IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI – 600 003.

C.C. No.115/2012, C.C. No.19/2013, C.C. No.20/2013, C.C. No.21/2013, C.C. No.22/2013, C.C. No.24/2013, C.C. No.29/2013, C.C. No.30/2013 & C.C. No.55/2013

DATED THE 30^TH DAY OF AUGUST 2022

- Versus -

1. M/s. BSCPL Infrastructure Ltd.,

Represented by its Chairman & Managing Director, Registered Office at:

5^th Floor, Progressive Towers, Khairtabad,

Hyderabad – 500 004.

2. M/s. BSCPL Infrastructure Ltd.,

Represented by its General Manager (Marketing) & Authorised Signatory,

Mr. Rajendra Joshi, Nookampalayam, Perumbakkam Road,

Sithalapakkam Post,

Chennai – 600 073.                                                                         ::              Opposite parties.

Counsel for the complainants                      :     M/s. S. Mounaswaminathan Counsel for the opposite parties 1 & 2                            :     M/s. K. Baskar

This complaints having come up for final hearing before us on 24.08.2022 and on hearing the arguments of both parties and upon perusing the material records submitted by both the parties and a common order since a common question involved in the above complaints arose for consideration we hereby pronounced the following:

COMMON ORDER

Thiru. S. KARUPPIAH, JUDICIAL MEMBER

These complaints have been filed by the complainants under section 17 (1) (a) (i) of the Consumer Protection Act, 1986 alleging deficiency in service on the part of the opposite parties along with the prayer to direct the opposite parties:-

1. To direct the opposite parties to pay a sum of Rs.1,01,989/- the agreed compensation amount for the delay in handing over the flat as per the agreement i.e. (1569 sq. ft. x 5 x 13 = 1,01,989/-;
2. To pay a sum of Rs.5,00,000/- towards compensation for mental agony and distress caused by the delayed handover shoddy workmanship and deficiency in service;
3. To pay a sum of Rs.10,00,000/- as compensation for the interim period till the Seven Storey/four storied club house, RO Equivalent water and Secondary School are built and made fully operational;
4. To pay the cost of proceedings.

(Except in C.C. No.55/2013, the prayer is to direct to pay a sum of Rs.5,00,000/- towards compensation for the delayed possession).

1.         The common brief facts of the complaints is as follows:-

The above complainants are purchasers of various flats with different measurements for different sale considerations. They all already took possession of their respective flats which was handed over to them by the opposite parties Builders cum Promoters. The common allegations in the above complaints are they have purchased the flats allured by the advertisements and assurance given by the builder’s Company. As per the Agreement, the opposite parties assured them to handover possession in the month of December 2010. The Builders can extend the period by 6 months after giving notice to the complainants. But as assured, the flats were not delivered as specified in the Agreement. Furthermore, all the complainants were asked to pay a sum of Rs.8,000/- towards gas pipe connection and also Rs.18,829/- towards advance maintenance charges. After this payment alone, they are given possession of their respective flats. Furthermore, as assured by the opposite parties, the common amenities like Seven Storey Club house, school, Gym, favoured block roads were not at all provided. The construction was also far below the standard. Since, the opposite parties as per the agreement agreed to pay Rs.5/- per sq. ft. for the delay in handing over the possession, the complaint is filed to claim that amount of Rs.1,01,989/- towards compensation for delayed payment and also compensation for non-providing of common facilities and compensation for mental agony etc.

.2.        Written version of the opposite parties is as follows:-

The opposite parties have filed their written version stating that there is no delay in handing over the flat. Moreover, as per the Agreement, the delay was caused due to Force Majeure Clause.   So, they are not liable to pay any compensation towards delay in handing over possession. With regard to failure to provide common facilities such as club house, school etc already steps were taken and the complaint is not at all maintainable in this regard.

3. Both parties have filed their respective proof affidavits and marked documents.

4. We have heard both parties. At the time of arguments, the complainant has filed a Memo stating that they have not pressed the relief of compensation towards failure of providing common facilities. It is further represented that the flat owners’ Association preferred a Writ before the Hon’ble High Court of Madras. The Hon’ble High Court has appointed a retired Judge Mrs. Justice. Chitra Ventatraman as Sole Arbitrator. The Arbitration award was also produced in one of the cases.    From this, we understand that nearly some crores of rupees were paid by the opposite parties for their failure to provide some common amenities. So with regard to this failure, all the complainants are not liable to claim compensation individually and the Learned Counsel has rightly withdrawn his claim in this regard.
5. Now, the only question to be considered by us is:

1. Whether there is delay in handing over possession to the complainant?

2. If so, whether the complainants are entitled for any compensation?

6. Point No.1:

We perused the entire Agreement. On going through the entire agreement, it is proved that the payment mode is ‘construction linked payment plan’. The complainants were asked to pay their instalments commensurate with progress of the construction of buildings. Only at the time of handing over, the complainants have to deposit their last instalment. Nowhere, in the complaints, the complainants have stated that they have already paid the entire amounts or 90% of the cost to the opposite parties. No pleadings or proof is filed about the date of payment. So, as per the terms of Agreement, they have paid the last instalment only at the time of receiving possession. When they did not pay the entire amount before the promised date i.e. December 2010, they cannot blame the builders as they have committed breach of the duty. The complainants are not entitled to get possession of the respective flats, Without paying the entire amount and they cannot complaint about the delay in handing over. So their payment and handing over possession was simultaneously took place. We did not find fault with the opposite parties, even though there was a delay in handing over possession.

7. In this respect we hereby relied upon the following Judgement which reads as follows:

Between

National Consumer Disputes Redressal Commission New Delhi

Mrunmaya Kar

-Vs-

Piyush Heights (Piyush Group)

Held that

6.            I have considered the arguments of the complainant in person and examined the record. A perusal of Builder Buyer's Agreement dated 19.06.2008 shows that payment mode was "Construction Linked Payment Plan" as mentioned in Annexure -B. Under clause 27 (a) of the agreement, it has been provided that the company would complete the construction of the flat within 36 months from the date of signing of the agreement with extended period of six months. This period expired in the beginning of the year 2012. It is alleged that the construction was completed in 2013 and the builder has applied for issue of Occupation Certificate, which was granted on 26.02.2014. The builder offered possession to the complainant on 03.03.2014. There was no unreasonable delay in raising the construction. Supreme Court in Banglore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 711, has held that time cannot be an essence of contract in the matter of civil work. The payment plan was "Construction Linked Payment Plan", as such, the complainant was required to pay the amount at various levels of construction. Thus, no prejudice has been caused to the complainant in delay, which has occurred in raising the construction. Supreme Court in Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241 has held that once the possession has been offered after obtaining "Occupation Certificate", then the allottee is obligated to take possession of it. In the circumstances, it cannot be held that there was any deficiency in service on the part of the builder.

8. As per the above, we find that there is no deficiency in service committed by the opposite parties even though there was a delay in handing over. Furthermore, the complainant admitted that they were asked to pay Rs.8,000/- towards piped gas connection and Rs.18,829/- towards the advance maintenance amount at the time of taking over possession, which also proved that as per the agreement the entire Sale

price and agreed charges were paid only at the time of taken delivery and possession. Apart from this, the complainants have never stated and proved that they took possession subject to their right to raise objection with the opposite parties. As per the allegations if there is an inordinate delay in handing over possession they ought to have cancelled the Agreement and asked for refund of the amount and damages from the opposite parties. But without rising such objection they accepted the handing over possession. It amounts to stopped by conduct.

8.       This view is fortified by some of the documents filed by the complainant by signing a handing over letter. In that letter some of the complainants admitted that the delay was caused beyond the control of the opposite parties and they knew about the delay. So as per this the complainants who have signed this handing over letters excused the delay and they cannot complaint this afterwards. Almost all the complainants have accepted the flats with satisfaction of its construction and provision of amenities. Once they expressed their satisfactions and excused the delay and without rising objection accepted the possession, they are not entitled for any compensation alleging deficiency of service by the opposite parties. We are unable to resist to point out one thing in C.C. No.55/2013, in the above complaint, the complainant has entered into an Agreement on 18.12.2010 and as per the Agreement, the promise date is also December 2010and the complainant was asked to pay the periodical instalments and he took possession of the building as per Ex.A5 in the above complaint on 02.03.2012. So, after entering into an Agreement he was handed over the possession of a flat in a multi storied building within 15 months and is not entitled for any damages and there is  no delay even though he took  possession beyond the

Agreement date. The condition to construct the flat and to hand over possession on the same December 2010 is an impossible task and is a valid one. Hence, all the above complaints are liable to be dismissed.   Considering the circumstances of the case, we do not award cost in this matter.

In the result, all the complaints are dismissed.      There is no order as to

costs.

C.C. No. 115/2012

List of documents filed by the complainant:

List of documents filed by the opposite parties:-

C.C. No.19/2013

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C.C. No.20/2013

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C.C. No.21/2013

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C.C. No.22/2013

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C.C. No.24/2013

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C.C. No.29/2013

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C.C. No.30/2013

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