National Consumer Disputes Redressal
B. Rudragouda vs M/S. Godrej Buildwell Pvt. Ltd. on 6 December, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 3796 OF 2017 1. B. RUDRAGOUDA R/O. H.NO.2199, BKG MANSION, KHB COLONY, SANDUR, BELLARY-583119 KARNATAKA ...........Complainant(s) Versus 1. M/S. GODREJ BUILDWELL PVT. LTD. THROUGH ITS MANAGING DIRECTOR, HAVING ITS REGISTERED OFFICE AT GODREJ BHAWAN, 4A HOME STREET, FORT, MUMBAI MAHARASHTRA ...........Opp.Party(s) CONSUMER CASE NO. 3797 OF 2017 1. B. RUDRAGOUDA S/O SHRI B.KUMARAGOUDA, R/O H.NO-2199, BKG MANSION, KHB COLONY, SANDUR-583119, DISTRICT : BELLARY KARNATAKA ...........Complainant(s) Versus 1. M/S. GODREJ BUILDWELL PVT. LTD. THROUGH ITS MANAGING DIRECTOR, HAVING ITS REGISTERED OFFICE AT, GODREJ BHAWAN,4A HOME STREET, FORT, MUMBAI MAHARASHTRA ...........Opp.Party(s) CONSUMER CASE NO. 3801 OF 2017 1. B. NAGANA GOUDA THROUGH HIS GPA HOLDER, SRI.B.RUDRAGOUDA S/O SHRI B.KUMARGOUDA, R/O H.NO-2199. BKG MANSION, KHB COLONY, SANDUR-583119 DISTRICT : BELLARY KARNATAKA ...........Complainant(s) Versus 1. M/S. GODREJ BUILDWELL PVT. LTD. THROUGH ITS MANAGING DIRECTOR, HAVING ITS REGISTERD OFFICE AT GODEREJ BHAWAN, 4A HOME STREET, FORT MUMBAI MAHARASHTRA ...........Opp.Party(s) CONSUMER CASE NO. 3802 OF 2017 1. B. NAGANA GOUDA THROUGH HIS GPA HOLDER SRI. B. RUDRAGOUDA S/O SHRI B. KUMARAGOUDA R/O H NO. 2199, BKG MENSION, KHB COLONY, SANDUR 583119, BELLARY KARNATAKA ...........Complainant(s) Versus 1. M/S. GODREJ BUILDWELL PVT. LTD. THROUGH ITS MANAGING DIRECTOR HAVING ITS REGISTERED OFFICE AT GODREJ BHAWAN, 4A HOME STREET, FORT, MUMBAI MAHARAHSTRA ...........Opp.Party(s) CONSUMER CASE NO. 3803 OF 2017 1. B. KAMALAMMA R/O. H. NO. 2199, BKG MANSION, KHB COLONY, SANDUR, BELLARY-583119 KARNATAKA ...........Complainant(s) Versus 1. M/S. GODREJ BUILDWELL PVT. LTD. THROUGH ITS MANAGING DIRECTOR, HAVING ITS REGISTERED OFFICE AT GODREJ BHAWAN,4A HOME STREET, FORT, MUMBAI MAHARASHTRA ...........Opp.Party(s) CONSUMER CASE NO. 3804 OF 2017 1. B. KAMALAMMA THROUGH HER GPA HOLDER, SRI.B RUDRAGOUDA W/O LATE SHRI B.KUMARGOUDA, R/O H.NO-2199. BKG MANSION, KHB COLONY, SANDUR 583119 DISTRICT : BELLARY KARNATAKA ...........Complainant(s) Versus 1. M/S. GODREJ BUILDWELL PVT. LTD. THROUGH ITS MANAGING DIRECTOR, HAVING BHAWAN, 4A, HOME STREET, FORT, MUMBAI MAHARASHTRA ...........Opp.Party(s) CONSUMER CASE NO. 3805 OF 2017 1. B.K. BASAVARAJ S/O SHRI B. KUMARAGOUDA, THOROUGH HIS GPA HOLDER SRI B. RUDRAGOUDA R/O H. NO. 2199, BKG MANSION, KHB COLONY, SANDUR-583119 BELLARY KARNATAKA ...........Complainant(s) Versus 1. M/S. GODREJ BUILDWELL PVT. LTD. THROUGH ITS MANAGING DIRECTOR, HAVING ITS REGD. OFFICE AT GODREJ BHAWAN, 4A HOME STREET, FORT, MUMBAI MAHARASHTRA ...........Opp.Party(s) CONSUMER CASE NO. 3806 OF 2017 1. B.K. BASAVARAJ R/O. H. NO.2199, BKG MANSION, KHB COLONY, SANDUR BELLARY-583119 KARNATAKA ...........Complainant(s) Versus 1. M/S. GODREJ BUILDWELL PVT. LTD. THROUGH ITS MANAGING DIRECTOR, HAVING ITS REGISTERED OFFICE AT GODREJ BHAWAN, 4A, HOME STREET, FORT, MUMBAI MAHARASHTRA ...........Opp.Party(s) BEFORE: HON'BLE MR. SUBHASH CHANDRA,PRESIDING MEMBER For the Complainant : Mr Jeevesh Nagrath, Advocate with Mr Sameer Abhyankar, Advocate Ms Nish S and Ms Kirti Mermar, Advocates For the Opp.Party : Mr Sudhir K Makkar, Sr Advocate with Mr Kapil Madan, Ms Ramya Verma and Ms Yogita Rathore, Advocate Dated : 06 Dec 2022 ORDER PER MR SUBHASH CHANDRA, PRESIDING MEMBER This consumer complaint has been filed under section 21 (1) (a) of the Consumer Protection Act, 1986 (in short, 'the Act') against the opposite party M/s Godrej Buildwell Pvt., Ltd., alleging deficiency in service and unfair trade practice in respect of the apartment booked by the complainants in a project promoted and executed by the opposite party.
2. By this common order, all the above-mentioned complaints are proposed to be disposed since the complaints relate to the same project 'Godrej Platinum' of the same opposite party viz., - M/s Godrej Buildwell Pvt. Ltd., and involve the same set of facts. For the sake of convenience, the facts are taken from CC no.3796 of 2017.
3. The facts, in brief, are that on 09.10.2013 the complainant entered into an Agreement to Sell (in short, 'the Agreement') relating to a four bed room apartment with the opposite party in the project 'Godrej Platinum', in Hebbal Village, Kasaba Hubli, Bengaluru North Taluk. Apartment no. GODPMA 0602 ad-measuring 3905 sq ft on the 6th floor of Wing A along with two car parking spaces was allotted by the opposite party for a sale consideration of Rs.1,79,82,000/-. An Agreement for Construction (Construction Agreement) was also executed between the parties for Rs. 1,79,82,000/- on 09.12.2013. As on the date of the Agreement, Rs.35,96,400/- had been paid by the complainant to the opposite party, inclusive of booking amount of Rs.23,43,000/-. As per clause 3 of the agreement, the project was to be completed within 36 months i.e., by September 2015 with six months grace period, i.e., by March 2016. As per clause 22 of the Agreement, the opposite party undertook to compensate the complainant for delay, if any, in the handing over of the apartment @ 12% per annum. As per the Construction Agreement signed between the parties, various instalments of payments were made between 2013 and 2015 by the complainant. However, the possession of the said apartment was not offered till March 2017. On 14.04.2017, the opposite party issued an invoice for final payment prior to taking possession of the said flat. It is averred by the complainant that the opposite party did not pay 12% interest that was due to him on account of the delay in completion of the project despite requests for the same. On 22.07.2017, the opposite party offered him four additional parking slots since the complainant along with seven other family members had booked eight apartments in the project. According to the complainant this was an admission by the opposite party of the delay and an acknowledgment of the fact that compensation was due to be paid to the complainant. However, this offer was not acceptable to the complainant. He sent a legal notice on 06.11.2017 which was replied to in vague terms by the opposite party on 27.11.2017. Thereafter the present complaint was filed in December 2017, with the following prayer:
Declare that the OP has committed deficiency of service;
Direct the OP to forthwith deliver possession of the apartment bearing no.GODPMA0602 measuring 3905 sq ft of super built up area on the 6th Floor of Wing A of the project to the complainant without levy of any holding charges whatsoever, and register the same in the name of the complainant;
Direct the OP to pay to the complainant a sum equivalent to the interest calculated at the rate of 12% per annum on the sum of Rs.3,29,45,734/- calculated from March 2016 till the date of actual payment thereof, towards compensation for the deficiency in service committed by the OP;
Award cost of the present complaint to the complainant; and Pass any such further orders as may be deemed just and expedient in the facts of the present case.
4. It is the complainant's case that as per clause 22 of the agreement he is entitled to be compensated @ 12% simple interest for the delay in handing over the possession which amounts to deficiency in service. He is therefore, seeking to be compensated by the complainant for the delay in offering possession for the period April 2016 to 23.06.2021. He has also contended that in view of the delay, he is not required to pay holding charges to the opposite party.
5. The opposite party has contested the complaint by way of written statement. It has not been denied that there has been some delay in completion of the project. However, it is contended that clause 22 of the Agreement relating to compensation was subject to clause 20 providing for exemption on account of force majeure. It is his case that the delay is of a minor nature and was due to a notice dated 30.11.2013 by the Bruhat Bengaluru Mahanagara Palika (in short, 'the BBMP) directing the opposite party to stop the construction immediately, in view of the fact that the height of the project had been questioned. It is stated that the opposite party was directed on 27.01.2014 by the BBMP to obtain a fresh 'No Objection Certificate' (NOC) from the Airport Authority of India (in short, 'AAI'). This NOC was obtained by the opposite party on 11.12.2015. However, since the AAI reduced the height of the project from 78.20 mtrs to 49.85 mtrs, the opposite party was required to obtain a revised building plan limiting the construction to 13 floors as against 21 floors planned earlier. The revised building plan was approved on 19.08.2016 and construction was completed by the opposite party at an expeditious pace. On 21.01.2017 an Occupation Certificate (OC) was received from the concerned authorities and on 17.03.2017 an offer of possession was conveyed to the complainant. However, the complainant failed to take the possession. It is contended by the opposite party that the complainant is liable to pay Rs.28,77,367/- comprising balance sale consideration of Rs.17,43,836/-, interest of Rs.2,74,979/- for delay in payment, holding charges of Rs.2,40,000/-, maintenance and sinking fund of Rs.4,31,112/- for the first year and Rs.1,87,440/- for the second year. It is further contended that the complainant is trying to evade payment of the requisite payments by way of this complaint and is a defaulter in making the full payments.
7. Parties led their evidence by way of affidavit. Both the parties have filed their rejoinder/written statement and also short synopsis of their arguments. I have heard the learned counsels for the parties and perused the records carefully.
8. On behalf of the opposite party, preliminary objections have been taken on the ground that the complainant is not a 'consumer' under the meaning of section 2 (d) of the Act since he also owns other properties in other projects of the opposite party and is therefore an investor. It is contended that clause 20 relating to force majeure applies since the delay is not attributable to the opposite party but is on account of Government orders which are covered under the said clause. Notice issued by the BBMP and orders thereafter to stop work constitute force majeure according to the opposite party. The delay in offering possession is not inordinate and is attributable to the notice issued by the BBMP pursuant to the issue of height clearance by the AAI. It is further contended that the complainant himself is a defaulter as he has not made the payment of the final instalment along with other dues amounting to Rs.28,77,367/-.
9. The opposite party has admitted that there was delay in the construction of the project. It is seen that the delay in offer of possession is of approximately one year since the offer of possession as per the Agreement was to have been made in March 2016 but was made in March 2017 as admitted by the opposite party.
10. The complainant has relied on clause 22 of the agreement to press for compensation at 12% per annum. This clause reads as under:
22. In the event of there being any delay for reasons otherwise set out in Clause 20 above and the First party has not committed any default of any of the terms nor delayed nor has been in default of payment of any of instalment payable by the First Party as per Annexure B then in that event:
(a) The developer shall become liable to pay to the First Party 12% per annum on the amounts received for such delay in handing over the Schedule 'C' Apartment. The First Party has agreed and recognize that the amount paid under this clause is adequate compensation. The said compensation is payable by the Developer at the time of registration of the Sale Deed of undivided share or at the time of handing over of the possession whichever is later.
Or
(b) The First Party can choose to terminate the agreement by given 30 days' notice and on such termination this agreement and the agreement for sale shall stand terminated. The Developer shall sell the Schedule 'C' Apartment under the scheme and all the sale consideration received from such sale shall belong to the First Party herein. In the event of the Schedule 'C' Apartment under the scheme is not sold within 6 months of the First Party terminating this agreement the Developer shall become liable to pay interest on the amounts received under this agreement at the rate of 12% per annum. All the overdue interest, statutory payments made till date by the First party viz., VAT, Service Tax etc., till the date of such termination will be non-refundable and not paid to the First party under this clause.
It is apparent from a reading of this clause that the opposite party has undertaken to compensate the complainant @ 12% simple interest per annum for any period of delay in the completion of the project. An alternative of exiting from the Agreement is also provided which entails foregoing a substantial part of the deposited amount. It is the case of the opposite party that this clause was subject to the provisions for force majeure in clause 20 which reads as under:
"20. The date stipulated for delivery of the Schedule 'C' Apartment is subject to variation on account of force majeure or acts of God or Government Orders' Restriction/ delay, controls and other reasons which are beyond the control of the Developer. The Developer shall make every effort to obtain occupation certificate, electrical, sanitary and water connections within the stipulated date. However, the Developer shall under no circumstances be responsible for any such delays being caused for obtaining the commencement certificate, occupancy certificate, electrical, sanitary and water connections from concerned Statutory Authorities and to this effect, the First Party shall not be entitled to claim any damages/ losses etc. In whatsoever manner against the Developer under any circumstances on the grounds herein above or for the reasons incidental to the said grounds and the First Party fully indemnifies the Developer to this effect".
11. A plain reading of this clause indicates that the opposite party as the developer indemnifies himself against various situations arising from Government orders and/ or delays arising from statutory permissions that the developer is obligated to obtain in the process of execution of the project.
12. It would be useful to consider the grounds on which the opposite party is seeking the application of clause 20. It is admitted by the opposite party that the delay was on account of withdrawal of the NOC issued by the AAI with regard to the height of the apartment complex. Notice to stop work by the BBMP was also pursuant to the objection of the AAI on this ground for which reasons the BBMP had directed the opposite party to obtain a revised NOC from the AAI. It is abundantly clear that the necessity for re-addressing the issue of height clearance arose since there was an objection from AAI. In the revised NOC, which was obtained on 11.12.2015, admittedly the opposite party had to reduce the height of the building from 78.20 mtrs to 49.85 mtrs and thereafter obtain a revised building plan on 19.08.2016 from the BBMP limited to 13 floors instead of 21 floors approved earlier. It is, therefore, clear that the building plan permission obtained on 07.07.2011 by the opposite party had to be corrected when the same was objected to by the statutory authorities through a revision of height which impacted the number of floors proposed to be constructed. This correction was necessitated due to the opposite party having obtained a plan sanction based on incorrect data provided by the opposite party. Therefore, attributing delay in the project to 'Government orders' as mentioned in clause 20 is erroneous and not justifiable. The delay is solely attributable to the opposite party which was responsible for obtaining a building plan licence that was in compliance with the Rules and Regulations of the concerned statutory regulatory authorities. From the admissions of the opposite party itself, it is seen that this was not the case and therefore, corrective action had to be undertaken by it before the revised building plan could be issued by the BBMP. It is also not denied by the opposite party that during this period it continued to demand instalments for the apartment. Attributing this delay, which amounts to deficiency in service, to force majeure to deny the complainant the compensation that had been agreed to under the Agreement also amounts to an unfair trade practice as the Agreement was drafted by the opposite party and presented for signature to the complainant. While the provision for force majeure covers the delay on account of Government orders resulting in the delay in construction and other reasons which are beyond the control of the developers, in the present case, the delay is not attributable to these conditions of force majeure for the foregoing reasons. The complainant has admitted the delay and his liability by making an offer of 4 additional parking slots. He cannot resile from it now.
13. The complainant has relied upon the judgment of the Hon'ble Supreme Court in DLF Home Developers Ltd., and Ors., vs Capital Greens Flat Buyers Association and Ors., (2021) 5 SCC 537 wherein it was held that force majeure would not be available in the event that the fault is of the developer, as below:
6. ............., it is evident that a delay in the approval of building plans is a normal incident of a construction project. A developer in the position of the appellant would be conscious of these delays and cannot set this up as a defence to a claim for compensation where a delay has been occured beyond the contractually agreed period for holding over possession.........."
14. There is force in this argument in the present case as the Hon'ble Apex Court has held that a developer should be aware that delays and approval of the building plans are normal incidents of a construction project and therefore, force majeure would not be available if the fault is that of the developer. Complainant has also relied upon the orders of this Commission in Manoj Kawatra and Others vs Pioneer Urban Land and Infrastructure Ltd., in CC no.1442 of 2018 decided on 01.11.2021, that a developer cannot take shelter under the force majeure clause unless it is able to show that the event was unforeseen and unexpected. A building plan that was prepared by the developer on the basis of incorrect elevation data cannot be construed to be unforeseen and unexpected.
15. As regards holding charges, the complainant has again relied upon the Capital Greens Flat Buyer Association (supra) where this Commission had held that the opposite party has no entitlement in law to claim any holding charges whatsoever from the complainant and that if any charges are to be levied that cannot be levied before the date of registration. The opposite party on the other hand has contended that the period of delay in paying the charges by the complainant after the filing of the complaint needs exclusion as the complainant had agreed per a consent order dated 21.01.2021 to pay charges as per invoice dated 14.04.2017. However, order dated 29.01.2021 cannot be interpreted as a 'consent order'. This order came to be passed in response to an IA filed by the complainant seeking possession of the apartment.
16. The opposite party argued that the complainant is not a 'consumer' under the terms of section 2 (1) (d) of the Act. During arguments it was contended that his case was distinguishable from that of Kavita Ahuja vs Shipra Estate Ltd., in view of the Hon'ble Supreme Court's judgment in WAS Punjab University vs Unit Trust of India - (2015) 2 SCC 669 which held that any transaction, the object of which is to earn profit/ appreciation will fall under the purview of commercial activity. It has also relied upon this Commission's orders in TDI Infrastructure Pvt. Ltd., vs Rajesh Jain (2015) SCC Online NCDRC 4656 which distinguished Kavita Ahuja (supra). It has been contended that despite an IA filed by the opposite party the complainant has failed to demonstrate that they have any other property in Bangalore and the onus was on him to show that he is a consumer. In not taking possession of the flat, the opposite party argues, the complainant's intention is evidently to not take possession or to not stay in the flat as he intends to use it for a commercial purpose.
17. The arguments of the opposite party that the complainant is not a consumer and has booked the flat in question as an investor for speculative gains have been considered. The issue had been decided at the time of admission on 04.01.2019 of the complaint and it had been held that "we are convinced that the complainant is a 'consumer' as defined under section 2 (1) (d) of the Consumer Protection Act, 1986 and the consumer complaint is maintainable. IA no. 14069 of 2018 and other IAs on maintainability are disposed off accordingly". 'Commercial purpose' has been discussed in the Hon'ble Supreme Court's judgment in Laxmi Engineering Works vs P S G Industrial Institute (1995) 3 SCC 583 and it has been held that a person may buy 2 or 3 houses if the requirement of his family cannot be met in one house. Therefore, it would be incorrect to say that in every case where a person owns more than one house, the acquisition of the house is for commercial purpose. It is therefore, not possible to accept the contentions of the opposite party that the complainant is a commercial investor and not a 'consumer' under the Act as it has not been proven otherwise by him.
18. As regards the prayer of the complainant that he be exempted from payment of all holding charges, it is seen that the Agreement requires the complainant as the purchaser to pay the opposite party certain charges at the time of final instalment prior to taking over possession. This prayer of the complainant amounts to rewriting the terms of the Agreement which is not possible. The payment of holding charges by an allottee to the developer, if provided for in an Agreement, has a legitimate and justifiable basis since the developer is required to address issues of upkeep not only for the allottee but also in the interest of other allottees in a group housing project. It is also necessary to ensure that allottees do not delay taking over possession for one reason or another. The complainant's justification for wavier of holding charges is the delay in the offer of possession. As per order dated 29.01.2021, the complainant on instructions undertook to deposit all charges raised by the opposite party. This order reads as under:
Learned counsel for the complainant on instructions submits that the complainant is ready to deposit all the charges raised by the opposite party in its final invoice dated 14.04.2017 within two weeks and that since the opposite party has already made an offer of possession vide letter dated 17.03.2017, they be directed to give the possession of the subject property. He further submits that the complainant is ready to pay all the miscellaneous expenses and the stamp duty within 15 days and the opposite party be also directed to execute the sale deed. He submits that the Complainant is ready to pay the maintenance charges and the sinking funds from the date of the possession and that the Complainant shall not dispose of the property during the pendency of the Complaint. It is further submitted that this offer is without prejudice to the rights and contentions of the parties.
Learned Counsel for the opposite party is present.
Heard. In view of the submissions made on behalf of the complainant, it is directed that without prejudice to the rights and contentions of the parties, the complainant shall deposit all the charges payable as per the final invoice dated 14.04.2017 and other miscellaneous charges and the stamp duty with the opposite party within three weeks from today and within four weeks thereafter, the opposite party shall hand over the physical possession along with execution of the sale deed (subject to the business being run in the relevant office during this period).
Application stands disposed of.
The Complainant shall comply with the directions issued in the order dated 16.09.2020 within two weeks."
19. Complainant has also sought compensation for the delay. It would be excessive if both the reliefs were to be considered. Apart from the fact that complainant had undertaken to deposit all charges, a legitimate due to the opposite party cannot be denied. From the documents on record, it is apparent that the possession of the flat was to be offered on 12.03.2016 by the opposite party. The offer of possession was actually made on 17.03.2017. Holding charges from this date are, therefore, just and should be paid till the date of acceptance of possession.
20. The issue of compensation for delay in possession of an apartment booked has been addressed in a catena of judgments by the Hon'ble Apex Court and this Commission. In Pioneer Urban Land and Infrastructure Ltd., vs Govindan Raghavan and other connected matters in CA no. 3182 of 2019 dated 02.04.2019, it was laid down by the Hon'ble Supreme Court that in case a builder offers possession after the due date of promised possession, it is the discretion of the allottee to either accept the possession or to seek a full refund of his money with compensation. The complainant is, therefore, well within his right to seek compensation for delay in possession. The agreement drafted by the opposite party itself provides for compensation at 12% for delay on the part of the opposite party (clause 22). Any attempt to seek exemption from this clause must be on the basis of strong evidence and arguments. In the instant case, it is evident that the building plan sanction had to be revised on account of objections from a statutory authority. The responsibility for the delay cannot, therefore, be latched on to a force majeure cause.
21. From the pleadings of the complainant and the documents filed, it is seen that he has disputed the letter of offer of possession, which according to the opposite party was issued on 17.03.2017. It is contended by the complainant that in view of the fact that on that date there was no electricity connection in the flat as evidenced by the Electricity Safety Approval from the Chief Electrical Inspector to Government, Electrical Inspectorate, Bangalore was available only on 22.03.2017 and no water connection as evidenced by letter dated 01.10.2018 of Bangalore Water Sanitation and Sewage Board (BWSSB), Bangalore as per which additional water supply and sanitation connection was made available. This has not been opposed by the opposite party. In view of this, it is averred that the offer of possession dated 17.03.2017 cannot be considered to be a valid offer.
22. It is also contended by the complainant, on the basis of orders of this Commission in Town Improvement Trust vs Kapil Bansal, in RP No.96 of 2017 dated 21.04.2017, which held that:
"the opposite party cannot escape its liability just by sending letter dated 21.02.2014 offering the possession of the flat to the complainant which was never complete in all the respects. Thus, the offer made by the opposite party was not a valid offer.
23. The complainant's case is that the offer of possession dated 1.03.2017 was not a valid offer since there were several incomplete elements in the said flat, even though the opposite party had obtained an occupancy certificate (OC) in respect of the same. It is contended that the opposite party/ builder had obtained the Electrical Safety Certificate on 22.03.2017 and water connection on 01.10.2018. In support, he has relied upon letters issued by the concerned authorities. However, as the statutory documents were in place as on 22.03.2017 the complainant should have taken possession on that date. As is evident from the records, and as admitted by the complainant, possession was actually taken on 23.06.2021, the date on which the sale deed was executed. It is moot whether the complainant is entitled to compensation for delay for this period, i.e., April 2016 to 23.06.2021. It is also a moot issue whether the opposite party is liable to claim holding charge for this period as the complainant did not accept possession for this duration.
24. The letters of the Chief Electrical Inspector dated 22.03.2017 and of BWSSB dated 01.10.2018 are for electrical safety and additional water supply and sanitation. No document has been filed by the complainant that due to these letters, the occupancy certificate was withdrawn or the offer of possession was not complete. Clause 22 of the Agreement is specific that water supply to the project 'Godrej Platinum' will be serviced through the BWSSB connection for 'Godrej Woodsman Estate'. An offer of possession based on occupancy certificate (OC) needs to be considered as valid. Additional sanction or safety certificates once an OC has been issued by the concerned statutory authority are not indicative of the offer of possession being incorrect or invalid. For this reason alone, the offer of possession cannot be held to be incomplete.
25. For the reasons mentioned above, the complaints are liable to succeed. The complaint is therefore, partly allowed and the following directions are issued:
The opposite party to compensate the complainant for the delay in offering possession from the promised date, i.e., April, 2016 till the date of actual offer of possession 23.06.2021 @ 12% per annum simple interest from the date of respective deposits;
Complainant to pay holding charges from the promised date of possession (April 2016 ) to the date of taking over possession;
Opposite party to hand over possession of the apartment to the complainant after completion of formalities of final payments and registration;
Opposite party to pay litigation cost of Rs.50,000/- to the complainant; and Order be complied within eight weeks from the date of this order failing which interest rate shall be 15% per annum.
26. CC no. 3797 of 2017 Mr B Rudragouda had booked a four bedroom apartment bearing no. GODPMB0707, 7th Floor, B Wing, ad-measuring 3850 sq ft towards sale consideration, cost of construction and other dues amounting to Rs.3,30,39,584/- to the opposite party and offer of possession was made on March 2017 against the promised date of possession on March 2016. In terms of order no. 3796 of 2017, the complainant is entitled to refund of Rs.3,30,39,584/- deposited with compensation for delay of 12% per annum from the dates of respective deposits. However, complainant shall pay the final instalment with holding charges with effect from March 2017 the date of offer of possession. Opposite party shall ensure registration and possession of the apartment within 8 weeks failing which the complainant shall be at 15% per annum.
27. CC no. 3801 of 2017 B Nagana Gouda had booked a four bedroom apartment bearing no. GODPMB0307, 3rd floor, B Wing, ad-measuring 3850 sq ft towards sale consideration, cost of construction and other dues amounting to Rs.3,22,18,577/- to the opposite party and offer of possession was made on March 2017 against the promised date of possession on March 2016. In terms of order no. 3796 of 2017, the complainant is entitled to refund of Rs.3,22,18,577/- deposited with compensation for delay of 12% per annum from the dates of respective deposits. However, complainant shall pay the final instalment with holding charges with effect from March 2017, the date of offer of possession. Opposite party shall ensure registration and possession of the apartment within 8 weeks failing which the complainant shall be at 15% per annum.
28. CC no. 3802 of 2017 B Nagana Gouda had booked a four bedroom apartment bearing no. GODPMB0302, 3rd Floor, A Wing, ad-measuring 3796 sq ft, towards sale consideration, cost of construction and other dues amounting to Rs.3,13,97,473/- to the opposite party and offer of possession was made on March 2017 against the promised date of possession on March 2016 In terms of order no. 3796 of 2017, the complainant is entitled to refund of Rs.3,13,97,473/- deposited with compensation for delay of 12% per annum from the dates of respective deposits. However, complainant shall pay the final instalment with holding charges with effect from March 2017, the date of offer of possession. Opposite party shall ensure registration and possession of the apartment within 8 weeks failing which the complainant shall be at 15% per annum.
29. CC no. 3803 of 2017 Smt B Kamalamma had booked a four bedroom apartment bearing no. GODPMA0402 on the 4th floor, A wing, ad-measuring 3905 sq ft towards sale consideration, cost of construction and other dues amounting to Rs.3,13,25,047/- to the opposite party and offer of possession was made on March 2017 against the promised date of possession on March 2016. In terms of order no. 3796 of 2017, the complainant is entitled to refund of Rs.3,13,25,047/- deposited with compensation for delay of 12% per annum from the dates of respective deposits. However, complainant shall pay the final instalment with holding charges with effect from March 2017, the date of offer of possession. Opposite party shall ensure registration and possession of the apartment within 8 weeks failing which the complainant shall be at 15% per annum.
30. CC no. 3804 of 2017 Smt B Kamalamma had booked a four bedroom apartment bearing no. GODPMB0107 on the 1st Floor in B Wing, ad-measuring 3913 sq ft towards sale consideration, cost of construction and other dues amounting to Rs.3,23,25,047/- to the opposite party and offer of possession was made on March 2017 against the promised date of possession on March 2016. In terms of order no. 3796 of 2017, the complainant is entitled to refund of Rs.3,23,25,047/- deposited with compensation for delay of 12% per annum from the dates of respective deposits. However, complainant shall pay the final instalment with holding charges with effect from March 2017, the date of offer of possession. Opposite party shall ensure registration and possession of the apartment within 8 weeks failing which the complainant shall be at 15% per annum.
31. CC no. 3805 of 2017 B K Basavaraj had booked a four bedroom apartment bearing no. GODPMB0407 on the 2nd Floor in B Wing, ad-measuring 3915 sq ft towards sale consideration, cost of construction and other dues amounting to Rs.3,29,87,689/- to the opposite party and offer of possession was made on March 2017 against the promised date of possession on March 2016. In terms of order no. 3796 of 2017, the complainant is entitled to refund of Rs.3,29,87,689/- deposited with compensation for delay of 12% per annum from the dates of respective deposits. However, complainant shall pay the final instalment with holding charges with effect from March 2017, the date of offer of possession. Opposite party shall ensure registration and possession of the apartment within 8 weeks failing which the complainant shall be at 15% per annum.
32. CC no. 3806 of 2017 B K Basavaraj had booked a four bedroom apartment bearing no. GODPMB0202 on the 2nd Floor in A Wing, ad-measuring 3915 sq ft towards sale consideration, cost of construction and other dues amounting to Rs.3,20,34,188/- to the opposite party and offer of possession was made on March 2017 against the promised date of possession on March 2016. In terms of order no. 3796 of 2017, the complainant is entitled to refund of Rs. Rs.3,20,34,188/- deposited with compensation for delay of 12% per annum from the dates of respective deposits. However, complainant shall pay the final instalment with holding charges with effect from March 2017, the date of offer of possession. Opposite party shall ensure registration and possession of the apartment within 8 weeks failing which the complainant shall be at 15% per annum.
33. Before parting, it is made clear that the interest @ 12% per annum on the refund of the amount which has been awarded as compensation and not factually as interest on refund and, therefore, there is no question of deducting any tax on source.
34. Accordingly, all the above-mentioned complaints are disposed of in the above terms.
...................... SUBHASH CHANDRA PRESIDING MEMBER