National Consumer Disputes Redressal
Vikram Jain & Anr. vs M/S. Aaa Estate Pvt. Ltd. on 7 November, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1394 OF 2015 1. VIKRAM JAIN & ANR. IRANI BUILDING, 128 BAZAR ROAD, 1ST FLOOR, BANDRA(W) MUMBAI-400050 ...........Complainant(s) Versus 1. M/S. AAA ESTATE PVT. LTD. (THROUGH ITS MD)
RNA CORPORATE PARK,
6TH FLOOR, NEAR COLLECTORS OFFICE, KALANAGAR, BANDRA EAST, MUMBAI-400051 ...........Opp.Party(s) CONSUMER CASE NO. 1395 OF 2015 1. ABHISHEK MISHRA C-106, C.V., 1ST FLOOR, MONTANA CO. HOUSING SOCIETY, SECOND CROSS ROAD,LOKHANDWALA MARKET, ANDHERI(W)MUMBAI-400053 ...........Complainant(s) Versus 1. M/S. AAA ESTATE PVT. LTD. (THROUGH ITS DIRECTOR)
RNA CORPORATE PARK,
6TH FLOOR, NEAR COLLECTORS OFFICE, KALANAGAR, BANDRA EAST, MUMBAI-400051 ...........Opp.Party(s) CONSUMER CASE NO. 1396 OF 2015 1. ELSA MENSEZES 17C, RICH VIEW TERRACE,26, SQUARE STREET, SHEUNG WAN, HONG KONG. ...........Complainant(s) Versus 1. M/S. AAA ESTATE PVT. LTD. (THROUGH ITS MD)
RNA CORPORATE PARK,
6TH FLOOR, NEAR COLLECTORS OFFICE, KALANAGAR, BANDRA EAST, MUMBAI-400051 ...........Opp.Party(s) CONSUMER CASE NO. 1397 OF 2015 1. ASHUTOSH JAVALKAR & ANR. 61, AKANKSHA BUILDING ANAND NAGAR, SANTACRUZ EAST, MUMBAI-400055 ...........Complainant(s) Versus 1. M/S. AAA ESTATE PVT. LTD. (THROUGH ITS MD)
RNA CORPORATE PARK,
6TH FLOOR, NEAR COLLECTORS OFFICE, KALANAGAR, BANDRA EAST, MUMBAI-400051 ...........Opp.Party(s) CONSUMER CASE NO. 1398 OF 2015 1. PRERNA MAVINKURVE & ANR. 401, SHANTINIKETAN, SV ROAD KHRAR(W), MUMBAI-400052 ...........Complainant(s) Versus 1. M/S. AAA ESTATE PVT. LTD. (THROUGH ITS MD)
RNA CORPORATE PARK, 6TH FLOOR, NEAR COLLECTORS OFFICE, KALANAGAR, BANDRA EAST, MUMBAI-400 051 ...........Opp.Party(s) CONSUMER CASE NO. 1399 OF 2015 1. JUDE REBELLO & ANR. 102, OSIASUGAN, 1ST FLOOR, KOLAVARI VILLAGE, MUMBAI-400053 ...........Complainant(s) Versus 1. M/S. AAA ESTATE PVT. LTD. (THROUGH ITS MD)
RNA CORPORATE PARK,
6TH FLOOR, NEAR COLLECTORS OFFICE, KALANAGAR, BANDRA EAST, MUMBAI-400051 ...........Opp.Party(s) CONSUMER CASE NO. 1400 OF 2015 1. MANISH DIDWANIA & ANR. FLAT 8, SEA BIRD APARTMENT, NEW KANTWADI ROAD, BANDRA(W) MUMBAI-400050 ...........Complainant(s) Versus 1. M/S. AAA ESTATE PVT. LTD. (THROUGH ITS MD)
RNA CORPORATE PARK,
6TH FLOOR, NEAR COLLECTORS OFFICE, KALANAGAR, BANDRA EAST, MUMBAI-400051 ...........Opp.Party(s) CONSUMER CASE NO. 1401 OF 2015 1. RELU UDHARAM & ANR. A202, JAI APARTMENTS, NEHRU ROAD, SANTA CRUZ(E), MUMBAI-400050 ...........Complainant(s) Versus 1. M/S. AAA ESTATE PVT. LTD. (THROUGH ITS MD)
RNA CORPORATE PARK,
6TH FLOOR, NEAR COLLECTORS OFFICE, KALANAGAR, BANDRA EAST, MUMBAI-400051 ...........Opp.Party(s) CONSUMER CASE NO. 1402 OF 2015 1. HASSANANAD DAYARAM LALWANI 301, AMARDEEP N.S. ROAD NUMBER 3 PLOT NO.39,J.V.P.D SCHEME, VILLE PARLE(W), MUMBAI-400056 ...........Complainant(s) Versus 1. M/S. AAA ESTATE PVT. LTD. (THROUGH ITS MD)
RNA CORPORATE PARK,
6TH FLOOR, NEAR COLLECTORS OFFICE, KALANAGAR, BANDRA EAST, MUMBAI-400051 ...........Opp.Party(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Complainant : Mr. Sushil Kaushik, Advocate with
Ms. Himashi Singh, Advocate For the Opp.Party : Mr. S.B. Prabhavalkar, Advocate
Dated : 07 Nov 2017 ORDER
These 9 (Nine) consumer complaints have been filed by different purchasers of flats in the project of the OP. The main grievance of the complainants is that the possession has not been handed over by the OP and the same was due by the end of December, 2012. In a typical complaint e.g. CC No.1394 of 2015, the following prayers have been made:
Direct the opposite party to handover the possession ofthe aforesaid apartment complete in all respects to the complainant immediately as per the Buyer's Agreement and execute allthe necessary and required documents in respect of the said apartment in favour of the complainant or in alternative pay a sum of Rs.2,58,00,000/- (Rupees two crore fifty eight lakhs only), being the available market rate of a similar house @ Rs.20,000/- per sq. ftthe apartment being of the size 1290 sq. ft . (saleable area) to enable the complainant to purchase another house on theirown.
Direct the opposite party to pay compensation in form of interest calculated @ 12% per annum from the committed date of possession (December, 2012) till the actual possession is handed over by the opposite party to the complainant on the entire sum paid by the complainant to the opposite party towards the house.
Grant immunity to the complainants from payment of any charges incurred due to anyescalation in cost including enhanced service tax.
Direct the opposite party to pay a sum of Rs.50,000/- (Rupees fifty thousand only) to the complainant towards the cost of litigation.
2. Similar prayers have been made in all the complaints and identical prayer in CC No.1395, 1396, 1397, 1398, 1399, 1400, 1401 and 1402 of 2015.
3. The complaints have been resisted by the OP by filing written statement. It has been claimed by the OP that due to death of one of the Directors of the company, the delay has occurred and the construction is progressing and possession will be delivered as soon as the flats are ready. The rejoinder was filed by the complainants and both sides led the evidence by filing affidavits.
4. After completion of pleadings, the arguments of both the parties were heard.
5. The learned counsel for the complainants stated that in the Builder-Buyer Agreement, the clause relating to possession does not specify the date but it is mentioned that if the possession is not delivered even by the due date, then the refund of the total amount paid shall be made by the OP to the complainant with simple interest @ 9% p.a. The learned counsel for the complainants further stated that as per the payment schedule, the total payment has been made by the complainants. When the complainants applied for the booking of these flats, the same was done against the advertisement floated by the OP which started from May, 2011. In the typical complaint no.1394/2015 all the payments were made by July, 2012 as per the payment schedule. At the time of advertisement, it was claimed by the OP that the sample flat was ready and from advertisement it looked as if the project is going to be completed very soon and the possession would be given by December, 2012. The learned counsel stated that the complainants sent e-mail in Aug-Sept 2013 to the OP but no proper response was provided. The complainants are seeking possession of flats complete in all respects. The learned counsel further stated that the complainants are entitled for compensation on account of delay in handing over possession. In this regard, the learned counsel referred to the judgment of Satish Pandey and another Vs. Unitech Ltd. ( CC No. 427 of 2014) pointing out at the following portion of the judgment:
"10. In K.A. NagmaniVs. Housing Commissioner, Karnataka Housing Board, CA No.6730-6731 of 2012 decided on 19-09-2012, the complainant who was awarded interest by this Commission at the rate of 12% per annum on the refund amount, felt aggrieved and approached the Hon'ble Supreme Court for grant of a higher interest. Despite the respondent in the above referred matter being a statutory body unlike the opposite party which is a private builder, the Hon'ble Supreme Court, relying upon its earlier decision in Ghaziabad Development Authority Vs. Balbir Singh (supra) and noticing that the complainant was suffering a loss inasmuch as she had deposited the money in the hope of getting a flat but was being deprived to get the flat and thereby deprived of the benefit of escalation of the price of the flat held, that the compensation would necessarily be higher. The Hon'ble Supreme Court, therefore, granted interest to the complainant at the rate of 18% per annum from the date of deposit till the date of realization along with further compensation quantified at Rs.15,000/- for deficiency in service and Rs.20,000/- towards the cost of litigation."
6. In the above referred case, this Commission finally ordered handing over of possession alongwith the compensation in the form of simple interest @ 12% per annum after 36 months from the date of agreement till actual possession. The learned counsel for the complainants stated that the complainants also want 12% interest on their deposited amounts as compensation for delay in possession.
7. On the other hand, learned counsel for the OP stated that first of all, the Builder Buyer Agreement has been signed only with the complainants in CC Nos.1394, 1395, 1396, 1397, 1398, 1399, 1400, of 2015 and there is no Builder Buyer Agreement in CC No.1401 and 1402 of 2015. Learned counsel further emphasized that all the complainants in their complaints have pleaded that the possession was due in December, 2012. There is no such document which shows that possession was due in December, 2012. It is correct that no due date of possession has been mentioned in the agreements. In Consumer Complaint No.1398/2015,CCNo.1399/2015 and CC No.1400/2015, the dates of agreement are 19.1.2013, 22.4.2013 and 26.7.2013 respectively. Thus, the due date of possession cannot be prior to the dates of signing of the agreements at least in these cases. The learned counsel stated that the complainants have filed the stereo typed complaints stating the December, 2012 as the due date of possession and it is clear that the complainants are not coming with clean hands. For the remaining two complaints no. CC Nos1401 and 1402 of 2015, learned counsel stated that in these two complaints, no builder buyer agreement has been signed and only allotment has been done. These complainants are not consumers as held by the Hon'ble Supreme Court in Hansa V. Gandhi Vs. Dep Shankar Roy and others, Civil Appeal No.4509 of 2007 decided on 18.4.2013.
8. The learned counsel further mentions that the construction work is in progress and the delay has occurred due to death of one of the directors of the company. The completion of the project is expected by December, 2018 and the company would be in a position to handover the flats to the complainants by December, 2018.
9. I have given a thoughtful consideration to the arguments advanced by the learned counsel for both parties and have examined the material on record. There is no document to show that the possession of the flats was due by the end of December, 2012. In CC NO.1401 and 1402 of 2015, no Builder Buyer Agreement has been signed and only the allotment letters are issued. It is seen that in all the complaints, sizeable amount of the consideration money has already been paid to the OP. The OP has also admitted in the year 2013 in his e-mail reply that there has been delay in the project. As per the provisions of MOFA, the developers/builders are required to clearly indicate the due date of possession in the builder buyer agreement. In the complaints, where builder buyer agreement is signed, no such date has been given in the agreements. The concerned clause of the agreement reads as under:
"The possession of the said premises shall be given by the AAEPL to the purchaser on or before _____subject to the availability of cement steel water and other building materials and subject to strikes, civil commotion or any act of God such as earthquake, flood or any other natural calamity and acts or other causes beyond the control of the AAEPL. If the AAEPL fail to give possession of the said premises on the aforesaid date and/or such further date as may be mutually extended then it shall be at the opt ion of the Purchaser to terminate this Agreement in which event the AAEPL shall forthwith on demand refund to the Purchaser every amount paid by the Purchaser to the AAEPL, with simple interest at 9 (nine) percent per annum from the date Developers has received the sums till the date of amounts and interest thereon is refunded. The purchasers shall not be entitled to any damages whatsoever."
10. It is also not mentioned in the agreement that how much time it will take for completion of the construction work. Clearly, the OP is deficient in this respect that no completion period or due date of possession is mentioned in the agreement. In most of the builder buyer agreements, completion period generally ranges from 24 months to 48 months. Even in the judgment relied upon by the complainants, viz. Satish Pandey and another (supra) interest has been given after 36 months from the date of signing of the agreements. It is seen from e-mail dated 23.8.2013 sent by Vikas Sharma (Executive-Sales Administration) to the complainant in CC No.1394 of 2015 that tentative possession for RNA Grandeur will take 5 -6 months. Thus, it transpires that the tentative date for possession would be Feb., 2014. It seems that the possession would have been due earlier to this date and that is why the OP had written e-mail mentioning further delay in the matter. However, as no due date for possession is mentioned either in the advertisement or in the agreement, I deem it appropriate to allow 30 months period from the date of signing of the agreement for possession of the flat.
11. This Commission in CC-2/2016 allowed 8% p.a. interest on the deposited amount for delay in possession from the due date of possession. As the interest rates are being lowered by the RBI, it is seen that the trend in the orders of this Commission has been a downward trend so far as the rate of interest for late possession or on refund is concerned. In the present interest scenario, in my view, interest @ 7.5% per annum shall be reasonable and sufficient to compensate for the delay in possession. So far as the Complaint nos.1401 and 1402 of 2015 are concerned, wherein there is no builder buyer agreement signed by the parties and only allotment letters are there, I am of the opinion that if even after taking huge amount of the consideration, the builder buyer agreement is not signed, this also speaks of the deficiency on the part of the builder. Even in the case referred to by the learned counsel for the OP which is Hansa V. Gandhi (supra), the Supreme Court has agreed with the order of the High Court for refund of the amount with interest. Even the Hon'ble Supreme Court has increased the rate of interest for such refund. This judgment has not been passed under the Consumer Protection Act, 1986, rather it is related to suits filed for specific performance. Thus, this judgment is not applicable in the present case. In these two complaint cases, period of one year may be kept for signing of the builder buyer agreement and therefore, the due date of possession would fall after 42 months from the date of allotment.
12. Based on the above discussion, these complaints are decided in terms of the followings order:
ORDER
The OP shall handover the possession of the respective flats to the complainants by the end of December2018.
The OP shall also be liable to pay interest @ 7.5% p.a. for delayed possession from the due date of possession which would be treated to be the date after 30 months from the date of builder buyer agreement in CC Nos.1394, 1395, 1396, 1397, 1398, 1399 and 1400 of 2015till the date of actual possession.In CC Nos.1401 and 1402 of 2015, the OP shall be liable to pay interest @ 7.5% p.a. for delayed possession from the due date of possession which would be treated to be the date after 42 months from the date of allotment letter issued to the complainant till the date of actual possession.
As the possession has already been delayed to the complainants, the complainants will also be at liberty to get their refund of the deposited amounts as per the relevant clause of the agreement. However, if the possession is not delivered by December, 2018, the complainants would be at liberty to seek refund from the OP and OP shall refund total deposited amount to the complainant alongwith interest @ 12% p.a. from the date of deposit till actual payment.
...................... PREM NARAIN PRESIDING MEMBER