National Consumer Disputes Redressal
Manohar Prathap Singh vs Ozone Projects Private Limited on 31 March, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 75 OF 2017 1. MANOHAR PRATHAP SINGH S/o. H. Prathap Singh, No. 1C, Ceebros Hariharan, 158/307, Lloyd Road, Royapettah Chennai- 600 014. ...........Complainant(s) Versus 1. OZONE PROJECTS PRIVATE LIMITED Rep. By its Managing Director, New No. 63, Old No. 32, G. N. Chetty Road, T. Nagar, Chennai - 600 0173. ...........Opp.Party(s)
BEFORE: HON'BLE DR. INDER JIT SINGH,PRESIDING MEMBER
For the Complainant : Mr. Vrishank Singhania, Proxy Counsel For the Opp.Party : Appearance not marked
Dated : 31 Mar 2023 ORDER
The present Consumer Complaint (CC) has been filed by the Complainant against Opposite Party as detailed above, inter alia praying for directions to the OP to:-
Grant Interest @18% p.a. to complainant qua his principal amount to the tune amounting to Rs. 56,45,558/-;
Grant an excess amount of Rs. 4,50,553/- which was illegally collected by OP;
Grant Rs. 24,00,000/- rent compensation to complainant the term agreed by OP in construction agreement;
Grant Rs. 15,00,000/- to complainant towards mental torture, harassment and gross deficiency in service rendered by OP;
Grant Rs. 4,61,869/- compensation for loss of income tax benefit to complainant from year 2013 to 2017;
Deposit an amount of Rs. 5,00,000/- in National Commission to be utilized for welfare schemes meant for Bona-fide consumers;
Grant cost of Rs. 1,00,000/- towards litigation expenses incurred by complainant.
Notice was issued to the OP. Parties filed Written Statement/Reply, Rejoinder, Evidence by way of an Affidavit and Written Arguments/Synopsis etc. as per details given in the Table at Annexure-A. The details of the flats allotted to the Complainant /other relevant details, based on pleadings of the parties and other records of the case are also given in the Table at Annexure-A.
It is averred/stated in the Complaint that:
That the complainant booked a flat in the residential Project launched by the Opposite Parties in the name of "METROZONE", situated in Koyembedu village, Egmore Nungambakkam Taluk, Chennai and was allotted flat No. J- 1103 with a Super Area 1555 sq.ft. Sale agreement dated 31.07.2010 was entered between the parties. The total consideration for the flat was Rs. 1,03,85,846/- , the complainants paid Rs.1,11,99,929/-. Complainant got a loan of Rs. 80 lakhs sanctioned from LIC and the payment was directly released to OP. The complainant had also booked one additional car parking for a sum of Rs. 4 lakhs. The OPs were liable to handover the possession of the unit by May 2013 with a grace period of 3 months.
(ii) The complainant got the possession of the unit on 11.11.2016. As per the terms of agreement, OP is liable to pay interest @18% per annum to the complainant for the delay caused by them.
The OP in their written statement/reply stated that:
The complainant is supressing the facts of the case that the Hon'ble High Court passed an order by which the complainant was directed to pay the balance consideration of Rs. 9 lakhs and OP was required to execute the sale deed upon receipt of that money. OP executed the sale deed and delivered possession of property to the complainant.
The project got delayed due to reasons beyond the control of OP. Due to short supply of construction materials, restrictions imposed by State Govt. on other state labourers, excessive rain, OP could not complete the project within 3 years as approved by CMDA. To renew the planning permission, OP had to approach CMDA seeking renewal. Hence, considerable time was lost in obtaining approvals.
Many of its consumers including complainant did not make milestone payments which had a cascading effect on cash flow and implementation of project. The compensation claimed by the complainant are untenable, excessive and imaginary.
Complainant in his rejoinder has stated that-:
He has filed a suit before the Hon'ble Madras High Court seeking direction to restrain the OP from advertising for sale and marketing or to enter into any agreement for sale of flats, in its new projects 'The Pinnacle' and 'The Gardenia'. In the said proceedings, OP filed an affidavit that complainants apartment in 'The Metrozone' project is ready for handover subject to pending payment due. Therefore the Hon'ble High Court directed the complainant to take possession by paying the due amount. Since the proceedings in Madras High Court being irrelevant to proceedings herein, which seeks compensation under Consumer Protection Act for losses suffered, the Complainant had not provided the details in the complaint.
As regarding alleged default in payment as per agreement, Complainant was to make payments with respect to construction milestones achieved by the OP, but OP without achieving the stages of construction as mentioned in the schedule, misrepresented the stages and raised demand. Admittedly the late payment has already been accepted by OP and OP has levied interest on such delayed payments.
Regarding grounds of Force Majeure leading to delay, the Complainant stated the flooding due to unprecedented rainfall in Chennai happened in December 2015 only while OP ought to have delivered the flat in the month of February 2013 itself.
Heard counsels. Contentions/pleas of the parties, on various issues raised in the Complaint, based on their Complaint/Reply, Rejoinder, Evidence, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
As per agreement for sale dated 31.07.2010, the committed date of delivery was February 2013. Clause 7 (a) of the agreement provides for a grace period of 3 months. Hence, committed date of possession was May 2013, which is admitted by the OP. The Possession was delivered on 11.11.2016. Hence, there is a delay of about 41 months. The delay is admitted by the OP, stating that it was due to force majeure reasons/ circumstances beyond his control.
The plea of OP that delay was due to force majeure circumstances is not valid as even after a gap of more than 03 years from the committed date given in the Agreement, possession of flat was not given. There is no documentary evidence to support the contention of the Opposite Parties that the reasons pleaded by them, can be construed as 'Force Majeure. While we agree with OP that complainant should have duly mentioned the fact of his filing of the OA's before the Hon'ble Madras High Court, after considering all the facts, we are of the view that this will not affect his right to various prayers on merits under the present complaint.
It was held by Hon'ble Supreme Court in Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. vs DLF Southern Homes Pvt. Ltd. & Ors. (2020) 16 SCC 512, "failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within the contractually stipulated period, amount to deficiency". In Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra- (2020) 18 SCC 613, Hon'ble Supreme Court observed that "A buyer can be expected to wait for possession for a reasonable period." In the instant case, there is delay of more than 3 years in handing over the possession of flat by the OP. The complainant cannot be made to wait for an indefinite time and suffer financially. Hence, the complainant in the present circumstances have a legitimate right to claim fair delay compensation/interest from the OP.
For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, the Consumer Complaint is allowed/disposed off with the following directions/reliefs: -
(i) The OP shall pay delay compensation in the form of simple interest @ 6% per annum on the amount paid by the complainants from the committed date of possession viz May 2013 till the date of possession viz 11.11.2016.
(ii) The OP shall pay a sum of Rs.25,000/- as cost of litigation to the complainants.
(iii) The payment in terms of this order shall be paid within three months from today.
The pending IAs, in the Consumer Complaint, if any, also stand disposed off.
Annexure-A
Details of the Unit and other related details
Sr No
Particulars
1
Project Name/Location etc.
"The Metrozone" in Koyembedu village, Egmore Nangambakkam Taluk, Chennai
2
Apartment no.
J-1103
3
Size (Built up/Covered/Super Area)
1555 sq. ft.
4
Date of application
07.07.2010
5
Date of signing Sale and Construction Agreement
31.07.2010
6
Committed date of possession as per Agreement (with Grace period of 3 months)
May 2013
7
D/o Obtaining partial Completion Certificate by the OP
28.01.2016
8
D/o Offering Possession
May 2016
9
Actual D/o Physical Possession
11.11.2016
10
D/o Signing Conveyance deed/sublease deed
28.10.2016
11
Total Consideration as per agreement
Rs. 1,03,85,846/-
12
Amount Paid
Rs. 1,11,99,929/-
13
D/o Filing CC in NCDRC
10.01.2017
14
D/o Issue of Notice to OP 03.03.2017 15 D/o Filing Reply/Written Statement by OP 11.05.2017 16 D/o filing Rejoinder by the Complainant 10.11.2017 17 D/o Filing Evidence by way of Affidavit by the Complainant 06.12.2018 18 D/o Filing Evidence by way of Affidavit by the OP Not filed 19 D/o filing Written Synopsis by the Complainant 18.01.2023 20 D/o filing Written Synopsis by the OP Not filed ...................... DR. INDER JIT SINGH PRESIDING MEMBER