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Judgment
As the facts and question of law involved in the Consumer Complaints are same, except for minor variations in the dates, events and flat numbers, they are being disposed of by a common Order treating Consumer Complaint CC/726/2015 as the lead case.
Case of the Complainants is that they purchased flat No.1401 in the project “Lucky House”, located at 13th Road, Chembur (E), Mumbai for a total consideration of Rs.3,10,00,000/-. The Complainant paid a booking amount of Rs.25,92,750/- on 02.05.2013. They entered into an agreement on 29.05.2013. According to the agreement, possession of the flat was to be handed over in August, 2013. The Complainant made timely payments as demanded by the Opposite Parties. The Complainants paid a total amount of Rs.3,09,04,450/-, including an amount of Rs.15,83,550/- towards stamp duty and registration. Balance consideration of Rs.15 lakhs was to be paid at the time of possession. The Opposite Parties kept assuring the Complainants that all formalities and permissions were complete and they were waiting for Occupancy Certificate. In December, 2014, the Complainants were shocked to know that the Opposite Parties had constructed 13th & 14th floors without approval from Civil Aviation Department. Bombay Municipal Corporation, therefore, issued occupancy certificate upto 12th floor only. Even after expiry of more than two years, Opposite Parties failed to delivery possession. Alleging deficiency in service and unfair trade practice on the part of the Opposite Parties, the Complainants filed Consumer Complaint with the following prayer: -
“a) The Opponent No.1 and all it's directors be held guilty of unfair trade practices and deficient in service by this Hon'ble Commission.
b) The Opponent No.1 and it's directors be jointly and severally be directed to procure all permissions and licenses including Occupancy Certificate and hand over possession of the flat by accepting the balance consideration which the Complainants are ready and willing to pay.
Or in the alternative
b) The Opponents and its directors be jointly and severally ordered and directed to provide a flat, in the same vicinity or in one of their constructed buildings in the vicinity, at the same rate at which the Complainants have been sold the present flat.
c) The Opponents and it's directors be jointly and severally ordered and be directed to pay interest @ 18% on the delay in handing over possession from September 2013, as August 2013, was the agreed date of possession, till the date of handing over possession.
d) The Opponent be charged a sum of Rs.25,00,000/- towards the physical hardship and inconvenience caused to the Complainants and the entire family as also the anxiety and mental harassment suffered.
e) The Opponent be charged a sum of Rs.300,000/- towards the cost of this complaint.
f) It is prayed that this complaint be allowed to be amended in the near future if required.”
The Complaint was contested by the Opposite Parties by filing the written statement. As per Clause 36 of the Agreement possession was to be handed over by August, 2013 with a grace period of six months and that possession was subject to order, rule, notifications of the Government and/or competent authority. BMC informed of the disapproval of construction on 10th January, 2011. Possession could not be handed over to the Complainants due to delay on part of the concerned authorities, which was beyond their control.
Heard the learned Counsel for the Parties and carefully perused the record. Learned Counsel for the Complainants submitted that the Complainants made payment of Rs.3,09,04,450/-. Possession was to be handed over in August, 2013 with grace period of six months. Even after expiry of more than 9 years, the Opposite Parties failed to obtain occupancy certificate and deliver possession of the flat. The building was constructed without necessary approval from the Civil Aviation Department. BMC did not issue occupancy certificate due to objection from the Civil Aviation Department. The Opposite Parties were guilty of unfair trade practice and deficiency in service. The Complaints deserved to be allowed.
Learned Counsel for the Opposite Parties submitted that BMC was permitting buildings with the height of about 56.25 meters without insisting on NOC from the Civil Aviation Department or Airport Authority. The Municipal Commissioner of BMC, vide order dated 12.12.2016, approved the construction of building without insisting on NOC from the Civil Aviation Authorities. The Opposite Parties constructed the entire building in June, 2013. When the Opposite Parties applied for occupancy certificate from the BMC, vide letter dated 20.11.2013, they insisted on obtaining NOC from the Civil Aviation Department in respect of 13th & 14th floor. The Opposite Parties applied for NOC from the Airport Authorities on 23.12.2013, but the same was not issued. The BMC in turn did not issue the Occupancy Certificate. Clause 36 of the agreement stated that the Opposite Parties would be entitled for reasonable extension of time for delivery of possession, if delay occurred due to notice, order, rule, notification of the Government and competent authority. The delay was for the reasons beyond the control of the Opposite Parties and not attributable to the Opposite Parties. The Complaints are, therefore, liable to be dismissed.
Admitted facts of the case are that the Complainants purchased flat No.1401 in the project “Lucky House”, located at 13th Road, Chembur (E), Mumbai for a total consideration of Rs.3,10,00,000/-. They entered into an agreement on 29.05.2013, according to which possession of the flat was to be handed over in August, 2013. The Complainant paid an amount of Rs.3,09,04,450/-, including an amount of Rs.15,83,550/- towards stamp duty and registration. Balance amount of Rs.15 lakhs was to be paid at the time of possession. Bombay Municipal Corporation issued occupancy certificate upto 12th floor only. The Opposite Parties failed to obtain occupancy certificate and handover possession of the flat to the Complainants.
Regarding delay in handing over possession of the flat, it seen that Clause 36 of the Agreement stated that possession was to be handed over by August, 2013 with a grace period of 6 months. The possession was, therefore, to be handed over latest by March, 2014. The Opposite Party took the ground of force majeure conditions. There is no evidence of any lock-out or strike by the labour at the site of the project. There was no civil commotion, war, enemy action, terrorist action, earthquake or any act of God which could have delayed the construction of the project. The Opposite Parties were bound to obtain necessary approvals and occupancy certificate in time. Admittedly, till today, occupancy certificate has not been obtained by the Opposite Parties. In Fortune Infrastructure & Anr. v. Trevor D’Lima & Ors., Civil Appeal No. 3533-3534 of 2017, decided on 12.3.2018, Hon’ble Supreme Court held that a person cannot be made to wait indefinitely for possession of a flat allotted to him/her, and is entitled to seek refund of the amount paid by him, along with compensation.
From the aforesaid facts, we find that the Opposite Parties are guilty of deficiency in service in not delivering the possession of the flat within the stipulated time. The Complainants are entitled for refund of the deposited amount alongwith interest.
In view of the above, the Complaints are partly allowed. The Opposite Parties are directed to refund the entire amount deposited by the Complainants with interest @ 9% p.a. from the date of respective deposits till the date of realization within eight weeks, failing which the Opposite Party shall pay the principal amount with interest @ 12% p.a. There shall be no order as to costs.