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Judgment
Subhash Chandra, Presiding Member
This complaint has been filed under the Consumer Protection Act, 1986 (in short, the ‘Act’) alleging deficiency in service against the opposite party in not delivering the flat booked by the complaint in a project promoted and executed by it even after the promised date of delivery.
The facts of the case in brief are that complainant no. 2 had booked a flat with the opposite party in its project “Vicenza Regency” in Vikhroli (East), Mumbai on 12.5.2014 by paying a booking deposit of Rs.5,00,000/-. The opposite parties had allotted a two BHK flat, No. A-1504 on the 15th floor with carpet area of 641 square feet corresponding to a super built up area of 962 square feet. The total consideration for the said flat was Rs.82,33,758/- at the rate of Rs 8,559/- per square foot. Possession was promised by 18.12.2015. The complainant has paid an amount of Rs.33,65,000/- which works out to approximately 40% of the total amount. However, the opposite parties issued another allotment letter dated 30.05.2014 conveying that the price of the flat had been revised to Rs.1,00,50,000/-. The date of possession was also revised to 01.12.2016.
It is the case of the complainant that the opposite parties have failed to execute a registered agreement as per the Maharashtra Ownership Flats Act and have arbitrarily and unilaterally revised the date of possession and increased the consideration payable. It is averred by the complainant that this constitutes both a deficiency in service and an unfair trade practice. The complainant approached the opposite parties for a refund of the amount paid by him which was not agreed to and therefore the present complaint has been filed seeking a direction for the execution of the agreement for sale and to complete the construction within a time bound period and to hand over possession. The complainant is before this Commission with the following prayer:
(a) That the opposite parties be jointly and severally directed to complete the construction of Vicenza Regency at Vikhroli (East) in Mumbai and obtain the occupation certificate;
(b) that pending the hearing and final disposal of this complaint, the opposite party no. 1 be directed to execute a registered agreement with the complainant no. 2 for sale of flat number A-1504 on the 15th floor of Vicenza Regency at Vikhroli (East) in Mumbai having a carpet area of 641 square feet with super built area of 962 square feet for a consideration of Rs.82,33,758/-;
(c) that pending the hearing and final disposal of this complaint the opposite parties be restrained through an interim order from creating any third party interest in the said flat number A-1504 on the 15th floor of Vicenza Regency at Vikhroli (East) in Mumbai;
(d) that the opposite party no. 1 be directed to accept the balance payments which became due from time to time and handover to the complainant no. 2 vacant, peaceful an unencumbered possession of flat number A-1504 on the 15th floor of Vicenza Regency at Vikhroli (East) in Mumbai; and
(e) that the opposite party no. 1 be directed to pay interest at 10% per annum from 18.12.2015 onwards on the amount of Rs.33,65,000/- paid till date for the flat or alternatively that in case of failure to hand over possession of the flat within a time bound period as may be fixed by this Hon’ble Commission, the opposite parties be directed to pay the market value of the flat prevailing on the date of payment;
(f) that the opposite parties be jointly and severally directed to pay to the complainant no. 2 a lumpsum compensation off Rs.5,00,000/- for the physical harassment and mental tension caused
(g) that costs of the complaint be awarded; and
(h) for such further and other reliefs and or directions as this Hon’ble Commission may deem fit and proper.
The opposite parties had been placed ex parte as per order dated 17.08.2017. The submissions of the learned counsel for the complainant have been heard and the evidence submitted by way of affidavit has been perused. I have given my thoughtful consideration to the facts on the record.
Since the opposite parties have not contested the complaint despite service of notice and have failed to put in an appearance, it is evident that they do not wish to reply to the contentions of the complainant. From the facts on record it is apparent that the complaint no. 2 had booked an apartment in the project “Vicenza Regency” and that a payment of Rs.33,65,000/- had been paid as on the date of the filing of this complaint i.e., 19.04.2017. The original date of handing over possession of the flat was 18.12.2015. This date was revised subsequently by the opposite parties to 11.02.2016. The sale consideration was also revised to Rs.1,00,50,000/-. The reasons for the same have not been indicated by the opposite party. The prayer of the complainant is to direct the opposite parties to register an agreement with him for a sale consideration of Rs.82,33,758/- as originally advertised, hand over possession of the same by expeditiously completing the construction and to pay interest at 10% p.a. from the promised date of delivery (18.12.2015) till possession is handed over along with compensation of Rs 5 lakhs and litigation costs. In the alternative, the opposite parties be directed to pay the prevailing market price to the complainant.
The complainant is a consumer who has booked a flat with the opposite party and has already paid nearly 40% of the sale consideration. His prayer for possession cannot be faulted with. In a catena of judgments the Hon’ble Supreme Court and this Commission have held that in case of delay in completion of a project, it is the discretion of the consumer (allottee) to either accept possession or to seek a refund with compensation. It has also been held that in cases of delay in handing over of possession, compensation by way of interest is a valid recompense for the consumer. It has also been held that compensation is valid for the period from the date the possession of the flat was promised till the date it is actually handed over. The petitioner has sought interest from the promised date of delivery till possession at 10%. I am inclined to consider this to be a fair prayer.
In view of the foregoing, this complaint is disposed of with the direction that the opposite parties register an agreement with the complainant for the amount of Rs.82,33,758/-, the original amount at which the booking was done on 12.05.2014. The opposite parties shall pay the complainant compensation at 10% on the amount deposited (Rs.33,65,000/-) as on the promised date of possession till possession. The opposite parties shall also pay the complainant Rs.50,000/- towards litigation costs.
The complaint is disposed of with these directions.