1. Heard Gunakara Giri, the appellant/complainant, in person and Mr. Nasir Husain, Advocate, Proxy Counsel, for the respondent.
2. Aforementioned appeals have been filed from the order of State Consumer Disputes Redressal Commission, Uttar Pradesh at Lucknow dated 13.01.2015, passed in Consumer Complaint No.87 of 2013, whereby the complaint was allowed with cost of Rs.5000/- and Samiah International Builders Private Ltd. (the opposite party) was directed to issue the letter of possession of Flat No.405, as per original agreement to Gunakara Giri (the complainant), who was directed to ensure payment of last instalment and take possession.
3. Gunakara Giri (the appellant) filed CC/87/2013, for directing Samiah International Builders Private Ltd. (the respondent) (the builder) (i) to handover the possession of Flat No.405, a 3BHK flat in “Melrose Avenue”, Vrindavan Yojna, Raebareli Road, Lucknow, (ii) to award compensation of Rs.20/- lacs, for the financial loss suffered by him (iii) to award compensation of Rs.10/- lacs, for mental agony and harassment, (iv) to award cost of litigation and (v) any other relief which is deemed fit and proper be awarded to the complainant.
4. The complainant stated that Samiah International Builders Private Ltd. (the opposite party) (the builder) was a Noida based Real Estate Developer and engaged in the business of developing and constructing residential and commercial building and selling its unit to the prospective buyers. The builder launched a project of group housing in the name of “Melrose Avenue” at GH-01, Sector-6-A, Vrindavan Yojna, Raebareli Road, Lucknow, in the year 2008. The complainant applied for allotment of a 3BHK flat on 11.04.2010 and deposited Rs.450000/- on 12.04.2010. The builder allotted Flat No.-405 at 3 Floor, (area 153.28 sq.mtr., Basic Sale rd Price-Rs.3000000/- and Covered Car Parking-Rs.100000/-) to him on 15.04.2010. The builder executed an agreement dated 16.04.2010, and vide letter dated 16.04.2010 promised for delivery of possession, on or before 15.03.2011 and payment plan was “Construction Linked Payment Plan”, under which, 15% of basic sale price had to be paid within 30 days of the booking and remaining amounts in three equal instalments. The complainant applied for Home Loan of Rs.25/- to Army Group Insurance Fund, which was sanctioned to him. As per demand, Rs.822194/- was deposited on 24.06.2010. The builder, vide letter dated 18.10.2010, informed that due to difficulty in getting approval of construction of ground plus 9 floor, the project would be constructed up to ground plus 7 floor. The builder issued demand letter dated 17.10.2010, demanding Rs.871888/- to be deposited till 31.10.2010, which was deposited on 23.11.2010. Last instalment was payable at the time of offer of possession as per payment plan. The complainant moved an application to Army Group Insurance Fund for release of last instalment. As loan was sanctioned on the term of “Construction Linked Payment Plan”, Army Group Insurance Fund issued a letter dated 28.02.2011, requiring the complainant to submit (i) A letter from builder that the flat was ready for possession and (ii) Photograph duly authenticated by registered architect, showing that construction was complete, for release of last instalment. As the construction was not complete, the builder was not in position to issue a certificate that the flat was ready for offer of possession nor certificate of architect regarding completion of the construction. The complainant, vide letter dated 15.03.2011, requested to complete construction and issue offer of possession. The builder, vide a corrigendum dated 01.05.2011, changed payment plan as “Preconstruction Payment Plan”. The builder then issued a demand letter dated 02.06.2011, demanding Rs.333368/- as due at that stage. As the complainant depended upon loan as sanctioned by Army Group Insurance Fund, he wrote a letter dated 20.06.2011 that he would able to pay balance amount, at the time of offer of possession. The builder issued a letter dated 09.07.2011, as a “proposal for optional service” of (i) gas pipe line, (ii) wardrobe and (iii) Modular kitchen. The builder issued another notice dated 14.11.2011, demanding Rs.564161/-.The complainant again vide letter dated 01.03.2012, showed his helplessness in payment of balance amount before offer of possession. The builder then issued Final Reminder Letter dated 09.10.2012, demanding Rs.1435424/-, payable within 7 days. The builder issued Demand Letter dated 08.11.2012, demanding Rs.876264/-, to be deposited before 20.11.2012. The complainant again vide letters dated 04.11.2012 and 23.11.2012, showed his helplessness in payment of balance amount before offer of possession. The complainant gave a letter dated 05.03.2013, for possession. The builder again, vide letter dated 16.03.2013, asked to follow payment schedule. Then the complaint was filed on 25.05.2013, complaining deficiency in service.
5. The opposite party filed its written reply on 31.10.2013 and contested the matter. The material facts as stated in the complaint have not been disputed. They stated that U.P. Awas Evam Vikas Parishad, granted ad-hoc sanction of layout for construction of 11 floors. However, U.P. Awas Evam Vikas Parishad approved layout finally for 7 floors only. Due to change of the layout plan, the builder suffered huge loss. The builder was selling the flats at the rate of Rs.2200/- per sq.ft. The complainant and 14 other Army officers approached the builder for purchase of the flat and they negotiated the rate of Rs.1818/- per sq.ft. The construction was delayed initially due to farmer’s agitations in acquisition of land. During construction, due to non-availability of steel, cement, other building materials, water supply, electric power slowdown, non-availability of labour etc. the construction was delayed. The complainant and various other allottees withheld payment of last instalment. In order to meet out the exigency and arrange fund to complete the construction, the builder changed payment. However, the complainant did not deposit the amount according to changed payment plan, in spite of several demands made in this respect. Under the agreement between the parties, possession has to be delivered after clearing all the dues. As the complainant failed to pay Rs.1435424/- as demanded in Final Reminder Letter dated 09.10.2012, he was not entitled to any relief. It has been denied that there was deficiency in service on the part of the builder.
6. The complainant filed rejoinder reply on 10.12.2013. In which, the facts stated in the complaint were reiterated. The complainant filed Affidavit of Evidence of Gunakara Giri. The builder filed Affidavit of Evidence. Both the parties filed their documentary evidence and written submission. State Commission, after hearing the parties, by judgment dated 13.01.2015, held that the builder had changed payment plan, which amounted to unfair trade practice. On this findings, the complaint was allowed with cost of Rs.5000/- and the builder was directed to offer possession within a month, without charging penal interest. On offer of possession, the complainant was directed to take possession, after making payment of last instalment. Both the parties are aggrieved by the order of State Commission and filed their separate appeals. The builder, in compliance of order of State Commission offered possession vide letter dated 03.02.2015. However, the complainant, vide letter dated 17.02.2015, lodged his protest in respect of incomplete construction and did not take possession.
7. The builder has filed IA/22776/2018 and IA22777/2018, in respective appeals, for adducing additional evidence to prove that other Army personnel, who were allotted Flat in the project “Melrose Avenue” had also taken loan from Army Group Insurance Fund. Their last instalment of loan was released before completion of construction. They took possession of the flats allotted to them from September, 2014, onward without raising any objection that the construction was incomplete. These documents are necessary for adjudication of dispute and some of these documents came in existence after order of State Commission. IA/22776/2018 and IA22777/2018 are allowed and the additional documents are taken on record.
8. Relying upon the judgments of Supreme Court in Lucknow Development Authority Vs. M.K. Gupta, (1994) 1 SCC 243, [LQ/SC/1993/978] Ghaziabad Development Authority Vs. Balbir Singh , (2004) 5 SCC 65 [LQ/SC/2004/373] and Delhi Development Authority Vs. Krishan Lal Nandrayog, (2004) 13 SCC 614, [LQ/SC/2003/915] the complainant submitted that State Commission ought to have awarded compensation for mental agony, harassment and actual loss due to delay in completion of the construction and delivery of possession, as possession was promised till March, 2011 and could be offered till filing of the complainant.
9. I have considered the arguments of the counsel for the parties and examined the record. Supreme Court in Banglore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 711, [LQ/SC/2007/738] held that in a contract involving construction, time is not the essence of contract unless specified. After considering aforementioned cases, it has been held that in the matter breach of contract, there is no scope for compensation for mental agony and harassment. However, for delayed possession, Supreme Court in Wg. Cdr Arifur Rehman Khan Vs. DLF Southern Home Pvt. Ltd., (2020) 6 SCC 512, held that the allottee was entitled for interest @6% per annum on his deposit, from due date of possession. Due date of possession was March, 2011. The builder for the first time offered possession vide letter dated 03.02.2015. As such, the builder is liable to pay delayed compensation i.e. interest @6% per annum on the deposit.
10. The builder does not dispute that payment plan was “Construction Linked Payment Plan” under which, fifth last instalment was payable at the time of offer of possession, which was March, 2011. As per demand, the complainant paid four instalments timely, which has not been disputed. The builder, vide a corrigendum dated 01.05.2011, changed payment plan as “Pre-construction Payment Plan”, which amounts to unfair trade practice and as such the complainant was justified in not responding subsequent demand notices, as these demands were made prior to offer of possession. The appeal filed by the builder has no merit.
ORDER
11. In view of the aforesaid discussions, F.A. No.196 of 2015 is partly allowed and F.A. No.447 of 2015 is dismissed. The builder shall issue a revised statement of account adjusting delayed compensation @6% per annum on the deposit of the complainant from April, 2011 till January, 2015, within 15 days from this judgment, giving at least 6 weeks’ time to the complainant to deposit. On deposit of the amount, the construction shall be completed as per specification of the agreement forthwith and possession shall be given and conveyance deed be executed.
