National Consumer Disputes Redressal
Mukesh Kumar Gupta & Anr. vs Macrotech Developers Ltd. on 7 July, 2025
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
CONSUMER COMPLAINT NO. NC/CC/2256/2019
WITH
NC/IA/3754/2020 (CONDONATION OF DELAY)
MUKESH KUMAR GUPTA & ANR.
.......Complainant(s)
Versus
MACROTECH DEVELOPERS LTD.
PRESENT ADDRESS - REGD. OFFICE AT: 412, FLOOR-4, 17G, VARDHMAN CHAMBER,
CAWASJI PATEL ROAD, HORNIMAN CIRCLE, FORT, MUMBAI400001MAHARASHTRA ,
.......Opposite Party(s)
BEFORE:
HON'BLE MR. BINOY KUMAR , PRESIDING MEMBER
HON'BLE MRS. JUSTICE SAROJ YADAV , MEMBER
FOR THE COMPLAINANT:
.
FOR THE OPPOSITE PARTY:
.
DATED: 07/07/2025
ORDER
Binoy Kumar, Presiding Member
1. The present Consumer Complaint, i.e., CC/2256/2019, is filed under Section 21 of the Consumer Protection Act, 1986 (for short, "the Act"), by Mr. Mukesh Kumar Gupta and Mrs. Prem Lata Garg (hereinafter referred to as the "Complainants") against M/S Lodha Group, Jawala Real Estate Pvt. Ltd., Lodha Developers Pvt. Ltd., and Macrotech Developers Ltd., all through their respective Directors (hereinafter referred to as the "Opposite Parties/Builders"), seeking refund of the amount paid towards purchase of a flat along with interest, compensation and other reliefs.
2. The brief facts leading up to the present Complaint are that the Complainants, lured by the promises of the Opposite Parties, booked a flat in the project of the Opposite Parties called Lodha Codename Blue Moon which later was renamed as Lodha Park (hereinafter referred to as the "Project"), located opposite Hard Rock Cafe, Pandurang Budhkar Marg, Worli, Mumbai-400025. The Opposite Parties, vide allotment letter dated 28.03.2013, allotted the Complainants a 1052 sq. ft. 3 BHK flat, No. 2102, located on the 21st floor of B Wing, along with two car parking spaces (hereinafter referred to as the 'Unit'), in the building known as Allura (ALPHA) within the said Project, for a total consideration of Rs. 4,13,36,163/- (Rupees Four Crore Thirteen Lakh Thirty-Six Thousand One Hundred Sixty- Three Only). The relevant details of the Unit of the Complainants and other related details is in the table as under:
S. No Particulars
3.
1 Complainants Mr. Mukesh Kumar Gupta Complainants
and Mrs. Prem Lata Garg
that alo
2. Date of booking 18.01.2013 Agreement
Opposite
3. Allotment letter 28.03.2013 enclosed
4. Date of Agreement to Sale 30.07.2013
Report
12.02.2013,
5. Unit No. Unit No. 2102, 21st floor, B by
Wing
Pradip
6. Committed date of possession 31.12.2017 (for fitouts) with a paragraph
as per letter of allotment and grace period of 12 months i.e. report, agreement 31.12.2018 mentioned
7. Booking Amount Rs.9,00,000/- search conducted
8. Basic Sale Consideration Rs.4,13,36,163/-
51 years
9. Amount Paid to the Builder Rs.4,22,86,049/-
specific
(As per Complaint) year 201
Date of Part Occupancy 20.05.2019 revealed
10.
Certificate for certa
and
11. Offer of Possession 01.08.2019
already
there were no other documents adverse to the title of the company i.e. Jwala Real Estate Pvt. Ltd. However, the Complainants stated that the existence of the said sale deeds and mortgages, as noted in the report, casts doubt on the clear title of the company in respect of the land on which the housing project is developed. Therefore, it is uncertain whether the Complainants will have a clear and undisputed title and ownership rights over the flat allotted to them.
4. The Complainants stated that time was an essential condition of the Agreement to Sell dated 30.07.2013 (hereinafter referred to as Agreement), executed between the Complainants and the Opposite Parties. As per Clause 11 of the said Agreement, the Opposite Parties were required to obtain the Occupation Certificate and offer possession of the Unit for fit-outs by 31.12.2017. Clause 11.2 of the Agreement also allowed the Opposite Parties a grace period of one additional year to offer possession, taking the deadline to be 31.12.2018. However, despite the Complainants having paid approximately 97.45% of the total consideration as and when demanded, the Opposite Parties failed to hand over possession of the Unit even after the expiry of this extended timeline.
5. The Complainants further stated that, having no other option, they issued a legal notice dated 01.04.2019 to Opposite Parties No. 1 and 2, requesting confirmation on whether the Unit was ready for legal possession along with all promised amenities, facilities, and the Occupation Certificate. The Complainants also showed their readiness to take possession and pay the remaining balance, provided the Opposite Parties compensated them for the delay at the rate of 18% per annum from the dates of payment made until actual possession with the Occupation Certificate was delivered. However, the Opposite Parties failed to respond to this notice.
6. The Complainants further stated that in a letter dated 24.05.2019, the Opposite Parties claimed to have received the Occupation Certificate. However, in the same letter, they also stated that possession would be offered only when the Unit was ready. This shows that the Occupation Certificate was obtained even though the Unit or Project was not complete and ready for handover. The Opposite Parties falsely claimed in the letter that they received the Occupation Certificate before the committed possession date of 31.12.2019. However, as per the Agreement, the possession was to be given by 31.12.2018 (including the grace period). It is clear from the letter that the Opposite Parties admitted the delay in possession and offered a compensation of Rs.1,70,000/- per month from 01.01.2019. They termed this compensation as "Rental Offset".
7. The Complainants contended that the Opposite Parties, by letter dated 01.08.2019, offered possession of the Unit on condition of payment of the final dues. On reviewing the letter and demand, the Complainants found the amounts excessive and unjustified. They had already paid Rs.4,22,86,049/- (including taxes), while the agreed total consideration was Rs.4,33,93,024/-. Hence, only Rs.11,06,975/- was due. However, the Opposite Parties wrongly demanded Rs.53,73,701/- as balance and Rs.7,99,580/- as interest on delayed payments. They also charged inflated Building maintenance fees, and added GST on charges, which were not mentioned in the Agreement. The Complainants claimed these demands were arbitrary, illegal, and against the terms of the Agreement. The total price already included all infrastructure charges as per the payment schedule.
8. The Complainants stated that the Opposite Parties issued a demand letter dated 11.09.2017 for level 63, in which the GST charged was more than the actual amount by Rs.17.04. Moreover, the Opposite Parties did not provide any details about input credit on materials, which should have been shared with the Complainants. They further stated that in the initial documents like application form (Jan 2013), provisional acceptance (02.03.2013), and earlier demand letters (19.06.2013 and 10.03.2014), there was no mention of deduction of 1% TDS. However, in the demand letter dated 21.07.2014, the Opposite Parties suddenly informed that if the Complainants had not authorized Opposite Parties to pay TDS, then the Complainants should deposit 1% TDS. Upon this, the Complainants confirmed and authorized Opposite Parties to do so. However, the Opposite Parties failed to deposit the TDS to the government before 05.03.2016. They only began doing so after that date. Additionally, they failed to deposit the TDS related to the demand letter dated 13.02.2017 for Level 45.
9. The Complainants stated that as per Clause 1.13 of the Agreement, the notice for readiness of the Unit for fit-outs is effective from the date of issuance plus 15 days. The demand letter was issued by the Opposite Parties on 01.08.2019, so the due date should have been 16.08.2019. However, the letter wrongly asked payment by 15.08.2019. The Complainants further pointed out a discrepancy in the area mentioned. The registration receipt states the area as 117.32 sq. meters, while the Agreement specifies the carpet area as 1052 sq. ft. (equivalent to 97.734 sq. meters), which creates confusion and inconsistency.
10. The Complainants stated that upon receiving the Opposite Parties letter offering possession of the flat along with illegal and inflated charges, they immediately sent a legal notice dated 04.09.2019, following up on their earlier notice dated 01.04.2019. In this notice, the Complainants requested key documents and information before deciding whether to accept possession, especially given the delay and discrepancies. The Complainants specifically requested:
A.) A date and time to inspect the allotted Unit to verify the actual area. B.) A certified copy of the sanctioned plan approved by the competent municipal authority.
C.) Copies of all clearance certificates (e.g., sewerage, water, lift, fire). D.) Copies of height clearance certificates from the Airport Authority and Fire Department.
E.) Confirmation regarding any pending litigation concerning the building or project.
However, instead of providing clear answers, the Opposite Parties replied vaguely through an email dated 07.09.2019, merely stating that the matter was forwarded to their legal team. Another similar response was sent via email on 23.09.2019, again avoiding any direct answers. The Opposite Parties were deliberately withholding the requested documents either because they do not possess them or because the documents contain irregularities or legal violations they do not wish to disclose.
11. Thus, aggrieved by the acts of Opposite Parties, the Complainants filed this consumer complaint with the following prayer:
a) Admit the complaint and hold the Opposite parties deficient in service and also hold the opposite parties liable for adopting Unfair Trade Practice;
b) Direct the Opposite Parties to refund the total amount of Rs. 4,22,86,049/-which is received by the Opposite Party as part of the total consideration including the service tax or GST along with an interest @ 18% p.a. from the date of receiving the actual payment;
c) Direct the Opposite Parties to compensate the Complainants to the tune of Rs.25,62,170/- for the payment made by the Complainants towards the Stamp Duty for Rs. 20,67,120/-, Registration Fee for Rs. 32,120/-, MVAT for Rs. 4,53,930/- and 9,000/- for Scanning and other Charges charged on the day of registration etc. along with an interest @ 18% p.a. from the date of receiving the actual payment;
d) Direct the opposite parties to handover the copies of the Completion Certificate / Occupation Certificate of the flat in question and the entire project along with copies of all the statutory clearances for the entire project, the sanction plan of the building and the fiat allotted to the complainants showing the area of the fiat of the complainant.
e) Direct the opposite party to handover the copies of the fire clearance certificate with regard to height of the building, height clearance certificate of the- building by the Airport Authority of India and certificate of clearance from Municipal and Public authorities with regard to Sewerage, Water, Lift, Fire Safety etc.
f) Direct the opposite parties to permit the complainants to inspect the flat allotted to the complainants of which the possession has been offered.
g) Upon receipt of the aforesaid documents referred to in prayer d), e), f) and in the event the aforesaid documents are in order and the complainants on satisfaction' with regard to the flat being defect free in all respect and the flat being complete in all respect and upon inspection by the complainants, the Opposite Parties may be directed to- handover the legal possession of the residential unit namely "3BHK Residential flat No. 2102, at Floor No. 21, B Wing in the building known as "Allura (ALPHA)" in the project known as "Lodha Codename Blue Moon" renamed as "Lodha Park" situated Opposite Hard Rock Cafe, Pandurang Budhkar Marg, Worli, Mumbai-400025 along with two Four-Wheeler parking spaces.
h) Further a direction may be issued to the opposite parties to pay compensation @ 18% p.a. for the delay in handing over of the possession with effect from the agreed date of handing over of possession as per agreement dated 30/7/2013 till the legal possession of the flat and the car parkings, complete in all respect along with completion certificate and all clearances from the government departments, are actually handed over to the complainants.
i) Direct the Opposite Party to compensate the Complainant to the tune of Rs.
10,00,000/- for the amount spent towards the monthly rental paid by the Complainant towards the alternative accommodation due to the delay caused by the Opposite Party in handing over the possession of the flat allotted to the Complainant complete in all respect; and
j) Direct the Opposite Parties to compensate the Complainants to the tune of Rs.20,00,000/- for the mental harassment and agony caused to the Complainants due to the deficiency in services at the hands of the Opposite Parties; and
k) Award Rs.5,00,000/- litigation expenses in favor of the Complainants and as against the Opposite Parties;
l) Pass any other further order(s) as this Hon'ble Commission may deem fit and proper in the interest of justice equity and good conscience.
12. This Commission vide its Order dated 27.05.2024, posed a query to the learned counsel for the Complainants, upon perusal of the Complaint, regarding the final relief being sought, noting that the prayer clause contains multiple prayers that appear to be inconsistent or contradictory. In response, the Ld. Counsel for the Complainants submitted that prayers marked as 'D', 'E', 'F', 'G', 'H' and 'I' in the original complaint are not being pressed.
13. The Opposite Parties resisted the Complaint by taking main objections as under: -
1. The complaint is false, baseless, and does not disclose any valid legal claim. The facts presented by the Complainants are incorrect and misleading. The complaint, according to the Opposite Parties, has been filed with malafide intentions only to harass and extract money from the Opposite Parties.
2. The Complainants are not a consumer under the Act as they have bought the Unit for commercial purpose. The Complainants, resident of Jaipur, own multiple high-value flats in Mumbai, totalling over Rs.37.49 crores, including the one in dispute.
3. The Opposite Parties submitted that there is no delay in handing over possession of the Unit under the terms of the Agreement dated 30.07.2013. The occupation certificate for the Complainants' Unit was obtained on 20.05.2019, and possession was offered vide letter dated 01.08.2019, which is within the time period agreed upon in the said Agreement.
Despite this, the Complainants have neither taken possession nor cleared the final dues, for reasons best known to them. Clause 11.1 of the Agreement specifies the estimated fit-out date as 31.12.2017. Under Clause 11.2, a grace period of one year is provided thereby extending the fit-out timeline to 31.12.2018. Furthermore, the Opposite Parties are required to obtain the occupation certificate and make available key common areas and amenities within one year of the fit-out date, i.e., by 31.12.2018 with a grace period of one year, thereby extending up to 31.12.2019. Since possession was offered on 01.08.2019, it falls well within the contractual time limits. The Opposite Parties further submitted that Clauses 11.1 and 11.2 must be read harmoniously, and any interpretation that renders these provisions redundant must be avoided. In addition, Clause 11.5 of the Agreement entitles the Opposite Parties to further extension beyond the grace period in cases where delays occur due to reasons beyond its control, such as shortage of materials, labour issues, force majeure events, government orders, or delay in receiving approvals. Therefore, even assuming any delay, the Opposite Parties are protected under this clause.
4. The Project is an ongoing project under the provisions of the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as "RERA"). As per RERA requirements, ongoing projects were required to declare a revised timeline for completion at the time of registration. Accordingly, the Opposite Parties submitted a revised completion date of 31.12.2021, which reflected the remaining work to be completed in the entire Project. This timeline was in accordance with RERA rules and has been accepted by the Maharashtra RERA. However, the Complainants' Unit, along with the associated amenities, was completed and offered to them well within the timelines agreed upon in the original Agreement, and well before the revised RERA timeline.
14. The Complainants, in their rejoinder, denied the averments made by the Opposite Parties and reiterated the contentions made in the Complaint. The Complainants stated that the Opposite Parties have caused them mental harassment by refusing repeated requests for inspection of the Unit, despite receiving over Rs.4 crores from them. The complaint is genuine and backed by admitted delays in the Project, for which the Opposite Parties has offered minimal and inadequate compensation. The Complainants denied the Opposite Parties assertion that they possess multiple residential properties in Mumbai. The Complainants submitted that ownership of more than one flat does not disqualify a buyer from being a consumer under the Act. The Complainants booked the Unit for personal residential use, not for commercial or investment purposes. The Complainants deny the Opposite Parties' misleading assertion that an occupancy certificate has been obtained. Only part occupancy certificate has been issued, which are subject to conditions and clearly indicate that the Project is incomplete. The Opposite Parties claim of providing a "credit offset" is false and misleading, as their own letter dated 24.05.2019 refers only to a "rental offset" of Rs.12,01,333/-, with no mention of any credit offset in the demand letter.
15. We have heard learned Counsel and Senior Counsel for both the parties and have gone through the material available on record.
16. Learned Counsel for the Complainants argued that this is a case of refund of the deposited amount on account of the Opposite Party/ Builder not having obtained the Occupation Certificate and violation of the terms and conditions of the Agreement. The Offer of Possession for fit out should have been by 31.12.2018 including the one year grace period. The Occupation Certificate should have been obtained by 31.12.2019. Though Part Occupation Certificate was obtained on 20.05.2019 and Offer of Possession made on 01.08.2019, it is delayed by about five months and Part Occupation Certificate cannot be treated as Occupancy Certificate. He argued that as per Clause 6.4 read with clauses 20(u) and 20(v) of the Agreement, it is explicitly stated that the Opposite Parties are only to offer possession for fit outs on the basis of the part Occupancy Certificate. It is categorically clarified in these clauses that such possession do not entitle the Complainants to either reside in the Unit or to sell or rent the same. Therefore, even on a plain reading of the Agreement, which is a document drafted by the Opposite Parties themselves, it becomes evident that the possession offered was only for the limited purpose of carrying out fit-out work and not actual, lawful, and peaceful possession of the Unit. Hence, the possession offered by the Opposite Parties is merely "paper possession", and cannot be construed as valid Offer of Possession. Further, the Opposite Parties have failed in their contractual obligations under Clause 11.1 of the Agreement, which clearly stipulates that, subject to full payment of dues by the Complainants, the Opposite Parties would endeavour to offer possession of the Unit for fit-outs on or before 31.12.2017, and further, obtain the Occupancy Certificate and hand over final possession, along with access to common areas and amenities, within one year thereafter, i.e., by 31.12.2018 with a grace period of one year. He cited the judgment of the Hon'ble Supreme Court in Venkataraman Krishnamurthy vs. Lodha Crown Buildmart, (2024) 4 SCC 230, which is applicable in this case also. Clause 11.3 of the Agreement stipulates that, in the event the Opposite Parties fails to offer possession for fit-outs by the date specified in 31.12.2017, along with the applicable grace period, then within 30 days of the expiry of such grace period, the Opposite Parties are obligated to inform the Complainants of the revised date by which the Unit is likely to be ready for possession for fit-outs. No written communication or letter was ever issued by the Opposite Parties to the Complainants informing them of a revised date of possession, as expressly required under Clause 11.3 of the Agreement. The Complainants issued a legal notice dated 04.09.2019, asking for essential documents including sanctioned plans, statutory clearances, and an opportunity to inspect the Unit. However, the legal Counsel for the Opposite Parties replied on 19.09.2019 in vague manner, stating they were awaiting instructions from their client, without addressing any of the specific concerns. Thereafter, the Complainants filed the Complaint. The very act of filing the consumer complaint is to be treated as a termination of the Agreement, as per the law laid down by the Hon'ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. v. Govindan Raghavan, (2019) 5 SCC 725. He submitted that it is an admitted fact that the part occupancy certificate was obtained by the Opposite Parties only on 20.05.2019, which is well beyond the agreed timeline. There has been delay in obtaining the part occupancy certificate by 5 months. The Agreement executed between the parties does not define or distinguish between a Part Occupancy Certificate and Occupancy Certificate.
17. Learned Senior Counsel for the Opposite Parties argued that, following the enactment of the RERA, they could no longer offer possession of the Unit for fit- outs, as 'fit-out possession' is not recognised under RERA. The same was also conveyed by the Opposite Parties through email dated 23.02.2019. Therefore, the possession of the Unit had been offered to the Complainants on 01.08.2019, after obtaining the Part Occupation Certificate from the competent authority on 20.05.2019. The Learned Counsel further argued that the judgment of the Hon'ble Supreme Court in Venkataraman Krishnamurthy vs. Lodha Crown Buildmart, (2024) 4 SCC 230, is distinguishable on facts and does not apply to the present case. In that matter, the Hon'ble Supreme Court was interpreting Clause 11.3 of the Agreement in the specific context where possession had not been offered to the allottee. However, in the present case, possession of the Unit was duly offered to the Complainants on 01.08.2019, after obtaining the Part Occupation Certificate. Hence, the reasoning in Venkataraman Krishnamurthy (supra) does not aid the Complainants' case, as the fundamental premise i.e. non-offer of possession does not exist here. The term "Occupancy Certificate" as defined under Section 2(zf) of the RERA, includes any certificate, by whatever name called, issued by the competent authority permitting occupation of a building or part thereof, as per applicable local laws which has provision for civic infrastructure such as water, sanitation and electricity. This definition is broad and inclusive, and includes "Part Occupancy Certificate". The Development Control Regulations (DCR) for Greater Mumbai of 1991 and 2034 recognize and provide for issuance of part occupancy certificate under Regulation 6(8) and Regulation 11(8) respectively. Additionally, Section 353A of the Mumbai Municipal Corporation Act, 1888 permits the issuance of part occupancy certificate for occupation of part of a building. In the present case, the part occupancy certificate was issued by the Brihanmumbai Municipal Corporation (BMC), upon completion of construction and after obtaining the requisite completion and fire safety certifications. The RTI response dated 10.07.2024 issued by BMC further clarifies that a part occupancy certificate, once issued, permits lawful occupation of the portion covered and is treated as final. As per Clause 6.4 of the Agreement, the Opposite Parties were well within their rights to obtain a part occupation certificate for any portion, floor, or wing of the building and offer possession of the concerned Unit for fit-outs based on such certificate. Section 19(10) of RERA mandates that an allottee must take possession of the Unit within two months of the issuance of the occupation certificate for that specific Unit. The wording "occupation certificate issued for the said apartment" refers to the particular Unit allotted to the buyer, and not necessarily to the entire building or project. RERA does not prescribe that possession can only be taken after a final or full occupation certificate for the entire Project is obtained. Therefore, once Part Occupation Certificate is issued for the Complainants' Unit, the obligation to take possession arises, and there is no legal requirement to await a full Occupancy Certificate for the entire Project. He argued at length on the applicability of RERA, which came into effect on 01.05.2016 and as per the judgment of Hon'ble Supreme Court in Newtech Promoters and Developers Pvt. Ltd. v. State of Uttar Pradesh (2021) 18 SCC 1, provision of RERA are retrospective in operation. As per Clause 11.3 of the Agreement, the Complainants had an option to terminate the Agreement within 90 days from the expiry of the grace period for obtaining the Occupancy Certificate, which expired on 31.12.2018. Accordingly, the Complainants were entitled to exercise their right of termination on or before 31.03.2019. However, the Complainants failed to avail this contractual remedy within the stipulated period. Instead, the Complainants preferred the present Complaint on 19.11.2019 seeking possession of the Unit. It is only at a much later stage that the Complainants chose to seek refund instead of possession. The Opposite Parties also placed their reliance on the two Orders of this Commission in Jignya Mittal vs. Macrotech Developers Ltd., 2022 SCC OnLine NCDRC 98, decided on 10.01.2022 and Durgesh Singh v. Lodha Developers Ltd., 2023 SCC OnLine NCDRC 80 decided on 17.03.2023.
18. At the outset, it would be worthwhile to reproduce the relevant Clauses of the Agreement:-
"1.13 "Date of Offer of Possession (for fit outs)" shall mean the date as specified in Annexure 2 herein on which the Company shall endeavor to make available to the Purchaser the Unit for fit outs subject to the receipt by the Company of the Total consideration and all other taxes and charges payable under this Agreement. This shall be the date on which the notice for readiness of the Unit for fit outs is issued by the Company plus 15 days.
1.14 "Date of Offer of Possession" shall mean the date on which the occupation certificate is issued (or deemed to be issued as per the relevant provisions of legislation) .............
.............
11. FIT OUTS AND POSSESSION 11.1 Subject to the Purchaser not being in breach of any of the terms hereof and the Purchaser having paid all the dues and amounts hereunder including the Total Consideration, the Company shall endeavor to provide the Unit to the Purchaser for fit outs on or before the date as set out in Annexure 2 hereto. The Company shall endeavour to make all necessary submissions to obtain the occupation certificate in respect of the Unit of the Building and make available the key Common Areas and Amenities in respect the Building within a period of 1 (One) year from the Date of Offer of Possession (for Fit Outs) as set out in Annexure "2" hereto and this shall be deemed to be the final possession of the Unit.
11.2 The Company shall without being liable to the Purchaser, be entitled to a grace period of 1 (One) year beyond the aforesaid dates mentioned in the Clause 11.1. The date on which the occupation certificate is issued (or deemed to be issued as per the relevant provisions of legislation) shall be deemed to be the "Date of Offer of Possession".
11.3 Delay in handover of possession (for fitouts) Subject to the provisions of Clause 11.5 hereof and the Purchaser having paid all the amounts due and payable hereunder, in the event the Company fails to offer the possession of the Unit for fit outs by the date stated in Annexure - 2 and the aforesaid grace period, then within 30 (thirty) days of expiry of such grace period, the Company shall inform the Purchaser the revised date by which the Unit is likely to be ready for being offered for possession for fit out. Upon expiry of such grace period, the Purchaser may elect to continue with this Agreement in which case, the date of offer of possession for fit outs mentioned in Annexure - 2 shall stand revised to and substituted by the revised date of offer of possession for fit outs as communicated by the Company. Alternatively, the Purchaser may by giving notice in writing elect to terminate this Agreement. Provided that such right to terminate shall be exercised by the Purchaser within a period of 90 days from the expiry of the aforesaid grace period. In the event, the letter of termination is not received by the Company within the said period of 90 days or is received after the said period of 90 days, the Purchaser shall, without the Company being liable to the Purchaser, be deemed to have elected to continue with the Agreement to Sell and the Purchaser shall deemed to have waived his right to terminate this Agreement. In the event that the termination is done within 90 days from the expiry of the aforesaid grace period, the Company shall refund to the Purchaser the Total Consideration amount or part thereof paid by the Purchaser in 12 equal monthly installments through post dated cheques together with simple interest thereon at the rate of 12% per annum from the date of receipt of the Total Consideration or part thereof till repayment. The first monthly installment shall commence from the 13th month of the date of receipt of the said letter of termination and ending on the 24th month thereof.
11.5 Notwithstanding the provisions hereof, the company shall without being liable to the Purchaser be entitled to reasonable extension of time for making available the Unit for fit out or completion of said Building beyond the aforesaid dates mentioned in Clause 11, if the same is delayed for reasons beyond the control of the Company including on account of:-
(i) Non-availability of steel, cement, other building material, water or electric supply, or
(ii) Labour problems, shortage of water supply or electric power or by reason of any act of God, or
(iii) non delivery of possession is as a result of any notice, order, rule or notification of the Government and/or any other public or Competent authority or of the court or on account of delay in issuance or non-
issuance or receipt of NOC's, Licenses, Occupation Certificate, Approvals etc. or non availability of essential amenities, services and facilities such as lifts, electricity and water connections or sewage or drainage lines or for any other reason technical or otherwise or for any reason beyond the control of the Company., or.
(iv) Economic Hardship.
(v) Delay in receipt of documents and/or Approvals.
...............................
...............................
20. PURCHASER'S COVENANTS The Purchaser for himself with intention to bring all persons into whosoever hands the Unit may come, doth hereby covenant with the Company as follows:-
..................
..................
u. The Purchaser acknowledges that as on the Date of Offer of Possession (for fit outs), works in the Unit shall be complete and the Unit shall have regular water and electricity supply, as well as lift access. There may be certain works which may be ongoing in the Building/development/Property at such time but all due care shall be taken to ensure that the fit outs of the Unit are not affected in any manner by such works. It is clarified that the Offer of Possession (for fit outs) entitles the Purchaser to carry on interior and other related works in the Unit but does not entitle the said Unit to be occupied till such time that the Occupation Certificate is received in relation to the said Unit."
19. The basic issue to be decided in this Complaint Case is whether Part Occupancy Certificate issued by the competent authority can be considered as the Occupancy Certificate. The Opposite Party Builder has gotten the Part Occupancy Certificate for the building in which the unit of the Complainants is located during the grace period provided under the Agreement for obtaining the Occupancy Certificate.
Learned Senior Counsel for the Opposite Party has extensively argued on why Part Occupancy Certificate should be considered as Occupancy Certificate for the purpose of offer and handing over possession and taking over possession by the Complainant. He has cited the relevant municipal authority clarification as well as the definition of Occupancy Certificate as contained in the Real Estate (Regulation and Development) Act, 2016. On the other hand, the learned Counsel for the Complainants argued his case for refund on the ground that the Opposite Party has not obtained the Occupancy Certificate till date and, therefore, for the abnormal delay in not obtaining the same by the Opposite Party Builder, the Complainants are entitled for full refund of their deposited amount with the Builder without any forfeiture of earnest money and also entitled for interest on such refund. He has relied upon the Order of the Hon'ble Supreme Court in Venkataraman Krishnamurthy & Anr. (Supra), wherein this distinction between the Part Occupancy Certificate and Occupancy Certificate has been discussed and, wherein, it has been held that Part Occupancy Certificate cannot be equated with the Occupancy Certificate issued under Regulation-VI (VII) of the Development Control Regulation, 1991 and accordingly, the Apex Court has allowed refund of the deposited amount by the Builder to the Complainants with interest. The relevant portion is as under:-
"5. It would be appropriate at this stage to note the terms and conditions which were arrived at by and between the parties and reduced to writing in the Agreement executed by them. The relevant definitions, set out in Clause 1, titled 'Definition and Interpretation', read as under: -
'1.13 "Date of Offer of Possession (for fit outs)" shall mean the date as specified in Annexure 2 herein on which the Company shall endeavor to make available to the Purchaser the Unit for fit outs subject to the receipt by the Company of the Total consideration and all other taxes and charges payable under this Agreement. This shall be the date on which the notice for readiness of the Unit for fit outs is issued by the Company plus 15 days.
1.14 "Date of Offer of Possession" shall mean that date on which the occupation certificate is issued (or deemed to be issued as per the relevant provisions of legislation)'
6. Clause 11 of the Agreement is most relevant for the purposes of this case. It is titled 'Fit Outs and Possession' and the relevant paragraphs thereof are extracted hereunder:
'11. Fit Outs and Possession: -
11.1. Subject to the Purchaser not being in breach of any of the terms hereof and the Purchaser having paid all the dues and amounts hereunder including the Total Consideration, the Company shall endeavor to provide the Unit to the Purchaser for fit outs on or before the date as set out in Annexure "2" hereto. The Company shall endeavor to make all necessary submissions to obtain the occupation certificate in respect of the Unit of the Building and make available the key Common Areas and Amenities in respect of the Building within a period of 1 (one) year from the Date of Offer of Possession (for Fit Outs) as set out in Annexure "2" hereto and this shall be deemed to be the final possession of the Unit.
11.2. The Company shall without being liable to the Purchaser, be entitled to a grace period of 1 (One) year beyond the aforesaid dates mentioned in the Clause 11.1. The date on which the occupation certificate is issued (or deemed to be issued as per the relevant provisions of legislation) shall be deemed to be the "Date of Offer of Possession".
11.3. Delay in handover of possession (for fitouts) subject to the provisions of Clause 11.5 hereof and the Purchaser having paid all the amounts due and payable hereunder, in the event the Company fails to offer the possession of the Unit for fit outs by the date stated in Annexure - 2 and the aforesaid grace period, then within 30 (thirty) days of expiry of such grace period, the Company shall inform the Purchaser the revised date by which the Unit is likely to be ready for being offered for possession for fit out. Upon expiry of such grace period, the Purchaser may elect to continue with this Agreement in which case, the date of offer of possession for fit outs mentioned in Annexure-2 shall stand revised to and substituted by the revised date of offer of possession (for fit outs) as communicated by the Company.
Alternatively, the Purchaser may by giving notice in writing elect to terminate this Agreement. Provided that such right to terminate shall be exercised by the Purchaser within a period of 90 days from the expiry of the aforesaid grace period. In the event, the letter of termination is not received by the Company within the said period of 90 days or is received after the said period of 90 days, the Purchaser shall, without the Company being liable to the Purchaser be deemed to have elected to continue with the Agreement to Sell and the Purchaser shall deemed to have waived his right to terminate this Agreement. In the event that the termination is done within 90 days from the expiry of the aforesaid grace period, the Company shall refund to the Purchaser the Total Consideration amount or part thereof paid by the Purchaser in 12 equal monthly instalments through post dated cheques together with simple interest thereon at the rate of 12% per annum from the date of receipt of the Total Consideration or part thereof till repayment. The first monthly installment shall commence from the 13th month of the date of receipt of the said letter of termination and ending on the 24th month thereof.
11.5. Notwithstanding the provisions hereof, the Company shall without being liable to the Purchaser be entitled to reasonable extension of time for making available the Unit for fit out or completion of said Building beyond the aforesaid dates mentioned in Clause 11, if the same is delayed for reasons beyond the control of the Company including on account of:
(i) Non-availability of steel, cement, other building material water or electric supply, or
(ii) Labour problems, shortage of water supply or electric power or by reason of any act of God, or
(iii) non delivery of possession is as a result of any notice, order, rule or notification of the Government and/or any other public or un of on acco Competent authority or of the court or on account of delay in issuance or non-issuance or receipt of NOC's, in issuance, Occupation Certificate, Approvals etc. or non availability of essential amenities, services and facilities such lifts, electricity and water connections or sewage or drainage lines or for any other reason technical or otherwise or for any reason beyond the control of the Company, or Economic Hardship
(iv) Delay in receipt of documents and/or Approvals.' In keeping with and in continuance of Clause 11.1 set out hereinbefore, Annexure 2 to the Agreement stipulated that the date of offer of possession for fit outs would be 30.06.2016.
7. Clause 21 of the Agreement is titled 'Purchaser's Covenants'. To the extent presently relevant, it reads as under:
21. PURCHASER'S COVENANTS The Purchaser for himself with intention to bring all persons into whosoever hands the Unit may come, doth hereby covenant with the Company as follows:
.....u. The Purchaser acknowledges that as on the Date of Offer of Possession (for fit outs) works in the Unit shall be complete and the Unit shall have regular water and electricity supply, as well as lift access. There may be certain works which may be ongoing in the Building/ development/Property at such time but all due care shall be taken to ensure that the fit outs of the Unit are not affected in any manner by such works. It is clarified that the Offer of Possession (for fit outs) entitles the Purchaser to carry on interior and other related works in the Unit but does not entitle the said Unit to be occupied till such time that the Occupation Certificate is received in relation to the said Unit.'
8. Cursory overview of the above clauses manifests that the respondent- company was to deliver possession of the apartment to the appellants for fit outs by 30.06.2016 but grace period of one year was provided under Clause 11.2, whereby the date for delivery of such possession stood extended till 30.06.2017. Clause 21.u indicates that the works in the apartment, so far as the respondent-company is concerned, were to be completed by that date and the apartment was to have regular water and electricity supply, apart from lift access, and the appellants could carry on interior and other related works therein. Further, as per Clause 11.1, the respondent-company was required to obtain the Occupation Certificate in respect of the apartment and make available the key common areas and amenities in the building within one year from the date of offer of possession for fit outs. That was deemed to be the final possession of the apartment in terms of Clause 11.2. This date for delivery of final possession was also extendable by one year, i.e., up to 30.06.2018.
9. Significantly, Clause 11.3 makes it clear that delay in delivery of possession of the apartment for fit outs, subject to Clause 11.5 and payment of the sale consideration amounts due and payable, would entail two possible situations. Firstly, the respondent-company could inform the purchaser, within thirty days of the expiry of the grace period, the revised date by which the unit was likely to be ready for being offered for a possession for fit outs and if the same is accepted by the purchaser, the contract would stand extended. Secondly, the clause provides that upon expiry of the grace period, the purchaser could elect either to continue with the agreement or, in the alternative, give notice in writing electing to terminate the agreement. The purchaser was required to exercise this right within ninety days from the expiry of the grace period.
10. It was not the case of the respondent-company that Clause 11.5 had a role to play in the case on hand and it was not its claim that any sale consideration amounts payable by the appellants remained outstanding at that point of time. The respondent-company, however, asserted that it had received the Occupation Certificate for the appellants' apartment on 08.06.2017, which was well before the expiry of the grace period, and it had called upon the appellants by e-mail on the very same day to make the balance payment in order to initiate the possession process. It alleged that the appellants had failed to make the balance payment and the default, therefore, lay with them. It relied on Clause 11.2, which provided that the date on which the Occupation Certificate is issued shall be deemed to be the date of offer of possession and contended that the appellants could not claim that it had not offered possession of the apartment before expiry of the grace period. Further, it contended that the appellants wanted to back to beout of the contract as they did not wish to bear the additional burden of the newly introduced Goods and Service Tax payable by them in relation to the subject transaction.
11. Perusal of the certificate dated 08.06.2017 relied upon by the respondent-company reflects that it is titled 'Part Occupancy Certificate'. It was issued by the Town & Country Planning Division of the Mumbai Metropolitan Region Development Authority and recorded, under Condition No. 6 thereof, that the respondent-company should complete the unfinished internal works before applying for grant of a Full Occupation Certificate of the building or before handing over physical possession of the premises for habitation, whichever was earlier. Notably, in the State of Maharashtra, 'Occupancy Certificate' is defined under Regulation 6(7) of the Development Control Regulations, 1991, and it reads as follows: -
'6(7). Occupancy Certificate: On receipt of the acceptance of completion certificate in the form in Appendix XXI, the owner through his licensed surveyor/engineer/structural engineer/supervisor of this architect shall submit to the Commissioner a development completion certificate in the form in Appendix XVIII with three copies of the completion plan, one of which shall be cloth mounted for record. The Commissioner may inspect the work and after satisfying himself that there is no deviation from the sanction plans, issue an occupancy certificate in the form in Appendix XXII or refuse to sanction the occupancy certificate within 21 days from the date of receipt of the said completions certificate....' It is clear from the aforestated definition that the 'Occupancy Certificate' denotes completion of the project in all respects and this is fortified by the format of the 'Occupancy Certificate' in Appendix XXII to the Development Control Regulations, 1991, which reads thus:
'The full development work of a residential building comprising of_____ +_____ Division/Village upper floors on plot bearing C.S. No./CTS No.______of Division/Village _______ at_______ is completed under the supervision of Shri._________, Lic. Architect, Lic. No.___________; Shri ________, Lic, Site Supervisor, Lic. No.________ and Shri.__________, RCC Consultant Lic. No._________ and as per completion certificate issued by Chief Fire Officer u/no._________ dated ________, the same may be occupied and completion certificate submitted by you is hereby accepted.'
12. Significantly, the 'Part Occupancy Certificate' obtained by the respondent-company is not in the aforestated format and states to the effect that a 'Full Occupation Certificate' may still have to be obtained thereafter. The said certificate cannot, therefore, be equated to the 'Occupancy Certificate' issued under Regulation 6(7) of the Development Control Regulations, 1991. The respondent-company's argument that issuance of the aforestated certificate should be construed to mean that there was no delay on its part in delivering possession of the apartment is utterly misconceived. Clauses 1.13 and 1.14 of the Agreement demonstrate, in no uncertain terms, that two separate dates for delivery of possession are contemplated - one being the 'date of offer of possession for fit outs' and the other being the 'date of offer of possession'. The 'date of offer of possession for fit outs', allowing for the grace period of one year, was 30.06.2017 and it is the admitted position that the respondent- company did not offer such possession before that date. Without doing so, it was not open to the respondent-company to proceed directly to the next date, viz., the 'date of offer of possession' under Clause No. 1.14, which is linked with the 'Occupation Certificate' which it did not even have by that date. Further, it is not even its case that it made available the key common areas and amenities, as provided in the Agreement. In effect, expiry of the date of delivery of possession for fit outs', with the grace period, being 30.06.2017, the appellants were well within their rights, under Clause 11.3, in getting issued a legal notice on 01.07.2017 stating that they had not received any letter of offer of possession for fit outs and that they had elected to terminate the Agreement. The respondent-company was called upon, in consequence, to refund the monies paid by them with interest thereon. The respondent-company, however, disclaimed liability, by its reply legal notice dated 21.07.2017, constraining the appellants to move the NCDRC.
13. This being the factual backdrop of the case, the NCDRC noted that there was 'some delay' in handing over of possession of the apartment by the respondent-company, but opined that it was not 'unreasonable', whereby the appellants could cancel the Agreement and seek a refund. The NCDRC further opined that in the event they wish to seek a refund, the respondent-company was entitled to deduction/forfeiture of the earnest money as per the provisions of the Agreement. Having said so, the NCDRC observed that the respondent- company was still bound to provide actual physical possession of the apartment, complete in all respects, and issued the directions set out hereinabove.
14. At this stage, it may also be noted that, by letter dated 29.11.2017, the respondent-company informed the appellants that their apartment was ready for possession and called upon them to make the payment due at the earliest to enable the process to hand over possession being initiated.
15. Once the parties committed themselves to a written contract, whereby they reduced the terms and conditions agreed upon by them to writing, the same would be binding upon them. In the event such a written contract provided for the consequences that are to follow in the event of breach of the conditions by one or the other of the parties thereto, such consequences must necessarily follow and if resisted, they would be legally enforceable. In the case on hand, the Agreement stipulated the date of delivery of possession of the apartment for fit outs with a grace period of one year. In terms thereof, the date for delivery of possession of the apartment for fit outs, with the grace period, was 30.06.2017. Admittedly, the respondent-company did not offer delivery of possession of the apartment for fit outs by that date. The 'date of offer of possession', under Clause 1.14, linked with issuance of the 'Occupation Certificate' was distinct and separate from the 'date of delivery of possession for fit outs' and Clause 11.3 unequivocally provided the consequences in the event of delay in that regard. The right of election given thereunder to the appellants to either continue or to terminate the Agreement within ninety days from the expiry of the grace period was absolute and it was not open to the NCDRC to apply its own standards and conclude that, though there was delay in handing over possession of the apartment, such delay was not unreasonable enough to warrant cancellation of the Agreement. It was not for the NCDRC to rewrite the terms and conditions of the contract between the parties and apply its own subjective criteria to determine the course of action to be adopted by either of them."
20. A perusal of the Agreement reveals that there is no mention of Part Occupancy Certificate and the relevant Clause-XI of the Agreement specifically refers to Occupancy Certificate only. Further, the words 'Occupation Certificate' has not been defined in the Agreement at all though most of the other words have been exhaustibly defined in Clause-1 of the said Agreement. In such scenario, when the word 'Part Occupancy Certificate' does not find mention anywhere in the Agreement and relying on the Order of the Hon'ble Supreme Court in Venkataraman Krishnamurthy & Anr. (supra), we do not see any reason to interpret the Agreement in any other manner other than what has been explicitly stated therein, and taking recourse to definition of the word 'Occupancy Certificate' in RERA and particularly Section-2(z)(f) which defines the word 'Occupancy Certificate' as "
occupancy certificate" means the occupancy certificate, or such other certificate by whatever name called, issued by the competent authority permitting occupation of any building, as provided under local laws, which has provision for civic infrastructure such as water, sanitation and electricity. Further, taking recourse of Section-19(10) of RERA also is not relevant as once again the word used is only the 'Occupancy Certificate'. The argument of learned Senior Counsel for the Opposite Parties was that the Complainants were informed about the applicability of RERA by their e-mail dated 23.02.2019. The relevant portion is reproduced as under:-
"On Sat, 23 Feb 2019 at 13:01, Lodha Service Desk < [email protected]> wrote: Dear Mr. Gupta, Greetings from the Lodha Group.
To begin with, we certainly understand and acknowledge your concerns expressed in your email. Kindly be informed that as per the agreement, we have to offer possession for fitouts by December 2017 (with grace period of one year) and final possession i.e. with Occupancy Certificate by December 2018 (with grace period of one year).
As we have already communicated, units are ready for fit-out possession. However, with the advent of RERA, we have been advised that we can no longer offer possession for fitouts only and possession has to be offered with Occupancy Certificate. We will, therefore, offer possession of your unit with Occupancy Certificate well within the agreement timelines i.e. on/ before December 2019 (December 2018 + 1 year).
Nevertheless, we expect to receive Occupancy Certificate soon and will then start the handover process. Given the large number of units to be handed over, in order to ensure personal attention to each family, we will be handing over in batches, starting from the lower floors. We are handing over 70-100 units in a month, and accordingly to the schedule, you should receive the possession demand letter (PDL) for your unit on the 21 floor in Quarter 1, 2019.
As a matter of goodwill, we shall offer a you special discount per month of of INR 1.7 lakhs starting 1 January, 2019 until the date of your possession demand letter. This amount will be credited/ reduced from the final dues payable at the time of possession, and the credit shall reflect in your final possession demand letter.
In case you have any further queries then please feel free to call us on 022. 6716. 1111 from Monday to Friday between 10:00 AM 6:00 PM IST or email us at [email protected] and we will be glad to assist you. Kindly enter your Customer Reference Number (CRN) when you call our board line number.
We also request you to share the details of recent payment remittance of INR. 1 Cr. in below manner which will enable us to trace the payment.
Bank name -
Mode of payment -
Date of payment -
Amount remitted -
Payment/ UTR reference no./ Cheque No. -
We look forward to your continued support in making The Park the most sought after residential development in the region.
In case you have any further queries then please feel free to call us on 022. 6716. 1111 from Monday to Friday between 10:00 AM 6:00 PM IST or email us at [email protected] and we will be glad to assist you. Kindly enter your Customer Reference Number (CRN) when you call our board line number.
Thanks and regards, Gaurav Betai"
It is seen that even at this belated stage the Builder has mentioned about only the Occupation Certificate but not about Part Occupancy Certificate. Undoubtedly, the Complainants were kept in the dark and this e-mail does not help the case of the Opposite Parties.
21. In our considered opinion, if there was no distinction or difference in Part Occupancy Certificate and Occupancy Certificate, then the question of adding the prefix 'Part' would not make any sense or arise. If the word 'Part' has been included, it denotes that certain conditions are yet to be fulfilled by the Builder/Developer for completion of the project. Therefore, in our opinion, there is a deficiency of service on the part of the Opposite Party in not having obtained the Occupancy Certificate by the due date including the grace period and continuing to not having obtained the same till date and therefore, the Complainants are entitled to seek refund of their deposited amount with interest as compensation without any deduction.
22. In view of the aforesaid discussion, the Complaint is partly allowed and the Opposite Party shall refund the entire deposited amount of Rs.4,22,86,044/- to the Complainants within eight weeks of this Order along with delay compensation @ 9% per annum from the respective dates of deposit till realisation. Any delay beyond eight weeks shall carry the interest rate of 12% instead of 9% for the same period.
23. Pending Application, if any, stands disposed of.
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BINOY KUMAR PRESIDING MEMBER ..................J SAROJ YADAV MEMBER