In a bat­tle for de­layed de­liv­ery, orig­i­nal buy­ers can gain more

Orig­i­nal al­lot­tees in a re­cent case were awarded more com­pen­sa­tion for de­layed de­liv­ery than oth­ers who re­pur­chased apart­ments later

HT Estates - - HTESTATES - Su­nil Tyagi

Any­one in­ter­ested in i nvest­ing i n a par­tic­u­larly at­trac­tive project is bound to be dis­ap­pointed if he or she finds that all apart­ments in t hat com­plex are booked. The per­son i s t hen f orced to buy a unit from some­one al­ready in­vested in the project. In this sit­u­a­tion, the in­tended buyer/ i nvestor be­comes a sub­se­quent/sub­sti­tuted al­lot­tee and steps into the shoes of the orig­i­nal al­lot­tee. Now the ques­tion is: will the new al­lot­tee who has ac­quired al­lot­ment by way of re­pur­chase/trans­fer and the orig­i­nal al­lot­tee be on equal foot­ing?

In a re­cent judg­ment, the Na­tional Con­sumer Dis­pute Re­dres­sal Com­mis­sion (Na­tional Com­mis­sion) dealt with a sim­i­lar is­sue while re­dress­ing 24 sim­i­lar/ iden­ti­cal con­sumer com­plaints filed by con­sumers com­pris­ing of both orig­i­nal al­lot­tees and sub­sti­tuted al­lot­tees hav­ing ac­quired al­lot­ment by way of re­pur­chase/trans­fer. The Na­tional Com­mis­sion granted re­lief to all the al­lot­tees by go­ing be­yond the terms of the builder­buyer agree­ment, hold­ing that the com­pen­satory clauses in the agree­ment were un­fair and one-sided. How­ever, the com­pen­sa­tion awarded to the orig­i­nal al­lot­tees and the sub­sti­tuted al­lot­tees was dif­fer­ent.In one case, the al­lot­tees had booked flats in a com­plex in Gurgaon, Haryana, and en­tered into in­di­vid­ual buy­ers agree­ment with the builder. There were cases where orig­i­nal al­lot­tees trans­ferred their al­lot­ment in favour of third par­ties. It was agreed that pos­ses­sion of the flats would be handed over to the al­lot­tees within 36 months from the date of the agree­ment. How­ever, even af­ter 50 months, nei­ther was pos­ses­sion de­liv­ered to the al­lot­tees nor was the con­struc­tion com­pleted by the builder. There­fore, the al­lot­tees, be­ing left with no op­tion, ap­proached the Na­tional Com­mis­sion seek­ing appropriate re­lief. The al­lot­tees in their com­plaints sought de­liv­ery of the flats and de­manded com­pen­sa­tion for the de­lay.

In lieu of loss for rental i ncome, t he al­lot­tees also de­manded com­pen­sa­tion at the rate of ₹ 5 per square feet, ac­cord­ing to the terms of the agree­ment. It was to ap­ply from the date when pos­ses­sion of the flat was to be handed over. The buy­ers also pleaded for grant of com­pen­sa­tion on ac­count of men­tal tor­ture and agony suf­fered due to un­jus­ti­fi­able de­lay in hand­ing over pos­ses­sion of the flat.

The Na­tional Com­mis­sion al­lowed the com­plaint and di­rected the builder to hand over pos­ses­sion of flats to all the al­lot­tees in a time bound man­ner. How­ever, for the pur­poses of award­ing com­pen­sa­tion, the Na­tional Com­mis­sion dif­fer­en­ti­ated be­tween the orig­i­nal al­lot­tees and sub­sti­tuted al­lot­tees.

The orig­i­nal al­lot­tees, and sub­sti­tuted al­lot­tees who had booked flats within one year from the date of the ini­tial agree­ment be­tween the orig­i­nal al­lot­tee and the builder, were for the pur­pose of com­pen­sa­tion to be treated at par with each other and ac­cord­ingly granted com­pen­sa­tion/in­ter­est at the rate of 12% per an­num with ef­fect from 36 months from the date of the ini­tial agree­ment till the ac­tual date of pos­ses­sion.

The rea­son given for award­ing this com­pen­sa­tion was that such al­lot­tees could not have fore­seen that the builder would be un­able to de­liver pos­ses­sion within the stip­u­lated date as two more years were still left for the builder to hand over pos­ses­sion.

On the other hand, the sub­sti­tuted al­lot­tees who had ac­quired al­lot­ment by way of re­pur­chase/ trans­fer from the orig­i­nal al­lot­tee, af­ter more than one year from the date of the ini­tial al­lot­ment, could not be treated at par with the orig­i­nal al­lot­tees. The Na­tional Com­mis­sion ob­served that such sub­sti­tuted al­lot­tees had knowl­edge that builder would not be able to give pos­ses­sion of flat on time. Thus, the Na­tional Com­mis­sion awarded com­pen­sa­tion/in­ter­est at the same rate of 12 % per an­num but not from three years from the date of their ini­tial al­lot­ment, but from three years from date of re­pur­chase/trans­fer till the pos­ses­sion was handed over. For the pe­riod be­tween three years from the date of ini­tial al­lot­ment and three years from the date of re­pur­chase/trans­fer, the Na­tional Com­mis­sion granted the trans­fer­ees com­pen­sa­tion of ₹ 5 per square feet of su­per area of the flat per month.

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