C. M. NAYAR & ANR vs M/S. UNITECH LTD. & ANR

Counsel for the parties present. Final arguments heard. The possession of the flat has been given to the complainants. The sale deed has also been executed. Counsel for the Complainants points out that there are still two problems. Firstly, there is a delay in handing over the premises in dispute and secondly no occupation certificate has been handed over to the complainant.

First of all we turn to the question of delay in handing over the possession of promises in dispute. Our attention has been invited towards para No. 4 A (i) of the agreement, which is reproduced as follows:- "4.a.Delivery of Possession: That the possession of the Apartment is proposed to be delivered by the Developer to the Purchaser by June 2008 subject to force majeure circumstances beyond the control of the Developer, and upon registration of sale deed provided all amounts due and payable by the Purchaser under this Agreement have been paid to the Developer within the stipulated period. It is, however, understood between the parties that the possession of various Blocks/Towers comprised in the Complex shall be ready and complete in phases and after the completion the Apartment shall be handed over to the Purchaser of different Towers".

Further the possession was delivered on 27.10.2014. It should have been delivered in June 2008.

On the other hand, counsel for the Opposite Parties submits that the offer of possession was made on 03.03.2012. The letter in this context has been placed on the record. In response to this letter, the complainant sent letter dated 30.03.2012. The relevant extract runs as follows:- "The aforesaid amounts are being paid under protest and without prejudiced to our rights and contentions arising in complaint case no. 165/2011 pending before the National Consumer Disputes Redressal Commission".

Again the construction was incomplete.

The complainant also sent another letter dated 06.03.2012 asking the OP to produce the occupancy certificate and state the reasons for delay in giving the possession of premises in dispute. It is an indisputable fact that occupancy certificate has not yet been obtained.

The Second submission made by the counsel for the OPs is that the OPs had applied for occupancy certificate vide letter dated 08.03.2010. They have not still got the said certificate despite the elapse of 5 years. It is surprising to note that if the OPs were not sure that they would get the occupancy certificate, they should not have floated this scheme. The Consumers are afraid of the Coca Cola Colony''s case in Bombay. They desire that the occupation certificate must be obtained before they are put in possession of the premises in dispute. The consumers are further exasperated by the senseless delay.

The counsel for the OP submits that the parties are bound by the terms and conditions of the agreement. Again parties cannot go behind the agreement. Counsel for the OP has also referred to Clause 9(b) of the agreement, which runs as follows:- "9(b). Force Majeure:

That, however, if the completion of the Apartment is delayed for reasons of ''Force Majeure'' or circumstances beyond the control of the Developer or because of any notice or order of the government, indulging slow down strike, civil commotion or by reason of war, enemy or terrorist action or an act of God, delay in the grant of completion/occupation certificate by the Government and/or any other public or competent authority or for any reason beyond the control of the Developer, the Developer shall be entitled to a reasonable extension of time in the agreed date for delivery of possession of the Apartment".

Counsel for the OPs submits that in view of this covenant, the matter can be delayed for some period, if the restriction is made by the Govt.

However, there is rider in the said Clause. The Commission can allow reasonable extension of time in case the above said circumstances exist. Five years have already elapsed. It is well said that Justice delayed is not only Justice denied, it is also Justice circumvented, Justice mocked and the system of Justice undermined. One cannot understand, how can the builders prefer to adopt the Fabian policy. It helps them to feather their own nest, i.e., to make profit for themselves often at the expenses of others.

Counsel for the Opposite Party has drawn our attention towards Clause IV C-II, which is reproduced here as follows:- 4(c). Holding Charges: ii) That the Developer will be liable pay charges @ Rs.5/- per Sq. Ft. per month for the period of delay in offering the Possession of the said Apartment beyond the period indicated in clause 4.a.i, save and except for reasons beyond the reasonable control of the Developer. These Charges would be adjusted at the time of Notice of Possession".

Counsel for the Opposite Parties submits that the entire payment has been made as per Clause 4(c), but the counsel for the complainants denies the same. This condition clearly goes to show that this is an arbitrary provision. The OPs cannot become judges of their own cause.

Next submission made by the counsel for the OP is that the complainants are not the original allottees. They have purchased it from somebody, who is the original allottee but with the consent of the OPs. They have also paid the transfer charges, which the OP accepted the same without demur.

Counsel for the Opposite Party lastly submits that the cost of this flat is Rs.55,86,326/- and this case does not come within the jurisdiction of this commission. However, the complainants have claimed a sum of Rs.3,89,96,733/-.

We are unable to locate any substance in these arguments. Counsel for the OPs claims that the charges in the sum of Rs.5/- per sq. ft. have been paid or adjusted but he is unable to give the details. In the absence of that calculation, the clear picture does not emerge. It is stated that even if that amount is calculated, it will not come to Rs.1,00,00,000/-. We have heard this case for the last four years, at this stage, it should not be transferred to the state Commission. Even if, we have no jurisdiction, this objection should have been raised at the proper time. This is not the proper way to raise this objection when the case is coming to an end and possession of the premises was delivered to the complainant vide our order.

Keeping in view all the facts and circumstances, we hereby direct the OP to pay interest @15% per annum, for the delayed period, starting after deducting the grace period of 6 months from January 2009, till the possession was given, i.e., on 27.10.2014. The amount already paid shall stand deducted. We further direct the OPs to pay a sum of Rs.1,00,000/- for harassment and mental agony, which will be paid, within 45 days from the receipt of this judgment, otherwise, it will carry interest @ 9% p.a., till realization. See the law laid down by the Apex Court in Para No. 24 of the case titled as K.A. Nagamani Vs. Karnataka Housing Board in Civil Appeal Nos. 6730-31 of 2012 decided on 19 th September 2012.

Now, we turn to the question of Occupation Certificate. Enough time has elapsed. We, however, in the interest of justice, grant one more year to the Opposite Parties to get the occupation certificate. After the expiry of one year, i.e. till 09.12.2016, the OPs will be liable to pay Rs.500/- per day, till the Occupation Certificate is handed over to the complainants.