JUSTICE V.K. JAIN (ORAL)
In C.C. No.976 of 2016, Vrajendra J. Thakkar, HUF booked a residential flat with the opposite party in a project, namely, 'White Spring Building' which the opposite party was to construct in Village Magathane, Dattapada Road, Borivali (East), Mumbai, for a consideration of Rs.9038850/- and flat No.6A in the proposed building was allotted to him. The parties then entered into an agreement dated 30.10.2012, incorporating their respective obligations in respect of the aforesaid transaction The allotment was later transferred by the HUF to the mother of the complainant who thereafter gifted the same to the complainant. In terms of Clause 17 of the agreement dated 30.10.2012, the possession was to be delivered by August, 2014 though the date for delivery of possession was to automatically stand extended in the event of any of the contingencies specified in the said Clause. The complainant and/or his predecessor-in-interest made payment of a sum of Rs.8586912/- to the opposite party but the
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possession of the flat was not delivered to him. He, therefore, approached this Commission by way of this consumer complaint, seeking the following reliefs:-
"a. OP be directed to handover the legal possession of flat to complainant within one month
AND
b. OP be directed to pay to Complainant 18% interest per annum on Rs.85 86,911/- from September '2014 on the consideration amount already paid to OP till OP handover the possession of the flat to Complainant. OR
c. if granting prayer a) & b) is legally not possible then in alternative OP be directed to hand over any other newly constructed flat to complainant consisting same area, at the same rate in same locality in tower with same facility. OR
d. OP be directed to refund the Complainant Rs.2,00,00,000/- (Rupees Two Crore) the current market value of the said flat. AND
e. AND OP be directed to pay to complainant 18% interest per annum on Rs.85,86,911/- from September 2014 on the consideration amount already paid to OP till OP refund complainant Rs.2,00,00,000/- the current market value of the said flat. AND f. OP be directed to pay to complainant Rs.5,00,000/- as compensation for causing mental stress, harassment and agony. AND
g. OP be directed to pay to Complainant Rs.1,00,000/- as litigation cost. h. Any other relief as Hon'ble Commission deem fit and proper."
2. In C.C. No.975 of 2016, Smt. Hemali Vrajendra Thakkar, wife of the complainant booked a residential flat with the opposite party in the same project and flat No.6B was allotted to her for the same consideration of Rs.9038850/-. She also entered into an agreement dated 30.10.2012 with the opposite party and the said agreement contained clauses identical clauses contained in the agreement subject matter of CC No. 976 of 2016. Later on, the aforesaid allotment was transferred by the wife of the complainant to her mother-in-law, namely, Kundanben Jagjivandar Thakkar, who in turn gifted the same to the complainant. Since the possession of the above referred flat was not offered to him, the complainant is before this Commission with identical prayers.
3. The complaint has been resisted by the opposite party which has admitted the bookings made by the complainant and his wife as well as the execution of the agreements with them on 30.10.2012. It has interalia been stated in the written version filed by the opposite party that since the possession of the flats was delayed, the opposite party had made an unconditional offer to refund the entire amount received from the complainant alongwith interest @ 9% per annum in terms of Clause 18 of the agreement dated 30.10.2012 . It is further alleged in the written version filed by the opposite party that since the possession was delayed for the reasons squarely covered in Clause 17 of the agreement dated 30.10.2012, the delay in offering the possession was justified. It is alleged that after the opposite party had applied for the Commencement Certificate for the upper habitable floors, the same was not processed since changes in Development Control Rules were in the offing. The notification amending
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Development Control Rules came to be issued only in January, 2012 and thereafter, the Commencement Certificate was approved in March 2012, where upon the opposite party could start the work in September/October, 2012. It is also alleged that the work was intermittently delayed due to the off and on Government restrictions on procurement of sand on account of environmental concerns and on account of the contractor having left the site when the work was stopped on account of delay due to amendment of the Development Control Regulations.
4. Vide order dated10.7.2017, this Commission interalia directed as under:-
"The learned counsel for the complainants on instructions states that the complainants are ready to pay the balance admitted amount, if any, to the OP and deposit the amount being disputed by them with this Commission in order to obtain possession of the flats which have already been offered to them by the opposite party. The request made by the complainants is just and reasonable. Subject to the complainants paying the balance admitted amount, if any, to the OP and depositing the amount being disputed by them with this Commission within four weeks from today, the possession of the flats allotted to the complainants, complete in all respects shall be delivered to the complainants within four weeks thereafter. The OP shall convey the balance amount being claimed by it from the complainants, to them through counsel within one week from today. The amount deposited with the Commission shall be kept in interest bearing FDR with the Nationalized Bank."
In compliance of the aforesaid direction, the possession of the flats has already been delivered to the complainant, after he has paid the admitted amount to the opposite party and deposited the disputed amount with this Commission.
5. It would thus be seen that two issues arises for consideration in this case. the first issue being as to whether any of the demands raised by the opposite party before delivering possession of the flats to the complainant was unjustified and the second being as to whether the complainant is entitled to any compensation for the delay in delivery of possession of the flat to him
6. After some arguments, the learned counsel for the complainant states on instructions that the complainant is disputing only the demand on account of interest in payment of the flat, contained in the Debit Note dated 19.7.2017. A perusal of the demand letter dated 6.11.2016 issued by the opposite party to the complainant shows that the entire sale consideration except 5% of the consideration payable on delivery of possession, development charges, club house charges, electrical and gas deposit charges, society formation and legal charges, water/sewerage deposits charges and advance maintenance charges for 12 months and service tax were duly paid to the opposite party. There is no evidence or even allegation of delay in payment of any particular instalment to the opposite party. According to the complainant, he had paid all the instalments on or before the due date, as and when the same were demanded by the opposite party. The Debit Note dated 19.7.2017 also does not give any details or break-up of the amount claimed as interest for the delay in payment for the delay in flats. In the absence of such particulars, the demand for payment of Rs.104207/- towards interest on account of delay in payment of the flat cannot be justified. It would be appropriate to note here that the
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learned counsel for the opposite party has not been able to draw my attention to any provision in the agreement for payment of interest on the delayed payment of development charges, club house charges, electrical and gas deposit charges, society formation and legal charges, water/sewerage deposit charges, advance maintenance charges and service tax arrears. In any case, all these charges have either been paid or deposited with this Commission before the possession of the flats was delivered to the complainant. Therefore, in my opinion, the opposite party is not entitled to recover any amount towards interest for the delay in payment of the flats.
7. As far as justification for the delay in delivery of the possession is concerned, this is the case of the opposite party itself is that the amended Development Control Rules came to be notified in January 2012. This is also the case of the opposite party that after receipt of the Commencement Certificate in March 2012, they had actually resumed the construction work in September/October 2012. The agreements with the flat buyers were executed on 30.10.2012. It is, therefore, evident that the delay on account of modification of the Development Control Regulations would give no justification for the delay in delivery of possession in terms of Clause 14 of the agreements dated 30.10.2012.
8. As far as the alleged embargo on procurement of sand is concerned, no document has been placed on record by the opposite party. In the absence of any documentary evidence, the plea taken in this regard cannot be accepted. In any case, even if there was an embargo on mining in a particular place in Maharashtra, it was for the builder to procure sand from an alternative source wherever the sand could be available at the relevant time. The embargo on mining therefore, can give no justification for the delay in delivery of possession in terms of the agreement executed between the parties.
9. I, therefore, hold that the opposite party has failed to bring its case within the purview of Clause 17 of the Buyers Agreement, executed between the parties.
10. For the reasons stated hereinabove, the complaints are disposed of with the following directions:-
The balance, if any, out of the amount deposited by the complainant with this Commission before taking possession of the flat and proportionate interest which may have accrued on that amount, after deducting (i) the interest amount of Rs.104207/- (in both the complaints) and (ii) an amount equivalent to compensation payable to the complainant in terms of direction (3) below, shall be released to the opposite party.
1.
The amount of Rs.104207/- shall (in both the cases) be released to the complainant along with proportionate interest which may have accrued on that amount.
2.
The opposite party shall pay compensation in the form of simple interest @ 8% per annum on the amount which had been paid by that date, to the complainant, w.e.f. 1.9.2014 till the date on which the possession was actually delivered to him. The compensation to the extent available shall be adjusted out of the amount payable to the complainant in terms of direction (1) above.
3.
The opposite party shall also pay Rs.25,000/- as the cost of litigation in each complainant 4.
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to the complainant. The payment by the OP in terms of this order shall be made within three months from today.
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......................J
V.K. JAIN
PRESIDING MEMBER
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