State Consumer Disputes Redressal Commission
Mr. Amit Maniklal Bhandari vs Runawal Developers on 19 September, 2019
CC/16/553-AW-MA/18/455 1/27
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
COMPLAINT CASE NO. CC/16/553-AW-MA/18/455
1) MR.AMIT MANIKLAL BHANDARI,
2) MRS.SHEETAL AMIT BHANDARI,
Both are having address at Vasant Oscar,
Fiesta, C-103, L.B.S. Road, Mulund (West),
Mumbai 400 080. ...........Complainant(s)
Versus
1) RUNWAL DEVELOPERS PVT. LTD.,
Having its office at:
Runwal and Omkar Esquare, 5th Floor,
Off.Eastern Express Highway,
Opp.Sion Chunabhatti Signal, Sion (E),
Mumbai 400 022.
2) MR.SANDEEP RUNWAL,
Director of Runwal Developers Pvt. Ltd.,
Runwal and Omkar Esquare, 5th Floor,
Off.Eastern Express Highway,
Opp.Sion Chunabhatti Signal, Sion (E),
Mumbai 400 022.
3) MR.SUBHASH RUNWAL,
Director of Runwal Developers Pvt. Ltd.,
Runwal and Omkar Esquare, 5th Floor,
Off.Eastern Express Highway,
Opp.Sion Chunabhatti Signal, Sion (E),
Mumbai 400 022.
.........Opponent(s)
4) MR.KISHORKUMAR PANNALAL JAIN,
Director of Runwal Developers Pvt. Ltd.,
Runwal and Omkar Esquare, 5th Floor,
Off.Eastern Express Highway,
Opp.Sion Chunabhatti Signal, Sion (E),
Mumbai 400 022.
5) MR.VARADRAJAN ANANTA NARAYAN,
Director of Runwal Developers Pvt. Ltd.,
CC/16/553-AW-MA/18/455 2/27
Runwal and Omkar Esquare, 5th Floor,
Off.Eastern Express Highway,
Opp.Sion Chunabhatti Signal, Sion (E),
Mumbai 400 022
BEFORE:
Mrs.Usha S. Thakare - Presiding Judicial Member
Mr. D.R. Shirasao - Judicial Member
For the Advocate Mr.Mohit Bhansali.
Complainant(s):
For the
Advocate Mrs.Anita Marathe.
Opponent(s):
ORDER
Per Hon'ble Mr.D.R. Shirasao -Judicial Member:
(1) Complainants have filed this complaint for getting possession of flat along with other reliefs against opponents.
(2) Brief facts of the case are as under:
Complainants with an intention to reside in their own flat decided to purchase one small flat in the project of opponents. Opponents agreed to sell Flat No.1203 admeasuring 620 sq.ft.(carpet) and 960 sq.ft. (Saleable) area to complainants in tower 2, Limona Building in the project known as "Runwal Anthurium", situated at Survey Nos.304 and 305(Part), CTS Nos.884(part), 884/1 to 884/10 and 885(part), L.B.S. Marg, Mulund (W), Mumbai 400 080 for total consideration of Rs.67,96,800/-. It is the contention of complainants that opponents further illegally demanded amount of Rs.7,50,000/- towards car parking. In respect of allotment of flat agreement was executed by opponent in favour of complainant on 14/01/2010. As per agreement the total consideration of the flat was Rs.67,96,800/- and complainant was required to pay other incidental charges CC/16/553-AW-MA/18/455 3/27 mentioned in that agreement towards registration of agreement and payment of stamp duty. Complainants deposited amount of Rs.10,25,000/- with opponents by issuing two cheques drawn on HDFC and Axis Bank before the execution of agreement. After execution of agreement complainants had deposited the amount as demanded by opponents from time to time. Hence, it is the contention of complainants that they have deposited total amount of sale consideration of Rs.67,96,800/- with opponents. They have also paid amount of Rs.2,04,086/- to opponents towards service tax claimed from time to time. Opponents have also issued receipt in that respect in favour of complainants. It is the contention of complainants that opponents further called upon them to pay amount of Rs.1,29,351/- towards formation of society and amount of Rs.1,89,000/- towards advance maintenance charges, Rs.3,39,840/- towards MVAT and amount of Rs.1,00,000/- towards refundable deposits for fitouts possession. It is the contention of complainants that despite making payments of all these amounts opponents failed to obtain occupancy certificate in respect of flat and failed to handover possession of the flat to complainants. It is the contention of complainants that now opponents are demanding amount of Rs.2,98,537/- towards interest for delay in payment of the amount and for that purpose avoiding to handover possession of flat to complainants. Opponents have furnished a computerized statement to the complainants showing that amount outstanding against complainants is Rs.85,69,942/- and amount received from complainants is Rs.65,91,534/- and amount of Rs.2,96,537/- is outstanding against them towards interest on delayed payments.
It is the contention of complainants that complainants had already told opponents that they are taking financial assistance from the bank for making further payment of amount of consideration. They CC/16/553-AW-MA/18/455 4/27 had already applied for getting loan to the Axis Bank. Axis Bank had already sanctioned loan to complainants at low rate of interest of 8.25% per annum. However, opponents failed to furnish relevant documents to Axis Bank and because of which loan amount could not be disbursed for that rate of interest. Opponents only in the month of August, 2010 submitted requisite documents with the bank and thereafter bank had released the loan amount in favour of complainant.
It is the contention of complainants that opponents have obtained cash of Rs.7,50,000/- from complainants towards car parking. Complainants had paid the same to opponents and thereupon opponents issued car parking bearing No.P02-64 to complainants alleging that the same has been allotted free of costs to complainants. Hence, it is the contention of complainants that as car parking was free of costs they are entitled to get amount of Rs.7,50,000/- from opponents. By letter dated 24/12/2015 opponents informed complainants to take fitouts possession of the flat and called upon complainants to deposit amount of Rs.2,05,263/- as balance amount of consideration, amount of Rs.7,441/- towards balance service tax and amount of Rs.1,48,000/- towards society formation and other charge together with service tax and Rs.2,16,405/- towards maintenance charges. Interest on MVAT of Rs.26,864/- and amount of Rs.1,145/- towards cheque bouncing charges, refundable deposit of Rs.1,00,000/- and Rs.2,98,537/- towards interest for delayed payments. It is the contention of complainants that although opponents had not received occupancy certificate they were demanding amount from them. It is the contention of complainants that they are not liable to pay all these amounts as possession of the flat was not given to them. Hence, complainants deposited only amount of Rs.2,05,263/- towards CC/16/553-AW-MA/18/455 5/27 balance amount of consideration and Rs.7,441/- towards balance service tax with opponents on 06/01/2016. In that respect opponents issued separate receipts to complainants. It is the contention of complainants that on 05/04/2016 opponents informed complainants that they have already obtained occupancy certificate and called upon complainants to deposit remaining amount. With a view to get possession of flat complainants deposited amount of Rs.2,31,382/- including refundable deposit of Rs.1,00,000/- and amount of Rs.1,31,382/- towards other charges. Opponents issued receipts about the same in favour of complainants. Opponents also adjusted excess amount of Rs.2,33,130/- recovered from complainants towards VAT amount. It is the contention of complainants that although possession was to be handed over on or before December, 2013 they had not handed over possession of the flat to complainants. On 21/12/2012 opponents informed complainants that they will handover possession of the flat in the month of May, 2014 without giving any specific reason for the delay. It is the contention of complainants that as they were planning to purchase that flat for their old parents to shift them from Daund to Mumbai they required to purchase another flat for them. As opponents failed to handover possession of flat to complainants, complainants have filed this complaint for getting possession of flat. They also claimed direction against opponents for formation of co-operative society and execute conveyance of property in favour of complainants. Complainants also demanded back amount of Rs.7,50,000/- which they had deposited with the opponents against car parking as car parking was free of costs. Complainants further prayed for refund of amount of Rs.1,00,000/- along with costs and compensation.
(3) Opponents contested the complaint by filing their written version on record which is at page B-37. Initially they submitted that CC/16/553-AW-MA/18/455 6/27 complainants are investors as they are already in possession of the flat where they are residing. They have purchased another flat for their parents and now claiming possession of flat in question. Hence, they submitted that as complainants are investors they cannot be considered as consumers under the provisions of Consumer Protection Act. They further submitted that complainants had to abide the payment schedule. They were already knowing that if there is delay in making payments then they are liable to pay interest on delayed payments. They specifically denied that they had obtained amount of Rs.7,50,000/- from complainants towards car parking. It is their submission that car parking was allotted to complainants free of costs by issuing letter dated 16/06/2015. It is the contention of opponents that complainants booked the flat on 29/11/2009. As per the terms and conditions of the booking form, before executing agreement the complainants had to deposit 20% of total amount of consideration of flat. They failed to pay the same and hence, complainants are required to pay interest on that amount. 20% of the amount was deposited by the complainants on 30/08/2010 after a period of 244 days and hence, they are liable to pay interest on this amount for that period. It is the contention of opponents that for want of sanction of loan complainants could not deposit amount as agreed. However, opponents are not concerned with the same and it was for the complainants to make alternate arrangement for payments. They specifically denied that as there was no project approval and necessary documents about the same are not supplied to Axis Bank, Axis Bank had not sanctioned loan to complainants till 30/08/2010. It is the contention of opponents that they had already received occupancy certificate/building completion certificate on 31/03/2016 and the same was informed to complainants by issuing letter dated 05/04/2016. They were CC/16/553-AW-MA/18/455 7/27 directed to complete the formalities for taking possession of the flat on depositing amount as per letter dated 24/12/2015. It is the contention of opponents that although they promised to handover possession of flat in the month of December, 2013, due to change in DCR rules and for getting high rise committee approval they could not handover possession of the flat till December, 2013. As per conditions mentioned in the agreement they were entitled to get further period for handing over possession of flat to complainants and their flats were ready for giving fitouts possession to complainants. The extension of period was also informed to the complainants and they were also informed that if they want to cancel the booking they can get the refund amount along with interest on that amount at the rate of 9% per annum, and complainants had not opted for the same. The delay was beyond the control of opponents. It is the contention of opponents that complainants had not made payment of amount as demanded and had not come forward to take possession of the flat. Hence, it is their contention that they have not given deficiency in service to complainants. Hence, complaint be dismissed.
(4) Considering rival contentions of parties, evidence adduced by them on record and documents filed on record following points arise for our determination and we have recorded our findings against them for the reasons given below :-
Sr.No. Points Finding
(i) Whether complainants are consumers of Yes.
opponents?
(ii) Whether opponents have given deficiency Yes.
in service to complainants?
CC/16/553-AW-MA/18/455 8/27
(iii) Whether complainants are entitled to get Yes.
possession of flat from opponents along As per order
with other reliefs from opponents?
(iv) What order? As per final order.
REASONS :
Point No.(i) - Consumers:
(5) In this case it is admitted fact that complainants had booked Flat No.1203 admeasuring about 620 sq.ft. (Carpet) in Tower No.2, Limona Building in the project known as "Runwal Anthurium" with opponents for total consideration of Rs.67,96,800/-. In that respect opponents had executed agreement in favour of complainants on 14/01/2010 and registered the same. It is the contention of complainants that they have already paid the amount of sale consideration to opponents. Moreover, they have also paid all other amounts demanded by opponents to them excluding the interest on delayed payments. It is the contention of complainants that irrespective of that opponents have not handed over possession of flat to them. It is also the contention of complainants that opponents have illegally obtained amount of Rs.7,50,000/- from them for allotting car parking to them. In fact the allotment of car parking is free of costs. Hence, complainants have filed this complaint for getting possession of flat from opponents along with other reliefs. In this case it is particular to note that during the pendency of complaint complainants had also filed Misc.Application No.455/2018 for getting possession of flat on depositing disputed amount with opponents without prejudice to their rights. However, the prayer made in the interim application and in complaint for getting possession of flat was the same. Hence, this Commission by passing order on 20/02/2019 had directed to decide that CC/16/553-AW-MA/18/455 9/27 Misc.Application along with complaint. In complaint and in Misc.Application filed by complainants their main prayer is that although they have deposited entire amount of sale consideration with opponents, opponents have not handed over possession of flat to them and hence, they are entitled to get possession of flat. Whether the amount claimed by the opponents from complainants is legal will be decided in this complaint. However, fact remains on record that although complainants have booked flat with opponents they have not received possession of flat from opponents and hence, complainants required to file this complaint against opponents. In view of the same we are of the opinion that complainants are the consumers of opponents and consumer complaint filed by them against opponents for getting possession of flat and other reliefs is tenable. Hence, we answer point no.(i) in affirmative.
Point nos.(ii) and (iii) - Deficiency, Possession of flat alongwith other reliefs:
(6) In this case it is admitted fact that complainants have booked Flat No.1203 admeasuring about 620 sq.ft. (Carpet) in Tower No.2, Limona Building in the project known as "Runwal Anthurium" with opponents for total consideration of Rs.67,96,800/-. They had deposited amount of Rs.10,25,000/- with opponents before execution of agreement. Thereafter, opponents had executed agreement in respect of that flat in favour of complainants on 14/01/2010. For payment of balance amount of consideration Complainants had taken loan from Axis Bank. Axis Bank had released their loan and thereafter entire amount of sale consideration was paid to the opponents. It is the contention of opponents that as some of the payments had been made late by the complainants as per the terms of the agreement the opponents are entitled to collect interest in that respect from complainants. As complainants have CC/16/553-AW-MA/18/455 10/27 not paid that amount they have not handed over possession of flat to complainants. As complainants have not received possession of flat from opponents they have filed this complaint against opponents for getting possession of flat along with other reliefs from opponents.
(7) The Ld.Advocate appearing for complainants submitted that complainants have paid entire amount of sale consideration to opponents. They have also paid all other amounts demanded by opponents to them. However, he submitted that interest which is claimed by the opponents on delayed payments is not required to be given by the complainants and hence, they have not paid this amount to the opponents. Hence, opponents have not handed over possession of flat to complainants although they recovered total amount of sale consideration of flat from them. The Ld.Advocate appearing for complainants submitted that before execution of agreement complainants had taken loan from Axis Bank for payment of balance amount of sale consideration. Irrespective of that opponents had not submitted relevant documents with the Bank to release the amount of loan in favour of complainants. Hence, complainants could not deposit 20% amount of total consideration of flat before execution of agreement. Hence, complainants are not responsible for the same. Moreover, it is their contention that as thereafter agreement was executed by opponents in favour of complainants and nothing is mentioned about the same in the agreement opponents are not entitled to claim interest on that amount which was to be deposited prior to execution of agreement.
As opponents executed agreement of sale they have waived their claim in that respect. He further submitted that as complainants had already deposited amount of sale consideration with opponents it was the duty of opponents to handover possession of flat to complainants as complainants were in need of the flat for their CC/16/553-AW-MA/18/455 11/27 parents. Opponents should have settled the claim in respect of other demands with the complainants. However, opponents had not settled their demand in respect of other claim with complainants and failed to handover possession of flat to complainants. Hence, complainants are required to file this complaint and also Misc.Application for getting possession of flat from opponents. Hence, he submitted that complainants are entitled to get possession of flat from opponents. It is his submission that opponents were required to handover possession of the flat by December, 2013 or at least after six months i.e. in the month of May, 2014. However, by that time opponents had not completed construction of building and had not obtained occupancy certificate from competent authority. Hence, complainants are also entitled to get interest on the amount which they have already deposited with opponents. It is also his submission that allotment of car parking was free of costs. In that respect letter is also given by opponents to complainants. However, before giving this letter to complainants, opponents had obtained amount of Rs.7,50,000/- for that purpose from complainants in cash. Complainants have adduced evidence in that respect on record. As car parking was free of costs, the complainants are entitled to get back this amount from opponents. Complainants have also deposited amount of Rs.1,00,000/- towards security deposit for getting fitouts possession of flat. At the time of getting possession of flat complainants are also entitled to get this amount back from opponents. He submitted that complainants were intending to purchase this flat for bringing their parents to Mumbai from Daund. However, as they could not get possession of flat from opponents they required to purchase another flat for their parents and because of which inconvenience caused to them. Hence, complainants are also entitled to get compensation in that respect from opponents CC/16/553-AW-MA/18/455 12/27 along with costs of litigation. The Ld.Advocate appearing for complainants submitted that it is also the contention of opponents that as per new D.C. Rules area of flat of complainants is increased from 620 sq.ft. to 675 sq.ft. and complainants are liable to pay additional amount of consideration for the same. It is his contention that, however, in that respect opponents have not produced any evidence on record. Opponents have also not given inspection of flat to complainants. Hence, contention of opponents in that respect cannot be accepted. It is his contention that moreover complainants have claimed possession of flat having carpet area of 620 sq.ft. as per agreement. Hence, he submitted that the demands made by the opponents are illegal and complainants cannot be compelled to pay that amount to opponents. Moreover, the act of the opponent to restrain complainants from getting possession of flat for want of those amounts is also illegal. Hence, he submitted that complaint be allowed and opponents be directed to handover possession of flat to complainants along with other reliefs.
(8) For that purpose Ld.Advocate appearing for complainants relied on following rulings:
(i) Order passed by the Hon'ble National Commission in First Appeal No.744 of 2012 on 6th March, 2019 in the matter of M/s.Bhumiraj Constructions & 2 Ors. V/s. Ameet Arjudas Israni & anr. In this case also before execution of agreement particular amount was to be deposited with opponents.
Complainants had not deposited the same, irrespective of that agreement was executed by the opponents in respect of flat in favour of complainants. The Hon'ble National Commission, considering that subsequent demand made by the opponents in respect of interest on balance amount is not legal.
CC/16/553-AW-MA/18/455 13/27(ii) Order passed by the Hon'ble National Commission in First Appeal No.11of 2013 on 8th May, 2019 in the matter of Taneja Developers and Infrastructure Ltd. V/s. Sandeep Singh. In this case also complainants had taken loan from the Finance Company for payment of balance amount of consideration. However, loan could not be made available to the complainants for requisite documents to be deposited by opponents with the financial institution. The Hon'ble National Commission considered that opponents are responsible for the same.
(iii) Order passed by the Hon'ble National Commission in Complaint Case No.137 of 2010 on 12/02/2015 in the matter of Kavit Ahuja V/s. Shipra Estate Ltd. & Ors. In this case it has been observed by the Hon'ble National Commission that merely more than one flat is owned by complainants is not ground to consider that transaction is for commercial purpose.
(iv) Order passed by the Hon'ble National Commission in First Appeal No.433 of 2018 on 10th July, 2018 in the matter of M/s.Universal Infrastructures V/s. Mohan Lal Barpa. However, in this case although delivery of possession of flat was agreed within three months, there was no construction of the building and hence, the Hon'ble National Commission directed to refund the amount along with interest.
(9) The Ld.Advocate appearing for complainants further relied on following rulings:
CC/16/553-AW-MA/18/455 14/27(i) Order passed by the Hon'ble National Commission in Consumer Case No.988 of 2016 on 15/02/2019 in the matter of Mayur Saraf V/s. M/s.Raheja Developers Ltd.
(ii) Order assed by the Hon'ble National commission in Consumer Case No.3467 of 2017 on 20/02/2019 in the matter of Ramesh Kumat Tahiliani V/s. M/s.Unitech Ltd.
(iii) Order passed by the Hon'ble National Commission in Consumer Case No.1285 of 2017 on 11/01/2019 in the matter of Manmeet Singh & anr. V/s. Unitech Hi-Tech Developers Ltd. & 3 Ors.
In all these matters the Hon'ble National Commission granted interest @10% per annum on the decreetal amount.
(10) As against this Ld.Advocate appearing for opponents submitted that because of change in D.C. Rules and change in the construction plan they could not give possession of flat to complainants as per agreement. The situation was beyond the control of opponents and in that respect provision is already made in the agreement. It is her contention that as soon as the construction of the building was completed and occupancy certificate was obtained, possession of flat was offered to the complainants on payment of balance amount outstanding against them. However, complainants failed to pay the amount to opponents and obtained possession of flat from them. Hence, it is her contention that it is only because of fault of complainants they have not received possession of flat from them. It is her contention that whatever amounts opponents have claimed from complainants are legal and they have claimed as per provisions of agreement. Complainants are liable to pay the same to opponents. If complainants are not ready to pay that amount they CC/16/553-AW-MA/18/455 15/27 cannot claim possession of flat from opponents. It is also contended that before execution of agreement 20% amount was to be deposited. However, the complainants have not deposited the same. Opponents are not responsible for the same. If the Bank of complainants had not given loan to them it was the responsibility of complainants to arrange amount from other source and to deposit 20% amount before execution of agreement. Hence, opponents are entitled to claim interest on balance amount from complainants. She submitted that opponents have filed statement in respect of payment of amount by complainants in which whatever amount deposited by complainants is mentioned, when delay had taken place is also mentioned, days of delay are also mentioned and amount of interest accruing due to delay is also mentioned. Total amount of Rs.2,98,537/- complainants are liable to pay to opponents. In absence of the same opponents are not liable to handover possession to complainants. She further submitted that they have not received amount of Rs.7,50,000/- from complainants towards car parking. In fact free car parking was allotted to complainants. Complainants failed to adduce sufficient evidence on record in respect of payment of this amount to opponents. Hence, opponents are not liable to pay this amount to complainants. Thus, it is her contention that only because of mistake of complainants, complainants have not received possession of flat from opponents and hence, they are not entitled to get interest on the deposited amount from opponents. Whatever amount is due against complainants they should deposit with opponents. Opponents are ready to handover possession of flat to complainants. Opponents have already obtained occupancy certificate about the same and had offered possession of the flat to complainants in the year 2016. It is her contention that during pendency of case they have also formed society, registration CC/16/553-AW-MA/18/455 16/27 certificate is filed on record, right to get conveyance of property is of society and not of complainant. They are ready to return amount of Rs.1,00,000/- recovered from complainants towards deposit amount for getting fitouts possession of the flat. She further submitted that as because of the mistake of complainants they have not received possession of the flat. They are not entitled to get compensation in that respect from opponents. In fact, opponents have not given any deficiency in service to complainants and hence, complaint be dismissed. She further submitted that the present flat in which complainants are residing is already owned by them and as per contention of complainants they have purchased one flat for their parents and now they are claiming possession of this flat and as such complainants are the investors and cannot be termed as consumers under the provisions of Consumer Protection Act. Hence, they are not entitled to get possession of flat from opponents and complaint filed by them is not tenable. Hence, same be dismissed.
(11) Ld.Advocate appearing for opponents for that purpose relied on following rulings:
(i) Order passed by the Hon'ble National Commission in Revision Petition No.1627/2015 on 01/12/2015 in the matter of M/s.TDI Infrastructure Pvt.Ltd. V/s. Rajesh Jain. In this case complainant was intending to purchase two flats.
However, he had not given any explanation why complainant wants possession of two flats and dismissed the complaint holding that the Consumer Protection Act is made for the genuine need of consumers and not for investors.
(ii) Order passed by the Hon'ble Supreme Court in the matter of Bharati Knitting Company V/s. DHL Worldwide Express CC/16/553-AW-MA/18/455 17/27 Courier, reported in II(1996) CPJ 25(SC). In this ruling the Hon'ble Supreme Court considered that parties are bound by the terms and conditions of the agreement, Forum cannot give any relief for damages in excess than what agreed in the agreement.
(iii) Order passed by the Hon'ble Supreme Court in the matter of M/s.Supertech Ltd. V/s. Rajni Goyal, in Civil Appeal Nos.6649-50 of 2018 on 23rd October, 2018. In this case the builder had already obtained completion certificate in April, 2016. The Hon'ble Supreme Court considered that complainant is not entitled to get interest on total amount after getting completion certificate.
(iv) Order passed by the Hon'ble Supreme Court in the matter of DLF Homes Panchkula Pvt. Ltd. V/s. D.S. Dhanda, ETC. ETC., reported in II(2019) CPJ 117(SC). In this case the Hon'ble Supreme Court considered that although complainant is entitled to get interest on deposited amount till getting possession he is not entitled to get punitive damages for delayed possession.
(v) Order passed by the Hon'ble Supreme Court in the matter of Ghaziabad Development Authority V/s. Balbir Singh, reported in II(2004) CPJ 12(SC). In this case the Hon'ble Court considered that there cannot be uniform grant of interest for delayed possession. The interest is to be given separately on separate counts. When possession is already given the rate of interest should be low where possession is yet to be given, in that case interest can be given as agreed.
CC/16/553-AW-MA/18/455 18/27(vi) Order passed by the Hon'ble National Commission in Revision Petition No.2599 of 2012 on 7th March, 2019 in the matter of M/s.Sai Pushpa Construction V/s. Ms.Archana Maruti Shingade & Anr. In this case it has been observed by the Hon'ble National Commission that when there is delay in payment by complainant to the builder then in that event builder is entitled to claim interest on delayed payment. In this case on delayed payment complainant was directed to pay interest @10% per annum.
(vii) Order passed by the Hon'ble Supreme Court in the matter of M/s.Modern Insulators Ltd. V/s. Oriental Insurance Co. Ltd., reported in I(2000) CPJ 1(SC). In this case it has been observed that new facts cannot be argued unless they are appearing in pleadings.
(viii) Order passed by the Hon'ble Supreme Court in Civil Appeal No.4492 of 2000 on 04/05/2006 in the matter of Life Insurance Corporation of India V/s. Smt. S. Sindhu. In this case also the Hon'ble Supreme Court considered that the terms of the policy are binding on the parties and Tribunal cannot rewrite contracts directing payment contrary to the terms and conditions.
(ix) Order passed by the Hon'ble National Commission in Revision Petition No.2301 of 2012, on 09/04/2015 in the matter of Pradip Vilas Bhat & 4 Ors. V/s. Ekta Nagri Sahakari Pat Sanstha Mydt. & 6 Ors. and order passed by the Hon'ble National Commission in Consumer Case No.335 of 2014 on 8th December, 2014 in the matter of Shri Shailesh Trambaklal Joshi V/s. M/s.Runwal Developers (P) Ltd. In CC/16/553-AW-MA/18/455 19/27 both these cases the Hon'ble National Commission considered that Directors are not necessary parties and they cannot be made personally liable to the complainants.
(12) It is the contention of complainants that although car parking was free of costs opponents had illegally recovered amount of Rs.7,50,000/- from them in cash. It is their contention that they have paid this amount in cash to opponents on 16/06/2015 and thereupon they had given letter of allotment of car parking bearing No.P02-64to them. However, at that time they learnt that car parking was given to them free of costs. Hence, it is their contention that opponents have illegally collected amount of Rs.7,50,000/- for car parking from them. It is their contention that they had paid this amount in the office of opponents on 16/06/2015. It is also the contention of complainants that when complainant no.1 had paid this amount to Ms.Sujata Rao, Padmanabhan Nair was present along with them at that time. Complainant no.1 has stated this fact in his evidence and he has also filed affidavit of Padmanabhan Nair in support of his contention. Complainants have also filed the certificate of their C.A. to show that in the year 2015-16 cash more than Rs.7,50,000/- was in the hands of complainant no.1. Opponents have specifically denied that they have accepted amount of Rs.7,50,000/- from complainants towards car parking. It is their submission that car parking was allotted free of costs and accordingly they have given letter to complainants on 16/06/2015. In respect of accepting amount by Ms.Sujata Rao, they have filed affidavit of Ms.Sujata Rao denying the fact that she had received any amount on that day from complainants. Although complainants have filed certificate of their C.A. on record there is no specific evidence on record to show that on 16/06/2015 complainant was having amount of Rs.7,50,000/- in cash with him. Certificate issued CC/16/553-AW-MA/18/455 20/27 by C.A. is general letter in nature to show that in the year 2015-16 complainant was having cash more than Rs.7,50,000/- in his hand. However, the certificate is not disclosing that particularly on 16/06/2015 complainant no.1 was having amount of Rs.7,50,000/- in his hand. Moreover as per complainant no.1 and his witness Mr.Padmanabhan Nair they had paid amount to Ms.Sujara Rao. However, Ms.Sujara Rao has filed affidavit on record that she has not received any amount from complainant no.1 on that day. Except this, complainant has not adduced any other evidence on record to show that they had paid amount of Rs.7,50,000/- to opponents for getting car parking. In view of the same we are of the opinion that complainants have failed to bring sufficient evidence on record to show that they have paid amount of Rs.7,50,000/- in cash to opponents for getting car parking. On the contrary as per letter dated 16/06/2015 opponents have issued car parking to complainants free of costs. Hence, complainants are not entitled to get amount of Rs.7,50,000/- from opponents.
(13) In this case it is the contention of opponents that as per new D.C. Rules the carpet area of the flat was increased from 620 sq.ft. to 675 sq.ft. In that respect letter was given to complainants on 09/07/2013. As per agreement complainants had agreed to pay additional costs for increased carpet area of the flat. Hence, the Ld.Advocate appearing for opponents submitted that now there is no flat of 620 sq.ft. on the spot. The area of that flat has come to 675 sq.ft. and hence, complainants are liable to pay additional amount of consideration of Rs.4,34,500/- to opponents. Opponents had given letter in that respect to complainants on 16/10/2014. Hence, it is her contention that if complainants want to take possession of the flat then they will have to pay this additional amount of consideration for increased carpet area of the flat. However, in this case as per CC/16/553-AW-MA/18/455 21/27 agreement the carpet area of the flat is 620 sq.ft. Although it is the contention of opponents that as per new D.C. Rules, carpet area has been 675 sq.ft., the opponents have not produced the amended approved plans in that respect on record. Moreover, in respect of additional carpet area they have not executed supplementary agreement in favour of complainants. As against this it is the contention of complainants that opponents have not given inspection of the flat to them. Hence, they could not ascertain that carpet area of the flat has increased from 620 sq.ft. to 675 sq.ft. and as per latest sanctioned approved plan the carpe area of the flat is still 620 sq.ft. Hence, it is their contention that they are entitled to get possession of flat having carpet area of 620 sq.ft. In this case in respect of increased carpet area of the flat opponents have not produced any document on record. In this case it is admitted fact that opponents have not provided inspection of the flat to complainants. Hence, complainants could not verify the carpet area of the flat. In this case, admittedly opponents have not executed any supplementary agreement in respect of additional carpet area in favour of complainants. Hence, we are of the opinion that opponents have failed to prove that the carpet area of the flat has been increased from 620 sq.ft. to 675 sq.ft. As per agreement complainants are entitled to get possession of Flat No.1203 having carpet area of 620 sq.ft. Complainants have claimed that much carpet area from opponents. In absence of evidence in respect of increase in carpet area of flat complainants are entitled to get possession of flat having carpet area of 620 sq.ft. from opponents.
(14) In this case after getting occupancy certificate opponents have given final letter on 24/12/2015 to complainants showing different outstanding amounts against complainants. Subsequently opponents had given revised letter on the same day i.e. on 24/12/2015 to CC/16/553-AW-MA/18/455 22/27 complainants by e-mail. The same is present on record which is at page 131. As per this letter the total consideration of the flat is Rs.67,93,800/-. Entire amount is received by opponents. The amount of service tax of Rs.1,57,925/- is received by opponents. The amount of Rs.1,48,107/- towards society and other charges including service tax and amount of Rs.1,89,000/- towards maintenance charges plus service tax of Rs.27,405/- is shown outstanding against complainants. It is the contention of complainants that they have already deposited this amount with opponents and opponents have not taken any objection about the same. In this letter amount of Rs.1,00,000/- is shown outstanding which complainants have to give as deposit amount for getting fitouts possession. Complainants have deposited this amount with opponents and opponents have accepted the same. By this letter it appears that amount of Rs.3,64,512/- was due against complainants towards MVAT. Out of that amount of Rs.2,33,130/- which complainants had already paid to opponents was adjusted. However, interest on this amount of Rs.26,864/- was shown outstanding against complainants. However, we are of the opinion that when complainants had already paid amount of Rs.2,33,130/- with opponent it was not fair on the part of the opponents to claim interest of Rs.26,864/- on balance amount of MVAT from complainants. Hence, the amount demanded in this respect is not legal. In this letter amount of Rs.2,98,537/- is shown outstanding towards interest on delayed payment. Complainants have certainly disputed this amount and have not paid the same to opponents. It is the contention of complainants that as opponents had not submitted sanctioned plan with Axis Bank from which they had taken loan, the loan amount was not disbursed to complainants. It was disbursed on 30th August, 2010. On that day the Bank had disbursed majority of CC/16/553-AW-MA/18/455 23/27 the amounts to opponents. Hence, it is the contention of complainants that as this delay has taken place because of the fault of opponents, opponents cannot claim interest for delayed payment till August, 2010. As against this it is the contention of opponents that taking of loan by complainants from Axis Bank was not within the purview of opponents. Complainants should have paid amount as per time scheduled. As amount is paid later as per terms and conditions of agreement they are liable to pay interest on this amount. Hence, it is the contention of opponents that the amount of Rs.2,98,527/- which opponents have claimed from complainants towards delayed payment is as per agreement and legal and complainants are liable to pay the same. It is the contention of Ld.Advocate appearing for complainants that any amount which was due before execution of agreement and paid subsequently an interest cannot be charged on that amount. For that purpose he relied on the above ruling of the Hon'ble National Commission. However, in this case it is particular to note that for payment of balance amount of sale consideration complainants had taken loan from Axis Bank. His loan was sanctioned on 11th January, 2010. However, the same was not disbursed for getting different documents from opponents. It appears that opponents have submitted all these documents to Axis Bank by letter dated 27th August, 2010 and thereafter Bank had released the amount in favour of opponents from 30th August, 2010. Hence, it has become clear that although Bank had sanctioned loan to complainants the same could not be disbursed only because of the fault on the part of opponents who had not submitted relevant documents to Bank for disbursing of amount in favour of opponents. In this case agreement was executed on 14th January, 2010. Prior to that complainant had deposited amount of Rs.10,25,000/- with opponents. However, in view of the ruling of the Hon'ble National CC/16/553-AW-MA/18/455 24/27 Commission when in respect of late payment of amount prior to agreement there is no recital in the agreement and opponents did not restrain themselves from executing agreement, in that event interest on delayed payment prior to execution of agreement cannot be claimed by opponents. After execution of agreement till 30th August, 2010 complainants could not pay the amount to opponents as opponents did not submit necessary documents to the bank for disbursing of amount in their favour. Hence, this non-payment was due to fault of opponents and hence, opponents cannot claim interest on delayed payment till 30th August, 2010. In respect of interest charged on delayed payment one statement is given by opponents to complainants which is at page B-60. However, as per this statement it appears that some of the payments after 30th August, 2010 had also been delayed. As loan was already sanctioned, complainants and Bank had also disbursed amount on 30th August, 2010 in favour of opponents then complainants cannot take benefit in respect of delayed payment after 30th August, 2010. Hence, we are of the opinion that whatever delay had taken place in payment of amount after 30th August, 2010 opponents are entitled to get interest as per agreement @24% per annum from complainants. This amount comes to Rs.18,378/-. Opponents are entitled to get this much amount only from complainants towards interest on delayed payment.
(15) Complainants have also claimed interest on amount deposited by them with opponents as they have not received possession of the flat from opponents. In this case as per agreement possession was to be given in the month of December, 2013. It is the contention of opponents that due to change in D.C. Rules and other contingency they could not handover possession till May, 2014. They had also given letter in that respect to complainants that they are ready to CC/16/553-AW-MA/18/455 25/27 give possession of the flat to them by May, 2014. However, in this case it appears that till then opponents had not obtained occupancy certificate. The occupancy certificate was obtained in the year 2016. Hence, we are of the opinion that till getting occupancy certificate the possession which opponents were offering to complainants was not legal and hence, the same can be considered. After obtaining occupancy certificate the possession offered by opponents to complainants is legal and we are of the opinion that after getting occupancy certificate complainants should have taken possession of the flat by depositing whatever amount opponents were claiming with them under protest. It appears that in that respect complainants have filed Misc.Applciation before this Commission. However, as this complaint was for final hearing this Commission directed to decide that application along with this complaint. In view of the same we are of the opinion that complainants are entitled to get interest on deposited amount only till getting occupancy certificate by opponents.
(16) As complainants have not received possession of flat from opponents complainants are entitled to get the same along with other rliefs. Hence, opponent no.1 has given deficiency in service to complainants. Opponent nos.2 to 5 are the Directors of the opponent no.1 and in view of the rulings of which opponents are relying they cannot be made personally liable for complainants. Hence, complainants are entitled to get possession of flat from opponents jointly and severally along with other reliefs.
(17) In this case complainants have also claimed direction against the opponents to form co-operative housing society and to execute conveyance in favour of the society. Opponents have also filed documents on record to show that society is already formed and CC/16/553-AW-MA/18/455 26/27 registered. We are of the opinion that to get conveyance of the property from the builder is the right of society and society can get it executed from builder. Hence, in that respect no relief can be granted in favour of complainants. Hence, we answer point nos.2 and 3 in affirmative. In view of the same Misc.application filed by complainant is to be disposed of. Hence, we proceed to pass the following order:
ORDER
(i) Consumer complaint is hereby partly allowed.
(ii) Opponents are hereby directed to handover possession of Flat No.1203 admeasuring 620 sq.ft.(carpet) and 960 sq.ft. (Saleable) area to complainants in tower 2, Limona Building in the project known as "Runwal Anthurium", situated at Survey Nos.304 and 305(Part), CTS Nos.884(part), 884/1 to 884/10 and 885(part), L.B.S. Marg, Mulund (W), Mumbai 400 080 along with Car Parking No.P02-64 on payment of amount of Rs.18,378/- (Rupees Eighteen Thousand Three Hundred Seventy Eight only).
(iii) Opponents are further directed to pay interest on the amount deposited by complainants with opponents @10% per annum from the date of deposit till opponents have obtained occupancy certificate in respect of building and offered possession of flat to complainants.
(iv) Opponents are further directed to refund amount of Rs.1,00,000/-
(Rupees One Lakh Only) recovered from complainants towards deposit amount for fitouts possession within one month from the date of this order otherwise the amount shall carry interest @10% CC/16/553-AW-MA/18/455 27/27 per annum from the date of this order till actual payment to complainant.
(v) Opponents are further directed to pay compensation of Rs.1,00,000/-
(Rupees One Lakh only) and costs of Rs.25,000/- (Rupees Twenty Five Thousand only) of this litigation to complainants within a period of one month from the date of this order, otherwise, opponents will have to pay interest @10% per annum from the date of passing of this order till realization of amount by complainants.
(vi) Misc.Application No.MA/18/455 is hereby disposed of.
(vii) Copies of this order be furnished to the parties forthwith.
Pronounced on 19th September, 2019 [Usha S. Thakare] Presiding Judicial Member [D.R. Shirasao] Judicial Member emp