National Consumer Disputes Redressal
M/S. Utopia Projects Pvt. Ltd. vs Shahin Bi Mulla on 1 April, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 1227 OF 2014 (Against the Order dated 26/09/2014 in Complaint No. 09/2014 of the State Commission Goa) 1. M/S. UTOPIA PROJECTS PVT. LTD. A REGISTERED COMPANY THROUGH ITS DIRECTOR, MR. RAVINDER CHOHAN, HAVING ONE OF THEIR OFFICE AT FF-4, PALMAR HOUSING CO-OPERATIVE SOCIETY, BEHIND BANK OF MAHARASHTRA, JOURNALIST COLONY, ALTO-PORVORIM BARDEZ, GOA-403521 ...........Appellant(s) Versus 1. SHAHIN BI MULLA DAUGHTER OF MR. ABDUL REHMAN BEIG, WIFE OF MR. SHARIFF MULLA, RESIDING AT H NO. 476/2, CARIAMODDI, CACORA, QUEPEM, GOA-403706 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE D.K. JAIN, PRESIDENT HON'BLE MR. VINAY KUMAR, MEMBER HON'BLE MRS. M. SHREESHA, MEMBER For the Appellant : Mr. S.N. Tripathi & Mr. Jayant Chaurasia, Advocate For the Respondent :
Dated : 01 Apr 2015 ORDER M. SHREESHA, MEMBER
Aggrieved by the order of the State Consumer Disputes Redressal Commission Goa in Complaint Case No. 09 of 2014, the Opposite Party preferred this Appeal.
2. The brief facts as set out in the Case are that the Complainant entered into an Agreement for Construction and Sale on 24.2.2012 with the Opposite Party for purchase of a Residential Unit No. W A-3 52 in 'Amar Prem' Project for a total consideration of ₹30,00,000/-, which was paid by the Complainant by way of two cheques of ₹15,00,000/- each dated 23.9.2011 and 24.2.2012 respectively. The Opposite Party/builder had executed an agreement dated 23.7.2010 with M/s. RPC Builders and Developers and obtained the construction licence and plan from the concerned authorities. As per clause 15 (a) of the Agreement, the Opposite Party had to hand over the possession on or before September, 2013, with a grace period of four months. The Complainant visited the site in August 2013 and observed that there was no development at all and even the foundation work was not done. Vexed with the situation, she got issued a legal notice on 29.12.2012 calling upon the Opposite Party to hand over possession of the said flat, complete in all respects and the builder replied vide letter dated 25.1.2013 but did not comply with respect to handing over the possession. Hence, the complaint seeking direction to the Opposite Party to pay compensation in the form of rent at ₹ 8,500/- per month for the delay in handing over the possession from the month of September, 2013; interest at the rate of 18% per annum on ₹30,00,000/-; compensation of ₹20,00,000/- towards mental agony and loss of business; ₹50/- per sq. ft. per month for the entire period of delay as per clause 15 (c) of the agreement or in the alternative direction to the Opposite Party to refund ₹30,00,000/- with interest @ 18% per annum from the date of signing of the said Agreement till the date of realisation.
3. The Opposite party filed its written version admitting that it had entered into an Agreement with the Petitioner for Construction and Sale of the subject flat on 24.2.2012, for a total consideration of ₹30,00,000/-. The Opposite Party stated that the construction at the site could not be started due to disputes with the Contractor, who committed breach of the terms of Agreement entered into between them on 23.07.2010, whereby the OP had paid the Contractor in advance and the contractor was demanding extra payment for the properties. The completion date of the project was September, 2013 and hence it was not possible to hand over the possession of the residential flat by January, 2013, i.e. 7 months in advance and there was no question of the Opposite Party failing to comply with the legal notice dated 29.12.2012. The Opposite Party further stated that through their reply they had brought to the notice of the Complainant the factual position and that they were trying to employ a special firm to undertake standard block foundation for the construction and also assured the Complainant that the project had not been grounded. The Opposite Party also contended in its written version that delay due to force majeure conditions attracts clause 42(d) of the Agreement as the circumstances were beyond the control of the builder and also that there was no wilful delay in handing over the possession.
4. The State Commission relied on clause 15 (c) of the Agreement wherein it is provided that if any delay extended beyond the stipulated period, the developer shall be liable to pay the purchasers compensation of ₹ 50/- sq. ft. per month for the entire period of delay. It also discussed clause 42(d) of the Agreement wherein it is stipulated that the developer should exercise his right to terminate the Agreement and only on such termination, the builder can take umbrage under the clause of force majeure.
5. Based on the fact that the Opposite Party had not completed the project on time, the State Commission held that there was deficiency in service on behalf of the Opposite Party and directed the Opposite Party to pay to the complainant an amount of ₹30,00,000/- with interest at 5% per annum on ₹15,00,000/- from 23.9.2011 and on the balance ₹15,00,000/- from 24.2.2012 till 31.1.2014; together with compensation of ₹1,00,000/- and ₹50/- per sq. ft. per month from 1.2.2014 till realisation. If the amount of compensation of ₹1,00,000/- was not paid within 30 days, the Complainant was also entitled to interest at 9% per annum.
6. Aggrieved by the said order, the Opposite Party preferred this Appeal.
7. It is the case of the Appellant that the delay was caused because of disputes with the contractor and the same was conveyed to the Respondent by e-mails and letters on 3.9.2012. On 5.6.2013 a revised payment plan was also sent to the Respondent. The Respondent did not accept the revised plan and demanded immediate possession of the said flat which in the present circumstances was not possible.
8. Taking into consideration that 31st January, 2014 was the stipulated date of completion of the Project including the grace period and also the admission of the Appellant herein that the project had not yet been completed, we are of the considered view that the State Commission had rightly relied on clause 15(c) of the Agreement, which reads as follows:
"If (sic) the developer is unable to give possession of the said property to the purchaser within the due date or within any extended period, the purchaser shall be entitled to give notice to the company within 90 days of such due extended date for termination of this Agreement within these 90 days. The developer shall be responsible to consider, any alternate property or refund the amount paid by the purchaser with no other compensation. If delay extends beyond this period, the developer shall be liable to pay the purchasers compensation of ₹50/- per sq. ft. per month for the entire period of the delay".
9. The Respondent had issued notice to the Appellant herein on 29.12.2012 calling upon him to hand over possession of the flat on the stipulated date, which was admittedly not done. Based on this clause, the Commission directed the Appellant to pay compensation of ₹50/- per sq. ft. per month for the entire period of delay i.e. from February 1, 2014 onwards till realisation.
10. It is also the Appellant's case that there is no deficiency in service on their behalf in as much as clause 15(a) is concerned, which reads as under:
"The Developer, based on its present plans and estimates, subject to all just exception, expects to complete construction of the said Apartment and the Project and deliver possession of the said Apartment to the Purchaser by September 2013 and shall have a grace period of 4 months subject to delays due to non-availability of construction materials and labourers or delay in the payment of instalments by the Purchaser or Purchaser's of other units, and/or delays due to force majeure conditions and reasons beyond the control of the Developer, in which case, the time for completion shall be deemed reasonably extended".
11. The reason given by the Developer for the delay is 'Disputes with the Contractor'. Viewed from any angle, such disputes cannot be construed to be within the ambit of 'force majure conditions'. Therefore, the Appellant cannot take umbrage under this clause.
12. The State Commission also discussed clause 42(d) of the Agreement which is reproduced as under:
"In the event of a termination of this Agreement all amounts which have been paid pursuant to this Agreement by the Purchaser till the Force Majeure Event shall be applied towards any costs incurred by the Developer in relation to the Project land and/or Building and/or the Property including but not limited to legal and administrative costs. Any remaining sums shall be applied towards refunding a maximum of 50% of any amounts paid by the Purchaser".
13. The Appellant cannot rely on the afore-mentioned clause 42 (d) as he had not exercised his right to terminate the Agreement and it is clear that this clause would come into force only in the event of termination of the Agreement.
14. This Commission in F.A. No. 250 of 2014 between Emaar MGF Land Limited & Anr. Vs. Mr. Amit Puri decided on 30th March, 2015 observed that "in the event of a developer failing to deliver possession of the property within the stipulated period, for any reason, save and except a force majeure condition, agreed to between the contracting parties, an allottee cannot be compelled to accept an alternate site/plot and he would be within his rights to seek refund of the amount deposited with the developer against allotment. Therefore, in our view the plea of the Appellants that since the agreement provides for compensation @₹50/- per sq. yd. per month for the delayed period of delivery, neither any compensation for the delay nor interest on the amount deposited can be awarded, is absolutely untenable and deserves to be out rightly rejected".
15. Keeping in view the afore-mentioned observation, we are of the opinion that if possession has not been given as per the committed date, the purchaser of the said flat has the right to demand refund of the amount paid with interest and compensation.
16. The Appellant further stated in ground (I) of his Appeal that he is ready to refund the amount paid by the Respondent as per the terms of the Agreement. The State Commission had directed the Appellant to pay the said amounts only on the basis of the clauses mentioned in the said Agreement. Hence, we are of the considered view that there is no jurisdictional error or infirmity in the order of the State Commission and hence, this Appeal must fail and is dismissed at the admission stage itself.
......................J D.K. JAIN PRESIDENT ...................... VINAY KUMAR MEMBER ...................... M. SHREESHA MEMBER