National Consumer Disputes Redressal
Abhay Rashmikant Yagnik vs Cci Projects Private Limited on 5 April, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 689 OF 2017 1. ABHAY RASHMIKANT YAGNIK FLAT NO. WS-A-12A, 12TH FLOOR, WHITE SPRING WING A, RIVALI PARK, BORIVALI EAST. MUMBAI-400066 ...........Complainant(s) Versus 1. CCI PROJECTS PRIVATE LIMITED CCI COMPOUND, WESTERN EXPRESS HIGHWAY, BORIVALI EAST. MUMBAI-400066 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER HON'BLE DR. INDER JIT SINGH,MEMBER
For the Complainant : Mr. Ajay Kumar Jha, Advocate
: Mr. Ashish Chauhan, Advocate For the Opp.Party : Mr. Sanjib Sen, Sr. Advocate
: Mr. Dinesh Kumar Seth, Advocate
: Mr. Mridul Y. Suri, Advocate
Ms. Anjali Singh, Advocate
Dated : 05 Apr 2023 ORDER
1. Heard Mr. Ajay Kumar Jha, Advocate, for the complainant and Mr. Sanjib Sen, Sr. Advocate, assisted by Mr. Dinesh Kumar Seth, Advocate, for the opposite party.
2. Abhay Rashmikant Yagnik has filed CC/689/2017, for directing the opposite party to (i) rectify the deficiencies in construction of his flat and handover its possession; (ii) pay interest @18% per annum on the amount paid by him, from the date of respective deposit till the date of handing over possession; (iii) pay Rs.50000/-, as costs of litigation; and (iv) any other relief which is deemed fit and proper in the facts and circumstances of the case.
3. The complainant stated that CCI Projects Private Limited (the opposite party) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. The opposite party launched a group housing project in the name of "Rivali Park", consisting of hotels, offices, shops, flats, duplexes, row houses, penthouses etc. at City Survey Nos.163A and 165, village Magathane, Western Express Highway, Taluka Borivali, Mumbai, in the year 2005 and made wide publicity of its facilities and amenities. The said project had two wings and the residential wing was named as "White Spring". The complainant was in need of residence for himself and was looking for it, in that locality. The complainant booked a 2BHK flat, in above project and deposited booking amount. The opposite party, vide Allotment letter dated 21.09.2010, allotted Flat No.12-A, saleable area approx. 781 sq.ft, for basic consideration of Rs.9411750/-, Wing A, "White Spring 1A", in project "Rivali Park" to the complainant. Clause-18 of the Allotment letter provides 36 months from the date of commencement of the construction, for completion of the construction with grace period of six months. Annexure-1 of Allotment letter provides "construction linked payment plan". As per demand, the complainant deposited instalments regularly. The opposite party executed an Agreement dated 06.10.2012, in respect of above flat. By the time of the execution of the agreement, the complainant had deposited Rs.4705875/-. The opposite party unilaterally changed the date of possession as "on or before August, 2014", in Clause-17 of the agreement. The opposite party, vide letter dated 13.07.2014, again unilaterally changed the date of possession as quarter 2 of 2015. The complainant had discussion on 10.01.2015 with the opposite party, then they informed that soft possession would be handed over in May, 2015. The opposite party, vide letter dated 15.04.2015, again unilaterally changed the date of possession as February, 2016. The complainant had meeting on 24.05.2015 with the opposite party, then they informed that they had terminated the agreement of earlier contractor and appointed a new contractor. The complainant claimed for delay compensation and asked to reimburse his rent. The complainant had meeting on 31.12.2015 with the opposite party, then they orally informed that expected date for possession as April, 2016. The opposite party vide letter dated 07.02.2016, informed that possession would be handed over on 11.05.2016. The complainant, through emails dated 07.02.2016, 16.02.2016 and 05.04.2016, expressed his anguish for unilaterally changing due date of possession, again and again. The complainant, through email dated 07.05.2016, again demanded for delay compensation. The opposite party, through email dated 19.06.2016, informed that fit-out process would to commence in the flat from 01.07.2016, expecting final possession up to 30.07.2016, subject to issue of "occupation certificate" and raised various demands, which were payable at the time of possession. The complainant agreed to deposit the demanded amount on 12.07.2016 but informed the opposite party that he would take final possession. The complainant cleared all the dues on 18.07.2016 (except future maintenance charges). The complainant visited the flat and noticed various deficiencies in construction of the flat. Under the agreement, there was no provision for fit-out possession, which were got noted to the representative of the opposite party on 25/26.07.2016. The opposite party asked to make good the deficiencies at his own level, he would reimburse its costs. Later on, vide email dated 22.09.2016, declined to reimburse the costs. The opposite party offered final possession on 06.11.2016. The opposite party, vide letter dated 17.11.2017, put a condition for signing NOC on their format, for taking possession, which was protested by the complainant. The opposite party, vide email dated 30.11.2017, again insisted to sign NOC, which was signed by the complainant, then possession was handed over on 01.12.2016. Although possession was unreasonably delayed but opposite party did not pay compensation for delay. Then this complaint was filed on 09.03.2017, alleging deficiency in service.
4. The opposite party has filed its written reply and contested the complaint. The opposite party did not dispute booking of the flat, allotment of the flat, execution of agreement and deposits made by the complainants. The opposite party stated that clause-17 of the agreement was subject to force majeure as mentioned in it i.e. (a) Non-availability of steel, cement, other building/construction materials, water or electricity supply; (b) War, civil commotion, strike, lockout, riots, acts of terrorism, epidemics, earthquake, flood, other act of God, any prohibitory order of any Court, Tribunal or Authority against the development of the said properties; (c) Any notice, rule, notification, circular of the Government and/or other public or competent authority, court, tribunal or quashi-judicial body or authority; (d) Delay in getting NOC, permissions, licences, approvals, consents, connections, plans occupancy certificate, completion certificate and permissions from MCGM & other authorities/bodies; (e) Change in any law, rules, regulations, bye-laws of any government authorities, public/local bodies affecting the development of the said properties; (f) .... (g). Under the agreement, the opposite party was not required to take consent of the buyers for changing due date of possession. The opposite party, time to time, informed the buyers in respect of delay. The construction was delayed for the reasons beyond the control of the opposite party and that period was liable to be extended under clause-17 of the agreement. Clause-18 of the agreement gives a right to the buyers to seek refund with interest @9% per annum. When the original date as fixed in the agreement expired in August, 2014, the opposite party offered the buyers to take their refund as the construction was likely to be delayed but the buyers did not agree for cancellation of the agreement and refund of their money. After receiving the letter of the complainants dated 07.06.2016, the opposite party again offered them to take refund with interest @9% per annum as per agreement, but they did not agree. As issuance of "occupation certificate" was delayed, the opposite party, issued letter for fit-out possession. The complainant, vide letter dated 29.07.2016, pointed out snags in the flat, which were removed and the opposite party consistently requested the buyer to re-inspect the flat but he did not turn-up. "Occupation Certificate" was issued on 29.10.2016. The opposite party, then issued letter of offer of possession in November, 2016. The agreement does not provide for delay compensation and demand of interest @18% per annum is unjust. The complaint has been filed suppressing material facts and is liable to be dismissed.
5. The complainant filed Affidavit of Evidence of Abhay Rashmikant Yagnik and documentary evidence. The opposite party filed Affidavit of Evidence of Abhijit Barua and documentary evidence. Both the parties have filed their short synopsis.
6. The counsel for the opposite party submitted that "commencement certificate" as issued on 15.03.2011 was in respect of basement + lower ground & upper ground floor + podium. Immediately after completion of podium, the opposite party applied for issue of full commencement certificate up to the level of 19th upper floor, which was issued on 22.03.2012. Development Control Regulation of Greater Bombay, 1991, was amended vide Notification dated 06.01.2012. In view of amendment in building regulation, the opposite party submitted revised layout plan, in October, 2012 which was approved on 19.07.2013 and "commencement certificate" was issued on 22.07.2013. National Green Tribunal imposed a ban on mining of sand across the India, vide order dated 05.08.2013. Due to which, there was approximately 20% shortage of sand in the market during August, 2013 to September, 2015 than the actual requirement. Therefore, the work on the spot had become slow and due to this reason project has been delayed for a period of 20 months. The delay has occurred due to amendment of statutory regulation and for the reasons beyond the control of the opposite party as such the opposite party is entitled to extension of the period of due date of possession. The agreement does not provide for delay compensation. When the project was delayed, the opposite party offered the buyers to quit from the agreement and take their refund with interest @9% per annum, in terms of clause-18 of the agreement, in the year 2014 and again in the year 2016. But they did not agree as such now they cannot claim any compensation. The complainant took possession and signed settlement deed on 30.11.2016 and the complaint is not maintainable as held by this Commission in Ambika Construction Vs. Martin J. Pinto, 2010 SCC OnLine NCDRC 254..
7. We have considered the arguments of the counsel for the parties and examined the record. So far as settlement deed dated 30.11.2016, are concerned, the complainant has stated that he had made his signatures on this deed under coercion as in spite of full payment, the opposite party had put a condition for signing the document, for handing over possession. From the various emails communications between the parties, it is proved that signing of the document dated 30.11.2016, was a condition precedent, for handing over possession. Clause-20 of the agreement requires to handover possession as soon as full payment is made, after notification for possession. Insisting to sign settlement deed is in violation of clause-20 of the agreement. Such type of settlement has been ignored by Supreme Court in Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512. Supreme Court in Central Inland Water Transport Corporation Ltd. Vs. Brojo Nath Ganguly, (1986) 3 SCC 156 and Kalpraj Dharamshi Vs. Kotak Investment Advisor Ltd., (2021) 10 SCC 401, held that the court will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract or an unfair and unreasonable clause in a contract, entered into between the parties, who are not equal in bargaining power. Where a man has no choice rather no meaningful choice but to give his consent to a contract or to sign the dotted line in a prescribed and standard form or to accept as set of rules or part of the contract, howsoever unfair, unreasonable and unconsciousable a clause in that contract or form or rule may be.
8. Clause-18 of the Allotment letter provides 36 months period from the date of "commencement of the construction", for completion of the construction with grace period of six months. A perusal of the record shows that "commencement certificate" was issued on 15.03.2011 and 42 months period expired on 14.09.2014. The agreement was executed on 06.10.2012 in which, due date of possession was mentioned as August, 2014. Since the agreement was executed after amendment in Development Control Rules, 1991 as such all the consequent contingencies were very much in the knowledge of the opposite party at the time of agreement as such it cannot be a force majeure reason for delaying the construction. Payment plan was "construction link payment plan". The opposite party has not taken plea that instalments were not realized during 06.01.2012 to 22.07.2013. In the absence of any evidence that during 06.01.2012 to 22.07.2013, the construction was stopped, the opposite party cannot take any benefit. "Occupation Certificate" was issued on 29.10.2016 and letters offering possession were issued on 06.11.2016, as such there is delay in offer of possession.
9. Next argument of the counsel for the opposite party is that National Green Tribunal imposed a ban on mining of sand across the India, vide order dated 05.08.2013. Due to which, there was approximately 20% shortage of sand in the market during August, 2013 to September, 2015 than the actual requirement. Therefore, the work on the spot had become slow and due to this reason project has been delayed for a period of 20 months. We do not agree with this argument. A perusal of order dated 05.08.2013 shows that National Green Tribunal has banned illegal mining operation of sand, therefore, this cannot be treated as a ban on mining operation. On the other hand, the payment plan was "construction linked payment plan" and the opposite party had been realising the instalment of various levels of construction and upto the stage of "terrace slab" had been realised on 19.08.2014. So far as shortage of sand in the market is concerned, the opposite party has relied upon some letters of the contractors without filing their affidavit, which cannot be relied upon at all. therefore, it cannot be said that construction was delayed on the spot due to order dated 05.08.2013.
10. The counsel for the opposite party submitted that under clause 18 of the agreement, the home buyers are given liberty to cancel the agreement for delay beyond the period of three months of due date and seek for refund along with interest @9% per annum from the date of respective deposit till the date of refund. At the time of agreement, it was very much clear to the home buyers that the project was delayed and with the mutual consent, date of delivery of possession was re-fixed as August, 2014. In August, 2014 when the possession was further delayed, the opposite party gave an option to the home buyers to cancel the agreement and take their refund. Similar option was also given in November, 2016 to the home buyers, but they had not exercised their right to cancel the agreement. This argument has not been accepted by Supreme Court in DLF Home Developers Limited Vs. Capital Green Flat Buyer's Association, (2021) 5 SCC 537.
11. The argument that the agreement does not contain any provision for delay compensation, as such, claim of delay compensation is not admissible under the law, has also no substance. Section 73 of Contract Act, 1872 provides for compensation due to non-fulfilling of the obligations under the contract by one contracting party, if the other contracting party suffers from any loss. Delay in offer of possession amounts to deficiency in service and the home buyer is entitled for compensation i.e. loss of rentals as held by Supreme Court in Lucknow Development Authority Vs. M.K. Gupta, (1994) 1 SCC 243 and Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65. In the present case, due to non-fulfilling the obligation in providing possession of the flat within time, the home buyers had suffered the loss, inasmuch as they were paying interest on the money advanced by them and also paying the rent of the accommodation in which they were staying. Therefore, the opposite party is liable to reimburse the loss. Supreme Court in Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512 and DLF Home Developers Limited Vs. Capital Green Flat Buyer's Association, (2021) 5 SCC 537, held that interest @6% per annum on the deposit of the home buyer would be appropriate compensation for delay in possession. The home buyers are entitled for delay compensation in the form of interest @6% per annum on their deposit from due date of possession till the offer of possession.
12. So far as the objection of the home buyers for club membership charges as well as advance maintenance charges are concerned, this was provided in Clause 21 of the agreement, therefore, demand of the opposite party in this respect, is not illegal.
ORDER
In view of the aforesaid discussions, the complaint is partly allowed. The opposite party is directed to pay delay compensation for the period of September, 2014 to October, 2016 in the form of interest @6% per annum on the deposit of the home buyers within a period of two months. The opposite party shall issue a fresh statement of account duly adjusting the delay compensation and shall pay that excess amount to the complainants along with statement of account. On settlement of account, the opposite party will execute conveyance deed in favour of the complainants, in terms of the agreement, if not already executed without any further delay.
......................J RAM SURAT RAM MAURYA PRESIDING MEMBER ...................... DR. INDER JIT SINGH MEMBER