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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Ram Surat Ram Maurya, Presiding Member and Dr. Inder Jit Singh, Member
Mona Mayor and Anr. – Complainants
versus
Pioneer Urban Land &
Infrastructure Ltd. – Opp. Party
Consumer Case No.1233 of 2018
Decided on 11.11.2022
Counsel for the Parties:
For the Complainants:Ms. Samprikta Ghosal, Advocate with Complainant No.1 in person
For the Opp. Party:Mr. T.V.S. Raghavendra Sreyas, Advocate, Mr. Siddharth Vasudev, Advocate
IMPORTANT POINTS
(1) Right to claim fair delay compensation - the complainants in the present circumstances have a legitimate right to claim fair delay compensation/interest from the OP.
(2) Registration Charges - Complainants are liable to pay actual registration charges levied by government authorities.
(3) Indefinite time - The complainants cannot be made to wait for an indefinite time and suffer financially.
Headnote:
Consumer Protection Act, 1986 – S.21(1)(a)(i)[Consumer Protection Act, 2019 – S.58(1)(a)(i)] – Services – Real Estate – Allotment of Flat / Plot – Delayed Possession – Builder Buyer Agreement – inordinate Delay – Legitimate right to claim compensation - Liability to pay actual registration charges – Increase in super built up area - In the instant case, there is an inordinate delay in handing over the possession of flat by the OP. The complainants cannot be made to wait for an indefinite time and suffer financially. Hence, the complainants in the present circumstances have a legitimate right to claim fair delay compensation/interest from the OP. The plea of OP for entitlement of compensation to the complainants in accordance with provisions of the BBA is not valid - OP is entitled to charge only as per BBA. Complainants are liable to pay taxes/GST etc. payable to Govt. authorities as per prevalent rates. Complainants are liable to pay for car parking as per rates/terms and conditions mentioned in the BBA. OP cannot charge separately for electric substation unless BBA specifically provides for it, otherwise it is presumed to be included as part of IDC. Complainants are liable to pay actual registration charges levied by government authorities. As regards exclusive club, it is evident from the foregoing, especially the site plan showing independent clubs for both ‘Araya’ and ‘Presidia’ clubs, which is not denied by OP, but pleaded that it was only a tentative proposal of development, the complainants were made to believe that their project will have a separate/exclusive club. BBA/application form does not specifically state that the allottees of ‘Presidia’ will have only a shared club facility with allottees of any other project of the OP. To that extent OP is found deficient in service/misleading the complainants – Therefore, OP need to compensate the complainants in some way for deficiency in service on this count – On facts, Complainants are liable to pay for the increase in super area of 191 sq.ft., which is within the prescribed limits of BBA and is also 122% of covered area as per statement of OP. Payment for increased area shall be at the rates mentioned in the BBA for original area – Complaint allowed. [Paras 10 to 17]
Result: Petition allowed.
ORDER
Dr. Inder Jit Singh, Member—The present Consumer Complaint (CC) has been filed by the Complainants against the opposite party as detailed above, inter aila praying for directions to the OP:—
(i) to hand over the actual physical possession of the apartment to the complainants after rectifying the defects stated in the Defect survey report.
(ii) to pay interest @18% p.a. for the period the OP delayed the possession beyond the stipulated date i.e. from 09.06.2013 till the date of actual physical possession.
(iii) to refund illegal demand of money towards EDC/IDC and VAT made beyond statutory requirements.
(iv) that all increase in taxes after expiration shall be borne by the OP.
(v) not to charge from Complainants any increase in Super-area which is not proportionate to increase in Carpet Area.
(vi) to provide independent club house to project “Presidia” or else not to charge for the Club House.
(vii) to refund/adjust the unjustified amounts charged from the Complainants towards car parking.
(viii) to pay Rs.10 lakhs towards compensation for mental agony, heart burning, deprivation of their property and emotional trauma.
(ix) to pay Rs. 2 lakhs towards litigation cost.
2. Notice was issued to OP on 05.06.2018, giving them 30 days’ time to file written statement. Written statement was filed by OP on 18.07.2018.
3. It is averred in the Complaint that:—
(i) The complainants booked a residential apartment with the OP in a project namely ‘PRESIDIA’ which the OP was to develop in Sector 62 of Gurgaon. The booking was made on 22.02.2010 paying a booking amount of Rs.31,73,530/-. After allotment of a residential apartment bearing No. C-502, Tower No.C, Floor No. 5, measuring 3104 sq.ft. to the Complainants, the parties executed an Apartment Buyers agreement (BBA) on 09.06.2010. As per BBA, the possession was proposed to be handed over to the complainants within 36 months with 6 months’ grace period from the date of execution of Agreement. The grievance of the complainants is that the possession has not been offered to them by the OP constituting deficiency of service, unfair trade practices, restrictive trade practices etc. on their part despite having paid Rs. 1,62,09,597/- out of the agreed sale consideration of Rs. 1,73,54,848/-.
(ii) The BBA was a fixed set of papers, which was asked to be signed by the buyers/allottees including the present Complainants and no modifications were entertained by the OP. On request to change the one sided clauses, it was told that the BBA has to be signed as it is and in case it is not acceptable then the allotment will stand cancelled and earnest money will be forfeited, seeing no option the buyers had to sign the BBA containing the one sided clauses favouring the OP.
(iii) It is further averred that despite a delay of almost 5 years, the OP issued a letter of ‘intimation for possession’ to the complainants and vide this letter the OP levied various fresh illegal demands which were never anticipated earlier and are completely unjustified. As discovered by the complainants, the actual area of the flat is around 1900 sq.ft. and the OP has been demanding unlawfully for 3295 sq.ft. from them which is an illegal demand of money.
(iv) The OP has refused to handover the possession unless and until the complainants clear all the payments as demanded by the OP.
(v) As per clause 9.5 of BBA, it was agreed by the OP that in case of any delay, the OP shall pay to the complainants a compensation at the rate of Rs.5-10/- per sq.ft. per month for the period of delay. The OP has incorporated the said clause as one-sided and has offered to pay a meagre sum for every month of delay. On calculation it comes to less than 2% per annum rate of interest. However, as per clause 1.10 of the Agreement, the OP charges interest @18% p.a. from the allottees on any amount due. On the grounds of
