Padmavati Enterprises vs Dharshi Lakhamshi Dedhia

THE case of the Complainant before the District Forum, Thane was that he had purchased a shop from the opposite party, Padmawati Enterprises under an agreement of sale executed on 2.6.2005. THE opposite party failed to give possession within the stipulated period of four months. THE Complainant invoked the jurisdiction of District Forum, Pune on 29.9.2007 on account of failure of the opposite party to hand over possession of the shop. Giving limited relief to the Complainant, the District Forum ordered the OP to pay Rs.20,000/- as compensation and pay 8% interest, if the amount is not paid within 30 days. This was only a partial acceptance of the complaint and therefore the Complainant filed an appeal before the Maharashtra Consumer Disputes Redressal Commission. THE OP did not file any appeal against the order of the District Forum, but is now before this Commission against the order of the State Commission.

IN the impugned order, the State Commission set aside the order of the District Forum and has given the following relief to the Complainant:- "Respondents are hereby directed to pay damages @ Rs.2000/- per day for the period 01.10.2005 to 30.11.2009, both days inclusive, or Rs.20,00,000/- (Rupees Twenty lakhs only), whichever is less, for delayed delivery of possession as discussed in the order and Respondents are further directed to provide water tap connection to the premises of the appellant along wit wash basin as stated in clause No.33 of the agreement. By way of mental agony and cost of the litigation we award Rs.20,000/- to the Complainant/Appellant. The amounts are directed to be paid within a period of 45 days, if not paid, the Respondent shall pay interest @ 6 % p.a till realization of amount."

The above decision is based on a categorical finding by the State Commission that though physical possession of the shop was given on 19.06.2007, it was possession without occupation certificate and therefore, could not be treated as compliance with Clause 9 of the agreement between the parties. The physical possession became valid and complete possession only in November, 2009 when the occupation certificate was given by the opposite party. The State Commission has also rejected the contention of the OP that the delay in the occupation certificate was caused by illegal construction of a loft in the shop, by the Complainant himself.

We have perused the records of this case and heard the counsels for the two parties. The case of the Revision Petitioner is that the State Commission has ignored the finding of the District Forum that no financial loss had been caused to the complainant by this delay ''as the respondent was carrying on his business of sale of liquor in the same location and in the same manner as it was prior to handing over the possession of the subject shop''. This plea is apparently based on an assumption that under, the agreement between the parties, compensation for delay in handing over is dependent upon the extent of financial loss caused by it.

THIS assumption has been examined and rejected by the State Commission, basing their decision on Clause 9 of the agreement of 2.6.2005 between the RP/OP and Respondent/Complainant. The State Commission has observed that: "On perusal of clause No. 9 of the Agreement which is reproduced above, it is crystal clear that the time was an essence of the contract agreed between the parties and it was made an essence of the contract irrespective of the fact that the developer has to complete the execution of the work within 4 months along with obtaining Occupation Certificate."

Having perused the content of Clause 9, we find no error with this conclusion and consequent direction of the State Commission to the RP/OP to pay damages at the rate of Rs.2000/- per day for the period of delay in handing over possession from 1.10.2005. However, the State Commission in determining the period, has gone beyond 19.6.2007 i.e. the date when physical possession was handed over and ordered payment of damages, at the same rate, even for the remainder period i.e. from 20.6.2007 to 30.11.2009. This is explained in the following terms: "We record our finding that though possession has been given on 19.6.2007, it is a possession without Occupation Certificate and, therefore, is no compliance of clause No. 9 by the opponents. The possession which was taken on19.6.2007 has become a valid possession under clause 9 in November 2009 when the Occupation Certificate was obtained by the opponents and was given to the Society where Complainant/appellant is a party. Therefore, we record our finding that from 01.10.2005 till end of November 2009 opponents are under obligation to pay damages @ Rs.2000/- per day."

WE find that the above finding is directly based on the provisions contained in the agreement between the two parties. The impugned order has examined in detail, the relevant clause Nos. 9 and 13 to establish that the agreement between the parties contemplates possession with occupation certificate and does not limit it to mere physical possession. The relevant part in Clause 9 reads ''within a period of four months from the date of hereof, the Developers shall carry out and complete entire development and construction of the said shop in all respects, obtain an occupation certificate and put the Tenant purchasers herein into a vacant and physical possession of the said shop for being held the same thereafter as the full and exclusive owner thereof.'' Similarly, Clauses 12, and 14 cast upon the Developers an obligation to put the Tenant purchaser in vacant and peaceful possession, ''on ownership basis''. We, therefore, hold that under the term and sprit of the agreement between the two parties, the requirement is not mere physical possession, but also possession with occupation certificate. The State Commission has rightly arrived at this conclusion. In view of the above, we do not find any jurisdictional error, illegality or material irregularity in the impugned order, which could merit our intervention under Section 21 (b) of Consumer Protection Act, 1986.