottees were entitled to interest @ 12% per annum.
15. As per Clause 9 of the MoU, the flats were to be constructed and completed in all respects within three years and the possession was to be handed over to the allottees within the aforesaid period, with a grace period of two months. In terms of Clause 6 of the MoU, the possession was to be delivered to the allottees after obtaining occupancy, completion and NOC from the competent authority in all respects. Even while executing the individual agreements with the allottees, the developer agreed in terms of Clause 10.1 of the said agreements to complete the construction within a period of 36 months from the date of MoU with a grace period of two months. Though, if the completion of the flats was delayed for any of the reasons stated in Clause 10.2 of the FBA, the builder was entitled to appropriate extension in consultation with the society and in such a case, no compensation would be payable to the allottees, there is no evidence of the construction having been delayed on account of any of the circumstances stated in Clause 10.2 of the FBA. It is stated in the written version that the use of ground water was prohibited by the Hon'ble Supreme Court for construction purposes. The copy of such an order has not been filed. In any case, if there was a ban on use of ground water for construction purposes, it was for the builder to arrange ground water for alternative sources and the allottee cannot be made suffer for the delay on account of inability of the builder to use the ground water for construction purposes. The OP has not led evidence to prove that the construction of the flats was delayed for any other reason beyond its control. Therefore, the force-majeure clause does not apply in these cases.
16. Though, it was also stated in Clause 16 of the MoU that the possession of the flats would be handed over to the allottees within three years from the date of booking of the flats, the said clause cannot be read in isolation and has to be read along with other clauses of the MoU and the FBA. As noted earlier, Clause 9 of the MoU required completion of the flats in all respects and deliver possession within three years with a grace period of two months. Even while executing FBAs with the allottees, who made bookings in the year 2009 and 2010, the OP committed to complete the construction within a period of 36 months form the date of MoU i.e. 05.11.2008 with a grace period of two months. If the OP was not in a position to deliver possession of the flats particularly to those allottees, who made booking in the year 2009 and 2010, within three years from the execution of the MoU on 05.11.2008, it ought to have either deleted or suitably modified Clause 10.1 of the FBA. That having not been done, the irresistible inference would be that the OP had agreed to compete the construction and deliver possession even to the subsequent allottees, within 36 months from the execution of MoU, with a grace period of two months. In any case, if there is an ambiguity or overlapping in the terms of the FBA, the benefit should go to the consumer and not to the service provider, the Consumer Protection Act, being an Act enacted primarily for protecting the interest of the consumers and redressing their genuine grievances against the seller of goods and the providers of services. Moreover, agreements such as FBA are drafted by the builder and not by the flat buyers.
17. Therefore, I hold that all the allottees on whose behalf these complaints survive are entitled to compensation in the form of simple interest @ 12% per annum with effect from 05.01.2012 when 36 months plus two months, from the execution of the MoU expired.
18. The next question, which arises for consideration is as to the period upto which the allottees are entitled for compensation. It transpired during the course of hearing that the OP got the plans approved in October, 2011, applied for the occupancy certificates on 02.1.2012 and obtained the said occupancy certificates on 25.11.2014. The demand, which is subject matter of the challenge in these consumer complaints was raised on 10.1.2015, within less than two months of the receiving the occupancy certificates. The consumer complaints came to be filed on 13.5.2015. Thus, neither there was any delay on the part of the OP in raising demand after receiving the occupancy certificate nor the complainant can be said to be guilty of delay in approaching this Commission, they having filed the complaint within about four months of the issuance of the disputed demand.
Though the flats in question remained vacant and therefore, could not be utilized by the allottees till the OP was directed to deliver possession of the said flats to the concerned allottees, without prejudice to the respective rights and contentions of the parties in the complaints, nor did the OP derive any benefit from retaining the possession of the allotted flats and maintaining them till the interim order for delivery of possession was passed by this Commission, it would also be pertinent to note here that neither the complainant pressed for an interim order to the OP to deliver possession of the allotted flats to the allottees, without prejudice to the respective rights and contentions of the parties in the consumer complaints nor did the OP offer to deliver possession to the concerned allottees without prejudice to the respective rights and contentions of the parties in the consumer complaints. In these circumstances, it would only be fair and reasonable to direct the OP to pay compensation in the form of simple interest @ 12% per annum with effect from January, 2012, till the date on which the possession was offered to the allottees, subject to payment of demand which they have disputed in these consumer complaints.
A reference in this regard can be made to the decision of the Hon'ble Supreme Court in M/s. Supertech Ltd. Vs. Rajni Goyal in Civil Appeal Nos. 6649-50 of 2018 decided on 23.10.2018.
In Rajni Goyal (supra), the builder had to issue a pre-possession letter on 12.10.2015, calling upon the allottee to pay the amount demanded therein. The charges demanded by the builder were not paid and the consumer complaint was instituted on 15.3.2017. It was allowed by this Commission on 07.2.2018, awarding compensation till the date on which possession was actually offered to the complainant. The Hon'ble Supreme Court noted that the completion certificate had been obtained in April, 2016 and held that interest should close in April, 2016 when the full occupancy certificate was obtained, as was admitted by the complainant herself in the consumer complaint filed by her.
In the present case, the occupancy certificate was obtained by the opposite party on 25.11.2014. This fact is admitted in the consumer complaints. Therefore, relying upon the decision of the Hon'ble Supreme Court in Rajni Goyal (supra), I hold that the compensation for the delay in delivery of possession should be paid till 25.11.2014.
19. For the reasons stated hereinabove the consumer complaints are disposed of with the following directions:
The scope of this order shall be limited to the allottees on whose behalf these complaints survive and Shri Rupesh Kumar Karkaria, opposite party No.2 in CC/371/2015.
(ii) The OP shall be entitled to charge only 5% of the cost of the flat on account of the increase in the super area of the flat The OP shall pay interest to the allottees on the maintenance security;
The OP shall charge for power backup @ Rs.15,000/- per KVA for the first 3 KVA per flat and at its actual cost for the power backup beyond 3 KVA in each flat;
The OP shall be entitled to EDC, as reduced in terms of this order.
The OP shall be entitled to ECC / ESS charges on proportionate basis as per the cost actually incurred by it;
The maintenance charges shall be payable with effect from 22.09.2017;
The concerned allottees on whose behalf this complaint survives shall be entitled to compensation in the form of simple interest @ 12% per annum with effect from 05.01.2012 till 25.11.2014;
(viii) The compensation in the form of simple interest with effect from 05.1.2012 shall be payable on the entire amount paid by the allottees to the OP by that date and (ii) with effect from the date of each payment, on the amount, if any, paid after 05.01.2012;
(ix) The additional amount payable by the allottees, in terms of the order, shall be adjusted out of the compensation payable to them by the OP, in terms of this order.
(x) The compensation, in terms of this order, shall be paid to the concerned allottees within three months from today, along with a detailed computation.
......................J V.K. JAIN PRESIDING MEMBER