National Consumer Disputes Redressal
Ramesh Kumar vs Mrs. Prasanna Bhandary on 21 February, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3098 OF 2013 WITH (I.A. No. 5428 of 2013 for Stay) (Against order dated 29.05.2013 in First Appeal No. 1063 of 2011 of the State Consumer Disputes Redressal Commission, Karnataka) Ramesh Kumar, S/o Shri Chuddappa Salian Aged about 54 years, Aged about 54 years, Managing Partner, M/s Deepa Construction Company, 1st Floor, Mahendra Arcade, Karangalpady, Mangalore Karnataka-575003. .... Petitioner Versus Mrs. Prasanna Bhandary, W/o Mr. Manjunath Bhandary, Aged about 39 years, R/o Bhandary House, George Martis Road, Kadri, Mangalore, Karnataka-575002. ..... Respondent BEFORE: HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER HONBLE MRS. REKHA GUPTA, MEMBER For the Petitioner : Mr. D.P.Chaturvedi, Advocate Mr. Dasharath T. M, Advocate Pronounced on : 21st February,2014 ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER Being aggrieved by order dated 29.5.2013 passed by Karnataka State Consumer Disputes Redressal Commission, Bangalore (for short, State Commission) Petitioner/Opposite party has filed the present revision petition under Section 21(b) of the Consumer Protection Act, 1986 (for short, Act)
2. Respondent/Complainants case is that petitioner promoted a residential apartment/building under the name and style of MAURISHKA TOWERS in the apartment situated in Kadri A Village of Bendoor Ward of Mangalore City within Mangalore City. Respondent purchased one apartment situated at ground floor numbered as G-01 in the said building along with car parks number G-01 and G-01A on the basement floor with 2.37% undivided rights in the land and also common areas and facilities. It is alleged that at the time of negotiation, petitioner has promised to provide many amenities and facilities in the said apartment.
3. Apart from the above, petitioner has undertaken to use quality materials, construction and workmanship in the said apartment building. On believing the petitioner, respondent agreed to purchase the apartment and entered into a written agreement dated 22.09.2007. As per the terms of the agreement, petitioner had undertaken to convey the apartment to the respondent with a clear marketable title from all encumbrances. Further, petitioner has agreed and undertaken to deliver the apartment on or before 31.03.2009 and to give copy of the completion certificate in respect of the apartment building issued by Mangalore City Corporation. Respondent has been insisting the Petitioner to complete the apartment as per the terms of the agreement but petitioner has not completed the construction of the apartment. Therefore, respondent made delay in payment of the installment amount to the petitioner. It is further alleged that petitioner had issued various letters to repay the installment amount and also threatened the respondent that if the amount is not paid, he will cancel the agreement for sale and forfeit the advance amount and dispose the schedule B apartment to 3rd party.
4. It is further stated that in first week of February, 2009, respondent met petitioner and requested to complete the construction work. Petitioner demanded a sum of Rs.3,00,000/- as the penal interest for the delay payment of the amount and again threatened the respondent that he will cancel the agreement. Thereafter, respondent approached Vijaya Bank, Mangalore and availed a sum of Rs.16,82,500/-as housing loan and paid the aforesaid penal interest of Rs.3,00,000/- to the petitioner and also paid the entire sale consideration of Rs.27,07,500/- and got the sale deed registered on 21.02.2009 in the office of the Sub-Registrar, Mangalore.
5. It is further alleged that inspite of paying the entire sale consideration and penal interest, petitioner has failed to adhere to the various terms of the aforesaid agreement. Petitioner failed to complete the construction of the schedule B apartment and deliver the possession and give the completion certificate.
Petitioner has also not obtained door number to the apartment and not marked the parking area and failed to mark revenue entries in respect of the properties in the name of Association and failed to form an Association and submit the original documents and other connected documents pertaining to the properties to the building owners association. It has also failed to handover the custody of said documents in favour of the association and not furnished necessary guarantee card and documents in respect of material facility provided to the apartment building. Petitioner has also failed to complete the construction of the apartment and handover the possession of the same to the respondent. Hence, he is liable to pay the damages and loss suffered by the respondent to the tune of Rs.25,000/- per month from 31.03.2009 i.e., the date fixed for completion and delivery of the apartment along with interest at the rate of 20% p.a. on the above said amount. Apart from the sale consideration, petitioner also collected a sum of Rs.17,591/- as additional amount from the respondent in the name of service tax, VAT, price escalation and recreation hall etc, the same be refunded along with interest at 20%. Accordingly, respondent filed a complaint under Section 12 of the Act, praying for following directions;
a) Deliver the possession of the apartment and also get the completion certificate and also the door number to the complainants apartment.
b) Provide all the amenities as agreed by him under agreement to apartment of the complainant.
c) Mark the parking area to the apartment of the complainant.
d) Refund the extra amount of Rs.17,591/- along with interest at the rate of 20% p.a. from the date of payment till the date of realization.
e) Pay Rs.5,00,000/-towards loss, damage, inconvenience and mental agony
f) Pay a sum of Rs.25,000/- damages per month from 31.3.2009 till the delivery of the possession of the apartment.
g) Refund a sum of Rs.3,00,000/- interest collected by him.
h) Pay cost of the notice and complaint and such other and further reliefs.
6. Petitioner in its reply has admitted the execution of the written agreement between the parties. Regarding sale consideration or amounts to be paid by the respondent, the same is clearly mentioned in the agreement. Respondent after being fully satisfied with the terms of the agreement has executed the same. As per Clause No.3 and No.13 of the agreement, wherein Clause No.3 makes clear that possession has to be delivered on or before 31.03.2009. However, there is exclusion to the said stipulation to the effect that if there is any delay on account of any valid reason or ground, the Vendor, i.e., the petitioner will not incur any liability for the delays.
Clause No.13 of the agreement makes a stipulation that purchaser has to pay the amounts as per the payment schedule stipulated in the agreement.
7. It is stated, that after introduction of the new N.B.C. rules with the new F.S.I and various other rules changing from time to time, petitioner had to re-design the project and implementing the same as per the new rules of fire and safety and drainage connection, caused the extension of the time for completion of the project. So also, approval from the Electricity Department and Water supply from the Corporation etc. also delayed the matter.
These are the permissions or requirements which are beyond the control of the Petitioner and which took time even though petitioner had completed all the works on its part in the scheduled time.
8. It is further stated, that respondent is a defaulter and had delayed the payments. Being a defaulter, she is not entitled for insisting any of the clauses of the agreement. Respondent had paid Rs.25,000/- as advance booking amount on 22.09.2007. Thereafter, it had not paid many of the installments even though agreement stipulates that the same had to be paid in accordance with the terms of the contract. Petitioner had written several letters to the respondent demanding payment. Inspite of those letters, respondent had not cleared or paid the amount of installments in time. As many as six installments kept in arrears. The installment letters were sent to the respondent after completion of the work of each slab. It is further stated, that respondent who has committed default in payment, has no right to make any claim. Further, respondent paid the major portion of the pending amount on 21.02.2009, only a month before the complaint. Petitioner has already applied to the Mangalore City Corporation for completion certificate and door numbers. As soon as the same are given or delivered, the same will be handed over to the flat owners including the respondent. The association of the flat owners has been formed as per the deed of declaration. The handing over of the matters to the Association will be made after collecting the society deposit and after electing the office bearers and the documents of the property and all other materials will be handed over to the Association. So far as car parks are concerned, the same have already been marked for the relevant apartments. Since, petitioner had collected the interest for the default from the respondent, hence as a counterblast out of vengeance, respondent has come up with all these allegations and false complaint. There is no shortcoming on the part of the petitioner. The application for completion certificate has already been made and all matters related thereto have been complied.
9. Further, the service tax is to be collected by the flat takers and same has been paid to the tax authorities periodically as per the rules. The sum of Rs.17,591/- required to be paid as per the direction of the Service Tax Department, has not been paid by the respondent. However, respondent has assumed that she has paid it and has mistaken it for VAT. The tax whatever has been collected has been paid to the concerned department. If there is any refund by the tax authorities, it will be returned to the respective flat owners. Petitioner has never collected any VAT from any of the parties for any of their projects. The society formation fee of Rs.1,00,000/- is collected at the time of handing over the key but respondent has paid the same in advance. The amount so collected from the apartment owners will be handed over to the Association, once it is formed.
10. It is further stated that out of 38 flats, about 32 flats including flat No.G-01 of the respondent, have gone for additional works like removal of the walls already constructed, re-positioning of the walls, partition of the rooms, shifting of the doors/windows etc. It has been made clear that any such modifications or additional works will cause delay to the respective flats and also the project. The additional works register was duly signed by the respondent regarding wall demolition, re-positioning and window shifting etc. On account of such additional works not only for the apartment of respondent but also for the various other apartments resulted in little extension of time.
These are the matters clearly dealt by the terms of the agreement and there is no deficiency on the part of the Petitioner.
11. It is further stated that delivery of the possession of the apartment will be given immediately. So far as completion certificate and door number is concerned, the same has been applied and awaited. The service tax of Rs.86,262/- has been paid by the party and if the same is reimbursed by the tax authority, the amount will be refunded to the respective flat owners. Respondent is not entitled for any interest on the above said amount. It is denied that petitioner is liable to pay any damages, as there is no such loss or damages or mental agony or inconvenience. The claim made by the respondent is nothing but false and there is no deficiency and prayed for dismissal of the complaint.
12. The Dakshina Kannada District Consumer Disputes Redressal Forum, Mangalore (for short, District Forum)vide order dated 31.1.2011, allowed the complaint.
13. Aggrieved by the order of the District forum, petitioner filed an appeal before the State Commission, which dismissed the same.
14. Hence, this petition.
15. We have heard the learned counsel for the petitioner and gone through the record.
16. It is contended by learned counsel that construction work of the building including the flat of the respondent had been completed as per terms of the agreement between the parties. It was the respondent who had assigned some additional work to be carried out in her flat and only in the process of carrying out the additional works, some negligible delay had occurred. Moreover, respondent had defaulted in payment of the installments, in accordance with terms of the agreement and for the delayed payment, she had to pay the interest.
17. Other contention is, that respondent herself had asked for appointment of Independent Commissioner who in its report dated 22.3.2010, had stated that the construction work was completed by the petitioner. Further, as per evidence on record other flat owners have already taken the possession of their respective flats. But respondent could not get the possession of the flat due to arrears of the installments.
18. Lastly, it is contended that since respondent had sought modification/alternation in her flat and as per terms of the agreement, if any modification was required, then the time-frame or time limit cannot be adhered to.
19. District Forum, while allowing the complaint of respondent held;
On scrutiny of the oral as well as documentary evidence available on record, we find that, admittedly the Complainant purchased the above said apartment from the Opposite Party for a total sale consideration of Rs.27,07,500/- and the Opposite Party entered into a written agreement with the Complainant on 22.09.2007 (as per Ex C1).
As per the said agreement, the Opposite Party has agreed and undertaken to deliver the apartment to the Complainant on or before 31.03.2009. But in the instant case, the Opposite Party failed to deliver the apartment on or before 31.03.2009 and also failed to furnish the completion certificate, door number, mark the parking area, failed to form an Association and also collected extra amount as service tax. The reason stated by the Opposite Party in their version as well as in their affidavit that there is an exclusion clause to the aforesaid stipulation to the effect that if there is any delay on account of any valid reason or ground, the Opposite Party will not incur any liability for the delay. It is stated that, there is no delay, no shortcomings of any nature on the part of the Opposite Party and produced Ex R1 to R34 as stated supra.
However, our attention was drawn towards the agreement for sale of residential apartment dated 22.09.2007 executed by the Opposite Party in favour of the Complainant. The above said document is not disputed by the Opposite Party. In the said agreement at page No.5 in para 3, the Opposite Party undertaken that possession of the apartment shall be delivered by the owner to the purchaser on or before 31.03.2009.
As per the agreement, the Opposite Party has executed the sale deed on 21.02.2009 i.e., Ex C2 also admitted document.
Even in the said sale deed at page No.9 discloses that building under construction. That means, the building was under construction at the time of executing a sale deed. It is seen on record that, the various correspondences as well as the documents produced by the Opposite Party i.e., Ex R1 to R34 reveals that, the Opposite Party not delivered the possession of the apartment on or before 31.03.2009.
However, the Opposite Party has completed the work of the apartment during the pendency of the proceeding of this complaint and he has obtained door number, completion certificate and other amenities like gas system, drainage connection etc. etc. The above said facts have been proved by Opposite Partys document i.e., Ex R21, R22, R23, R24, R26 and R27. But, it is significant to note that, the catena of Landmark Judgments held that, when the possession of the completed flat was not handed over by agreed date, it amounts to deficiency in service of the builder.
It is seen on record that, one of the contention raised by the Opposite Party in this case is that, there was a delay in payment of installment amount for the constructions of the building from the Complainant. But we have noticed that, the Opposite Party has received the entire sale consideration under the registered sale deed dated 21.02.2009 along with penal interest of Rs.3,00,000/- for the delay payment made by the Complainant i.e., before 31.03.2009 which is the date agreed for delivery of the apartment to the Complainant. When the Opposite Party executed a sale deed by receiving entire sale consideration along with penal interest, it is the bounden duty of the Opposite Party/builder to deliver the apartment to the Complainant/purchasers as agreed date. The Opposite Party cannot contend that, the time stipulation in the agreement is not binding upon him. It is well settled that, the document entered between the parties is determinative, the nature and true purpose of a document has to be determined with reference to the terms of the document, which express the intention of the parties. Similarly, in the instant case, as per the agreement, it is the bounden duty of the Opposite Party/builder to deliver the possession of the apartment to the Complainant/ purchasers as agreed date. Since the Opposite Party received a penal interest that also Rs.3,00,000/- for the delay payment made by the Complainant, the Opposite Party cannot take shelter under the default clause. Further it is pertinent to note here that, the Complainant not paid the amount after the agreed date but it was paid before the agreed date i.e.,31.03.2009 that too with penal interest as stated supra. The Opposite Party despite of receiving the penal interest of Rs.3,00,000/-apart from the sale consideration not delivered the possession on the said date. Hence, the above defense raised by the Opposite Party cannot be considered in this case.
The another contention of the Opposite Party is that, after introduction of the new NBC rules with the new FSI and various other rules changing from time to time, the Opposite Party had to re-design the project and implementing the same as per the new rules of fire and safety and drainage connection caused the extension time for the completion project. But failed to produce any cogent/material evidence before this authority to show that he has constructed the building in time, there was a dearth of steel, cement etc, the delay is on account of non-availability of electricity and Corporation water supply or on account of change of NBC rule etc. etc and also failed to show that he applied the same in time. The Opposite Party at least should have intimated to the Complainant by issuing a written intimation for the delay. No such attempt has been made by the Opposite Party in this case. If there is a delay with valid reasons, the Opposite Party should have intimated to the Complainant in writing, and then definitely, we should have appreciated the Opposite Party in this case. In the absence of any written notice/ intimation to the Complainant, the Opposite Party cannot take shelter under the exclusion clause by stating that with valid reason the possession was delayed. If at all there is a delay on the part of the Opposite Party, then he should not have received the penal interest from the Complainant. The agreement is reciprocal. When the Opposite Party expects penal interest from the purchasers/Complainant for the delay payment, at the same time the purchasers/ Complainant too expects their apartment should be completed on the agreed date.
Further, we observed that, as per the agreement, the builder is required to construct the apartment in accordance with the sanctioned plan and specification and the terms in the agreement and deliver the same to the purchaser/Complainant. The construction is part of a building which in Law requires a completion certificate and other required documents; the builder is bound to provide the same. He is also bound to provide amenities and facilities like water, electricity and drainage in terms of the agreement. In case, the above permissions are not issued/granted by the concerned department, the builder may not complied the requirements in accordance with law. It is the duty of the builder to rectify or comply the requirements and secure the documents/ permissions in time. The builder cannot say that, he has constructed the apartment and therefore his obligations are over. Builder cannot contend that, he is not bound to obtain/ produce the documents or he cannot say that, he is not concerned and he applied for the same. There is a obligation on the part of the builder to secure a sanctioned plans in accordance with the rules and construct a building, carries with it an implied obligation to comply with the requirements of municipal/corporation and building Laws and secure the mandatory permissions/certificates.It is known fact that, the completion certificate will not be issued if the building constructed is contrary to the Bye Laws and sanctioned plan or if the deviations are beyond the permissible compoundable limits or contraventions of any law time being in force. But in the instant case, the Opposite Party obtained the completion certificate on 24.04.2010. Since the apartment was not completed the documents were not issued by the concerned department. But in the instant case, the Opposite Party not placed a record before this authority to show that when he has come to the knowledge of the new rules and when he has applied for the same, whether it was in time etc. etc. not forthcoming in this case. It is seen that, the Opposite Party received the entire sale consideration at the time of registration of sale deed itself and also collected penal interest. Hence, it is the bounden duty of the Opposite Party to deliver the apartment as agreed date.
If at all the completion certificate or any other sanctions not issued, the builder owes a duty to make necessary application and obtain it in time. If it is wrongly withheld, he may have to approach the appropriate Court or other Forum to secure it. If it is justifiable withheld or refused necessarily the builder will have to do whatever required to be done to bring the building in consonance with the new rules/sanctioned plan so that, the concerned authorities can issue the necessary sanctions.If the builder failed to do so in time, he will be liable to compensate the purchasers /Complainant for loss/damage. Hence it is the bounden duty of the Opposite Party to deliver the apartment as agreed date atleast within the reasonable time.However, the Opposite Party failed to prove that because of the valid reasons the delivery of the apartment was not given and he is not liable to compensate the Complainant.It at all there is a delay for valid reasons, the Opposite Party is bound to intimate to the Complainant in order to avoid the damages. But in the instant case, no such attempt was made by the Opposite Party. However, the Opposite Party examined two witnesses i.e., RW2 and RW3. Their oral statement has no weight because when there is documentary evidence available on record, the oral evidence has no weight.
We further observed that, on 01.06.2010 i.e., during the pendency of the proceedings the Opposite Party has informed the Complainant that, he has completed the work of the apartment and ready for occupation as per Ex R20 i.e., the reminder letter issued by the Opposite Party to the Complainant. But in the said document nowhere shows that the date of complete construction of the building.
Apart from the above, the Complainant took an expert opinion by appointing a Commissioner in order to show that the possession of the apartment was not handed over to the Complainant. The one Civil Engineer Sri.H.M. Mahendra, Department of Civil Engineering, Karnataka Government Polytechnic Mangalore appointed as an expert Commissioner and submitted his report dated 22.03.2010 i.e., Ex C11,the Commissioner stated that the apartment is in the possession of the Opposite Party. That means, even as on 11.03.2010 i.e., the date of inspection of the commissioner the apartment was in the possession of the Opposite Party and it was under construction.
Further, the Opposite Party took another contention that, because of the additional works sought by the Complainant like removal of the walls, repossession of the walls, partition of the rooms, shifting of the doors/windows etc. also resulted in little extension of time and produced register maintained by them i.e., Ex R32 and R33. Even if there is an additional works sought by the Complainant, the Opposite Party should have taken one or two months not a year. In the instant case, the Opposite Party suppose to deliver the possession of the apartment on or before 31.03.2009. It is seen that, during the pendency of the complaint, the Opposite Party issued a letter i.e., Ex R20 dated 01.06.2010 informed the Complainant that, he has completed the work of the apartment. By considering the above said letter, there is a considerable delay of 14 months. Let us consider two months for additional work, even though there is a considerable delay of one year in this case which caused damage to the Complainant.
As far as additional amount collected by the Opposite Party is concerned, the Complainant sworn to the fact that, the Opposite Party has collected a sum of Rs.17,591/- as additional amount. The above aspect has been confirmed by the letter dated 07.08.2008 i.e., Ex R2 issued by the Opposite Party. As per the said letter the Complainant is not liable to pay the above said tax under law. The notice has been issued to the Opposite Party by the concerned authority. When that being the case, the Opposite Party should pay to the concerned authority and not by the Complainant. But the Opposite Party burdened that liability on the Complainant and collected the amount. Further, it is clear from the letter that, the Opposite Party decided to contest in the court of law and he will refund the same after his position is justified. That itself shows that, the amount collected by the Opposite Party i.e., a sum of Rs.17,591/- as additional amount is not correct and the same shall be refunded to the Complainant, the Assistant Commissioner of Central Excise Service Tax issued a circular by claiming service tax from the Opposite Party. But as per the circular dated 01.08.2006, in a case where the builder, promoter or developer builds a residential complex, having more than 12 residential units, by engaging a contractor for construction of such residential complex, the contractor shall be liable to pay service tax on the gross amount charged for the construction services provided, to the builder/ promoter/developer under construction of complex service falling under section 65(105)(zzzh) of the Finance Act, 1994. If no other person is engaged for construction work and the builder/ promoter/ developer undertakes construction works on his own without engaging the service of any other person, then in such cases in the absence of service provider and service recipient relationship, the question of providing taxable service to any person by any other person does not arise. In view of the above, the Complainant is not liable to pay service tax to the Opposite Party.
Further the Complainant sworn to the fact that, the Opposite Party has received in advance a sum of Rs.1,00,000/- in the name of formation of Apartment Owners Association before the completion of the building. As per the agreement i.e., Ex C2 the purchaser shall deposit with the vendor a sum of Rs.1.00 lakh towards the management and maintenance of the common facilities services. This deposit shall not carry any interest and shall remain with the vendor until the formation of the Association of apartment owners and thereafter shall be passed on by the vendor to the said Association. But in the instant case, before the completion of the apartment the Opposite Party received the advance for a sum of Rs.1.00 lakh which amounts to deficiency. However, the apartment is ready for delivery, the refunding of the above amount will not arise and the same shall be handed over to the Owners Association immediately and at the same time, the Opposite Party shall call for the Owners Association. Further marking of car parking is concerned, Commissioner reported that car parking was already marked hence this point does not arise for consideration.
In view of the above discussion, we conclude that, if there is a breach by the builder of his obligation, purchaser has the right to claim damages by appearing before this authority under the C.P. Act for relief as a consumer, against the builder as a service provider. The builder/Opposite Party is duty bound to complete the construction and deliver the actual possession of the apartment on the agreed date and also duty bound to obtain and furnish the completion certificates and other required documents which is the part and parcel of the building which in law requires the same and also refund the money collected arbitrarily. But in the instant case, it is proved beyond doubt that, the Opposite Party not delivered the actual possession of the apartment on or before 31.03.2009 or within reasonable time. There is a inordinate delay of one year and also failed to deliver the completion certificate, door number and other amenities and facilities as agreed by him within the stipulated time. Further collected Rs.17,591/- as additional amount without any justification which amounts to deficiency in service and unfair trade practice.
As far as the relief of damage is concerned, the Complainant sworn to the fact that, the apartment is a three bedroom apartment with two car parks and measuring 2006 sq. ft, if she rented out it will fetch more than Rs.25,000/- per month. But no material has been placed on record to show that if it given for rent it will fetch more than Rs.25,000/- per month. At the same time, we cannot straight away reject the claim of the Complainant. Since it is a three bed room apartment with two car parks and measuring 2006 sq. ft if she rented out it may fetch between Rs.12,000/- to Rs.15,000/- per month in this District. Apart from that, she had also obtained a bank loan to the extent of Rs.16,82,500/-, she has burdened with the interest on the above said loan amount. By considering the above facts and circumstances of the case, we direct the Opposite Party to pay Rs.1,50,000/- as compensation to the Complainant, in addition to that, we direct the Opposite Party to deliver the actual possession of the apartment to the Complainant along with required documents i.e., completion certificate, door numbers and other particulars sought in the complaint immediately without further delay. Further, we also direct the Opposite Party to refund Rs.17,591/- and hand over Rs.1,00,000/- collected in advance towards the formation of the Apartment to the Owners Association and Rs.1,000/- as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
In the result, we pass the following: ORDER The complaint is allowed. Opposite Party is hereby directed to deliver the actual possession of the apartment to the Complainant immediately along with required documents and also refund of Rs.17,591/-(Rupees seventeen thousand five hundred and ninety one only) collected from the Complainant as additional amount and Rs.1,50,000/- (Rupees one lakh and fifty thousand only) as compensation. Further Rs.1,00,000/- (Rupees one lakh only) collected by the Opposite Party towards the formation of the Apartment Owners Association shall be paid to the Owners Association and Rs.1,000/- (Rupees one thousand only) awarded as cost of the litigation expenses. Compliance/payment shall be made within 30 days from the date of this order.
On failure to comply the aforesaid order within the stipulated time the Opposite Party is hereby directed to pay interest at the rate of 12% p.a. on the total amount from the date of failure till the date of payment.
20. The State Commission while affirming the order of District Forum observed;
13.It is an admitted fact that the appellant is a builder. As per the pamphlet issued by him, the respondent approached with an intention to purchase a flat in the ground floor that is G-01 constructed by the appellant under the name and style of Maurishka Towers situated in Kadri A vilalge of Bendoor Ward of Mangalore city along with car parks and entered into an agreement dated 22.09.2007. Accordingly, to the complainant, the appellant had agreed to complete the construction of the apartment as described in the schedule B in all respects and undertaken to deliver the apartment on or before 31.3.2009. As per the agreement, the respondent/ complainant agreed to purchase the flat for a total consideration of Rs.27,07,500/- but not paid the entire amount which has been admitted by the complainant himself. Therefore, the appellant was constrained to issue several reminders and compelled him to pay the same with penal interest on the delay payment otherwise the appellant will cancel the agreement of sale. Therefore, the respondent approached the Vijaya Bank, Falnir Branch, Mangalore and availed a loan of Rs.16,82,500/- and also paid the penal interest of Rs.3,00,000/- and got registered the sale deed on 21.2.2009.
14.As per the terms of the agreement, the appellant is expected to complete the construction of the flat and handed over the same on or before 31.3.2009 and the appellant has collected the amount from the complainant with interest on the delayed payment one month prior to it. Of course, the reason assigned by the appellant before the DF for delayed is the completion certificate and providing other facilities. Several reasons were assigned namely after introduction of the new N.B.C. rules with the new F.S.I. and various other rules changing from time to time and the OP had to re-design the project and implementing the same as per the new rules of fire and safety and drainage connection caused the extension of time for completion of the project. The DF has observed that the appellant has not produced any documentary evidence in support of its defense and therefore does not accept the contention of the OP.
Now-a-days even the builders are also facing several problems from the authorities concerned forgetting to approve the sanction plan, getting the required power supply, sewerage, completion certificate and etc. If the purchaser sought for any modification of the flat purchased by him, it will also consume reasonable time to make alterations and etc. to fulfill the demands made by the purchaser.
15. Of course, the delay in non-
completion of the construction of the flat admitted by the appellant will have to see from all angles and about the reasonable cause shown by the complainant. The appellant has collected Rs.17,591/- towards service tax and also Rs.1,00,000/- towards Apartment Owners Membership fee. The contention of the complainant is that the appellant/ OP has collected the additional amount of Rs.17,591/- without any justifi-cation. A specific contention was taken by the OP in its version as stated at page of the impugned order that the service tax collected from the purchasers has been paid to the department and if there is any refund by the tax authorities, it will be refunded. The District Forum also directed the appellant/OP to refund Rs.17,591/- collected from the complainant as additional amount which is in our opinion is correct.
16. During the course of arguments, the learned counsel for the appellant has relied on certain citations reported in AIR 1996 Cal 67 and AIR 1981 SC 679. In AIR 1996 CL 67 it is held that the contract stipulates mutual obligations to be performed by the parties and the defendant is not entitled to complain of non-performance of a later obligation by the plaintiff without performing his earlier obligations and in AIR 1981 SC 679 it is held that a party to an instrument or transaction cannot take advantage of one part of the document or transaction and reject the rest.
17. The aforesaid decision are not at all applicable to the facts of the case on hand. When once the appellant admitted that he is a developer and builder selling the flats to the intending purchasers with car parking space he is bound to pay compensation for the delay in handling over possession of the property.
18. As per the agreement, the appellant builder is expected to complete the construction of the building and deliver the possession on or before 31.3.2009 or within the reasonable time. But the OP failed to give the possession of the Schedule B. The appellant/OP also has collected the sum of Rs.1,00,000/- towards formation of the Apartment Owners Association and it has retained the same and failed to form the association. Therefore, the DF is right in directing the appellant to pay the said amount of Rs.1,00,000/-.
19. As far as awarding damages of Rs.1,50,000/- is concerned on account of delay in handing over possession of the said flat even though the sale deed has been executed by the appellant. If the appellant/ OP delivered the possession alongwith necessary documents within the stipulated time, he would have occupied the same to save money by way of rent. Therefore, the DF has rightly observed that on account of delayed attitude in handing over the flat, the complainant sustained heavy loss and accordingly awarded a sum of Rs.1,50,000/- by way of compensation and rightly awarded the cost of Rs.1,000/- towards litigation expenses. Consideringthe facts and circumstances, in our considered opinion, the DF has rightly awarded the interest at the rate of 12% p.a. in case of failure to comply with the order within 30 days. Accordingly, we pass the following:
O R D E R Appeal is dismissed. The order passed by the DF, Mangalore in Complaint No. 286/09 is hereby confirmed.
21. It is an admitted fact that Agreement for Sale of Residential Apartment was executed between the parties on 22.09.2007. Clause No.2 of this Agreement, prescribe the schedule of payment. Whereas, Clause No.3 and No.4 which are relevant to decide the controversy between the parties read as under;
3 Possession of the apartment shall be delivered by the owner to the PURCHASER on or before 31.3.2009. The vendor shall not incur any liability by failure to deliver possession of the apartment by the said date if delayed by reason of non-availability of electricity and corporation water supply to the Apartment or on account of any other valid reason or ground such as non- availability of cement, steel or other building materials, etc.
4. Commencing a week after notice is given by the VENDOR, that completion certificate has been obtained from the Corporation in respect of their Apartment, the PURCHASER shall be liable to pay and bear all taxes in respect of the Apartment and charges for water, electricity consumed in their apartment and their proportionate share of any tax or levy collected from the VENDOR in respect of the A schedule land or the Apartment, or the building.
22. Thus, as per Clause No.3 of the Agreement, the possession of Apartment had to be delivered by the petitioner to the respondent on or before 31.3.2009. Further as per this Clause, petitioner shall not incur any liability by failure to deliver possession of the Apartment by the said date if due to non-availability of electricity, water supply or on account of any other valid reason or ground such as non-availability of cement, steel or other building materials etc.
23. There is nothing on record to show that petitioner ever proved the above defence before the Fora below, that failure to deliver the possession of flat in question to the respondent by the specific date was due to the above reasons mentioned in Clause No.3 of the Agreement.
24. District Forum in its order has observed that petitioner had obtained the completion certificate only on 24.4.2010. Another observation made by the District Forum is that on 1.6.2010, that is, during the pendency of the proceedings before it, the petitioner has informed the respondent, that it has completed the works of Apartment and is ready for occupation. But that document nowhere shows the date of complete construction of the building. Apart from this, District Forum also observed the Complainant took an expert opinion by appointing a Commissioner to show that the possession of the apartment was not handed over to the complainant.
The Commissioner submitted his report dated 22.3.2010, i.e., Ex.C-11 stating that the apartment is in possession of the petitioner.
25. It has been duly established from the record, that respondent had paid the entire due amount along with interest, to the petitioner within the stipulated period. However, the possession of the apartment was not given to the petitioner within the prescribed period, that is, by 31.3.2009 as per the agreement. Thus, deficiency in service on the part of petitioner, is writ large in this case. Even otherwise, petitioner himself has admitted that there was delay in adhering to the construction schedule of the apartment as stipulated in the agreement for Sale.
26. A Coordinate Bench of this Commission in Innovative Constructions Pvt. Ltd. Vs. Dr.Sangeeta H. Pikale, First Appeal No.702 of 2012 decided on 26.4.2013 has held;
It is further a fact that flats in question were to be handed over to the respondents/Complainants on or before 31.3.2003 whereas those were handed over on 08.01.2008 with a delay of four years and six months. This was admittedly a delay on the part of Appellant in not adhering to the construction schedule of the flats as stipulated in the agreement. As pointed out by the State Commission the Appellant did not tender any evidence regarding demand notices issued from time to time nor any evidence to justify these demands which were to be correlated with the stages of construction.
In view of the above facts, we agree with the finding of the State Commission that the Appellant was not justified in asking the Respondents/Complainants to pay penal interest since it was the Appellant who had delayed construction of the flats and handing over possession of the same. We, therefore, uphold the order of the State Commission in toto and dismiss the present First Appeals.
27. Another Coordinate Bench of this Commission in M/s. Sagar Shopping Developers Vs. Anil Dattatrey Kadam, Revision Petition No.281 of 2013 decided on 01.5.2013 has observed;
The privity of the contract between the parties stand established. Certain harsh realities cannot be glossed over. Facts are the stubborn things. It is difficult to fathom why should anyone take a dallop of injustice from someone else because he is in a more influential position. The skimble-scamble explanation given by the petitioner does not help the cause of justice at all. If he has no place at Sagar Avenue-II, he must provide or create the same. The petitioner cannot befool the people like this. The building is ready and he must provide accommodation to the complainant.
It must be mentioned here that the District Forum had passed the order on 15.07.2011. Now, almost 2 years have elapsed. The said order has not been complied with. The complainant paid the amount of Rs.3,00,000/- in the fond hope of getting the flat in the year 2007. Since then six years have elapsed. The attainment of justice is the highest human endeavor. Justice delayed Is not only Justice denied- it is also Justice Circumvented, Justice mocked and the system of Justice undermined.
28. Under section 21 (b) of the Act, this Commission can interfere with the order of the State Commission where such State Commission has exercised jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.
29. Honble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed ;
Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums.
The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora.
30. In view of the above discussion, we hold that the order passed by both the Fora below, do not call for any interference as the same are well reasoned. There is no infirmity and illegality in the impugned order passed by the State Commission. The present revision petition being without any legal basis is not maintainable and same is hereby dismissed with cost of Rs.10,000/-(Rupees Ten Thousand Only).
31. Petitioner is directed to deposit the cost by way of demand draft in the name of Consumer Legal Aid Account of this Commission within four weeks from today.
32. In case, petitioner fails to deposit the cost within prescribed period, then it shall be liable to pay interest @ 9% p.a. till its realization.
33. List on 28th March, 2014 for compliance.
..J (V.B. GUPTA) PRESIDING MEMBR (REKHA GUPTA) MEMBER SSB/