National Consumer Disputes Redressal
Vishal Bansal & 18 Ors., vs M/S Orchid Infrastructure Developers ... on 25 September, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 291 OF 2013 1. VISHAL BANSAL & 18 ORS., S/o Shri K. C. Bansal, R/o Apartment No. 1403, Tower No. 21, Orchid Petals Sector-49, GURGAON. ...........Complainant(s) Versus 1. M/S ORCHID INFRASTRUCTURE DEVELOPERS PVT. LTD. & ANR., Level-II, Global Arcade, Mehrauli Gurgaon Road, GURGAON. 2. . . . ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE A. P. SAHI,PRESIDENT HON'BLE DR. INDER JIT SINGH,MEMBER
FOR THE COMPLAINANT : MS. RADHIKA GUPTA, ADVOCATE
MS. CHANDRIKA GUPTA, ADVOCATE FOR THE OPP. PARTY : MS. JIGYASA SHARMA, ADVOCATE
Dated : 25 September 2024 ORDER
A. P. SAHI, J (PRESIDENT)
There are 19 Complainants in this complaint.
The complaint was filed along with an application under Section 12(1)(c) of the Consumer Protection Act 1986 but in view of the submissions raised by the learned Counsel for the Complainant, the application was consigned and dismissed with permission to the 19 Complainants to pursue this complaint as a joint complaint. The order passed on 19.09.2023 has become final and is extracted hereinunder:-
"Dated:19.09.2023
ORDER
IA dated 20.02.2015 (Application for transfer of the case to another Bench) This application appears to be misconceived. Even otherwise, it is infructuous.
Consigned to record.
IA No. 17008 of 2017(Application u/s 12(1)(c) of Consumer Protection Act, 1986) Heard learned counsel for the complainants/applicants.
This application has been filed under section 12(1)(c) of the Consumer Protection Act, 1986 to continue with the complaint as a class action. In this case even though the law does not require pre-publication i.e. prior to the allowing of such applications, yet the following notice is stated to have been published on 23.12.2022 in the Times of India with information to all persons in case they wish to join in this complaint and it is open to them to express their intentions or file applications:-
"PUBLIC NOTICE This is to inform the public as well as the Residents of 'Orchid Petals', a residential project developed by Orchid Infrastructure Developers Pvt. Ltd., Sector-49, Gurugram, Haryana that certain persons had preferred a consumer complaint bearing Consumer Complaint No. 291 of 2013 titled as 'Vishal Bansal & Ors. Vs. Orchid Infrastructure Developers Pvt. Ltd.' raising various issues of compensation/late possession penalty charges.
This is to bring to your kind attention that the above complaint is listed on 23.01.2023 before the Learned National Consumer Dispute Redressal Commission, Bench No.2, Upbhokta Nyay Bhawan, 'F' Block, GPO Complex, INA, New Delhi- 110 023.
In case, anyone of you have a similar grievance or issue against the Developer then you are requested to join the Complainants in the abovementioned Consumer Complaint.
For your assistance, the details of the coordinator are Mr. Sanjay Jain, Mob. No. 9810316735, Apartment No. 602, Tower No.-20, Orchid Petals, Sector-49, Gurugram, Haryana or you can contact our Lawyer Ms. Apoorva Jain, Advocate, Mob. No. 7289883662, C-1, Lower Ground Floor, Nizamuddin East, Delhi-110013.
Thanking you Yours faithfully Sd/-
Vishal Bansal Place: Gurugram Date: 23.12.2022"
Learned counsel submits that in spite of this, none of them have come forward to express his/her desire to join in this complaint and therefore he prays that the present complaint may be permitted to be continued as a joint complaint on behalf of the 19 persons who have filed the present complaint and not as a class action.
Consequently, this application is consigned to record with permission to pursue this complaint as a joint complaint. Even otherwise, it appears that the present original claim was filed in the year 2013 and it is almost four years thereafter that the application was filed in the year 2017.
Complaint List the complaint for final hearing on 06.02.2024.
In the meantime, in case any subsequent events or additional documents have come into existence, the same may be exchanged by way of affidavits between the parties before the date of final hearing."
The case was again taken up on 26.03.2024 when the following order was passed:-
"Dated:26.03.2024 ORDER Heard learned counsel for the complainant and the learned counsel for the opposite party-developer/ builder.
This is a 2013 complaint which has been pending disposal, where the claim made by the complainant is broadly on five counts of alleged deficiency. Their contention is that the opposite party cannot realise any car parking charges, the exorbitant electricity charges, the maintenance security charges, the club membership charges without providing the facility of the club and also delayed possession compensation for handing over the premises, beyond the accepted date of possession.
All these have been answered by the opposite party with certain preliminary objections regarding limitation and pecuniary jurisdiction, but at the same time it has been pointed out that in view of the terms of the agreement on record, there are no excess charges realised either of car parking or even electricity charges, which was indicated in the statement of accounts that was served to all the flat buyers before possession was formally offered.
This has been disputed by the learned counsel for the complainant.
It is open to both the parties to raise their submissions keeping in view the aforesaid broad contentions, which have been raised in consonance with the terms of the terms of the Apartment Buyers Agreement including clause 1.2 (a), clause 4, clause 9, clause 8, clause 38 (c) and clause 28 as well as clause 30 thereof. Apart from this, the statement of account that has been referred to by the learned counsel for the opposite party indicating the components of the charges demanded from all the flat buyers.
Learned counsel for the complainants has relied on the Apex Court judgment in the case of Nahalchand Laloochand Pvt. Ltd.vs Panchali Co-Op.Hng.Sty.Ltd., 2010 (9) SCC 536, for the argument on excess parking charges. To counter the said submission, learned counsel for the opposite parties has invited the attention of the Bench to the judgment of the Apex Court in the case of Wing Commander Arifur Rahman Khan and Ors. Vs. DLF Southern Homes Private Limited & Ors., (2020) 16 SCC 512, paragraph 55 to point out that the said issue has been clarified keeping in view the ratio in the judgment in the case of Nahalchand Laloochand Pvt. Ltd.(Supra).
Learned counsel for the complainants has also urged that the payments that were received by the opposite parties according to them was under a compulsion, which they have narrated in the paragraph 6 of the rejoinder affidavit. Learned counsel also submits that there is no delay in the filing of the complaint as it was a continuing cause of action, which existed on the date of the filing of the complaint i.e. 10.09.2013.
The arguments could not conclude today.
As agreed by the learned counsel for the parties, list on 05.04.2024 at 9.30 a.m. Let the learned counsel for the both the parties file their written submissions along with judgments on which they want to rely."
The case was taken up on 05.04.2024 when the learned Counsel for the Complainant gave up the claim with regard to the maintenance and security issue that stands recorded in the order quoted hereinunder:-
"Dated:05.04.2024 ORDER Heard learned counsel for the parties.
The arguments were advanced on 26.03.2024 and the parties were given the opportunity to proceed further today.
At the outset, learned counsel for the complainants has pointed out that insofar as IFMS (maintenance security issue) is concerned, the same is not being pressed as the said amount has already been transmitted to the Residents Welfare Association.
He however submitted that the issues of compensation for delayed possession, car parking charges and refund thereof, club membership and its consequences as well as the electricity meter charges, about which pleas have been raised in the complaint, need to be elaborated in the wake of the fact that a fresh affidavit has been served on the learned counsel for the complainants today. He prays that two weeks' time be granted to file a response to the said affidavit. One week thereafter is granted to the learned counsel for the opposite parties to file the rejoinder. Let the affidavits be exchanged and filed within three weeks and be filed accordingly.
List on 24.05.2024 at 9.30 a.m. "
It is then that the arguments proceeded on the other issues raised which stands recorded in the order dated 24.05.2024 extracted hereinunder:-
" Dated:24.05.2024 ORDER Heard learned counsel for the opposite party/ builder, who has advanced her submissions in respect of five issues raised but the issue regarding maintenance and security charges has already been given up by the complainants as recorded in the order dated 05.04.2024.
In respect of the other four issues namely, car parking charges, club membership charges, electricity charges and late possession penalty, learned counsel urged that the opposite party cannot be doubly penalised with a claim of delay compensation and alleged payment of rent by the complainant for alternative accommodation. It is submitted that the occupancy certificate was applied within time way back in 2010 and the offer of possession was made timely, whereas, the default lay on the complainants, who have arrived before this Commission after a considerable lapse of time. It is submitted that the delay in filing the complaint regarding allegation of deficiency is writ large, in as much as the complaint was filed in the year 2013, whereas the alleged cause of action arose way back in 2010 itself. It is urged that there is no pleading or prayer for condoning the delay and as a matter of fact the complainants have erroneously pleaded the cause of action to be a continuing cause of action.
The second submission raised by the learned counsel for the opposite party is that one of the complainants Mr. Sanjay Jain had filed a complaint before the District Commission, which he withdrew without any liberty to file a fresh complaint and therefore his joining in the present complaint cannot be permitted, as once having withdrawn his complaint before the District Commission, he has waived his right to again contest through this litigation.
The order passed by the District Commission dated 28.02.2013 is already on record in the reply filed on behalf of the opposite party no. 1 dated 27.11.2014.
It is then submitted that the complainant no. 1, Mr. Vishal Bansal has four units and is a multiple unit, and hence cannot be treated as a consumer for the present complaint. To substantiate this, learned counsel urged that CC/85/2016 was filed by Mr. Bansal before this Commission and is pending.
Learned counsel has invited the attention of the Bench to the affidavit filed on behalf of the opposite party dated 04.04.2024, where with the aid of the facts stated therein, the other issues of car parking charges, club membership charges, and electricity charges have been pleaded.
It is submitted that so far as electricity charges are concerned the allegations made by the complainants on the strength of a couple of bills to display the price of meters, which remain unsubstantiated, cannot form the basis of any deficiency as no other details have been filed by comparing the quality of meters that were available and were proposed to be installed by the opposite party. The submission is that in the absence of any facts to corroborate the said stand, the arguments raised cannot be appreciated.
Coming to the parking area and relating charges, learned counsel invited the attention of the Bench to Clause 9 of the agreement to urge that it was only meant for exclusive usage and there was no transfer of title nor was the parking area assignable. It was further submitted that the parking area is excluded under the third annexure of the schedule attached to the agreement from the super area of the flat. For this reference was made to the related clauses in the agreement and then to the legal issue settled by the Apex Court in the case of Wing Commander Arifur Rahman Khan and Ors. Vs. DLF Southern Homes Private Limited & Ors., (2020) 16 SCC 512". Thus, any liability of deficiency for the car parking area therefore cannot be saddled on the opposite party.
Learned counsel has then come to the major issue canvassed with regard to the allegation of non-providing of Club services with its amenities as promised. It is submitted that swimming pool is not part of any promise vis-à-vis the club facilities. It is further submitted that the other amenities were provided in a stilt area accommodation and three swimming pools were running. All these arrangements were made which were being enjoyed by the occupants including the complainants. The machines for the gymnasium had been provided and were utilised continuously for almost 13 years. If they have been replaced thereafter with new machines by the residents welfare association that does not amount to any deficiency on the part of the opposite party as the amenities were very much in place. It is further submitted that the club is to remain the property of the builder, which is evident from clause 9 itself and no rights were transferable to the buyers except usage and therefore no deficiency can be alleged by them. Their claim for refund of the club charges is misplaced as they have already utilised the facilities and amenities provided in relation thereto even though the infrastructure/ super structure of the club house was delayed. The other facts as stated in the affidavit were asserted to substantiate the submissions.
Mr. Baruah, learned counsel for the complainants urged that all these arguments are unsustainable, in as much as the complainants have already filed a reply to the said affidavit on 21.05.2024, which is on record and it is evident that it is after the intervention of the District Town Planner, Haryana, Chandigarh, who issued letter on 19.07.2023, that the club was opened for the members after completion. The said letter has been filed as annexure CA-2 to the reply dated 21.05.2024. He has then invited the attention of the Bench to the photographs of the club which has now been handed over to urge, that it is this super structure which had to be constructed and handed over at the time of offering of possession to the complainants. He therefore contends that this establishes that this super structure admittedly was not in existence and this deficiency has been now completed in 2023. He therefore submits that the delay in offering possession of the premises together with the amenities is established.
Mr. Baruah then urged that the handing over possession of the club is further verified by the letter dated 22.04.2024, annexure CA-3 to the said reply, which leaves no room for doubt that the construction and handing over of possession of the club has been witnessed after 13/14 years. Thus, this deficiency, which is sought to be explained on the strength of fixing a few sub-standard machines in the stilt area, does not suffice or satisfy the facilities of a club in the past and therefore the deficiency needs to be compensated.
He further submits that this also establishes the continuous cause of action and the issue of limitation raised is without any substance.
It is further submitted that the undertaking given by the allottees that has been filed along with the application in the year 2009 was a coerced undertaking and the documents filed along with the affidavit do not in any way absolve the opposite parties from their obligations in respect of the deficiencies as pointed out in the complaint.
The arguments could not conclude today, in spite of case having been taken up at 9.30 a.m. While the matter was proposed to be adjourned for 05.08.2024 as agreed between the parties, Mr. Baruah urged that he may be permitted to file other documents in support of his contentions and Ms. Jigyasa, learned counsel for the opposite party prayed that she may be permitted to file a rejoinder to the reply dated 21.05.2024.
Learned counsel for both the parties are permitted to file their respective affidavits within six weeks as prayed for after serving on each other.
List on 05.08.2024 at 2 p.m"
The case was finally argued on 04.09.2024 when learned Counsel for both the parties advanced their submissions.
Ms. Jigyasa Sharma, learned counsel for the Opposite Party, precisely consolidated her arguments on the 4 issues raised by the Complainants namely, the issue of car parking, the issue of club membership, the issue of electricity installation charges and lastly the claim of delay compensation by the Complainants.
She, however, maintained that all these issues are untenable and she has advanced here submissions subject to the primary argument raised on behalf of the Opposite Parties that the complaint is barred by limitation. She therefore submits that if the argument on limitation is accepted then the complaint would otherwise be not maintainable on merits as raised by the learned Counsel for the Complainant.
The arguments advanced on the issue of limitation by the learned Counsel for the Opposite Party is founded on the allegation that most of these Complainants had been offered possession in 2009 and actual physical possession was taken by them except for a couple of them who took the possession in 2010 and one of the on 04.07.2011. She has relied on the chart extracted in paragraph 7 of the affidavit dated 04.04.2024 that was filed on 30.04.2024 vide Diary No.16486. The said chart is extracted hereinunder:-
Complainant Name Tower/ Flat no.
Date of offer of Possession Date of Acceptance of possession Delayed Payments Vishal Bansal T21/1403 01.07.2009 Offer of possession and statement of Account annexed herewith as Annexure A-2 17.11.2009 Acceptance of possession, undertaking and clearance certificate annexed herewith as Annexure A-3 Payment reminders annexed herewith as Annexure A-1.
Neeraj Garg T18/601 01.07.2009 Offer of possession and statement of Account annexed herewith as Annexure A-4 28.04.2010 Acceptance of possession, undertaking and clearance certificate annexed herewith as Annexure A-5 Deepak Khanna T02/19 01.07.2009 Offer of possession and statement of Account annexed herewith as Annexure A-6 15.10.2009 Acceptance of possession, undertaking and clearance certificate annexed herewith as Annexure A-7 V P Mishra T03/903 24.02.2009 Offer of possession and statement of Account annexed herewith as Annexure A-8 06.05.2009 Acceptance of possession, undertaking and clearance certificate annexed herewith as Annexure A-9 Sandeep Sahni (Flat sold to R P Kundra) T09/903 06.07.2009 Offer of possession and statement of Account annexed herewith as Annexure A-10 11.11.2009 Acceptance of possession, undertaking and clearance certificate annexed herewith as Annexure A-11 Vipul Aggarwal T18/1101 06.07.2009 Offer of possession and statement of Account annexed herewith as Annexure A-13 01.07.2009 Acceptance of possession, undertaking and clearance certificate annexed herewith as Annexure A-14 Payment reminders owing to delays sent to Complainant, Annexed herewith as Annexure A-12 Chandra Kanta Gupta T03/804 24.02.2009 Offer of possession and statement of Account annexed herewith as Annexure A-15 14.09.2010 Acceptance of possession, undertaking and clearance certificate annexed herewith as Annexure A-16 Gaurav Bansal T20/1203 01.07.2009 Offer of possession and statement of Account annexed herewith as Annexure A-17 29.08.2009 Acceptance of possession, undertaking and clearance certificate annexed herewith as Annexure A-18 Usha Gupta T09/1402 Original Customer file not traceable Anurag Mittal T09/503 06.07.2009 Offer of possession and statement of Account annexed herewith as Annexure A-19 25.09.2009 Acceptance of possession, undertaking and clearance certificate annexed herewith as Annexure A-20 Sugata Parmani K T09/702 06.07.2009 Offer of possession and statement of Account annexed herewith as Annexure A-21 17.12.2009 Acceptance of possession, undertaking and clearance certificate annexed herewith as Annexure A-22 Shashi Gupta T20/402 01.07.2009 Offer of possession and statement of Account annexed herewith as Annexure A-23 31.07.2009 Acceptance of possession, undertaking and clearance certificate annexed herewith as Annexure A-24 Payment reminders owing to delays sent to Complainant, Annexed herewith as Annexure A-25 Sanjay K Jain T20/602 01.07.2009 Offer of possession and statement of Account annexed herewith as Annexure A-26 23.10.2009 Acceptance of possession, undertaking and clearance certificate annexed herewith as Annexure A-27 Gaurav Singh Johar T11/1104 28.02.2009 Offer of possession and statement of Account annexed herewith as Annexure A-28 31.03.2009 Acceptance of possession, undertaking and clearance certificate annexed herewith as Annexure A-29 Payment reminders owing to delays sent to Complainant, Annexed herewith as Annexure A-30 Nitin Gupta T09/701 06.07.2009 Offer of possession and statement of Account annexed herewith as Annexure A-31 03.12.2009 Acceptance of possession, undertaking and clearance certificate annexed herewith as Annexure A-32 Biju Sebastian T14/1201 16.08.2010 Offer of possession and statement of Account annexed herewith as Annexure A-33 04.07.2011 Acceptance of possession, undertaking and clearance certificate annexed herewith as Annexure A-34 Ajay Chandorkar T10/701 28.02.2009 Offer of possession and statement of Account annexed herewith as Annexure A-35 19.06.2009 Acceptance of possession, undertaking and clearance certificate annexed herewith as Annexure A-36 R G Garg T08/404 Original customer file not traceable Ravi Ayyals Omayajula T09/1102 06.07.2009 Offer of possession and statement of Account annexed herewith as Annexure A-37 07.09.2009 Acceptance of possession, undertaking and clearance certificate annexed herewith as Annexure A-38 It is therefore submitted that in terms of the limitation prescribed under Section 24A of the Consumer Protection Act 1986, the complaint ought to have been filed within two years of the dates of possession referred to above, but as is evident on record the complaint was filed on 10.09.2013 which is almost after 3 and a half years after taking possession. It is urged that there is neither any delay explained nor any application has been moved by the Complainants for condoning the delay. One of the contentions raised is that the Complainant No.13, Mr. Sanjay Kumar Jain, had filed a complaint before the District Forum Gurgaon being CC/5/2010 but the same was withdrawn on an application filed and the order passed therein on 28.02.2013 is extracted hereinunder:-
"Dated:28.02.2013 ORDER Case taken up on Misc. Application filed by the complainant.
Statement of the complainant recorded. In view of his statement the complaint stands dismissed as withdrawn.
File be consigned to the records after due compliance."
It is submitted that the said complaint was withdrawn without any liberty to file the present complaint, nonetheless the said complaint was an individual complaint of only one person who has joined in the present complaint as Complainant No.13. The submission is that this cannot be an explanation for any delay, as in view of the chart extracted hereinabove, almost all the Complainants had taken possession in 2009 and a couple of them later on in 2010-11. Thus, the cause of action if any for all of them alleging deficiency had arisen way back in 2009-10. Since the complaint was not filed within two years, and no explanation worth the name has been given for the delay or pleaded, this complaint is severely barred by time and deserves to be rejected.
It is further submitted that no deficiency by any of the Complainants was communicated or complained of after taking possession. She submits that there is not a single document on record to infer a continuity of the cause of action and hence the argument raised on behalf of the Complainant that a continuing cause of action exists is bereft of any pleading or facts.
It is then urged that in effect there is no pleading of the deficiencies in the complaint which are now sought to be introduced through the reply affidavit filed by the Complainants dated 17.05.2024 presented before the Commission vide Diary No.19400 on 21.05.2024. She has pointed out to the allegations made in paragraph 7 of the said affidavit through a chart narrating certain deficiencies.. It is urged that this is for the first time that these allegations have been made with no supporting letter or mail or any communication intimating the Opposite Party about such alleged deficiencies till 2024. The allegations in the aforesaid affidavit have seen the light of the day for the first time and were not part of the pleadings of the complaint or even thereafter. Thus, there was no cause of action ever communicated about any such deficiencies after the Complainants had taken over possession in 2009-10.
It is therefore submitted that such allegations cannot be entertained after 14 years without there being any evidence of its communication in the past or being pleaded in the complaint. Thus, there is a huge delay regarding such allegations, which is inordinate and unexplained, hence the allegations about such deficiencies cannot be entertained in the light of the statutory bar under Section 24A of the 1986 Act.
It needs to be clarified at the outset that the Complaint was argued in respect of the 19 Complainants and the prayer made in the complaint is for payment of rent on account of delay in possession as well as delay compensation and other heads which has been given the shape of a calculation in terms of the schedule quoted in paragraph 6 of the complaint extracted hereinunder:-
S.No. Name of Claimant Flat no./Tower Date of Agreement Date of possession Delay in possession Total Claim in INR.
(A+B+C+D+E) Vishal Bansal 21/1403 14-07-2005 17.11.2009 Neeraj Garg 601/18 21-02-2006 28.04.2010 Deepak Khanna 19-Feb 1/6/2005 18.10.2009 V P Mishra 903/03 20-09-2005 06.05.2009 7-1/2 Sandeep Sahni (Flat sold to R P Kundra) 903/09 4/5/2005 11.11.2009 Vipul Aggarwal 1101/18 1/10/2005 01.07.2009 Chandra Kanta Gupta 804/03 29-03-2006 24-02-2009 N.A Gaurav Bansal 1203/20 28-05-2005 29.08.2009 Usha Gupta 1402/09 21-03-2010 02.06.2010 N.A Anurag Mittal 503/09 4/1/2006 25.09.2009 8-1/2 Sugata Parmani K 702/09 18-07-2005 17.12.2009 Shashi Gupta 402/20 1/2/2006 31.07.2009 Sanjay K Jain 602/20 2/1/2006 23.10.2009 9-1/2 Gaurav Singh Johar 1104/11 17-06-2005 28-02-2009 Nitin Gupta 701/09 16-05-2005 03.12.2009 Biju Sebastian 1201/14 N.A 22-07-2009 N.A Ajay Chandorkar 701/10 20/09/2005 19.06.2009 R G Garg 404/08 8/4/2005 02.04.2009 Ravi Ayyals Omayajula 1102/09 6/6/2005 07.09.2009 Total 94,97,365 A= Car parking Charges B= Club Membership Charges C= Electricity Charges D= Maintenance Security Charges E= Late Possession Penalty A perusal thereof would indicate that there are only five heads of alleged deficiencies and the relief Clause is also tuned accordingly. There is no other deficiency alleged in the complaint and as pointed out by the learned Counsel for the Opposite party that the allegations of deficiencies now made in paragraph 7 of the affidavit dated 17.05.2024 are neither pleaded in the Complaint or any other affidavit except for the first time in 2024. Consequently, we are of the opinion that the allegations about the deficiencies mentioned now in paragraph 7 of the affidavit dated 17.05.2024 are not only time barred but in the absence of the same having been pleaded or contested the same cannot be part of any contest or consideration in the present complaint. The said deficiencies can even otherwise be not entertained as continuing causes of action inasmuch as they were never complained of by any communication to the Opposite Party nor they were part of the pleadings as noted above.
Coming to the other deficiencies alleged in paragraph 6 of the complaint, it has already been noted above that the claim of maintenance security charges has been given up as recorded in the order dated 05.04.2024. Consequently, it is the remaining four deficiencies categorised as A, B, C and E that were made the basis of the submissions and have been heard by this Commission as recorded hereinabove. The contention of the learned Counsel for the Opposite Party is that all these four remaining deficiencies as alleged were in the knowledge of the Complainants way back in the year 2009-2010. She submits that even otherwise on merits the said deficiencies are untenable but once the Complainants had taken possession on the dates referred to hereinabove, the cause of action had already commenced and there is no explanation for any delay for not having filed the complaint within two years. The excuse of one of the Complainants Mr. Sanjay Kumar Jain having approached the State Commission and then withdrawn the complaint also does not amount to either a cogent or plausible explanation.
In this regard, it would be appropriate to mention that the Apex Court in the case of State Bank of India Vs. B.S. Agriculture Industries (l) (2009) 5 SCC 121 in paragraph 11 to 14 as held as under:
11. Section 24-A of the Act, 1986 prescribes limitation period for admission of a complaint by the consumer fora thus:
"24-A. Limitation period.--(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay."
It would be seen from the aforesaid provision that it is peremptory in nature and requires the consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, "shall not admit a complaint" occurring in Section 24-A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within the limitation period prescribed thereunder.
As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24-A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.
In Union of India v. British India Corpn. Ltd. [(2003) 9 SCC 505] while dealing with an aspect of limitation for an application for refund prescribed in the Business Profits Tax Act, 1947 this Court held that the question of limitation was a mandate to the forum and, irrespective of the fact whether it was raised or not, the forum must consider and apply it.
In HUDA v. B.K. Sood [(2006) 1 SCC 164] this Court while dealing with the same provision viz. Section 24-A of the Act, 1986 held : (SCC pp. 167-68, paras 10-12) "10. Section 24-A of the Consumer Protection Act, 1986 (referred to as 'the Act' hereafter) expressly casts a duty on the Commission admitting a complaint, to dismiss a complaint unless the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that the complainant had sufficient cause for not filing the complaint within the period of two years from the date on which the cause of action had arisen.
11. The section debars any fora set up under the Act, admitting a complaint unless the complaint is filed within two years from the date of which the cause of action has arisen. Neither the National Commission nor had the State Commission considered the preliminary objections raised by the appellant that the claim of the respondent was barred by time. According to the complaint filed by the respondent, the cause of action arose when, according to the respondent, possession was received of the booth site and it was allegedly found that an area less than the area advertised had been given. This happened in January 1987. Furthermore, the bhatties which were alleged to have caused loss and damage to the respondent, as stated in the complaint, had been installed before 1989 and removed in 1994. The complaint before the State Commission was filed by the respondent in 1997, ten years after the taking of possession, eight years after the cause of alleged damage commenced and three years after that cause ceased. There was not even any prayer by the respondent in his complaint for condoning the delay.
12. Therefore, the claim of the respondent on the basis of the allegations contained in the complaint was clearly barred by limitation as the two year period prescribed by Section 24-A of the Act had expired much before the complaint was admitted by the State Commission. This finding is sufficient for allowing the appeal.""
The question of triggering of the period of limitation in order to construe as to whether there is a continuing cause of action or not, the Apex Court in the case of Shree Ram Mills Ltd. Vs. Utility Premises (P) Ltd. (2007) 4 SCC 599, Para 30 held as under:-
"30. Once we have come to the conclusion that the learned designated Judge was right in holding that there was a live issue, the question of limitation automatically gets resolved. This Court in Hari Shanker Singhania case [(2006) 4 SCC 658] held that till such time as the settlement talks are going on directly or by way of correspondence no issue arises and with the result the clock of limitation does not start ticking. This Court observed: (SCC pp. 667-68, para 24) "24. Where a settlement with or without conciliation is not possible, then comes the stage of adjudication by way of arbitration. Article 137, as construed in this sense, then as long as parties are in dialogue and even the differences would have surfaced it cannot be asserted that a limitation under Article 137 has commenced. Such an interpretation will compel the parties to resort to litigation/arbitration even where there is serious hope of the parties themselves resolving the issues. The learned Judges of the High Court, in our view have erred in dismissing the appellants' appeal and affirming the findings of the learned Single Judge to the effect that the application made by the appellants under Section 20 of the Act, 1940 asking for reference was beyond time under Article 137 of the Limitation Act. ... As already noticed, the correspondence between the parties, in fact, bears out that every attempt was being made to comply with and carry out the reciprocal obligations spelt out in the agreement between the parties."
These observations would clearly suggest that where the negotiations were still on, there would be no question of starting of the limitation period."
The third judgment which comes to mind is the recent decision of the Apex Court in the case of Samruddhi Co-Operative Housing Society Vs. Mumbai Mahalaxmi Construction Pvt Ltd. (2022) 4 SCC 103 where deficiency in service and the computation of limitation under the 1986 Act was subjected to interpretation arising out of a dispute of failure to obtain an occupancy certificate. It was held that such a deficiency provided a continuing wrong and therefore a consumer complaint would be maintainable and would not be barred by limitation. After referring to various decisions under the heading of "analysis" the Apex Court in paragraph 11 to 18 held as under:-
11. The crux of the appeal revolves around the maintainability of the complaint and whether it is barred by limitation. Ncdrc held [Samruddhi Coop. Housing Society Ltd. v. Mumbai Mahalaxmi Construction (P) Ltd., 2018 SCC OnLine NCDRC 1711] that the cause of action arose when the municipal authorities asked the appellant to pay higher charges in the first instance and thus, a complaint should have been filed within two years of the accrual of the cause of action. The appellant however, has argued that the cause of action is of a continuing nature, since members of the appellant have continued paying higher charges as the respondent failed to provide the occupancy certificate.
Section 24-A of the Consumer Protection Act, 1986 provides for the period of limitation period for lodging a complaint. A complaint to a consumer forum has to be filed within two years of the date on which the cause of action has arisen. In the instant case, the appellant has submitted that since the cause of action is founded on a continuing wrong, the complaint is within limitation.
Section 22 of the Limitation Act, 1963 [ "22. Continuing breaches and torts.--In the case of a continuing breach of contract or in the case of a continuing tort, a fresh period of limitation begins to run at every moment of the time during which the breach or the tort, as the case may be, continues."] provides for the computation of limitation in the case of a continuing breach of contract or tort. It provides that in case of a continuing breach of contract, a fresh period of limitation begins to run at every moment of time during which the breach continues. This Court in Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan [Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan, 1959 Supp (2) SCR 476 : AIR 1959 SC 798] elaborated on when a continuous cause of action arises.
Speaking for the three-Judge Bench, P.B. Gajendragadkar, J. (as the learned Chief Justice then was) observed that : (Balakrishna case [Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan, 1959 Supp (2) SCR 476 : AIR 1959 SC 798] , AIR p. 807, para 31) "31. ... Does the conduct of the trustees amount to a continuing wrong under Section 23? That is the question which this contention raises for our decision. In other words, did the cause of action arise de die in diem as claimed by the appellants? In dealing with this argument it is necessary to bear in mind that Section 23 refers not to a continuing right but to a continuing wrong. It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection it is necessary to draw a distinction between the i njury caused by the wrongful act and what may be described as the effect of the said injury. It is only in regard to acts which can be properly characterised as continuing wrongs that Section 23 can be invoked."
(emphasis supplied) The Court held that the act of the trustees to deny the rights of Guravs as hereditary worshippers and dispossessing them through a decree of the court was not a continuing wrong. Although the continued dispossession caused damage to the appellants, the injury to their rights was complete when they were evicted.
In CWT v. Suresh Seth [CWT v. Suresh Seth, (1981) 2 SCC 790 : 1981 SCC (Tax) 168] , a two-Judge Bench of this Court dealt with the question of whether a default in filing a return under the Wealth Tax Act amounted to a continuing wrong. E.S. Venkataramiah, J. (as the learned Chief Justice then was) observed that : (SCC pp. 798-99, para 11) "11. ... The distinctive nature of a continuing wrong is that the law that is violated makes the wrongdoer continuously liable for penalty. A wrong or default which is complete but whose effect may continue to be felt even after its completion is, however, not a continuing wrong or default. It is reasonable to take the view that the court should not be eager to hold that an act or omission is a continuing wrong or default unless there are words in the statute concerned which make out that such was the intention of the legislature. In the instant case whenever the question of levying penalty arises what has to be first considered is whether the assessee has failed without reasonable cause to file the return as required by law and if it is held that he has failed to do so then penalty has to be levied in accordance with the measure provided in the Act. When the default is the filing of delayed return the penalty may be correlated to the time lag between the last day for filing it without penalty and the day on which it is filed and the quantum of tax or wealth involved in the case for purposes of determining the quantum of penalty but the default however is only one which takes place on the expiry of the last day for filing the return without penalty and not a continuing one. The default in question does not, however, give rise to a fresh cause of action every day. Explaining the expression "a continuing cause of action" Lord Lindley in Hole v. Chard Union [Hole v. Chard Union, (1894) 1 Ch 293 : 63 LJ Ch 469 : 70 LT 52 (CA)] observed : (Ch pp. 295-96) '... What is a continuing cause of action? Speaking accurately, there is no such thing; but what is called a continuing cause of action is a cause of action which arises from the repetition of acts or omissions of the same kind as that for which the action was brought.' "
6. The Court further provided illustrations of continuous wrongs : (Suresh Seth case [CWT v. Suresh Seth, (1981) 2 SCC 790 : 1981 SCC (Tax) 168] , SCC p. 800, para 17) "17. The true principle appears to be that where the wrong complained of is the omission to perform a positive duty requiring a person to do a certain act the test to determine whether such a wrong is a continuing one is whether the duty in question is one which requires him to continue to do that act. Breach of a covenant to keep the premises in good repair, breach of a continuing guarantee, obstruction to a right of way, obstruction to the right of a person to the unobstructed flow of water, refusal by a man to maintain his wife and children whom he is bound to maintain under law and the carrying on of mining operations or the running of a factory without complying with the measures intended for the safety and well-being of workmen may be illustrations of continuing breaches or wrongs giving rise to civil or criminal liability, as the case may be, de die in diem."
17. In M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das [M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das, (2020) 1 SCC 1] , a Constitution Bench of this Court [of which one of us (D.Y. Chandrachud, J.) was a part] examined the precedents with regard to a continuing wrong. The Court observed that : (SCC p. 369, para 343) "343. The submission of Nirmohi Akhara is based on the principle of continuing wrong as a defence to a plea of limitation. In assessing the submission, a distinction must be made between the source of a legal injury and the effect of the injury. The source of a legal injury is founded in a breach of an obligation. A continuing wrong arises where there is an obligation imposed by law, agreement or otherwise to continue to act or to desist from acting in a particular manner. The breach of such an obligation extends beyond a single completed act or omission. The breach is of a continuing nature, giving rise to a legal injury which assumes the nature of a continuing wrong. For a continuing wrong to arise, there must in the first place be a wrong which is actionable because in the absence of a wrong, there can be no continuing wrong. It is when there is a wrong that a further line of enquiry of whether there is a continuing wrong would arise. Without a wrong there cannot be a continuing wrong. A wrong postulates a breach of an obligation imposed on an individual, whether positive or negative, to act or desist from acting in a particular manner. The obligation on one individual finds a corresponding reflection of a right which inheres in another. A continuing wrong postulates a breach of a continuing duty or a breach of an obligation which is of a continuing nature. ...
Hence, in evaluating whether there is a continuing wrong within the meaning of Section 23, the mere fact that the effect of the injury caused has continued, is not sufficient to constitute it as a continuing wrong. For instance, when the wrong is complete as a result of the act or omission which is complained of, no continuing wrong arises even though the effect or damage that is sustained may enure in the future. What makes a wrong, a wrong of a continuing nature is the breach of a duty which has not ceased but which continues to subsist. The breach of such a duty creates a continuing wrong and hence a defence to a plea of limitation."
A continuing wrong occurs when a party continuously breaches an obligation imposed by law or agreement. Section 3 of the MOFA imposes certain general obligations on a promoter. These obligations inter alia include making disclosures on the nature of title to the land, encumbrances on the land, fixtures, fittings and amenities to be provided, and to not grant possession of a flat until a completion certificate is given by the local authority. The responsibility to obtain the occupancy certificate from the local authority has also been imposed under the agreement to sell between the members of the appellant and the respondent on the latter."
While further analysing the provisions that were involved in that case namely the Maharashtra Owners of Flat Act (MOFA), it was held that there was an obligation on the builder to provide the occupancy certificate and pay for the relevant charges till the certificate has been provided. The Apex Court in paragraph 21 and 22 then held as under:-
"21. Based on these provisions, it is evident that there was an obligation on the respondent to provide the occupancy certificate and pay for the relevant charges till the certificate has been provided. The respondent has time and again failed to provide the occupancy certificate to the appellant Society. For this reason, a complaint was instituted in 1998 by the appellant against the respondent. Ncdrc on 20-8-2014 directed the respondent to obtain the certificate within a period of four months. Further, Ncdrc also imposed a penalty for any delay in obtaining the occupancy certificate beyond these 4 months. Since 2014 till date, the respondent has failed to provide the occupancy certificate. Owing to the failure of the respondent to obtain the certificate, there has been a direct impact on the members of the appellant in terms of the payment of higher taxes and water charges to the municipal authority. This continuous failure to obtain an occupancy certificate is a breach of the obligations imposed on the respondent under the MOFA and amounts to a continuing wrong. The appellants, therefore, are entitled to damages arising out of this continuing wrong and their complaint is not barred by limitation.
22.Ncdrc in its impugned order has held [Samruddhi Coop. Housing Society Ltd. v. Mumbai Mahalaxmi Construction (P) Ltd., 2018 SCC OnLine NCDRC 1711] that the cause of action arose when the municipal authorities ordered the payment of higher taxes in the first instance. Further, the impugned order [Samruddhi Coop. Housing Society Ltd. v. Mumbai Mahalaxmi Construction (P) Ltd., 2018 SCC OnLine NCDRC 1711] also states that the present complaint is barred by limitation as there is no prayer for supply of occupancy certificate. We are unable to subscribe to the view of Ncdrc on both counts. Undoubtedly, the continuing wrong in the present case is the failure to obtain the occupancy certificate. Against this act of the respondent, the appellant Society has taken appropriate action by filing a complaint before the consumer forum. The appellant is currently pursuing the execution of the order of Scdrc arising from that complaint. However, that itself does not preclude it from claiming compensation for the consequences which have arisen out of this continuing wrong. The failure to obtain the occupancy certificate has resulted in the levy of higher taxes on the members of the appellant Society repeatedly by the municipal authorities. Despite the order of 20-8-2014, the respondent has failed to obtain the occupancy certificate. This has resulted in a situation where the appellant, despite having followed the correct course of litigation in demanding the furnishing of an occupancy certificate, will continue to suffer the injury inflicted by the respondent merely due to the delay in the execution of the order against the respondent. Rejecting the complaint as being barred by limitation, when the demand for higher taxes is made repeatedly due to the lack of an occupancy certificate, is a narrow view which is not in consonance with the welfare objective of the Consumer Protection Act, 1986."
Ncdrc in its impugned order has held [Samruddhi Coop. Housing Society Ltd. v. Mumbai Mahalaxmi Construction (P) Ltd., 2018 SCC OnLine NCDRC 1711] that the cause of action arose when the municipal authorities ordered the payment of higher taxes in the first instance. Further, the impugned order [Samruddhi Coop. Housing Society Ltd. v. Mumbai Mahalaxmi Construction (P) Ltd., 2018 SCC OnLine NCDRC 1711] also states that the present complaint is barred by limitation as there is no prayer for supply of occupancy certificate. We are unable to subscribe to the view of Ncdrc on both counts. Undoubtedly, the continuing wrong in the present case is the failure to obtain the occupancy certificate. Against this act of the respondent, the appellant Society has taken appropriate action by filing a complaint before the consumer forum. The appellant is currently pursuing the execution of the order of Scdrc arising from that complaint. However, that itself does not preclude it from claiming compensation for the consequences which have arisen out of this continuing wrong. The failure to obtain the occupancy certificate has resulted in the levy of higher taxes on the members of the appellant Society repeatedly by the municipal authorities. Despite the order of 20-8-2014, the respondent has failed to obtain the occupancy certificate. This has resulted in a situation where the appellant, despite having followed the correct course of litigation in demanding the furnishing of an occupancy certificate, will continue to suffer the injury inflicted by the respondent merely due to the delay in the execution of the order against the respondent. Rejecting the complaint as being barred by limitation, when the demand for higher taxes is made repeatedly due to the lack of an occupancy certificate, is a narrow view which is not in consonance with the welfare objective of the Consumer Protection Act, 1986."
Now applying the aforesaid principles, it has to be seen as to which of the deficiencies as alleged in paragraph 6 of the complaint were existing so as to construe them as a continuing wrong to give rise to a cause of action in order to maintain the complaint.
However before that it needs to be reiterated as stated in Paragraph 16 above that the deficiencies which have been alleged through the affidavit dated 17.05.2024 were causes that had accrued way back in 2009 and 2010, if at all they were existing, and the injury was complete, if any 2009 and 2010. The allegations therefore made in the said affidavit therefore represent causes which could have been raised but in fact were not raised even in the complaint in 2013. As noted above, there is no material to indicate that any such objection or deficiency was pointed out after taking physical possession in 2009-10 or even thereafter during the pendency of this complaint that was filed in 2013. Consequently, the said deficiencies do not in any way amount to a continuing cause of action or cause of action at all which is clearly barred by time and cannot be agitated as there is no explanation whatsoever of this highly belated and inordinate as well unexplained delay in making there allegations. They are otherwise also bald and unsupported by any evidence as such are declined.
Coming back to the other deficiencies mentioned in paragraph 6 of the complaint, the car parking charges and the electricity charges had been realised when the payments were made according to the statement of accounts which has been appended as schedule 1 to the builder buyer agreement and is common for all the 19 complainants. The car parking charge is mentioned at serial no. E which is Rs.2 lakhs and has been paid by the Complainants. Similarly, meter/electricity installation charges of Rs.35 thousand have been mentioned against serial no.2. Similarly, club membership registration charges is mentioned at serial no.1 which is Rs.50,000/-. The chart in the statement of accounts in the case of the Petitioner No. 1 Vishal Bansal is extracted hereinunder:
SI.No Components Previous Areas as per agreement Revised/ Actuals Area (Sq. Fts) 2646 2858 Basic Sale Price (Rs. Per Sq. Ft.) 1625.00 1625.00 Preferential Location Charges (Rs. Per Sq. ft.) 100.00 100.00 Infrastructure development charges (Rs. Per Sq. Ft.) 31.75 31.75 Car Parking (Rs.) 200000.00 200000.00 TOTAL COST 4848361.00 5220792.00 Add : Club Membership Registration Charges (Rs.) 50000.00 Add : Meter/ Electricity Installation Charges (Rs.) 35000.00 Add : Interest Free Main. Security (Rs.50/- Per sq. ft.) 142900.00 Add :Interest/ Bank Charges (Rs.) 149.00 Less : Payment received (Excluding received towards Interest and Administration Charges) 4610143.00 TOTAL AMOUNT 838698.00 NETT AMOUNT PAYABLE 838698.00 It is correct that these realisations were made and possession was taken by the Complainants without raising any dispute subsequent thereto till the filing of the complaint. The question is, can these components or costs realised be treated as continuing wrongs in order to give benefit of limitation beyond the period mentioned in Section 24A. This would be dependent on the character of the wrong and the timing of the claims as alleged by the Complainant. Out of these three components, as explained hereinafter, we are certain that the issue of Club Membership registration charges of Rs.50,000/- is a component about which the stand of the Petitioners to treat it as a continuing wrong and a continuing injury is established on the facts of the present case, but we are doubtful about the car parking charges and the electricity installation/meter charges to be exactly a continuing wrong, inasmuch as, the said amounts had been paid by the complainants as would be evident from the terms of the agreement without any demur, but in view of the explanation given by the Opposite Party, the realisation of electricity installation charges to the tune of Rs.35,000/- also seems to be an worth consideration as would be evident from our findings recorded hereinafter. Apart from this, the issue of delay compensation, if established, can also be considered to be a continuing wrong but it shall be dealt with later on hereinafter.
To begin with since the issue of limitation and continuing wrong is intertwined and has to be assessed topic wise as raised in the complaint, we proceed to decide the same in the light of the principles for limitation and continuing wrong as extracted hereinabove.
Taking up the cause of car parking charges of Rs.2 lakhs, the refund has been sought by the Complainants, it would be appropriate to refer to clause I of the agreement which is appended along with the complaint as annexure P(1) collectively. The same is extracted hereinunder:-
"I. The FLAT ALLOTTEE(S) has applied to the DEVELOPER vide application dated 12-Jul-2004 for the allotment of a residential Flat in the GROUP HOUSING COMPLEX, with an exclusive right to use of one open/covered parking space."
The next clause relevant is clause 1.2 (a) extracted hereinunder:-
"1.2 Consideration for sale of Flat Sale Price The Price of the FLAT ("Sale Price") payable by the FLAT ALLOTTEE(S) to the DEVELOPER inclusive of External Development Charges, Preferential Location Charges (wherever applicable) and exclusive right to use one covered Car Parking shall be Rs.2853600.00 (Rupees Twenty Eight Lacs Fifty Three Thousand Six Hundred only) which is payable as per the Schedule of payment as per Annexure-II"
The next relevant clause which needs to be referred is clause 4 that is extracted hereinunder:
"4. That the FLAT ALLOTTEE(S) agrees that the exclusive reserved open/ covered parking space assigned to him/her for exclusive use shall be understood to be together with the FLAT and the same shall not have independent legal entity detached from the said FLAT. The FLAT ALLOTTEE(S) undertakes not to sell/ transfer/ deal with the reserved parking space independent of the said FLAT. In case the FLAT ALLOTTEE(S) has applied for and has been allotted an additional parking space, the same can also be transferred only to an Owner of other flats in the GROUP HOUSING COMPLEX and in no circumstances the additional parking space can be transferred to an outsider. The FLAT ALLOTTEE(S) undertakes to park his/her vehicle in the parking space allotted to him/her and not anywhere else in the said GROUP HOUSING COMPLEX. It is specifically made clear and the FLAT ALLOTTEE(S) agrees that the basement and other areas in the GROUP HOUSING COMPLEX reserved for services, maintenance staff etc. shall not be used for parking his/her vehicles. The FLAT ALLOTTEE(S) agrees that all such reserved parking spaces allotted to the occupants of the said TOWER/GROUP HOUSING COMPLEX shall not form part of common areas and facilities of the said FLAT for the purpose of the declaration to be filed by the DEVELOPER under Haryana Apartment Ownership Act, 1983, as amended. The FLAT ALLOTTEE(S) agrees and confirms that the reserved parking space allotted to him/her shall automatically be cancelled in the event of cancellation, surrender, relinquishment, resumption, re-possession etc. of the said FLAT under any of the provisions of this Agreement."
In this respect, it is also relevant to refer to the clauses in respect of the definition of super area contained in Annexure 3. The said Annexure 3 is extracted hereinunder:-
"Super Area for the purpose of calculating the sale price in respect of the said flat shall be the sum of flat area of the said flat and its pro-rata share of common areas in the entire said building.
Whereas the Flat Area of the said flat shall mean entire area enclosed by its periphery walls including area under the walls, columns, balconies, cupboards, etc. and half the area of common walls with other premises/flats, which form integral part of the said flat. Common Areas shall mean all such parts/areas in the entire building which the allottee(s) shall use by sharing with other occupants of the said building that include entrance lobby, driver's/common toilet, lift shafts, electrical shafts, fire shafts, plumbing shafts and service ledges on all floors, common corridors and passages, staircase, mumties, service areas including but not limited to lift machine room, maintenance offices/stores, etc, architectural features, if provided, and security/fire control rooms.
In case of flats provided with exclusive open terraces the calculation of super area shall be dealt with separately. Flat Allottee(s), however, shall not be permitted to cover such terraces and shall use the same as open terrace only and in on other manner whatever.
It is specifically made clear that the computation of Super Area of the flat does not include the following: a) Sites for shops and shop(s).
b) Sites/Building/Area of Community Facilities Amenities like Nursery/Primary/Higher Secondary School Club/Community Centres, Dispensary, Crèche, Religious Buildings Health Centres, Police Posts, Electrical Sub-Stations, Dwelling Units for economically weaker Sections/ Personnel.
It is specifically made clear that the computation of Super Area of the flat does not include the following:
a) Sites for shops and shop(s).
b) Sites/Building/Area of Community Facilities Amenities like Nursery/Primary/Higher Secondary School, Club/Community Centres, Dispensary, Crèche, Religious Buildings Health Centres, Police Posts, Electrical Sub-Stations, Dwelling Units for economically weaker Sections/ Personnel.
c) Roof/top terrace above flats, overhead tanks/underground tanks, pump rooms, boundary wall, guardrooms, and garbage dumps.
d) Car parking area within Orchid Petals:
i) Covered parking area allotted to Flat Allottee(s), for exclusive use, at basement level.
ii) Open reserved car parking area in and around Orchid Petals for allottee(s).
It is further clarified that the Super Area mentioned in the Agreement is tentative and for the purpose of computing sale price in respect of said flat only and the inclusion of common area within the said building/tower for the purpose of calculating super area does not give any right, title or interest in common areas by sharing with other occupants/allottee(s) in the said building subject to timely payment of maintenance charges."
The specific provision for excluding the car parking area from the super area is contained in clause D extracted hereinabove. The terminology of super area as contained in clause 1.1 is "having an approximate super area of 1712 sq.ft (159.05 sq.m.). It further provides that the areas are tentative and are subject to change till the grant of occupation certificate from the competent authority with an exclusive right to use one open/ cover car parking space. This is being mentioned as it is the specific case of the Opposite Party that the car parking area has not been sold and it is only the exclusive right to use which has been given under the flat buyer agreement to the buyer. There is no transfer of ownership but at the same time there is an exclusive right which is perpetual in nature to use the said car parking space subject to the other terms and conditions referred to in the agreement. The contention of the learned Counsel for the Opposite Party is that it cannot be sold as there is neither any such agreement to that effect nor otherwise also can it be sold keeping in view the provisions of the Haryana Apartment Ownership Act and the rules framed hereinunder, as well as the legal position explained and mandated in the judgment of the Apex Court in the Case of Nahalchand Laloochand Pvt. Ltd. v. Panchali Co-operative Housing Society Ltd (2010) 9 SCC 536.
It may be mentioned that it is the case of the Complainants that in terms of clause 3 (f) of the above mentioned Haryana Apartment Ownership Act, parking area is part of the common areas and facilities as defined therein and hence according to them the same cannot be sold or charges realised in view of the case of Nahalchand Laloochand Pvt. Ltd (Supra).
However, learned Counsel for the Opposite Party submits that the Complainants, right from the inception, were aware of the realisation of parking area charges as is evident from the terms of the flat buyer agreement itself and was voluntarily paid by them which does not amount to any sale of the parking area, as the sale price of the flat does not include the car parking area within the super area which has been sold to the flat buyer. It is for this reason that the agreement describes conveyance only of an exclusive right to use one covered parking space. In the absence of any conveyance of the property, the complainants cannot compel the inclusion of the car parking within the sale deed or treat the same as part of the sale deed. Thus, there is no question of refund of the said charges as this has been explained by the Apex Court in the case of Wing Commander Arifur Rahman Khan and Aleya Sultana Vs. DLF Southern Homes Pvt. Ltd. (2020) 16 SCC 512 where in paragraph 18.10 read with paragraphs 66 to 68, they have been observed as under:-
"18.10. The price of the apartment, as agreed in the ABA, included in the break-up, parking charges for exclusive use of earmarked parking spaces. Parking charges were also revealed upfront in the brochure. The appellants had erroneously relied on the decision of this Court in Nahalchand Laloochand (P) Ltd. v. Panchali Coop. Housing Society Ltd. [Nahalchand Laloochand (P) Ltd. v. Panchali Coop. Housing Society Ltd., (2010) 9 SCC 536] , which turned on the construction of the provisions of the Maharashtra Apartment Ownership Act, 1971 and the Development Control Regulations for Greater Bombay, 1991. This has subsequently been explained in the decision in DLF Ltd. v. Manmohan Lowe [DLF Ltd. v. Manmohan Lowe, (2014) 12 SCC 231 : (2014) 5 SCC (Civ) 94] . There is no prohibition in the Karnataka Apartment Ownership Act upon the developer providing earmarked parking charges in the break-up of the total price of the apartment.
66. The appellants seek a refund of an amount of Rs 2.25 lakhs collected from each buyer towards car parking. The submission is that under Section 3(f) of the Karnataka Apartment Ownership Act, 1972 ("the KAO Act"), common areas and facilities include parking areas. According to the appellants, the flat buyers had already paid for the super area in terms of Clause 1.6 of ABA including common areas and facilities which would be deemed to include car parking under the KAO Act. The relevant portion of Clause 1.6 is extracted below:
"1.6. The allottee agrees that the total price of the said apartment is calculated on the basis of its super area only (as indicated in Clause 1.1) except the parking space, additional car parking space which are based on fixed valuation...."
67. We are unable to accede to the above submission. The ABA contained a break-up of the total price of the apartment. Parking charges for exclusive use of earmarked parking spaces were separately included in the break-up. The parking charges were revealed to the flat buyers in the brochure. The charges recovered are in terms of the agreement
68. The decision of this Court in Nahalchand Laloochand (P) Ltd. v. Panchali Coop. Housing Society Ltd. [Nahalchand Laloochand (P) Ltd. v. Panchali Coop. Housing Society Ltd., (2010) 9 SCC 536] turned on the provisions of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 as explained in the subsequent decision of this Court in DLF Ltd. v. Manmohan Lowe [DLF Ltd. v. Manmohan Lowe, (2014) 12 SCC 231 : (2014) 5 SCC (Civ) 94] . The demand of parking charges is in terms of the ABA and hence it is not possible to accede to the submission that there was a deficiency of service under this head."
It is urged that since the fact regarding Parking Area Charges in this case was declared to the purchasers right at the inception, the decision in the case of Nahalchand Laloochand Pvt. Ltd (Supra) would not come to the aid of the Complainants as distinguished by the Apex Court hereinabove. It may, however, be mentioned that in the present case as quoted hereinabove Clause I mentions exclusive right to use one open/covered parking space. However, clause 1.2(a) in the description of consideration of sale price categorically states that the price of the Flat (Sale Price) is "inclusive of the exclusive right to use" one covered car parking. The words used are "the price" and "sale price" as consideration for sale of a Flat, nonetheless while including it as part of the sale price, the right given is the exclusive right to use one covered car parking. The property sold is the super area which is understood and defined as quoted above to be the same as flat area plus the pro-rata share of common areas in the entire building. Even though Section 3(f) of the Haryana Apartment Ownership act refers to parking area to be within the meaning of common area, yet the agreement clearly states that the super area while being computed, would not include the area of facilities and amenities, and specifically the car parking area. Thus, the car parking area even though conveyed, is subject to the exclusive right to use and in short, the said parking area cannot be transferred by the flat owner as an independent legal entity and would not be subject matter of sale or transfer independent of the flat. Thus, the parking space would continue perpetually with the flat allottee and would be transferable to any successor purchaser along with the flat but not independently to any third party. This is to ensure that the parking lot is secured for the flat owner and at the same time no additional right or liability is created so as to delink the car parking space with the flat. In essence, the car parking space stood permanently wedded to the flat irrespective of its owner. In view of what has been discussed above, the aforesaid fact of charges for the Car Parking Area was therefore well known to the Complainants right from the beginning, and hence as urged by the learned Counsel for the Opposite Party the position of law as explained in the case of Wing Commander Arifur Rahman Khan and Aleya Sultana (Supra) would squarely apply on the facts of the present case. Coupled with this, the injury in this regard if any caused to the Complainant had arisen in 2009-10 when they had taken possession after making payments of the Car Parking Area charges, and hence this part of the Complaint also was an action that had accrued at that time. There is no explanation as to why the same was not raised between two years of the limitation under Section 24-A of the 1986 Act.
Consequently, the question of refund of Rs.2 lakhs of car parking charges therefore does not arise and the said relief even otherwise was in relation to a cause of action that had arisen wayback in 2009-10 when the possession was taken by the Complainants. This relief claimed in respect of car parking charges therefore is also hit by Section 24A as the Complainants had neither raised this as a deficiency after taking possession nor did they communicate about which in any manner whatsoever or file their complaint within two years of the date of the cause of action. Thus, both on merits and even on limitation, the request of refund of car parking area does not appear to be justified and is accordingly declined.
Coming to the issue of electricity charges of Rs.35,000/-, the Petitioners claim refund thereof on the ground that according to the bills and invoices regarding the price of the meter the same does not exceed beyond Rs.5,000/- and therefore the charges for electricity installation and meter is without any foundation and excessive hence the same deserves to be refunded. Learned Counsel for the Opposite Party has invited the attention of the Bench to Clause 8 and Clause 22 of the agreement in this respect. They are extracted hereinunder:
"8. That the FLAT ALLOTTEE(S) agrees to pay any additional deposits, charges for bulk supply of electrical energy, any amount spent towards additional transformers, sub-stations or any transmission line to the SCHEDULED PROPERTY as may be demanded by the DEVELOPER from time to time.
22. That if the permission to receive and distribute Bulk supply of electricity in the Said Complex is received by the. DEVELOPER or its nominated Maintenance Agency or the Association, the FALT ALLOTTEE(S) herein agrees to abide by all the conditions of the sanction of Bulk supply and to pay on demand, proportionate share of all deposits or charges paid or payable by the Agency to whom permission to receive Bulk supply and distribute the same is granted. Subject to the foregoing, the FLAT ALLOTTEE(S) herein further agrees to enter into and execute a Power Supply Agreement and/or any other document as may be required for this purpose, containing requisite terms and conditions."
It is urged that the flat allottees had agreed for payment of any charges regarding installation of transformers, substations and transmissions lines and had further agreed to pay on demand proportionate share of all deposits or charges in respect of such electricity supply.
In support of this allegation, the Complainants have alleged that the cost of the meter is only Rs.5,000/- and therefore there is no occasion to charge Rs.35,000/-. Learned Counsel for the Opposite Party has fairly submitted that on the basis of instructions it is correct that the cost of the meter was possibly Rs.5,000/- when it was paid but the charges that have been realised are not simply the cost of the meter but also the installation charges which includes laying of cables from the main line and for backup supply, installation of distribution panels, security for the connection and other infrastructure that was required to be set up from the feeder panel to the energy meter in each unit. For this learned Counsel for the Opposite Party has placed an approximate calculation in the shape of a chart along with their short reply filed on 01.08.2024 which is extracted hereinunder:-
This cost breakup is sought to be explained in Paragraphs 12, 13, & 14 but it is not supported by any document.
The paragraphs indicate an approximate amount of Rs.6,200/- to have been paid towards security charges. The entire stated expenses of Rs.4,86,00,000/- has been divided amongst 1,383 units of the entire project and the average has been calculated for one unit as Rs.35,141/-. Learned Counsel submits that this is an approximation on the basis whereof the charges have been realised.
From these pleadings what appears is that there is no dispute about the rate and cost of a single meter which was approximately Rs.5,000/-. The Complainants have not disputed the security charges of Rs.6200/- referred to in the affidavit of the Opposite Party extracted hereinabove. There is also no denial that installation expenses have been incurred for providing electricity connection but at the same time the Opposite Party has not filed any single document to support the expenses in respect of each of the items as referred to in the chart relied on by them and extracted hereinabove. Learned Counsel for the Opposite Party urged that since this is an old matter and therefore there does not seem to be any such document available. We are not inclined to accept the explanation as argued by the learned Counsel, inasmuch as, such a huge expense running into Rs.4,86,00,000/- cannot be presumed to be undocumented or without any receipts or papers. Nonetheless, in order to ascertain the correctness or otherwise of the same this may require leading of evidence. When it comes to tangible expenses and accounts, a speculative assessment cannot be made but at the same time any exaggeration also cannot be accepted.
On the facts as brought forth, there does not seem to be any dispute regrading the cost of the meter to be Rs.5,000/- and the security charges of Rs.6,200/-. Apart from this, to assume that no other expenses were incurred for the installation of electricity in all the 1383 units, including that of the 19 Complainants herein, would not be appropriate after 14 years and to issue any direction of refund when a measurable part of the expenses out of Rs.35,000/- seems to be justified. This issue also on merits therefore cannot be gone into in the absence of evidence and even otherwise once again these payments had been made in 2009-10 without any demur.
It would be appropriate to mention regarding the period of limitation that one of the Complainants Mr. Sanjay K. Jain had filed his complaint on 05.12.2009 but in that complaint copy whereof has been filed by the Opposite Parties, the only dispute raised was with regard to some charges realised by the Opposite Party on the increase of the super area as alleged by Mr. Jain and followed by delay in handing over possession. Apart from this there were no allegations of any other deficiency in that complaint which was withdrawn on 28.02.2013. It is apt to mention that this fact of the filing of the complaint by Mr. Sanjay K. Jain and its withdrawal had not been stated in the complaint and was concealed. The issues pertaining to Car Parking Area Charges and realisation of electricity installation charges/meter charges were not even raised there and as noted above or communicated in any form to the Opposite Parties till the date of the filing of the complaint. There is no such document on record to explain as to why such issues had not been raised within the period of two years of the date of the cause of action which arose on taking possession of the flat in 2009-10. The electricity charges claim therefore neither on merits nor on limitation can be answered in favour of the Complainants and is accordingly declined.
Coming to the issue of payment of delay compensation, it is correct that the Complaint filed by Mr. Sanjay K. Jain before the State Commission had raised the issue of delay compensation but as noted above the said complaint was got dismissed as withdrawn. To examine the promise made under the agreement, it would be apt to refer to clause 28 relating to delivery of possession which is extracted hereinunder:-
"28. Possession
a) Time of handing over the Possession That subject to terms of this clause and subject to the FLAT ALLOTTEE(S) having complied with all the terms and conditions of this Agreement and not being in default under any of the provisions of this Agreement and complied with all provisions, formalities, documentation etc., as prescribed by the DEVELOPER, the DEVELOPER proposes to hand over the possession of the FLAT within a period of thirty six (36) months from the date of signing of this Agreement. The FLAT ALLOTTEE(S) agrees and understands that the DEVELOPER shall be entitled to a grace period of 90 days, after the expiry of thirty six (36) months, for applying and obtaining the Occupation Certificate in respect of the GROUP HOUSING COMPLEX.
b) Subject to Clause 46, in the following circumstances, the date of possession shall get extended accordingly:
i) The completion of the said GROUP HOUSING COMPLEX including the FLAT is delayed by reason of non-availability of steel and/ or cement or other building materials, or water supply or electric power or slow down, strike or, lock-out or civil commotion or by reason of war or enemy action on terrorist action or earthquake or any act of God or due to any Act, Notice, Order, Rule or Notification of the Government and/or any other Public or Competent Authority or due to delay in sanction of any revised building/ zoning plans or for any other reasons beyond the control of the DEVELOPER, then the FLAT ALLOTTE(S) agrees that the DEVELOPER shall be entitled to the extension of time for handing over of the possession of the said FLAT. The DEVELOPER 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 DEVELOPER so warrant, the DEVELOPER may suspend the construction of the GROUP HOUSING COMPLEX and this Agreement for such period as it may consider expedient and the FLAT ALLOTTEE(S) agrees not to claim compensation of any nature whatsoever of this Agreement for the period of suspension of the construction of the GROUP HOUSING COMPLEX and this Agreement.
ii) If as a result of any law that may be passed by any legislature or Rule, Regulation or Order on notification that may be made and/or issued by the Government or any other Authority including a Municipal Authority or on account of delay in sanctioning of plans or any other sanctions or approval for development or issuance of occupation certificate by appropriate Authorities, the DEVELOPER is not in a position to hand over the possession of the FLAT, then the DEVELOPER may, if so advised, though not bound to do so, at its sole discretion challenge the validity, applicability and/ or efficacy of such Legislation, Rule, Order or notification by moving the appropriate Courts, Tribunal(s) and/or Authority. In such a situation, the money(ies) paid by the FLAT ALLOTTEE(S) in pursuance of this Agreement, shall continue to remain with the DEVELOPER and the FLAT ALLOTTEE(S) agrees not to move for or to obtain specific performance of the terms of this Agreement, it being specifically agreed that this Agreement shall remain in abeyance till final determination by the Court(s)/ Tribunal(s)/ Authority(ies). However, the FLAT ALLOTTEE(S) may, if he/ she so desires, become a party along with the DEVELOPER in such litigation to protect FLAT ALLOTTEF(S) rights arising under this Agreement.
Further, in the event of the DEVELOPER succeeding in its challenge to the impugned legislation or Rule, Regulation or Order, as the case may be, it is hereby agreed that this Agreement shall stand revived and the FLAT ALLOTTEE(S) and the DEVELOPER shall be liable to fulfill all obligations as provided in this Agreement. It is further agreed that in the event of the aforesaid challenge of the DEVELOPER to the impugned Legislation/ Order/ Rule/ Regulation not succeeding and the said legislation/order/rule/regulation becoming final, absolute and binding, the DEVELOPER will appoint a Receiver who shall have all the rights and authority to sell the entire property and disburse the sale proceeds among the Flat holders, for the amount attributable to the said FLAT, after making payments of the statutory dues and secured creditors and after deducting interest on delayed payments. processing fee etc, and any other expenses attributable to the said FLAT. The receiver will disburse the payments within a reasonable time in such manner as may be decided by the Receiver and the FLAT ALLOTTEE(S) agrees to accept the Receiver's decision in this regard to be final and binding. Save as otherwise provided herein, the FLAT ALLOTTEE(S) shall not have any other right or claim of whatsoever nature against the DEVELOPER under or in relation to this Agreement.
iii) That the FLAT ALLOTTEE(S) agrees and accepts that in case of any default/delay in payment as per the Schedule of Payments as provided in Annexure II, the date of handing over of the possession shall be extended accordingly solely on DEVELOPER'S discretion till the payment of all outstanding amounts to the satisfaction of the DEVELOPER."
The period during which the possession had to be handed over was 36 months from the date of signing of the agreement with a further grace period of 90 days. Learned Counsel for the Complainant has given a chart indicating the delay which is contained in paragraph 10 of the affidavit filed on 21.05.2024. The said chart is extracted hereinunder:
At the outset, learned Counsel for the Complainant has submitted that the delay indicated in the last column of the said chart has not included the extra grace period of 90 days and the same can be accordingly reduced therefrom.
As against this chart, learned Counsel for the Opposite Party has invited the attention of the Bench to paragraph 7 of their affidavit filed on 30.04.2024 which has been quoted in Para 9 hereinabove.
With the help of the aforesaid chart, learned Counsel for the Opposite Party submits that the date of offer of possession has not been indicated in the chart of the Complainants and hence once possession had been offered, then any delay on the part of the Complainants in taking over actual physical possession cannot be attributed as a delay for claiming delay compensation. The contention is that in order to calculate any such delay it is the due date of possession as per Clause 28 of the agreement and the date of the offer of possession which has to be taken into account. It is therefore submitted that there is hardly any delay and to support the contentions it is further pointed out that the occupancy certificates in respect of the towers of the complainants had been obtained well within time and the possession has been offered lawfully and complete in all respects. The dates of the occupancy certificates have been indicated in paragraph 11 of the affidavit filed on 30.04.2024. It is therefore urged that as per the respective promises under the agreement the flats were delivered to the Complainants well within the promised time of 39 months and that no such timeline has been violated so as to construe any unreasonable delay in handing over the possession. Thus, no delay compensation is payable and even this cause of action if any occurred way back in 2009-10 when the possession was taken over about which no complaint was made by any of the Complainants except Mr. Sanjay K. Jain who had filed his complaint before the State Commission and withdrew it. Thus, this claim of delay compensation is neither a continuing cause of action nor a cause of action which survived if any at all after the expiry of two years in terms of section 24 A of the Consumer Protection Act 1986.
The question is whether this is a continuing deficiency or a continuing wrong so as to allow the complaint to be maintainable for the claim of delay compensation. The Apex Court has held that even if a conveyance deed has been executed and possession handed over, and the deficiency is a continuing one then in that event a complaint would be maintainable in respect of such causes of action that survived. This is also evident from the ratio of Para 18 of the judgment in the case of Samruddhi Co-Operative Housing Society (Supra). The other judgment in this regard is Experion Developers Pvt. Ltd Vs. Himanshu Dewan & Ors. 2023 SCC OnLine SC 1029. Para 16 is extracted hereinunder:-
"16. Similar issues had arisen before this Court in Wing Commander Arifur Rahman Khan and Aleya Sultana v. DLF Southern Homes Private Limited9. This Court accepted the argument by the consumers that execution of a deed of conveyance by a flat buyer would not preclude a consumer claim for compensation for delayed possession in a case where the allottees were not given an option, but were rather told that the possession would not be given and the conveyance deed would not be executed without the acceptance of the offer of possession terms. In the said case, the builder/developer had stated that it would not handover the possession and execute the conveyance deed without acceptance of the offer of possession terms. Any request to take over possession and execute the documents under protest was untenable. The consumers were, in fact, asked to file an unconditional affidavit/undertaking to that effect, as execution of documents under protest or claim of coercion was not to be entertained. In this background, this Court in Arifur Rahman Khan (supra) held that the flat buyers/consumers were essentially presented with an unfair choice of either retaining their right to pursue their claims, in which event they would not get possession or title in the meantime, or to forsake the claims in order to perfect their title to the flats for which they had paid valuable consideration. Accordingly, the question needed to be addressed was whether a flat buyer who seeks to espouse a claim against the developer for delayed possession can, as a consequence of doing so, be compelled to defer the right to obtain a conveyance to perfect their title. This Court held that it would be manifestly unreasonable to expect that in order to pursue a claim for compensation for delayed handing over of possession, the purchaser must indefinitely defer obtaining a conveyance of the premises purchased or, if they seek to obtain a deed of conveyance to forsake the right to claim compensation. The contrary position which the National Commission had espoused, this Court was of the view cannot be countenanced and accepted. This Court thus rejected the argument that on the execution of the conveyance deed, the transaction ceases to be a transaction in the nature of "supply of services" covered under the Consumer Protection Act, 1986 and becomes a mere sale of immovable property and, therefore, it is not amenable to the jurisdiction of the consumer fora. At the same time, this Court had refused to interfere and grant relief in cases of purchasers who had entered into specific settlement deeds with the developers observing that it would only be appropriate and proper if the parties were held down by the terms of the bargain. The contention that the settlement deeds were executed under coercion or under undue influence was also not accepted since no specific material had been produced on record to demonstrate the same. This Court also held that subsequent purchasers cannot benefit from the order of this Court therein. However, this view in re. the subsequent purchasers stands overruled by a bench of three judges' in Laureate Buildwell Private Limited v. Charanjeet Singh10. In Laureate Buildwell Private Limited (supra) the larger bench over-ruled the ratio laid down in Arifur Rahman Khan (supra) to the extent that a subsequent purchaser would not be entitled to the benefit of the order passed in case of the original allottee. On the other hand, it has been held that the nature and extent of relief, to which the subsequent purchaser can be entitled, is fact and situation dependent. It cannot be argued that a subsequent purchaser, who steps into the shoes of the original allottee of a housing project in which the builder has not honoured its commitment to deliver the flat within the stipulated time, should not expect even reasonable time for the performance of builder's obligation. Such an argument, if accepted, would lead to a situation where a large number, possibly thousands of flat buyers, waiting for their promised flats or residences would be left without any relief. Such a conclusion would be arbitrary. In these cases, it would be fair to assume that the subsequent purchaser had knowledge of the delay, but such knowledge cannot be extended to accept the submission that such delay shall continue indefinitely based upon an a priori assumption. The equities have to be properly moulded."
The issue therefore now is of any such delay in handing over possession in respect of the 19 Complainants herein. It may be pointed out from the chart disclosed by the Complainants extracted hereinabove that there are three of the Complainants namely Mr. Biju Sebastian, Ms. Usha Gupta and Ms. Chandra Kanta Gupta about whom there is no delay in handing over possession that is admitted by the Complainants. Thus, there is no question of assessing any such claim for these three complainants regarding delay compensation.
Applying the principles and the ratio of the cases referred to hereinabove, the rest of the 16 Complainants other than those mentioned above are entitled for delay compensation subject to the calculation of delay period separately for each of them as non-payment thereof is a continuing wrong and therefore this claim did survive on the date when the Complaint was filed and could be subject matter of a claim of deficiency in service. We therefore allow delay compensation to these 16 Complainants at the rate of 9% of the amount paid from the due date of possession, on the expiry of 39 months from the date of agreement as per Clause 28 thereof, up to the date of offer of possession. This calculation shall be made on the basis of the dates mentioned in each of the respective agreements followed by expiry of 39 months up to the date of the letters of offer of possession. The period of delay shall be counted from the date of expiry of 39 months up to the date of offer of possession and the consequential compensation shall be computed accordingly. The said payment shall be made within three months.
Coming to the most contentious issue that seems to have been vehemently argued and also does appear to be reasonable is the issue relating to the realisation of Rs.50,000/- as club membership charges without handing over the club as contemplated under the agreement. It is here that the real issue of limitation also has to be discussed as according to the Complainants, this was a substantive continuing wrong and therefore there was a continuous cause of action available in respect of this deficiency on the date of the filing of the complaint.
It would be appropriate to mention the pleadings exchanged between the parties in the light of the orders above regarding the facility of the Club. The Complainants have come up stating about the facilities of the Club in their affidavit dated 23.07.2024 filed on 29.07.2024. It is contended therein that the Club which has now been completed and handed over in 2024 was not made available previously except for a Gymnasium in the stilt area of the flat. Para 5 and 6 of the said affidavit narrates the same. It is, however, admitted in the said affidavit that Sport facilities and Swimming Pools had been provided in 3 phases of the project. It is also alleged that a Gymnasium with only four machines had been provided in the year 2010 and none of the facilities which have been provided in 2024 were ever provided by the builder. In reply to this affidavit of the Opposite party in their affidavit dated 01.08.2024 in paragraph 9 has rolled out a chart alleging that the amenities were existing since 2009-10 and are the same amenities that have been provided under the New Club in 2024. What is projected by the Opposite Party as if the Club premises along with its facilities were existing except for the Restaurant and Rooms for occupation on chargeable basis, the open place and hall for gatherings and the Club and the billiards room and table tennis that has been provided now. It is thus evident that the Club with an open space and hall for gatherings which was meant for social activities as per Clause 9 of the agreement including the restaurant and rooms for occupation on chargeable basis had not been provided earlier. It is this contention of the Complainants regarding the Club that has to be considered in the light of the arguments advanced.
The allegation of deficiency with regard to the delay in handing over the aforesaid amenity has been argued by the learned Counsel for the Opposite Party contending that what was promised under the brochure was a Health club that was separately mentioned in Annexure 5 appended to the flat buyer agreement. The said Health club was an amenity that was separate from the Club as referred to in clause 9 of the agreement. It is urged that the said Health club as offered was set up and was continued for decades together in the stilt area by including a provision for a gym, yoga corner, table tennis, etc. that continued to be enjoyed by all the flat owners and was a facility available that was provided as promised. Other sporting facilities including swimming pools were also provided. Thus, there was no deficiency in so far as providing the Health club or other facilities are concerned.
This argument has been contested by the Complainants contending that the provisions made as alleged were absolutely in sufficient and as a matter of fact it is the flat owners who had to replace all such equipment that was needed for the Gym and had to be refurbished for its enjoyment by the flat owners themselves. She has referred to her reply and urged that all these expenses were borne and the invoices dated 06.12.2021, 11.12.2021 and 24.05.2023 have been placed to demonstrate that these facilities were acquired by the Complainants themselves which the Opposite Party has to reimburse. This deficiency also deserves to be compensated as the amenities were not provided in terms of the promise made in the brochure as also in the flat buyer agreement that refers to the Club and Health club separately.
Learned Counsel for the Opposite Party submits that if any replacement of gym equipments were needed after almost a decade of its utilisation by the Complainants, the same was not the responsibility of the Opposite Party inasmuch as the entire facilities were initially installed and then handed over to the Resident Welfare Association to take care the same. There is no perpetual obligation on the part of the Opposite Party to continue to maintain the Health club which after being handed over ceases to be an obligation of the Opposite Party. This otherwise also is outside the scope of the complaint which relates only to refund of Club membership charges and has no concern with the Health club amenity which is a facility other than the club referred to in the complaint.
The said contention of the learned Counsel for the Opposite Party regarding the Health club appears to be correct inasmuch as the Health club is an amenity that was promised under the brochure and also mentioned separately in clause 9 and Annexure V to the flat buyer agreement. Thus, this health club admittedly had been set up but the allegation of the Complainants is that they had to purchase and replace the old equipments which were insufficient and had not been supplied by the Opposite Party. We are unable to accept this submission inasmuch as this was not the cause of action complained of regarding the Health club facilities. Even otherwise learned Counsel for the Opposite Party is correct in her submission that this is not an obligation of the Opposite Party to perpetually maintain the Health club facilities which is now under the control of the Resident Welfare Association. Thus, this was not even a cause of action and therefore does not fall within the subject matter of the dispute, hence any claim of payment of equipments for the health club is untenable and not within the scope of this complaint.
However, the complaint is with regard to the amount of Rs.50,000/- charged for the Club facility which is a separate establishment in terms of clause 9 of the agreement. Clause 9 is extracted hereinunder:-
"That in accordance with the development plan of the Complex, the DEVELOPER proposes to develop a Club for the purpose of social activities and the FLATALLOTTEE(S) has agreed to avail membership of this Club. This Club may be developed simultaneous to or after development of the Said FLAT and for the membership of the Club the FLAT ALLOTTEE(S) agrees to pay Club Membership Registration Charges (CMRC), and Club Development Expenses.
All other areas, facilities and amenities other than specified hereinabove such as swimming pool, health club, club area etc., are specifically excluded from the scope of this Agreement and the FLAT ALLOTTEE(S) shall not be entitled to any ownership rights, title or interest etc. in any form or manner whatsoever in such facilities and amenities. Such facilities and amenities have not been included in the computation of super area for calculating the sale price and, therefore, the FLAT ALLOTTEE(S) has not paid any money for use or ownership in respect of such areas, facilities and amenities. The FLAT ALLOTTEE(S) agrees that the ownership of such areas, facilities and amenities shall vest solely with the DEVELOPER and their usage and manner/ method of use shall be at the sole discretion of the DEVELOPER. The DEVELOPER as the owner of such areas, facilities and amenities shall have the sole right and absolute authority to deal in any manner including but not limited to creation of rights in favour of any other pa way of sale, transfer, lease or any other mode which the DEVELOPER may deem fit at its sole discretion."
Relying on the said clause, learned Counsel for the Opposite Party has contested the said issue by contending that this facility was to be offered simultaneously or after the development work. Thus, an occupancy certificate with regard to the club was applied in the year 2011 which was granted in 2019 where after the Club has been handed over to the Resident Welfare Association and the said facility is in place. It is urged by the learned Counsel that there was no timeline provided for the same and consequently the allegation of any absence of such a provision in the past or delay in providing the same cannot be a cause of action in terms of the clause 9 of the agreement. It is urged that this club premises has been set up and the charges of Rs.50,000/- realised from the Complainants is justified.
The Complainants have come up contending that clause 9 categorically promises for the provision of a club to be developed for the purpose of social activities for which membership is to be availed by the occupants of the flat buyers. A sum of Rs.50,000/- has been consciously charged which is captioned as Club Membership Registration Charges (CMRC) which are the same charges as referred to in clause 9. The Complainants have brought on record through the reply dated 21.05.2024 that this dispute had been carried up to the Directorate of Town and Country Planning Department and it was on their intervention through the letter dated 19.07.2003 that the club was handed over later on. The actual delivery of possession did not take place till 22.04.2024. For this, reliance is placed on Annexure CA2 and Annexure CA3 to the reply dated 21.05.2024 which are on record.
A perusal of the said documents indicate that the contest with regard to handing over of this facility ultimately crystallised in 2024 in the manner as has been demonstrated by the Complainants. The Club had therefore not been provided as promised under Clause 9 till 2024.
The contention of the learned Counsel for the Opposite Party that the same could have been developed at the sweet will of the developer in terms of Clause 9 at any time of the development or even thereafter is an absolutely unacceptable argument inasmuch as a sum of Rs.50,000/- from each of the Complainants had been realised on demand when the possession was offered and physical possession was taken over by them after payment in 2009-10. The amount therefore had been realised by the Opposite Parties and therefore they were obliged to have fulfilled their promise. The said premises of a Club was meant for the social activities of the residents that is established from the terms of the agreement. The Opposite Party cannot invoke the words "thereafter" occurring in clause 9 to mean an unending and an open ended time limit to offer the facility. The said argument is not only unreasonable but is absolutely against the promise made for which payments had been duly received by the Opposite Parties long back when possession was delivered in 2009-10. The deprivation of the facility of the club is a clear deficiency. The retention of Rs.50,000/- and not providing the Club is therefore a clear breach of Clause 9 of the agreement and which admittedly was provided on the intervention of the DTPC as is evident from letter dated 19.07.2023 quoted hereinabove and the subsequent delivery of possession on 22.04.2024. This facility was clearly promised but not delivered in spite of the charges having been realised from the complainants and hence this was a clear continuing wrong and an existing deficiency which now stands established by the documents on record as discussed hereinabove.
Consequently, the amount of Rs.50,000/- paid by the Complainants deserves to be compensated in a reasonable manner as this money had been enjoyed and retained by the Opposite Parties since the date of the delivery of possession. Thus, all the Petitioners are entitled to interest on the sum of Rs.50,000/- at the rate of 9% p.a with effect from the date of the payment of Rs.50,000/- as per the statement of accounts up to 22.04.2024 when the club premises was actually handed over by the Opposite Party as is evident from the said letter referred to hereinabove.
64.The complaint is therefore accordingly partly allowed in respect of compensation for delayed handing over of possession and Club Membership Charges to the aforesaid extent. The amounts payable shall be paid within three months from today and in the event of any default, the rate of interest shall stand enhanced to 12%.
.........................J A. P. SAHI PRESIDENT ................................................ DR. INDER JIT SINGH MEMBER