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Judgment
Heard Mr. Uday B. Wavikar, Advocate, for the complainant and Mr. Subrat Birla, Advocate, for the opposite parties.
Nikhil Vijay Bagalkotkar has filed above complaint, for directing the opposite parties to (i) handover possession of Flat No.1501, carpet area 647 sq.ft. + 308 sq.ft. useable carpet area, in the building “MM Spectra” situated at C.T.S. No.61 (part), 61/130 to 135, 61/138 to 146 of village Chembur, Chembur (East), Mumbai, with “occupation certificate”, within stipulated period. In the event of non-compliance of the order within stipulated period, direct to pay Rs.5000/- per day as penalty; (ii) pay Rs.4453593/-, as interest @18% per annum on Rs.12371091/- from 01.07.2014 up to 01.07.2016 and further interest at the same rate from 02.07.2016 till the delivery of possession, for breach of the agreement; (iii) reimburse Rs.1547700/- with interest @18% per annum from 01.07.2014 till 30.06.2016 towards expenses incurred on leave & licence and travel expenses; (iv) pay Rs.1000000/-, as compensation for mental agony and harassment; (v) pay Rs.5000000/- as costs of the litigation; and (vi) any other relief which is deemed fit and proper in the facts and circumstances of the case.
During pendency of the complaint, the opposite parties completed construction and applied for issue of “occupation certificate” on 15.06.2017. “Full occupation certificate” was issued on 13.08.2019. The opposite parties vide letter dated 16.08.2019, offered possession and the complainant took possession on 30.10.2019. Now the dispute remains for delayed compensation and other consequential relieves.
The complainant stated that opposite party-1 was a Partnership Firm, registered under the Partnership Act, 1932 and opposite party-2 was its partner. The opposite parties were engaged in the business of development and construction of group housing project. They launched a group housing project, in the name of “MM Spectra” at C.T.S. No.61 (part), 61/130 to 135, 61/138 to 146 of village Chembur, Chembur (East), Mumbai, in the year 2011 and made wide publicity of its facilities and amenities. The complainant made inquiry in March, 2012 from opposite party-2, in respect of tentative date of possession then he informed that 10th slab i.e. 76% construction was at the stage of completion and assured the possession would be delivered till June, 2014. Believing upon the representation of the opposite parties, the complainant booked a flat on 05.03.2013 and deposited booking amount. As per demand, the complainant deposited Rs.380000/- on 05.03.2013, Rs.1266000/- in cash, for which no receipt was issued, on 13.03.2012, Rs.267096/- on 19.04.2013, Rs.8750162/- on 17.07.2013, Rs.1530808/- on 11.10.2013, Rs.21263/- on 19.11.2013 and Rs.113862/- on 19.11.2013. The opposite parties allotted Flat No.1501, carpet area 647 sq.ft. + 308 sq.ft. useable carpet area, in the building “MM Spectra”. total consideration of Rs.11386200/-on 07.02.2013 and executed an agreement dated 10.05.2013, in his favour, at that time, the complainant gave Rs.41900/- in cash as Advocate’s fee, scanning & registration charge. The complainant paid Rs.12371091/- till 19.11.2013. Clause-7 of the agreement provides due date for delivery of possession as 30.06.2014, with grace period of six months till 31.12.2014. But the construction was not completed nor possession was offered in June, 2014. The complainant took an accommodation on monthly licence fee of Rs.35000/- on deposit of Rs.200000/- as security on 28.07.2014. When possession was unreasonably delayed, the complainant gave legal notices to the opposite parties on 24.01.2015 and 16.11.2015. In spite of service of notice, the opposite parties did not respond. Then this complaint was filed on 05.07.2016, alleging deficiency in service.
The opposite parties have filed its written reply on 23.12.2016, in which, booking, allotment of Flat No.1501, carpet area 647 sq.ft. + 308 sq.ft. useable carpet area, in the building “MM Spectra”, for consideration of Rs.11386200/- on 07.02.2013 and execution of an agreement dated 10.05.2013 and deposits made by the complainant (except cash payments of Rs.1266000/- and Rs.41900/-), have not been disputed. The opposite party stated that Rs.9958794/- was paid towards consideration as mentioned in NOC issued by the opposite parties on 12.01.2015 to the complainant and Rs.1427406/- towards consideration, was due. The consideration of Rs.11386200/- was not inclusive of statutory charges, taxes, expenses for registration of the agreement and conveyance deed, other incidental expenses and society formation fee etc. The payments made by the complainant include Rs.647096/- as stamp duty, Rs.30000/- as registration charges, Rs.183140/- towards incidental charges, service tax and VAT. The opposite parties stated that the complainant was a permanent resident of Pune and booked the flat in dispute as an investor for earning profit by selling it and he is not a consumer. The complainant sent an email dated 16.01.2015 to the opposite parties, informing that he was working to sell the flat. Cause of action for filing the complaint arose on 30.06.2014, while the complaint was filed on 05.07.2016 and is time barred. The complainant has claimed exorbitant relieves on false and baseless allegations, in order to confer pecuniary jurisdiction in this Commission. 10th slab of the building “MM Spectra” was completed in December, 2012 as such there was no question for informing the complainant in March, 2012, for completion of 10th slab nor the opposite parties induced the complainant for purchasing the flat. The agreement dated 10.05.2013 was in respect of Flat No.1501 and not for covered car parking space. The opposite parties denied that they had introduced the complainant with HDFC Realty as his marketing agent. The building MM Spectra” was being constructed over the land occupied by slum dwellers, under Slum Rehabilitation Scheme. The opposite parties have completed 199 Rehab, 8 Amenities and 37 PAP tenements and Slum Rehabilitation Authority has issued “occupation certificate” in this respect. The opposite parties have completed the construction up to 15th floor and were in process of moving application for issue of “occupation certificate”. The opposite parties denied that the complainant had obtained any premises on licence. The complainant has claimed exorbitant interest which shows that he is not a consumer rather investor. The complaint has been filed on false allegations and is liable to be dismissed.
The complainant has filed Rejoinder Reply, Affidavit of Evidence of Nikhil Vijay Bagalkotkar and documentary evidence. The opposite party has filed Affidavit of Evidence of Dinesh J. Kadam and documentary evidence. Both the parties have filed their written synopsis.
We have considered the arguments of the counsel for the parties and examined the record. Possession has already taken on 30.10.2019 as such the dispute in respect of delay compensation remained to be decided in this complaint. Clause-7 of the agreement provides due date for delivery of possession as 30.06.2014, with grace period of six months till 31.12.2014. Possession was offered through letter dated 13.08.2019. The counsel for the opposite parties submitted that application for issue of “occupation certificate” was submitted before the Statutory Authority on 15.06.2017 and “occupation certificate” was issued on 13.08.2019 as such the period for which “occupation certificate” was delayed, be treated as force majeure and be excluded from the delayed period. But under clause-7 of the agreement, maximum period up 31.12.2014 was agreed for force majeure. Therefore, the opposite parties are liable to pay delay compensation from 01.01.2015 till 12.08.2019. Although under clause-7, interest @12% per annum was agreed but Supreme Court in Civil Appeal No.1232 of 2019 R.V. Prasannakumar Vs. Mantri Castles Pvt. Ltd. (decided on 11.02.2019) and Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512 held that delay compensation in the form of interest @6% per annum on the deposit of the buyer towards consideration as just delayed compensation.
ORDER
In view of aforesaid discussions, the complaint is partly allowed. The opposite parties are directed to pay delay compensation to the complainant in the form of interest @6% per annum on his deposit towards consideration from 01.01.2015 till 12.08.2019, within a period of two months from the date of this judgment. On settlement of the account, the opposite parties will execute conveyance deed in favour of the complainant of the flat, if not already executed, without any delay.