National Consumer Disputes Redressal
Aishwarya Avant Builders Private ... vs Kusumdevi Vidyaprasad Vishwakarma & ... on 8 April, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 770 OF 2022 (Against the Order dated 08/06/2022 in Complaint No. 703/2019 of the State Commission Maharashtra) 1. AISHWARYA AVANT BUILDERS PRIVATE LIMITED & ANR. THROUGH ITS DIRECTOR AT:522, 5TH FLOOR, THE SUMMIT-BUSINESS BAY, ANDHERI KURLA ROAD, OFF WESTERN EXPRESS HIGHWAY, ADJACENT TO WEH METRO STATION, GATE NO.3 ANJD GURU NANAK PETROL PUMP ANDERI EAST MUMBAI-400093 2. MR. SUDEEP KUMAR SAHA M/S. AISHWARYA AVANT BUILDERS AT:522, 5TH FLOOR, THE SUMMIT-BUSINESS BAY, ANDHERI KURLA ROAD, OFF WESTERN EXPRESS HIGHWAY, ADJACENT TO WEH METRO STATION, GATE NO.3 ANJD GURU NANAK PETROL PUMP ANDERI EAST MUMBAI-400093 ...........Appellant(s) Versus 1. KUSUMDEVI VIDYAPRASAD VISHWAKARMA & ANR. ROOM NO.4, SHIVDHANI YADAV CHAWL, PRATAP NAGAR, J.V LINK ROAD, JOGESHWARI(EAST), MUMBAI-400060 MAHARASHTRA 2. MR. VIDYAPRASAD DASHRATH VISHWAKARMA ROOM NO.4, SHIVDHANI YADAV CHAWL, PRATAP NAGAR, J.V LINK ROAD, JOGESHWARI(EAST), MUMBAI-400060 ...........Respondent(s)
BEFORE: HON'BLE MR. SUBHASH CHANDRA,PRESIDING MEMBER HON'BLE DR. SADHNA SHANKER,MEMBER
FOR THE APPELLANT :
Dated : 08 April 2024 ORDER
For the Appellant Mr Kunal Cheema, Advocate
For the Respondents Mr Uday B Wavikar, Advocate and
Mr Vikas Nautiyal and Mr Kiran Patil
Advocates
ORDER
PER MR SUBHASH CHANDRA
1. This first appeal under section 51 (1) (3) of the Consumer Protection Act, 2019 (in short, 'the Act') challenges the order dated 08.06.2022 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (in short, 'the State Commission') in complaint no. CC/19/703 allowing the complaint and holding the OP nos.1 and 2 liable under section 2 (1) (g) and 2 (1) (r ) of the Consumer Protection Act, 1986 and directing to hand over the vacant possession of the flat no. 801, 'A' Wing, Avant Heritage I, complete in all respects with car parking and occupation certificate within three months of the order along with compensation of Rs.20,000/- per month from 01.01.2018 till the possession and Rs.5.00 lakh towards mental agony and harassment with Rs.50,000/- as litigation cost.
2. The relevant facts of the case are that the appellants has promoted a housing project at "Avant Heritage" in which the respondent had booked flat no. A 801, 8th Floor, ad-measuring 396 sq ft for a consideration of Rs.48,55,000/- against which various sums of money were paid on 01.10.2014 to 11.01.2016. An MOU was entered into between the parties on 31.01.2015 and an Agreement for Sale (in short, 'the Agreement') on 19.01.2016 under which, as per clause 50 of the Agreement, the appellants were to give possession in December 2017. Subsequently, the appellants vide letter dated 19.01.2016 agreed to pay the respondents delay charges of Rs.20,000/- per month in the event of delay beyond 31.12.2017. According to the appellant, the possession could not be handed over due to reasons beyond their control and RERA confirmed the extension for possession with occupancy certificate to June 2019. A final demand letter for the purpose of fit out was issued by the appellants on 31.03.2018 (wrongly mentioned as 31.03.2017) and the respondents took the possession of the flat for fit outs. However, the respondents, according to the appellants, continued to occupy the flat and had moved the State Commission seeking the following reliefs:
To allow the present Complaint.
To hold and declare that the Opposite Parties are guilty of deficiency in service and unfair trade practice under the provisions of the section 2 (1) (g) & (r) of the Consumer Protection Act, 1986;
To direct the Opposite Parties to hand over the peaceful, vacant, legal possession with all the completed work (in all respects) and with Occupation Certificate of the agreed Flat No. 801, 8th Floor, admeasuring 396 sq. ft. carpet Area, with 1 Car Parking, in 'A' Wing, in Building/Project known as 'Avant Heritage I' lying and being at Jogeshwari, East, Mumbai 400 060, with immediate effect or within time bound period which this Hon'ble Commission deems fit and proper.
To direct the Opposite Parties to compensate the Complainants for the delay in handing over the possession of the said flat by paying delayed charges @ Rs. 20,000/- p.m. from 1st January 2018 till 31 December 2018 and from 1st January 2019 @ Rs. 3000/- p.m. till the actually Legal Possession is handed over to the Complainants.
Pending the hearing and final disposal of the above numbered complaint, this Hon'ble Commission may be pleased to restrain by an Order of Injunction, the Opposite Parties Nos. 1 to 3, including its Partners / Directors, agents, employees and or any other persons acting under them, from creating/transferring the right in favour of 3rd party, not to cancel an Agreement and title and interest in the Flat No. 801, 8th Floor, admeasuring 396 sq. ft. carpet Area, with 1 Car Parking, in 'A' Wing, In Building/Project known as 'Avant Heritage I', lying and being at Jogeshwari, East, Mumbai 400 060. (Separate Interim Relief Application has been filed);
To direct the Opposite Parties to pay to the Complainants a sum of Rs. 30,00,000/- including the interest @24% p.a. on the cost of the Flat and towards the compensation for causing hardship. stress, inconvenience, harassment, mental agony, financial loss, etc. suffered by the Complainants;
To direct the Opposite Parties to pay to the Complainants a sum of Rs. 2,00,000/- towards the Legal and incidental expenses incurred by the Complainants;
For such other and further relief as this Hon'ble Commission may deem fit and proper in the nature and circumstances of the above numbered Complaint.
4. The State Commission, after notice to the parties held vide impugned order that;
since the opponents have neither appeared nor filed their written version contesting the claim of the complainants and so, the evidence lead by the complainants has gone unchallenged. From the documents on record, namely, the receipts of payment, copy of the agreement for sale and other correspondence, it is clear that the complainants have made payment of the entire consideration. It is also clear that the appellant no.1, being a builder and promoter, was also a 'Service Provider' and so, the appellant nos.1 and 2 committed deficiency in service as well as unfair trade practice as defined under the Consumer Protection Act, 1986. Complainants were therefore clearly entitled for legal possession along with occupancy certificate of the agree flat no. 801, 'A' Wing in Avant Heritage I, Jogeshwari East, Mumbai 400 060 and so we proceed to pass the following order:
Complaint is hereby partly allowed.
It is hereby declared that opponent nos.1 and 2 are guilty of deficiency in service and unfair trade practice under the provisions of Section 2(1)(g) and 2(1)(r) of the Consumer Protection Act, 1986.
Opponent nos.1 and 2 are directed to handover vacant possession of Flat No.801 in 'A' Wing in 'Avant Heritage I', described in the complaint, complete in all respects with car parking and occupation certificate, within a period of three months from the date of this order.
Opponent nos.1 and 2 are further directed to pay compensation for delay in handing over possession at the rate of Rs.20,000/- (Rupees Twenty Thousand only) per month from 01/01/2018 till the possession is handed over to the complainants.
(v) Opponent nos.1 and 2 are further directed to pay compensation of Rs.5,00,000/- (Rupees Five Lac only) towards mental agony and physical harassment and Rs.50,000/- (Rupees Fifty Thousand only) towards costs of litigation to the complainants.
5. This order is impugned before us on the ground that the order was passed ex parte since there was no proper service on the appellants and the State Commission erred in not appreciating that the amount of Rs.20,000/- per month payable vide letter dated 19.01.2016 was only in the event that the flat was not handed over for the limited purpose of fit outs and was delayed beyond 2017. The offer of possession for fit outs had been made vide demand letter dated 31.03.2018 is admitted by the respondents. The promise of Rs.20,000/- per month which translates to 24% per annum is contended by the appellants to be at best be only for three months till 31.03.2018. The State Commission is said to have erred in not appreciating that appellant no.1 had already adjusted Rs.1.00 lakh towards delayed charges in the demand payable by respondents before taking the possession for fit outs. Appellant has also stated that as per the agreement dated 19.01.2016, Clause 50 provided for six months grace period and under Clause 51, a further period of six months was permissible for obtaining the Occupation Certificate and therefore, the State Commission's directions for compensation for delay in handing over the possession from 01.01.2018 till the actual date of handing over the possession was erroneous. It was also contended that since the possession had already been taken by the respondent for fit outs, the State Commission's directions to hand over the possession again was not justified especially since the respondents continued to remain in possession. The appellants submit that the Occupancy Certificate was received on 04.03.2021 and the respondents were duly intimated of the same with the request to clear the outstanding dues within seven days subject to the condition that if the fit outs possession had been taken and formalities are completed, the notice regarding outstanding dues would not apply. Appellant no.1 also contends that appellant no.2 was only a designated partner and in view of appellant no.1 having subsequently converted to an LLP under the Limited Liability Partnership Act, 2008 the order qua the appellant no.2 was not sustainable in view of the misjoinder of parties. The appellant therefore, prayed for setting aside the order and to consider at best compensation from 01.01.2019 to 04.03.2021 at a reasonable rate of interest as per the settled position of law laid out in various judgments of the Hon'ble Supreme Court.
6. Per contra, the respondent strongly opposed the first appeal on the ground that delay of 59 days which had not been specifically explained. It was contended that the impugned order was served by the respondents on the appellants by registered post AD which was sent on 30.06.2022 and was served as per the postal track report available on 01.07.2022. The appeal was filed on 10.10.2022 after 102 days of service and even after deducting the time period allowed for filing the appeal of 30 days, the appeal was filed after a delay of 72 days and not 59 days. The contention that the appellants were unaware of the order of the State Commission is also incorrect according to the respondent, since, the State Commission also served the order on the parties. It is further submitted that complainant was preceded by a Legal Notice dated 12.06.2019, which was duly served but was chosen not to be replied. On merits, the respondents stated that the impugned order was in order since due opportunity had been provided to the appellant after which they were placed ex parte and the impugned order filed. It was contended that the appellant failed to hand over legal possession of the flat in question and therefore, the State Commission was justified in passing the impugned order.
7. We have heard the learned counsel for the parties and have perused the records carefully.
8. From the foregoing it is apparent that as per the agreement between the parties, the possession of the apartment in question was to be handed over for the purpose of fit outs by December 2017, as per the agreement and thereafter, based on the Occupancy Certificate, from the concerned authorities, the possession of the same was to be offered to the respondents. It is not in dispute that the respondent had paid the requisite sale consideration without default. The possession for fit outs was admittedly offered on 31.03.2018. It is the contention of the appellant that as per Clause 50 of the agreement dated 19.01.2016 the appellant was entitled to an extended period of six months beyond December 2017 to hand over the possession. It is also contended that as per Clause 51 a further period of six months was permissible to obtain the Occupancy Certificate in case of unforeseen exigencies. It is also evident that while the possession was offered to the respondents for the purpose of fit outs, they have chosen to remain in possession even though the Occupancy Certificate was not available and in fact, became available only on 04.03.2021. The appellants' contention is that since the respondents chose to remain in possession when the possession had not been offered, they are at best entitled to compensation for the period from 01.01.2019 to 04.03.2021 and also not at the rate awarded by the State Commission but at a more equitable rate.
9. Admittedly, the offer dated 19.01.2016 was an offer only for the purpose of fit outs. In view of Clauses 50 and 51 of the Agreement, the appellants were entitled to offer possession by 31.12.2018 inclusive of extended period as stated above. Possession was actually offered on 31.03.2018. The liability for the delay in offer of possession is therefore writ large on the appellant. The appellants, contention that the delay in offer of possession was on account of factors beyond its control or force majeure conditions cannot be sustained since there have been no pleadings based on evidence to justify the delay on the grounds of force majeure. In view of this, the appellant is liable to compensate the respondents for the delay in offer of possession beyond 31.12.2018. It has been held by the Hon'ble Supreme Court in a catena of judgments notably Wg Cdr Arifur Rahman Khan & Ors. Vs. DLF Southern Homes Pvt. Ltd. & Ors., Civil Appeal No. 6239 of 2019 decided on 24.08.2020, (2020) 16 SCC 512, that a builder is liable to compensate the allottee for the delay in offer of possession and has also held that 6% per annum rate of interest is just and equitable. As also held by the Hon'ble Supreme Court in certain other cases including in Ireo Grace Realtech Pvt. Ltd., vs Abhishek Khanna and Others, in Civil Appeal no.5785 of 2019 decided on 11.01.2021, the compensation for the delay in possession has to be payable till the date of offer of possession which is valid and legal. In the instant case such a date would 04.03.2021, on which date the appellant was handed over the possession based on the Occupancy Certificate in respect of the flat in question.
10. It has also been held by the Hon'ble Supreme Court in DLF Homes Panchkula Pvt. Ltd., vs D S Dhanda (2020) 16 SCC 318, decided on 10.05.2019 that multiple compensations for a singular default of deficiency is not justifiable. In the instant case, the impugned order while holding the appellant liable for deficiency in service, proceeded to impose several costs such as compensation for delay in handing over possession at the rate of Rs.20,000/- per month from 01.01.2018 till possession is handed over to the complainant, opposite party nos. 1 and 2 to pay compensation of Rs.5,00,000/- towards mental agony and physical harassment and Rs.50,000/- towards costs of litigation to the complainant. In view of the findings of the Hon'ble Supreme Court, the said finding of the State Commission cannot be sustained.
11. In the light of the above discussion, while we hold the appellant liable for deficiency in service and uphold the impugned order, it is considered that the order be modified as below in the light of the various judgments of the Hon'ble Supreme Court discussed above. Accordingly, the First Appeal no. 770 of 2022 is disposed of with the following directions:
Respondent nos.1 and 2 are directed to pay compensation for the delay in handing over possession @ 6% per annum from the respective date of deposit, i.e., 01.01.2019 to 04.03.2021 to be paid within eight weeks, failing which it shall carry interest @ 9% per annum;
Appellant is also directed to pay litigation cost of Rs.50,000/- to the respondent; and Direction to pay compensation of Rs.5,00,000/- towards mental agony and harassment is set aside.
12. All pending IAs stand disposed of by this order.
...................................... SUBHASH CHANDRA PRESIDING MEMBER ............................................. DR. SADHNA SHANKER MEMBER