State Consumer Disputes Redressal Commission
Peter Joseph Pinto vs Lavasa Corporation Limited on 24 July, 2019
CC/16/10 1
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
Consumer Complaint No.CC/16/10
1. Peter Joseph Pinto
2. Carol Pinto
Both R/at - 2C/11, Kalpatru Estate,
J.V. Link Road, Andheri (East),
Mumbai - 400 093. .....Complainants.
Versus
Lavasa Corporation Limited,
Registered Office in Mumbai at-
Hincon House LBS Marg,
Vikhroli (West), Mumbai - 400 083 and
Branch Office at Viola Business Centre,
"D" Building, S No.118, Katraj Dehu Road,
By pass (NH-4), Near Cipla Foundation,
Warje, Pune - 411 052. .....Opposite Party.
BEFORE: D.R. Shirasao, Presiding Judicial Member
A.K. Zade, Member
PRESENT: Advocate Mr. Ivor D'Cruz for Complainants.
None present for the Opponent.
ORDER
Per Hon'ble Mr.A.K. Zade - Member:
1) Complainants were in need of permanent residential premises for personal use due to old age for which they approached opponent who was developing hill stations in accordance with its township development scheme. An agreement was duly executed between them in respect of apartment bearing no.03 admeasuring 162 sq. mtrs. (i.e. 1739 sq.ft. built-up) on 1st floor of the Lake View (03) to be constructed on plot bearing part of Survey No.130, Hissa No.1/A, Survey No.139, Hissa No.1A of Village Dasve, Tal.-Mulshi, Dist.-Pune, Maharashtra, together with right and benefit to use common areas and facilities meant for the Lake View, which was duly registered on 23/02/2010. As per clause 5 of the said agreement, complainants had agreed to pay to Opponent, total lease premium amount of Rs.55,64,800/- and annual lease rent of Re.1/- for the said apartment CC/16/10 2 and opponent had agreed to grant lease for a period of 999 years of the said apartment. Schedule of payment was provided in the said agreement and the complainants had agreed to make timely payments of amounts against lease premium installments, subject to which opponent had agreed to handover possession of the said apartment to complainants and also to execute a registered Lease Deed in favour of complainants on or before a period of 24 months from date of abovesaid agreement unless prevented by Force Majeure events and/or things beyond the control of opponent.
2) Complainant paid amount of Rs.41,45,360/- between 13/01/2010 and 02/05/2013 and an amount of Rs.1,43,440/- towards stamp duty and registration charges total amounting to Rs.42,88,800/- and the receipts were duly issued by the opponent. Complainant was thereafter assured by opponent vide letter dtd.01/02/2012 that possession was expected to be given by August, 2013. However, opponent failed to deliver possession by August, 2013 and instead by letter dtd.13/12/2013 requested complainant to make payment of Rs.19,17,441/- as 8th installment of payment. Complainant received another letter dtd.26/12/2013 from opponent informing him that the tentative scheduled date of possession was expected in May, 2014. However, by email dtd.22/07/2014, complainant was informed by opponent that opponent would be able to offer possession of said apartment by the end of October/ November, 2014. Complainant thereafter received email dtd.25/06/2015 from opponent calling-upon him to make further payment of Rs.14,56,554/- towards 9th installment (5% on completion of finishes) instead of handing over possession to him. Complainant replied the same by email dtd.26/06/2015 calling upon opponent to make payment of interest @ 18% p.a. till handing over possession of the said apartment on amounts paid by him as per terms of agreement. Thereafter, opponent forwarded to complainant a certificate dtd.08/07/2015 certifying that apartment which included the subject premises, had been completed satisfactorily.
3) Complainant thereafter received another letter dated 22/07/2015 from opponent informing him that apartment was now ready and possession date was scheduled on 06/08/2015. Also, by other letter issued on the same date opponent called upon complainant to make payment of sum of Rs.17,55,661/- being 10th CC/16/10 3 installment (5% on offering possession). Regarding demand of interest by complainant for delayed possession, opponent replied on 25/07/2015 informing complainant that the delay was on account of Force Majeure, as there was stop work order by MOEF. Complainant thereafter visited suit premises on 31/07/2015 and found that there were many shortcomings in the construction which complainant communicated to opponent by email dtd.01/08/2015 alongwith photographs. Opponent thereafter communicated to complainant vide email dtd.21/08/2015 informing him that the rectification work in suit premises was completed but painting and deep cleaning work was pending. Also, by letter dtd.21/08/2015, opponent called-upon complainant to make payment of Rs.17,55,661/- towards 10th installment (5% on offering possession). Thereafter, after exchange of some more emails between them, complainant visited the suit premises again on 29/09/2015. But, he found the same unfit for taking possession, which he communicated to opponent by email dtd.06/10/2015 seeking therein occupancy certificate and adjustment of interest payable to complainant for delay in handing over possession against balance payment. By email dtd.14/10/2015, opponent communicated to complainant that occupancy certificate would take about months' time and again by email dtd.03/12/2015 requested complainant to take possession of the said premises.
4) Complainants therefore filed this complaint alleging that there was delay on the part of opponent in completing construction and there was delay in handing over possession also. Complainant therefore alleged deficiency in service and unfair trade practice against opponent. Complainant therefore, prayed for direction to opponent to obtain completion certificate and occupancy certificate and thereafter to handover possession of subject flat to him. Complainant also prayed for direction to opponent to pay Rs.17,23,872/- towards interest @ 12% on the amounts paid by him towards consideration togetherwith stamp duty and registration charges for delay in handing over possession of the suit premises for the period from respective dates till December, 2015 as detailed in para 38 of complaint and further interest on above said total principal amount of Rs.42,88,800/- till handing over possession, or in the alternative, to adjust the above said amount of Rs.17,23,872/- alongwith further amount of interest till CC/16/10 4 possession, against any amount due and payable by complainant to opponent at the time of handing over possession and refund the balance amount to complainant. Complainant had also prayed for compensation of Rs.5,00,000/- towards mental agony, stress, loss etc. with interest @ 12% p.a. till realization and an amount of Rs.1,00,000/- towards legal and incidental expenses.
5) Opponent contested the complaint by filing written statement. Opponent submitted that there is a provision of arbitration under clause 34 of the above said agreement dtd.23/02/2010 between opponent and complainant. Hence, as per provision of Arbitration and Conciliation Act, 1996, this Commission has no jurisdiction to try the present complaint and the said dispute needs to be referred to arbitration. This is preliminary objection raised by opponent. Opponent also submitted that there is affidavit in support of the complaint which is executed and signed by one Mr.Albert D'Cunha as complainant while complaint is filed by Mr.Peter Joseph Pinto as per cause title of the complaint and therefore, it is not clear who has filed the complaint. Moreover, there is no power of attorney in favour of said Mr.Albert D'Cunha or any other document showing authority in favour of said Albert D'Cunha. Opponent raised another objection that complaint is filed by one person (present complainant no.1) while the agreement was executed in favour of two persons (present complainants), who had signed the same and therefore complaint was required to be dismissed for nonjoinder of party. However, during proceedings, complaint was amended by joining complainant no.2 as complainant. Complainant no.2 filed her affidavit of evidence mentioning that she repeat, reiterate and adopt the contents of affidavit of evidence filed by complainant no.1. Hence, this objection does not sustain. Opponent had denied the allegations of complainant but admitted the said agreement of grant of lease and receipt of said payments. However, opponent alleged that complainant failed and neglected to make payments as per schedule of payment as mentioned in the said agreement. Opponent also submitted that complainant is not a consumer and is an investor. Opponent therefore, prayed for dismissal of the complaint on the above grounds.
6) Both parties have filed affidavits of evidence and written notes of arguments. For oral arguments no one appeared for opponent in spite of CC/16/10 5 opportunities given and therefore, the case was closed for order after hearing advocate for complainants. After perusing the record and hearing arguments on behalf of Complainants, following points arose for our determination and our answers to those points are as given below alongwith reasons for the same -
Sr.No. Points Findings
1 Whether the complaint needs to be dismissed No
because of clause of arbitration?
2 Whether Complainants are consumers under Yes
the provisions of Consumer Protection Act,
1986?
3 Whether the complaint needs to be dismissed No
for the reason of affidavit in support of
complaint being in the name of person other
than complainants, without any power of
attorney ?
4 Whether opponents is guilty of deficiency in Yes
service?
5 Whether Complainants are entitled to get Yes
possession of the subject flat?
6 Whether Complainants are entitled to get the
sum of Rs.17,23,872/-towards interest on the
principle amount paid by him as detailed in
para 38 of the complaint or for its adjustment
against payment due and payable from them
to opponent ? As per final
7 Whether complainants are entitled for the sum order
of Rs.5,00,000/- towards mental agony, stress,
loss, expenses alongwith interest @ 12%?
8 Whether complainants are entitled to receive
Rs.1,00,000/- towards legal and incidental
expenses from opponent ?
9 What order?
Reasons :
As to Point No.1:-
In this respect, we observe that remedy available through Consumer Protection Act to the consumer is in addition to any other remedy available to him for seeking relief for redressal of his grievance and is not in derogation of it. It is for the consumer to select the remedy available to him. Therefore, although there CC/16/10 6 is provision of arbitration clause in the said agreement, the said provision by itself cannot take away the right of consumer to seek redressal of his grievance under the Consumer Protection Act, 1986. Hence, we reject the objection raised by opponent in this respect and answer point no.1 in the negative.
As to Point No.2:-
The opponent has made averment to the effect that complainant is an investor and not a consumer. However, there is no evidence in support of the said averment and no details or any supporting document is filed on record by opponent to support its above contention. In the absence of any such evidence, only the averment cannot be accepted. On the other hand there is a transaction between complainants and opponent in respect of lease of the subject apartment for which opponent had received part of consideration/lease premium amount from complainants and therefore, as per provisions of the Consumer Protection Act, 1986, complainants are consumers within the meaning of Consumer Protection Act, 1986. We therefore, answer this point in affirmative.
As to Point No.3:-
The complainant has signed the complaint and also the verification on it duly countersigned by his advocate. On page 1 of the affidavit in support of the complaint, name mentioned of the person affirming is different than that of complainant. However, on the second page of affidavit, the complainant himself has signed as the person affirming and not the above said other person, whose name is mentioned on its page 1 as above. Also the verification of affidavit is signed by complainant himself and not the other person. Both these signatures of complainant are duly countersigned by their advocate. Also the affidavit of evidence with verification is signed by complainant duly countersigned by advocate. Hence, the above said mention of name of some other person may be nothing but a clerical error. In view of these facts, and as the present proceedings are quasijudicial proceeding and as rules of Civil Procedure Code are not applicable strictly to these proceedings, hence, in our opinion, this complaint is not required to be dismissed on the above said ground. Hence, we answer this point in negative.CC/16/10 7
As to Point No.4:-
It is an admitted fact that complainants booked the said subject apartment for a period of 999 years of lease from opponent for a lease premium amount of Rs.55,64,800/- and lease rent of rupee one only and the same was reduced to an Agreement to Lease which was executed and registered with the concerned Sub- Registrar on 23/02/2010. Opponent had categorically mentioned that opponent was always willing and is willing and ready to handover possession of the said apartment to complainant and was asking him to make payment of balance amount. Opponent had admitted payment of amount of Rs.41,45,360/- towards consideration for lease of the said apartment. As regards the amount of Rs.1,43,440/-, complainant himself had submitted in complaint that it was paid on dtd.23/02/2010 towards stamp duty and registration fees. In spite of receiving the above amount towards consideration for the subject apartment, opponent did not complete the construction and also did not handover possession of the subject apartment to complainants within a period of two years from agreement dated 23/02/2010 as required as per clause 9.1 of the said agreement. On the other hand, opponent had offered possession to complainant in August, 2015 for the first time and that too without Occupancy Certificate. Opponent communicated to complainant about receipt of Occupancy Certificate by it by its email dtd.05/10/2016 sending its copy as attachment as admitted by opponent itself in its written argument, when he could legally handover possession to complainants. Hence, we hold opponent guilty of deficiency in service for not completing construction in time and for not giving possession of subject apartment to complainants within the assured time period. Hence, we answer this point in the affirmative.
As to Point No.5:-
Complainants had paid total amount of Rs.42,88,800/- to opponent which includes an amount of Rs.1,43,440/- towards stamp duty and registration charges as per contention of complainants in para 3 of complaint. Hence, complainants had actually paid Rs.41,45,360/- towards consideration for the subject apartment, which amount is almost 75% of the total consideration for the said apartment. Hence, in our opinion complainants are entitled to possession of subject apartment CC/16/10 8 on payment of balance amount of consideration to opponent. Hence, we answer this point in affirmative.
As to Point No.6 to 9 :-
Complainants had prayed for an amount of Rs.14,02,329/- towards interest with effect from June, 2012 till 31/12/2015 (3 years 7 months) on the amount of Rs.33,38,880/- paid towards consideration between January, 2010 and June, 2010, an amount of Rs.60,244/- towards interest on the amount of Rs.1,43,440/- paid towards stamp duty and registration charges for the period from June, 2012 upto 31/12/2015 and an amount of Rs.2,61,299/- towards interest on the amount of Rs.8,06,480/- paid between February, 2013 and May, 2013 towards consideration for the period from June, 2013 till December, 2015(2 years 7 months) total amounting to Rs.17,23,872/- and further till he receive possession. However, although the complainants had claimed to have paid Rs.42,88,800/- and is claiming interest @ 12% on the said amount as aforesaid as per terms of agreement, complainants had actually paid Rs.41,45,360/-against consideration for lease premium amount for the subject premises to opponent and the amount of Rs.1,43,440/- had been paid for stamp duty and registration charges as per complainant's submission as discussed above.. The abovesaid paras 9.1, 9.3, 9.4 and 9.5 of the said agreement has provisions as given below.
As per para 9.1. of the agreement, "Lavasa will hand over peaceful possession of the said apartment to the customer and will also execute and register the Lease Deed in favour of the customer on or before a period of 24 (twenty four) months from the date hereof unless prevented by force majeure events and/or things beyond the control of Lavasa." Thus, the possession was to be handed over and the final Lease Deed was to be executed and registered within 24 months from the date of Lease Agreement dtd.23/02/2010, which in the instant case is not complied as admitted by opponent in its written statement and which is evidenced from the letters and emails sent by opponent to complainant till opponent's communication dtd.21/08/2015.
Clause 9.3 of the said agreement provides that "However, it is hereby expressly agreed by the customer that save and except for any reason, beyond the control of Lavasa, whatsoever, including Force majeure events, if there is delay CC/16/10 9 exceeding 3 months on the part of Lavasa in handing over the possession of the said apartment to the customer for the reasons solely attributable to Lavasa, then in such an event Lavasa will pay interest @ 12% per annum or 2% over the State Bank of India Cash Credit rate at the relevant time, whichever is higher on the principal deposit amounts received by it till such date from the customer for the period commencing from the date of expiry of the said period of 3 months till the date of handing over possession of the said apartment to the customer."
In Clause 9.4 of the agreement force majeure was explained as natural calamities, natural disasters or similar happenings or change in law, regulations, rules or orders issued by any Court or Government Authorities or any acts, events, restrictions beyond the reasonable control of Lavasa.
In view of the above clauses in Agreement to Lease of subject apartment, the opponent is liable to pay interest @ 12% p.a. for delay in handing over possession for a period commencing from expiry of a period of 3 months after expiry of 24 months from date of the said agreement dtd.23/02/2010 on amount paid till then. In the instant case, from record, we find that it is admitted by the opponent that the said construction was delayed for want of environmental clearance from the concerned authority for which in our opinion it is only opponent and nobody else is responsible and thus, it is opponent who is responsible for the delay caused in handing over possession in the instant case. Although there was no occupancy certificate, opponent was asking complainant to take possession of subject apartment repeatedly and made last request for it to complainant in the month of August, 2015. Thus, it is very clear that the said apartment was not ready for possession and the possession was not handed over on the expiry of 24 months from the date of the above said agreement i.e. 23/02/2010 which period expired on 22/02/2012 and as per the above said clause of the agreement, opponent was liable to pay interest @ 12% p.a. with effect from the period commencing from expiry of 3 months thereafter i.e. from 23/05/2012. As complainant had paid Rs.33,38,880/- till June, 2010, he had claimed interest on it with effect from June, 2012 till December, 2015 i.e. for a period of 3 years 6 months at the agreed rate of 12% p.a. In addition, complainant had claimed interest on the amount of Rs.8,06,480/- paid by him towards consideration CC/16/10 10 between February, 2013 and May, 2013 for the period from May, 2013 till December, 2015 i.e. for a period of 2 years 7 months. We therefore, hold that the complainant is entitled to get the above said amounts of interest which come to Rs.14,02,329/- + Rs.2,50,008/- = Rs.16,52,337/-.
We also find that complainant was offered possession lastly in the month of August, 2015 and that during the pendency of these proceedings, occupancy certificate was obtained by opponent which was communicated to complainant alongwith copy of occupancy certificate as attachment by opponent by email dtd.05/10/2016 as per para XI of written arguments of opponent. Therefore, in our opinion, complainant should have taken possession of the said apartment thereafter and it is the complainant who is responsible for not taking possession on payment of balance amount to opponent thereafter. Instead, the complainant was asking for interest from opponent as discussed above or for adjusting the same against the balance payment payable by complainant to opponent. However, in our opinion although the agreement provides for payment of interest by opponent to complainant in respect of above said delay in possession, it is nowhere mentioned in agreement that the same will be adjusted against balance payment due from complainant. The same could have been recovered by complainant from opponent by legal procedure available to him. We therefore, hold that it is the complainants, who are responsible for delay in taking possession since October, 2016. Hence, we hold the complainants entitled to get interest @12% p.a. on the paid amount of consideration of Rs.41,45,360/- from January, 2016 till October, 2016 and not beyond it. As already discussed above we do not hold the complainant entitled to get interest on the amount of Rs.1,43,440/- as the said amount is utilized towards stamp duty + registration charges and paid for the same by complainant as per para 38 of the complaint. However, the entire cost of the apartment is not paid by the complainant and therefore, although we hold the complainant entitled to receive possession of subject apartment from opponent, it is opponent who is entitled to get the balance consideration of Rs.55,64,800/- - Rs.41,45,360/- = Rs.14,19,440/- from complainant. As discussed above complainant is entitled to receive interest amount of Rs.16,52,337/- from opponent. We therefore, find it necessary to direct opponent to handover CC/16/10 11 possession of the subject apartment by receiving an amount of Rs.14,19,440/- from complainant or in the alternative by adjusting the said amount against the above said amount of Rs.16,52,337/-payable by opponent to complainant, at the choice of complainant and pay the remaining amount back to complainant in that case.
As regards compensation for mental agony, stress, loss, etc. we find the amount of Rs.5,00,000/- claimed by complainants to be excessive. In our opinion amount of Rs.1,00,000/- will be just and proper as compensation for the said reasons and the same is awarded to complainants to be paid by opponent. We also find that the legal and incidental expenses of Rs.1,00,000/- claimed by complainants is excessive. In our opinion an amount of Rs.25,000/- will be just and proper to be granted towards legal and incidental expenses incurred by complainants which include the cost of complaint also. We therefore, pass the following order -
ORDER
(i) Consumer Complaint No.CC/16/10 is partly allowed.
(ii) Opposite Party is declared to be guilty of deficiency in service.
(iii) Opposite Party is directed to handover possession of apartment bearing no.03 admeasuring 162 sq.mtrs. (1739 sq.ft. built up) on 1st floor of Lake View (03) constructed on plot bearing part of Survey No.130, Hissa No.1/A, Survey No.139. Hissa No.1A of Village-
Dasve, Taluka - Mulshi, District-Pune, with occupancy certificate and completion certificate, to complainants, on receipt of balance amount of Rs.14,19,440/- (Rs. Fourteen Lakhs Nineteen Thousand Four Hundred Forty Only) from complainants or by adjusting the same against the amount of Rs.16,52,337/- (Rs. Sixteen Lakhs Sixty Fifty Two Thousand Three Hundred Thirty seven Only) payable by opponent to complainants towards interest for delay in possession and to pay the remaining amount to the complainants at the choice of complainants, as per terms of agreement.
CC/16/10 12(iv) Opponent is also directed to pay interest @ 12% p.a. on the amount of Rs.41,45,360/-for the period from January,2016till October, 2016.
(v) Opposite Party is also directed to pay an amount of Rs.1,00,000/- (Rupees One Lakh Only) to complainants towards compensation for mental agony, loss and stress.
(vi) Opposite Party is also directed to pay an amount of Rs.25,000/- (Rs.Twenty Five Thousand Only) towards legal and incidental expenses and cost of the complaint to the complainants.
(vii) Opposite party is directed to comply the above direction within a period of 2 months from the date of this order else opponent will be required to pay further interest thereafter@ 12% p.a. to complainants on the above amounts.
(viii) Copies of this order be furnished to the parties free of cost.
Pronounced on 24th July, 2019.
[D.R. Shirasao] Presiding Judicial Member [A.K.Zade] Member aj