National Consumer Disputes Redressal
M/S. Lakadwala Developers P. Ltd. vs Amarjeet Singh Baryam Singh on 27 February, 2020
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 276 OF 2013 (Against the Order dated 08/01/2013 in Complaint No. 174/2011 of the State Commission Maharashtra) 1. M/S. LAKADWALA DEVELOPERS P. LTD. 2/3, KHUSHNUMA APARTMENT, BYCULLA STATION ROAD, AGRIPADA, MUMBAI-400011 2. SHRI. ANWAR ESMIL LAKDAWALA A-21, 105 GORDON HALL APARTMENTS, C.H.S. LTD., SOFIYA ZUBAIR ROAD, NAGPADA MUMBAI-400008 3. SHRI EBRAHIM ESMAIL LAKDAWALA C-11, 105 GORDON HALL APARTMENTS C.H.S. LTD., SOFIYA ZUBAIR ROAD, NAGPADA, MUMBAI 4. SHRI MOHAMMED ISMAIL LAKDAWALA A-72, 105, GORDON HALL APARTMENTS C.H.S. LTD., SOFIYA ZUBAIR ROAD, NAGPADA, MUMBAI 5. SHRI MUSA ESMAIL LAKDAWALA C-51, 105, GORDON HALL APARTMENTS C.H.S. LTD., SOFIYA ZUBAIR ROAD, NAGPADA, MUMBAI 6. SHRI USMAN ISMAIL LAKDAWALA A-72, 105, GORDON HALL APARTMENTS C.H.S. LTD., SOFIYA ZUBAIR ROAD, NAGPADA, MUMBAI 7. SHRI MOHAMMED ZUBAIR ADAM LAKDAWALA 175-A,DIMTIMKAR ROAD, MEMNI BUILDING, FIRST FLOOR, FLAT NO. 15, NAGPADA, MUMBAI ...........Appellant(s) Versus 1. AMARJEET SINGH BARYAM SINGH KALPATARU HARMONY, FLAT NO. 93, KILLA ROAD, NEAR M.T.N.L. EXCHNGE, SION (EAST) MUMBAI-400022 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER
For the Appellant : Mr. Shaurya Kuthiala, Advocate
Mr. Samrat Nigam, Advocate For the Respondent : Mr. Madhurendra Kumar, Advocate with
respondent in person
Dated : 27 Feb 2020 ORDER
JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)
The complainant, who is an ex-serviceman, booked a residential flat with the appellant in a project namely "Maaria Annexe" which the appellant was to develop in Mumbai, in August, 2005 for a consideration of Rs.24,65,000/-. A registered agreement dated 18.3.2006 was also executed between the parties on payment of the entire sale consideration to the appellant. Since the construction was not completed and the possession was not offered to him, the complainant approached the concerned State Commission by way of a consumer complaint, seeking possession of the flat, with compensation etc.
2. The complaint was resisted by the appellant, which admitted the agreement executed with the complainant as well as the payment received from him. It was inter-alia stated in the written version filed by the appellant that the appellant had been granted approval for development of a piece of land under the Slum Rehabilitation Scheme of Government of Maharashtra and therefore, was required to demolish the existing old dwelling units and construct new multi storied buildings. The appellant was to accommodate the tenants of the old structure and was permitted to sell the other part of the new construction to be raised by them. It was further stated by the appellant that the construction got obstructed on account of an encroacher Mr. Nilkantha Narayan having not vacated the piece of land occupied by him. They approached the Hon'ble High Court by way of a writ petition wherein the Chief Executive Officer of the Slum Rehabilitation Scheme was directed to consider the matter and pass an appropriate order. The Chief Executive Officer passed an order on 20.11.2007, directing MCGM to decide the request of Mr. Nilkantha Narayan for grant of lease in respect of land admeasuring 112.52 sq. mtr. However, MCGM did not dispose of the matter. It was also stated in the written version filed by the appellant that they had applied to the Slum Rehabilitation Authority for grant of 4 FSI in accordance with high density scheme and since there was no progress on their proposal, they sought conversion of the project from SRA-225 to SRA-269 scheme, which was also pending. It was also stated in the written version that in terms of Clause 13 of the agreement, in case of delay beyond the control of the appellant, the complainant could claim refund of the entire amount paid by him without interest or penalty. The appellant also expressed his readiness and willingness to hand over possession of the flat to the complainant on completion of the project.
3. The State Commission vide impugned order dated 08.1.2013 directed as under:
"1. Complaint is partly allowed.
2. Opponents are directed to hand over possession of flat No.703 on seventh floor of B Wing in the proposed 'Maaria Annexe' admeasuring 712.80 sq. ft. within a period of four months from the date of the order.
OR If fails to hand over the possession, opponents are directed to pay 99,79,200/- market price of the flat within a period of two months, failing which, the amount will carry interest of 9% p.a. till realization of the amount.
3. Opponent to bear their own costs and pay costs of Rs.25,000/- to the complainant."
4. The complainant has not challenged the order passed by the State Commission. The developer however, is before this Commission by way of this appeal.
5. When this appeal came up for hearing on 18.4.2013, the learned counsel for the appellant stated that they were ready to hand over possession of the flat to the complainant and that the construction work had been stopped because of reasons beyond their control. He was asked to take instructions as to whether the appellant was ready to pay interest @ 9% per annum to the complainant form the date of deposit till the date of handing over possession, without demanding any escalation. On 28.5.2013, the learned counsel for the appellant he having taken instructions stated that the building would be completed and possession would be handed over to the complainant within eighteen months, no further interest shall be charged from the complainant and the appellant shall also pay interest @ 9% per annum to the respondent on the amount deposited by him for the delayed period in handing over of possession, from the date of deposit till the date of payment. On this statement, the operation of the order passed by the State Commission was stayed by this Commission.
6. When the matter came up for hearing on 09.12.2013, the learned counsel for the appellant stated that as per his instructions it will not be possible to hand over possession of the flat within the time noted in the order dated 4.9.2013. Thereupon this Commission directed to appellant to deposit the entire amount with this Commission, which the complainant had paid to it along with 9% per annum interest on that amount form the date of each payment.
7. The learned counsel for the appellant states on instructions that the appellant is not in a position to give possession of the allotted flat to the complainant. He states that he is not aware whether the said flat stands constructed. The complainant, who is present in the Court however maintains that the construction of flat has been almost completed and he is interested in taking possession of the allotted flat with compensation in terms of the statement made by the appellant before this Commission.
8. As far as justification given by the appellant for the delay in construction of the flat is concerned, I find no merit in the said justification. The appellant ought not to have accepted the booking made by the complainant, unless it was in possession of the whole of the land on which the building was to be constructed by it. If a part of the said land was under encroachment, the appellant, in my opinion, ought to have first got the encroachment removed before accepting the booking. Having taken a calculated risk by accepting the booking, despite a part of the land being under encroachment at that time, the appellant has only itself to blame for a situation for which the construction could not be completed in time on account of encroacher having not vacated the piece of land occupied by him. Moreover, the attempt of the appellant to get a higher FSI or conversion from SRA 225 Scheme to SRA 269 Scheme, which it had attempted to enhance its profit, cannot be a valid justification for the delay qua the complainant.
9. The next question which arises for consideration is as to what relief the complainant is entitled as on today. As noted earlier, the appellant had agreed before this Commission that it would deliver possession of the allotted flat to the complainant within eighteen months of the date on which the said statement was made, along with compensation by way of interest @ 9% per annum. In all fairness, the appellant should give possession in terms of the statement which its counsel had made before this Commission on instructions from it. If the appellant acts in terms of the aforesaid statement there would be practically no difficulty in the matter since the complainant also wants to take possession in terms of the said statement, along with interest @ 9% per annum and maintains that the construction of the allotted flat is almost complete. The complainant, however admits that the construction work is not complete in some respects and the requisite occupancy certificate has not been obtained. He is ready to wait for the work to finish and the occupancy certificate to be issued but the appellant is not willing to deliver possession of the allotted flat to the complainant as and when the construction is complete in all respects and the requisite occupancy certificate is obtained. In these circumstances, it is the second part of the order of the State commission, which becomes enforceable.
10. The State Commission directed the appellant to pay a sum of Rs.99,79,200/- to the complainant along with 9% interest, holding that the above referred figure reflected the market price of the flat as per the newspaper reports which were referred before it. However, the newspaper report in my opinion does not constitute legally admissible evidence to prove the market value of a flat. No sale deed was filed by the complainant before the State Commission to prove the prevailing market value of the similar flats in the locality in which the allotted flat is situated. Even the Ready Reckoner was not produced before the State Commission to prove the ready reckoner price of the flat on the date the consumer complaint came to be decided or even on the date on which the consumer complaint had been instituted. In my opinion, considering that the complainant did not produce any sale deed or other authentic document to prove the prevailing market price of a similarly situated flat of similar specifications in the same or a comparable locality, the appellant should pay, to the complainant, as compensation the difference between the current market value of the flat, calculated as per the Ready Reckoner price of today and the price which he had agreed to pay to the appellant for the flat booked by it. The Ready Reckoner reflects the minimum market price of a flat / plot on a particular date and is a document issued by the concerned Government / Municipal Authority. Therefore, I see no reason why the compensation payable to the complainant should not be calculated on the basis of the current ready reckoner price of the flat.
11. It transpired during the course of the arguments that the amount of about Rs.41 lacs was deposited by the appellant with this Commission, pursuant to an interim order passed by this Commission and the said amount was later withdrawn by the complainant on 14.10.2014. Considering all the facts and circumstances as discussed hereinabove, the appeal and the consumer complaint filed by the respondent are disposed of in terms of the following order:
(i) The appellant shall complete the construction of the allotted flat in all respects, obtain the requisite occupancy certificate and hand over its possession to the complainant with one year from today, the complainant being ready and willing to wait for one year.
(ii) While delivering possession in terms of this order, the appellant shall also pay compensation in the form of simple interest @ 9% per annum to the complainant on the entire amount of Rs.24,65,500/- with effect from three years from the date of the booking till the date on which the possession is offered in terms of this order.
(iii) The amount already withdrawn by the complainant shall be adjusted out of the compensation payable to him in terms of this order, along with interest @ 9% per annum on that amount from the date on which it was withdrawn by him till the date of adjustment.
(iv) If it is found that the amount withdrawn by him was more than the compensation found payable to him in terms of this order, he shall refund the said excess amount to the appellant, along with interest on that amount @ 9% per annum. If however, the compensation by way of interest payable to the complainant in terms of this order is more than the amount withdrawn by the complainant, the balance amount payable by the appellant to the complainant shall be paid at the time the possession is offered.
(v) If the appellant does not deliver possession of the flat in terms of this order within one year from today, after completing the construction in all respects and obtaining the requisite occupancy certificate, before expiry of one year from today, it shall refund the principal amount received from him and will also pay to him difference between the compensation equivalent to the current circle rate, / ready reckoner rate of the flat and the amount paid to it by the complainant for the allotted flat. The amount which the complainant has already withdrawn, shall in that case, be adjusted along with 9% interest on that amount with effect from the date on which it was withdrawn by the complainant, till the date of such adjustment.
(vi) If the appellant does not deliver possession to the complainant in terms of this order within one year from today, it shall in addition to the compensation calculated in terms of direction No.(v) above, also pay to him the difference between the current circle rate of the flat and the circle rate prevalent after one year form today.
(vii) The respondent / complainant shall also be entitled to a compensation quantified at Rs.2.00 lacs for the mental agony and harassment suffered by him, and the cost of litigation quantified at Rs.25,000/-, to be paid within two months from today.
......................J V.K. JAIN PRESIDING MEMBER