National Consumer Disputes Redressal
R. Ramaswamy vs Orbit Corporation Limited & Anr. on 19 February, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 532 OF 2015 1. R. RAMASWAMY Residing at Flat No. 503, Building E, Raheja Nest, Chandivali, Andheri East, Mumbai - 400 072. ...........Complainant(s) Versus 1. ORBIT CORPORATION LIMITED & ANR. Having Its Registered Office at, The View, 165, Dr. Annie Besant Road Worli, Mumbai - 400 018. 2. Ahinsa Build Tech. Private Limited., The View, 165, Dr. Annie Besant Road, Worli, Mumbai - 400 018. ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER
For the Complainant : Mr. Jitendra Malkan, Advocate For the Opp.Party : Mr. Arun Batta, Advocate
Dated : 19 Feb 2016 ORDER
1.The complainant who is stated to be a renowned Professor of IIT, suffering from Cancer and is now in urgent need of money, booked a one BHK residential apartment admeasuring 963 sq. feet of super area, its carpet area being 613 sq. feet. The total consideration for the said flat was agreed at Rs. 10085794/- which comprised Rs. 9986310/- as the basic price and other charges amounting to Rs. 99,484/-. The complainant made payment of Rs. 10 lacs towards booking amount of the said flat on 31.10.2012 followed by payment of Rs. 50 lacs on 19.11.2012. Clause 17 of the agreement for sale executed between the parties on 02.03.2013 reads as under:
17. It is specifically agreed that the owners shall allow the purchaser to enter upon the said premises for carrying out fit outs, interior work, designing and planning in the said premises on or before expiry of 36 months from the date of second installment as provided hereinabove provided that the owners have received the full consideration payable in respect of the said premises together with all other amounts payable by the purchaser to the owners as provided herein. It is further agreed that the possession of the said premises after obtaining the part/full occupation certificate shall be delivered by December 2015.
Provided that the owners shall automatically be entitled to reasonable extension of time for handing over possession of the said premises by the aforesaid date, if the completion of building in which the said premises is situated is delayed on account of :
Reasons beyond the control of the owners as provided under Section 8 of the MOFA;
Non-availability of steel, cement, other building material, water or electric supply, etc.;
War, civil commotion, act of God, force majeure or reasons beyond control of the owners including strikes by the workers, employees or labours of the owners, the contractors, the suppliers, due to disturbance/hindrance in work/site by an antisocial elements;
Any notice, order, rules, notification of the Government and/or other public or competent authority affecting the development and the project;
Delay in grant of any NOC/permission/license/connection for installation of any services, such as lifts, electricity and water connections and meters to the project/flat/road or completion certificate from appropriate authority;
Delay or default in payment of dues by the purchaser under those presents (without prejudice to the rights of the owners to terminate this agreement as provided herein);
Other reasonable cause.
2. The case of the complainant is that the construction of the aforesaid flat is nowhere near completion and the opposite parties are not in a position to deliver possession of the flat to him by December 2015. The complainant is therefore, before this Commission seeking the following reliefs:
Admit, hear and allow this complaint.
Direct the OP No. 1 and 2 to complete the construction work of the flat No. 503 in Bldg E in ORP with all amenities within the stipulated period of time as it may deem fit to this Hon'ble Commission and provide peaceful possession with title to the complainants.
Direct LIC HFL to dislodge lien over flat No. 503 in Bldg. E in ORP.
XXXXX Award compound interest @ 18% from date 01.12.2015 on Rs. 69,90,417/- or the amount that may be lying with the OP No. 1 and 2 from time to time till the date of providing possession to the complainant.
Award cost of litigation which may be quantified to Rs. 2,00,000 (Two Lakh only)/-.
Grant such other and further reliefs as it may deem fit in interest of justice.
3. The complaint has been resisted by the opposite parties on several grounds including that it is pre-mature having been filed before expiry of the time stipulated in the agreement for delivering possession to the complainant and the construction could not be completed on account of reasons beyond the control of the opposite parties including the delay in grant of environmental clearance. The opposite parties have also claimed that in view of the proviso to clause 17 of the agreement, they are automatically entitled to reasonable extension of time for handing over possession of the said flat.
4. Another plea taken by the opposite parties is that since the complainant had earlier filed a complaint before the State Commission which was withdrawn without taking liberty to file a fresh complaint, the present complaint is barred by res-judicata.
5. As per clause 17 of the agreement to sell, the opposite parties were required to permit the complainant to enter upon the premises for carrying out fit outs, interior works etc. on or before 36 months from the date of the second installment. The learned counsel for the opposite parties submits that since the second installment came to be paid by the complainant only on 25.05.2013, the time period for permitting the entry to the complainant for the purpose of fit outs would expire in March 2016.
6. I however, find no merit in the contention advanced by the learned counsel for the opposite parties. A perusal of the agreement would show that after initial payment, to be made by the flat buyer prior to execution of the agreement to sell, he was to pay first installment within seven days of the execution of the agreement, second installment on completion of the basement level, third installment on completion of the plinth, fourth installment on completion of the second slab and fifth installment on completion of the fifth slab. The sixth and seventh installments were payable on completion of eighth slab and eleventh slab respectively whereas the eighth, ninth and tenth installments were to be paid on completion of roof slab, completion of third month from the payment of eighth installment and six months from the payment of eighth installment respectively. The last payment was to be made at the time of taking possession. It is an admitted position that out of the total agreed sale consideration of about Rs. 1 crore, the complainant paid Rs. 10 lacs on 31.10.2012 followed by payment of Rs. 214500/- on 16.11.2012, Rs. 50,000/- on 19.11.2012, payment of Rs. 990417/- on 26.05.2013 and payment of Rs. 112872/- on 17.01.2014. This included payment of Rs. 99863/- towards VAT and Rs. 11040/- towards interest on VAT. A bare perusal of the agreement for sale indicates that five installments alongwith initial payment were included in the amount of Rs. 60 lacs which the complainant had paid to the opposite parties before execution of the sale agreement. Therefore, the aforesaid period of 36 months in my opinion, is to be computed from the date on which the second payment i.e. payment of Rs. 50 lacs was made, the said date being 19.11.2012. More importantly, since under clause 17 of the agreement, the opposite parties were required to obtain completion certificate and deliver possession to the complainant by 31.12.2015, it cannot be accepted that the date for allowing entry for the purpose of fit outs can be in March 2016. The date on which the buyer is allowed to carry out fit outs in the flat has necessarily to be a date earlier than the date by which the possession is required to be delivered to him after obtaining the completion certificate. Therefore, it can hardly be disputed that the opposite parties were required to deliver possession of the flat in question to the complainant complete in all respects and after obtaining the requisite completion certificate, by 31.12.2015. Since, by the date the complaint came to be filed on 24.06.2015, the construction was nowhere near completion and the opposite parties were obviously not in a position to meet the deadline stipulated in clause 17 of the agreement to sell, it would be difficult to accept the contention that the complaint is pre-mature. If the buyer finds that there is no way the seller can deliver possession of the flat to him on or before the last date agreed for this purpose, he need not necessarily wait till expiry of the last date. He can approach a consumer forum for appropriate directions including a direction to the builder to expedite the construction or to refund the amount paid by him, on the ground that considering the default on the part of the builder, he is no more interested in taking possession of the flat agreed to be purchased by him and therefore, wants refund of the money paid by him alongwith appropriate compensation etc.
7. As far as the complaint filed before the State Commission is concerned, a perusal of the application filed by the complainant before the said Commission while seeking withdrawal of his complaint, would show that he had simultaneously sought liberty to file a fresh complaint in future. The State Commission, taking note of the said application, disposed of the complaint as withdrawn in view of the application filed by the complainant. The prayer for grant of permission to file a fresh complaint was not declined by the State Commission. Considering the prayer made in the application seeking withdrawal of the complaint filed before the State Commission coupled with the fact that the said prayer was not declined, I am of the considered view that the permission sought by the complainant is deemed to have been granted by the State Commission. In any case, since the provisions of Order XXIII of the Code of Civil Procedure have not been made applicable to a consumer forum, a fresh complaint after withdrawing a previously instituted complaint, before its adjudication on merits, does not bar a fresh complaint before an appropriate forum. Therefore, I find no merit in the contention that the present complaint is barred by res-judicata.
8. Clause 18 of the agreement for sale reads as under:
18. If the owners fail or neglect to give possession of the said premises to the purchaser on the aforesaid date and/or on such date as may be extended by mutual consent then the purchaser shall have the option to terminate this agreement after giving 15 days' notice in writing, whereupon the owners shall be liable on demand to refund to the purchaser amounts already received by it in respect of the said premises together with simple interest @ 9% per annum from the date of the receipt of the respective amounts by the owners till payment. It is agreed that upon the termination of this agreement by the purchaser, the claim of the purchaser shall be restricted to refund of monies paid with simple interest @ 9% per annum thereon and that the purchaser shall not be entitled to claim for loss and/or damages and/or mental trauma or otherwise howsoever. Till such time as the entire amount alongwith interest thereon is refunded by the owners to the purchaser the same shall subject to prior encumbrance if any, be a charge on the said premises but only to the extent of the amount so due to the purchaser. The amount so refunded shall be full and final satisfaction and final settlement of all the claims of the purchaser under this agreement. The purchaser agrees that receipt of the said refund by a cheque from the owners, by the purchaser, by registered post acknowledgment due at the address given by the purchaser in these presents, whether the purchaser accept/s or encashes the cheque or not, shall be sufficient to give effect to the said refund.
It is evident from a bare perusal of the aforesaid clause that in the event of the owner/builder failing to give possession of the flat on or before the date stipulated in clause 17 of the sale agreement, and/or such date as may be extended by mutual consent, the purchaser could terminate the agreement by giving 15 days' notice for in writing, whereupon the owner/builder is liable to refund the amount already received by him alongwith simple interest @ 9% per annum from the date of receipt of the payment till the date on which the said amount is paid to the buyer.
9. The learned counsel for the complainant states after taking instructions from the complainant on telephone that though the market price of the flat booked by the complainant with the opposite parties has since increased by more than 50%, the opposite parties are now selling the same flat at the price of Rs. 16,100/- per sq. feet as against the price of about Rs. 10,000/- agreed to be paid by the complainant and the opposite party has itself stated in a letter dated 06.06.2015 that the price in this project have increased by Rs. 5000/- per sq. feet, the complainant who is terminally ill, wants to avoid further litigation and therefore, would be satisfied if the amount paid by him is refunded to him alongwith simple interest @ 9% per annum within 15 days from today. The learned counsel for the opposite parties however, taking a rather unfair stand, states that the said prayer also cannot be granted unless the contract is terminated by the buyer and in this case the complainant has neither terminated the agreement nor even demanded refund in the complaint filed by him. As rightly pointed out by the learned counsel for the complainant, the complainant is being compelled by his circumstances to accept the refund with 9% interest despite more than 50% increase in the market price of the flat, only because of the failure of the opposite party to perform its contractual obligation by delivering possession within the time stipulated in the agreement to sell. In these circumstances, avoiding a hyper technical approach I hold that the desire of the complainant to accept refund with 9% interest can also be interpreted as a termination of the agreement. It has to be kept in mind that the proceedings before a consumer forum cannot be stretched to such a limit of abstract technicality that despite there being a provision in the agreement for refund at a specified interest in the event of the failure of the owner/builder to give possession by a stipulated date, the buyer should be asked to issue a formal notice of termination of the agreement, wait for 15 days thereafter and then come back to a consumer forum. The complainant therefore, is held entitled to refund of the entire amount paid by him to the opposite parties alongwith interest on that amount @ 9% per annum from the date of each payment till the date on which the said amount is refunded alongwith interest.
The learned counsel for the opposite party contends that VAT being a statutory levy, should not be ordered to be refunded. However, in view of clause 18 of the agreement, the entire payment made by the complainant to the opposite party, irrespective of its nature could be refundable to him. It will however be open to the opposite party to apply to the concerned department for refund of the VAT amount, in accordance with law.
10. For the reasons stated hereinabove, the complaint is disposed of with the direction to the opposite party to refund the entire amount of Rs. 73,17,789/- to the complainant within 15 days from today alongwith simple interest on that amount @ 9% per annum from the date of each payment till the date on which the said amount alongwith interest is refunded to the complainant. I make it clear that considering the desire expressed by the complainant to accept the entire amount paid by him alongwith interest @ 9% per annum, I am refraining from adjudication of the complaint on its merits and this order is being passed solely on the basis of clause 18 of the agreement to sell considering the concession given by the learned counsel for the complainant on instructions from him. If the said payment in terms of this order is not made within 15 days, it shall pay interest at the rate of 12% per annum from the date of the order till the date of the payment and the complainant shall also be entitled to seek enforcement of this order in accordance with law.
......................J V.K. JAIN PRESIDING MEMBER