Passed  by Shri Atul D. Alsi, Hon’ble President.

1. Complainant has filed complaint case against O.P’s builders and developers for the failure to handover the possession of flat and failure to provide amenities as promised in agreement to sale and wilfully avoided and neglected to execute sale deed and thereby claiming possession and execution of sale deed along with compensation and cost of litigation.

The story in short.

2. The complainant is a citizen of India and consumer within the meaning of 2(7)(i)(ii)12 of Consumer Protection Act, 2019 and agreed to purchase flat a bearing No. M-103 in the tower namely  “ MILANO ” housing project located at Mouza-Chinchbhavan bearing Kh.No.-25, Wardha Road, Nagpur for residential purpose in the flat scheme launch by respondent builders admeasuring a flat 1033.10 Sq.fit carpet area excluding wall area deck area and balcony area admeasuring 2144.58 sq.ft. on 1st floor alongwith parking facility and other amenities for total consideration of amoun t of Rs.79,93,922/- and complainant has paid total consideration of Rs.68,55,668/- to the O.P’s. and assured the complainants about timely possession and amenities as per specification mentioned in the broacher and other incorporated terms. The O.P’s. have orally told to the complainant and assured that certain permission will be obtained from the Government department and all formalities will be completed before actual date of delivery of possession till end of December-2017.  The O.P’s. are failed to handover the possession and not executed sale deed till filing of the complaint inspite of receipt of majority of amount and therefore failed to discharge there liability as a part of the contract and false assurances. The O.P’s. assured to provide amenities like Swimming pool, Barbeque Pavilion, Jogging and Cycling track, Amphitheatre, Therapeutic Walk, Gym, Spa Yoga/Aerobics Indoor Games Like Squash court, Badminton Court etc. as per agreement at the time of booking of flat but failed to provide and wilfully avoided and neglected to execute sale deed, therefore complainant has suffered huge financial loss. Therefore the complainant filed a complaint before RERA authority  for consideration but the O.P’s. failed to comply the promise as per agreement to sale, therefore present complaint is filed for the possession and execution of sale deed and praying for interest @ 24% p.a. for amount paid or in alternative direct the O.P’s. to pay future loss charges and enhanced expenses for registration and stamp duty alongwith compensation for mental and physical torture amounted to Rs.10,00,000/-  for the cause of action arose at the time of booking of flat and payment of consideration and non delivery of possession and execution of sale deed as continuous cause of action within the jurisdiction of  Nagpur as prayed in complaint.
3. O.P, Nos.1 and 2 had filed their written statement and denied the allegation against them and submitted that the respondent owns approximately 42 Acre land in city survey No.78,79 & 88 at Mouza - Chinchbhavan, Kh.No.25, 29, 30, Nagpur and proposed to develop approximately 400 residential apartments in 5 towers.   The O.P’s. had completed construction of its 4 towers in May-2017 and the finishing work was remaining. The deadline for completion as per RERA act was December-2018. The respondent was well within the time for handling over possession of flats.  However due to cancellation of aviation No Objection Certificate in August- 2017 and rejection of its appeal in May-2019 and rejection of occupancy certificate from Nagpur Municipal Corporation on the ground of pendency of Writ Petition bearing No.7635/2019 before the Hon’ble Bombay High Court, Nagpur bench and thereafter the circumstance compile the respondent to file another Writ Petition bearing No.1473/2020 in March-2020 to issue part occupancy certificate. The O.P’s. applied for aviation of No Objection Certificate from Airport Authority of India in the month of February-2012 and after all due process No Objection Certificate was granted on 2.3.2012 for the period of 5 years and at the time of renewal the Airport Authority has arbitrary cancelled the No Objection Certificate on dated 9.8.2017 without calling any explanation and without considering   para-16 in Height Rules,2015. On 13.3.2018 the O.P’s. filed appeal under Height Rule Act,2015 before the Chairman of Appellate Committee and also filed additional appeal on 15.5.2018  but the appellate authority had without opportunity of hearing failed to consider the appeal therefore requested to review its decision dated 23.4.2019 in the light of additional fact discovered in review application dated 27.6.2019. The O.P’s. submitted that the project was in progress within RERA time line for completion in the year 2018.  The O.P’s. submits that  if O.P’s. granted No Objection Certificate for lower height the  O.P’s. would have constructed 6 buildings instead of 5 buildings in the instant case. The increase in the height of the building increases the structural cost going to very high rise building may be viable for the places like Mumbai where the lands scare and selling prices are exorbitant high. But the same neither desirable nor practical in Nagpur the No Objection Certificate can be cancelled by Airport authority in two conditions when figures provided in the application for grant of No Objection Certificate are wrong and the buildings are in obstruction to the flight operations,  the fact or data provided in the application for grant of No Objection Certificate are wrong and it must be established the building are an obstruction to the flight operations before No Objection Certificate can be cancelled. Due to cancellation of No Objection Certificate and coverage in the local area created adverse publicity for project and irresponsible comment by few officers by airport authority created negative sentiments and stop the buyers making further payment which were required for construction and timely completion and handover of the project. The airport authority in its order dated 3.5.2019 permitted aviation of 4 towers and there is no issue relating to validity and legality for construction of 4 buildings to the extension of permissible height given alongwith approval from various agencies like Fire, Pollution Water, Electricity, Revenue Tax have been obtained for the building name as “Milano Splender”, 1 and 2 and “Palazzo”. The O.P. has follows all procedure and required approvals or commencing construction of the project and try to complete the project work of the building in all aspect today and there is delay in handover is only due to inability on the part of Nagpur Municipal Corporation to issue Occupancy Certificate and all these facts were known to complaints and as well as flat buyer and entire building is ready to use as the building was being used for “ Corona patient ”  as a “  Corona Centre ” by Nagpur Municipal Corporation. The O.P.s submitted that barring the 4 Occupancy Certificate all other term and condition and faculty obligation are being compiled by O.P’s. as per agreement of sale. The date of possession can be extended as per clause 18 sub clause 1 to 9.  The O.P. has no control over the non issue of Occupancy Certificate. The complainant has not fulfilled their agreement as per the agreement of sale many times and have failed to make payment on time as per annexure-14. Therefore O.P.’s are not at fault and liable for any compensate and interest and any charges for delay which is beyond control and unintentional on the part of O.P.’s therefore the said complaint is liable to be dismissed with cost.
4. The counsel for complainant Advocate Mr. Majithia argued that the O.P.s assured the complainant about timely possession and amenities as per specification mentioned in broacher and other incorporated terms such as letter of intent dated 8.3.2013 registered agreement to sale, the complainant has paid the total consideration of Rs.78,55,668/- from time to time for the allotment of flat M-103, but O.P.s failed to deliver the possession of flat as well as execution of sale deed and promise to deliver possession after completion of formulation from the permission and complete the construction before actual date of delivery of possession in the end of December – 2017. At the time of booking of flat the complainant assured to provide amenities by Swimming pool, Barbeque Pavilion, Jogging and Cycling track, Amphitheatre, Therapeutic Walk, Gym, Spa Yoga/Aerobics Indoor Games Like Squash court, Badminton Court etc. an indoor amenities but O.P.s failed to provide the amenities and possession and execution of sale deed till today as there is appreciation of value of property. Therefore the complaint is prying for an amount of interest at @24% p.a. on the consideration amount which is paid by the complainant to O.P.s or in alternative to direct the op to handover the possession flat and execute sale deed and further directed to pay future loss charges in enhance expenses and stamp duty. Due to non compliance of agreement to sale the complainant has suffered mental and physical harassment and therefore claiming Rs. Ten Lac alongwith the cost legal proceeding including non enjoyment of amenities therefore claiming Rs.5,00,000/- for the deficiency in service or in alternative direct the O.P.s to refund the total consideration along with 24% p.a. interest from the date of booking till realisation and declare the complaint is entitled to claim amount of inflation from 2012 till refund of the total consideration. Otherwise direct to give possession execution of sale deed within a span of one month with occupancy certificate it bare the expenses for registration and other charges.  The complainant is ready to take possession once the complainant has paid the consideration amount it is the duty of builder to act as per agreement of sale and to execute the sale deed otherwise liable for the interest @24% of consideration amount.   The complainant has to pay the interest on the loan amount to the bank without enjoying the fruits of the property.  The O.P.s are bound to provide the facilities as per agreed terms. The complainant has paid nearly 80% of consideration amount and ready to pay the balance amount at the time of possession of flat but till date no possession without condition was offered by O.P.s therefore compliant may be allowed in terms of prayer as per complaint.
5. The counsel for O.P.’s Mr. Raj Aahuja argued that the reason for not giving occupation /possession of flat due to non issuance of Occupancy Certificate by Nagpur Municipal Corporation because of objection raised by Airport Authority of India about height of building for the first time on dated 9.8.2017 as Nagpur Municipal Corporation had also granted permission of construction of towers in 2012 itself with condition that the construction was to be made within period of 5 years.   In February-2017 the O.P.s applied for renewal of No Objection Certificate which was getting lapsed on March-2017 for the project was to be completed in the year-2018 but unfortunately No Objection Certificate from the AAI without opportunity of hearing unilaterally revoke on dated 9.8.2017 therefore appeal filed before Chairman of Appellate Committee alongwith necessary application was moved before member of Airport Navigation Services for revalidation of No Objection Certificate till 2020.  Thereafter the O.P.s filed Writ petition and various appeals before appropriate authority. The O.P.s submitted that all procedure and representation alongwith appeals were filed for getting approvals with intention to commence construction. Due to lot of adverse publicity the flat purchaser fail to pay the balance consideration for construction therefore the O.P.s were required to raise loan of Rs.125 crores from bank to complete construction as per commitment, therefore there is no negligence and unfair trade practice on the other hand the complainant fail to pay the balance consideration amount as per payment schedule therefore liable to pay interest on the late payment and therefore complainant is not entitled for claim of interest and compensation for non completion of construction as promise in agreement due to the circumstance which is beyond control of O.P.s. The O.P.s further submitted that during Carona Virus Nagpur Municipal Corporation took 4 towers with all facilities in constructed 4 towers as the quarantine centres. Therefore 4 building are ready in all respect but inspite of that the purchasers stop paying instalments.  As to quality of construction there is no dispute or allegation made by the complainants in complaint or there is no material to establish the towers were not in conformity with the design. The O.P.s further submitted that after continuous efforts and redressal before Judicial and Quasi Judicial Authority, the Nagpur Municipal Corporation issued letter on dated 17.8.2022 which is filed at serial no.45 in respect of issuance of occupancy certificate to the purchaser up to 11 floor with condition that if the purchaser give under taking that in future if required, to demolish 12 to 14 floor,  they will vacate their respective premises during the period of dismantling the said three floors i.e. 12 to 14 floors and about 226 purchases have given undertaking and in the month of August-2022, total 55 people have taken possession. The complainant was also served with letter for giving undertaking for issuance of Occupancy Certificate as per document at Sr.46. The complainant decline to given such undertaking till the date without any bonafide reason.  Therefore the O.P.s are not in fault in delivery of possession of flat in the given circumstances.  As per term No.18 of agreement to sale it was agreed between the parties that possession of premises was to be delivered subject to obtaining Occupancy Certificate part of full from Corporation Authority.   The reason for delay in handling over the possession of flat can saddled beyond control an enforcing therefore as per Section 32 of Contract Act the contract is contingent contract the execution of such contract is uncertain and depend upon future event and cannot be enforce by law unless that event has happen.  The complainant has never resigned the Contract of Agreement to sale therefore complaint is stop to ask any other relief.  When the complaint was aware of the fact that only on getting the undertaking as per term and condition of Municipal Authority possession can be delivered and declining on the part of complainant to give undertaking would to default and therefore breach on the part of complainant to perform the agreement of sale deprived of claiming any other relief as a reciprocal promise.  In case the delivery of possession of flat is deprived of because of order of court or due to act of authority in that case delayed possession cannot be attributed as deficiency in-service as held in Apex Court judgment in Ghaziabad Development Authority Vs. Balbir Singh, in Appeal No.7173/2002.   It was held unless and until deficiency is establish forum cannot and should not proceed to determine the loss. The cancellation of No Objection Certificate granted in the year 2012 is on two grounds firstly flouting of basic rules of height clearance and secondly location of existing structure was different than the location in actual data supplied in 2012, therefore disputed condition involved complicated question of facts requiring evidence and cannot be enquired under summary procedure and needs to be decided by Civil Court.   It is well settled that a party getting benefit of escalation in price of land is not entitled for any claim, interest, damaged on the ground of delay in handing over the possession which is beyond the control of O.P.s.  In this facts and circumstances there is no material on record which could establish that at the time of entering into agreement for sale with complainant and even subsequent  thereto any such Unfair Trade Practice have been played by O.P.s in result thereof complaint has failed to established deficiency in service and intentional delay on the part of O.P.s in delivery of possession, it is established by sufficient and cogent and satisfactory material on records, therefore the Commission kindly dismiss the complaint or direct the complainant to give undertaking as per letter dated 17.8.2022 of Nagpur Municipal Corporation further may be directed to take the possession of flat within stipulated period of time from the date and  judgement of order of the case.

                                                      REASONING

6. The complainant has filed complaint case for delay of handling over possession and execution of sale deed for the allotted flat bearing no.M-103, toward bearing splendour” in B wing, for the project known as “ MILANO ” at Mouza-Chinchbhvan, Nagpur after payment of consideration amount of Rs. 78,55,668/-as per agreement to sale executed between the parties by issuing letter of intent dated 14.03.2013 and with assurance for execution of sale deed by paying remaining consideration amount against settle consideration price of Rs.79,93922/-. The O.P.s have constructed 4 towers at their site and complainants flat is located in one of the tower.  The disputes related non delivery of possession of flat within stipulated time as assured in agreement to sale. The reason for not giving occupation/possession of the flat for the reason that O.P.s could not get Occupancy Certificate from Nagpur Municipal Corporation because of objection raised by Airport Authority of India about the height of building for the first time on dated 9.8.2017. Initially on dated 2.3.2012 Airport Authority of India issued No Objection Certificate in the year 2012 for construction of total 5 buildings each having 48 Mtrs. height and Nagpur Municipal Corporation had also granted permission of construction of tower from the year 2012 with condition to complete construction within period of 5 years and till December 2018 and the construction of 5 buildings was to be completed. In February-2017 the O.P.s applied for renewal of No Objection Certificate of Airport Authority of India which was getting laps on March-2017, unfortunately on dated 9.8.2017 Airport Authority of India cancelled No Objection Certificate without hearing to O.P.s. resulted in the cancellation order was challenged in appeal before Chairman of Appellate committee and also member of Air Navigation Services for revocation of No Objection Certificate and needs its No Objection Certificate till 2020. On 3.5.2019 appeal before Chairman Appellate Committee was rejected.  Thereafter O.P. filed Writ petition No.7635/2019 before the Hon’ble High Court against the order of rejection of No Objection Certificate by Nagpur Municipal Corporation came to be filed and the stay was granted and another Writ Petition No.1473/2020 was filed before Hon’ble High Court against the order of non issuance of No Objection Certificate by Airport Authority of India.  Thereafter the Writ Petition were withdrawn with liberty to file fresh.  The two writ petitions withdrawn with permission to file representation before Nagpur Municipal Corporation and Airport Authority of India with a prayer of reconsideration of issue of grant of No Objection Certificate.   Thereafter the Nagpur Municipal Corporation issued a letter dated 17.8.2022 as per document is filed on serial No.45, that the occupancy certificate will be issue provided the purchaser up to 11^th  floor give undertaking that in future if required to demolish 12 to 14 floor they will vacate their respective premises during the period of demolishing.  The 226 purchaser has given undertaking, 206 has received part occupancy certificate, in the month of August-2022, 55 flat owners have taken possession and 20 units of part Occupancy Certificate is in process and 5 people are residing in the township and around 10 to 15 purchaser have started work of interior decoration in their respective flats. The complainant was also served with letter for giving undertaking as required to issuance of occupancy certificate as per document filed at Sr.No.46 but the complainant decline to given such undertaking till date.
7. Due to lot of adverse publicity the purchaser of flats decline to make balance payment therefore O.P.s were required to raise loan of 125 crore from bank to complete the buildings. The constructed buildings were available during Corona Virus pandemic as a Quarantine Centre through NMC.  The flat of 4 towers are ready for delivery of possession in view of issuance of latter order dated 17.8.2022 subject to condition for Occupancy Certificate if the complainant is ready to act upon the condition imposed in the letter issued by the Nagpur Municipal Corporation , the complainant would get the possession of flat ,  it is refusal on the part of complainant to take the possession of flat. In case of delivery of possession of flat is stayed because of order of court and pending adjudication of matters before authorities therefore failure of builders to deliver possession of flat is not intentional act and cannot be attributed at deficiency in service.  In Ghaziabad Development Authority Vs. Balbir Singh, in Appeal No.7173/2002, it was held unless and until deficiency is establish forum cannot and should not proceed to determine the loss. In this case as soon as Nagpur Municipal Corporation issued letter dated 6.6.2022 for possession the O.P.S issued letter to the buyers for furnishing undertaking to take possession, therefore the O.P.’s are not liable for any interest compensation for delayed completion of project.  On the other had the complainant will be benefitted for the increase of value of houses over original price for the period of delayed and when the buyer will get the benefit of increasing price therefore the buyer cannot claim the damages, interest on amount paid towards booking of flat or compensation for the delay.  The is no breach of agreement of sale for delayed possession on the part of O.P.s because the circumstances and litigation were pending and the O.P.’s have taken all efforts with their expenses to complete building and to give possession as early as possible, therefore there is no breach of commitment in performing the contract by O.P.’s, because the contract is contingent depending upon the happing of event that is the grant of No Objection Certificate from Government authorities.  The O.P.s have no control over grant of No Objection Certificate from authorities or courts. As per term No.18 of agreement of Sale it was agreed between the parties that possession of premises was to be delivered subject to obtaining Occupancy Certificate part or full from authorities. The reason for delay is beyond control of O.P.  The contract of handling over the possession of premises is contingent contract. Therefore after happening of event that receipt of Occupancy order the O.P.s are able to handover possession.  The Municipal Corporation have expert Civil Engineer and competent Persons who after inspections of building use to grant certificate by considering all issues for the benefit of users.  Hence there is no intentional delay or ultra virus motive in handling over possession of flats by O.P.s, therefore the complaint is partly allowed as per following order. 

                                                      O R D E R

1. Complaint is partly allowed
2. Complainant is directed to give undertaking for possession of flat as per condition imposed by Nagpur Municipal Corporation letter 17.8.2022 by paying remaining balance amount without interest as per agreement of sale and O.P.No.1 and 2 shall handover the possession to the complainant/buyers and after the completion of formalities the O.P.’s  shall execute sale deed of complainant flat as per terms of agreement of sale.
3. O.P.No.1 and 2 are directed to pay Rs.50,000/- to the complainant towards cost of litigation.
4. Copy of order be furnished to both the parties, free of cost.