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Judgment
R.K. Agrawal, J, President Member
The present Consumer Complaint was filed under section 12(1)(c) read with Section 21(a)(i) and Section 22(1) of the Consumer Protection Act, 1986 (for short "the Act"), initially by 24 Complainants through Mr. Gautam Das and Mr. Chidananda Jena in a representative character, being the authority holders, on their own behalf and that of all the other Allottees in the Project "Jeevan Anand" (for short "the Project") proposed to be developed by LIC HFL Care Home Ltd, Opposite Party (hereinafter referred to as 'the Opposite Party'), seeking possession of the Units complete in all aspects in the Project, along with delayed compensation in view of causing legal injury and financial loss to the Complainants as well as innumerable other allottees.
Since all the Complainants have booked their respective flats in the same Project of the Opposite Party; entered into identical Agreements to Sell with them and the issues regarding their allotment such as delay in handing over possession, deficiency in construction, are identical and resultantly almost same reliefs have been prayed for by all the Complainants; the Complainants had moved Application being I.A. No. 4179 of 2017 seeking permission to file Joint Complaint. Vide order, dated 02.08.2017, the Application was allowed, in view of the decision of the larger Bench of this Commission in the case of Ambrish Kumar Shukla &Ors. Vs. Ferrous Infrastructure Pvt. Ltd. - I (2017) CPJ 1 (NC) , therefore, the present Complaint was allowed to have been filed in a representative capacity under the aforesaid provisions.
During the course of the Proceedings, vide Order dated 03.01.2018 Applications being 03.05.2018 Applications being I.seeking impleadment in the array of Parties as Complainants were allowed, Consequently, amended Memo of Parties was filed on 26.06.2018, according to which, a total number of 89 allottees are before this Commission, by way of the present Consumer Complaint. Further, vide Order dated 07.02.I.A. No. 1905 of 2019 to I.A. No. 1907of 2019, Application seeking impleadment in the array of parties was allowed, However, subsequent thereto, amended Memo of Parties have not been filed.
For the sake of convenience, the material facts, enumerated hereinafter, are taken from the case of Complainant No.1 namely, Gautam Das & Bilasini Das.
The Opposite Party LIC HFL Care Home Ltd. (hereinafter referred to as the Opposite Party Developer) is a company incorporated under the Companies Act, 1956. With the purpose of addressing the need of housing for senior citizens of the country.The Opposite Party launched its eco-friendly pilot Project Jeevan Anand at Bhubaneshwar, Odisha for citizens who attained age of 50 years on 31.03.2013. The Complainant No 1 in good faith and relying on the assurances of the Opposite Party, booked apartment with the Opposite Party in their Project "JEVEN ANAND" by investing their hard-earned money and saving of life time to have their own roof in the year 2011. Subsequent thereto, vide allotment letter dated 21.11.2011, the Complainant No. 1 was allotted Flat No. 901, Block No. A1 in the year 2011, possession of which was supposed to be handed over on or before 30.04.2013.
According to the Complainants, the Project, as proposed to be developed by the Opposite Party, consists of 216 flats, sub-divided into different categories on the basis of their super areas. The basic price of the flats do not include the following: -
Stamp Duty, Registration Charges, Legal Expenses.
Cost of Electric Meter, Electrical Services connection charges.
Service tax and other taxes as imposed by Govt./ Statutory Bodies.
Escalation over basic price as per R.B.I, wholesale price index for all the commodities based on 2013.
The Opposite Party assured the following amenities to the Complainant: -
a) Dedicated Parking
b) Landscape Garden
c) Intercom/ Common Dish Antenna
d) Reading Room/ Yoga Centre/ Gymnasium
e) Amenity Centre
f) Community/ Meditation Hall
g) Generator Backup for lift and Common areas
h) Panoramic View of green belt
i) Proximity to Multi Speciality Hospital
j) Round the clock Security
k) BDA Approved Plan, and,
I) The Project approved by Ministry of environment and forest
The Complainant No. 1, along with other allottees, alleged to have paid 70%-90% of the total sale consideration. For ready reference, the necessary details of all the Complainants relating to Apartment allotted, date of delivery of possession etc., are given below:-
S. No.
Name of the Complainant
Type
Block/Unit No.
Date Of Possession as per Brochure
Mr. Gautam Das & Mrs Bilasini Das
A
A2/905
30-Apr-2013
Mr. Mayadhar Jena & Mr. Chidananda Jena
A
A1/901
30-Apr-2013
Mr. GangadharaNayak
B
A3/506
30-Apr-2013
Mr. Prasanta Kumar das & Mr. Nrusingha Charan Das
C
A2/903
30-Apr-2013
Mr. Mahesh Bachan Rout & Mr. Srinibas Rout
B
A1/201
30-Apr-2013
Mr. AmlanAnupam& Mr. DhaneswarSahoo
B
A4/405
30-Apr-2013
Mrs. NirupamKhuntia& Mr. Pradip Ku Khuntia
A
A3/501
30-Apr-2013
Dr. Arjun Subudhi& Mr. TrinathSubudhi
A
A3/602
30-Apr-2013
Mrs. SasmitaMohapatra& Mr. Jitendranath Swain
B
A3/706
30-Apr-2013
Mr. Ramesh Chandra Sahoo& Late Basanti Sahoo
D
A3/603
30-Apr-2013
Mr. Naresh Chandra Sahoo
B
A3/102
30-Apr-2013
Mr. Puran Chandra Mishra & Mrs. Sakuntala Mishra
C
A2/703
30-Apr-2013
Mrs. Pranati Das
A
A4/501
30-Apr-2013
Mrs. Sucharita Mohanty & Mrs. Binodini Mohanty
A
A1/905
30-Apr-2013
Mrs. Manasi Mohanty & Mr. Anoj Kumar Pradhan
C
A4/703
30-Apr-2013
Mr. Sadasiv Mishra
B
A1/601
30-Apr-2013
Mrs. Pratima Pradhan &Mr Raghu Nandan Badhai
C
A1/604
30-Apr-2013
Mrs. Banita Rath & Mr.Bimal Chandra Rath
B
A1/205
30-Apr-2013
Mr. Laxmi Narayan Biswal & Mr. Padmanav Biswal
F
B1/306-308
30-Apr-2013
Mr. Soumitri Kumar Mishra & Mrs. Mohini Mishra
B
A2/306
30-Apr-2013
Mr. Bijay Kumar Dash & Mrs. Parbati Dash
D
A2/304
30-Apr-2013
Mr. Tusar Ranjan Mohanty & Mrs. Rashmi Rekha Pattnaik
D
A3/403
30-Apr-2013
Mr. Sanjeev Kumar Padhee& Late Usharani Padhee
A
A4/901
30-Apr-2013
Mrs. Usha Kiran Samantaray
C
A3/503
30-Apr-2013
Prakash Chandra Tripathy
C
A4/503
30-Apr-2013
Raj Kishore Mishra 65 Bibhudatta Mishra
B
A4/706
30-Apr-2013
Krushna Jena &Parthasarathi Jena
B
A1/302
30-Apr-2013
Surojit Singh &Padmalaya Sinha
D
A3/904
30-Apr-2013
Ashim Kumar Chakraboty & Alaknandachakraborty
B
A1/702
30-Apr-2013
Kailash Chandra Dash &Sidbarth Dash
B
A4/401
30-Apr-2013
Bijaya Chandra Behera& Suresh Chandra Behera
B
A2/601
30-Apr-2013
Simanchal Panda &Dukhishyam Panda
A
A3/202
30-Apr-2013
Ajit Gopal Samal
B
A3/105
30-Apr-2013
RabinarayanLenka&ManoramaLenka
A
A1/701
30-Apr-2013
SradhanandaMohapatra
A
A1/206
30-Apr-2013
Rajesh Ram Mishra & Sujata Mishra
A
A1/705
30-Apr-2013
Uma Prasad Panda &kumudini Panda
1B/204
30-Apr-2013
Akshaya Kumar Parhi&SasmitaParhi
A
A1/505
30-Apr-2013
Banani Patnaik &Arun Kumar Patnaik
A
A4/105
30-Apr-2013
Ashok Kumar Panda &Sukanti Devi
A
A1/606
30-Apr-2013
Ajay chnadraTripathy&Bijoy Chandra Tripathy
A
A1/501
30-Apr-2013
JaduBansh Gupta &Prem Shankar Gupta
B
A1/502
30-Apr-2013
Ashish Goenka&SharadaGoenka
B
A3/306
30-Apr-2013
Aarti Patnaik &ChandrashekarMohanti
A
A4/402
30-Apr-2013
Subash Chandra Samal
A4/505
30-Apr-2013
Amarendra Kumar Das &Biswanath Das
C
A3/204
30-Apr-2013
SurendraNayak
B
A1/506
30-Apr-2013
Ranjeet Kumar Panda &BasantiManjari Panda
B
A3/702
30-Apr-2013
Jayanti Das &AmbikaPrasanna Das
B
A1/801
30-Apr-2013
Siba Prasad Mishra &BrajaSundar Mishra
B
A4/601
30-Apr-2013
Pratyush Kumar &Banabihari Panda
B
A4/906
30-Apr-2013
ShilpaKhurana&Kiran Khurana
B
A3/902
30-Apr-2013
Justice BasudebPanigrahi&BindhyabalaPanigrahi
A
A3/301
30-Apr-2013
Mr. SarojKantaChoudhary&MrsSajuktaChoudhary
B
A3/505
30-Apr-2013
Saroj Kumar Dash & Ms. ShyamaliKhadanga
A
A4/802
30-Apr-2013
UmakantaSahoo&Jatindra Mohan Sahoo
B
A3/405
30-Apr-2013
AbhayaSankar Mishra s/o SasiBhusan Mishra
D
A2/403
30-Apr-2013
Lalit Kumar Dash s/o Late Narayan Dash
A3/701
30-Apr-2013
Saira Begum
C
A1/404
30-Apr-2013
Rekha Das
B
A1/106
30-Apr-2013
ManoranjanBehera
A
A4/705
30-Apr-2013
Niranjan Swain
B
A3/605
30-Apr-2013
Mamita Das
B
A2/702
30-Apr-2013
NrusinghaCharanBehura
C
A3/601
30-Apr-2013
SibaSekharRath
C
A2/103
30-Apr-2013
Debabrata Dash
B
A1/902
30-Apr-2013
Anil Bisoyi
B
A2/801
30-Apr-2013
Kanak LataRath
A
A4/406
30-Apr-2013
SidheswarNayak
A
A4/701
30-Apr-2013
Jaya Shree Pattanaik
A
A2/806
30-Apr-2013
Dr. Siba Prasad Moharana
A
A1/101
30-Apr-2013
Pitamber Tripathy
A
A4/905
30-Apr-2013
Sanjay Keshari Swain
D
A2/104
30-Apr-2013
Pushpa Acharya
D
A3/104
30-Apr-2013
Rabishankar Mishra
C
A2/804
30-Apr-2013
SubhasishMahapatra
A4/705
30-Apr-2013
SasmitaParida
B
A2/902
30-Apr-2013
Dilip Kumar Bhuyan
A3/401
30-Apr-2013
Shyamaghan Pradhan
B
A2/102
30-Apr-2013
Samish Kumar Mohanty
D
A4/304
30-Apr-2013
Mrs. Manjushree Panda
A
A1/406
30-Apr-2013
Suresh Chandra Behera
B
A2/601
30-Apr-2013
Bimal Kumar Dash
A
A2/406
30-Apr-2013
Surendra Kumar Patra
D
A4/603
30-Apr-2013
Srinivas Panigrahy
C
A1/903
30-Apr-2013
Rabindra Kumar Mishra
A
A3/305
30-Apr-2013
Golak Bihari Biswal
E
B1/301
30-Apr-2013
Pradeep Kumar Patra
D
A4/403
30-Apr-2013
Sudeep Kumar Patra
B
A4/106
30-Apr-2013
PranatiNayak
D
A3/203
30-Apr-2013
BharatiNayak
A
A4/101
30-Apr-2013
Brahmananda Panda
B
A2/201
30-Apr-2013
.
It is the say of the Complainants that despite depositing 70% to 90% of the total sale consideration to the Opposite Party as per their demand, the Opposite Party failed to deliver the possession of the flats within stipulated period.Aggrieved by the actions/inactions of the Opposite Party, due to inordinate delay caused in handing over timely possession complete in all aspects, the Complainants wrote various letters / emails and also sent legal notices to the Opposite Party addressing their grievances, however only false assurances were given without any fruitful result.Neither Flats were completed nor possession of the Flats was handed over to the Complainants. Pertinently, construction has been at a halt since 2013 and the Opposite Party has failed to respond to the queries of the various Allottees / Complainants. Complainants have further stated that due to the deficiency in service caused by the Opposite Party, they are facing immense hardships, both financial and mental, as they are made to pay EMI of the housing loans and rental payments for their accommodations. That they are even losing interest on the amount paid to the Opposite Party and are under undue disadvantage being in the shadow of the dominant position as enjoyed by the Opposite Party, who has despite collecting money is now not giving the possession of the Flats to the Complainants. Alleging deficiency in service and Untrade Practice on the part of the Opposite Party, the Complainants have filed the present Complaint seeking following reliefs:-
"Pass an order directing the Opposite Parties to complete the apartments strictly in accordance with the specifications, rules and regulations, sanctioned plans, lay out and development plans, along with necessary common facilities and services like and community house, legally mandated with water and electricity supply being provided to the Colony from the Government utilities within three months and handover the possession thereafter within a month in accordance of law to the complainants and other allottees of the Project "JEEVAN ANAND" At Aiginia and Ghatikia, Bhubaneswar, Near Satyasai Enclave, Odisha; And/or
Pass an order directing the Opposite Parties to pay interest on delay in the handing over possession of the flats @ 18% p.a. on the amount paid by the flat owners, from 30 April, 2013, till the possession is handed over to them in terms of prayer (i) above to the complainants and other allottees of the Project "JEEVAN ANAND" At Aiginiaand Ghatikia, Bhubaneswar, Near Satyasai Enclave, Odisha ; And/or
Pass an order directing the respondent No. 2 to complete and provide the external development works to the Colony in accordance with the law, before the possession is handed over to the complainants and other allottees of the Project "JEEVAN ANAND" At Aiginia and Ghatikia, Bhubaneswar, Near Satyasai Enclave, Odisha ; And/or
Pass an order directing the respondents' no.1 and 2 stating that the final instalment becomes payable only after interest and damages for mental agony and harassment amount as deemed proper is fixed by the Hon'ble Commission and is paid to the complainants and other allottees of the Project "JEEVAN ANAND" At Aiginia and Ghatikia, Bhubaneswar, Near Satyasai Enclave, Odisha; And/or
Pass an order directing the Respondent Nos. 1 and 2 to pay 5 lacs as compensation for mental agony and harassment caused due to the delay and cost of litigation of the present complaint be awarded to the complainants; And/or
Pass any order(s)/ any other further relief In favour of the complainant and other allottees as the Hon'ble Commission may deem fit and proper in the fact and circumstances of the case."
Upon notice, the Opposite Party has filed its reply to the Complaint, inter-alia, contending that since the inception of the Project, the Opposite Party is diligently working towards its completion and taking every necessary step to ensure that the construction proceeds at a proper pace, however, the Project got delayed, due to reasons beyond the control of the Opposite Party, such as, occurrence of natural calamity like heavy rainfall, cyclones, etc and due to reasons attributable to the Contractor namely M/s SVEC Constructions Ltd., who was engaged for the construction of the Project; that the Opposite Party issued notice, dated 05.02.2015, to the Contractor, intimating termination of contract if the work at the site is not resumed within 30 days; that the Contractor filed Arbitration Petition No. 603 of 2015 before the Hon'ble High Court of Bombay due to which the construction work at Project site was stopped from 04.03.2015 and ultimately began only on 23.02.2016; that Complainant No. 1, 2 and 4 have already filed Complaint before the District forum and therefore the present consumer case is s ub-judice ; that the Opposite Party has bona fide intention to achieve timely completion of the Project, however delay has been caused due to reasons which were beyond its control; that the Complaint is barred by limitation and the cause of action is not continuing; that since February 2016, the construction work has regained momentum and completion is likely to be achieved by February, 2018; and that there was no deficiency in service on its part and the Opposite Party has not adopted any unfair trade practice; and that the Complaint is liable to be dismissed. Pertinently, monies paid by the Complainants/Allottees towards the sale consideration have not been disputed by the Opposite Party.
Rejoinder was filed on behalf of the Complainants, denying the Contentions as raised by the Opposite Party, further stating that the Complaints filed before the District Commission have been withdrawn and no other Complaint is pending before any court; that there has been inordinate delay in handing over the possession, since Project was supposed to be completed by April 2013; that the Complaint is not barred by limitation as the cause of action is a continuing one since neither possession has been handed over nor the monies paid by the Allottees/Complainants has been refunded and thus the Complaint filed by the Complainants be allowed in terms of the Prayer Clause.
We have heard Mr. Rahul Goyal, learned Counsel for the Complainants and Mr. Sanjay Jain, ASG appearing for the Opposite Party Developer, perused the material available on record and have given our thoughtful consideration to the arguments advanced before us.
As far as the plea of the Opposite Party Developer that delay in completion of Project occurred due to occurrence of natural calamity like heavy rain fall and cyclones etc., is concerned, no documentary evidence has been filed by the Developer to establish that how many days' delay occurred due to natural calamities.The delay in completion of the Project by the Developer cannot be justified on such bald allegation without substantiating the same by hard evidence. So far as the defence that delay occurred due to dispute between the Developer and its contractor is concerned, the Complainants cannot be made victim of any inter se dispute between the Developer and its contractor. Therefore, we do not find any force in the defence taken by the Developer.
During the course of Proceedings, the Opposite Party Developer after obtaining the Occupancy Certificate on 25.11.2019, issued letters of Offer of Possession in January 2020 to the Complainants asking them to deposit the following amounts:-
(a) 10% of the final instalment;
(b) 12% of escalation;
(c) 12% GST as made applicable since 2017;
(d) 1,00,000/- as advance maintenance;
(e) Interest on delayed payment @9.75% as per SBI rate of interest.
We have gone through the Brochure and find that the charges mentioned at Sl. Nos. (a), (b), (c) & (d) are in accordance with the Brochure. As far as the interest on delayed payment is concerned, the Opposite Party Developer is entitled to charge interest on the delayed payment.Therefore, the Complainants are liable to pay the afore-mentioned charges.
It is not in dispute that the possession of the allotted Flats was to be delivered in April 2013 but the Opposite Party Developer had offered the Possession to the Complainants after an inordinate delay of more than 7 years in January 2020.
We find it a fit case to place reliance on the Judgment dated 11.01.2021 passed by the Hon'ble Supreme Court in "Ireo Grace Realtech Pvt. Ltd. vs. Abhishek Khanna & Ors." [Civil Appeal No. 5785 / 2019 & other connected Appeals], in which the Hon'ble Apex Court has observed as hereunder :
"....... We are of the view that allottees at Serial Nos. 1 and 2 in Chart A are obligated to take possession of the apartments, since the construction was completed, and possession offered on 28.06.2019, after the issuance of Occupation Certificate on 31.05.2019. The Developer is however obligated to pay Delay Compensation for the period of delay which has occurred from 27.11.2018 till the date of offer of possession was made to the allottees.."
Respectfully following the principle laid down by the Hon'ble Supreme Court in "Ireo Grace Realtech Pvt. Ltd. vs. Abhishek Khanna & Ors." (supra) , we are of the considered view that the Complainants are entitled for Compensation for delay in delivery of the possession of the Flats. Since the Opposite Party Developer is charging interest @9.75% on delayed payment, it will be in the interest of Justice, if the Complainants are awarded delay compensation in the form of interest @9.75% p.a. from April 2013 till the date of delivery of the possession of the Flats.Consequently, the Consumer Complaint is allowed in following terms:-
(i) The Opposite Party Developer is directed to pay delay compensation in the form of interest @9.75% p.a. on the amount deposited by the Complainants from April 2013 till the date of delivery of the possession of the Flats within six weeks from today;
(ii) The Opposite Party Developer shall work out the Compensation after making adjustment of the outstanding charges payable by the Complainants as mentioned in the Offer of Possession letter and make payment of the Compensation to the Complainants within six weeks from today;
(iii) After adjusting the delay compensation, if any amount remains payable by the Complainants, then the Complainants will make the payment of the shortfall to the Opposite Party Developer before getting the delivery of the possession of the Flats;
(iv) The Opposite Party Developer shall deliver the possession of the Flats to the Complainants within eight weeks from the date of passing of this Order failing which the delay compensation will increase from 9.75% to 12% p.a.
The pending application, if any, also stand disposed off.