National Consumer Disputes Redressal
Dilawar Nansey vs Kapildeo Prasad Ambastha on 18 November, 2025
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
FIRST APPEAL NO. NC/FA/376/2019
(Against the Order dated 21st December 2018 in Complaint 601/2015 of the State Consumer
Disputes Redressal Commission Maharashtra)
DILAWAR NANSEY
PRESENT ADDRESS - CHAIRMAN AND MANAGING DIRECTOR, ROYAL PALMS (INDIA ) PVT
LTD, SURVEY NO 169, NEAR UNIT NO 26, AAREY MILK COLONY GOREGAON (E) , MUMBAI
400 065
.......Appellant(s)
Versus
KAPILDEO PRASAD AMBASTHA
PRESENT ADDRESS - B-1703, CENTRIO, P L LOKHANDE MARG, GAUTAM NAGAR,
GOVANDI, , MUMBAI 400043 , MAHARASHTRA ,
.......Respondent(s)
BEFORE:
HON'BLE MR. JUSTICE SUDIP AHLUWALIA , PRESIDING MEMBER
HON'BLE DR. SADHNA SHANKER , MEMBER
FOR THE APPELLANT:
MR. ANAND PRAKASH, ADVOCATE (THROUGH VC)
FOR THE RESPONDENT:
IN PERSON (THROUGH VC)
DATED: 18/11/2025
ORDER
JUSTICE SUDIP AHLUWALIA, MEMBER This Appeal has been filed against the impugned Order dated 21.12.2018 in Consumer Complaint No. 601 of 2015, passed by the State Consumer Disputes Redressal Commission, Maharashtra vide which, the Complaint filed by the Respondent/Opposite Party was partly allowed with the following directions -
"(14) In view of answer to point nos.(i) to (vii) complaint deserves to be partly allowed. Hence, we pass the following order:
ORDER
(i) Complaint is partly allowed with costs quantified at Rs.25,000/- (Rupees Twenty Five Thousand only) payable by the opponent to the complainant.
(ii) Opponent is directed to pay to the complainant Rs.5,000/- (Rupees Five Thousand only) per month from the date of filing of the complaint i.e. from August, 2015 till the date of obtaining occupancy certificate.
(iii) Opponent is directed to pay to the complainant interest on amount of Rs.42,51,000/- @9% per annum from 1st July, 2012 till 8th May, 2015 for delayed possession of flat.
(iv) Opponent is directed to pay to the complainant Rs.1,00,000/- (Rupees One Lac only) towards compensation for mental agony suffered by the complainant.
(v) Opponent is directed to pay to the complainant Rs.1,33,424/- (Rupees One Lac Thirty Three Thousand Four Hundred Twenty Four only)
(vi) The opponent shall pay the aforesaid amount to the complainant within two months from the date of this order, failing which the aforesaid amounts shall carry interest @12% per annum."
2. The factual background, in brief, is that the Complainant booked a 2BHK Flat bearing No. 1208 on the 12th Floor in "Diamond Isle III Apartment" constructed by the Opposite Party/Appellant for a total consideration of Rs. 42,51,000/- by paying a booking amount of Rs. 5,00,000/- on 01.08.2010, followed by a further sum of Rs. 2,51,000/- on 31.08.2010. As per the offer, the Flat had a carpet area of 519.36 sq. ft. and a built-up area of 785 sq. ft. However, the Agreement for Sale executed on 08.11.2010 reflected a reduced built-up area of 623.23 sq. ft., affecting maintenance and other charges linked to the built-up area. The Agreement stipulated the possession date as 30.06.2012. The Complainant was sanctioned a housing loan of Rs. 27,40,000/- by SBI on 01.01.2011 and continued to make payments as demanded, totaling Rs. 46,46,283/- by 26.08.2014. This sum included Rs. 1,13,623/- as Service Tax, Rs. 42,510/- as VAT, and Rs. 14,000/- towards legal charges, all outside the scope of the Agreement. Additional payments included stamp duty of Rs. 1,95,150/- and registration fees of Rs. 30,000/-. On 05.07.2014, the Builder intimated the Complainant that the building construction had been completed and sought the final instalment of Rs. 4,36,134/- citing that the Occupation Certificate (OC) had been applied for and would be received within six weeks. Relying on this representation, the Complainant secured disbursement of the said amount from SBI on 26.08.2014.
3. Subsequently, the Builder sought to hand over possession without the Occupation Certificate (OC), demanding an additional Rs. 2,40,240/- through an Advocate's Notice. Under coercion, the Complainant paid the said amount on 18.01.2015, receiving a No-Dues certificate, although the Flat remained incomplete and without an OC. Repeated efforts including RTI enquiries with the BMC failed to yield a satisfactory response or confirm issuance of the OC. Ultimately, on 09.05.2015, the Complainant took possession under compulsion, though the Flat lacked essential utilities like electricity and water. He paid Rs. 2,251/- to clear the Builder's past electricity dues and got the meter transferred in his name. The Builder having abdicated maintenance responsibilities, the Residents' Association imposed additional charges of Rs. 1,963/- per month and a one-time payment of Rs. 4,000/- for bore well installation.
4. As per Agreement, the total payable charges toward maintenance, legal and other heads for 24 months were Rs. 1,06,816/- whereas the Opposite Party collected Rs. 2,40,240/-, leading to an excess payment of Rs. 1,33,424/-. Additionally, the Complainant paid Rs. 8,400/- for Club membership, though the Club remains non-functional, Rs. 2,251/- for electricity dues, and Rs. 4,000/- for borewell, altogether constituting an unjust enrichment for the Opposite Party. The delay in delivery beyond three years from housing loan sanction (i.e., beyond 31.03.2014) caused the Complainant to suffer loss of an amount of Rs. 1,14,041/- by way of income tax relief. The Complainant also apprehends depreciation in market value due to non-issuance of the OC, potentially rendering the Flat an illegal structure. Aggrieved with the deficiency in service on the part of the Opposite Party, the Respondent filed his Complaint before the Ld. State Commission.
5. We have heard the Ld. Counsel for the Appellant and Respondent, and perused the material available on record.
6. Ld. Counsel for Appellant has argued that the impugned Order is legally unsustainable and factually erroneous. It is the Appellant's case that he is an individual and not the service provider per se, and the State Commission failed to appreciate this fundamental distinction. That although he was the Joint Managing Director of M/s. Royal Palms (India) Pvt. Ltd., the Developer Company, all acts complained of were performed in his representative capacity, and therefore, liability cannot be affixed upon him personally in the absence of the Company being impleaded as a necessary party. It is argued that all relevant documents including the Allotment Letter, Consideration Receipts, Possession Letter, and other contractual instruments were issued by the said company, and the Complaint suffers from non-joinder of a necessary and proper party, namely M/s. Royal Palms (India) Pvt. Ltd., which renders the entire proceeding defective and liable to be dismissed. No issue was framed or determined by the State Commission on the maintainability of a Complaint filed against a Director in his individual capacity for acts done on behalf of a Corporate entity.
7. Ld. Counsel for the Appellant has further argued that the delay in issuance of the OC is not attributable to the Developer or himself, but rather to illegal modifications made by various Flat purchasers, including Society members, in contravention of sanctioned municipal plans. Due application for OC had been made in time, and hence, no deficiency in service can be attributed to him. The Complainant had voluntarily accepted possession of the flat unconditionally and continues to reside therein, and therefore cannot claim compensation after having accepted and enjoyed possession. No concrete evidence has been filed by the Complainant to show any actual loss arising from non-issuance of the OC; That clear rationale or any computation basis was given by the State Commission for awarding the compensation. It is submitted that the Complainant, having accepted possession, is estopped from raising grievances or seeking further compensation.
8. Ld. Counsel for the Respondent has argued that the Opposite Party handed over possession of the Flat without obtaining the mandatory OC, in breach of its statutory obligation. The absence of OC renders the structure liable to demolition or legal complications, compromising the legality and value of the Flat. The Complainant was compelled to accept possession under assurances that the OC was under process. Though the State Commission awarded compensation at Rs. 5,000/- per month until the grant of OC, the Complainant has sought enhancement of compensation to a one-time sum of Rs. 20,00,000/- with interest, in view of the continuing statutory violation and loss of security; That the possession was delayed by 2 years, 10 months and 8 days beyond the agreed date of 30.06.2012. During this extended period, the Complainant bore a housing loan interest at 11.75%, and therefore seeks compensation at 12% interest for the delayed period, amounting to Rs. 17,19,828/- as on the date of possession (09.05.2015), with continuing interest till payment; That the delay was deliberate, caused by the Builder's decision to construct and sell five additional floors for commercial profit. The State Commission allowed only 9% interest while the Complainant seeks restoration/enhancement to 12% or more.
9. Ld. Counsel for Respondent has further argued that he was wrongfully charged Rs. 2,40,240/- by the Opposite Party on the pretext of outstanding dues, though the Agreement stipulated a sum of Rs. 1,06,816/- as total charges at possession, resulting in an excess of Rs. 1,33,424/-, which the Opposite Party later admitted as an "accounting error" in paragraph 7 of its Evidence Affidavit dated 06.10.2017. However, the Complainant asserts that he also paid Rs. 1,13,623/- (Service Tax), Rs. 42,510/- (VAT), and Rs. 14,000/- (Legal Charges), all beyond the Agreement terms, and Rs. 8,400/- for Club membership despite the Club being non-functional. Additionally, he cleared Rs. 2,251/- of electricity dues and paid Rs. 14,976/- for maintenance (Rs. 624/month for 24 months) in the absence of services by the Builder. Accordingly, the Complainant is entitled to refund of Rs. 3,29,184/- with 12% interest. The State Commission awarded only Rs. 1,33,424/- based on the Opposite Party's admission.
10. It is an undisputed fact emerging from the record that the Appellant handed over possession of the subject Flat to the Complainant without obtaining the mandatory Occupation Certificate (OC) from the municipal authorities. This fact is not only admitted in the evidence filed by the Appellant himself, but also acknowledged through the documentary record, including RTI replies and communications placed by the Complainant. The contention that the delay in obtaining OC was due to illegal modifications by other Flat owners cannot absolve the Builder of his non-negotiable statutory obligation to secure the OC prior to offering possession.
11. The Hon'ble Supreme Court in a catena of decisions, including "Samruddhi Co-op Housing Society Ltd. v. Mumbai Mahalaxmi Construction Pvt. Ltd., (2022) 4 SCC 103", and "Pioneer Urban Land and Infrastructure Ltd. v. Govindan Raghavan, (2019) 5 SCC 725", has unequivocally held that possession offered without obtaining the OC is illegal, and constitutes a continuing wrong and deficiency in service. In such cases, the homebuyer has the option to either claim refund of the entire consideration amount or seek just compensation for the period during which the possession remains deficient in law. This principle has also been consistently followed by this Commission in several judgments, reiterating the binding nature of municipal and planning regulations, and the consumer's right to secure legal, habitable possession.
12. Moreover, the Appellant's argument that the Complainant is estopped from raising a grievance after taking possession is fallacious and contrary to established legal principles. The Complainant's acceptance of possession, made under compulsion and on false assurances of imminent grant of OC, does not amount to waiver of statutory rights. As held in "Fortune Infrastructure v. Trevor D'Lima, (2018) 5 SCC 442", a homebuyer cannot be compelled to accept an incomplete and illegal possession, and even if taken, such possession does not cure the underlying illegality or bar the Consumer from seeking redressal.
13. The findings of the Ld. State Commission awarding compensation of Rs. 5,000/- per month till grant of OC is both rational and in line with prevailing precedents, and this Commission finds no error or perversity in the computation or rationale adopted. The said amount, in the facts and circumstances of the case, serves as a limited but reasonable recompense for the mental agony, loss of utility, and legal insecurity faced by the Complainant due to the unauthorized and deficient possession.
14. In view of the above analysis and the well-settled legal position that possession without OC is unlawful, this Commission is of the considered view that the impugned Order does not suffer from any legal infirmity or jurisdictional error. The present Appeal is bereft of merit, and no grounds are made out to warrant interference in the well-reasoned and just Order passed by the Ld. State Commission.
15. Accordingly, the present Appeal is dismissed. The impugned Order dated 21.12.2018 in Consumer Complaint No. 601 of 2015 is affirmed. There shall be no order as to costs.
16. Pending application(s), if any, also stand disposed off as having been rendered infructuous.
..................J SUDIP AHLUWALIA PRESIDING MEMBER ..................
DR. SADHNA SHANKER MEMBER