CASE TITLE:
Prashant Telkar and Vijeta Kalghatgi Vs. ND Developers Pvt. Ltd.
DATE OF ORDER:
27 December 2022.
JUDGE(S):
Mr. JusticeSudip Ahluwalia
PARTIES:
Petitioner: Prashant Telkar and Vijeta Kalghatgi & 51 Ors.
Respondent: ND Developers Pvt. Ltd.& Others.
SUBJECT
In the present case, the Court is dealing with the matter delay in delivery of possession by builders to the consumers. The Buyers herein are seeking refund of entire amount collected from them towards consideration of the respective Units along with interest on the ground of delay in construction of the Project.
IMPORTANT PROVISIONS
The Consumer Protection Act, 1986
- Section 12 (1)(c)-Manner in which complaint shall be made by one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested.
BRIEF FACTS
- In the present case, the Complainants/ Buyers booked a Unit in the Project “ND Laurel” which was to be executed by the Opposite Parties. The Opposite Party entered into an agreement with the Complainants/ Buyers for undertaking the construction of flats and handing over the legal possession of the same to the Complainants.
- The other parties in the opposition are the landowners who have given their property to the Opposite Party No. 1 (ND Developers Pvt. Ltd.) for development and construction of flats.
- All the opposite parties including the developer and the landowners are parties to the Agreement executed with the Complainants, hence they are jointly liable for the numerous instances of unfair trade practices, restrictive trade practices and deficiency in services.
- According to the Complainants, all the Buyers who were a part to this Complaint are having a common grievance i.e failure of the Opposite Parties in handing over the peaceful legal possession of the flats within the time stipulated as per the Agreement executed with the Buyers. All of them want refund of the amount deposited with the Opposite Parties.
- The opposite parties were supposed to hand over the legal possession of the flats along with all promised facilities and amenities by December, 2012 with an additional grace period of 4 months i.e by March 2013 according to Clause 9 of the Agreement to Sell dated 31 March 2011.
- It is alleged that the opposite parties failed to handover the legal possession of the flats. They also failed todeliver the possession even to those Complainants who have been offered incomplete possession of the flat. Including this, the opposite parties have failed to obtain the Occupancy Certificate despite of collecting 95% of the fund from the Buyers.
- By an email dated 20 October 2016, the Opposite Party No. 1 i.e ND Developers Pvt. Ltd., informed the Buyers that it will hand over the possession of the flats to them by the end of March, 2017 along with road work, STP, lift, Corridor, staircase etc, but it failed to do so.
- It is also alleged that the Opposite Parties had informed the Buyers that the preliminary Occupancy Certificate will be available within 3 to 4 months by an email dated 16 December 2017 but they failed to do so.
- The project is said to be incomplete with poor quality of construction. Furthermore, the incomplete possession of flats was provided with lack of basic amenities like lift, stair case, etc.
PRAYER
- Direct opposite parties to refund to the complainants and all other flat buyers with same interest the amount which the complainants and other flat buyers with same interest have deposited with the opposite party no.1 (reflecting in Annexure-A) along with compensation in the form of simple interest @ 18% per annum from the date of deposit till date of actual refund.
- Direct opposite parties to pay to the complainants and other flat buyers with same interest a sum of Rs.10,00,000/- each on account of mental harassment and trauma.
- Award cost of the complainant to the complainants and other flat buyers with same interest.
- Pass any such further order or orders which this Hon’ble Commission deems fit and proper in the facts and circumstances of the present case.
ARGUMENTS ADVANCED BY THE COMPLAINANT/ BUYER
- The Complainants filed a Rejoinder and stated that the opposite party has failed to deliver their legal possession of the Unit in a timely manner.
- They further stated that out of 55 Complainants, incomplete possession of the flats without Occupancy Certificate and without the promised facilities and amenities have been offered to 20 Complainants. Out of these 20 Complainants, 15 Complainants have accepted the incomplete possession with the hope and under the promise made by the Opposite Parties that the Occupancy Certificate will be obtained soon.
- Further, the learned counsel for the Complainants stated that all the 55 Complainants were having the same interest since all of them had the same grievances and the relief i.e refund of their money with compensation was also common to all.
- The Complainants also argued that due to efflux of time, some of the Complainants have taken physical possession but till date no Occupancy Certificate was obtained.
ARGUMENTS ADVANCED BY THE OPPOSITE PARTY
- The Opposite Party contended that the present Complaint was not maintainable as it is barred by limitation. They said that the Complaint is being filed after 2 years from the date on which cause of action arose.
- The opposite party also complained that 18 Complainants among the total of 52 Complainants have already taken the possession of their Apartment allotted and the sale deeds with regard to the same have also been executed. Hence, all the Complainants cannot have the same grievance and prayer.
- Relying on the decision of this Court in Ambrish Shukla & Ors. V. Ferrous Infrastructure Pvt. Ltd. , the opposite party stated that there were more than 100 allottees in the Project but only 52 Buyers have filed the present Complaint.
- Even after executing the Joint Development Agreement between the Opposite Party No. 1 and other Opposite Parties, coping up with the Suits for partition filed by two of the Buyers, the Opposite Party No. 1 had delivered the possession of the Apartments to most of the allottees who were also Complainants in the present case.
- The learned Counsel for the Opposite Party also argued that the delay was caused due to some litigation with respect to the project in the Court of the Principal Senior Judge, Bangalore Rural District. They also added on that there were unforeseeable facts and circumstances which were beyond the Control of the Opposite Party and hence they urge to dismiss the present Complaint.
- The Opposite Party also raised an objection that the present Complaint was not maintainable under Section 12 (1) (c) of the Act by relying on Ambrish Kumar Shukla & Ors. V. Ferrous Infrastructure Pvt. Ltd. (in CC/97/2016).
ANALYSIS OF THE COURT
- The Court rejected the reasons stated by the Opposite Party regarding delay due to reasons beyond the control of the Opposite Party. By stating this, it relied on the judgement given in the case of Sivarama Sarma Jonnalagadda & Anr v. M/s Maruthi Corporation Limited & Anr(CC 379/2013)
- The Court also rejected the objection that the Complaint was bared by limitation. It stated that the absence of Occupancy Certificate clearly meant that the flats were unfit for possession. The Court relied on Wg. Cdr. Arifur Rahman Khan v. DLF Southern Homes Pvt. Ltd. [(2020) 16 SCC 512].
- The Court further stated that there had been an unreasonable and continuous delay in completion of the project and the complainants cannot wait for an indefinite time as they have invested heavy amount with the intention to get the possession of their Unit on time.
- The Court relied on the judgement given in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, [(2019) CPJ 29 SC].
- The Court gave the judgement in two parts-
1. Part-1- Where the Complainants/ Buyers are seeking Refund and have not taken possession:
a. The Opposite Parties are directed to refund the entire amount deposited by the respective Complainants/ Buyers along with delay compensation @ 9% per annum on the deposited amount from the respective dates of deposits till realization, within a period of two months of this Order.
b. Any delay beyond two months, will attract an interest rate of 12% per annum for the same period.
2. Part-2 Where the Complainants/ Buyers have taken paper possession:
a. the Opposite Parties are directed to complete the construction of the flats allotted to the Complainants in all respects, duly obtaining the requisite Occupancy Certificate at their own cost and responsibility and offer and give possession of the respective Units to the Complainants within 06 months of this Order alongwith delay compensation @ 8% per annum from the proposed date of possession as per the respective Agreements which will include the grace period, till the offer of possession or obtaining Occupancy Certificate whichever is later.
b. Any delay beyond two months, will attract an interest rate of 12% per annum for the same period.
CONCLUSION
The Court rightly pointed out that delay cannot be an excuse. A consumer has all the right to obtain its possession. The builders cannot keep on delaying and thereby, hurt the emotions of the consumers who have invested so much money to get their possession on time.
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