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Judgment
There is a magic in that little word ''home''. It is a mystic circle and surrounds comforts and virtues, never known beyond its hollowed limits".
This case, pivots around the question, "whether, Mr. Elmer Sheldon D''Silva and his wife, Mrs. Elona A. C. D''Silva, the complainants, are liable to pay interest in the sum of Rs.50,988/- for alleged non-payment of instalment in the sum of Rs.6,38,277/- due for completion of brick work and plastering, demanded on 17.01.2011?". This is an indisputable fact that the flat is ready, but the OP did not handover the flat because this much interest amount was not paid. The bone of contention between the parties is, "Whether, the brick work and plastering, stood completed on or before 17.01.2011?".
The facts germane to this complaint case are these. The complainants were attracted by the rosy picture of salient features of a residential complex, known as "Fairfield ''C'', situated at Village Majiwade, Taluka & District - Thane, in the registration Sub-District of Thane, Maharashtra, floated by M/s. Shree Sainath Enterprises, the Opposite Party (OP), the Builders. The complainants visited the site in July, 2009, saw the sample flat, the building layout and had detailed discussion and negotiations for allotment of a flat. The Flat No.2501 SG on the 25 th floor admeasuring 1118 sq.ft., carpet area for a total consideration of Rs.85,10,364/- was allotted in favour of the complainants. The complainants also paid booking amount in the sum of Rs.59,57,256/- by cheque and the balance consideration was to be paid as per the payment schedule. Allotment letter dated 12.08.2009 was issued. It was promised that the residential flat with complete construction would be handed-over in September, 2010, vide Annexure C-1 (copy of allotment letter). Thereafter, Agreement for Sale was executed on 26.08.2009. The stamp duty and registration fee was borne by the complainants. Copy of the Agreement of Sale has been placed on record as Annexure C-2.
As per the complainants, they had paid the instalments, as and when the OP demanded, till January, 2011. However, on 20.01.2011, the complainants received a letter dated 17.01.2011 from the OP asking for payment of Rs.6,38,277/-, being the instalment due on brick work and plaster. In order to confirm the same, the complainants visited the site on 21.01.2011, i.e., after 4 days of receipt of the letter dated 17.01.2011. However, it transpired that no such work was done. They tried to contact the concerned Executives of the OP, but there was no positive response from their Executives. The complainants, therefore, sent email dated 25.02.2011 stating that the instalment amount claimed by the OP was not due as per the progress and, therefore, they would defer the payment, until such time the instalment actually becomes due in accordance with the agreed milestone. Copy of the said email has been placed on record as Annexure C-4.
The complainants went to visit the site, once again, on 25.02.2011, met Mr. Mukesh Kakade, who assured the complainants that he would take up the matter with the OP and asked the complainants to send the exchanged e-mails to him. The complainants sent an email on 16.03.2011 to Mr. Mukesh Kakade, but no action was taken. On 12.07.2011, the complainants received email from Ms. Urja, stating that interest in the sum of Rs.50,988/- had accrued. Complainant No.1 had verbally spoken to Ms. Urja on the subject and was assured that she would return his call by 15.30 hrs, however, the complainants received an email from Ms. Urja asking for 24 hrs to reply.
The complainants again, visited the site in or around 2 week of July, 2011 and observed nd that the progress of the work was complete as claimed by OP and, therefore, asked the OP to pick-up the cheque from their residence, on 15.07.2011. The complainants received an email on 12.07.2011 from Mr. Venu, in which it was mentioned about the delayed possession, but assured
that they would abide by the terms and conditions of the agreement of sale and then introduced the complainants to Ms. Garima Tyagi. At the same time, the complainants received another email from Ms. Pragati saying that site visits by them were restricted. This was unfair to restrict the complainants from visiting the site, especially when the OP was claiming demands on attaining certain milestone. On 21.07.2011, Ms. Garima sent an email saying that they had adjusted payment of Rs.53,825/- against interest payment.
The OP unilaterally debited interest in the sum of Rs.53,825/-, whereas, all the time, the amount was Rs.50,988/-. The complainants requested the OP for break-up of the amount demanded. The OP sent a letter dated 02.09.2011, claiming the interest amount due from the complainants, whereas, the OP has further charged interest of Rs.1,141/- on the said interest amount of Rs.53,825/-, i.e., compound interest. It is contended that the said interest was not payable by the complainants as they had already paid the instalments in time. They clarified this position vide Annexure C-5 (letter dated 02.09.2011). Vide letter dated 02.09.2011, the OP demanded total interest in the sum of Rs.66,502/-. On 16.09.2011, the OP informed the complainants that the expected date of completion of and their readiness to handover for fit-outs in phased manner was changed from Jan-end, 2012 to March-end, 2012. Copy of letter dated 16.09.2011 has been placed on record as Annexure C-6. The complainants received another letter dated 20.07.2012 (Annexure C-7) from OP informing that they could handover the flat for fit-outs on payment of the various amounts of Rs.10,86,447/- plus Building Protection Deposit of Rs.50,000/- . The complainants informed the OP that they were not interested to take possession for fit-out and further stated discrepancy in the amount claimed by OP. The complainants also enclosed the reconciliation statement and confirmed the OP that they would pay the amount, as per the terms and conditions of the agreement, as soon as the OP received Occupancy Certificate from Thane Municipal Corporation, vide letter dated 14.08.2012, marked as Annexure C-8.
Vide letter dated 21.08.2012 and 07.09.2012, the OP demanded MVAT charges, service tax, calculation of interest, etc. Copies of the said letters have been placed on record as Annexure C-9 (Colly). The OP acknowledged vide letter dated 13.09.2012, the receipt of complainants'' letter dated 14.08.2012, wherein, OP further stated that the common area maintenance charges were revised from Rs.4.75 to Rs.6.50 per sq.ft. It was reiterated by the OP that the complainants had defaulted the payment of interest claimed by them and, therefore, the complainants are not entitled for compensation @ 12% p.a., etc. Copy of the letter dated 13.09.2012 has been placed on record as Annexure C-10. The OP, vide its letter dated 22.09.2012, once again, reiterated for payment of MVAT amounting to Rs.2,29,014/- to be paid on or before 31.10.2012, failing which, interest @ 15% p.a., would be applicable from 01.11.2012. The complainants paid Rs.2,29,014/- vide cheque dated 10.10.2012. The OP, vide letter dated 19.10.2012, followed by an email dated 20.10.2012 informed the complainants that they are in possession of the Occupancy Certificate and requested to activate possession and to make payment of all the amounts claimed by the OP within 15 days from the said date. Copy of letter dated 19.10.2012 and email dated 20.10.2012 have been placed on record as Annexure C-12 (colly). The complainants, accordingly, gave three cheques as demanded by the OP, after deducting the illegal claim of interest amounting to Rs.53,825/-. The said cheques were acknowledged by Mr. Vishal Pandya of the OP, on 26.10.2012. The possession of the flat was not given to the complainants. Ultimately, this complaint was filed before this Commission, on 25.04.2013, with the following prayers :- a) To hold and declare that the Opposite party to be guilty of deficiency in service and unfair trade practice as per the provisions of the CPA, 1986.
b) To direct the Opposite Party to handover vacant and peaceful possession of the Flat No. 2501SG on the 25 Floor admeasuring 1118 sq.ft. carpet area in the th building known as Fairfield ''C'', situated at Village Majiwade, Taluka & District -
Thane, within 15 days from the date of receipt of the order without insisting payment of any interest amount and in particular Rs.66,109/-.
c) To direct the Opposite Party to pay to the complainants the sum of Rs.30,92,454/- being the interest at 18% p.a., on the amount paid by them with effect from 01.04.2011 calculated upto 30.04.2013 and further direct to pay future interest till handing over vacant and peaceful possession of the flat.
d) Pending the hearing and final disposal of the above numbered complaint, this Hon''ble Commission may be pleased to direct the Opposite Party to handover vacant and physical possession of the flat No.2501SG on the 25 Floor th admeasuring 1118 sq.ft. carpet area in the building known as Fairfield ''C'' situated at Village Majiwade, Taluka & District - Thane, for which the complainants have paid full consideration amount along with MVAT, Service Tax, Club House charges, society formation & registration, legal fees and 24 months advance maintenance charges.
e) To direct the Opposite Party to pay to the complainants the sum of Rs.3,00,000/- towards the compensation for the stress, inconvenience, harassment, mental agony, etc., suffered by the complainants.
f) To direct the Opposite Party to pay to the complainants the sum of Rs.2,00,000/- towards the legal and incidental expenses incurred by the complainants.
g) For such other and further relief as this Hon''ble Commission may deem fit and proper in the nature and circumstances of the above numbered complaint".
The OP did not file the written version, in time. Vide order dated 29.11.2013, we ordered that since the written version was not filed within 45 days (30 + 15), therefore, the right of the OP to file the same stood forfeited.
A Petition for Special Leave to Appeal (Civil) No.2833 of 2014, was preferred by the OP, against the order dated 29.11.2013, which was dismissed by the Hon''ble Apex Court.
Both the counsel admitted that the order of the Hon''ble Supreme Court has attained finality and no application for review was ever moved.
We have heard the counsel for the parties. Learned counsel for the OP vehemently argued that he will argue the case on legal issues only. Permission was granted.
Counsel for the complainants vehemently argued that the provisions of MOFA were not complied with, by the OP. He has invited our attention towards Clause 9 of the MOFA Rules, 1964 and Clause 4 of the Laws relating to Ownership of Flats and Apartments. He has further invited our attention towards Clause 4 of the Agreement for Sale, which runs, as follows : " 4. The Purchaser hereby agrees to purchase from the Builder/Promoter and the Builder/Promoter hereby agree/s to sell to the Purchaser the Residential Flat and incidental thereto the exclusive right to use car parking space/s being Number P2-B3-17-------- together with the right to use, along with the Purchasers of all building/s to be developed on the said property, the common areas and facilities and limited common areas and facilities more specifically described in the FIRST SCHEDULE hereunder written and LIST OF AMENITIES more particularly described in the SECOND SCHEDULE hereunder written for an aggregate lump sum consideration of Rs.85,10,364/- (Rupees Five Lacs Ten Thousand Three Hundred Sixty Four only) on and subject to terms and conditions hereinafter mentioned. The said consideration is exclusive of any levies or taxes as are or may be applicable and/or payable now or in future hereunder or in respect of the said Residential Flat. The Parties confirms and agree that all such taxes and levies shall be solely borne and paid by the Purchaser. The said total consideration Rs.85,10,364/- (Rupees Eighty Five Lacs Ten thousand Three Hundred Sixty Four only) shall be paid in installments hereinafter specified:-
a) On Booking Rs.54,000/-
b) Within 15 days Rs.16,39,562/-
c) Within 30 from Booking Date Rs.12,85,068/-
d) On initiation of the Footing Rs._______/-
e) On initiation of Plinth Rs.___________/-
f) On initiation of 1 Slab Rs.6,38,277/-
g) On initiation of 4 Slab Rs.6,38,277/-
h) On initiation of 7 Slab Rs.4,25,518/-
i) On initiation of 10 Slab Rs.4,25,518/-
j) On initiation of 13 Slab Rs.4,25,518/-
k) On initiation of 16 Slab Rs.4,25,518/-
l) On initiation of 19 Slab Rs.4,25,518/-
m) On initiation of 22 Slab Rs.4,25,518/-
n) On initiation of 24 Slab Rs.4,25,518/-
o) On initiation of 27 Slab Rs.4,25,518/-
p) On initiation of Brickwork Rs.4,25,518/-
q) On initiation of Plaster Rs.2,12,759/-
r) On Possession Rs.2,12,759/-".
On the other hand, counsel for the OP submitted that the provisions of the MOFA were never violated. He explained that, on the contrary, the OP had agreed to pay interest for the delayed period, @ 12% p.a., instead of @ 9% p.a. However, the OP could not point out towards any email/letter which may go to show that the brick work and plaster work was complete when the demand notice in the sum of Rs.6,38,277/- was sent on 17.01.2011. The learned counsel for the OP did not touch the heart of the problem, but laid emphasis on unimportant issues.
The evidence led in this regard is summarized as follows, i.e., the letter dated 28.12.2012, written by Ms. Garima, to the complainants : "Dear Sir,
Greetings from Shree Sainath Enterprises.
By and pursuant to the captioned Agreement, you agreed to purchase the captioned Flat for a Total consideration of Rs.85,10,364/-. As per the terms of the said Agreement, you are liable to pay the Total Consideration of the said Flat as per the Schedule of Payment.
Vide the captioned Letter dated 19.10.2012, we had informed you that your Flat is ready for occupation. You were also informed that all facility charges with respect to the said flat (including CAM charges, electricity and water charges, maintenance and taxes) shall be payable by you with effect from 15.09.2012.
We had further requested you to make the balance due payment as stated in the letter dated 19.10.2012 with respect to the said Flat and complete the possession formalities. Also please note that as informed in the captioned letter dated 19.10.2012, all facility charges with respect to the said Flat have already been activated. However, till date we have not received the said payment. Despite several requests by our Customer Care Executive, you have failed and neglected to pay the said balance due payment.
In the current circumstances, we are making thus last and final attempt/effort of once again calling upon you to pay the abovementioned payment to us within Fifteen (15) days from the date of this letter and complete the possession formalities with respect to the said Flat. Please note that you alone are responsible/liable for any damage or upkeep and maintenance of the Flat from the expiry of 15 days from the date of this Letter, and will have to accept the said Flat in "As is where is" condition in case you delay your possession any further beyond the 15 days stipulated herein".
Further, Clause 3(22) of the Agreement for Sale reads, as under : 3. The recitals above shall form part and parcel of this Agreement , 22) Subject to the Purchaser being in breach of any of the terms hereof, the Builder/Promoter shall endeavor to give possession of the said Residential Flat to the Purchaser on or before Sep. 2011. The Builder/Promoter shall be entitled to a grace period of 6 months if he fails or neglects to give possession of the said Residential Flat to the Purchaser on or before the date aforesaid on account of reasons beyond its control. In the event, the Builder/Promoter fails to handover the possession of the Residential Flat to the Purchaser beyond the said grace period of 6 months then in that event Builder/Promoter shall, on demand, be liable to refund to the Purchaser compensation calculated at the rate of 12 per cent per annum on the amounts paid by the Purchaser from the date of expiry of such grace period of 6 months, till the possession, of the Residential Flat. Alternatively, on the expiry of the said grace period of 6 months, the Purchaser may be giving notice in writing to the
Builder/Promoter elect to terminate this Agreement and in such event, the Builder/ Promoter shall on demand be liable to refund to the Purchaser the amounts already received by the Builder/Promoter in respect of the said Residential Flat with simple interest at 12 per cent per annum from the date the Builder/Promoter received such amount till the date of refund. In the event, xxxxxxx".
Again, there is demand notice dated 17.01.2011 (Annexure C-4), where demand of Rs.6,38,277/- was made, as under :- "As per the agreed payment schedule, you are required to ensure payment of the Plaster installment. You are requested to arrange a Cheque/ Demand/Draft/PayOrder for Rs.638,277.00/- (Rupees Six Lakh Thirty Eight Thousand Two Hundred and Seventy Seven only) in favour of SHREE SAINATH ENTERPRISES, Banker: STATE BANK OF INDIA, A/C : 30419903539, on or before 31.01.2011.
You are requested to send the payment to the undersigned at our corporate office address cited below. For any clarifications, please call me at 23024400 Extn-329 or mail me at urja.shukla@ lodhagroup.com . You may also like to note that delayed payment, beyond 15 days of issue of this letter, will attract interest @ 18% per annum till the date of receipt of such payment".
Further, there is another letter dated 25.02.2011, sent by the complainants to the OP. Its relevant portion runs, as follows :- "I visited the site and found out that what is claimed is not what is actual. Secondly, the project was scheduled to be completed in September, 2010, we are now in Feb, 2011 and you are claiming for the installment after which 98% of the monies for the apartment would have been paid. Thanks Venue for confirming that the entire project (building + infrastructure + amenities) would be completed only end 2011.
In my opinion and in all fairness, it is unjust to claim this installment for payment. Having said the above we will defer this payment request until such time we are given a fair deal. Please note that we have not purchased only the flat which would be allocated to us, when we purchased the said apartment the entire project was projected and the flat purchased would be part of the entire project".
It is, thus, clear that this letter (25.02.2011) did not evoke any response from the OP. However, the OP vide letter dated 02.09.2011, interest in the sum of Rs.53,825/- and the interest charged
thereon in the sum of Rs.12,677/- (@18%), total being Rs.66,502/- were demanded, from the complainants.
It is, thus, evident that the OP had raised illegal demand regarding payment of Rs.6,38,277/- by the complainants, due for completion of brick work and plastering. The complainants went to verify the same and found that the same had not yet been completed. The OP was requested to defer the said demand, till the accomplishment of the brick work and plastering, but it did not evoke any response from the OP. The OP remained conspicuously silent. The silence on the part of the OP is pernicious. It is difficult to understand, why, the OP is interested in delaying the construction of the flat in dispute, as well as in filing the written version before this Commission. Demanding amount for plaster completion is just a violation of the agreement and the schedule appended to it. The OP has not come to this Commission, with clean hands. The OP is long in promises, but short in performance. The demand should not be raised unfairly. The OP''s action is ''below the belt'' (To say/do something that is often too personal, usually irrelevant, and always unfair). The complainants have every right to check and verify the prevalent position, asking them (complainants) not to visit the said premises, time and again, is another pointer to the deficiency on the part of the OP. The OP should not have played ''fast and loose'' ( to treat something or someone without enough care or attention) with its consumers. It is unfortunate that the handing over the possession of the flat was delayed for a petty amount. It was the bounden duty of the OP to send another letter to the complainants informing them that brick work and plaster work were complete on such-and-such date, and, therefore, the amount must be paid, immediately, but there is no such inkling in evidence on the record. The OP should not have refused to hand-over the possession of the flat, immediately. The consumers are already exasperated by senseless delays. This Commission has to be empirical and practical in confronting the reality.
Consequently, we hereby pass the following order :- A) The OP is directed to handover the vacant and physical possession of Flat bearing No.2501SG on the 25 floor, admeasuring 1118 sq.ft. carpet area in the building known as ''Fairfield "C", th situated at Village, Majiwade, Taluka&District, Thane, within 45 days from the date of receipt of copy of this order, failing which, penalty in the sum of Rs.5,000/- each day, till the possession is given, stands imposed upon the OP;
B) The OP is not entitled to receive the above said interest, therefore, interest as demanded in the sum of Rs.66,109/- shall not be paid by the complainants;
C) The building/flat was to be constructed by September, 2011. The OP is given six months grace period. Therefore, as per the terms and conditions, he is liable to pay interest @ 12% p.a., from 01.04.2012, till the possession of the disputed flat is handed over to the complainants.
D) Costs in the sum of Rs.50,000/- towards litigation charges be paid by the OP to the complainants, within 45 days from the date of receipt of copy of this order, otherwise, after the expiry of said 45 days, it will carry interest @ 12% p.a., till its realization.