I contracted to purchase a `president' apartment in the DLF City ad-measuring about 236 sq. m in DLF Qutab Enclave, Phase-IV, in August 1994 by making a down payment of Rs 2 lakh and Rs 41,000 as earnest money-cum-booking advance. It was a condition of purchase that the seller would deliver possession of the apartment within three-and-a-half years of the date of execution of the letter of allotment, which in the present instance was August 2, 1994. In the event he failed to do so, he would compensate the purchaser for the excess time taken to complete and hand over the flat as per agreed specification at the rate of Rs 5 per sq ft per month for the delayed construction beyond the agreed period of three and a half years after availing the grace period of 90 days, provided all payments due under the terms of the letter of allotment had been made on time.The letter of allotment also includes the schedule of balance payments and stipulates that all payments are to be completed by December 1996, which hasindeed been done. This also covers payment of external development charges, the preferential location charges, the contingency deposit to cover additional demands that may be raised by the Haryana Urban Development Authority towards the cost of external development works and a deposit of Rs 15,000 towards the building maintenance fund.
Incidentally, the sale price of the apartment offered by the builder-developer was not only an escalation proof but also included the cost of internal wiring and switches (excluding fans, geysers and other fixtures) and the fire detection & protection equipment. It would thus be seen that the only payments now due would be on account of outgoing to cover electricity connection charges and the cost of stamp duties, registration charges and legal and other expenses incidental there to which shall become payable just prior to handing over of the committed apartment by the builder-developer.
We have been making periodic inquiries with the DLF both as site and their head officeand have been advised that it may not be possible for the company to commence delivery of the apartments before the end of the year. Therefore, given a delay of nearly 20 months, we are wondering whether we can ask the company to pay us the delayed payment charge of Rs 12,700 on a month to month basis and till such time as the delivery of the apartment is physically handed over to us. Kindly comment on this suggestion.
-- P N Kapur, NEW DELHI
Even assuming that the builder-developer accepts his liability to pay you the delayed construction charge of Rs 12,700 per month, he's bound to negotiate the period for which this charge would be paid as he would like to avail maximum shelter under various exclusions, specifically incorporated in the `letter of allotment'. Therefore, the period of 15 months for which a delay has already taken place may stand reduced. Even if the builder also agrees to pay a further charge on a month to month basis till such time that the physical possession of theapartment is handed over to you (for say another five months) the maximum outflow of the builder as assessed by you shall be Rs 2.54 lakh. On the other hand, you still have to pay the stamp duties and registration charges and electricity connection charges which in my opinion would exceed Rs 3 lakh. Therefore, in the final balance, you would still be owing the builder some money before finally taking over physical possession of your contracted apartment. Predictably, the builder could take the stand that any adjustment on account of delayed construction/handing over would be undertaken at the time of raising demand for final payments. That would also have to take into account any adjustments on account of variation in contracted and physically delivered area as also changes in specification, which as indicated to you at the time of issue of the allotment letter, were tentative and subject to change though at sellers option but subject to the additional cost being passed on to the purchaser.
Presumably, thebuilder's liability to compensate the purchaser for delayed construction and delivery stems from the provisions embodied in clause 15 of your letter of allotment which is full of `ifs' and `buts' and offers many avenues for the seller to evade this liability. As it is, the company is the sole arbiter in such matters and furthermore the allotment letter clearly states that any delay attributable to any of the undernoted factors shall be excluded from the delayed construction period in excess of three and a half years. The factors are:
Non-availability of cement, steel and any other building materials
Delay in supplies of electricity and water
Slow down strike by the construction labour
Dispute with construction agency
Militant action, war, enemy action, earthquake etc
Delay due to any act, notice, order, rule or notification of the government or any other public/competent authority or any other reason beyond the control of the company (e.g. delayed approval ofbuilding/zonal plans).In the event of prevalence of any of these circumstances, the company shall be entitled to a reasonable extension of time for the delivery of apartment. In the event of prevalence of any of these circumstances, the company has also reserved the right to alter or vary the terms and conditions of allotment and if in their opinion the circumstances are beyond the control of the company and if the situation so warrants, the company may even suspend the scheme for such period as it may consider expedient and no compensation of any nature shall be claimable by the apartment allottee for the period of suspension of the scheme. I am not aware if the company has written to you about the prevalence of any of these exigencies which may lead to delayed delivery of committed apartments. If any such communication has been received, the company could use such intimation as grounds for part denial of compensation.
Given the circumstances, you should await the possession offer/final accountsettlement letter from the company before taking up the issue of delayed delivery compensation (which in any case does not carry any commitment on the part of the company to pay interest on the delayed delivery settlement account). After receipt of this communication, you would be better aware of the company's stand on the issue and be able to deal with the matter more effectively. I entirely agree that the issue should be resolved before making the final payment and taking over possession of the apartment. In the event of stalemate, the flat buyers are always free to approach MRTPC or any consumer forum.
Copyright © 1999 Indian Express Newspapers (Bombay) Ltd.