National Consumer Disputes Redressal
Firoza Pradeep Kumar Roy & Anr. vs Housing Developemnt And ... on 8 October, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1501 OF 2017 1. FIROZA PRADEEP KUMAR ROY & ANR. 26/201, SHAKTINAGAR CO-OPERATIVE HOUSING SOCIETY, CS RD, DAHISAR (EAST), Mumbai -400068 MAHARASHTRA 2. PRADEEP KUMAR ROY 26/201, SHAKTINAGAR CO-OPERATIVE HOUSING SOCIETY, CS RD, DAHISAR (EAST), Mumbai -400068 MAHARASHTRA ...........Complainant(s) Versus 1. HOUSING DEVELOPEMNT AND INFRASTRUCTURE LTD. HAVING ITS OFFICE AT 9TH FLOOR, DEERAJ ARMA, ANANT KANEKAR MARG, BANDRA(EAST) Mumbai-400051 MAHARASHTRA ...........Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER
For the Complainant : Complainants in person For the Opp.Party : Mr. Anand Patwardhan, Advocate Mr. Ajay Pawar, Advocate Dated : 08 Oct 2018 ORDER JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL) The complainants booked a residential flat with the OP in a building namely 'Metropolis' which the OP was construct in C.T.S. No. 866/B, Village Ambivali, Andheri (West), Mumbai. Vide allotment letter dated 25.02.2010, Flat No. 205 on 2nd Floor in A Wing of the said building and having saleable area of 1385 sq. ft. was allotted to them for a consideration of Rs.1,05,96,635/- exclusive of maintenance deposits, parking charges etc. They were also to pay stamp duty and registration charges separately. The parties executed an agreement for sale dated 07.11.2013. Clause 6 of the agreement which referred to delivery of the possession of the premises, reads as under:
6. The possession of the said premises, subject however to the fact that the construction of the building is not delayed on account of non-availability of steel, cement and other building material, water or electricity supply or due to acts of God, Civil Commotion, Riot, War or any notice, order, rule, notification of the Government and/or any other Public Body and/or Building completion Certificate by M.C.G.M. and/or planning Authority and for other circumstances beyond the control of the Developer, is expected to be handed over by the Developer to the Purchaser/s by 30th Day of December 2013 provided the developer has received the full purchase price of the said premises and the other amounts payable by the Purchaser/s. The Developer agrees that if, for the reasons beyond their control, they are unable to give possession of the said premises by the date stipulated hereinabove, they shall be liable, on demand by the Purchaser/s, be liable to refund to the Purchaser/s the amounts already received by them in respect of the said premises without any interest. It is agreed that upon refund of the said amount, as stated hereinabove, the Purchaser's shall have no right, title, interest, claim or demand of any nature whatsoever either against the Developer or against the said premises or against the said property in any manner whatsoever and the Developer shall be entitled to deal with and dispose off the said premises to any person or persons as the Developer, may at their absolute discretion desire.
2. The grievance of the complainants is that the possession has not been delivered to them and even the Occupancy Certificate has not been obtained by the OP despite they having paid more than the sale consideration to the OP. The complainants are therefore, before this Commission with the following prayers:
The Hon'ble Forum be pleased to direct the Opponents to pay the complainants the sum of Rs.72,08,834/- being the interest at 21% p.a. on all the installments paid by the complainant from the promised date of delivery of possession i.e. 31 Dec 2013, till the date delayed in handing over the flat up to 30/5/2017 as per the following interest:
21% interest on Rs.63,04,998/-
From 1/1/2014 to 30/5/2017 (41 months * Rs.1,57,624/- per month) = Rs.64,62,584/-
21% interest on Rs.7,94,747/-
From 22/5/2014 to 30/4/2017 (35 months * Rs.13,908/- per month) = Rs.5,00,688/- 21% interest on Rs.7,44,748/- From 2/9/2014 to 30/5/2017 (33 months * Rs.13,033/- per month) = Rs.4,30,089/- Total Interest = Rs.73,93,361/-
The Hon'ble Forum be pleased to direct the opponents to further pay the complainant, the amount being the interest at 21% per annum on all the installments paid by the complainant from 1st June 2017 up to the actual date of the delivery of the possession of the premises with Building Completion & Occupation Certificates.
The Hon'ble Forum be pleased to restrain the opponents from selling and/or allotting and/or in any manner dealing with any of the car parking space in or around the building "METROPOLIS" and allow the complainants to take over the possession of two parking slots, as entitled by them.
The Hon'ble Forum be pleased to restrain the opponents for illegally selling the fungible areas such as flower bed, dry area, niches, stair case, terrace etc. in and around the building known as "METROPOLIS".
The Hon'ble Forum be pleased to direct the opponents to pay Rs.15,00,000/- (Fifteen lakhs) for causing mental stress, agony, torture, exploiting & threatening to cancel the booking and forfeiting the amount paid by the complainants, through their threatening letters and repeated telephonically calls for the purpose of extorting illegal amount for parking slots and fungible area from them.
The Hon'ble Forum be pleased to direct the opponents to pay the excess amount of Rs.56,247/-, alongwith 21% interest claimed by them over & above the cost price of Rs.1,05,96,335/- of the flat, which has accrued on making TDS @ 1% of the sum of the amount of Rs.1,05,96,355/- against Rs.1,05,46,635/- earlier credited to the account of the transferor.(Promoters & Developers) as per the following interest calculation:
(i) 21% interest of Rs.56,247/-
From 29/4/2016 to 30/5/2017 12 months = (13 months*Rs.984/-) + 56,247/-) = Rs.69,039/-
3. The complaint has been resisted by the OP which has admitted the allotment made to the complainants, agreement executed with them as well as the payment made by them. It is alleged that because of a notification dated 25.10.2010, issued by the State Government, there was scarcity of sand for construction activity from October 2010 to almost a year and hence, the construction activities in Mumbai City were stopped and the OP could not complete the construction and could not deliver possession within the stipulated time. It is also alleged in the written version that the construction of the building was completed in the year 2015 and the OP has already applied for part Occupancy Certificate on 09.11.2015. It is also alleged that the complainants are responsible for not paying the balance amount. It is alleged that since the complainants failed to pay the balance amount due on their part, the termination notice was issued to them and they are liable to pay 21% interest on the payment delayed by her. A reference is made to clause 8 & 9 of the agreement to claim default on the part of the complainants. It is further alleged that the complainants are also liable to pay the amount spent by the OP on extra maintenance/facilities provided for the flat. A demand of Rs.30 lacs is alleged to have been raised for the additional facilities/fixtures such as premium quality of tiles, Gypsum Plaster, Mahanagar Gas Pipeline and water proofing particularly in bathroom and for outside railing with glass which, according to the OP, the buyer has to bear. It is also alleged that the OP had agreed to sell the flat and not the car parking.
4. The first question which arises for consideration in this case is as to whether the complainants have defaulted in making payment to the OP. Clause 8 & 9 of the agreement on which reliance is placed by the OP read as under:
8. A) The Purchaser/s shall at the time of delivery of the possession of the said premises pay to the developer the following amounts:
Rs.91,410/- Towards Deposit for Municipal Tax, Water Bill, Common Electric Bill, Maintenance Charges and other Society Expenses.
B) The aforesaid amount (in Sub Clause 8(A) after deduction therefrom arrears of taxes and maintenance expenses incurred will be transferred by the developer to the society as and when such Co-operative or Limited Company or Condominium of Apartment is formed and after the said property is finally transferred to such Co-operative Society or Limited Company Condominium of Apartment as the case may be. If, however such Organisation is not formed, the said amounts will be retained by the Developer and the same will not be refunded to the Purchaser/s.
9. It is agreed between the Developer and the Purchaser/s that, commencing a week after the notice in writing is made by the Developer for the Purchaser/s that the premises is ready for use and occupation, the Purchaser/s shall be liable to take possession of the said premises and pay the proportionate share (i.e. in proportion to the floor area of the said premises) of all outgoing in respect of the said property, the proposed building including local taxes and cesses, rates all other levies by the local authority, government, water charges, insurance charges, common lights, repairs, salaries of clerks, Bill Collector's charges, Chowkidar and Sweeper charges, maintenance charges and all other expenses necessary and incidental to the administration, management and maintenance of the said property and the said building and until the said property and the said building is transferred to the said organization (the term "Said Organisation"" wherever used in this agreement shall mean and include a Co-operative Housing Society, Limited Company or Condominium of Apartment as the case may be), the Purchaser/s shall continue to pay to the Developer the proportionate share of outgoing as may be determined by the developer. The purchaser/s further agrees that till the purchaser/s share is so determined by the purchaser/s shall pay to the developer the provisional monthly contribution of Rs.15,235/- per month towards such outgoings and taxes. The amount so paid by the purchaser/s to the Developer shall, subject however to the provisions of Section 6 of MOFA Act, without any interest, remain with the developer till a Document of Transfer, as provided herein, is executed in favour of the Said Oganisation. On such Document of Transfer being executed, the aforesaid deposits (less deductions provided for in this Agreement) shall as provided in Clause 8(B) be paid over by the Developer to the said Organization. The purchaser/s undertakes to pay such provisional monthly contribution and charges regularly on the 5th day of each and every month in advance and shall not withhold the same for any reason whatsoever.
5. It is evident from a bare perusal of clause 8 extracted hereinabove that an amount of Rs.91,410/- towards Municipal taxes etc. payable at the time of delivery of possession. The possession having not even been offered to the complainants and the same cannot otherwise be offered without obtaining the requisite Occupancy Certificate, the complainants cannot be said to be defaulters in payment of the said amount. The OP shall be entitled to the aforesaid amount only when possession is offered after obtaining the requisite Occupancy Certificate.
6. As far as the monthly contribution of Rs.15,235/- referred in clause 9 is concerned, it is also to be paid with effect from the date on which the possession of the premises is taken by the buyers. Since the possession has not even been offered to the complainants, they are not liable to pay the aforesaid contribution at this stage. They would be liable but only with effect from the date on which they take possession after receipt of Occupancy Certificate by the OP.
7. As far as the demand of Rs.30 lacs for additional facilities/fixtures such as premium quality of tiles, Gypsum Plaster, Mahanagar Gas Pipeline and water proofing particularly in bathroom and for outside railing with glass is concerned, there is no agreement between the parties for the payment of the said amount or even for payment of the said additional facilities/fixtures by the flat buyers. This is not the case of the OP that it was on the request of the complainants that the said additional facilities/fixtures were provided in the flat. Therefore, the OP, in my view, is not entitled to the aforesaid amount of Rs.30 lacs.
8. The next question which arises for consideration is as to whether the complainants are entitled to car parking space or not. Clause 4 of the agreement to the extent it is relevant in this regard, reads as under:
4. The Purchaser/s hereby agree/s to purchase from the Developer and the Developer hereby agrees to sell FLAT No.205 Admeasuring 85.98 sq.mtrs., (Carpet Area)(Which is inclusive of carpet area of Balconies and internal passage) on 2nd Floor of A Wing, (hereinafter called the "Said Flat") together with open/stilt/stack/under stilt Parking space no. - (hereinafter called the "Said Parking Space") in the Building/Complex known as "METROPOLIS" under construction on the said Property, and the Said Flat and the said Parking Space is hereinafter collectively referred to as the "Said Premises" for the price of Rs.1,05,96,635/- Rupees One Crore Five Lakhs Ninety Six Thousand Six Hundred Thirty Five only), which price shall be paid by the Purchaser's to the Developers as under.
The contention of the learned counsel for the OP is that since parking space number was not filled up at the time of execution of the agreement, it is evident that no parking space was sold to the complainants. According to him, parking space number would have been filled had some parking space also been sold to the complainants. I however, find no merit in the contention. Had the parking space not been sold, the words "together with open/stilt/stack/under stilt Parking space no. - (hereinafter called the "Said Parking Space") in the Building/Complex known as "METROPOLIS" would have been deleted/struck off while executing the agreement. That having not been done, the inference is that though the parking space was sold to the complainants and formed part of the premises, no specific parking space number was allocated to the complainants at the time of execution of the agreement. The OP therefore, has to allocate an appropriate parking space to the complainants without seeking any additional demand from the complainants for the said parking space.
9. As far as the delay in completion of the construction is concerned, reliance upon the notification dated 25.10.2010 is wholly misplaced in the facts of this case since the agreement between the parties itself came to be executed much much later on 07.11.2013. Despite the aforesaid notification, which had been issued on 25.10.2010 more than three years of the execution of the agreement and the alleged scarcity of sand for one year, the OP agreed to deliver possession of the flat to the complainants by 30.12.2013. Therefore, no benefit on account of the aforesaid notification is available to the OP in the facts and circumstances of this case.
10. As noted earlier, the total sale consideration agreed between the parties for this flat was Rs.1,05,96,635/-. The complainants have already paid not only the entire sale consideration, but also the Service Tax and VAT on the aforesaid amount after deducting Income Tax at Source amounting to Rs.1,05,967/-. In fact they have made excess payment to the OP. Therefore, the complainants cannot be said to be defaulters in making payment to the OP.
11. For the reasons stated hereinabove, I hold that the OP is liable to deliver possession of the flat allotted to the complainants after obtaining the requisite Occupancy Certificate without raising any additional demand upon them. The complainants are also entitled to compensation for the period the possession is delayed. No evidence has been led by the parties to prove the actual loss sustained by the complainants on account of the said delay. Therefore, it would be appropriate to grant compensation based upon the FDR rates of interest.
The complaint is therefore, disposed of with the following directions:
(i) The OP shall obtain the requisite Occupancy Certificate/part Occupancy Certificate in respect of the flat allotted to the complainants at its own cost and responsibility and then deliver possession of the flat complete in all respects to them within six months from today.
(ii) The OP shall pay compensation in the form of simple interest @ 8% per annum to the complainants on the entire principal amount of Rs.1,05,96,635/- with effect from 31.12.2013 till the date on which the possession in terms of this order is actually offered to them after obtaining the requisite Occupancy Certificate/part Occupancy Certificate.
(iii) The OP shall also pay excess amount of Rs.50,203/- to the complainants alongwith interest @ 10% per annum on that amount from the date the said excess payment was made till the date on which the said amount is refunded.
(iv) The OP shall also pay a sum of Rs.25,000/- as the cost of litigation to the complainants.
(v) The compensation in the form of interest shall be paid at the time of offering possession to the complainants in terms of this order.
(vi) The OP shall also allot an appropriate car parking space to the complainants.
......................J V.K. JAIN PRESIDING MEMBER