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Judgment
V.K.Jain, Presiding Member
The complainants/appellants were allotted residential apartments by the OP in a project namely 'Ever Green Projects', which the OP was to develop in Bangalore. On such allotment, the complainants/appellants executed agreements with the respondents on different dates. The following are the details of the allotment made to the appellants herein, the date on which they executed the agreement with the respondent and the date on which possession as per the agreement was to be delivered to them:
Sl. No
Name of the parties
Block No./ Flat No.
Date of Agreement
Date of handing over of the flat as per agreement
1.
Praveena P. and another Vs. Keystone Const.
A/1107
17.03.10
31.08.11
2.
Bhargav Parandi and another Vs. Keystone Const.
F/504
16.03.11
29.02.12
3.
Jay Sharma Vs. Keystone Const.
E/112
29.03.11
29.02.12
4.
Paul Sathya Chelladurai Vs. Keystone Const.
F/1101
30.05.11
01.03.12
5.
Neelesh Jain and Tarun Jain Vs. Keystone Const.
F/1102
30.05.11
01.03.12
6.
Abhijit Das and Jhelum Vs. Keystone Const.
H/504
27.06.11
31.03.12
7.
Kajal Dekha Vs. Keystone Const.
F/1706
14.04.12
01.12.12
8.
Chinchu Ashish and Asish Pallithhath Muralidharan Vs. Keystone Const.
H/503
21.04.11
31.03.12
9.
Master Sandeepa Hande Vs. Keystone Const.
E/211
20.06.11
29.02.12
10.
Nisha Shetty and Kiran Kumar Vs. Keystone Const.
E/311
14.06.11
28.02.12
11.
Rahul Jain Vs. Keystone Const
H/305
29.06.11
31.12.11
The possession of the allotted flats having not been delivered to them by the date stipulated in the agreements in this regard, the complainants/appellants approached the concerned State Commission by way of separate Consumer Complaints seeking possession of the allotted flats with compensation.
The complaints were resisted by the respondent primarily on the following grounds:
(i) The State Commission did not have the requisite pecuniary jurisdiction to entertain the Consumer Complaint.
(ii) The bed rocks were encountered while carrying out excavation though it had not shown up during initial soil testing, which necessitated blasting of the rocks and license for carrying out the blasting work had to be obtained, which resulted in delay.
(iii) There was delay in obtaining the Commencement Certificate from BBMP (Bruhat Bengaluru Mahanagara Palike).
(iv) There was short supply of construction material.
(v) There was strike by construction material suppliers.
(vi) There was shortage of labour.
It was also stated in the written version that the respondent was ready and willing to deliver possession of the allotted flats to the complainants.
The possession of the allotted flats was delivered to the complainants/appellants during the pendency of the Consumer Complaints before the State Commission and the sale deeds in their favour were also executed. The State Commission was of the opinion that considering the ground given by the respondent for the delay in completion of the construction, it was entitled to an extension of six months. For the subsequent delay, the State Commission awarded compensation @ Rs.10,000/- per month, in each complaint. Being aggrieved from the order passed by the State Commission on the quantum of compensation, the appellants/complainants are before this Commission.
It is also submitted on behalf of the respondent that they have provided free modular kitchen to the complainants in order to compensate them for the delay in completion of the construction. The offer to provide free modular kitchen was made to the complainants during the pendency of the Consumer Complaints and was accepted by the complainants/appellants.
Thus, the only question involved in these appeals is as to whether the complainants/appellants have been adequately compensated for the delay in delivery of possession of the allotted flats to them or not.
The learned counsel for the parties have drawn my attention to clause 8.1 and 8.2 of the agreements which read as under:
8.1 The First Party, based on its present plans and estimates and subject to all just exceptions, contemplates to complete the construction of the Schedule 'C' Apartment and agrees to complete construction of the Schedule 'C' Apartment on or before 30th November, 2011 with a grace time of an additional 3 (three) months in case of delay without having to pay to the Second Party and interest or damages. The First Party shall handover possession of the Schedule 'C' Apartment to the Second Party only after the same is ready of occupation and subject to payment of all the amounts due under this Agreement. In the event of delay in handover beyond the time period as above the First Party shall pay to the Second Party interest at the rate of 10% (ten percent) per annum, pro-rated for further periods of such delays. The interest shall be calculated on all amounts received by the First Party from the Second Party, excluding the taxes and deposits. Such penalty shall be applicable only if the Second Party has made all payments to First Party as per the payment schedule agreed to at the time of booking and as attached hereto.
8.2 Though every effort will be made to obtain electrical, water and sanitary connections within the stipulated time, no responsibility will be accepted by the Second Party for delays in obtaining such connections, clearances, certificates from the statutory authorities and the Second Party shall not be entitled to claim any damage/losses against the First Party on the ground of such delay. The First Party shall not be liable if they are unable to complete the construction of the Schedule 'C' Apartment and deliver possession by the aforesaid date by reason of non-availability of cement, steel and other construction materials, civil commotion or by any act of God or if the delay is caused as a result of any Rule, Notification of the Government, Municipal Authority, any Court and/or any other public or competent Authority prohibiting construction activities or for reason beyond the control of the First Party and in any of the aforesaid events, the First Party shall be entitled to reasonable extension of time for delivery and possession of the completed premises and the monies till then paid by the Second Party under this agreement shall not be refunded.
It would thus be seen that the possession of the apartments was to be delivered on or before the date stipulated in clause 8.1 of agreements that a grace period of three months was also available to the respondent. In the event of delay, the respondent was required to pay interest @ 10% per annum for the period of delay.
Clause 8.2 of the agreements gives benefit to the respondent in respect of the delay in obtaining the electrical, water and sanitary connections, clearances and certificates from the statutory authorities. The use of the expression 'delays' in clause 8.2 of the agreements would mean that in order to claim benefit of the said clause, the respondent was required to prove that the grant of the requisite sanctions, clearance etc. had taken more than the time usually taken for such clearances and certificates and the said delay occurred without there being any fault on the part of the respondent. Since no one can be allowed to take advantage of his own lapse, respondent would not be entitled to any benefit of clause 8.2 of the agreement if the delay in grant of the requisite clearances and certificates, is attributable to it.
The respondent did not specify, in the written version filed by it as to when it had applied for obtaining the electrical, water and sanitary connections, how much time was taken by the concerned authorities in granting such connections and how much was the time usually taken by the concerned authorities in grant of such connections. The correspondence exchanged between the respondent and the concerned authorities in this regard was not placed before the State Commission. Therefore, it can hardly be disputed that the respondent had failed to establish, before the State Commission that there was delay in grant of electrical, water and sanitary connections and the said delay had occurred without there being any lapse/defect or shortcoming on the part of the respondent in seeking such connections.
Under clause 8.2 of the agreement, the respondent was not to be liable in case of delay in completion of construction due to non-availability of cement, steel and other construction material. However, no evidence was led before the State Commission to prove that cement, steel or any other construction material was not actually available in the market during the relevant period, despite efforts made by the respondent to procure such construction material. No evidence of any civil commotion or any act of God having actually delayed the construction was produced by the respondent. There is no evidence of any rule, notification etc. of an authority having prohibited construction activity. Therefore, the benefit of clause 8.2 of the agreement, in my opinion, was not available to respondent.
As regards the bed rock alleged to have been encountered by the respondent at foundation level, neither the initial soil testing report was filed before the State Commission to prove that the bed rocks had not shown up in the initial soil testing report nor did the respondent place any document on record to prove the time actually taken in obtaining the license required for carrying out the blasting work. Therefore, it would be difficult to justify the delay on account of the bed rocks alleged to have been encountered during the course of excavation. In any case, the agreement does give an extension of three months to the respondent for delay on account of any unforeseen circumstsances.
Though it is alleged that there was delay on the part of the BBMP in granting the commencement certificate, no evidence has been led to prove the said delay. No documents were filed before the State Commission to prove the date on which the commencement certificate was sought and the date on which the said commencement certificate was actually issued. No evidence was led to prove how much time is usually taken by BBMP in grant of such commencement certificate. The correspondence exchanged between the respondent and BBMP in this regard has not been placed on the record of the State Commission to substantiate the alleged delay in grant of the commencement certificate. Therefore, the aforesaid ground, in my opinion, did not stand established before the State Commission.
There is no evidence of strike by construction material suppliers. It is otherwise difficult to accept that the supply of the construction material in the area remained wholly suspended on account of the alleged strike of the construction material suppliers. Moreover, the dates of the alleged strike by the construction material suppliers were not given in the written version filed before the State Commission.
Though the respondent alleged shortage of labour, no evidence was led to prove that the labour was not actually available in the market despite the efforts made by the respondent or the contractors engaged by it for carrying out the construction work.
For the reasons stated hereinabove, I have no hesitation in holding that the respondent failed to justify the delay in delivery of possession to the complainants/appellants. Therefore, they are entitled to the agreed compensation after getting benefit of the grace period of three months envisaged in clause 8.1 of the agreement to the respondent.
As per clause 8.1 of the agreement, the respondent was required to pay interest @ 10% per annum to the complainants for the period the construction was delayed. There is no reason why the complainants should be denied even the compensation which the developer had agreed to pay to them at the time the agreements were executed with them. This is more so when clause 4.1 of the agreements required payment of interest @ 18% per annum in the event of delay on the part of the complainants in making payment to the respondent.
Admittedly, modular kitchen was provided by the respondent to the complainant during the pendency of the Consumer Complaints in order to compensate them for the delay in completion of the construction. There is no evidence of the modular kitchen being a part of the agreement executed between the parties. Therefore, the difference between the cost of modular kitchen and a regular kitchen, as per the agreement executed between the parties, has to be adjusted out of the compensation to which the complainants/appellants are entitled in terms of their agreements with the respondent.
For the reasons stated hereinabove, the Appeals and the Consumer Complaints are disposed of with the following directions:
(i) The respondent shall convey to the complainants/appellants, within four weeks from today, the difference between the cost of the modular kitchen as provided by it to the complainants/appellants and the cost of the regular kitchen which the respondent had to provide to the complainants/appellants as per the agreements executed with them. The communication which the respondent will send to the complainants/appellants in this regard, will be accompanied by reports of an Architect and a Chartered Accountant of the respondents, both of whom will also certify the difference in the cost of the modular kitchen and the regular kitchen, to be calculated in terms of this order. The relevant date for the purpose of calculating the difference in the cost would be the date on which the possession of the apartment was offered to the complainants/appellants. The adjustment between the cost of the modular kitchen and normal kitchen, calculated in terms of this order, would be applicable only in case of those complainants/appellants who have been provided with the facility of a modular kitchen in their apartments.
(ii) The respondent shall pay compensation in the form of simple interest @ 10% per annum w.e.f. three months from the last date stipulated in the agreement for delivery of possession in clause 8.1 of the agreements till the date on which the possession was offered to the complainants. The difference between the cost of the modular kitchen and the regular kitchen, as calculated in terms of this order, shall be adjusted while computing the compensation in the form of simple interest payable to the complainants/appellants in terms of this order.
(iii) If any payment has been made to the complainants towards compensation, that shall also be adjusted from the interest payable to them in terms of this order.
(iv) The compensation by way of interest shall be payable on the entire amount which the complainants/appellants had paid to the respondent on or before the last date stipulated in clause 8.1 of the agreement for delivery of possession.
(v) The complainants/appellants shall also be entitled to Rs.25,000/- as the cost of litigation in each complaint.
(vi) The payment in terms of this order shall be made within three months from today.