1.      Heard Mr. Zaid S. Ansari, Advocate, for the complainant and Mr. Diwakar R. Singh, Advocate, for the opposite parties.

2.      Sanjeeda Salim Bapputty has filed above complaint for directing the opposite parties jointly and severally to (a) make payment of overdue amount of Rs.18124500/- to the complainant with interest @ 18% from the date of the complaint till realization; (b) ensure that location of the premises is restored to the original agreed position; (c) handover the vacant and peaceful possession of the new/redeveloped premises as per original location after obtaining the occupation certificate within such time-frame as this Court deems fit and convenient; (d) restrain the opposite parties from encumbering, transferring alienating and/or creating any third party rights in respect of the new/redeveloped premises; (e) payRs.10 lacs for causing mental agony to the complainant; (f) pay Rs.2 lacs towards cost of litigation (g) pass other such reliefs which this Hon’ble Commission may deem fit and appropriate.

3.      The complainant stated that opposite party No.1 is a private limited company registered under the provisions of Companies Act, 1956 and is engaged in the business of development/redevelopment of real estate. Opposite party No.2 is the Managing Director of opposite party No.1 and opposite parties Nos.3 to 5 are its Directors. The complainant is the tenant for the last 22/23 years and paying rent to the owner of property known as “Hil-Ruf” bearing plot No.226, CTS No.C/825, St. Andrews Road, Pali Naka, Bandra (W), Mumbai 400050, Maharashtra. In the month of November, 2016, opposite party No.1 purchased the ownership rights of the said property due to which the complainant automatically became the tenant of opposite party No.1. In order to demolish the old construction and redevelopment, opposite party No.1 approached the complainant to surrender her tenancy rights and in lieu thereof it offered a flat consisting of two bedroom, one hall, one kitchen and two bathrooms, admeasuring 625 sq. ft. carpet area in the new/redeveloped building. On the basis of the assurances and representations of opposite party No.1, the complainant agreed to accept its proposal. It was also agreed that the complainant shall also be given one car parking on the ground floor and the building shall be road facing and the complainant shall be given ownership rights over the flat in question. The complainant and opposite party No.1 entered into an agreement dated 18.03.2007. The development agreement inter alia provided that the entire work of redevelopment will be completed within 18 months from the date of issuance of commencement certificate with a grace period of 6 months. Opposite party No.1 took/accepted possession of the old building from the complainant on 14.08.2008. The opposite parties also paid Rs.567000/- to the complainant towards rental compensation for 18 months from March, 2007 to August, 2008. In the early 2008, the opposite parties informed the complainant that they have obtained commencement certificate for construction of the new building. The opposite parties did not comply with the terms & conditions of the agreement and despite expiry of 24 months the opposite parties failed to complete the construction work. Each and every time, they informed that the redevelopment work would be completed within the agreed time and possession of the premises be handed over to the complainant shortly. The opposite parties cited the reasons for delay to be internal administrative reasons and the government policies. As per agreement, the opposite parties are liable to pay 15% escalation on “year to year basis” on the amount of Rs.567000 with effect from the date of expiry of 24 months (14.08.2010) with interest @ 18% thereon. As per clause 6 of the agreement, the opposite parties are also liable to pay Rs.7500/- per day from 14.08.2010. The opposite parties are liable to pay a total sum of Rs.18124500/- to the complainant as on 31.12.2016. The complainant came to know through an application under Right to Information Act that the opposite parties have changed the building plan from road facing to interior portion. The complainant also apprehends that the opposite party may create third party interest in the premises of the complainant. The complainant sent a legal notice on 24.09.2016 to the opposite parties mentioning the above facts. The complainant also lodged an FIR on 04.11.2016 against the opposite parties with the local police station. Thereafter, the complainant filed the instant complaint on 27.02.2017.

4.      The opposite party filed its written reply on 07.03.2019 and contested the matter. The facts relating to purchase of ownership rights of the building “Hil-Ruf” and the date of agreement have been admitted. It is stated that the opposite parties received the commencement certificate on 06.03.2010. One of the tenants of the old building (Mrs. Manju Thakur) was not ready to surrender her tenancy rights to the opposite parties. She also filed civil suit No.1227/2007, which was withdrawn by her in the year 2009 when the opposite parties entered into a settlement agreement with her. The opposite parties could not start the construction work due to the civil suit filed by Mrs. Manju Thakur. Further, the DCR Rules (Development Control Regulations) changed in the year 2012 due to which the sanction plan was changed for which the opposite party got certain permissions from various authorities, causing further delay in the construction work. All the tenants including the complainant were duly informed about the same. The opposite parties several times tried to convince the complainant to accept the rent but she refused. The opposite parties completed the construction work and got completion certificate dated 01.09.2017 in the month of September, 2017. Thereafter, the opposite parties requested the complainant to take possession of her flat but for the reasons best known to her, she refused to take possession. The opposite parties have never denied to pay rent till the date of occupancy certificate. They have also paid a sum of Rs.567000/- as rent to the complainant. Delay has occurred due to change in DCR Rules the civil suit filed by Mrs. Manju Thakur, which was beyond the control of the opposite parties. There is no provision for escalation in rent @ 15% “year to year basis”. The opposite parties also took preliminary objection stating that the complainant does not qualify to be a consumer under Section 2 (1) (d) of the Consumer Protection Act, 1986 as she failed to substantiate the allegation of deficiency in service. The opposite parties have not committed deficiency in service and the complaint deserves to be dismissed.

5.      The complainant filed Rejoinder Reply, Affidavit of Evidence of Mrs. Sanjeeta Salim Baputty and documentary evidence. Opposite parties have filed written synopsis of arguments.

6.      I have considered the arguments of the counsel for the parties and examined the record. It is admitted by the parties that the agreement was executed on 18.03.2007. Commencement certificate was obtained by the opposite parties on 06.03.2010. According to the agreement, possession was to be handed over within 24 months from the date of obtaining the commencement certificate. Therefore, possession was to be handed over upto 06.03.2012. In the written arguments it is submitted that due to change in the DCR Rules in the year 2010, the opposite parties had to change the layout plan. However, in the written version, it is stated that the DCR Rules were changed in the year 2012. Since the possession was to be handed over in March, 2010, the opposite parties were expected to obtain the completion certificate in the beginning of 2012. Therefore, change in DCR Rules in 2012 does not affect the timely possession of the flat to the complainant. Moreover, the opposite parties have not specified as to when DCR Rules got changed in the beginning, in the middle or in the end of the year 2012. As far as delay due to civil suit filed by Mrs. Manju Thakur is concerned, she had withdrawn the civil suit in the year 2009 and surrendered her tenancy rights in 2009 itself, before obtaining the commencement certificate by the opposite party. Therefore, delay on this ground is not acceptable. The argument of the opposite parties that they completed the construction and offered possession in the year 2012 is not acceptable for the reason that offer of possession without obtaining the completion certificate and occupancy certificate is not a valid offer of possession. It is their own admission of the opposite parties that the occupancy certificate and completion certificate were obtained on 01.09.2017. Therefore, the opposite parties are guilty of deficiency in service and liable to pay delay compensation to the complainant. Regarding the question of limitation, it is relevant to mention that as the opposite parties obtained occupancy certificate on 01.09.2017, the cause of action was continuing and the complaint was within limitation period. As far as quantum of compensation is concerned, the complainant alleged that as per clause 6 of the agreement, the opposite party is liable to pay Rs.7500/- per day from due date till the date of possession. The opposite parties state that they are liable to pay Rs.7500/- per month instead of per day and “per day” is a typographical error. It is obvious that Rs.7500/- per day cannot be a penalty and I agree that “per day” is a typographical error and the complainant is eligible for penalty @ Rs.7500/- per month as per agreement, from the due date of possession till the date of offer of possession after obtaining the occupancy certificate. As far as restoration of location of the redeveloped premises is concerned, the opposite parties had to change the sanctioned plan according to new DCR Rules. Therefore, this prayer of the complainant cannot be accepted. The complainant also sought Rs.10 lacs towards damages for mental agony. Supreme Court in DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda, (2020) 16 SCC 318, held that compensation cannot be awarded in various heads. As far as period of compensation is concerned, the opposite parties stated that after obtaining the occupancy certificate they have offered possession many times but she refused to accept the possession every time. The opposite parties have not filed any evidence to prove that they had offered possession after obtaining the occupancy certificate. On the other hand, the complainant has made a specific prayer in the complaint that the opposite parties be directed to handover peaceful possession of the premises in question. Therefore, the complainant is entitled for compensation from the due date of possession till the offer of possession.  

O R D E R

ln view of aforesaid discussions, the complaint is partly allowed with cost of Rs.50000/-. Opposite parties are directed to execute the conveyance deed in favour of the complainant and handover possession, after obtaining the occupancy certificate within two months. They are also directed to pay compensation @Rs.7500/- per month with escalation of 15% per year after 18.06.2017 till the date of offer of possession, within two months.