National Consumer Disputes Redressal
Deepak Jairamdas Gulabani & Anr. vs Prathesh Developers on 1 February, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 2020 OF 2016 1. DEEPAK JAIRAMDAS GULABANI & ANR. 201, AROMA CO-OPERATIVE HOUSING SOCIETY LTD. 14TH ROAD, KHAR (WEST), MUMBAI - 400052. 2. MRS. HENA DEEPAK GULABANI 201, AROMA CO-OPERATIVE HOUSING SOCIETY LTD. 14TH ROAD, KHAR (WEST), MUM-400052. ...........Complainant(s) Versus 1. PRATHESH DEVELOPERS THROUGH ITS PARTNERS.A. Mr. Nirav Pravinkumar shah B. Mrs. Monica Nirav Shah
4,PUSHPAVARKHA CHS LTD.,97,SV ROAD, KHAR (W), MUM-400052. ...........Opp.Party(s)
BEFORE: HON'BLE MR. C. VISWANATH,PRESIDING MEMBER HON'BLE MR. SUBHASH CHANDRA,MEMBER
For the Complainant : Ms Rupali S Ghosh, Advocate with
Mr Sanjoy Kumar Ghosh, Advocate For the Opp.Party : Ex-Parte
Dated : 01 Feb 2023 ORDER
1.The present Complaint is filed under Section 21(a)(1) of the Consumer Protection Act, 1986.
2. Case of the Complainants is that the Opposite Party No. 1 entered into a agreement with Opposite Party No. 2/ Society to develop a plot of land bearing City Survey No. F/111 and F/115, of Village Bandra, Taluka Andheri, within the registered district and sub-district of Mumbai Suburban situated on the 14th and 24th road, Khar (West), Mumbai- 400 052. On 25.03.2010, the society entrusted the work to Opposite Party No. 1. The Development Agreement was executed on 23.02.2011.
3. The Complainants purchased an office premises from Opposite Party No. 1, admeasuring 589 sq. ft. for a total consideration of Rs. 82 lakhs, for carrying on professional activity. Allotment Letter, dated 02.10.2010, was issued by Opposite Party No. 1. The Complainants after a payment of Rs. 23,50,000/- to Opposite Party No. 1, were informed that on account of change in the Development Control Regulations, 1991, Opposite Party No. 1 was unable to handover possession of the office premises. In January, 2015, partner of Opposite Party No. 1, Mr. Nirav Shah, convinced the Complainants to transfer the earlier booking amount for a new residential unit and the Complainants agreed for the same. The Complainants were allotted Flat No. 704 on 7th Floor with carpet area measuring 528 sq. ft. in the building known as Ganga Jamna situated in plot bearing City Survey No. F/111 and F/115, of Village Bandra, Taluka Andheri, on 14th and 24th Road, Khar (West), Mumbai- 400 052 for aggregate consideration of Rs. 1,85,00,000/- payable as per the progress of the said project and as per instalments stipulated in Clause 6 of the Agreement. The Complainants were assured a vacant and peaceful possession of the Flat by 30.06.2015. Consequently, the Agreement for sale, dated 26.02.2015, was executed between the Complainants and Opposite Party No. 1. Prior to execution of the Agreement, the Complainants paid Rs.46,00,000/- to Opposite Party No. 1. In addition to the said consideration, the Complainants also paid Rs.9,56,750/- towards Stamp Duty and Registration Charges. The Complainants paid Rs.1,45,00,000/- out of the total consideration of Rs.1,85,00,000/-. The Opposite Party No. 1 failed to deliver possession of the property by 30.06.2015, as per the clauses of the Agreement, or within the extended period of 6 months by 31.12.2015, without communicating any reason for delay. Alleging deficiency in service and unfair trade practice on the part of the Opposite Party No. 1, the Complainants filed the instant Consumer Complaint with the following prayer:
"(a) that this Hon'ble Commission be pleased to declare that the Opposite Party is guilty of deficiency in service and be further please to direct the Opposite Party to rectify the defects in its services as builder and developer with further directions to the opposite party to handover possession of flat being flat no.704, on 7 floor of carpet area admeasuring 528sq.ft carpet area in building known as Ganga Jamuna situated on plot of land bearing City Survey No. F/111 and F/115, of Village Bandra, Taluka Andheri, within the registration District and sub-district of Mumbai Suburban situated on the 14th and 24th road, Khar (West), Mumbai-400 052 free from all encumbrances and as per the terms and conditions of agreement dated 26th February 2015 by obtaining the occupation certificate from the concerned authorities in accordance with law forthwith or in such reasonable time this Hon'ble Commission may deem fit and proper by accepting the balance consideration of Rs.40,00,000/- as per terms and conditions of agreement dated 26th February 2015by and between the parties.
(b) That this Hon'ble Commission be pleased to declare that the opposite party is guilty of delay in delivery of possession of flat in question as per its obligation vide agreement dated 26th February 2015 thereby entitling the complainant to claim interest @ 21% p.a. on amount of Rs. 1,45,00,000/- which was paid by the complainants to the opposite party amounting to Rs. 40,60,000/- and interest at the same rate on Rs.1,45,00,000/- from date filing of the complaint till actual physical possession of flat is handed over to the complainants by obtaining the occupation certificate from the concerned authorities.
(c) That this Hon'ble Commission be pleased to award compensation of Rs. 5,00,000/- for causing mental torture and mental hardships to the complainants herein on account of failure of the opposite party to comply with its obligation under agreement dated 26th February 2015 within the stipulated period mentioned therein.
(d) that pending the hearing and final disposal of the above complaint, this Hon'ble commission be pleased to invoke the provisions of Section 13(3B) of the Consumer Protection Act and grant injunction restraining the Opposite party, its partners, Directors, servants and agents and/or any other person or persons claiming by under or through it from creating third party interest in respect of the said flat being flat no.704, on 7th floor of carpet area admeasuring 528sq.ft carpet area in building known as Ganga Jamuna situated on plot of land bearing City Survey No. F/111 and F/115, of Village Bandra, Taluka Andheri, within the registration District and sub-district of Mumbai Suburban situated on the 14th and 24th road, Khar (West), Mumbai-400 052 earmarked for the Complainant under Registered Agreement dated 26th February 2015;
(e) for costs of Rs.2,00,000/- towards prosecuting the above complaint be provided for;
(f) for such other and further reliefs as the nature and circumstances of the case may require.
4. On admission of the Complaint, a notice in terms of Section 13 (2) of the Consumer Protection Act, 1986 had been issued to Opposite Party No. 1 with a direction to give its version of the case. Despite notice, none appeared on behalf of Opposite Party No. 1 and, therefore, vide Order dated 08.05.2017, Opposite Party No. 1 was proceeded ex parte. This Commission, vide order dated 26.08.2020, directed the Complainants to implead Ganga Jamna Sangam Co-operative Housing Society as an Opposite Party No. 2 in the present matter. Vide order dated 03.12.2020, this Commission issued notice to Opposite Party No. 2 directing them to file a reply within a period of 30 days from the date of notice. However, no written version has been filed by the Opposite Party No. 2. Both the Opposite Parties were therefore proceeded ex-parte, vide order dated 17.06.2022.
5. Heard the Learned Counsel for the Complainants and carefully perused the record. Learned Counsel for the Complainants submitted that they are Consumer within the meaning of the definition provided in the Act. Opposite Party No. 1 is guilty of deficiency in service and unfair trade practice. Opposite Party No. 1 entered into agreement dated 26.02.2015 with the Complainants. As per Clause 11 of the Agreement, the agreed date of possession was 30.06.2015. The Complainants, even after payment of Rs. 1,45,00,000/- according to the schedule of payment, were not offered the possession of the Apartment till date. Opposite Party No. 1 failed to communicate any reason for unreasonable delay of more than 6 years. The Complainants seek possession of the unit allotted to them along with delayed compensation claiming deficiency on the part of Opposite Party No. 1.
6. Brief facts of the case are that the Complainants purchased an office premises admeasuring 589 sq. ft. for a total consideration of Rs. 82,00,000/- vide allotment letter dated 02.10.2010, issued by Opposite Party No. 1. The Complainants made a payment of Rs. 23,50,000/- towards the sale consideration. In 2012, Opposite Party No. 1 informed the Complainants that on account of change in the Development Control Regulations, 1991, Opposite Party No. 1 was unable to handover the possession of office premises. The Complainants requested for refund of the deposited amount to Opposite Party but no such request was fulfilled. Opposite Party No. 1 offered an alternative residential accommodation in the year 2015 and the Complainants agreed to avail the same. The Complainants were accordingly allotted Flat No. 704 on 7th Floor with carpet area measuring 528 sq. ft. in the building Ganga Jamna situated on plot bearing City Survey No. F/111 and F/115, of Village Bandra, Taluka Andheri, on 14th and 24th road, Khar (West), Mumbai- 400 052 for an aggregate consideration of Rs. 1,85,00,000/-. As per the Agreement, dated 26.02.2015, Opposite Party No. 1 was to handover possession of the Flat by 30.06.2015 or within a further period of 6 months. The Complainants made a payment of Rs. 1,45,00,000/-, towards the consideration of the flat till 21.08.2015. However, the Opposite Party No. 1 failed to deliver the Flat or give any reason for the delay. Aggrieved by the deficiency in service, the Complainant approached this Commission claiming possession of the flat along with compensation for delay from the Opposite Party No. 1.
7. It is clear that the Complainants paid a substantial amount of Rs.1,45,00,000/-, through regular instalments till 21.08.2015. Opposite Party No. 1, however, failed to offer possession of the Flat even after expiry of 6 years from the date of possession. There is no doubt as to the deficiency in service by the Opposite Party No. 1, as there was an inordinate delay by the Opposite Party No. 1 without any reason. It is settled law that a homebuyer cannot be made to wait indefinitely for the possession of the Flat. In the case of Emmar MGF Land Ltd. & Ors. Vs. Amit Puri, {(II 2015 CPJ 568 (NC)},decided on 30.03.2015, this Commission has held as under :
"After the promised date of delivery, it is the discretion of the Complainant whether to accept the offer of possession, if any, or to seek refund of the amounts paid by him with some reasonable compensation and it is well within his right to seek for refund of the principal amount with interest and compensation."
We are, therefore, of the view that the Complainants can also seek possession of the Unit along with interest as delay compensation from the Builder after expiry of the promised date of possession.
8. In light of aforesaid facts and circumstances, the Complaint is allowed. Opposite Party No. 1 is directed to complete construction work and obtain occupancy certificate and handover vacant and peaceful possession of the Flat No. 704 on 7th Floor with carpet area measuring 528 sq. ft. in the building Ganga Jamna situated on plot bearing City Survey No. F/111 and F/115, of Village Bandra, Taluka Andheri, on 14th and 24th road, Khar (West), Mumbai- 400 052 after receiving the balance consideration. The order be complied within 6 months. Delayed Compensation @ 6% p.a. be paid to the Complainant from due date of possession till offer of possession is made, after obtaining Occupancy Certificate. Interest @ 9% p.a. be paid if the order is not complied in 6 months.
...................... C. VISWANATH PRESIDING MEMBER ...................... SUBHASH CHANDRA MEMBER