NCDRC Directs Builder To Pay Compensation For Delay In Giving Possession

The National Consumer Disputes Redressal Commission bench comprising Ram Surat Ram Maurya as the President and Dr. Inderjit Singh as Member directed the builder to pay compensation for delay in delivery of possession and for not delivering the facilities promised earlier. The bench was hearing the case Anil Rawat v. Clarion Properties ltd.

The complainants submitted that the total consideration for the unit, including IFMS Security, Club Membership and contingency final charges was Rs.55,41,184/-, but complainants were forced under threat of cancellation of allotment, to pay a total consideration of Rs.72,25,417/-, including stamp duty and registration, by levying unconscionable, unsubstantiated and illegal charges in the name of electricity connection charges, excess area charges, BOCW Cess, IFMS maintainance security, besides delaying handing over of the apartment by more than a year. 

It was also submitted that the builder did not provide the facilities and features that it promised in its brochure, website and demonstrated in the sample flat, thereby grossly overcharging the complainants for non-existent features. 

Observations made by the Commission:

1) For Compensation for Delay in Possession, the bench relied on the decision in M/s Laureate Buildwell Pvt. Ltd. Vs. Charanjeet Singh (2021) and observed that all the complainants, including those who  are not the original allottees but subsequent transferee, like the complainants would be entitled to count the committed period of possession and delay compensation etc., as applicable to the original allottees.

2) For Refund of Club Membership Charges, the bench observed that the cost of these services is not included in the price stated in the Agreement. Hence, complainants are not entitled to refund of any amount on account of club membership charges.

3) For Return of contingency fund deposit the bench observed that the agreement specifically provides for payment of contingency deposit @ Rs.5/- per sq.ft. the complainants are not entitled to refund of this item. But the bench said that OP has not stated clearly as to for what purpose this amount has been used or will be used, OP should, in the interest of fairness and transparency declare/disclose to the complainants, and also put on its website for the benefit of all the allottees of the project, the use to which such fund has been put or will be put in future.

4) For Refund of excessive electricity charges the bench noted that the allottee will be required to pay the charges pro-rata per sq.ft. and expenses will be charged in proportion to the super area of the units.

5) For Refund of IFMS the bench observed that considering that LCA is now maintaining the common areas and facilities, OP-1 need to transfer this fund to this LCA for use for the intended purpose, subject to LCA having a duly elected body/managing committee etc. in place as per its bylaws/Rules etc.

6) For refund of administration charges, the bench observed that the agreement provides for Registration/Stamp duty charges as may be applicable. Other than these, agreement does not envisage payment of any administration charges.

7) For Refund of illegally charged amount on account excess area charges the bench observed that the complainants have a right to know the exact break up of the final super area into final covered area and final common areas as well as item-wise break-up of the common area so that they have an opportunity to satisfy themselves by way of actual measurements and in case of any major variation , contest the same with OP.

8) For Refund of illegally charged amount on account of BOCW Welfare Cess the bench observed that there is no specific mention of BOCW Welfare Cess being payable by complainants in the Agreement.Agreement only states that service tax or any other taxes are payable as may be applicable.

The bench further observed that any failure on the part of developer in not providing the Unit to the complainants as per specifications alongwith with facilities and amenities promised in the brochure and/or agreement, amounts to deficiency in service, making it liable for rectification of the deficiency or compensate the complainants to the extent of such deficiency.Further, if any developer makes any representations/promises in the brochure to lure the people/prospective allottees to book units in his project but after accepting the initial amounts does not include such promised amenities/facilities in the agreement , it will amount to unfair trade practice, making the developer liable for the same.