M/S. Shwas Homes PVT. LTD vs Biju Lucose

V.K.Jain, Presiding Member

The complainant booked an apartment with a covered car parking with the petitioner company in a project namely Mystique Heights, Phase-II. The sale consideration including the cost of construction and the cost of the land was agreed at Rs.35 lacs. The complainant made a total payment of Rs.37,50,000/- to the petitioner. The possession of the allotted flat however, was not delivered to him. He therefore, approached the concerned District Forum by way of a Consumer Complaint seeking compensation etc.

The complaint was resisted by the petitioner company which inter-alia stated in the written version that the complainant had committed defaults in making payment and on account of the said delay in making payment, it was entitled to cancel the booking. It was however stated in the written version that the petitioner was ready and willing to register the apartment in the name of the complainant, on payment of late payment charges and other statutory charges.

The District Forum having allowed the Consumer Complaint and having directed payment of compensation to the complainant as per clause 5 of the agreement, w.e.f. the agreed rate for delivery of possession till actual date of possession alongwith the cost of litigation quantified at Rs.10,000/-, the petitioner approached the concerned State Commission by way of an appeal. The said appeal having been dismissed, the petitioner is before this Commission.

The first submission of the learned counsel for the petitioner is that the complainant had paid only Rs.37,50,000/- though the amount payable by him inclusive of taxes and other charges comes to more than Rs.42 lacs. In my opinion, the statutory taxes etc. as per the terms of the agreement, would be payable at the time of delivery of possession when the house is complete in all respects, and not earlier. Therefore, the possession could not have been delayed on account of non-payment of the statutory taxes if the construction was not complete in all respects. The complainant, in terms of clause 4 of the agreement executed between the parties, has to pay all taxes, all service connection charges, cable connection charges and expenses including Stamp Duty and registration fee, cost of transformer and other statutory payments connected with the apartment. If, after adjustment of Rs.37,50,000/- already paid by the complainant, there is any shortfall, the petitioner would be entitled to recover the same from the complainant at the time the possession of the apartment complete in all respects, is delivered to him.

As regards interest for the delayed payment, there is no evidence of the petitioner having demanded interest for the delayed payment from the complainant. In the absence of such a demand, the interest for the delayed payment shall be deemed to have been waived since the payment though made belated, was accepted without insisting upon payment of interest for the delay.

The next question which arises for consideration in this case is as to whether the construction of the apartment is complete in all respects or not. A Court Commissioner was appointed by the District Forum to inspect the allotted apartment and give a report as regards its existing position. The report of the Court Commissioner, to the extent it is relevant, reads as under:

POINT NO.A

The said apartment of the opposite party is of 18 storied building. The apartment allotted to the complainant is in the 6th floor as H1. All the floors of the apartment is erected and plastering works, painting of the external and internal walls have been already carried out. The apartment of the complainant consists of three bedrooms, three toilets, kitchen, drawing room. Regarding the present condition of the apartment H1, the balance works to be carried out are installation of kitchen fittings, sanitary items in the bathrooms, electrical appliance etc. The electrification and plumbing works, in the apartment are completed but there was no current and water available at the time of inspection. Construction of floor is also completed. Centralised gas connection pipes were also shown to me as installed. Although a major portion of works have been carried out, I may report that a peaceful living at this stage is not possible as the balance works are to be carried out fully. All the adjacent apartments are also found unoccupied. There were some labourers doing some works in the site at the time of inspection.

POINT NO.B

The electrification and plumbing works, in the apartment are completed but there was no current and water available at the time of inspection. The opposite party has not obtained the electricity connection which would only be granted them after obtaining NOC from Department of fire and rescue, for which applications are being made.

POINT NO.D

The Commissioner was not provided with the agreement and Boucher's of the opposite party at the time of inspection neither by the petitioner nor the opposite party. Therefore the Commissioner, with regard to the Point No.D, reports the present condition of the lifts and amenities as seen at the time of inspection. The lifts are already erected. But the lifts were not working. Later in the end of the visit the staff of the opposite party operated the lift with the aid of generator. It was told that as the electricity was not available the lifts were working on generator. The construction of other amenities like swimming pool has started only and as told it requires approximately six more months to get completed.

It would thus be seen that there were several deficiencies found in the apartment at the time it was inspected by the Court Commissioner. The kitchen fittings and sanitation fitting had not been installed. There was no electricity and water available in the apartment. Electricity connection had not been obtained by the petitioner for want of NOC from the Fire Department. Lifts were not provided with regular electricity and generator set had to be used to operate the lifts. Considering the aforesaid deficiencies, the apartment cannot be said to be fit for occupation at the time it was inspected by the Court Commissioner. Therefore, payment of compensation in terms of clause 5 of the agreement was fully justified.

For the reasons stated hereinabove, I find no merit in the Revision Petition, which stands dismissed accordingly.