NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Ram Surat Ram Maurya, Presiding Member
Dushyant Sood – Complainant
versus
M/s. Vatika Limited @ Vatika Triangle – Opp. Party
Consumer Case No.1848 of 2017
Decided on 28.9.2021

IMPORTANT POINTS
(1) Builder cannot change the area of flat unilaterally
(2) Interest promised in agreement should be granted to flat buyer

Headnote:

Consumer Protection Act, 1986 – Section 21(a)(i)[Section 58(1)(a) –Consumer Protection Act, 2019] – Complaint before NCDRC – Complainant booked a flat in Opp. Party’s flat scheme – Flat was promised to be delivered in 3 years – Agreement signed on construction basis – Complainant paid all installments – Agreement mentioned that Pre-EMI interest for delay in possession will be paid by the builder – Builder denied stating delay was not major – Complaint filed before NCDRC – Opp. Party is liable to bear pre-EMI interest on loan up to 05.10.2014 and thereafter will pay interest @ 6% p.a. on deposits made by the Complainants till 19.11.2018 - Complainants are liable to excess cost of the built-up area - Provisions of RERA not applicable in present case.

Held: The counsel for the complainants submitted that the Villa in question was booked on 28.08.2009. The promised period for offer of possession was three years as such possession ought to have been handed over till 28.8.2012, but notice for possession was issued on 30.05.2017 i.e. after delay of more than 57 months. Even by that time, Occupation Certificate was not obtained. No reason of the category of force majeure has been shown for delaying the construction. About 95% of sale consideration was obtained till 28.11.2014. Thus, the builder is liable to pay delayed compensation to the complainants. In the original allotment letter, the built-up area was shown as 1527 sq.ft., but in the possession notice, the built up area was shown as 1968 sq.ft. i.e. more than 30% increase in the built-up area. Due to which, cost of the Villa was enhanced from Rs.86,46,900/- to Rs.1,27,85,596/-. It is highly unfair trade practice to increase the cost exorbitantly and making it impossible to allottee to take possession. The builder has not filed any document to prove increase in built up area. The construction of staircase of built-up area in 410.54 sq. ft. on the first floor was totally useless and its cost was not liable to the included in the demand notice. Non built-up area of 179.90 sq. ft. has been added in the name of verandah of first floor although no verandah has been shown on first floor in layout plan. 57.33 sq. ft. area has been added in the name of passage on first floor although it was an open space. Area of the wall of first floor has been illegally shown 125 sq. ft. in excess than its actual area. Section 14 of Real Estate Regulation and Development Act, 2016 (RERA) specifically prohibit for change in lay out, thus, neither the increase area of lay out nor increase in built up area was permissible. Without approval of building plan, the money has been demanded/collected in violation of Section 13 of RERA. Withdrawal of subvention unilaterally was unfair trade practice. The complainants are entitled for compensation of delay in offering possession and being victim of unfair trade practice.

I have considered the arguments of the counsel for the parties and examined the record. A perusal of the booking letter dated 08.09.2009 and UBA dated 27.11.2010 shows that by that time, the plot allotted to the complainants was not in existence as mentioned in clause Company’s Representation-B. Admittedly after sanction of layout plan, villa was re-allotted to the complainants through addendum dated 05.04.2012. By this addendum Villa number of the complainants was changed from 23/240/simplex to 3/240/simplex and the complainants undertook to pay sale consideration on the basis of actual super area. “Home Loan Linked Payment Plan” was also changed and 30% of basic sale price i.e. Rs. 25,65,000/- was to be deposited on re-allotment. Period of offer of possession was superseded as 30 months. The builder in pargraph-3 of paragraph-wise reply of the written reply has admitted for bearing pre-EMI interest for a period of 30 months. Supreme Court in DLF Home Developers Ltd. Vs. Capital Green Flat Buyers Association, 2020 SCC OnLine SC 1125, has not accepted the explanation of the builder for delay occurred in sanction of lay out plan or other necessary approval from other government departments as these formalities were expected speculation and held that the delay was not caused due to force majeure and directed the builder to pay compensation from the promised date of possession. As such possession ought to have been offered within 30 months from addendum dated 05.04.2012, i.e. up to 05.10.2014. The builder has filed a letter of Dty. Commissioner, Ministry of Secretariat Gurgaon dated 01.09.2012, for stopping construction in compliance of the order of High Court dated 31.07.2012 but nowhere has stated that for what period the construction was stopped on the site.

There is no provision under the UBA for compensation due to delay in offer of possession. In payment schedule for “Home Loan Linked Payment Plan”, no pre EMI interest till possession was also assured, in the UBA. Along with the addendum in 2012, another “Home Loan Linked Payment Plan” was supplied which does not contain any such commitment. However, the builder in pargraph-3 of paragraph-wise reply of the written reply has admitted for bearing pre-EMI interest for a period of 30 months. Supreme Court in Wg. Comdr. Arifur Rahman Khan Vs. DLF Southern Themes Pvt. Ltd., (2020) 16 SCC 512, has held that 6% interest per annum from the date of promised possession till the date of offer of possession would be appropriate compensation for delayed possession. As such, the builder is liable to bear pre-EMI interest on the loan up to 05.10.2014 and thereafter will pay interest @ 6% per annum on the deposits made by the complainants till 19.11.2018.

So far as increase of built-up area was shown as 1527 sq.ft., to 1968 sq.ft., it was increased with due notice of the complainants. The complainants agreed to bear the cost of excess built-up area in addendums dated 05.04.2012 and 18.02.2017. The complainants have stated that increased built-up area in various head have been wrongly shown, this fact has been disproved from the certificate dated 18.12.2019, issued by Sh. Alok Mehta, Architect of the builder, who has stated that according to the sanctioned layout plan, the area of the plot was increased from 240 sq.yd. to 245.65 sq. yd. and built-up area was increased from 1527 sq. ft. to 1971.85 sq.ft. on the spot. Due to which, the cost of Villa was increased to Rs.10,64,314/-. The complainants have not given any evidence to contradict this certificate. As such the complainants are liable to excess cost of the built-up area. Provisions of RERA are not applicable in present case. (Paras 7, 9, 11 & 12)

Result: Opp. Party is liable to bear pre-EMI interest on loan up to 05.10.2014 and thereafter will pay interest @ 6% p.a. on deposits made by the Complainants till 19.11.2018 to the Complainant.