CDR. RAJESH RAJGOPALAN Vs. VATIKA LTD

JUDGEMENT

(1.) This order will dispose a complaint filed under sec. 21 of the Consumer Protection Act, 1986 (in short, the 'Act') alleging deficiency in service and unfair trade practice by the opposite party, a builder, in delay in handing over possession of the flats booked by the complainants and related issues. A separate application under sec. 12(1)(c) read with sec. 22 of the Act was filed by the complainants seeking permission to file the complaint by consumers having same interest which was allowed.

(2.) The facts, in brief, according to the complainants are that while there were originally 40 complainants, 6 complainants settled the matter with the opposite party, one withdrew his complaint, one more complainant was impleaded as a party. Hence, there are 34 complainants presently left. The complainants booked flats in the housing project "City Homes", Gurgaon, Haryana between March - August 2008. The sale consideration of a 3 BHK flat was Rs.36.00 lakhs and Rs.29.02 lakhs for a 2 BHK flat. The first installment of Rs.6,00,000.00 was paid and a demand was raised for second installment of Rs.6,00,000.00. In February 2009 the opposite party forwarded a Flat Buyers Agreement (FBA) to the complainants which was completely one-sided. Complainants were asked to pay the third installment within 10 days. Clause 10.1 of the FBA provided that the date of handing over possession would be from the date of signing of the FBA, without a penalty for delay in handing over possession. Based on objections to the FBA, the opposite party made changes to the FBA including agreeing to pay interest @ 7.5% on the amount for buyers who booked flats between 15/3/2008 and 1/8/2008; amendment of Clause 10.1 to provide that the period of three years for offering possession would count from the date of payment of the booking amount; in case of delay in handing over possession, penalty of Rs.5.00 per sq. ft. for 12 months of delay and Rs.10.00 per sq. ft. thereafter till possession. The opposite party made changes to the housing project including change in location, open parking instead of basement parking at an additional cost of Rs.2.00 Lakhs, increase in super area of the flat by 16% to 19%, enhancement of sale price of flat to Rs.55.00 Lakhs for 3 BHK and Rs.38.00 lakhs for a 2 BHK flat. Flats were also re-allotted and earlier allotments were cancelled. On 29/4/2014 opposite party applied for Occupation Certificate (OC). The opposite party started offering possession from the year 2014 to 2016/2017 to flat buyers and without completing the project they forced the flat buyers to pay third installment and to take possession without obtaining OC and NOC from Fire Safety Department which was received subsequently on 26/3/2015. Complainants alleged cheating and fraud by the opposite party before the Directorate of Town and Country Planning, Haryana on the ground that despite payment of 95% of the sale consideration opposite party had delayed in handing over possession by 4 to 7 years. It was alleged that complainants were unable to obtain loan from banks as no building approval drawings were provided by the opposite party.

(3.) The complainants rely on the judgments of Hon'ble Supreme Court of IREO Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna and Ors. 2021 SCC Online SC 14 which rejected the meagre compensation offered by the developer for delayed possession and granted a higher rate of compensation and Lanco Hills Technology Park Pvt. Ltd. Vs. Manisha Balkrishna Kulkarni and Anr. (2020) 11 SCC 699 wherein the developer was held liable to pay compensation for the delay even beyond the contractually agreed period and lumpsum compensation amounting to Rs.10.00 Lakhs was awarded to home buyers. The complainants also rely upon Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd. 2020 SCC Online SC 667 wherein it has been held that :