2020 (8) TMI 940 - Commission - Indian Laws

Direction to handover the legal possession of the unit along with all the promised facilities and amenities to the complainant - Interpretation and implementation of the terms of the builder buyer's agreement - complainant has multiple bookings which prove that the complainant is not covered under the definition of consumer as provided in the Consumer Protection Act 1986 - HELD THAT - The complaints have been filed mainly for two reasons. The first is that the opposite party has demanded extra money for excess area and second is the delay in handing over the possession. In respect of excess area, the complainant has made a point that without any basis the opposite party sent the demand for excess area and the certificate of the architect was sent to the complainant, which is of a later date. The justification given by the opposite party that on the basis of the internal report of the architect the demand was made for excess area is not acceptable because no such report or any other document has been filed by the opposite party to prove the excess area. Once the original plan is approved by the competent authority, the areas of residential unit as well as of the common spaces and common buildings are specified and super area cannot change until there is change in either the area of the flat or in the area of any of the common buildings or the total area of the project (plot area) is changed. The real test for excess area would be that the opposite party should provide a comparison of the areas of the original approved common spaces and the flats with finally approved common spaces/ buildings and the flats. This has not been done. In fact, this is a common practice adopted by majority of builders/developers which is basically an unfair trade practice. There is no harm in communicating and charging for the extra area at the final stage but for the sake of transparency the opposite party must share the actual reason for increase in the super area based on the comparison of the originally approved buildings and finally approved buildings. Basically the idea is that the allottee must know the change in the finally approved layout and areas of common spaces and the originally approved lay-out and areas. Hon ble Supreme Court in DLF HOMES PANCHKULA PVT. LTD. AND ORS. VERSUS D.S. DHANDA AND ORS. 2019 (5) TMI 2006 - SUPREME COURT has clearly observed that when the contract/agreement has been signed by the builder and the allottee, both of them are bound by the terms of the agreement and from this aspect, the allottee is only entitled to get the compensation as mentioned in the agreement. The Hon ble Supreme Court has given some compensation for mental agony and harassment to such allottee. In the present case, a compensation of Rs.7.50/- per sq.ft. per month is agreed between the parties for delay in possession and therefore, in the light of the decision of the Hon ble Supreme Court in DLF Homes Panchkula Pvt. Ltd. anr. Vs. D S Dhanda, ETC; it is difficult to compensate the complainant by ordering interest on the amount paid by the complainant. The demand for excess area is cancelled and the opposite party is directed to send revised demand excluding for the demand of excess area without adding any new demand within a period of 30 days along with the offer of possession - Opposite party is directed to hand over the possession within a period of 30 days from the date of issue of such offer letter. The possession should be complete in all respects as per the agreement. Complaint allowed in part.

Summary

Issues Involved:
1. Whether the complainant qualifies as a 'consumer' under the Consumer Protection Act, 1986.
2. Legitimacy of the demand for payment for excess area.
3. Delay in handing over possession and the compensation for such delay.
4. Provision of promised facilities and amenities.

Analysis:

1. Consumer Status of the Complainant:
The primary contention by the opposite party was that the complainant does not qualify as a 'consumer' since he had booked two flats, implying a commercial intent. However, the Commission rejected this argument, stating that mere booking of more than one flat does not automatically classify the purchase as a commercial activity. Citing precedents such as *Aashish Oberai Vs. Emaar MGF Land Limited* and *Kavit Ahuja Vs. Shipra Estate Ltd.*, it was established that unless it is proven that the complainant is engaged in the business of buying and selling properties regularly for profit, the complainant remains a 'consumer' under Section 2(1)(d) of the Consumer Protection Act, 1986.

2. Demand for Excess Area:
The complainant contested the legitimacy of the demand for excess area, which was later justified by the opposite party with an architect's certificate dated after the demand was made. The Commission found this practice to be an unfair trade practice, as no proper documentation or comparison with the originally approved plans was provided to justify the increase. The demand for excess area was thus canceled, and the opposite party was directed to issue a revised demand excluding the excess area charge.

3. Delay in Handing Over Possession:
The possession was due by 26.12.2016 (CC 285 of 2018) and 08.02.2017 (CC 286 of 2018), but was only offered in December 2018. The complainant argued that the possession offered was incomplete and lacked promised amenities. The Commission acknowledged the delay and noted that the possession offered after obtaining the occupation certificate cannot be termed as 'paper possession.' However, compensation was warranted for the delay. The Commission referred to the Supreme Court ruling in *DLF Homes Panchkula Pvt. Ltd. & anr. Vs. D S Dhanda, ETC; Sudesh Goyal, ETC*, which emphasized that compensation should align with the terms agreed upon in the builder-buyer agreement. Consequently, the complainant was awarded compensation for mental agony and harassment in addition to the agreed compensation in the agreement.

4. Provision of Promised Facilities and Amenities:
The complainant highlighted deficiencies in the property and requested the provision of all promised facilities and amenities. The opposite party agreed to rectify the noted deficiencies. The Commission directed the opposite party to rectify all defects within 30 days and hand over complete possession as per the agreement.

Conclusion:
The complaints were partially allowed with the following directives:
1. The demand for excess area was canceled, and a revised demand excluding the excess area was to be issued within 30 days.
2. The opposite party was directed to rectify all noted defects within 30 days.
3. Complete possession, as per the agreement, was to be handed over within 30 days from the revised offer.
4. Compensation for mental agony and harassment was awarded: Rs. 5,00,000/- in CC 285 of 2018 and Rs. 3,00,000/- in CC 286 of 2018.
5. Compensation @ Rs. 7.50 per sq.ft. per month from the due date of possession up to three months after the date of the earlier offer of possession in December 2018 was to be paid.