SUBHENDU MISHRA & ANR. vs SDS INFRATECH PVT. LTD.

Mr. Gaurav Singh and Mr. Rohit Singh booked a residential flat with the opposite party for agreed consideration of Rs.52,67,757/-. The deed of allotment was executed on 27.8.2010 between Mr. Gaurav Singh and Mr. Rohit Singh with the builder - SDS Infratech Pvt. Ltd. As per the Deed of Allotment, the possession was to be delivered to the allottee within 24 months from the date of the instrument with a grace period of six months meaning thereby that the possession could be delivered by 27.2.2013.

The complainants entered into an agreement with Mr. Gaurav Singh and Mr. Rohit Singh for purchase of the said flat and the transfer was approved by the opposite party vide its letter dated 21.12.2012. The possession was offered vide letter dated 2.6.2016. The area of the flat had increased to 1864.5 sq.f.t from 1650 sq.ft, but the opposite party decided to charge only at 1815 sq.ft. of the super area while issuing the letter dated 2.6.2016. The grievance of the complainants is that while paying the final demand, the OP has not credited compensation for the delayed possession of the flat. The possession of the flat, therefore, has not been taken by them since the OP insisting on payment of the balance amount along with interest without crediting the compensation in the account of the complainants. Being aggrieved, the complainants are before this Commission seeking the following relief:-

Issue Directions to the opposite party to immediately deliver the possession of the flats bearing No. Block/Tower T-5, at tenth floor and Unit No. T95)-1101 in NRI Residency, Sector-45, Plot No. GH04/A Noida U.P. to the complainants and;

Issue Directions to the opposite party to pay / adjust the interest @ 18% per annum compounded quarterly starting from the stipulated date of delivery i.e. from 27.8.2013 till the date of delivery of possession.

OR

In alternative if the opposite party seeks to cancel the flat then the opposite party may kindly be directed to pay interest @ 18% per annum compounded quarterly on the amount deposited from the date of deposits till the date of payment.

III Issue directions to the opposite party to pay Rs.50,00,000/- (Rupees Fifty lakhs only) as compensation for rendering deficient services and for mental agony and harassment on account of delay in construction and delivery of Flat and

IV Issue directions to the opposite party to pay Rs.50,000/- (Rupees fifty thousand only) as costs incurred in litigation.

As per section 21 of the Consumer Protection Act, this Commission has pecuniary jurisdiction to entertain a consumer complaint where the value of the service and compensation, if any, claimed by the complainant exceeds Rs.1 crore. The term value of the service in such cases has been interpreted to mean the agreed sale consideration by a three-Members Bench of this Commission vide its order dated 7.10.2016 in CC No.97 of 2016 - Ambrish Kumar Shukla & Ors. Vs. Ferrous infrastructure Pvt. Ltd. The agreed sale consideration in this case was less than Rs.53 lakhs even if the cost of the additional area is added to the aforesaid amount, the aggregate consideration would come to about Rs.62 lakhs.

As per the agreement between the predecessors-in-interest of the complainants and the opposite party, compensation in case of delay in offering possession was to be paid at the rate of Rs.5/- per sq.ft. of the super area per month. This Commission, however, has awarded compensation on account of delay in offering possession, in the form of interest upto 12% p.a. Even if compensation for the period the possession has been delayed is calculated @ 12% per annum and is added to the sale consideration computed on the basis of the increased area of the flat, the aggregate figure does come to more than Rs.1 crore. Therefore, this Commission lacks the pecuniary jurisdiction to entertain the complaint.

For the reasons stated hereinabove, the complaint is dismissed with liberty to the complainants to approach the concerned State Commission by way of an appropriate consumer complaint.