National Consumer Disputes Redressal
Shamshul Hoda Khan vs M/S. Ireo Victory Valley Pvt. Ltd. & Anr. on 17 January, 2019
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 2110 OF 2016 1. SHAMSHUL HODA KHAN ATTORNEY HOLDER OF MS. GHAZALA KHAN, R/O, NEW MILLAT COLONY, SECTOR-13, KHAGAUL RAOD, PHULWARI SHARIF, PATNA,BIHAR ...........Complainant(s) Versus 1. M/S. IREO VICTORY VALLEY PVT. LTD. & ANR. (THROUGH ITS MD/DIRECTORS)
305, 3RD FLOOR, KANCHAN HOUSE, KARAMPURA COMMERCIAL COMPLEX, NEW DELHI-110015 2. M/S. IREO VICTORY VALLEY PVT. LTD. (THROUGH ITS MD/ DIRECTORS)
5TH FLOOR, ORCHID CENTRE, GOLF COURSE ROAD, SECTOR-53, GURGAON-122002, HARYANA ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER
For the Complainant : Mr. A. Sirajudeen, Advocate
Mr. Athar Alam, Advocate
Mr. Sumbol Azhar, Advocate
Mr. Shahnawaaz Alam, Advocate For the Opp.Party : Ms. Renu Gupta, Advocate
Dated : 17 Jan 2019 ORDER
JUSTICE V.K. JAIN (ORAL)
Ms. Ghazala Khan daughter of Sh. Shamshut Hoda Khan who is an NRI, booked a residential flat with the opposite party in a project which the OP was to develop in Sector-67 of Gurgaon. Property No.VV-D18-08-02 in the aforesaid project was allotted to her, vide allotmenet letter dated 21.9.2010, pursuant to application which she had submitted on 6.9.2010. She then executed a Buyers Agreement with the opposite party through her Attorney Sh. Shamshut Hoda Khan on 18.8.2011, incorporating their respective obligations in respect of the said allotment. Clause 13.3 of the said agreement related to possession of the house, reads as under:-
"13.3. Subject to Force Majeure, as defined herein and further subject to the Allottee having complied with all its obligations under the terms and conditions of this Agreement and the Allottee not being in default under any part of this Agreement including but not limited to the timely payment of the total Sale Consideration, Stamp Duty and other charges and also subject to the Allottee having complied with all formalities or documentation as prescribed by the Company, the Company proposes to hand over the possession of the said Apartment to the Allottee within a period of 36 months from the date of approval of the Building Plans and/or fulfillment of the preconditions imposed thereunder ("Commitment Period"). The Allottee further agrees and understands that the Company shall additionally be entitled to a period of 180 (One Hundred and Eighty) days ("Grace Period"), after the expiry of the said Commitment Period to allow for unforeseen delays in obtaining the Occupation Certificate etc., from the DTCP under the Act, in respect of the IREO-Victory Valley Project."
2. The possession of the house having not been offered to Ms. Ghazala Khan, this complaint has been instituted by her father as her attorney with the following prayers:-
a) Direct the respondents/O.P's to handover the Possession of Pent house apartment No D(18)802 on 8th floor tower having a tentative super area of 5835 Sqft (542.07 Sqmts approx) together with 3 number Parking Spaces with Compoundable interest @ 18% Per annum on delayed Possession along with Pendente lite and future interest till the date of actual realization of the Payment and till the final disposal of Present Petition;
b) Direct the respondents to pay the compensation for mental torture and agony of Rs. 20,00,000/ as Per Clause -13 C of the Act and also the interest for delay in handing over the Possession of the Apartment;
c) Cost of Proceeding of Rs. 2,00,000/-
d) Direct the respondents to Pay an amount of Rs. 5,00,000( five lacs) to the complainants on account of harassment, mental agony, loss of time and money suffered at the hands of the Opposite Parties;
e) Direct the respondents to Pay the compensation as per clause 13.1 of agreement Rs. 7.50 Per sqft Per month of super area for the Period of delay in offering the Possession;"
3. It is noted at the very outset that the house in question having been allotted to Ms. Ghazala Khan, the complaint ought to have been instituted in her name though it could have been instituted through her father as her attorney. It is pointed out by the learned counsel for the complainant that the entire transaction on behalf of the complainant was made by her attorney and even the Buyers Agreement was executed by him in his capacity as the attorney of his daughter. He also submits that since the entire transaction was handled by the father of the allottee, he had personal knowledge of the entire matter and therefore was competent to file affidavit, based upon his personal knowledge of the facts of the case. In these circumstances, the complainant is directed to file an amended memo of parties, naming Ms. Ghazala Khan as the complainant through her Attorney Sh. Shamshut Hoda Khan.
4. The complaint has been resisted by the opposite party, which has admitted the allotment to as well as the payment received from the complainant. The execution of the Buyers Agreement has also not been disputed. It is interalia stated in the written version filed by the opposite party that the requisite Occupancy Certificate was applied for and obtained in respect of Towers D8, D9 and D24 to D27. However, the unit allotted to the complainant is situated in Tower D18. The Occupancy Certificate in respect of the aforesaid tower, according to the learned counsel for the opposite party was obtained on 28.9.2017 and thereafter possession of the allotted unit was offered to the complainant on 2.4.2018. The said Occupancy Certificate thus was obtained after the written version to the complaint had already been filed by the opposite party.
In its written version, the opposite party has also taken a stand that the period of 36 months referred in Clause 13.3 of the Buyers Agreement is to be computed from the date on which the fire NOC was obtained by them and the said fire NOC having been obtained only on 28.10.2013, the time period for offer of possession including the grace period of six months would expire only on 28.4.2017.
5. Since the construction of the residential unit allotted to the complainant is stated to be complete, the requisite Occupancy Certificate is stated to have been obtained and the possession is stated to have already been offered to the complainant on 2.4.2018, the only question which survives for consideration in this case is as to whether the complainant is entitled to any compensation and if so to what extent.
6. It is an admitted position that the requisite sanction for construction of the buildings was granted on 29.11.2010 by Directorate of Town and Country Planning, Haryana. Condition No.3 of the sanction, reads as under:-
"On receipt of the above request the Commissioner, Municipal Corporation, Gurgaon after satisfying himself that the entire fire protection measures proposed for the above buildings are as per NBC and other Fire Safety Bye Laws, and would issue a NOC from the Fire Safety and means of escape/access point of view. This clearance/NOC from the File Authority shall be submitted in this office alongwith a set of plans duly signed by the Commissioner, Municipal Corporation, Gurgaon within a period of 90 days from the date of issuance of sanction of building plans. Further, it is also made clear that no permission for occupancy of the building shall be issued by Commissioner, Municipal Corporation, Gurgaon unless he is satisfied that adequate fire-fighting measures have been installed by you and suitable external fire-fighting infrastructure has been created at Gurgaon, by Municipal Corporation, Gurgaon before grant of occupation certificate by the Director General."
7. A similar condition imposed in the approval of the building plans recently came up for consideration of this Commission in CC/189/2017 Pradeep Kumar Gupta Vs. Ireo Grace Realtech Pvt. Ltd. & other connected matters decided on 10.1.2019, and the following was the view taken by this Commission in this regard relying upon its earlier decision in CC/1998/2016 - Subodh Pawar Vs. Ireo Grace Realtech Pvt. Ltd. & Ors., decided on 24.9.2018:-
"The contention of the learned counsel is that the period stipulated for offering possession should start from the date on which the clearance from fire authority was issued. She also submits that the said clearance came to be issued only on 27.11.2014 though according to the learned counsel, the same was applied on 24.10.2013. It would be seen from the condition relating to fire safety condition in the approval dated 23.07.2013 that an NOC from the Fire Safety Department was to be obtained by the OPs and submitted to the Directorate of Town and Country Planning, Haryana within a period of 90 days from the issuance of the said approval. The aforesaid period of 90 days expired on 21.10.2013. The OPs thus, did not even apply for the requisite NOC from fire authority within the period stipulated for obtaining and submitting the said approval. More importantly, there was no such stipulation in the approval dated 23.07.2013 that the builder could not commence construction without obtaining the said fire safety NOC. Only the Occupancy Certificate could not have been issued without the Municipal Corporation, Gurgaon satisfying itself that adequate fire safety measures had been installed and suitable external fire-fighting infrastructure had been created at Gurgaon by the said Corporation. The OPs therefore, could have started the construction immediately after the aforesaid approval dated 23.07.2013 was obtained. The possession therefore, ought to have been offered by 23.01.2017 since in the absence of unforeseen circumstances, the benefit of the grace period was not available to the OPs."
8. In Pradeep Kumar Gupta (supra), the learned counsel for the opposite party relied upon the provisions contained in Haryana Fire Service Act, 2009, in support of his contention that construction could not have commenced without obtaining the required fire safety approval. Rejecting the contention, this Commission interalia held as under:-
"As noted by this Commission in Subodh Pawar (supra), the building plan approval which was issued by Directorate of Town and Country Planning, Haryana on 23.07.2013 did not prohibit the builder from commencing the construction before obtaining the requisite fire safety approval, though it required the builder to obtain the requisite Clearance / NOC from the fire authority within a period of 90 days from the issuance of the sanction of the building plans and it also stipulated that the permission for occupancy of the building shall not be issued by the Commissioner, Municipal Corporation, Gurgaon unless he was satisfied with respect to the adequacy of fire-fighting measures and external fire-fighting infrastructure, before grant of occupation certificate. The learned counsel for the OP has not been able to draw my attention to any provision of Haryana Fire Service Act prohibiting commencement of construction without first obtaining the fire safety approval. Section 15 on which reliance is placed by the learned counsel for the OP, requires the builder to apply for the requisite approval before commencement of the construction and issuance of the NOC but does not put an embargo on the start of the construction without first obtaining the said approval, provided that the application, meeting requirements of the Act is submitted before starting the construction. Therefore, once the approval was applied for, the builder could commence the construction. In fact, sub-section (2) of Section 15 envisages issuance of a provisional NOC, before the construction is taken up. The said provisional NOC is mandated to be issued within 60 days of submission of the application giving all details of the construction being undertaken as well as the rescue fire provision and fire safety details required to be incorporated during the period of construction. It also provides that during the process of construction, the inspection of the construction may be conducted and advice about additions, deviations etc. can be tendered. On completion of the construction of a high rise building, a NOC is required to be obtained in terms of sub-section (5) of Section 15 of the Act. Therefore, if the opposite party had submitted the requisite application in terms of Section 15(2) of the Haryana Fire Service Act, giving all the details mentioned in sub-section (3) of Section 15, the concerned authority would have issued a provisional NOC to the builder. This is not the case of the opposite party that despite it having submitted an application with the all the required details in terms of sub-section (3) of Section 15, the provisional NOC was not issued to it by the competent authority under Haryana Fire Service Act, 2009. As noted earlier, the building plans came to be approved on 23.7.2013. The opposite party applied for the fire safety clearance on 23.10.2013 though considering the requirement of submitting the NOC within 90 days from the approval of the building plans it ought to have applied for the fire safety NOC/Clearance immediately after the building plans were approved. In any case, if the opposite party did apply for the requisite fire safety clearance on 23.10.2013, along with all the prescribed details in terms of sub-section 3 of Section 15, the provisional NOC would have been issued to it by the competent authority, the same being the mandate of law. Therefore, either the opposite party did not initially give all the prescribed details in its application seeking fire safety clearance or it had actually received the provisional NOC in terms of sub-section (3) of Section 15. If the opposite party had not given the prescribed details required in terms of sub-section (3) of Section 15, it is only itself to blame for the delay in issuance of the provisional NOC. If it had given the prescribed details, there is no reason why the provisional NOC would not have been issued to it."
9. In the present case, the written version filed by the opposite party does not indicate as to whether the provisional NOC in terms of sub-section (2) of Section 15 of Haryana Fire Service Act, 2009 was issued to them or not. If the said provisional NOC was not issued, the obvious inference would be that the application submitted by the opposite party for grant of the fire safety approval did not meet all the requirements of the said Act. If the said provisional NOC was issued, the opposite party had no difficulty in going ahead with the construction even if the final fire safety clearance came to be issued at a later date.
10. What is relevant for purpose of deciding the issue involved in this complaint is as to whether the opposite party was unable to commence construction for want of the final fire safety clearance which came to be issued on 28.10.2013 or not. It is an admitted position that the opposite party had been raising demand based upon the stage of construction even prior to 28.10.2013 when the first safety clearance came to be issued. The payment plan agreed between the parties envisaged payment of the 3rd installment on commencement of excavation, 4th on casting of basement roof slab and the 5th on casting of ground floor roof slab. The 6th installment was payable on casting of 3rd floor roof slab. It is an admitted position that even the 4th installment which was payable on casting of basement roof slab was demanded on 5.2.2013. The 5th and 6th installment were demanded on 21.3.2013 and 18.9.2013 respectively. Admittedly, the fire safety clearance had not been received by that time. Thus the opposite party had actually started the construction of the buildings even before receipt of the fire safety clearance on 28.10.2013. This would mean that either the fire safety clearance was not mandatory before commencement of construction and could be obtained thereafter before issuance of the Occupancy Certificate or a provisional NOC in terms of sub-section (2) of Section 15 of Haryana Fire Service Act, 2009 had been issued to it which enabled it to commence construction, even before receipt of the fire safety clearance on 28.10.2013. From whatever angle I may look at it, the fact remains that the fire safety clearance which came to be issued on 28.10.2013 did not come in the way of the opposite party starting and continuing the construction of the buildings in which a unit was allotted to the complainant.
10. The contention of the learned counsel for the opposite party is that irrespective of the opposite party having started the construction before receiving the fire safety clearance on 28.10.2013, the requisite period of 36 months in terms of Clause 13.3 of the Buyers Agreement has to be computed only from the date on which the said clearance was obtained. In my view, the above-referred clause contained in the Buyers Agreement cannot be interpreted in the manner suggested by the learned counsel for the opposite party. The obvious purpose behind giving time period of 36 months from the date of approval of the building plans or fulfillment of the preconditions if any imposed thereunder was to give a clear period of 36 months to the builder for completing the construction. Even thereafter the builder was allowed a grace period of six months thereby giving it a total time period of 42 months for completing the construction. Had the opposite party been legally prohibited from commencing the construction without obtaining the fire safety clearance and it had actually not started the construction before receiving the said fire safety clearance, it could have been justified in saying that the requisite period of 36 months should be computed from the date on which the said clearance was actually obtained by it. However, the opposite party having already started the construction, it would be only fair and reasonable to say that the said construction could have been started within 60 days of the date on which the fire safety clearance was applied. This is so, considering the provisions contained in sub-section (2) of Section 15 of Haryana Fire Service Act, 2009 which envisage issuance of a provisional NOC within 60 days of submission of the application giving all details of construction as well as the rescue fire provision and fire safety details. The opposite party admittedly applied for the fire safety clearance on 17.12.2010. The time period of 36 months for completing the construction therefore would commence from 17.2.2011. Therefore, the construction ought to have been completed by 17.2.2014 and after giving benefit of the grace period of six months, it ought to have been completed by 17.8.2014.
11. It is an admitted position that after obtaining the Occupancy Certificate on 28.9.2017, the opposite party did not immediately offer possession of the allotted unit to the complainant, the said possession having been offered only on 2.4.2018. Therefore, there was a delay of about three and a half years in offering possession of the allotted residential unit to the complainant who is entitled to appropriate compensation for the aforesaid period.
12. The learned counsel for the opposite party submits that they applied for the requisite Occupancy Certificate on 9.2.2017 but the same came to be issued on 28.9.2017. Relying upon the definition of force majure given in the Buyers Agreement, she submits that the aforesaid period needs to be excluded for the purpose of grant of compensation on account of the delay in delivery of possession. Ordinarily, a statutory provision dealing with issuance of the Occupancy Certificate would have a specified period for the issuance of such a certificate provided that the application for issuance of the Occupancy Certificate is complete in all respects and there are no deficiencies or deviations in the construction. In the absence of requisite material, it cannot be said whether the application submitted by the opposite party for issuance of the Occupancy Certificate was complete or not and whether there was any deficiency or deviation in the construction or not. In these circumstances, I hold that the opposite party shall be entitled to exclusion only of the period specified in the relevant statutory provision for the issuance of the Occupancy Certificate, for the purpose of payment of compensation for the delay in offering possession of the allotted unit to the complainant.
13. For the reasons stated hereinabove, the complaint is disposed of with the following directions:-
(i) The opposite party shall deliver possession of the allotted residential unit, complete in all respects, to the complainant within 30 days from today.
(ii) The opposite party shall pay compensation in the form of simple interest @ 8% per annum to the complainant for the period from 17.8.2014 till 2.4.2018, after excluding therefrom the statutory time fixed for the issuance of the Occupancy Certificate. The compensation as per the Buyers Agreement which the opposite party has already credited in the account of the complainant while offering possession vide letter dated 2.4.2018, shall be deducted from the amount so calculated.
(iii) The compensation to the complainant in terms of this order shall be paid on the entire amount which she had paid to the opposite party on or before 17.8.2014.
(iv) The balance amount due from the complainant in terms of the demand letter dated 2.4.2018 shall be adjusted by the opposite party out of the compensation payable to the complainant in terms of this order and the balance amount of compensation shall be paid to her within three months from today.
(v) The opposite party shall pay a sum of Rs.25,000/- as cost of litigation to the complainant.
......................J V.K. JAIN PRESIDING MEMBER