M/S. IMPERIAL HOUSING VENTURES PVT. LTD. V. RAVINDER SINGH

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Full Text of Judgmnt:

1.The present Appeal has been filed by the Appellant (hereinafter referred to as “the Builder”) against the order dated 06.01.2021 of the State Consumer Disputes Redressal Commission, Delhi (for short “the State Commission”) in Complaint No.602 of 2015 and against the order dated 20.07.2021 in the Review Application No.10 of 2021 whereby the Review Application was dismissed.
2. The brief admitted facts of the case are that the Respondent (hereinafter referred to as “the Complainant”) had booked a 3 BHK duplex flat admeasuring to 1725 sq.ft. for a total consideration of ₹56,92,500/- in the upcoming project of the Builder at Sector 137 Noida, District Gautam Budh Nagar, by paying first basic instalment of ₹5,40,000/- on 24.04.2011. A Flat Buyer Agreement (hereinafter referred to as “the Agreement) was executed between the parties on 31.05.2011 and the flat no.T 26/2206 Type G was allotted to the Complainant. The Complainant paid a total sum of ₹49,23,122/-.

3. The contention of the Complainant has been that though an offer of possession had been made by the Builder to him vide letter dated 20.07.2015 and the Complainant was asked to pay the balance amount, but the offer had been made with a delay of more than one year than the due date and he was also not allowed to inspect the site despite insistence. That the Complainant was also asked to pay the maintenance charges though possession was not handed over. Vide this demand letter dated 27.07.2015, certain demands which were inclusive as per the agreement consideration charges had been raised for which the Complainant sought clarification from the Builder but no clarification was offered. In the Complaint before the State Commission, he had made several prayers.
4. The Complaint was contested by the Builder. Several technical objections had been raised by the Builder. On merit, it was contended that the matter could not be adjudicated in summary manner by the forums since complication questions of law and facts were involved. It was also submitted that the Complainant did not take the possession of the flat despite offer of possession and also did not pay the balance amount and therefore, the Complaint was liable to be dismissed.
5. Parties led their evidences. The State Commission after going through the evidences and written submissions filed by the parties and hearing the arguments of the parties, has held as under:
“18. The fact that the complainant had booked a flat with the OPs is undisputed. It is also uncontroverted fact that the possession was not offered within the time as agreed to, something evident from the letter of the OPs offering the possession. Further offering of the possession without obtaining the occupation certificate is no valid offer. Further the objection that the complainant had been defaulter cannot be accepted as the complainant having opted for construction linked plan had to make the payment as per the progress done in the project. Secondly their argument that they had offered the possession of the flat within the time agreed to cannot be stretched beyond a point since that offer was, without the occupancy certificate or completion certificate and if that be the case the offer of possession was not valid. For this purpose reliance is placed on the judgment of the Hon’ble NCDRC in the matter of Treaty Construction and Anr. Versus Ruby Tower Co- op Hsg. Society Ltd. and ors as reported in II [2018] CPJ 54 (NC) holding in para 11 as under:-
So far as the question of obtaining the occupancy certificate is concerned, as per the provisions of MOFA the possession should not have been handed over to the members of the complainant society without obtaining occupancy certificate and this is a clear unfair trade practice. It is being argued on behalf of the OP that there are additions and modifications in the building and therefore, it is difficult to obtain the certificate and the matter is getting situation has been created by the OPs themselves as they offered possession without the occupancy certificate. Clearly, not obtaining occupancy certificate is the deficiency on the part of the OP/appellant.
Similar view was taken by the Hon’ble NCDRC in the matter of Kamal Kishore and anr. versus Supertech Limited as reported in II [2017] CPJ 483 (NC) holding inter alia that no payment is required to be made unless the possession is offered after obtaining the requisite occupancy certificate.

19. In that view of the matter the inevitable conclusion is that there was gross deficiency as defined in Section 2(1)(g) of the Act on the part of the OPs in its failure to deliver possession of the flat to the complainant in terms of the allotment letter. It is trite law that where possession of property is not delivered within the stipulated period, the delay so caused is not only deficiency of service, such deficiencies or omissions as per the law settled by their Lordships in the Apex Court in the matter of Lucknow Development Authority versus M.K. Gupta as reported in (1994) 1 SCC 243 tantamount to unfair trade practice as defined in Section 2(1)(r)(ii) of the Act as well.
20. Having arrived at the said conclusion, the point for consideration is as to how the Complainants are to be compensated for the monetary loss, mental and physical harassment he has suffered at the hands of OPs on account of non-delivery of the allotted
flat.

22. From the above it is apparent that this Commission can pass orders regarding the refund of the amount deposited to the company by the complainants, notwithstanding the proceedings pending in any other forum.

23. The Hon’ble NCDRC in the matter of Lakadwala Developers Pvt. Ltd. and ors versus Amarjeet Singh and Baryam Singh as reported in II [2020] CPJ 338 (NC) is pleased to the form of simple interest @ 9% p.a. to the complainant on the amount paid w.e.f. three years from the date of booking till the date on which possession is offered.
Where a development authority forms layouts and allots plots/flats by inviting applications, the following general principles regulate the granting of relief to a consumer who complains of delay in delivery or non-delivery and seeks redressal under the Consumer Protection Act, 1986.
a. Where the redevelopment authority having received the full price, does not deliver possession of the allotted plot/flat/house within the time stipulated or within a reasonable time, or where the allotment is cancelled or possession is refused without any justifiable cause, the allottee is entitled for refund of the amount paid, with reasonable interest thereon from the date of payment to date of refund. In addition, the allottee may also be entitled to compensation, as may be decided with reference to the facts of each case.
b. Where no time is stipulated for performance of the contract, or where time is not the essence of the contract and the buyer does not issue a notice making time the essence by fixing a reasonable time for performance, if the buyer, instead of rescinding the contract on the ground of non-performance, accepts the belated performance in terms of the contract, there is no question of any breach or payment of damages under the general law governing contracts. However, if some statue steps in and creates any
statutory obligations on the part of the development authority in the contractual field, the matter will be governed by the provisions of that statue.
c. Where an alternative site is offered or delivered (at the agreed price) in view of its inability to deliver the earlier allotted plot/flat/house, or where the delay in delivering possession of the allotted plot/flat/house is for justifiable reasons, ordinarily the allottee will not be entitled to any interest or compensation. This is because the buyer has the benefit of appreciation in value.

d. Though the relationship between Development Authority and an applicant for allotment is that of a seller and buyer, and therefore governed by law of contracts, (which does not recognise mental agony and suffering as a head of damages for breach), compensation can be awarded to the consumer under the head of mental agony and suffering, by applying the principle of Administrative Law, where the seller being a statutory authority acts negligently, arbitrarily or capriciously.
e. Where an alternative plot/flat/house is allotted and delivered, not at the original agreed price, but by charging current market rate which is much higher, the allottee will be entitled to interest at a reasonable rate on the amount paid towards the earlier allotment, from the date of deposit to date of delivery of the alternative plot/flat/house. In addition, he may be entitled to compensation also, determined with reference to the facts of the case, if there are no justifiable reasons for non-delivery of the first allotted plot/flat/house.
f. Where the plot/flat/house has been allotted at a tentative or provisional price, subject to final determination of price on completion of the project (that is acquisition proceedings and development activities), the Development Authority will be entitled to revise or increase the price. But where the allotment is at a fixed price, and a higher price or extra payments are illegally or unjustifiably demanded and collected, the allottee will be entitled to refund of such excess with such interest, as may be determined with reference to the facts of the case.
g. Where full payment is made and possession is delivered, but title deed is not executed without any justifiable cause, the allottee may be awarded compensation, for harassment and mental agony, in addition to appropriate direction for execution and delivery of title deed.
h. Where the allotment relates to a flat/house and construction is incomplete or not in accordance with the agreed specifications, when it is delivered, the allottee will be entitled to compensation equivalent to the cost of completing the building or rectifying the defects.
i. The quantum of compensation to be awarded, if it is to be awarded, will depend on the facts of each case, nature of harassment, the period of harassment and the nature of arbitrary or capricious or negligent action of the authority which led to such harassment.

25. Having regard to the discussion done and the legal position explained I am of the view that the ends of justice would be met if a direction is issued to the OPs:-

c. to pay Rs. 10,000/- as the litigation cost.

26. Ordered accordingly leaving the parties to bear the cost.”
6. A Review Application against the said order had been filed by the Builder which was also dismissed by the State Commission. Hence, the present Appeal.

9. I have heard the arguments and perused the record and gone through the written submissions.
10. Admittedly, there has been a delay in making the offer of possession. The issue is whether there was an actual offer of possession till 27.07.2015. It is an admitted fact that an offer of possession can be made only after obtaining the Occupancy Certificate/Completion Certificate. In this case, from the perusal of offer of possession, it is apparent that there is no mention in the said letter that the Builder had obtained the Occupancy Certificate qua the subject flat. The Complainant, therefore, was not aware regarding the completion of the subject flat. It is apparent that the Complainant had written a letter dated 27.07.2015 to the Builder showing his queries which were not answered, although the said letter was replied by the Builder. In the reply also, there is no mention that the Builder had obtained the Occupancy Certificate qua the subject property. It is apparent that in the written version to the Complaint, there is no plea by the Builder that they had obtained the Occupancy Certificate. No copy of the Occupancy Certificate was also filed along with the written version. Even the witness of the Appellant has not deposed that the Occupancy Certificate has been obtained by the Builder. It, therefore, is clear that it was not the case of the Builder that they had made the offer of possession only after obtaining Occupancy Certificate. In view of these proved facts, the findings in Rajni Goyal, Abhishek Khanna and Amarjeet Singh Baryam Singh’s cases (supra) are not applicable to the facts and circumstances of the case.
11. Since there is not an iota of evidence on record before the State Commission that the Builder had obtained the Occupancy Certificate, the plea taken in the written submissions before the State Commission that they had obtained the Occupancy Certificate is meaningless in view of the fact that at the first occasion, when the Builder had the opportunity to take up the defence that they had obtained the Occupancy Certificate, had not been taken and document had not been proved on record.
12. In view of the above discussion, it is apparent that the directions of the State Commission to pay compensation in the form of interest @ 9% p.a. till the date the possession is handed over, is not perverse or illegal and I found no illegality in the impugned order.
13. The conduct of the Builder, as noted by this Commission in its order dated 23.02.2022 also shows that the Builder has not really been interested in handing over the possession and that is why, they had not handed over the possession to the Complainant despite specific directions of this Commission vide order dated 27.12.2021. In this context, this Commission has noted in its order dated 23.02.2022 as under:

Opposite party has not handed over the possession of the subject flat despite our directions.
This conduct of the opposite party shall be part of the final order when the complaint be disposed of.
The above applications stands disposed of with these observations.
List the matter on 18.07.2022, the date already fixed.”

14. Learned Counsel for the Complainant on instructions has submitted that whatever payable dues are there in terms of the Flat Buyer’s Agreement dated 31.05.2011, he is ready to pay at the time of taking the possession and he is also ready to take the possession. The Complainant shall remain bound by this undertaking.
15. I found no illegality, infirmity or perversity in the impugned orders. The Appeal has no merit and the same is dismissed.