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Judgment
V.K. Jain, J
The learned counsel for the complainant states that vide order dated 8.2.2019 passed in WP No.1658 of 2012 and WP No.457 of 2017, the Hon'ble Bombay High Court has issued some directions to MHADA in respect of the project of the plot to which this complaint pertains. He, therefore, requests that the complaint may be disposed of in terms of the prayers (a) & (d) of the prayer clause. He further submits that as far as the compensation is concerned, this Commission may award such compensation as may be deemed appropriate by it in the facts and circumstances of the case.
The OP namely, Mr. Vilas Chandrakant Gaonkar, sole proprietor of M/s Shree Swami Samarth Construction, purchased land bearing C.S. Survey No.1646 and 1/1646 Final Plot No.217, T.P.S. IV, of Mahim Division together with building known as Swami Samarth Kripa Building Nos.1 & 2 from one Yusuf Dawoodbhai Bracketwala, by way of a conveyance deed dated 28.4.2008. Thereafter, he got the plans for development of the said property approved from Municipal Corporation of Greater Mumbai (MCGM) on 14.10.2009. The Commencement Certificate was given to him on 27.10.2010. He then executed an agreement with the complainant for sale of flat No.1201 on the 12th floor of the proposed building known as "Samarth Heights", for a consideration of Rs.1,25,00,000/-. The entire sale consideration was duly paid to the opposite party. As per clause 32 of the agreement, the OP was to give possession to the complainant within 36 months from the final Commencement Certificate subject to all payments required to be made by the purchaser. A right was given to the flat purchaser to terminate the agreement in case of failure of the builder to give possession of the allotted flat. Since the possession of the flat was not given to him as per the terms of the agreement, the complainant has approached this Commission by way of this consumer complaint with the following prayers:-
(a) This Hon'ble Forum may be pleased to order and direct the Opposite Party to start the work of construction of the incomplete building known as Samarth Heights on the said land, complete the construction of the building and hand over to the complainant the possession of the said flat namely one residential flat of 85.84 Sq. Meters Carpet area bearing Flat No.1201 on 12th floor of the said building "Samarth Heights" with two car parkings in podium of the said building with occupation certificate issued by the Municipal Corporation of Greater Mumbai within such period of time as this Hon'ble Forum deem fit and proper.
(b)This Hon'ble Forum may be pleased to order and direct the Opposite Party that in case the Opposite Party is not likely to complete the said Building "Samarth Heights" on the said land for any reason whatsoever in near future, the Opposite Party shall at his own costs purchase in the name of complainant one residential flat of 85.84 Sq. Meters Carpet area with two Car parkings in and around , Ranade Road-Gokhale Road locality, Dadar (west), Mumbai in a building constructed during 2009 to 2013 with occupation certificate and hand over the possession thereof to the complainant within such period of time as this Hon'ble Forum deem fit and proper.
(c) That in the event only of this Hon'ble Court not granting reliefs claimed in prayers (a) or (b) above, this Hon'ble Forum may be pleased to order and direct the Opposite Party to pay to the Complainant the said sum of Rs.1,25,00,000/- (One Crore Twenty Five lakhs only) together with interest thereon at the rate of 24% per annum or at such other rate as this Hon'ble Forum deem fit and proper from the date of payment that is 25.11.2009 till realization or payment towards the refund of the price of the said flat.
(d) This Hon'ble Forum may be pleased to order and direct the Opposite Party that in addition to the reliefs claimed in prayers (a) to (c ) above, the Opposite Party shall pay to the Complainant a sum of Rs.3,00,000/- together with interest thereon at the rate of 24% per annum or at such other rate as this Hon'ble Forum deem fit and proper from the date of the complaint till payment towards the compensation for mental agony, tension, torture and harassment caused by the Opposite Party to the Complainant.
(e) The costs of the case may please be provided for."
The opposite party filed written version contesting the complaint and has taken a preliminary objection that the complaint was premature since the M.C.G.M had issued the Commencement Certificate on 27.10.2010 for carrying the construction only upto plinth level, whereas the Commencement Certificate for construction upto 10th floor was given only on 9.2.2012. It is further stated in the written version that as per the modified Development Control Regulations, the OP submitted plans for construction above the 10th floor which came to be approved on 10.11.2014 subject to deposit of Rs.64474700/-. The stand taken by the opposite party is that the period of 36 months will start from the grant of the final Commencement Certificate by the Corporation.
Another preliminary objection taken by the OP is that this Commission lacks pecuniary jurisdiction to entertain the complaint since the agreed sale consideration includes tax besides the price of the building material etc.
On merits, the OP has admitted the execution of the agreement with the complainant as well as the payment received from him.
Both the parties have filed affidavits by way of evidence.
This complaint was admitted on 18.8.2015 by Bench No.1 of this Commission and thereafter it was listed by the Registry for final hearing on 26.3.2019. On that date, it was noted that no one was present for the OP despite notice having been served upon his counsel. A notice was, therefore, issued to the OP and was served through his nephew. Thereafter, the notice was served upon the OP through his son as well as by affixation. Even thereafter, no one has appeared for the OP.
As far as pecuniary jurisdiction is concerned, in terms of Section 21 of the C.P. Act this Commission has pecuniary jurisdiction to entertain the complaint where the value of the goods or services as the case may be and the compensation if any claimed in the complaint exceeds Rs.1 crore. As held by a three-Members Bench of this Commission dated 7.10.2016 in CC No.97 of 2016 - Ambrish Kumar Shukla & Ors. Vs. Ferrous infrastructure Pvt. Ltd., the value of the services in such cases would mean the sale price agreed to be paid by the buyer to the seller. The said price being more than Rs.1 crore and in addition to that the complainant also having claimed compensation, it can hardly be disputed that this Commission does have the pecuniary jurisdiction.
As regards, use of the expression "Final Commencement Certificate" used in clause 32 of the agreement, the contention of the learned counsel for the complainant is that Development Control Regulations do not envisage any provisional/interim Commencement Certificate or final Commencement Certificate, the expression used in the Regulations being Commencement Certificate and therefore, the certificate issued on 27.10.2010 was the certificate envisaged in clause 32 of the agreement. A perusal of the Commencement Certificate does show that it is not qualified as a provisional or interim Commencement Certificate. It has been issued on 27.10.2010 and the same was endorsed on 12.12.2011 as per the approved amended plan dated 28.7.2011. The certificate bears another endorsement dated 9.2.2012 whereby the Commencement Certificate was extended upto 10th floor as per the approved amended plan dated 28.7.2011.
It is evident from the Commencement Certificate dated 27.10.2010 that it was issued pursuant to application dated 6.7.2009 and was valid upto 26.10.2011 though it was issued upto plinth level only. Since the Development Control Regulations do not envisage issuance of the multiple Commencement Certificates or a provisional/interim Commencement Certificate followed by a final Commencement Certificate, the certificate dated 27.10.2010, in my opinion, would be the requisite Commencement Certificate envisaged in clause 32 of the agreement. Therefore, it was for the OP to complete the construction of the allotted flat and deliver its possession to the complainant by 27.10.2013. That having not been done, a consumer complaint filed in December, 2013 was clearly maintainable.
It has been pleaded in the written version filed by the OP that he had submitted a revised plan after amendment of the Development Control Regulations and the amended plan was conditionally approved on 10.11.2014. The learned counsel for the complainant has pointed out that initially itself the plans were approved for as many as 21 floors and after amendment of the Development Control Regulations, the OP had only sought to modify the plans in order to take advantage of the additional FSI which he had not claimed earlier. If the OP was seeking to modify the plans in order to take advantage of the additional FSI, he could not have done so unilaterally at the cost of the complainant and could not have thereby defeated his right to seek possession of the allotted flat on or before the date stipulated in clause 32 of the agreement executed between the parties. Therefore, the OP was under a contractual obligation to deliver possession of the allotted flat to the complainant within three years from the Commencement Certificate dated 27.10.2010.
It has already been stated by the learned counsel for the complainant on instructions that the complainants now wants a direction to the OP to complete the construction of the allotted flats, obtain the requisite Occupancy Certificate and deliver its possession to her alongwith compensation. The learned counsel for the complainant also states that the complainant would be satisfied if she is granted compensation in the form of simple interest @ 8% p.a. on the amount paid by her to the OP w.e.f. the committed date for delivery of possession, i.e., 27.10.2013 till the date on which the possession is actually offered in terms of the order of this Commission. He also suggests time till 31.12.2021 for completion of the work
For the reasons stated hereinabove, the complaint is disposed of with the following directions:-
(i) The OP shall complete the construction of the allotted flat in all respects, obtain the requisite Occupancy Certificate at its cost and responsibility and then offer possession of the allotted flat to the complainant on or before 31.12.2021.
(ii) The OP shall pay compensation in the form of simple interest @ 8% p.a. to the complainant on the entire amount of Rs.1,25,00,000/- w.e.f. 28.10.2013 till the date on which the possession in terms of this order is offered.
(iii) The OP shall pay a sum of Rs.25,000/- as the cost of litigation to the complainant.