Supreme Court - Daily Orders
Chandra Mohan K.S. vs M/S Ittina Properties Pvt Ltd on 12 March, 2019
Bench: Uday Umesh Lalit, Dinesh Maheshwari
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No.2939 of 2019
(@ Special Leave petition (C) No.29568 of 2018)
CHANDRA MOHAN K.S. & ANR. Appellant (s)
VERSUS
M/S ITTINA PROPERTIES PVT LTD & ORS. Respondent(s)
WITH
Civil Appeal No.2940 of 2019
(@Special Leave petition (C) No.29569 of 2018)
Civil Appeal No.2941 of 2019
(@Special Leave petition (C) No.29570 of 2018)
Civil Appeal No.2942 of 2019
(@Special Leave petition (C) No.586 of 2019)
Civil Appeal No.2943 of 2019
(@Special Leave petition (C) No.673 of 2019)
Civil Appeal No.2944 of 2019
(@Special Leave petition (C) No.6155 of 2019)
Civil Appeal No.2946 of 2019
(@Special Leave petition (C) No.6157 of 2019)
Civil Appeal No.2947 of 2019
(@Special Leave petition (C) No.6158 of 2019)
Civil Appeal No.2945 of 2019
(@Special Leave petition (C) No.6156 of 2019)
Signature Not Verified
Digitally signed by
POOJA ARORA
Civil Appeal No.2948 of 2019
Date: 2019.03.16
13:18:02 IST
Reason:
(@Special Leave petition (C) No.6615 of 2019)
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O R D E R
1. Leave granted in all the matters. These matters arise from the common judgment and order dated 31.05.2018 passed by the National Consumer Disputes Redressal Commission, New Delhi (the “National Commission” for short) in First Appeal No.1787 of 2016 titled M/S Ittina Properties Pvt.
Ltd. & Ors. Vs. Vidya Raghupathi & Anr. and all connected matters. Appeals arising from Special Leave Petition (Civil) Nos.6155, 6156, 6157, 6158 and 6615 of 2019 are at the instance of M/s Ittina Properties Pvt. Ltd. (“the respondent” for short) while other Appeals arising from Special Leave Petition (C) Nos.29568, 29569, 29570 of 2018, 586 and 673 of 2019 are at the instance of original complainants (“the complainants” for short).
2. Heard learned counsel for both the sides.
3. The complainants and similarly situated persons had booked their apartments in a project which was to be completed by the respondent. In terms of the agreements which were entered into between the parties sometime in 2006, the complainants had deposited various sums of money 3 and the construction was to be completed within two years.
4. It is the case of the respondent that the location where the project was to come up was not within the Municipal limits of Bangalore and as such the competent authority to consider the grant or issuance of completion and Occupancy Certificates was the Gram Panchayat. We need not go into the facts in greater detail as the facts concerning the present dispute are culled out in paragraphs 4, 5, 17 and 18 of the Judgment of the National Commission which are reproduced hereunder:
4. It was averred that as per Clause 7 of the Sale Agreement, the said Apartments were to be handed over to the Complainants together with all the common amenities namely, Lift, Terrace Area, parking, Health Club, Gym, Open Air Theater, VSAT, Intercom, Sewage, Recycling Plant, Mechanized Car Facility, swimming Pool, Tennis Court, Basket Ball Court, Children Play Area, Recreational Park, Jogging Track etc. It was stated that the work did not start as per schedule but demand for payments were made and on failure to pay the demanded amounts, the Opposite parties imposed 21% interest on the delayed payments. It was promised that the Opposite Parties shall deliver the subject properties within the stipulated time as agreed, failing which the Opposite Parties shall pay to the Complainants interest @21% p.a. for every month’s delay, as mentioned in Clause 8 of the Agreement.
The Complainants averred that they had paid amounts towards car parking and common amenities, including the registration charges. It was pleaded that the total sale consideration of the Apartments was inclusive of all taxes and the same was expressly mentioned in the booking 4 forms. It was stated that the sale deeds were executed in the name of the Complainants on the aforenoted dates, except in Consumer Complaint No.42 of 2011.
5. It was averred that on 30.07.2006, Bangalore Development Authority (BDA) issued a press release cautioning the citizens from purchasing flats or Apartments from the said Opposite Parties as they had violated the sanctioned plans. It was pleaded that even as on the date of the filing of the Complaints, the Apartments were not complete, on account of which, the Complainants suffered loss of rents and mental agony as they had made several personal visits and also communicated vide notices and e-mails. Despite several such requests, there was no response from the Opposite Parties with respect to the completion of the Apartments and all the promised amenities. Hence the Complainants approached the State commission in 2011 seeking the following reliefs:
1. Direct the Opposite Parties jointly and severally to complete the construction by providing all basic and general amenities in accordance with the agreement executed, and hand over the ready to live apartment to the complainant along with occupancy certificate immediately or with the reasonable time as this court may fix of in alternative Ops may be directed to refund ₹17,75,000/- (Rupees seventeen lakh seventy five thousand only) to the Complainant in the interest of justice and equity.
2. Direct the Ops jointly and severally to pay 21% interest as agreed upon on ₹17,75,000/- (Rupees seventeen lakh seventy five thousand only) which is the amount paid by the complainant vide clause 8 of the sale agreement which amounts to ₹17,39,500/- (seventeen lakh thirty nine thousand and five hundred only), for the delay in handing over the apartments to the complainant and direct them to pay the said interest till the date of its due realization.
3. Direct the Ops jointly and severally to pay the agreed Pre EMI and till possession of ₹4,32,651/- (Rupees four lakh thirty two thousand six hundred and fifty only), till date as agreed upon by them in 5 the letter dated 22.02.2008.
4. Direct the Ops to pay an amount of ₹1,00,000/- towards punitive damages to be payable to consumer welfare fund or to the state;
5. Direct the opposite party to reimburse costs of this proceeding including any additional, costs against the Honourable Commission deems fit and proper in the nature and circumstances of the case and in the interest of justice and equity.
17. It is an admitted fact that the sale deeds were executed in the year 2006 and by 2009 the completion certificate was not issued. The Occupancy Certificate was issued only on 25.09.2017 during the pendency of these Appeals before this Commission. Allotting Plots or Apartments before procuring the relevant sanctions and approvals is per se deficiency and in the instant case it is pertinent to note that even the sale deeds were executed much prior to the delivery of possession. It is interesting to note that in the reply notice dated 18.8.2011, the Developer admitted that Painting and Sanitary fixing and some other works were still pending and that possession will be offered thereafter. When the demand for the balance sale consideration was made, the Complainants replied that the payment schedule was as per the stages of construction and that when the possession itself had still not been delivered, the question of payment of any balance amounts did not arise, specifically in the light of Clause 8 of the Agreement, it is the Developer who has to pay the Complainants the penalty interest for the admitted delay.
18. At the cost of repetition, it is observed that the sale deeds were executed way back in the year 2006 whereas the Commissioner’s report clearly records that BDA had sanctioned the plan for construction of additional floors vide a letter dated 22.12.2007; copy of the consent given by Karnataka State Pollution board is dated 12.04.2012 (6 years after the date of execution of sale deed); permission granted by the Deputy Chief Engineer to install lifts in different blocks is dated 11.02.2013 and the completion certificate was issued by the Gram Panchayat in respect of 1024 Apartments on 21.02.2009, which dates evidence that the requisite sanctions and approvals were not in place prior to the offer of possession in the year 2009. It is relevant to note that the Opposite Parties have applied for 6 the Occupancy Certificate only on 05.01.2009 and a reminder was sent in the year 2011 after remaining silent for two long years. Having regard to the fact that BDA itself issued a paper notification on 13.07.2006 cautioning the purchasers that all further constructions of the Opposite Parties was stopped as they had indulged in illegal construction in violation of the sanctioned plans and taking into consideration that the possession was also given only after an inordinate delay of 7 to 9 years and further that Clause 8 of the Agreement stipulates that unless limited by “Force Majeure” causes, the developer shall pay interest @ 21% p. a for every month’s delay to the purchaser, we are of the considered view that the direction of the State commission to pay interest on the amounts deposited by the complainants from the date of delivery till the date of handing over of the Apartments cannot be said to illegal. However, the point that falls for consideration here is whether the State Commission was justified in awarding interest @ 18% p.a. when the Hon’ble Apex Court has decided in a catena of judgments that having regard to the lower Bank rates, in cases of delayed delivery of possession, the purchasers are entitled to interest @ 10% p.a. on the deposited amounts."
5. It must, however, be mentioned that in one of the complaints, the State Commission had appointed a Local Commissioner to visit the site and make a report. Accordingly, the Local Commissioner visited the site and particularly checked one apartment namely E-101 and reported about the status of the entire project. The Report of the Commissioner dated 10.11.2014 indicates that the project was complete in all respects including swimming pool, gymnasium and club facilities etc. It is also a matter of record that the Occupancy Certificate was granted by Bangalore Development 7 Authority on 25.09.2017 whereafter possession to those of the allottees including the complainants who had not taken possession was also delivered.
6. In the complaints initiated at the instance of the complainants, the State Commission found the respondent deficient in rendering of service and inter alia directed that compensation be paid to individual complainants by way of interest at the rate of 18% on amounts deposited by each of those complainants. The matter was carried in appeal by the respondent and the National Commission finally found that the compensation ought to be awarded at the rate of 10 % instead of 18 % as was awarded by the State Commission. It is this order which is presently under challenge by the complainants. The respondents are also in appeal namely in appeals arising from Special Leave Petition (C) Nos.6155/2019, 6156/2019, 6157/2019, 6158/2019 and 6615/2019.
7. The salient features that emerge are: firstly, atleast in 2014 the project was found to be completed in all respects by the Local Commissioner. Secondly, the occupancy certificate 8 was also granted by the authority in question sometime in 2017. It is also a matter of record that each of the complainants has received possession.
8. The learned counsel for the respondent has placed before us a tabular chart which indicates that the compensation in terms of the order passed by the National Commission stands deposited to the credit of each of the complainants and that the amounts indicated in the chart paid by way of compensation are in the region of the original deposits by each of the complainants. Thus, they have received sufficient compensation.
9. Considering the totality of circumstances, in our view, the National Commission was justified in reducing the rate of interest from 18% to 10%.
We, therefore, affirm the view taken by the National Commission and dismiss all these appeals.
No costs.
....................,J.
(UDAY UMESH LALIT) ....................,J.
(DINESH MAHESHWARI)
NEW DELHI
MARCH 12, 2019
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ITEM NO.10 COURT NO.8 SECTION XVII
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No.29568/2018 (Arising out of impugned final judgment and order dated 31-05-2018 in FA No.466/2018 passed by the National Consumers Disputes Redressal Commission, New Delhi) CHANDRA MOHAN K.S. & ANR. Petitioner(s) VERSUS M/S ITTINA PROPERTIES PVT LTD & ORS. Respondent(s) IA No.-146649/2018-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT IA No.-146650/2018-PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS WITH SLP(C) No.29569/2018 (XVII) (FOR ADMISSION and I.R. and IA No.149072/2018-CONDONATION OF DELAY IN FILING and IA No.149074/2018-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT and IA No.149075/2018-PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS) SLP(C) No. 29570/2018 (XVII) (FOR ADMISSION and I.R. and IA No.149023/2018-CONDONATION OF DELAY IN FILING and IA No.149024/2018-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT and IA No.149025/2018-PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS) SLP(C) No. 586/2019 (XVII) (FOR ADMISSION and I.R. and IA No.179879/2018-CONDONATION OF DELAY IN FILING and IA No.179880/2018-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT) SLP(C) No. 673/2019 (XVII) (FOR ADMISSION and I.R. and IA No.181137/2018-CONDONATION OF DELAY IN FILING and IA No.181138/2018-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT) SLP(C) No. 6155/2019 (XVII) (FOR ADMISSION and I.R. and IA No.31002/2019-CONDONATION OF DELAY IN FILING and IA No.31003/2019-CONDONATION OF DELAY IN REFILING and IA No.31004/2019-PERMISSION TO FILE LENGTHY LIST OF DATES) SLP(C) No. 6157/2019 (XVII) (FOR ADMISSION and I.R. and IA No.33451/2019-CONDONATION OF DELAY IN FILING and IA No.33450/2019-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT and IA No.33455/2019-CONDONATION OF DELAY IN 10 REFILING and IA No.33453/2019-PERMISSION TO FILE SYNOPSIS AND LIST OF DATES) SLP(C) No. 6158/2019 (XVII) (FOR ADMISSION and I.R. and IA No.32351/2019-CONDONATION OF DELAY IN FILING and IA No.32354/2019-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT and IA No.32353/2019-CONDONATION OF DELAY IN REFILING and IA No.32355/2019-PERMISSION TO FILE SYNOPSIS AND LIST OF DATES) SLP(C) No. 6156/2019 (XVII) (FOR ADMISSION and I.R. and IA No.33321/2019-CONDONATION OF DELAY IN FILING and IA No.33322/2019-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT and IA No.33325/2019-PERMISSION TO FILE SYNOPSIS AND LIST OF DATES SLP(C) No. 6615/2019 (XVII) (FOR ADMISSION and I.R. and IA No.34677/2019-CONDONATION OF DELAY IN FILING and IA No.34681/2019-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT and IA No.34684/2019-PERMISSION TO FILE LENGTHY LIST OF DATES) Date : 12-03-2019 These matters were called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE UDAY UMESH LALIT HON'BLE MR. JUSTICE DINESH MAHESHWARI For Parties (s) Mr. S.K. Pal, Adv.
Mr. V.K. Sidharthan, Adv.
M/S. Lead Counsel, AOR Mr. Krishna Dev Jagarlamudi, AOR Bhawan Das, Adv.
Mr. Arjun Singh Bhati, AOR UPON hearing the counsel the Court made the following O R D E R The appeals are dismissed in terms of the signed order.
Pending application (s), if any, shall stand disposed of.
(POOJA ARORA) (SUMAN JAIN)
COURT MASTER BRANCH OFFICER
(Signed order is placed on the file)