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Case Brief - Capital Greens Flat Buyers Association & Others Vs. DLF Universal Limited & Anr. (2020 SCC OnLine NCDRC 3)

The case has been filed by the several persons as also the Buyers Association of project namely 'DLF Capital Greens' against M/s DLF Universal Limited being the Developer of the project. After, taking into account the various issues arising from the number of complaints, the Commission adjudicated on the following issues:

1. INCREASE IN SUPER AREA:
The Complainant has stated that the Developer is demanding payment for increase in Super Area which is invalid.

According to the Apartment Buyers' agreement the total price of the apartment was calculated on the basis of its super area as per Clause 1.1, which reflected not only the super area but also the apartment area of the apartment. Further as per Clause 1.6 and 10 of the Agreement it had been stated that the super area mentioned was tentative and it was also clarified that super area as well as percentage of the apartment area to the super area might undergo changes during construction and final supooer area would be confirmed upon completion of the construction.

The allottees had agreed not to object to the change of the super area. However, if the super area was to increase/ decrease by more than 15% on account of any alteration/ modification/ change, the allottees were required to be intimated in writing before carrying out the proposed change and had an option to take refund of the payment which they had made to the developer alongwith interest. In the present case the Developer has not sought payment for increase in the super area beyond 15%. Therefore, no prior notice to the allottees was required. Further, the percentage of the apartment area to the super area had also not changed.

Therefore, the Commission held that demand on account of an increase in the Super Area of apartment made by the Developer was valid.

2. CLUB CHARGES:
The Complainants had stated that the Developer was not entitled to recover the cost of club charges as the same has been specifically excluded from the definition of “Common Area” as per the Agreement. The submission of the Developer was that, though said area is not included in common areas and facilities but, it was entitled to charge separately for the said facilities. Reliance was also placed on Section 3 of the Delhi Apartments Ownership Act, 1986

3. Definitions – In this Act, unless the context otherwise requires, -
(c) "apartment" means a part of any property, intended for any type of independent use, and includes any garage or room (whether or not adjacent to the multi-storeyed building in which such apartment is located) provided by the promoter for use by the owner of such apartment for parking any vehicle or, as the case may be, for the residence of any domestic aide employed in such apartment;

(j) "common areas and facilities", in relation to a multi-storeyed building, means -
(iii) the basements, cellars, yards, gardens, parking areas, shopping centers, schools and storage ;
(viii) all other parts of the property necessary or convenient to its existence, maintenance and safety, or normally in common use;

(q) "limited common areas and facilities" means those common areas and facilities which are designated in writing by the promoter before the allotment, sale or other transfer of any apartment as reserved for use of certain apartment or apartments to the exclusion of the other apartments;

Looking at the above definitions, the Commission held that though a club is meant primarily for providing sports and recreational facilities to its members and thus would form part of the common areas and facilities in terms of sub-clause (vii) of Clause (j) of Section 3 of Delhi Apartments Ownership Act read with Rule 3 of Delhi Apartments Ownership Rules, 1987, however, relying on Nahalchand Laloochand P. Ltd Vs. Panchali Co-Op. Housing Society Ltd. [(2010) 9 SCC 536], the Commission held since, the developer herein, did not include the club area specifically amongst the common areas and facilities of the building at its own peril and thus, must necessarily bear the consequences of such an act on its part. The developer cannot be allowed to charge for the common areas and facilities which he deliberately did not include as a part of the said areas and facilities.
Therefore, the Commission held that the Developer is not entitled to recover the charges for the club area.

3. CAR PARKING CHARGES:
Similarly, the Complainants had also stated that the Developer was not entitled to recover the cost of basement car parking as the same has been excluded from the definition of "Common Area" as per the Agreement. The Commission relied upon Nahalchand Laloochand P. Ltd Vs. Panchali Co-Op. Housing Society Ltd. [(2010) 9 SCC 536] to cull out the definition of garage as follows:

a) The standalone garage is not a flat
b) Every space for parking a motor vehicle is not a garage.
c) For the purpose of MoFA, the term “Garage” must be considered as would be understood by a flat purchaser and
d) A garage must have a roof and wall on three sides.

The Commission further observed, Delhi Apartments Ownership Act does not exclude, from the purview of the term common areas and facilities, a basement, which is used for car parking. But as far as the term ‘garage’ used in Section 3(c) of the Delhi Apartment Ownership Act is concerned, that in the opinion of the Commission, contemplates a covered space, which is provided for the exclusive use of a particular apartment owner and the other apartments owner have no right in such a space. Therefore, the basement used for parking the cars does not qualify as a garage for an individual allottee.

Thus, it has been held by the Commission that, it is true that nothing in law prevented the developer form charging the cost of the club area and basement parking from the allottees, who were to pay on the basis of the super area which included not only the apartment area but also the common area of the building. But, having not done that, the developer cannot be allowed to charge separately from the allottees for the basements used for car parking.

Therefore, the Commission held that the Developer is not entitled to recover the charges for the basement car parking area from the allottees.

4. COMPENSATION FOR THE DELAY IN OFFERING POSSESSION:
The Complainants sought compensation for delayed possession whereas the Developer in defense had stated that the delay was caused due to force-majure conditions. It is to be noted that in terms of clause 11 (a) of the agreement, the developer was to endeavour to complete construction within a period of thirty six months from the date of the application unless delay was caused due to force-majeure conditions and the reasons specified in Clause 11(b) and 11(c) of the agreement. However, since no material has been placed on record by the Developer in support of the defense, the Commission held that the Developer has failed to establish any force majeure circumstance for the delay in offering possession of the allotted flats to the concerned allottees.

Insofar the quantum of the compensation was concerned, the submission of the learned counsel for the developer was that the allottees are entitled to compensation only @ Rs.10/- per sq. ft. of the super area per month as per the agreements executed between the parties.

The Commission relied on the decision of the Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan (2019) 5 SCC 725 which to the extent it is relevant, reads as under:
"...

6.7. A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the Agreement dated 08.05.2012 are ex-facie one-sided, unfair, and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder."

The Commission held that a paltry compensation of say Rs.10/- per sq. ft. of the super area per month does not provide adequate redress to the aggrieved allottee. Considering all the facts and circumstances, particularly the circumstances peculiar to this case, the allottees were held entitled to compensation in the form of simple interest @ 7% per annum from the expected date for delivery of possession till the date on which the possession was actually offered to them.

5. MAINTENANCE CHARGES & HOLDING CHARGES:
As far as maintenance charges were concerned, it was held that the same should be paid by the allottee from the date the possession is offered to him unless he was prevented from taking possession solely on account of the Developer insisting upon execution of the Indemnity-cum-Undertaking in the format prescribed by it for the purpose. It was further held that if maintenance charges for a particular period have been waived by the developer, the allottee shall also be entitled to such a waiver.

As far as holding charges are concerned, the developer having received the sale consideration has nothing to lose by holding possession of the allotted flat except that it would be required to maintain the apartment. Therefore, it was held that the holding charges will not be payable to the developer.

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