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Judgment
Heard Mr. Satyavikram Jagtap, Advocate, for the complainant.
Above complaint has been filed, for directing the opposite parties to (i) complete the construction of the project forthwith and deliver possession of the flats, complete in all respect with amenities as per agreement, to the home buyers within a period of three months and execute conveyance deeds in their favour, (ii) pay compensation, for delay in possession in the form of interest @12% per annum, on the deposit of the home buyers, from due date of possession till the delivery of possession, (iii) if possession is not delivered within three months, pay compensation, in the form of interest @18% per annum on the deposit of the home buyers, after three months, (iv) restrain the opposite party from demanding maintenance charges, till the execution of the conveyance deeds, (v) pay Rs.7/- lacs, as the costs of litigation; and (vi) any other relief which is deemed fit and proper in the facts and circumstances of the case.
The complaint has been filed for the benefits of 66 home buyers in the project “Sulochana City” at mauje Pimple Nilakh, Talluqa Haveli, district Pune, launched by the opposite parties. Sulochana City Home Buyer’s Association was a voluntary association of the home buyers of the project “Sulochana City” and registered under Societies Registration Act, 1860. The objects of the association to pursue, propagate, advance, safeguard and promote the interest of the home buyers. The complainant stated that Nandgude Patil Developers Private Limited (opposite party-1) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing projects and selling its units to the prospective buyers. Mr. Vilas Eknath Nandgude was its Director. The opposite parties launched a group housing project in the name of “Sulochana City” at mauje Pimple Nilakh, Talluqa Haveli, district Pune, in the year 2009 and made wide publicity. The members of the complainant booked the flats on different dates between 2009 to 2015 and deposited booking amount. The opposite parties issued Provisional Allotment Letters and shortly thereafter executed Builder Buyer’s Agreements in favour of the home buyers. Payment plan was “Construction Linked Payment Plan”, under which total payment has to be made in 11 instalments. Last two instalments of 5% each were payable at the time of internal colouring and fittings and offer of possession. As per clause-12 of the agreement, possession of the flat has to be given on or before 31.12.2012. The opposite parties realised 90% to 95% of the sale consideration from the home buyers. After expiry of the due date of possession, the home buyers visited the site and found that the construction was incomplete. The opposite parties assured that they would complete the construction and offer possession till June, 2012, failing which; they would give interest @12% per annum on the deposits of the home buyers. But the opposite parties neither offered possession till June, 2012 nor gave interest as promised. Vishwa Vijay Singh Pawar (Flat No.1005, in Wing ‘B’ filed a complaint before District Consumer Disputes Redressal Forum at Pune, which was allowed vide order dated 20.09.2013, directing the opposite parties to handover possession of the flat to the home buyer and pay compensation of Rs.50000/- and cost of Rs.2000/-. The opposite parties challenged the order of District Forum in Appeal No.51/2014 and Appeal No.134/2014. On the statement of opposite party-2 that the dispute between the parties was settled on 25.04.2014, these appeals were dismissed vide order dated 31.10.2014. The opposite parties filed RP/245/2015, from the aforesaid order, which was dismissed on 24.03.2015. Some of the home buyers filed consumer complaints (registered as APDF/2013/84 and other connected complaints) before District Consumer Disputes Redressal Forum at Pune. As the total claims exceeded Rs.20/- lakhs, District Forum, vide order dated 31.12.2013, returned the complaints for presentation before appropriate forum. The opposite parties wrote a letter dated 31.12.2015, that they were willing to complete construction by taking loan from the bank but the loan was not sanctioned due to pendency of CC/407/2015. They requested to withdraw the complaint and assured that after dismissal of the complaint they would take loan and complete the construction without any delay. Thereafter, the opposite parties enterred into an agreement dated 11.07.2016 with Sulochana City Co-operative Housing Society and agreed to complete the construction in all respect with amenities and handover possession till 31.03.2017, leaving the issue of compensation open. The home buyers further paid 5% of the sale consideration under this compromise. Sulochana City Co-operative Housing Society got CC/407/2015, dismissed as withdrawn, vide order dated 28.11.2016, with liberty to filed fresh complaint before appropriate forum. The opposite parties again failed to complete the construction and offer possession till 31.03.2017. Many of the home buyers took loan on interest @10% per annum from the bank for paying sale consideration and are paying EMI. The home buyers are suffering loss of rent to Rs.15000/- to Rs.20000/- per month. The complaint was filed on 20.12.2018, alleging deficiency in service and unfair trade practice as possession has been unreasonably delayed.
The opposite parties filed its written reply and contested the case. The material facts relating to the project, allotment of the flats and deposits made by members the complainant, have not been disputed. The opposite parties stated that the complaint was not maintainable as there was no relationship of the consumer and service provider between the complainant and the opposite parties. The complaint was barred by limitation. The period of 36 months for possession was subject to timely payment of the sale consideration and force majeure reasons. The opposite parties obtained all necessary permission and sanction for construction of the project “Sulochana City” on 30.03.2007. Thereafter permission of the Collector for change of land use was obtained. In the meantime market sentiments in the real estate sector went down. As such revised plans for smaller tenements were got sanctioned on 02.09.2009. Irrigation Department of Government of Maharashtra published flood zone and red line zone for the plots abutting Mula River on or about 03.03.2009. The plots of the opposite parties were abutting Mula River, due to which, the work at the site was halted. The home buyers were informed in this respect vide letter dated 01.04.2009 and on telephone also. Around the same time Mr. Vijay Balasaheb Dalvi, owner of adjoining plot, raised objection with regard to the area and boundary of the plot. For which joint application for measurement was given by the parties on 10.01.2010. In consonance of the measurements, a revised plan was sanctioned on 09.06.2010. Irrigation Department issued “No Objection Certificate” on 17.02.2011. Layout plans were again revised on 06.06.2011 and commencement certificate was issued. Some error in revised plan was corrected on 29.09.2011. Daily newspaper “Lokmat” published some unwanted news in respect of the project of the opposite party on 06.02.2012, on the basis of press conference of the home buyers, which adversely affected the prospects of the project. Various home buyers started withholding payment of the instalments. In spite of all the above hurdles, the opposite parties completed the construction of the commercial unit in March, 2015. The Architect engaged by the opposite party started avoiding giving time for the project since April, 2015. The opposite parties engaged a new architect namely “A Design Studio”, who undertook the job in July, 2019. The opposite parties have completed constructions of 85% of Wing-A, 85% of Wing-B, 95% of Wing-C and 90% of Wing-D. The home buyers were duly informed in this respect. Due to delay, the home buyers stopped payment, due to which, the opposite parties were facing financial difficulty. The construction was delayed for the force majeure reasons and such period of delay is liable to be condoned. The opposite parties have not committed any deficiency in service.
The complainants filed Affidavit of Evidence of Debopriya Gupta, Additional Affidavit of Evidence of Debopriya Gupta and documentary evidence along with IA/6988/2020. The opposite parties filed Affidavit of Evidence of Mrs. Sujata Vilas Nandgude and documentary evidence. Both the parties have filed their short synopsis.
We have considered the arguments of the parties and examined the record. Preliminary objections that the complaint is not maintainable or is barred by limitation have no force. The complainant is a registered consumer association and complaint is maintainable under Section 12 (1) (b) of the Consumer Protection Act, 1986. As possession has been withheld as such it is continuing cause of action.
Force Majeure is a clause that is included in the contract to save from the liability for unforeseen and unavoidable catastrophic that interrupt. Force Majeure has been statutorily recognised under Section 56 of the Contract Act, 1872. Supreme Court in Dhanrajmal Govindram Vs. Shyamji Kalidas, AIR 1961 SC 1285, held that an analysis of the rulings on the subject shows that where reference is made to “force majeure” the intention is to save the performing party from the consequences of anything over which he had no control. In IREO Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241, the period of delay caused in issuing NOC by Fire Department, was excluded from counting the period of delay.
As per clause-12 of the agreement dated 09.12.2009, due date of possession was 31.03.2011 i.e. approximately within 16 months from the date of agreement. Clause-15 of the agreement provides various contingencies for extension of time for handing over possession. According to the opposite party Layout plans were lastly revised on 06.06.2011. If the period of 16 months is counted from this date then due date of possession comes in October, 2012 in the cases in which agreements were executed prior to 06.06.2011. In all other cases, 16 months period has to be counted from date of agreement. The other force majeure reasons are prior to 06.06.2011. Change of architect, in the year 2019 is not a force majeure reason.
As per clause-12 of the agreement, possession of the flat has to be given on or before 31.10.2012. Around 90% or more of the sale consideration has been realized by the opposite parties from the home buyers. The opposite parties, in the written reply filed in the year 2019, has stated that 85% constructions of Wing-A, 85% constructions of Wing-B, 95% constructions of Wing-C and 90% constructions of Wing-D have been completed. More than three years have expired after filing of the written reply. The opposite parties time to time give assurance to handover possession within short period but could not deliver possession. As such there was deficiency in service on the part of the opposite parties. Supreme Court in Wing Commander Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512, held that fair compensation for delay in possession ought to be in form of interest on the deposit @6% per annum from due date of possession till the offer of possession.
ORDER
In view of aforesaid discussions, the complaint is partly allowed. The opposite parties are directed to handover possession of the flats, complete in all respect as per specification, to the home buyers for whose benefit, this complaint has been filed within three months from the date of this judgment. The opposite party will issue fresh statement of the account of the home buyers after adjusting compensation for delay in possession in the form of interest @6% per annum on the deposit of the complainants, from due date of possession as determined according to paragraph-8 of this judgment within four months from the date of this judgment, giving one month time to the complainants to deposit it. If the amount is payable by the opposite parties, they shall pay it to the home buyers along with statement of account. On deposit of the amount, the opposite parties will execute conveyance deeds in favour of the home buyers.