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Judgment
This Commission has passed the following order in CC No.913 of 2016 on 08.06.2018:-
"30. Based on the above discussion, the complaint is partly allowed in the following manner:
ORDER
i) The OPs are directed to handover the possession to the complainants (if not already handed over) within a period of 60 days from the date of this order and the complainants are also directed to complete all the formalities for taking the possession.
ii) The complainants are entitled to get compensation for delayed possession from 01.02.2014 till 31.07.2016 as per the agreement i.e. @ Rs.3/- per sq. ft. per month. Over and above this amount, the opposite parties shall be liable to pay interest @ 6% p.a. from 01.02.2014 till 31.07.2016 on complainants' deposited amounts with the OPs before the due date of possession i.e. 31.01.2014.
iii) OPs are directed to complete the common facilities and amenities as per the agreement within a period of six months from the date of this order, failing which the OPs shall pay compensation @ Rs.1,000/- per month to each of the complainants under the present complaint.
iv) The OPs are also directed to pay Rs.2,000/- (Rupees two thousand only) to each of the complainants towards cost of litigation in the present case.
v) All these amounts except compensation for common facilities and amenities shall be adjusted against the amount due on the complainants, if any, at the time of handing over of the possession and if no amount is due on the complainants, then the amount shall be paid by the OPs to the complainants on the date of possession.
The opposite parties filed a review application No.198 of 2018 against the order dated 08.06.2018 and both the parties were heard on the review application. The review has been disposed of by this Commission vide its order dated 27.11.2018 wherein the following changes were allowed:-
(i) "Accordingly the complainants mentioned at Sr. No.19 namely, Gangadharaiah C.P., Sr. Nos.57 & 58, Kiran Sundarrajan and Swapna Belvadi and Sundaresan V and Shobha Sundaresan, are deleted from the list of complainants in the judgment and order dated 08.06.2018 passed by this Commission.
(ii) Thus, for the complainants who have taken possession before 31.07.2016, they will be entitled to get the compensation @ Rs.3/- per sq.ft. per month as well as compensation @6% p.a. on their deposited amounts before 31.01.2014 from 01.02.2014 till their date of possession. The impugned order stands modified to this extent."
Meanwhile, before the review order could be passed, the complainants filed EA No.212 of 2018. After the order of review, the complainants filed the revised Execution Application No.281 of 2018. It was alleged that the opposite parties have not complied with the order dated 08.06.2018.
It is also to be noted that both the parties filed appeals before the Hon'ble Supreme Court being Civil Appeal No.1232 of 2010 and Civil Appeal Nos.1443-1444 of 2019, wherein the Hon'ble Supreme Court has passed the following order on 11.02.2019 after hearing both the parties:-
"Hence, while allowing the appeal, we issue the following directions:
(i) The liability of the developer to pay interest at the rate of 6 per cent per annum shall continue to operate until the date on which each of the respective flat purchasers is offered possession;
(ii) The order passed by the NCDRC confining the award of interest for the period from 1 February 2014 to 31 July 2016 is modified in terms of the directions issued in clause (i) above;
(iii) The NCDRC in execution of the impugned order as modified by the present order, shall verify with reference to each flat purchaser the date on which an offer of possession has been made. The liability to pay interest at the rate of 6 per cent per annum shall cease on the date when an offer of possession has been made to each of the flat purchasers.
Accordingly, the appeal filed by the flat purchasers (Civil Appeal No. 1232 of 2019) is allowed and the appeals filed by the developer (Civil Appeal Nos. 1443-1444 of 2019) are dismissed.
Pending application(s), if any, shall stand disposed of."
On the basis of the above order of the Hon'ble Supreme Court, the learned counsel for the complainants stated that the Hon'ble Supreme Court has modified the order of this Commission with the effect that the interest will be given till the date of offer of possession in these cases. Learned counsel further stated that most of the complainants in compliance of the final order of this Commission dated 08.06.2018 as modified by the order dated 27.11.2018 passed in review application No.198 of 2018, the opposite parties had offered possession on 29.12.2018 or 31.12.2018 in most of the cases. The submission of the opposite parties that the offers of possession were already given in the year 2016 cannot be accepted because those offer letters have already been discarded by this Commission and that is why this Commission has allowed the possession to be given to the complainants along with interest. Learned counsel further stated that the Hon'ble Supreme Court in its order dated 11.02.2019 has also observed the following:-
"We find merit in the submission of the flat buyers that the liability to pay interest has been inappropriately confined only upto 31 July 2016. We find from the record that the developer, in the affidavit by way of evidence of its representative before the NCDRC, admitted that as many as 43 complainants, who had asked for possession were not given possession for the simple reason that they had moved the NCDRC in a consumer complaint. The relevant part of the affidavit is extracted below:-
"I state that rest of the 43 complaints who have asked for possession have not been given possession for the reason that as on 29.06.2016, the Opposite parties had received notice of this Hon'ble Commission in respect of filing of the present case. In the present dispute, the complainants have sought prayer at para A to G under different heads. While they sought the relief of handing over possession of their respective flats in para A, at paras B, C, D, E and F, they have also sought certain reliefs of compensation by making certain allegations of deficiency in service, compensation for delay in possession etc., against the opposite parties. Therefore, during the pendency of present dispute, the complainants were not given possession in view of the reliefs sought in paras B to F and the statement of allegations made in the present complaint."
On the basis of the above observations of the Hon'ble Supreme Court, learned counsel for the complainants stated that the Hon'ble Supreme Court has not considered the earlier offer letters issued in 2016 as valid.
The learned counsel further drew my attention to the following observations of the Hon'ble Supreme Court:-
"Mr. P.S. Narasimha, learned senior counsel has stated that in addition to the above 9 flat buyers, the developer will be handing over possession to 2 more flat buyers immediately. This indicates that as amongst the 55 purchasers, 25 persons have been now offered possession and an additional 2 would be offered possession shortly hereafter.
In view of the above position, the NCDRC was not justified in proceeding on the basis that the liability to pay interest would cease to operate as on 31 July 2016. Since possession has not been handed over, the developer cannot avoid the liability to pay interest at the rate awarded by the NCDRC until the date when possession is actually handed over.
Hence, while allowing the appeal, we issue the following directions:
(i) The liability of the developer to pay interest at the rate of 6 per cent per annum shall continue to operate until the date on which each of the respective flat purchasers is offered possession;
(ii) The order passed by the NCDRC confining the award of interest for the period from 1 February 2014 to 31 July 2016 is modified in terms of the directions issued in clause (1) above;
(iii) The NCDRC in execution of the impugned order as modified by the present order, shall verify with reference to each flat purchaser the date of which an offer of possession has been made. The liability to pay interest at the rate of 6 per cent per annum shall cease on the date when an offer of possession has been made to each of the flat purchasers."
On the basis of the above observation of the Hon'ble Supreme Court, the learned counsel for the complainants stated that the Hon'ble Supreme court was seized of the matter that about 30 complainants were not given the possession by that time and the Hon'ble Supreme Court has also observed that the developer cannot avoid to pay interest at the rate awarded by the NCDRC until the date when possession is actually handed over, though in the final order of the Hon'ble Supreme Court the interest has been asked to be given till the date of offer of possession. Clearly, when the Hon'ble Supreme Court is observing that the National Commission was not correct in restricting the interest till 31.07.2016, the Hon'ble Supreme Court meant that interest should be given till the date of actual possession. Thus, clearly, the offer letters issued in the year 2016 have no meaning today because the Hon'ble Supreme Court has not considered them nor any reference is made in the order of the Hon'ble Supreme Court in respect of those offer letters even though the matter was also argued by the learned counsel for the opposite party before the Hon'ble Supreme Court.
On the other hand, learned counsel for the opposite parties stated that Hon'ble Supreme Court in its order dated 11.02.2019 has clearly observed that the liability of the developer to pay interest @6% p.a. shall continue to operate until the date on which each of the respective flat purchasers has been offered possession. Learned counsel emphasised that the possession was already offered in May, 2016 after obtaining the completion certificate on 10.02.2016. Thus, the offer of possession given to these complainants in May, 2016 was totally valid and legal offer of possession. Therefore, as per the order of the Hon'ble Supreme Court the opposite parties are liable to pay interest only upto May, 2016 in most of the cases. After passing of the final order by this Commission on 08.06.2018 and subsequent modification in the review application vide order dated 27.11.2018, the opposite parties issued again the letters to the complainants to come and take possession. It has been the effort of the complainants to delay the taking over of the possession in order to get maximum interest. Hon'ble Supreme Court has asked this Commission to clearly identify the date of offer of possession in each case. Clearly offer of possession only means the valid and legal offer of possession given to the complainants after obtaining the completion certificate and this offer was given in May, 2016. Thus, as per this order of the Hon'ble Supreme Court, the complainants are entitled to get interest only upto May, 2016 though this Commission has granted interest upto 31.07.2016.
I have carefully considered the arguments advanced by the learned counsel for both the parties and examined the record. Based on the fact that opposite parties had obtained the completion certificate on 10.02.2016 and the offer of possession was earlier given by the opposite parties in May, 2016, the interest for delay in possession was allowed upto 31.07.2016. However, the parties approached the Hon'ble Supreme Court by way of filing appeals against the order dated 08.06.2018 passed by this Commission and the Hon'ble Supreme Court vide its order dated 11.02.2019 has modified this Commission's order to the effect that the interest will be payable till the date of offer of possession in each case. When both the parties approached the Hon'ble Supreme Court and filed separate appeals and the Hon'ble Supreme Court has passed the order dated 11.02.2019 after hearing both the parties, it is understood that the opposite parties would have definitely argued that the offer of possession was given in May, 2016 and the offer to possession has been sent again from 29.12.2018 -- 01.01.2019 in compliance of the order of this Commission. The Hon'ble Supreme Court in its order has also observed the following:-
"We find merit in the submission of the flat buyers that the liability to pay interest has been inappropriately confined only upto 31 July 2016. We find from the record that the developer, in the affidavit by way of evidence of its representative before the NCDRC, admitted that as many as 43 complainants, who had asked for possession were not given possession for the simple reason that they had moved the NCDRC in a consumer complaint."
From the above observation of the Hon'ble Supreme Court, it is clear that by July, 2016 the possession was not given to the complainants on the ground that they had moved this Commission by filing the complaint. The Hon'ble Supreme Court has also observed the following:-
In view of the above position, the NCDRC was not justified in proceeding on the basis that the liability to pay interest would cease to operate as on 31 July 2016. Since possession has not been handed over, the developer cannot avoid the liability to pay interest at the rate awarded by the NCDRC until the date when possession is actually handed over."
From the above observation, it is clearly brought out that the offer letters sent in May, 2016 have not been considered as valid by the Hon'ble Supreme Court and that fresh offers of possession will be given for handing over the possession. In fact, the fresh offer letters have been given to the complainants.
This EA has been filed by 55 complainants. Out of these, 16 complainants had taken possession before 31.7.2016 and their cases are not required to be dealt with presently as there is no dispute over their possession and interest granted by this Commission till the date of handing over the possession. The position in respect of present offer of possession for remaining 39 complainants is as follows:-
S.No. of the applicants
Complainant
Flat no.
Possession offered
1
1
R V Prasanna Kumar
B-804
29.12.2018
2
2
Badari P Vishal
{* Remark - Complainant has taken possession on 14.03. 2019 on the basis of the offer of possession given by opposite party on 2.5.2016.
Neither the complainant nor opposite party have filed any other offer letter given to this complainant.}
B 2003
02.05.2016
3
7
Sheela Shashidhar Bhandary
D 1304
29.12.2018
4
8
Shivakumar B
A-2002
30.12.2018
5
9
Krishna Rao
C 602
29.12.2018
6
10
Anil Kumar B N
(Mail received on 03.01.2019, though the physical letter is dated 29.12.2018)
A-1004
29.12.2018
7
11
Ravishankar
D 402
29.12.2018
8
12
Sudha Prasad
A-801
29.12.2018
9
14
Shekar Uttam Sawant
D 1701
29.12.2018
10
15
Damodaran Subramanian
B-1104
29.12.2018
11
16
Shivaram
C 1702
29.12.2018
12
17
Ravindra Krishnappa
A-601
30.12.2018
13
19
Srinivasan Venkatraman
A-1103
29.12.2018
14
20
Narasiman
C-001
29.12.2018
15
21
Shiju TA
B-103
29.12.2018
16
22
Harsha Sn
B-1202
29.12.2018
17
23
Vishal Pillai
B-1504
31.12.2018
18
24
Ganesh Narasimhaiah
B-604
29.12.2018
19
25
Narayana Prasad Shankar
A-1901
29.12.2018
20
26
Srinivas Murthy Sarraju
D 401
01.01.2019
21
28
Sriram Raghavan
A-901
29.12.2018
22
29
Veena Prakash
B-1304
29.12.2018
23
31
Bhaskaran Manoj Kumar
A-204
31.12.2018
24
33
Ranjani Penumarti
D 1903
29.12.2018
25
34
Sri Vithadevi K S
D 501
01.01.2019
26
35
Rohith Shenoy
C 1402
26.02.2019
27
36
Suresh Chandra Gupta
A-402
29.12.2018
28
37
Nitin Mahendru
D 404
01.01.2019
29
38
Seshadri Nagaraja
C-403
29.12.2018
30
39
Shashikanth Kodancha
A-1604
31.12.2018
31
40
Jayshree Sreetharamaiah
B-1203
29.12.2018
32
41
Shreesha Mahishi
B-1301
29.12.2018
33
42
Narayana Kumar Vemuri
B-1702
31.12.2018
34
46
Babu Bhaskar
Sreekala Bhaskar
D 104
01.01.2019
35
47
Abhinand Pamali
B-503
31.12.2018
36
49
Pranav Narasimha Rao
Anuradha Pranav Rao
A-1602
29.12.2018
37
51
Prabhav Narasimha Rao
Priyashaila Prabhav Rao
A-2103
01.01.2019
38
53
Sunil Thakur
C 1401
01.01.2019
39
54
Srikanth Ramaswamy
C 902
29.12.2018
From the above examination, it is clear that the complainants will be entitled to interest @6% p.a. from 01.02.2014 till the dates of offer of possession mentioned against their names in the above table. The amount of interest in accordance with this order be paid by the opposite parties to the complainants within a period of 45 days from the date of this order.
Matter be listed for compliance on 12.10.2020.