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Judgment
V.K.Jain, J
Municipal Corporation of Greater Mumbai owned land admeasuring 1760 sq.mtrs. in Parel, consisting of three old chawls. The old structures on the said land were in a dilapidated condition and the tenants/occupants were desirous of developing the said property after demolishing the old structure. They formed a society namely, Raigarh Nagar Housing Society and appointed the respondent Rupji Constructions, hereinafter referred to as developer, to develop the said property. An agreement for development dated 7.4.2006 was executed between them and the developer. The proposal for development of the said land was duly approved by the MCGM. Under the development agreement with the occupants/tenants of the said land, the developer obtained rights to sell the flats, offices, shops and other premises to the persons interested in purchasing the same. Accordingly, the complainants/appellants applied to the respondents for allotment of residential flats, to be constructed by the developer and executed separate agreements with the developer, incorporating their respective obligations in respect of the said transactions. The possession of the allotted flats was to be delivered to the complainants/appellants on or before the date mentioned in clause 10 of the agreements executed between the parties. The following are the broad particulars of the agreements between the appellants, the respondent, the date on which the possession was to be delivered to them and the payment which the appellants made to the respondent:-
s. No.
Case No.
Complainant Name
Flat No.
Date of Agreement
The promised date of possession
Consideration paid upto the promised date of possession
Consideration paid after the promised date of possession upto the date of filing the consumer complaint
1.
FA/350/2016
Mr.Santosh Sitaram Mayekar
B-103
April,2009
May, 2010
3,311,500
1,946,000
2.
FA/351/2016
Mr. Sujay Suresh Kulkarni and Mrs. Supriya Suresh Kulkarni
A-302
Sep,2008
May,2010
2,907,400
917,800
3.
FA/352/2016
Mr. Shaligram N. Patil and Anr.
B-802
Aug.,2010
March,2011
3,500,000
360,000
4.
FA/353/2016
Dr. Pradnya Ashish Chaudhari and Mr. Prabhakar B. Chaudhari
A-703
Sept.,2008
May,2010
5,392,200
2,498,800
5.
FA/354/2016
Mr. Abhijit Anant Rane and Mr. Anant Sahdeo Rane
B-102
July,2008
May,2010
3,072,300
870,800
6.
FA/355/2016
Mrs. Swati Vasant Patil and Mr. Vasant K. Patil
B-204
Dec.,2009
May,2010
2,615,540
988,400
7.
FA/356/2016
Mr. Mrunalkant Bhikaji Surve and Mr. Laxmiprasad M. Surve
B-404
Oct.,2008
May,2010
2,380,100
957,400
8.
FA/357/2016
Mrs. Priyamvada S. Bhide
B-203
Feb.,2010
Dec.,2010
4,762,875
0
9.
FA/358/2016
Mr. Dinesh K. Pangare and Mr. Krishnant D. Pangare
B-804
May,2011
Dec.,2011
2,615,910
249,519
10.
FA/359/2016
Mr. Hitindra Mistry & Anr.
B-402
Dec.,2008
May,2010
2,893,400
1,201,600
11.
FA/360/2016
Mrs. Cecillia Salis & Anr.
A-401
Nov.,2008
May,2010
2,876,500
649,400
12.
FA/361/2016
Mrs. Poonam P. Bobhate & Anr.
B-504
Oct.,2008
May,2010
2,237,700
590,600
13.
FA/362/2016
Mr. Suresh PS Chauhan & Anr.
A-202
July,2008
May,2010
2,798,000
1,068,400
14.
FA/363/2016
Mrs. Aparna Chogle
B-603
Sept.,2009
May, 2010
4,804,200
1,610,200
15.
FA/364/2016
Mr. Anand Hari Kamat
B-602
July,2008
May,2010
2,666,400
679,000
16.
FA/365/2016
Mr. Mahesh Loke & Anr.
B-303
Dec.,2008
May,2010
3,768,500
1,473,400
17.
FA/366/2016
Mrs. Indumati Sawant
A-701
Oct.,2008
May,2010
3,516,400
1,188,800
18.
FA/367/2016
Mr. Prakash S. Sawant and Mrs. Kavi Prakash Sawant
A-603
Feb.,2010
Dec.,2010
3,482,000
90,000
19.
FA/368/2016
Mr. Mandar Pendharkar & Anr.
A-601
July,2008
May,2010
3,881,600
1,500,700
Since the possession of the allotted flats was not delivered to them within the time stipulated in the agreements, the complainants/appellants approached the concerned State Commission by way of separate consumer complaints seeking possession of the allotted flats along with compensation etc. The complainants/appellants also disputed the additional sale consideration demanded from them by the respondents, pursuant to the demand raised upon it by the Municipal Corporation towards capitalized value/BMC Premium.
The complaints were resisted by the respondent which admitted the agreements executed with the complainants/appellants. It was interalia stated in their reply that they were ready to complete the project on receipt of the balance sale consideration from the flat buyers.
The State Commission vide its order dated 10.3.2016 disposed of the complaints with the following directions to the respondent:-
"2. The opponents are jointly & severally directed to hand over to the complainants, in each of these consumer complaints, vacant and peaceful possession of the flats (as narrated in these consumer complaints and more specifically described in registered agreements for sale executed with the complainants and for the sake of convenience, as per schedule mentioned here-in-below) upon accepting balance consideration amount from the complainants, each of these consumer complaints, as per schedule mentioned here-in-below, by obtaining Occupancy Certificate within a period of ninety days from the date of this order.
SCHEDULE
Consumer Complain No.
Flat No. which is subject matter of dispute
Balance agreed consideration which is required to be paid to the opponents by the complainants before taking over possession of the flat (Amt. in Rupees)
333 of 2013
B-103
67,500/-
334 of 2013
B-703
92,600/-
335 of 2013
A-302
80,800/-
336 of 2013
B-802
27,500/-
337 of 2013
A-703
1,09,000/-
338 of 2013
B-102
39,400/-
339 of 2013
B-204
54,060/-
422 of 2013
B-404
96,000/-
423 of 2013
B-203
4,49,625/-
424 of 2013
B-804
29,571/-
427 of 2013
B-402
65,000/-
428 of 2013
A-401
24,100/-
429 of 2013
B-504
21,700/-
430 of 2013
A-202
39,600/-
489 of 2013
B-603
37,600/-
490 of 2013
B-602
29,600/-
493 of 2013
B-303
70,600/-
151 of 2014
A-701
44,800/-
152 of 2014
A-603
68,000/-
153 of 2014
A-601
67,700/-
It is hereby made clear that the complainants are not liable to pay any extra amount to the opponents except the balance amount of the consideration agreed. The complainants shall pay the balance consideration amount, in pursuance of the foregoing order, to the opponents within a period of thirty days from the date of this order. However, it is hereby made clear that in case of refusal on the part of the opponents to accept these amounts, the complainants are at a liberty to deposit such amounts with this Commission within a period of fifteen days from the date of such refusal if any.
In each of these consumer complaints, the opponents shall pay to the complainants, an amount of Rs.1,00,000/- (Rupees one lac only) by way of compensation towards mental agony and harassment besides reasonable costs of litigation quantified to Rs.15,000/- (Rupees fifteen thousand only). However, the opponents are at a liberty to appropriate these amounts payable as compensation towards balance consideration receivable from the complainants, in each of these consumer complaints, and after such appropriation, surplus amount, if any, shall be paid to the complainants."
Being aggrieved from the order passed by the State Commission, the respondent approached this Commission by way of FA/399/2016 and connected appeals which came to be dismissed by this Commission vide order dated 18.10.2016. Special Leave Petitions preferred by the respondents against the aforesaid order of this Commission dated 18.10.2016 were also dismissed by the Hon'ble Supreme Court vide its order dated 14.12.2016.
As far as the complainants/appellants are concerned, their only grievance in these appeals is with respect to the compensation for the period the delivery of possession has been delayed. Their submission is that though flat compensation of Rs.1 lakh each has been awarded to them for the mental agony and harassment undergone by them, no compensation for the delay in delivery of possession has been granted.
The appeals have been resisted by the learned counsel for the respondent on two grounds. His first contention is that the appellants had failed to pay the capitalized value/BMC premium demanded by the Municipal Corporation from the developer, which they were liable to pay, in terms of clause 20 of the agreement executed between the parties. This contention was raised before this Commission in FA/399/2016 - M/s Rupji Constructions & Anr. Vs. Santosh S. Mayekar and connected matters and was expressly rejected. Para 5 to 7 of the order deal with this contention and read as under:-
"5. On the other hand, the stand of the Appellants, in their Written Version filed in opposition to the Complaints, was that the delay in completion of the project occasioned because of their inability to pay the amount demanded by the BMC towards the Capitalized Value, as per the letter of intent issued by it to the Appellants, on account of refusal by the Complainants to pay the said amount.
Having heard learned Counsel for the parties and perused the pleadings, the core issue for consideration in these Appeals is whether the Complainants were liable to pay to the Appellants the aforesaid Capitalized Value, as demanded by the BMC.
Insofar as this Commission is concerned, the issue is no longer res integra. The same issue came up for consideration of this Commission in the case of the Appellants itself in Consumer Case No. 207 of 2014 (Vijay Sakharam Pawar v. M/s Rupji Constructions). Vide order dated 20.01.2016, this Commission, upon consideration of Clause 20 of the Sale Agreement, pressed into service by the developer, came to the conclusion that the aforesaid Clause relates to 'future demands', if any, by the Municipal Corporation of Greater Mumbai and/or BEST/State Government and not to any past demands irrespective of whether paid or not paid by the builder. In our view, the said decision is on all fours to the facts of the present Appeals. Following the said order, we reject the stand of the Appellants."
In view of the above-referred decision of this Commission, it is not open to the respondent to raise the same issue again. Consequently, I have no hesitation in reiterating that the complainants/appellants were not required to pay the capitalized value/BMC premium demanded by the Municipal Corporation from the developer.
The second contention of the learned counsel for the respondent is that since the complainants/appellants themselves had defaulted /delayed in payment of the sale consideration, they are not entitled to any compensation for the delay in delivery of possession. I find that this contention was also expressly rejected by this Commission vide its order dated 18.10.2016 in FA/399/2016. Para 8 and 9 of the order deal with this contention and read as under:-
"8. At this juncture, it is submitted by learned Counsel appearing for the Appellants that the State Commission has also failed to consider that since there was default in payment of certain instalments by the Complainants and being the defaulters themselves, they were not entitled to the compensation of Rs. 1,00,000/-, as awarded by the State Commission to each of the Complainants.
Having carefully perused the Written Version filed on behalf of the Appellants before the State Commission, we find that no such plea was raised by the Appellants therein. That being so, the Appellants are estopped from raking up the said issue at this stage."
Since the respondent has failed to justify the delay in delivery of possession of the allotted flats to the complainants/appellants, it must pay adequate compensation to them for the said delay. Considering all the facts and circumstances of the case, the respondents are directed to pay all inclusive compensation, in the form of simple interest @ 8% p.a. to the complainants/appellants till the date on which the possession was actually delivered. The compensation shall be paid w.e.f. the committed date for delivery of possession, on the amount which had been paid by that date. On the balance amount paid by the complainants/appellants to the respondent, the compensation in the form of simple interest 8% p.a. shall be paid w.e.f. the date of each payment till the date on which the possession was delivered. The possession is stated to have been delivered in October 2017.
The above compensation in the form of simple interest @ 8% p.a. would also include the compensation for the mental agony and harassment undergone by the complainants/appellants and the same is acceptable to them, as is stated by their counsel on instructions. The compensation in the form of simple interest in terms of this order shall be paid within three months from today. The appeals stand disposed of.