State Consumer Disputes Redressal Commission
Godrej Properties Limited vs Shri Onkar Nath on 10 October, 2022
Details DD MM YY
Date of Judgment 10 10 2022
Date of filing 28 03 2019
Duration 13 42
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE, AHMEDABAD
First Appeal No. 199 of 2019
Court No. 1
1. Godrej Properties limited
A company incorporate under the
Provisions of Companies Act, 1956
Having its office at- Second Floor,
Rudrapath Complex, Near Rajpath Club,
S. G. Highway, Ahmedabad - 380 059 ..Appellant
Vs
1. ShriOnkarNath
Adult, Male, Indian Inhabitant,
Residing at - Flat No. D/101 - Tivoli,
Godrej City, Jagatpur village,
Behind Nirma University,
Ahmedabad - 382 481 ..Respondant
Coram :Hon'ble Mr. Justice V. P. Patel, President
Ms. A.C.Raval, Presiding Member
Mr. R. N. Mehta, Member APPERANCE : Wadia Gandhi & Co.(AHMEDABAD) Advocates for the Appellants Shri C. S. Mohnan for the Respondent Order: (By Ms. A.C. Raval, Member)
1.Appellant has filed this appeal under section 15 of the Consumer Protection Act 1986, being aggrieved and feeling dissatisfied with the judgment and order dated 28.02.2019 Passed by the Consumer Disputes Redressal Commission, Ahmedabad (for short Learned District Commission ) in consumer Case no. 74 of 2017 ADIT A-199-19 Page 1 of 11 1.1 Order Under Challenge:
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2.Heard Ld. Advocate for Wadia Ghandhi & Co. for the appellant. Mr. Mohnan for the respondent. Perused The record of the case and judgment and order passed by the Id. District commission.
3. The appellant herein is the original opponent and the respondent is original complainant. (Herein after the appellants and respondents will be referred as per their original status)
4. Facts of the case of the complaint:
Complainant is a purchaser of flat in the scheme floated by the opponent named 'Godrej Garden City' situated that Jagatpur Village, Ahmedabad. The opponent held out offer in the year 2011 for the sale of residential flats. In the said project on 21.08.2011 complainant booked flat No. GCTIVD0101 in the building " Tivoli D"
and made initial payment of 5,58,822/- towards application money. The sale consideration payable for the said flat was fixed at 50,58,362/- plus additional charges. The opponent announced a scheme of down payment with certain benefits. The complainant obtained for the scheme and paid remaining amount by different cheques on 18.06.2012. By letter dated 02.07.2012 opponent had allotted Flat No. 101 at first floor in building "Tivoli D". Agreement to ADIT A-199-19 Page 2 of 11 sell was executed on 05.03.2013. Clause 11.2 of the said agreement stipulated that the opposite party will hand over possession of the said flat to the complainant on or before 31.07.2014. For the possession of the flat the communication through E-mail and telephone took place by and between the parties. Finally the for getting possession the complainant gave notice dated 26.12.2015 to the opponent. The complainant was allowed limited access to the flat by letter dated 01.08.2016. The sale deed was executed on 16.09.2016. At that time the final statement of account was for 56.16.202/-, paid by the complainant and received by the opponent. The possession letter dated 16.09.2016 was handed over to the complainant on 29.10.2016 at that time permanent electricity connection was not given to the flat allotted to the complainant. Temporary connection was given on 20.11.2016. The complainant could move into the flat only in the last week of December 2016. The electricity was installed on 19.01.2017. Hence, the complainant gave notice to the opponent on 02.01.2017 calling upon the opponent to compensate him for the loss incurred and for the mental tension, harassment, undue hardship and agony suffered by him on account of delay on the part of opponent in giving possession of the flat as per the agreement. In response to the said notice, by their latter dated 31.01.2017 the opposite party sought to explain that the delay in giving possession was beyond their control. And further stated that as a goodwill gesture the opposite party would happy to assist the complainant in case he was interested in settling the issue amicably and suggested to visit the site office to discuss his concerns. The complainant many time visited the office of the opponent but no any responsible officer attended him. Hence, The complainant had filed the Consumer Complaint No. 74 of 2017 before the District Consumer Commission Ahmedabad. Which was decided by the Learned District Commission in favor of the complainant by order dated 28.02.2019 Being aggrieved and dissatisfied with the order passed by the Learned District Commission Ahmedabad (Rural) the original opponent approached this commission by filing the present appeal.ADIT A-199-19 Page 3 of 11
5. Argument of the Appellant:
The advocate appearing for Wadia Gandhi & Co. on behalf of the appellant submitted that the Appellant has developed a landmark residential project known as Godrej Garden City in the city of Ahmedabad. In this project the complainant booked a flat and was allotted Flat No. D-101 in Tivoli 'D' building of the project. The agreement to sale was executed dated on 05.03.2013. Where the obligations of the parties are clearly spelt out. The Advocate for the opponent raised the objection of limitation in filing the complaint. And submitted that the Complaint is time barred by Section 24 A of the Act. The complainant is required to file the complaint within 2 years from the date of accrual of the cause of action. As per the Agreement to sale the possession of the flat has to be hands over to the complainant by 31.07.2014. Therefore, the cause of action arose on the date of failure of handing over the possession on 31.07.2014. The complainant has filed the complaint before the Learned District Commission on 10.04.2017, beyond the period of 2 years from the date of accrual of the cause of action. It is further submitted by the that law is no more res-integraon the point that cause of action can never be presumed to continue from the date it arose till eternity.
It is further submitted that agreement to sale was signed and executed between the parties, wherein rights, duties and obligations of the parties were clearly spelt out. Clause 11.2 of the agreement to sale dealt with the obligations of opponent in the event it was unable to hand over the possession of the flat within the estimated timelines. The complainant could have asked for refund of his money but he has waived his right and agreed to protect the possession on the date given by the appellant. The delay is accrued on account of force majeure reasons or for any other reasons. The opponents are entitled to the reasonable extension of time for giving the possession of the flat on the stipulated date. The force majeure is not only the ADIT A-199-19 Page 4 of 11 act of God, fire, flood, inundation, earthquake, cyclone, explosion, war, riot but also include non availability of steel, cement, other building materials, water or supply of energy, labor, equipment, facilities, materials or supplies, failure of transportation, strikes, lock outs, etc. Hence, the opponents are entitled to the reasonable extension in case of force majeure circumstances. It is further argued that the complainant has signed the declaration come undertaking on 23.08.2016 and waived his all the rights attached with the transaction in property. The complainant did not raised any grievance whatsoever at the time of executing and registering the sale deed nor any time thereafter with respect to the alleged delay claimed by him in handing over the possession. Hence, Respondent is not entitled to claim any relief prayed for this appeal may be allowed and order passed by the Learned District Commission may be quashed and set-aside.
6. Arguments of the Respondent :
The Advocate appearing for the respondent/original complainant argued that the Learned District Forum has considered in detail the facts on record, legal submissions of the complainant and the opposite party and the pronouncements of the Hon'ble National Commission as well as of the other state commissions and the Hon'ble Supreme Court and have arrived at the findings recorded in the order dated 28.02.2019. It is well reasoned order and hence, it is deserves to be confirmed.
On the ground of limitation he is submitted that as per the terms and conditions of the agreement the possession has to be handed over on or before 31.07.2014. The complainant can actually start residing in the said from 19.02.2017, Therefore, these can be considered as a continues cause of action. It is further argued that the contention of the appellant regarding force majeure or any other reason not directly attributable to the appellant. The appellant has failed to prove the difficulties or the grounds of force majeure by leading evidence. Regarding seeking refund from the appellant in case of delay in handing over the possession of the flat, it is submitted that as per the terms and conditions, if the purchaser ADIT A-199-19 Page 5 of 11 seeks refund in that case the company shall be fully entitled, at its sole discretion, to cancel the allotment/booking and forfeit the earnest money. The purchaser would be at loss. Regarding contention of the appellant with regard to declaration-cum- undertaking dated 23.08.2016. It is submitted that the declaration- cum-undertaking to which reference is made by the appellant is about of construction, completion of work, documents of title, measurements, specifications, fitting/fixtures provided in the flat, handing over possession of keys, the terms and conditions to be followed regarding FSI, TDR, formation of Society, etc. That declaration-cum-undertaking has nothing to do with the claim of the Complainant for Compensation for the delay of about two and half years in handing over possession of the flat. The complainant has alleged the deficiency in service and unfair trade practice, this is the statutory right of the complainant to challenge before the court of law, that cannot be curtailed by such declaration-cum- undertaking. And requested to dismissed this appeal with cost. Merits of the case :
7.Perused the record of appeal, documents on record, heard the Learned Advocates for both the side. Certain facts are undisputed in the appeal i.e. the complainant had booked the flat in the scheme floated by the opponent. He paid the consideration as demanded by the opponent without any resistance, in time. The entire amount towards the sale consideration was paid by the complainant in July, 2012 as a down payment. Agreement to sale was executed on 05.03.2013 and it was agreed that possession of the flat allotted to the complainant will be handed over on or before 31.07.2014. The actually sale deed was executed on 16.09.2016. Allotment and possession letter dated 16.09.2016 was handed over to the complainant on 29.10.2016. At the time of executing a sale deed the complainant had signs declaration-cum-agreement dated 23.08.2016.
7.1 The advocate of the appellant has raised the objection on the ground of limitation that the complaint is filed beyond two years from the occurrence of a cause, i.e. the date on which the ADIT A-199-19 Page 6 of 11 possession has to be handed over to the complainant. The appellant had to hand over the possession of flat to the complainant on or before 31.07.2014. The subject matter herein is a possession of the flat which is given on 29.10.2016. The cause of action continues till the actual possession did not handed over. The appellant is in continues breach of agreement. As per the provision of Section 22 of the Limitation Act, a fresh period of limitation begins to run at every moment of the time during which the breach or the tort, as the case may be, continues. In judgment reported in 2022 (1) CPR 429 (S.C.) Samruddhi Co. Op. Housing Society Ltd. Vs. Mumbai Mahalaxmi Construction, Para 18 & 22 of the judgments reads as under:
"18. Based on these provisions, it is evident that there was an obligation on the respondent to provide the occupancy certificate and pay for the relevant charges till the certificate has been provided. The respondent has time and again failed to provide the occupancy certificate to the appellant society. For this reason, a complaint was instituted in 1998 by the appellant against the respondent. The NCDRC on 20 August 2014 directed the respondent to obtain the certificate within a period of four months. Further, the NCDRC also imposed a penalty for any the delay in obtaining the occupancy certificate beyond these 4 months."
'Since 2014 till date, the respondent has failed to provide the occupancy certificate. Owing to the failure of the respondent to obtain the certificate, there has been a direct impact on the members of the appellant in terms of the payment of higher taxes and water charges to the municipal authority. This continuous failure to obtain an occupancy certificate is a breach of the obligations imposed on the respondent under the MOFA and amounts to a continuing wrong. The appellants therefore, are entitled to damages arising out of this continuing wrong and their complaint is not barred by limitation.'
22. In the present case, the respondent was responsible for transferring the title to the flats to the society along with the occupancy certificate. The failure of the respondent to obtain the occupation certificate is a deficiency in service for which the respondent is liable. Thus, the members of the appellant society are well within their rights as 'consumers' to pray for compensation as a recompense for the consequent liability (such as payment of higher taxes and water charges by the owners) arising from the lack of an occupancy certificate."
7.2 Now it is well settled law that the delay in handing over the possession of the property attracts Section 22 of the Limitation Act, and the delay is to be considered as continues cause of action.
7.3The appellant has failed to show that the construction of the said flats was affected by particular difficulty under the force majeure ADIT A-199-19 Page 7 of 11 clause. There is a the general mention of the force majeure clause and the entitlement of the appellant under the agreement to sale to attract the force majeure clause in connection to delay in construction or delay in handing over the possession. The rescue of force majeure clause in agreement between the parties not available to the builder. The advocate of the complainant relied upon the judgment reported in III (2016) CPJ 67(UT Chd.) in case of HARNEET SURI & ANR. Vs. CHANDIGARH OVERSEAS PRIVATE LIMITED. Para 16 & 17 reads as under:
"16. As far as the plea taken by the opposite party to the effect that delay aforesaid also occurred on account of shortage of construction material and also it suffered global recession, is concerned, the same also deserves rejection, in view of principle of law laid down by the Hon'ble National Commission, in Consumer Case No.347 of 2014 , titled as SwaranTalwar and 2 others v. M/s Unitech Limited (along three connected complaints), decided on 14 Aug 2015, wherein, while rejecting the plea of the builder, it was held as under:-
'As regards the alleged shortage of water, bricks and sand in the market, I find that there is no evidence filed by the OP, to prove that it was unable to procure water, sand and brick in adequate quantity. This is also their case that the notification of the Government, being relied upon by the opposite party, is an old notification, which was in force even at the time the opposite party promised possession in 36 months. There is no evidence of the opposite party having invited tenders for supply of bricks and water and there being no response to such tenders. In fact, if the work is to be executed through contractors/sub-contractors, the material such as bricks, sand and even water will be arranged by the contractor/sub-contractor and not by the opposite party. As noted earlier, there is no evidence of the opposite party having invited tenders after awarding the work of project in question to the contractors/sub-contractors and there being no response to such tenders. Therefore, I find no merit in the plea that the completion of the project was delayed due to non-availability of water, sand and bricks in adequate quantity'.
17. The principle of law laid down in the aforesaid cases is fully applicable to the facts of the present case. By making a misleading statement, that possession of the unit, in question, would be delivered latest by 18.01.2010, and by not abiding by the commitment made, while raising false grounds i.e. by taking shelter under the force majeure circumstances, referred to above, the opposite party was not only deficient, in rendering service, but also indulged into unfair trade practice."
The appellant here could not produced any evidence on record to show that the delay caused in handing over the possession was due to the reason beyond the control of appellant.
ADIT A-199-19 Page 8 of 117.4 The complainant can claim refund in case of delay in handing over the possession. This is opon for the complainant to seek refund or to seek possession and to seek compensation for the period of delay in handing over the possession. The choice is always with the purchaser to accept the refund or to claim possession along with compensation for delayed period. Even otherwise as per the sale agreement the complainant has to forgive 20% of the total sale consideration which is more than 10 lakh. Once having invested on his life time saving in the purchase of property, the complainant obviously would not want to reduce his money by taking the refund and to search for the other property for his residence. Judgment reported in AIR. 2022 SC. 1824 Experion Developers Pvt. Ltd. Vs. Ashok Shiron. Para 16 reads as under:
"16. A consumer invoking the jurisdiction of the Commission can seek such reliefs as he/she considers appropriate. A consumer can pray for refund of the money with interest and compensation. The consumer could also ask for possession of the apartment with compensation. The consumer can also make a prayer for both in the alternative. If a consumer prays for refund of the amount, without an alternative prayer, the Commission will recognize such a right and grant it, of course subject to the merits of the case. If a consumer seeks alternative reliefs, the Commission will consider the matter in the facts and circumstances of the case and will pass appropriate orders as justice demands."
7.5 It is undisputed that the complainant has signed the declaration-cum-undertaking dated 23.08.2016. The complainant has waived his right regarding the quality of the construction, documents of title and other facilities attach to the property. Here, the complainant has filed the complaint for deficiency in services and unfair trade practice. To seek redressal of grievances regarding unfair trade practice and deficiency in services before the court of law is a statutory right available to the complainant. Advocate of the complainant relied upon the judgment and order passed by the SCDRC Mumbai in C.C. no. 12/157 in the case of Rajesh H. Baheti HUF Vs. Lodha Developers Ltd. to show that which type of agreement the complainant has signed and to show the clauses of agreement. Statutory right can not be curtailed by executing one sided declaration-cum-undertaking. If the complainant had refused to sign the undertaking, he would not be given the possession of the ADIT A-199-19 Page 9 of 11 flat. In fact the contention of the appellant that there was no resistance by the complainant while signing the said declaration- cum-agreement, it is pertinent to note that complainant had given a notice dated 26.12.2015. In the said notice it was specifically stated that the appellant would be liable to pay to the complainant interest at the rate of 18% p.a. on the amount of Rs. 52,25,148.90 from 01.08.2014till the date on which possession of the flat may be given to him. The complainant has also given notice dated 19.02.2017 and asked for the interest-cum-compensation for the delayed delivery of possession of the flat. Hence, we are of the view that the appellant has committed deficiency in services and unfair trade practice and complainant is entitled to have the compensation for the delayed possession. Hence, we do not have any reason to interfere with the order passed by the Learned District Commission in Consumer Complaint No. 74 of 2017.
8. We have considered the grounds stated in memo of appeal, reasons stated in impugned Judgment and order, documentary evidence produced on record, fact and circumstances of the case. We have satisfied that the order passed by the Learned District Commission is legal, proper and correct in eye of law. Therefore, it does not required interference. As a result the appeal is required to be dismissed. Hence, in the interest of justice following order is passed.
ORDER A) The appeal no. 199 of 2019 is dismissed.
B) The order passed by the Consumer Disputed Redressal Forum, Ahmedabad in Consumer Complaint No. 74/2017 dated 28.02.2019 is hereby confirmed.
C) No order has to cost.
E) Registry is directed to send free copy of this judgment to the parties. Registry is directed to send a copy this judgment to the District Commission Ahmedabad through E-mail in PDF format for taking necessary action.
ADIT A-199-19 Page 10 of 11Pronounced in the open court on 10.10.2022.
[Mr. R.N. Mehta] [Ms. A.C. Raval] [Mr. Justice V. P. Patel]
Member Member President
ADIT A-199-19 Page 11 of 11