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Judgment
Sudip Ahluwalia, Member
This Appeal has been filed by the Appellant/Complainant against Respondents/Opposite Parties challenging the impugned Order dated 13.12.2017 passed by the State Consumer Disputes Redressal Commission, West Bengal, in Complaint Case bearing No. CC/263/2015. Vide such Order, the State Commission had partly allowed the Complaint.
The brief facts of the case are that the Complainant, based on the advertisements by the Opposite Party No.1 and its assurance to complete its Project by September, 2012, had purchased a Flat bearing No. 2D in Block A, Ideal Regency, Municipal Premises No. 46, Diamond Harbour Road, Kolkata – 700063, from the Opposite Party No.1 on 17.08.2010 for a total consideration of Rs.39,74,050/- which was, however, subsequently revised to Rs.40,56,950 in July, 2010, and to Rs.40,59,032/- in April, 2012 due to service tax rule revisions. The Opposite Party No.2 and 3 managed the Opposite Party No. 1 and the erstwhile M/s NFMA Manufacturers Private Limited. Accordingly, the Complainant entered into an Agreement for Sale with the Opposite Party no.1 and M/s. NFMA Manufacturers Pvt. Ltd. which was duly signed by the Opposite Party No.3 on 17.08.2010. Subsequently, the Complainant had received a letter dated 18.11.2011 from the Opposite Party No.1 intimating about the amalgamation of M/s. NFMA Manufacturers Pvt. Ltd. with the Opposite Party No.1. It was submitted that the Complainant had paid a total sum of Rs.36,49,193/- however, the Opposite Parties had failed to complete the Project by 2012.
It was the case of the Complainant that in December, 2012, the Complainant came to know of perceptible and extremely disagreeable shift in the position of Block A with respect to Block B in the said Project. The Complainant immediately contacted the Opposite Party No.2 in person, over phone and via mail regarding the said variations. However, the Opposite Party No.2 failed to respond. After several requests and reminders, the Opposite Party No.2 visited the site on 28.04.2013 with the Complainant for a joint inspection and duly acknowledged the genuineness of Complainant’s grievances about the construction being contrary to the proposed plan. The Complainant agreed to wait for revised plans on the request of Opposite Party No.2 who assured to handover the revised plans in a week’s time at that stage. However, it only sent a modified plan of the Flat to the Complainant on 04.06.2013 in order to compensate for the changes made in the structure from the original plan, but, no modified plan for the whole Project was sent. Vide Email dated 06.06.2013, the Complainant acknowledged the receipt of revised plans but also raised his objections to it. The Complainant refused to accept the modified plan vide his Email dated 20.09.2013 as the modification did not compensate for the flaw/variance from the original plan. The Complainant informed the Opposite Party No.2 of the shortcomings vide another Email dated 16.01.2014 which included defective grill setting, unprovided AC ledges for split ACs, defective balcony and inaccuracy of the revised plan. The Opposite Party No.2 failed to respond but issued a letter of possession dated 18.01.2014. It was submitted that the possession was offered without obtaining the Completion Certificate and other official clearances. The Complainant on 29.01.2014 raised objections to the said possession letter. The Complainant again met Mr. Aashish Debnath for a site visit on 25.03.2014, followed by his Email and a letter dated 12.01.2015, and sought explanations form the Opposite Party No.2 with regard to no Indoor Children’s Play Area and Indoor Games Room and missing common drain pipes for Air Conditioners, and further demanded the sanctioned building plan. He then issued a Legal Notice dated 25.02.2015 and a remainder Notice dated 26.03.2015 to Ld. Sole Arbitrator for adjudication of the dispute arising out of the performance of the said Agreement. However, no steps were taken. The Complainant received a letter dated 19.03.2015 from the Opposite Party No.1 wherein the issues raised were trivialised and he accordingly responded to the said letter vide his letter dated 29.03.2015.
Therefore, the Complaint was filed before the Ld. State Commission alleging deficiency in services by the Opposite Parties seeking Possession, Delay compensation @ 18%p.a. compounded quarterly from February, 2013 till final possession, compensation of Rs.10,00,000/-, compensation for lack of facilities of Rs.5,00,000/-, damages of Rs.20,00,000/- and litigation costs.
The Opposite Parties appeared before the Ld. State Commission and resisted the Complaint and denied all the allegations thereby denying deficiency in service on their part. It was contended by the Opposite Parties that the Complainant is not a ‘Consumer’, the Complaint is not maintainable, that no cause of action arose against the Opposite Parties and that the complaint is barred by limitation. It was further submitted that the Opposite Party No.3 had appointed Opposite Party No.1 as the Developer to develop the said premises No. 46, Diamond Harbour Road, Kolkata – 700063, and construct a building complex. It was also averred that time was never contemplated to be essence of the contract as the construction of such large building complex depended on many third party permissions. It was further stated that the Opposite Party No.1 completed the construction of the subject Flat as per the specifications of the Agreement, and as per the Sanction Plan of Kolkata Municipal Corporation and the Completion Certificate of the said building complex was received on 11.12.2015. The Opposite Party No.1 was then ready to offer possession to the Complainant. However, the complainant started raising frivolous allegations regarding the position of balcony and pillars, and refused to take possession of the subject Flat. The Opposite Party No.1 in order to resolve the dispute, offered the Complainant to extend his balcony which was accepted by him. Therefore, the balcony on the right side of the Flat was extended about 1.5 sq. ft. for which no extra charge was charged. The Opposite Party No.1 issued Notice dated 18.01.2014 to the Complainant informing that the said Flat is ready for occupation and further called upon the Complainant to pay the balance amount along with maintenance and other charges. However, the Complainant failed to take possession of the Flat and rather raised allegations of discrepancy vide his Email dated 29.01.2014. It was also averred that the time frame for handing over possession was always subject to variation, due to legal procedure and the period of completion was extendable for a period of 6 months at the option of seller as per Clause 9.5. It was further submitted that all the construction was done in consonance with the Sanctioned Plan.
Therefore, the Opposite Parties prayed for dismissal of the Complaint with costs.
The Ld. State Commission vide its Order dated 13.12.2017 partly allowed the Complaint and directed the Opposite Parties to jointly and severally deliver possession and to execute the sale deed in favour of the Complainant within 30 days from the date, subject to payment of balance consideration amount and further directed the Opposite Party No.1 to pay a compensation of Rs.3,00,000/- and litigation costs of Rs.10,000/- while observing inter alia:-
“The fact remains that regarding the allegations of the complainants in respect of alleged deficiencies, no technical person or expert was appointed in accordance with Section 13(4) of the Act and as such in absence of any such opinion it would not be possible for this Commission to arrive at decision regarding the alleged deficiencies. On the contrary, the Completion Certificate issued by the KMC indicates that the building/ construction was done in accordance with the sanctioned plan obtained by the builder from the KMC. Therefore, the allegation in respect of deficiency in the matter of construction does not stand.
However, the factual matrix make it quite clear that the developer has failed to handover the subject property to the complainant within 30.09.2012 and even after extension period of six months i.e. by 30.03.2013. In fact, the Completion Certificate could obtain on 11.12.2015 which signifies there has been a total delay of about 3 years in order to make the flat ready in habitable condition.
The submission of Ld. Advocate for the OPs referring to clause 11.2 regarding breach by sellers does not appear to be acceptable. It is common parlance that, in the developer-purchaser agreement the terms are farmed by the developers suitable to them. These are unconscionable contracts. The developer has kept an option for cancellation to the buyer on payment of interest @12% but it is not possible for an intending purchaser to get a flat of same size in the same area or locality even with an interest of @12% is calculated with the amount advanced as part payment. Moreover, a purchaser use to purchase a flat for having roof over his head and his claim cannot be thrown out simply by paying interest and payment of interest cannot absolve the responsibility of a developer to handover the flat within the stipulated period. Therefore the OP No.1/builder must be considered as deficient to keep his promise.”
Aggrieved by the above Order, the present Appeal bearing No. 124 of 2018 has been filed by Appellant/ Complainant against the Respondents/ Opposite Parties before this Commission, as the Complainant is unsatisfied with the amount of compensation awarded by the Ld. State Commission.
Vide Order dated 07.09.2022, on submissions of the parties and without prejudice to their rights and contentions in the present Appeal, the Appellant was directed to pay the balance amount of Rs.4,16,428/-, registration charges, stamp duty and other miscellaneous charges necessary for execution of sale deed within 2 weeks to the Respondent. Thereafter the Respondent had to handover the possession of the subject flat to the Appellant and execute the sale deed after making the subject Flat habitable as per the Agreement. The Appellant had disputed his liability to pay any maintenance charges. Therefore the said issue remained pending which was to be decided at the time of disposal of the Appeal.
Heard the Ld. Counsel for Appellant. Perused the material available on
The Ld. State Commission had partially allowed the Complaint and granted delay compensation assessed at ₹3 Lakhs in favour of the Complainant/Appellant. It however, rejected his prayer to direct the Opposite Party to deliver possession of the flat in accordance with the original scheme, or even as an alternative to compensate the Complainant for deviations from the Original plan to the detriment of the Complainant. In rejecting such prayer, the Ld. State Commission had observed that since the Complainant from his side had not been able to substantiate his allegations regarding deviation in the construction and final finishing to his Apartment by way of any Technical Expert’s Report, his claim on that account was not tenable.
However, subsequently the Complainant got his Apartment to be examined by Technical Experts “ARCHMETRY”, which happens to be an Architect based institution of Kolkata. The concerned Architect, Mr. Saiful Alam Mollah, apparently inspected the entire location of the project in which the Complainants own Apartment is located, and submitted his Report thereafter alongwith photographs of the same. These documents have been collectively marked Annexure-1 and were accepted on Record by the Division Bench, which was hearing this matter earlier on 05/12/2019.
No objections against the Report of the Architect in Annexure-A1 has been filed on behalf of the Respondents till date, and even on the last date of hearing on 28/06/2023, none had appeared on behalf of the Respondents when the matter was taken up for final hearing.
Now, perusal of the Annexure-1 goes to show that first of all there is an obstruction to the extent of 3 feet and 4 inches directly on the left side of the balcony located adjacent to the Complainant’s Living Area/Drawing Room on account of erection of an adjacent Building (Block B), which is situated only 1 foot, 8 inches away from the Complainant’s own grill. This is clearly established on perusal of the photographs Annexed to the Report (Images 1 to 4). In addition, the internal wall finish of the Complainants Kitchen is seen to be incomplete and there are cracks in the internal wall finish of the Living Area and Bed Rooms, apart from dampness in certain portions of the internal walls, as also the glass louvers of the ventilation window of the two attached toilets in the Apartment are missing, all of which are verified from Images Nos.5 to 16 annexed with the Architect’s Report, who has also mentioned that no specific area in the “Indoor Children’s Play Area” or “Indoor Games Room” has been depicted in the sanctioned site plan of the ground floor.
These would certainly appear to be deficiencies. But the fact of the matter is that the Complainant has in any event accepted taking possession of the flat being offered to him. He would, therefore, be entitled to appropriate compensation for having to live up with these deficiencies, but compensation @ 25% of the commercial price of the entire Apartment at the relevant time would not appear to be based on any reasonable criteria or logic. The biggest deficiency happens to be the obstruction to the extent of 3 feet 4 inches on the side of his main balcony, which cannot be rectified at all in the prevailing situation. Rest of the deficiencies noted inside the apartment are however, rectifiable by putting in some effort and expenses.
In the totality of the circumstances, therefore, considering that only about one third of the Complainant’s main balcony or area faces a visual obstruction, it is held that compensation to the tune of ₹1Lakh for such obstruction, and additional compensation assessed at ₹80,000/- for rest of the deficiencies of the Apartment would sub-serve the ends of justice.
In addition, the assessment of delay compensation at ₹3 Lakhs by the Ld. State Commission without any reasoning justified such amount would appear to be arbitrary.
Consequently, that part of the impugned Order is also modified and the Complainant is held to be entitled to delay compensation from the period between 01/07/2013 till the date of actual offer of possession to him after obtaining the Completion Certificate by the Respondent/Opposite Party, @ 9% p.a., from the date of each respective deposit made by the Complainant to the Respondents, in view of the decision of the Hon’ble Supreme Court in “Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, in Civil Appeal No.6044 of 2019, decided on 7.4.2022” where it was held inter alia:-
“…32. We are of the opinion that for the interest payable on the amount deposited to be restitutionary and also compensatory, interest has to be paid from the date of the deposit of the amounts. The Commission in the Order impugned has granted interest from the date of last deposit. We find that this does not amount to restitution. Following the decision in DLF Homes Panchkula Pvt. Ltd. Vs. DS Dhanda and in modification of the direction issued by the Commission, we direct that the interest on the refund shall be payable from the dates of deposit. Therefore, the Appeal filed by purchaser deserves to be partly allowed. The interest shall be payable from the dates of such deposits.
At the same time, we are of the opinion that the interest of 9% granted by the Commission is fair and just and we find no reason to interfere in the appeal filed by the consumer for enhancement of interest……”
In addition, ₹50,000/- by way of compensation towards mental agony and harassment is also awarded in favour of the Appellant.
With the above aforesaid directions, the present Appeal is allowed thus partially modifying the impugned Order. No further Orders as to costs.
Pending application(s), if any, also stand disposed off as having been rendered infructuous.