SENIOR EXECUTIVE (MARKETING & SALES) vs HUSSAINEE ALIHUSSAIN LILAMWALA

The petitioner Tata Housing Development Company Ltd. developed a township at Village Betegaon, Boisar, Taluka-Palghar in District Thane of Maharashtra. The complainant in RP No. 1169 of 2016 booked two residential flats in the aforesaid township whereas the complainant in RP No. 1988 of 2016 booked one residential flat in that township. As per clause 18 of the agreement executed between the parties, the possession was to be delivered by 31.12.2011. The petitioner however, could not offer possession within the time stipulated in the agreement and

there was delay of about 15 months in offering possession. While giving possession to the complainants, the petitioner company recovered Rs. 50,000/- as the membership fee for the club house which was not functional at the time the possession was offered. The cost of the flat agreed to be paid by the complainant included the cost of the earmarked parking space which it has provided to the complainants in the above referred township. The petitioner company before giving possession, had also recovered the water and electricity - supply and connection charges from the complainants. The complainant in RP No. 1169 of 2016 is aggrieved from i) Delay in offering possession of the flats; ii) recovery of charges for the earmarked parking spaces; iii) recovery of Rs. 60300/- towards water and electricity - supply and connection charges and iv) the delay in making the club house functional despite club charges having been recovered from him. The complainant in RP No. 1988 of 2016 is aggrieved only from the recovery of charges for the parking space earmarked for him.

The District Forum as well as the State Commission have upheld the claims of the complainants on all the above referred counts. There was also a claim in respect of the maintenance charges but the said claim was rejected. Being aggrieved from the orders passed by the Fora below, the petitioner company is before this Commission by way of these revision petitions.

The first question which arises for consideration in RP No. 1169 of 2016 is as to whether the petitioner company is liable to pay any compensation to the complainant for the delay in offering possession of the flat booked by him and if so, what should be the extent of the said compensation. Clause 13 of the Buyers Agreement reads as under: The promoter shall give possession of the said premises to the purchaser/s on or before 31.12.2011. If the promoter fails or neglects to give possession of the said premises to the purchaser/s on account of reasons beyond the control of the promoter and its agents as per the provisions of Section 8 of the said Act, by the aforesaid date or the date or dates prescribed in Section 8 of the said Act, then the promoter shall be liable on demand to refund to the purchaser/s the amounts already received by it in respect of the said premises (but excluding the amount of interest paid by the purchaser/s for delayed payment of any installment or other payments) with simple interest @ 9% (nine percent) per annum, from the date/s the promoter received the amounts till the date the amounts and interest thereon are repaid, provided that by mutual consent, it is agreed that any dispute as to whether the stipulations specified in Section 8 of the said Act have been satisfied or not, will be referred to the Competent Authority as specified in the said Act, who will act as the Arbitrator. Till the entire amount and interest thereon are refunded by the promoter to the purchaser/s, they shall subject to prior encumbrances, if any, be a charge on the said land as well as the construction or building in which the said Flat is situated or was to be situated. PROVIDED THAT the promoter shall be entitled to reasonable extension of time for giving delivery of the said premises after the aforesaid date, if the completion of the said building in which the said Flat is to be situated is delayed on account of all or any of the following reasons:- 1.Non-availability of steel, cement, other building materials, water or electric supply; 2.War, civil commotion or Act of God; 3.Any legislation, ordinance, notice, order, rule, notification or directive of the Government and/or any local or public body or authority or any other competent authority or Court of Tribunal or any other quasi-judicial body or authority;

Force majeure circumstances or conditions, or other causes beyond the control of or unforeseen by the promoter, including strikes or other agitation by the workers, employees or labourers of the promoter or the contractors or suppliers; and/or

Delay in issue of the Occupation Certificate, Completion Certificate and/or any other certificate as may be required in respect of the said building, by the said local authority or any other concerned authority.

It would thus be seen that but for the circumstances mentioned in clause (a) to (e) above, the petitioner company was required to deliver possession of the flat on or before 31.12.2011. The case of the petitioner is that the delay in offering possession of the flats to the allottees happened interalia due to the extraction of sand in the entire State of Maharashtra having been banned by the Bombay High Court vide its order dated 23.09.2010. The said ban, the learned senior counsel appearing for the petitioner, states remained in force for about six weeks. The second justification given by the petitioner company for the delay in offering possession to the allottees was the delay in obtaining the requisite permission for water and electricity connections.

As far as the ban on extraction of sand all over the State of Maharashtra is concerned, there is no material on record to show that though the petitioner company tried to purchase from market the sand which had already been extracted before the ban order came to be imposed by the High Court, the sand was not at all available in the market. No such plea was even taken before the District Forum. In the absence of such a plea, it cannot be said that for six weeks, when the ban remained in force, sand was not available in the State of Maharashtra for construction of flats in this project. Therefore, the above referred order of the Hon''ble High Court of Bombay, in my view, does not justify the delay in offering possession to the allottees and cannot be said to be a circumstances beyond the control of the petitioner company.

As regards the delay in obtaining the sanction for the water and electricity supply, the petitioner company did not state, in its reply before the District Forum as to how much was the time usually taken for obtaining such permission and how much was the time actually taken in this project. In the absence of such particulars, it would be difficult to say that the permission for water and electricity supply was unreasonably delayed by the concerned authorities. Moreover, no official from the concerned authorities was examined to prove the alleged delay in grant of sanction by those authorities for the release of water and electricity supply to this project. Therefore, the alleged delay in grant of sanction for water and electricity supply also did not justify the delay in offering possession to the allottees.

Since no other justification is given by the petitioner for the delay in offering the possession of the flats to the complainants, it must necessarily compensate them for the said delay.

The Fora below have directed the petitioner to pay compensation in the form of interest @ 9% per annum on the amount which the allottee had paid to it. The compensation awarded by the Fora below cannot be said to be unreasonable or excessive and is accordingly confirmed.

The next question which arises for consideration in RP No. 1169 of 2016 is as to whether any compensation for the delay in making the club house functional is payable to the complainant or not. It is an admitted position that while delivering possession of the flats to the complainant, the petitioner company had recovered the entire cost of the flat including the club charges amounting to Rs. 60,000/-. It is also not in dispute that the club was not functional on the date the possession of the flat was handed over. As a result, the complainant despite having paid the club charges, was not in a position to use the facility of the club till the time the club became functional. Therefore, the direction for payment of the compensation on the club charges @ 9% per annum is eminently justified.

The next question which arises for consideration in the above referred revision petition is as to whether the petitioner company was justified in recovering a sum of Rs. 60300/- from the aforesaid complainant towards ''water and electricity - supply and connection charges''. The learned senior counsel for the petitioner has drawn my attention to the Buyers Agreement which to the extent it is relevant, reads as under: 20(a) The purchaser/s shall on or before delivery of possession of the said premises, keep deposited with the promoter the following amounts:- 6. Security deposit and connection charges for water connection payable to the Gram Panchayat/Zila Parishad.

Security deposit for electrical meter/Meter Charges payable to MSEDCL. (b) It is hereby expressly clarified, agreed and understood that in the event of there being any increase in the amounts mentioned in sub-clause (a) of this clause, and/or any other amounts/deposits which are not referred to therein become payable, for this reason, then the purchaser/s shall be liable to bear and pay the same within 7(seven) days from receipt of the promoter''s written intimation in this regard.

It would thus be seen that if there was an increase in the security deposit and connection charges for water connection payable to Gram Panchayat / Zilla Parishad, the said increase was to be borne by the allottees. There is absolutely no evidence of the security and connection charges for the water connections payable to the Gram Panchayat / Zilla Parishad or to the successor in interest of the said bodies having been increased. There is no evidence of security deposit for electric meter/meter charges payable to MSEDCL having increased. Therefore, the demand for water and electricity - supply and connection charges cannot be justified under clauses 20(a)(6)&(7) of the Buyers Agreement.

However, in terms of clause (b) extracted hereinabove, the flat buyers were also required to pay any other amount / deposit not specifically referred in clause (a) becoming payable. The learned counsel for the petitioner has drawn my attention to a letter dated 25.08.2011 sent by Maharashtra State Electricity Transmission Company Limited to the petitioner company demanding a total amount of Rs. 25.03 lacs towards the cost of the feeders. The said feeders were to be installed for the purpose of supply of electricity to the project in each flat were booked by the complainant. The said amount having become payable after the execution of the Buyers Agreement, it is clearly referable to clause (b) extracted hereinabove and therefore, to the extent apportionable to the flat booked by the complainant, the aforesaid amount could be recovered

from him. There is no evidence of any other extra payment having been made by the petitioner to a third party, after execution of the Buyers Agreement. Therefore, no other amount under the head water and electricity - supply and connection charges could be recovered from him.

The last dispute is with respect to the cost of the earmarked parking. This is also the issue involved in RP No. 1988 of 2016. Admittedly, the sale consideration stipulated in the Agreement to Sell included the cost of providing the aforesaid earmarked parking space, though no particular amount was specified for this purpose. Relying upon the decision of the Hon''ble Supreme Court in Nahalchand Laloochand Private Limited Vs. Panchali Cooperative Housing Society Limited (2010) 9 SCC 536 , it has been submitted by the learned counsel for the complainants/respondents that the cost of car parking cannot be recovered from them by the petitioner company. I however, find no merit in the contention. In the judgment relied upon by the learned counsel for the complainants, the Hon''ble Supreme Court clearly held that the referred parking space/stilt parking space being part of common areas, could not be separately sold by the builder but the Hon''ble Apex Court upheld the right of the builder/promoter to charge the cost of the parking from the flat buyers in proportion of the carpet area of the flats. Therefore, though the petitioner company could not have separately sold the car parking, it certainly was entitled to recover the cost of providing the earmarked parking space, from the flat purchasers. It is not indicated in the Agreement to Sell as to how much was the amount recovered by the petitioner company for the earmarked parking space from the flat purchasers. It however appears from the correspondence exchanged between the petitioner and the flat buyers that they were charged Rs. 50,000/- for each earmarked parking space. The case of the petitioner is that the aforesaid amount was even less than the actual cost of providing the earmarked parking space to the flat purchasers. In any case, there is no evidence of the said actual amount being less than Rs.50,000/-. Therefore, the recovery of the charges from the earmarked car parking space was justified and no exception to the said charges can be taken by the flat buyers.

For the reasons stated hereinabove, the RP No. 1988 of 2016 is hereby dismissed with no order as to costs.

In RP No. 1169 of 2016, the petitioner company shall be entitled to retain the proportionate payment made to Maharashtra State Electricity Transmission Company Limited in terms of its letter dated 25.08.2011 from the complainant. The aforesaid amount shall be worked out by the petitioner company within two weeks from today. After deducting the aforesaid amount from the amount of Rs. 60300/- recovered as water and electricity - supply and connection charges, the balance amount shall be refunded to the concerned complainant alongwith interest @ 9% per annum from the date the said amount was paid to the petitioner company till the date on which it is actually refunded. The petitioner company shall also pay compensation for the delay in offering possession to the flat buyers as well as compensation for the delay in making club house functional to the complainant in terms of the order passed by the Fora below. The direction of the Fora below for refund of the charges for earmarked parking space however, is set aside. The payment in terms of this order shall be made within six weeks from today. After payment to the complainant in terms of this order, the petitioner company shall be refunded the amount deposited by it with the concerned District Forum, along with interest which may have accrued on that amount.