1. Heard Mr. Kishan Rawat, Advocate, for the complainants, Mr. Chaitanya, Advocate, for opposite party-1 and Mr. Shantanu Krishna, Advocate, for opposite party-2.
2. Smt. Roshni Khanna and Rajesh Khanna have filed CC/844/2016, for directing the opposite parties to (i) handover possession of the flat allotted to them, complete in all respect within reasonable period and execute Flat Buyer’s Agreement and Maintenance Agreement, in their favour; (ii) pay delay compensation in the form of interest @21% per annum on their deposit from January, 2009 till actual handing over possession; (iii) restrain the opposite parties from charging interest on the balance amount for delayed or deferred period; (iv) restrain the opposite parties from realizing any amount for power backup, club membership, sinking fund and other charges, mentioned in the statement of account as on 13.07.2015 & 29.12.2015 till handing over possession, completion of the entire project and all common facilities; (v) pay Rs.15/- lakhs, as compensation for mental agony and harassment; (iii) pay the costs of litigation; and (iv) any other relief which is deemed fit and proper in the facts and circumstances of the case.
3. The complainants stated that M/s. Shipra Estate Limited & Jai Kishan Estate Developers Pvt. Ltd. (opposite party-1) were companies, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project and selling its unit to the prospective buyers. Ghaziabad Development Authority is a statutory authority, constituted under U.P. Urban Planning and Development Act, 1973. The opposite parties launched a group housing project, in the name of “Shipra Krishna” at Ahinsa Khand, Indirapuram, Ghaziabad in the year 2006 and made wide publicity of its facilities and amenities. Believing upon the representations of the opposite parties, the complainants booked a flat on 17.07.2006 and deposited booking amount of Rs.150000/- and thereafter allotment money of Rs.1075500/- on 15.11.2006. Opposite party-1 allotted Flat No.Amaltas-1101, for a consideration of Rs.6127500/-, vide Allotment Letter dated 02.09.2006. Balance amount of Rs.4902000/- was paid on 30.11.2006 under “down payment plan”. Clause-9 of the allotment letter provides that construction of the building is likely to be completed within 22 months from the date of commencement of construction. The complainants deposited full consideration on 30.11.2006. However, the construction work ran with slow pace. President, Srishti Welfare Society held a meeting with the Director of opposite party-1 and conveyed vide letter dated 28.02.2008 to all the allottees, including the complainants that construction was delayed and the assurance was given that it would be completed by February, 2009. Opposite party-1 however, further delayed the construction hence vide letter dated 28.02.2009, addressed to Srishti Welfare Society, offered delay compensation from January, 2009 till July, 2009 @Rs.5/- per sq.ft. per month. Vide letters dated 26.08.2009 and 23.10.2009, issued to joint allottees of Flat No.Palash-501 (Srishti), opposite party-1 offered discount @7% per annum from August, 2009. Opposite party-1, did not attend any correspondence of the buyers for a long time. Opposite party-1, vide letter dated 10.01.2012, sent a cheque of Rs.107231/- as delay compensation. Opposite party-1, vide letter dated 18.06.2013, informed the buyers in building nos. 1 and 2 that the construction of these two buildings was completed, “partial completion certificate” was awaited and delivery of possession was expected till September, 2013. Opposite party-1, through email dated 07.06.2014 informed that possession would be handed over by August, 2014. Opposite party-1, through email dated 29.12.2015, offered possession to the complainants along with final statement of account. A perusal of statement of account shows that opposite party-1 stopped payment of delay compensation after October, 2014 and charged maintenance from November, 2014, without handing over possession; although the complainants made full payment till November, 2006 but an interest of Rs.102483/- was charged; and total Rs.750620/- was paid as delay compensation till 14.06.2013 but total Rs.800624/- was shown in statement of account. Opposite party-1, vide email dated 16.07.2015 informed that “completion certificate” of the building Nos.1 and 2 was received but registration of sale deed would be possible in 3rd week of August, 2015 but did not whisper about correction of statement of account. The complainants then gave a legal notice dated 25.09.2015 to opposite party-1, for correction of statement of account. In spite pf service of legal notice opposite party-1 did not respond. The complainants then gave a legal notice dated 04.12.2015 to opposite party-2. Opposite party-1 then issued final demand letter dated 29.12.2015, then this complaint was filed on 18.05.2016, alleging deficiency in service.
4. Opposite party-1, (the builder) has filed its written reply on 14.02.2017, in which, booking of the flat on 17.07.2006, allotment of Flat No.Amaltas-1101, on 02.09.2006 and deposits made by the complainants, are not disputed. The builder stated that it was facing financial difficulties in completing the project, as various buyers had committed default in payment of instalment and more than Rs.32/- crores had become due, which was duly apprised to the customers through letter dated 19.08.2009. The builder, vide letter dated 24.08.2009, offered delay compensation from January, 2009 till July, 2009 @Rs.5/- per sq.ft. per month and Rs.28583/- was paid on 24.08.2009. The complainants made full payment under “down payment scheme” as such from August, 2009 interest @7% per annum on the deposit of the complainants was paid as delay compensation and Rs.35744/- was paid on 22.10.2009, Rs.135815/- was paid on 30.12.2009, Rs.171558/- was paid on 21.07.2010, Rs.107231/- was paid on 14.01.2011, Rs.107231/- was paid on 25.03.2011, Rs.107231/- was paid on 25.05.2011 and Rs.107231/- was paid on 26.12.2011. After adjusting ‘power back-up charges’, ‘club membership, sinking fund’ etc. delay compensation of Rs.1562033/- was payable which will be paid at the time of registration of the conveyance deed. Claim of delay compensation in the form of interest @21% per annum is highly excessive. The construction was completed till October, 2014 and the builder applied for “completion certificate”. The builder, vide letter dated 29.12.2015, offered possession to the complainants. About 74 buyers have taken possession but the complainants did not turn up. The construction was delayed for force majeure reasons. Immediately after floating the project, the builder issued work order to M/s. CTC Geotechnical Pvt. Ltd. on 12.07.2007. Later on it was observed that the contractor was not working satisfactorily as such new contractor namely M/s ATR Construction (P) Ltd. was engaged on 15.11.2011. Real Estate Industry saw adverse market scenario from 2008, which continued throughout thereafter. Due to deflation in market, the various allottees stopped payment of the instalments, since 2008, which created paucity of fund. Delay in completion of the project results in escalation of costs, causing loss to the builder. Even then the builder completed the project. There was no deficiency in service.
5. Ghaziabad Development Authority (opposite party-2) has filed its written reply on 04.08.2017. Opposite party-2 stated that for development of Module-II Indirapuram Residential Scheme, tenders were invited. Bid of M/s. Shipra Estate Limited & Jai Kishan Estate Developers Pvt. Ltd. (a partnership firm) was most suitable and accepted and a Memorandum of Understanding was executed on 08.01.2001, under which, the developer had responsibility to develop the scheme as per approved layout plan and right to sell its unit. Opposite party-2 has only obligation to execute sub-lease deed in favour of the buyer as and when it is provided by the developer.
6. The complainants filed Rejoinder Replies to the Written Reply of opposite party-1 and 2, Affidavit of Evidence of Ashwini Luthra, documentary evidence. Opposite party-1 filed Affidavit of Evidence of Ajay Gupta and documentary evidence. Opposite party-2 filed Affidavit of Evidence of C.P. Tripathi and documentary evidence. All the parties have filed their written submission.
7. We have considered the arguments of the parties and examined the record. Clause-9 of the allotment letter dated 02.09.2006 provides that construction of the building is likely to be completed within 22 months from the date of commencement of construction. Nobody has given the date of commencement of the construction as such due date of possession is being considered from the date of allotment and expired on 01.07.2008. According to the builder, the construction was completed in October, 2014 and they applied for issue of “completion certificate”, which was issued on 19.10.2015 and possession was offered on 29.12.2015. In final statement of account, delay compensation of Rs.2802284/-, was shown till October, 2014 as per Clause-11 of the allotment letter, which provides for delay compensation subject to force majeure and other circumstances as given under clause-10 and letter dated 23.09.2009. The builder admits that delay compensation of Rs.1562033/- (after adjusting its demands) is still payable which will be paid at the time of conveyance deed. As the complainant made full payment, he is entitled for delay compensation till offer of possession in the form of interest @6% per annum on their deposit, as held by Supreme Court in DLF Home Developers Limited Vs. Capital Green Flat Buyers Association, (2021) 5 SCC 537.
8. The builder took plea that the construction was delayed for force majeure reasons. Immediately after floating the project, the builder issued work order to M/s. CTC Geotechnical Pvt. Ltd. on 12.07.2007. Later on, it was observed that the contractor was not working satisfactorily as such new contractor namely M/s ATR Construction (P) Ltd. was engaged on 15.11.2011. Real Estate Industry saw adverse market scenario from 2008, which continued throughout thereafter. Due to deflation in market, the various allottees, including the complainant stopped payment of the instalments, since 2008, which created paucity of fund and Rs.32/- crores had become due, consequently construction was delayed. As the builder offered compensation for delayed period as such it is irrelevant in this case.
9. Supreme Court, in Ireo Grace Realteck Private Limited Vs. Abhishek Khanna, (2021) 3 SCC 241, held that once possession was offered after obtaining “occupation certificate” then the home buyer is obligated to take possession after deposit of balance amount. “Sinking Fund” was charged as per clause-19 of the allotment letter.
O R D E R
In view of the aforesaid discussions, the complaint is partly allowed. Opposite party-1 is directed to pay balance amount of delay compensation till the date of offer of possession, execute conveyance deed and handover possession of the flat allotted to the complainants complete in all respect within six weeks from the date of this judgment.
