National Consumer Disputes Redressal
Ajay A. Singh & Anr. vs Cci Projects Pvt. Ltd. on 5 April, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1492 OF 2016 1. AJAY A. SINGH & ANR. E/103, COUNTRY PARK, DATTA PADA ROAD, BORIVALI (EAST), MUM-400066. MUM-400066 ...........Complainant(s) Versus 1. CCI PROJECTS PVT. LTD. THROUGH ITS AUTHORISED OFFICERS/SIGNATORY.
RIVALI PARK, CCI COMPOUND, WESTERN EXPRESS HIGHWAY, BORIVALI (E), MUM-400066. MUM-400066. ...........Opp.Party(s) CONSUMER CASE NO. 1495 OF 2016 1. SUMEET BHARAT SHAH & ANR. B/21, AMITA APARTMENTS, 5TH KASTURBA ROAD, BORIVALI (EAST), MUM-400066. MUM-400066. 2. MRS. ROSHNI SUMEET SHAH. B/21, AMITA APARTMENTS, 5TH KASTURBA ROAD, BORIVALI (EAST), MUM-400066. MUM-400066. ...........Complainant(s) Versus 1. CCI PROJECTS PVT. LTD. THROUGH ITS AUTHORISED OFFICER/SIGNATORY.
RIVALI PARK, CCI COMPOUND, WESTERN EXPRESS HIGHWAY, BORIVALI (E), MUM-400066. MUM-400066. ...........Opp.Party(s) CONSUMER CASE NO. 1496 OF 2016 1. AASHISH CHAUHAN & ANR. R/o. F. No. H-405, Orchid Complex, Thakur Village, Kandivali (East) Mumbai - 400 101 2. Mrs. Vandana Chauhan, R/o. F.No. H-405, Orchid Complex, Thakur Village, Kandivali (East) Mumbai -400 101. ...........Complainant(s) Versus 1. CCI PROJECTS PVT. LTD. Through Its Authorized Officer/Signatory, Rivali Park, CCI Compound, Western Express Highway, Borivali (E) Mumbai - 400 066. ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER HON'BLE DR. INDER JIT SINGH,MEMBER
For the Complainant : Mr. Ajay Kumar Jha, Advocate
: Mr. Ashish Chauhan, Advocate For the Opp.Party : Mr. Sanjib Sen, Sr. Advocate
: Mr. Dinesh Kumar Seth, Advocate
: Mr. Mridul Y. Suri, Advocate
Ms. Anjali Singh, Advocate
Dated : 05 Apr 2023 ORDER
PER MR. JUSTICE RAM SURAT RAM (MAURYA), PRESIDING MEMBER
1. Heard Mr. Ajay Kumar Jha, Advocate, for the complainants and Mr. Sanjib Sen, Sr. Advocate, assisted by Mr. Dinesh Kumar Seth, Advocate, for the opposite party.
2. In above complaints, the complainants are home buyers in the project "Rivali Park" launched by the opposite party. The complaints have been filed for possession, delayed compensation etc. During pendency of the complaints, the opposite party obtained "Occupation Certificate" on 29.10.2016 and offered possession on 06.11.2016. The complainants took possession on 07.01.2017, after making payments as demanded by the opposite party. According to the complainants, now the reliefs for delay compensation and other consequential reliefs remain for consideration. On the other hand, the opposite party has filed IA/2548/2017, IA/2550/2017 and IA/2551/2017, for dismissing these complaints, on the ground that all the disputes between the parties have been settled out of Court through the separate deeds dated 07.01.2017, signed by the complainants. As similar issues are involved in these complaints, as such, these complaints are being decided by a common judgment.
3. Ajay A. Singh and Mrs. Seema A. Singh have filed CC/1492/2016, for directing the opposite party to (i) rectify the deficiencies in construction of the flat and give final possession to them; (ii) pay delay compensation in the form of interest @18% per annum on their deposit from due date of possession till the final possession; (iii) pay Rs.50000/- as litigation costs; and (iv) any other relief which is deemed fit and proper in the facts and circumstances of the case. The complainants stated that CCI Projects Private Limited (the opposite party) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. The opposite party launched a group housing project in the name of "Rivali Park", consisting of hotels, offices, shops, flats, duplexes, row houses, penthouses etc. at City Survey Nos.163A and 165, Village Magathane, Western Express Highway, Taluka Borivali, Mumbai, in the year 2005 and made wide publicity of its facilities and amenities. The said project had two wings and the residential wing was named as "White Spring". The complainants were in need of residence for themselves and were looking for it, in that locality. The complainants booked a 2BHK flat, in above project and deposited booking amount. The opposite party, vide Allotment letter dated 27.10.2010, allotted Flat No.14-F, saleable area approx. 1253 sq.ft., for basic consideration of Rs.10286170/-, Wing B, "White Spring 1A", in project "Rivali Park" to the complainants. Clause-18 of the Allotment letter provides 36 months from the date of commencement of the construction, for completion of the construction with grace period of six months. Annexure-1 of Allotment letter provides "construction linked payment plan". As per demand, the complainants deposited instalments regularly on time. The opposite party executed an Agreement dated 06.09.2011, in respect of above flat in favour of the complainants. By the time of the execution of the agreement, the complainants had deposited Rs.5143085/-. In Clause-17 of the agreement, due date of possession was mentioned as "on or before September, 2013". The opposite party, vide letter dated 10.09.2012, unilaterally changed the date of possession as August, 2014. The opposite party, vide letter dated 13.07.2014, again unilaterally changed the date of possession as second quarter of July, 2015. The complainants, through email dated 14.07.2014, expressed their anguish for unilaterally changing date of possession, again and again. The opposite party, through letter dated 15.04.2015, informed that the flat would be available for fit-outs by December, 2015 and final possession till February, 2016. Said dates have also expired but the opposite party did not offer possession. The complainants wrote letter dated 09.06.2016, for handing over possession with "occupation certificate" and delay compensation. The opposite party offered to commence fit-out process in the flat from 01.07.2016, expecting final possession up to 30.07.2016, subject to issue of "occupation certificate" and raised various demands, which were payable at the time of possession. The complainants visited the flat and noticed various deficiencies in construction of the flat, which were informed to the opposite party with request to remove the deficiencies. Under the agreement, there was no provision for fit-out possession. The opposite party did not pay compensation for delay in possession. Then this complaint was filed on 09.09.2016, alleging deficiency in service.
The complainants filed Affidavit of Evidence of Ajay A. Singh and documentary evidence. The opposite party filed Affidavit of Evidence of Abhijit Barua and documentary evidence. Both the parties have filed their short synopsis.
4. Sumit Bharat Shah and Mrs. Roshni Sumit Shah have filed CC/1495/2016, for directing the opposite party to (i) rectify the deficiencies in construction of the flat and give final possession to them; (ii) pay delay compensation in the form of interest @18% per annum on their deposit from due date of possession till the final possession; (iii) pay Rs.50000/- as litigation costs; and (iv) any other relief which is deemed fit and proper in the facts and circumstances of the case. The complainants stated that CCI Projects Private Limited (the opposite party) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. The opposite party launched a group housing project in the name of "Rivali Park", consisting of hotels, offices, shops, flats, duplexes, row houses, penthouses etc. at City Survey Nos.163A and 165, Village Magathane, Western Express Highway, Taluka Borivali, Mumbai, in the year 2005 and made wide publicity of its facilities and amenities. The said project had two wings and the residential wing was named as "White Spring". Vaibhav Jatia and Ashish Jatia (predecessors-in-interest of the complainants) booked a 3BHK flat, in above project and deposited booking amount. The opposite party, vide Allotment letter dated 19.01.2011, allotted Flat No.15-D, saleable area approx. 1629 sq.ft., for basic consideration of Rs.13294430/-, Wing B, "White Spring", in project "Rivali Park" to them. Clause-18 of the Allotment letter provides 36 months from the date of commencement of the construction, for completion of the construction with grace period of six months. Annexure-1 of Allotment letter provides "construction linked payment plan". As per demand, previous allottees and the complainants deposited instalments regularly on time. The opposite party executed an Agreement dated 30.01.2012, in respect of above flat, in favour of Vaibhav Jatia and Ashish Jatia. By the time of the execution of the agreement, Vaibhav Jatia and Ashish Jatia had deposited Rs.6647215/-. With the previous permission of the opposite party, Vaibhav Jatia and Ashish Jatia assigned/transferred the above flat to the complainants through Agreement for Sale dated 09.02.2012 after taking consideration of Rs.14101000/-, which was duly endorsed by the opposite party. In Clause-17 of the agreement, due date of possession was mentioned as "on or before September, 2013". The opposite party, vide letter dated 10.09.2012, unilaterally changed the date of possession as August, 2014. The opposite party, vide letter dated 13.07.2014, again unilaterally changed the date of possession as second quarter of July, 2015. The opposite party, through letter dated 15.04.2015, informed that the flat would be available for fit-outs by December, 2015 and final possession till February, 2016. Said dates have also expired but the opposite party did not offer possession. The complainants wrote letter dated 09.06.2016, for handing over possession with "occupation certificate" and delay compensation. The opposite party offered to commence fit-out process in the flat from 01.07.2016, expecting final possession up to 30.07.2016, subject to issue of "occupation certificate" and raised various demands, which were payable at the time of possession. The complainants visited the flat and noticed various deficiencies in construction of the flat, which were informed to the opposite party with request to remove the deficiencies. Under the agreement, there was no provision for fit-out possession. Although possession was delayed but opposite party did not pay compensation for delay. Then this complaint was filed on 09.09.2016, alleging deficiency in service.
The complainants filed Affidavit of Evidence of Sumit Shah and documentary evidence. The opposite party filed Affidavit of Evidence of Abhijit Barua and documentary evidence. Both the parties have filed their short synopsis.
5. Aashish Chauhan and Mrs. Vandana Chauhan have filed CC/1696/2016, for directing the opposite party to (i) rectify the deficiencies in construction of the flat and give final possession to them; (ii) pay delay compensation in the form of interest @18% per annum on their deposit from due date of possession till the final possession; (iii) pay Rs.50000/- as litigation costs; and (iv) any other relief which is deemed fit and proper in the facts and circumstances of the case. The complainants stated that CCI Projects Private Limited (the opposite party) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. The opposite party launched a group housing project in the name of "Rivali Park", consisting of hotels, offices, shops, flats, duplexes, row houses, penthouses etc. at City Survey Nos.163A and 165, Village Magathane, Western Express Highway, Taluka Borivali, Mumbai, in the year 2005 and made wide publicity of its facilities and amenities. The said project had two wings and the residential wing was named as "White Spring". Suresh Hingorani and Mrs. Jasu Hingorani (predecessor-in-interest of the complainants) booked a 2BHK flat, in above project and deposited booking amount. The opposite party allotted Flat No.12-E, saleable area approx. 729 sq.ft., for basic consideration of Rs.9484250/-, Wing A, "White Spring", in project "Rivali Park" to them. Clause-18 of the Allotment letter provides 36 months from the date of commencement of the construction, for completion of the construction with grace period of six months. Annexure-1 of Allotment letter provides "construction linked payment plan". As per demand, they deposited instalments regularly. The opposite party executed an Agreement dated 03.03.2014, in respect of above flat in their favour. By the time of the execution of the agreement, they had deposited Rs.8535821/- and balance amount was payable at the time of offer of possession. Clause-17 of the agreement provides due date of possession as "on or before August, 2014. The complainants were in need of residence for themselves and were looking for it, in that locality. The complainants purchased above Flat No.12-E from Suresh Hingorani and Mrs. Jasu Hingorani, with previous permission of the opposite party through Agreement for Sale dated 17.04.2014, for a consideration of Rs.11000000/-. The opposite party, vide letter dated 19.08.2014", demanded Rs.474212/- plus service tax, on completion of "Terrace Slab", which was deposited by the complainants on 06.09.2014. The opposite party, vide letter dated 15.04.2015, again unilaterally changed the date of possession as February, 2016. The complainants, through an email dated 29.11.2015, expressed their anguish for unilaterally changing due date of possession, again and again. The opposite party, through letter dated 18.06.2016, offered to commence fit-out process in the flat from 01.07.2016, expecting final possession up to 30.07.2016, subject to issue of "occupation certificate" and raised various demands, which were payable at the time of possession. The complainants deposited the amount of final demand and through letter dated 04.07.2016, demanded delay compensation. Under the agreement, there was no provision for fit-out possession. The opposite party did not pay compensation for delay in possession. Then complaint was filed on 09.09.2016, alleging deficiency in service.
The complainants filed Affidavit of Evidence of Aashish Chauhan and documentary evidence. The opposite party filed Affidavit of Evidence of Abhijit Barua and documentary evidence. Both the parties have filed their short synopsis.
6. The opposite party has filed its written replies and contested the complaints. The opposite party did not dispute booking of the flat, allotment of the flat, execution of agreement and deposits made by the complainants and by their predecessors. The opposite party stated that clause-17 of the agreement was subject to force majeure as mentioned in it i.e. (a) Non-availability of steel, cement, other building/construction materials, water or electricity supply; (b) War, civil commotion, strike, lockout, riots, acts of terrorism, epidemics, earthquake, flood, other act of God, any prohibitory order of any Court, Tribunal or Authority against the development of the said properties; (c) Any notice, rule, notification, circular of the Government and/or other public or competent authority, court, tribunal or quashi-judicial body or authority; (d) Delay in getting NOC, permissions, licences, approvals, consents, connections, plans occupancy certificate, completion certificate and permissions from MCGM & other authorities/bodies; (e) Change in any law, rules, regulations, bye-laws of any government authorities, public/local bodies affecting the development of the said properties; (f) .... (g). Under the agreement, the opposite party was not required to take consent of the buyers for changing due date of possession. The opposite party, time to time, informed the buyers in respect of delay. The construction was delayed for the reasons beyond the control of the opposite party and that period was liable to be extended under clause-17 of the agreement. Clause-18 of the agreement gives a right to the buyers to seek refund with interest @9% per annum. When the original date as fixed in the agreement expired in August, 2014, the opposite party offered the buyers to take their refund as the construction was likely to be delayed but the buyers did not agree for cancellation of the agreement and refund of their money. After receiving the letter of the complainants dated 07.06.2016, the opposite party again offered them to take refund with interest @9% per annum as per agreement, but they did not agree. As issuance of "occupation certificate" was delayed, the opposite party, issued letters for fit-out possession. "Occupation Certificate" was issued on 29.10.2016. The opposite party, then issued letter of offer of possession in 06.11.2016. After completing the formalities of documentation and clearance of dues, the complainants took possession on 07.01.2017 and also executed settlement deed. The agreement does not provide for delay compensation and demand of interest @18% per annum is unjust. The complaints have been filed suppressing material facts and is liable to be dismissed.
7. The counsel for the opposite party submitted that "commencement certificate" as issued on 15.03.2011 was in respect of basement + lower ground & upper ground floor + podium. Immediately after completion of podium, the opposite party applied for issue of full commencement certificate up to the level of 19th upper floor, which was issued on 22.03.2012. Development Control Regulation of Greater Bombay, 1991, was amended vide Notification dated 06.01.2012. In view of amendment in building regulation, the opposite party submitted revised layout plan, in October, 2012 which was approved on 19.07.2013 and "commencement certificate" was issued on 22.07.2013. National Green Tribunal imposed a ban on mining of sand across the India, vide order dated 05.08.2013. Due to which, there was approximately 20% shortage of sand in the market during August, 2013 to September, 2015 than the actual requirement. Therefore, the work on the spot had become slow and due to this reason project has been delayed for a period of 20 months. The delay has occurred due to amendment of statutory regulation and for the reasons beyond the control of the opposite party as such the opposite party is entitled to extension of the period of due date of possession. The agreement does not provide for delay compensation. When the project was delayed, the opposite party offered the buyers to quit from the agreement and take their refund with interest @9% per annum, in terms of clause-18 of the agreement, in the year 2014 and again in the year 2016. But they did not agree as such now they cannot claim any compensation. CC/1495/2016 and CC/1496/2016 are filed by transferees from original allottees and are liable to be dismissed. All the complainants have signed settlement deeds dated 07.01.2017 at the time of taking possession as such the complaints become infructuous.
8. We have considered the arguments of the counsel for the parties and examined the record. Three judges Bench of Supreme Court in Laureate Buildwell Pvt. Ltd. Vs. Charanjeet Singh, AIR 2021 SC 4229, held a transferee steps in the shoes of original allottee with same right and obligation. For the purposes of delay, date of transfer would be relevant consideration. In CC/1495/2016, agreement in favour of original allottees was dated 30.01.2012 and transfer in favour of the complainants was dated 09.02.2012. In CC/1496/2016, agreement in favour of original allottees was dated 03.03.2014 and transfer in favour of the complainants was dated 17.04.2014. While due date of possession in agreements dated 30.01.2012 and 03.03.2014 was mentioned as August, 2014. There is no considerable delay between original agreement and transfer. As such, we do not consider that there was any circumstance for the transferee to infer that the project would be delayed at the time of their transfer.
9. So far as settlement deeds dated 07.01.2017, are concerned, the complainants have stated they had made their signatures on these deeds under coercion as in spite of full payment, the opposite party had put a condition for signing the document, for handing over possession. From the various emails communications between the parties, it is proved that signing of the document dated 07.01.2017, was a condition precedent, for handing over possession. As such, it was not a voluntarily relinquishment of right and settlement of the claim. The complainants contested IA/2548/2017, IA/2550/2017 & IA/2551/2017 filed by the opposite party. Clause-20 of the agreement requires to handover possession as soon as full payment is made, after notification for possession. Insisting to sign settlement deed is in violation of clause-20 of the agreement. Such type of settlement has been ignored by Supreme Court in Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512. Supreme Court in Central Inland Water Transport Corporation Ltd. Vs. Brojo Nath Ganguly, (1986) 3 SCC 156 and Kalpraj Dharamshi Vs. Kotak Investment Advisor Ltd., (2021) 10 SCC 401, held that the court will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract or an unfair and unreasonable clause in a contract, entered into between the parties, who are not equal in bargaining power. Where a man has no choice rather no meaningful choice but to give his consent to a contract or to sign the dotted line in a prescribed and standard form or to accept as set of rules or part of the contract, howsoever unfair, unreasonable and unconsciousable a clause in that contract or form or rule may be.
10. Clause-18 of the Allotment letter provides 36 months period from the date of "commencement of the construction", for completion of the construction with grace period of six months. A perusal of the record shows that "commencement certificate" was issued on 15.03.2011 and 42 months period expired on 14.09.2014. The agreements were executed on 06.09.2011, 30.01.2012 and 03.03.2014 in which, due date of possession was mentioned as September, 2013 and August, 2014. Some agreements were executed after amendment in Development Control Rules, 1991. Commencement certificate and Fire Clearance Certificate were issued on 22.07.2013 and 07.05.2013 respectively. These facts were very much in the knowledge of the opposite party at the time of agreement as such it cannot be a force majeure reason for delaying the construction. Payment plan was "construction link payment plan". The opposite party has not taken plea that instalments were not realized during 06.01.2012 to 22.07.2013. In the absence of any evidence that during 06.01.2012 to 22.07.2013, the construction was stopped, the opposite party cannot take any benefit. "Occupation Certificate" was issued on 29.10.2016 and letters offering possession were issued on 06.11.2016, as such there is delay in offer of possession.
11. Next argument of the counsel for the opposite party is that National Green Tribunal imposed a ban on mining of sand across the India, vide order dated 05.08.2013. Due to which, there was approximately 20% shortage of sand in the market during August, 2013 to September, 2015 than the actual requirement. Therefore, the work on the spot had become slow and due to this reason project has been delayed for a period of 20 months. We do not agree with this argument. A perusal of order dated 05.08.2013 shows that National Green Tribunal has banned illegal mining operation of sand, therefore, this cannot be treated as a ban on mining operation. On the other hand, the payment plan was "construction linked payment plan" and the opposite party had been realising the instalment of various levels of construction and upto the stage of "terrace slab" had been realised on 19.08.2014. So far as shortage of sand in the market is concerned, the opposite party has relied upon some letters of the contractors without filing their affidavit, which cannot be relied upon at all. therefore, it cannot be said that construction was delayed on the spot due to order dated 05.08.2013.
12. The counsel for the opposite party submitted that under clause 18 of the agreement, the home buyers are given liberty to cancel the agreement for delay beyond the period of three months of due date and seek for refund along with interest @9% per annum from the date of respective deposit till the date of refund. At the time of agreement, it was very much clear to the home buyers that the project was delayed and with the mutual consent, date of delivery of possession was re-fixed as August, 2014. In August, 2014 when the possession was further delayed, the opposite party gave an option to the home buyers to cancel the agreement and take their refund. Similar option was also given in November, 2016 to the home buyers, but they had not exercised their right to cancel the agreement. This argument has not been accepted by Supreme Court in DLF Home Developers Limited Vs. Capital Green Flat Buyer's Association, (2021) 5 SCC 537.
13. The argument that the agreement does not contain any provision for delay compensation, as such, claim of delay compensation is not admissible under the law, has also no substance. Section 73 of Contract Act, 1872 provides for compensation due to non-fulfilling of the obligations under the contract by one contracting party, if the other contracting party suffers from any loss. Delay in offer of possession amounts to deficiency in service and the home buyer is entitled for compensation i.e. loss of rentals as held by Supreme Court in Lucknow Development Authority Vs. M.K. Gupta, (1994) 1 SCC 243 and Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65. In the present case, due to non-fulfilling the obligation in providing possession of the flat within time, the home buyers had suffered the loss, inasmuch as they were paying interest on the money advanced by them and also paying the rent of the accommodation in which they were staying. Therefore, the opposite party is liable to reimburse the loss. Supreme Court in Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512 and DLF Home Developers Limited Vs. Capital Green Flat Buyer's Association, (2021) 5 SCC 537, held that interest @6% per annum on the deposit of the home buyer would be appropriate compensation for delay in possession. The home buyers are entitled for delay compensation in the form of interest @6% per annum on their deposit from due date of possession till the offer of possession.
14. So far as the objection of the home buyers for club membership charges as well as advance maintenance charges are concerned, this was provided in Clause 21 of the agreement, therefore, demand of the opposite party in this respect, is not illegal.
ORDER
In view of the aforesaid discussions, the complaints are partly allowed. The opposite party is directed to pay delay compensation for the period of September, 2014 to October, 2016 in the form of interest @6% per annum on the deposit of the home buyers within a period of two months. The opposite party shall issue a fresh statement of account duly adjusting the delay compensation and shall pay that excess amount to the complainants along with statement of account. On settlement of account, the opposite party will execute conveyance deed in favour of the complainants, in terms of the agreement, if not already executed without any further delay.
......................J RAM SURAT RAM MAURYA PRESIDING MEMBER ...................... DR. INDER JIT SINGH MEMBER