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Judgment
Heard Mr. Govind Jee, Advocate, for the complainants and Ms. Garima Jain, Advocate, for opposite party.
51 sets of home buyers of the opposite party have filed above complaint as a representative case. The permission under Section 12 (1) (c) of the Consumer Protection Act, 1986 has been granted by this Commission on 05.07.2019 and notices have been published in two local newspapers. Above complaint has been filed for directing the opposite party to (i) pay each of the complainants compensatory interest @18% per annum, for the total period of delay in handing over possession as indicated in para 11.11 of the complaint; (ii) to refund, illegally charged car parking fee with interest @18% per annum,’ (iii) to refund illegally charged “legal fee” with interest @18 % per annum; (iv) to refund the fee charged towards BESCOM & BWSSB charges after deducting as per actual with an interest @18 % per annum; (v) direct opposite party to provide Green Jogging Track and Convenience Store as promised in Brochure, in time bound manner, else pay compensation of Rs.500000/- to each complainants and each buyer having same interest and (vi) any other relief which may be deemed fit and proper in the facts and circumstances of the case.
The complainants stated that M/s. S.J.R. Prime Corporation Private Limited (the opposite party) (the developer) was a company, incorporated 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 developer launched a project of group housing in the name of “Fiesta Homes by SJR Prime”, at Doddanagarmangala village, Begur Hobli, Bangalore South Taluk, Bangalore in the year 2011. The developer widely advertised the project and represented for on time delivery of possession and world class modern facilities and amenities. Believing upon the representation and tall promises of the developer, all the complainants booked one flat each for them, in the 2012. The details of date of booking, flat number etc. are given in Exhibit PW/5.
The facts relating to complainant-44 are stated herewith. The developer allotted Unit No.-604 (admeasuring 1037 sq.ft.), Block Magnifica to complainant-44, vide allotment letter dated 26.03.2012. The developer and the owner of the land executed an Agreement to Sell dated 31.03.2012, in respect of undivided proportionate saleable area of land for Rs.1467600/-. The developer executed a Construction Agreement dated 31.03.2012, in favour of complainant-44, for construction of above flat, showing total cost of construction as Rs.2612727/-. Schedule-E of this agreement contained “Construction Linked Payment Plan” under which, total sale consideration was payable in 12 instalments on different levels of the construction. Clause-6.1 of the agreement provided date of completion of construction as March, 2014 with six months grace period. According to the payment plan, 90% of total cost was realized time to time. However, the construction was not completed on due date. It has been stated that the construction was delayed for a period of 40 months from due date. The developer obtained “Occupancy Certificate” on 17.05.2017. Thereafter, possession was offered. Title deeds were executed from January, 2018 onward. At the time of offer of possession, delayed compensation was paid at the rate of Rs.2/- per sq.ft. per month of the super area. On taking possession, it was noticed that the construction was not done as per specification. The home buyers gave emails dated 10.12.2018 and 26.03.2019 pointing out deficiency in construction. The developer has illegally charged for Car Parking space. The developer has exorbitantly charged legal expenses for execution of conveyance deed. The developer has charged exorbitantly BESCOM & BWSSB charges. Some of the complainants gave legal notice dated 12.10.2017. Some of the complainant objected above demands, made at the time of offer of possession. Then, this complaint was filed on 29.05.2019.
The opposite party did not file written reply in time as provided under Section 13 (2) of the Consumer Protection Act, 1986. Supreme Court, vide order dated 11.08.2021, passed in Civil Appeal No.715 of 2021, closed right of the opposite party to file written reply in the complaint. The complainants filed Affidavit of Evidence of Kaushik Narsinghbhai Patel and various documentary evidence. Both the parties filed their short synopsis.
We have considered the arguments of the parties and examined the record. Issue relating to charges of “car parking” has been decided in favour of the developer by this Commission in CC/913/2016, R.V. Prasannakumar Vs. Mantri Castles Pvt. Ltd. (decided on 08.06.2018), which has been affirmed by Supreme Court in Civil Appeal No.1232 of 2019 R.V. Prasannakumar Vs. Mantri Castles Pvt. Ltd. (decided on 11.02.2019). Judgement of Supreme Court in Nahalchand Laloochand Pvt.Ltd. Vs. Panchali Co-operative Housing Society Ltd., (2010) 9 SCC 536 has been distinguished. As such demand for return of the amount realized in the head of Car Parking Space cannot be granted.
Supreme Court in Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes, Pvt. Ltd., (2020) 16 SCC 512 and Civil Appeal No.1232 of 2019 R.V. Prasannakumar Vs. Mantri Castles Pvt. Ltd. (decided on 11.02.2019), held that delayed compensation is payable in the shape of interest @6% per annum on the deposit of home buyers from due date of possession till the offer of possession. In Banglore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 442, held that in the matter of contractual obligation, there is no scope for compensation for mental agony and harassment. In DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda, II (2019) CPJ 117 (SC) held when interest is awarded as compensation then awarding additional compensation was not justified.
In the present case, due date of possession was September, 2014, while “occupancy Certificate” was obtained 17.05.2017 and possession was delivered thereafter. The complainants have not given date-wise payment schedule. Schedule-E of this agreement contained “Construction Linked Payment Plan” under which, total sale consideration was payable in 12 instalments on different levels of the construction. As such for the purposes of delayed compensation, we think it appropriate that due date of possession will be considered after expiry of six month from the payment of 11th instalment by the home buyer. The developer would be entitled for further six month as grace period. The developer shall pay delayed compensation in the shape of interest @6% per annum on the deposit of the complainants from the due date of possession as determined in accordance of above formula till the date of actual possession.
The complaints prayed for refund of legal fee as realized by the developer for execution of conveyance deed. The complainants have not adduced any evidence on the basis of which, legal fee can be determined by this Commission. Advocates Act, 1961 does not prescribed any formula for legal fee. If the complainants had any objection in this respect, they would have asked the developer that they would arrange for their advocate for the sale deeds.
The complainants alleged that the developer had charged exorbitantly BESCOM & BWSSB charges. The developer has produced Charted Accountants certificate dated 06.04.2022 to prove that BESCOM & BWSSB charges had been paid to the Statutory Authority. The complainants might have obtained information from the statutory authority in respect of the amount paid by the developer for BESCOM & BWSSB charges. In the absence of any material on the record, we cannot decide that the developer had charged exorbitantly BESCOM & BWSSB charges.
The complaints prayed that the developer be directed to provide Green Jogging Track and Convenience Store as promised in Brochure. The developer in the written submitted has stated that Green Jogging Track and Convenience Store have been constructed, which has been denied by the complainants.
ORDER
In view of aforesaid discussions, the complaint is partly allowed. The opposite party is directed to pay delayed compensation in the shape of interest @6% per annum on the deposit of the complainants from due date of possession as determined for each buyer in the manner as provided in paragraph-8 of the judgement till the date of offer of possession and construct Green Jogging Track and Convenience Store, within a period of two months from the date of this judgement.