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Judgment
Heard Mr. T.A. Francis, Advocate, for the complainant and Mr. Aniroh Joshi, Advocate, for the opposite party.
Chandrashekhar Nagar and Ms. Geeta Nagar have filed above complaint for directing the opposite party to (i) refund entire amount deposited by them with interest @18% per annum from the date of respective deposit till its realization; (ii) pay Rs.1000000/-, as compensation for mental agony and harassment; (iii) pay Rs.100000/- as the litigation costs; and (iv) any other relief which is deemed fit and proper in the facts and circumstance of the case.
The complainants stated that the opposite party was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project and selling its unit to the prospective buyers. The opposite party launched a group housing project, in the name of “Ajmera Iconic” at Thakur Complex, CTS No.565, Kandivali (East), Mumbai, in the year 2012 and made wide publicity of its facilities and amenities. The complainants booked Unit No.1503, Wing A, 15th Floor, carpet area 1306 sq.ft., total price of Rs.20802750/- and deposited booking amount of Rs.500000/- 11.06.2012. The opposite party provisionally reserved the aforesaid flat for the complainants. As per demand of the opposite party, the complainants deposited total Rs.10051275/- till 24.05.2013. The complainants signed Letter of Intent on 24.08.2013. Clause-8 of the Letter of Intent provides that the opposite party shall endeavour to complete construction by 2014 with grace period of 24 months, failing which the allottees were given liberty to cancel the allotment and seek refund with interest @12% per annum on their deposit. The opposite party, through email dated 09.05.2015, informed that they had completed 15 number of floors but now they were stopped from raising construction by M.C.G.M. and S.R.A. pursuant to draconic circular dated 18.05.2011, pertaining to curb development in and around the radius of 500 meters of the defence land. The complainants demanded papers relating to land, approval and sanction of layout plan by the authorities. The opposite party through email dated 29.02.2016 supplied a scanned copy of “Commencement Certificate”, in which, permission for construction was granted up to 14th upper floors, only. The complainants, through email dated 05.03.2016, raised a query as to how, the flat at 15th floor was allotted to them although permission for construction was up to 14th floor and gave reminders dated 06.03.2016, 09.04.2016 and 06.11.2016 to the opposite party. The opposite party however instead of giving reply to the query, again and again replies that the construction was now completely stopped. The opposite party, through email dated 06.09.2017, informed that Ministry of Defence had modified the Circular dated 18.05.2011, by Circular dated 21.10.2016 and restriction for development was reduced to 10 meter in radius of the defence land and the property in question now does not fall within restricted zone. The complainants gave a legal notice dated 09.10.2017, for refund of their money with interest. But the opposite party through its reply dated 03.11.2017, denied to refund and stated that after Circular dated 21.10.2016, they had applied for issue of fresh “commencement certificate” and on issue of it, they will complete. This complaint was filed on 12.01.2018, alleging unfair trade practice.
The opposite party filed written reply on 16.05.2018, in which, booking of the flat on 11.06.2012 and deposits made by the complainants, issue of Letter of Intent dated 24.08.2013, have not been denied. The opposite party stated that Slum Rehabilitation Authority (SRA) granted the land and issued Letter of Intent dated 01.06.2010, for development of group housing project, which was amended on 02.08.2011 and 12.10.2012. The SRA issued Intimation of Approval dated 28.09.2010 for the building, which was amended on 15.10.2012. The SRA issued “Commencement Certificate” dated 20.10.2010. The SRA endorsed the aforesaid “Commencement Certificate” for the work upto Stilt + 3 level podium + 13 upper floors on 02.05.2011, who further endorsed upto 14 upper floors on 16.01.2013. Then construction was started on 21.10.2010. In Letter of Intent, Intimation of Approval and “Commencement Certificate”, the opposite party was nowhere required to obtain any NOC from defence authorities. Municipal Corporation of Greater Mumbai (MCGM), for the first time in the year 2015 stopped the construction on the basis of circular dated 18.05.2011, pertaining to curb development in and around the radius of 500 meters of the defence land. Ministry of Defence, Government of India subsequently, vide circular dated 21.10.2016 modified Circular dated 18.05.2011 and restriction for development was reduced to 10 meter in radius of the defence land and the property in question now does not fall within restricted zone. After Circular dated 21.10.2016, the SRA issued fresh Intimation of Approval on 20.11.2017. The opposite party has applied for fresh NOC from the High Rise Committee on 05.03.2018, same is awaited. The opposite party has applied for fresh Environmental Clearance on 14.03.2018. As soon as approvals are granted the opposite party will construct the building. The construction was stopped by statutory authority as such the construction was delayed for the reasons, beyond the control of the opposite party. There was neither unfair trade practice nor deficiency in service on their part.
The complainant has filed Replication, Affidavit of Evidence, Affidavit of Admission/Denial of documents of Chandrashekhar Nagar and documentary evidence. The opposite party has filed Affidavit of Evidence of Manish K. Ajmera and documentary evidence. Both the parties have filed written synopsis.
We have considered the arguments of the counsel for the parties and examined the record. The complainants booked Unit No.1503, Wing A, 15th Floor, carpet area 1306 sq.ft., total price of Rs.20802750/- on 11.06.2012 and the opposite party provisionally reserved the aforesaid flat for the complainants. As per demand of the opposite party, the complainants paid total Rs.10051275/- till 24.05.2013. The complainants signed Letter of Intent on 24.08.2013. Clause-8 of the Letter of Intent provides that the opposite party shall endeavour to complete construction by 2014 with grace period of 24 months, failing which the allottees are given liberty to cancel the allotment and seek refund with interest @12% per annum on their deposit. Said period has expired in December, 2016. The opposite party could not obtain Intimation of Approval for construction of 15th floor and other necessary NOC till today. Supreme Court in Banglore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 442, Fortune Infrastructure Vs. Trevor D’Lima, (2018) 5 SCC 442 and Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 SCC OnLine SC 438, held that a home buyer cannot be made to wait for possession of the flat for indefinite period.
ORDER
ln view of aforesaid discussion complaint is partly allowed. The opposite party is directed to refund entire amount, with interest @9% per annum from the date of respective deposit till the date of payment, within a period of two months from the date of this judgment.