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Judgment
Avm J. Rajendra, Avsm Vsm (Retd.), Presiding Member
This Revision Petition No.2160 of 2018 was filed on 06.08.2018 challenging the impugned order of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (‘State Commission’) dated 02.07.2018. Vide this order, the learned State Commission dismissed Appeal No.A/16/1025, along with costs of Rs.10,000/-. The said Appeal was filed against the order of the learned District Consumer Disputes Redressal Forum, Thane (‘District Forum’) dated 18.03.2016. Vide this order, the District Forum, directed the Petitioner/OP-M/s. Shukla Housing Pvt. Ltd. (OP) to hand over possession of the subject flat on receiving the remaining Rs.1,33,610/- from complainant by 30.05.2016. In the event of default, the Petitioner/OP to pay to the Complainant Rs.10,000/- per month as fine from 01.06.2018 till handing over possession or in the alternative, the Petitioner/OP is directed to handover alternative flat with same amenities and facilities of same consideration of same area, if it is not possible for respondent to hand over possession of Flat No.A-221, after receiving remaining amount of Rs.1,33,610 from the Complainant.
The facts of the case, in brief, as per the Complainant, are that he agreed to purchase a residential flat from the Opposite Party on their ongoing project, bearing Flat No.A-221 on 2nd Foor, Shakti Dham Housing Complex situate at Survey No.63(P), 68, 73/1 & 128 (P), Village Katemanivli, Taluka Kalyan, District Thane, admeasuring about 510 Sq. Ft. built up area, hereafter referred to as the “said Flat” for a total consideration of Rs.3,89,610/- as per registered agreement executed between the Complainant and OP vide registration entry No.6681/96 dated 26.12.1996, registered before Sub-Registrar of Assurances Kalyan. The Complainant paid 60% of the total consideration amount, i.e. 2,56,000/- to the Petitioner/OP. Despite this, the Petitioner/ OP reportedly sold the said flat to some third person. Being aggrieved, he filed a consumer complaint before the District Forum. The OP in its Reply before the District Forum denied all allegations and asserted that the Complainant was a defaulter in payment of the remaining amount of the said flat. Demand letters dated forwarded on 23.4.1998, 15.09.1998 and 01.03.2006 and 27.04.2006 were returned unclaimed. The OP, therefore, terminated the agreement and sold the said flat to other purchaser.
The District Forum vide order dated 18.03.2016, directed the M/s. Shukla Housing Pvt. Ltd. (OP) to hand over possession of the flat on receiving balance Rs.1,33,610/- from the Complainant by 30.05.2016. In the event of default, the OP is to pay to the Complainant Rs.10,000/- per month as fine from 01.06.2018 till handing over possession; or in the alternative, the OP is directed to handover alternative flat with same amenities and facilities of same consideration of same area, if it is not possible for OP to hand over possession of Flat No.A-221, after receiving remaining amount of Rs.1,33,610 from the Complainant.
Aggrieved by the said Order of the District Forum, the Appellant/ OP filed an Appeal before the State Commission. The State Commission dismissed the same and directed as follows:
“In our view, the agreement which was registered and entered into between the parties on 26/12/1996 is not in dispute. M/s. Shukla Housing Pvt. Ltd. represented by Director Mr. Rajendra Prasad Pandey and Smt. Beena Kallan Pareri Phalgunan had signed in presence of witnesses to the agreement which was duly registered. The builder/promoter/ owner of the building was under obligations to execute conveyance of the flat pursuant to agreement upon acceptance of the consideration amount of Rs.3,89,610/-. It is case of the complainant that builder has committed breach of contractual obligations as it is reported that he sold or created third party interest in respect of flat No.A-221 which was without any excuse for the builder. The order therefore passed for penalty by way of compensation payable per month as also for alternative flat in case builder cannot transfer flat No.A-221 to the complainant is just, reasonable and only logical conclusion that was possible. Therefore, the order passed by the Learned District Forum that opponent had committed deficiency in service is just and reasonable. In our view, this is not only a case of deficiency in service, but also unfair trade practice, if builder had created third party interest in respect of flat in question which was required to be sold and delivered to the complainant on account of payment of consideration paid by her. That being so, we do not find any acceptable just and proper ground to disturb the impugned judgment and order. Therefore, appeal deserves to be dismissed with costs quantified in the sum of Rs.10,000/- (Rupees Ten Thousand only) in addition for the appeal payable by appellant to respondent/complainant.”
I have examined the pleadings and associated documents placed on record and rendered thoughtful consideration to the arguments advanced by the learned Counsels for both the parties.
Admittedly, the Complainant had purchased the said flat. The complainant had paid 60% amount of consideration i.e. Rs.2,56,000/-. The Opposite Party had terminated the agreement executed between the parties and sold the said flat to third party. Upon reviewing the arguments presented and examining the records, including the orders and reasoning of the District Forum and the State Commission, I find no reason to interfere with the decisions of the learned District Forum and the learned State Commission which duly considered the matter and disposed of by a well-reasoned order based on evidence to the effect of giving the alternative possession of flat.
Now coming to the cost of Rs.10,000/- per month awarded by the learned District Forum, over and above handing over of an appropriate Flat as directed, which was also affirmed by the learned State Commission. After due consideration of the facts and circumstances of the case, both the said Fora specifically directed the Petitioner to hand over of the appropriate Flat to the Complainant. After this mandate is complied with, further award of the cost/compensation of Rs.10,000/- per month imposed upon the Petitioner/ OP verges to being excessive. Therefore, the same is set aside. Thereafter, the issue that remains is as regards the compensation for delay in possession of the alternative flat.
As regards delay compensation in possession, the Hon'ble Supreme Court in DLF Home Developers Ltd. vs. Capital Greens Flat Buyers Assn., (2021) 5 SCC 537, has held that:
"It is true that in the present case, the contractual rate of Rs.10 per square foot per month is double the rate fixed in the agreements Page 10 of 13 of FA No.225 of 2020 in the above case. On the other hand, the court must be conscious of the fact that the situation in the real estate market in Delhi is very distinct from that in Bengaluru both in terms of rentals and land values. This has not been disputed. The flat buyers had to suffer on account of a substantial delay on the part of the appellants. In such a situation, they cannot be constrained to the compensation of Rs.10 per square foot provided by the agreements for flat purchase. However, having regard to all the facts and circumstances, we are of the view that the compensation on account of delay should be brought down from 7% to 6%. Moreover, the amount, if any, which has been paid in terms of the contractual rate shall be adjusted while computing the balance"
Based on the foregoing discussions, the order of the learned State Commission is modified as under:
i. The Petitioner/Opposite Party is directed to hand over alternative flat with same amenities and facilities on the same consideration in the same area after receiving the amount of Rs.1,33,610 from the Complainant, within a period of three months from the date of this order.
ii. The Petitioner/Opposite Party is directed to pay delay compensation in the form of simple interest @ 6% per annum on Rs.2,56,000 from the date of filing the complaint before the learned District Forum till the date of possession of the alternative flat to the Complainant/Respondent, within a period of one month after the handing over of the possession. In the event of delay in payment beyond one month, the interest applicable will be @ 12% per annum for such extended period.
iii. Post compliance of the order at (i) & (ii) above, the Petitioner/ Opposite Party will not have the liability of payment of Rs. 10,000 per month from 01.06.2018 till handing over the possession, as directed by the District Forum and affirmed by the State Commission.
iv. The Petitioner/Opposite Party is also directed to pay litigation cost of Rs.10,000/-.
The Revision Petition No.2160 of 2018 is disposed of accordingly.
All the pending Applications, if any, stand disposed of.