Per Hon’ble Mr.S.R.Khanzode, Presiding Judicial Member
These two consumer complaints since involves identical facts and common question of law are disposed of by this common order.
Opponent -Lok Housing & Construction Ltd. is a builder/ developer (herein after referred as ‘builder’) and was developing a residential project at Mulund (West), Mumbai. Said project was known as ‘Lok Everest’ situated at Jata Shankar Road, Mulund (West), Mumbai 400 082. In the said project, complainants from complaint no.65/2008 viz.Mr.Pranlal D. Shah and his son Mr.Harshad P. Shah booked a flat bearing no.601 situated in building C-1 and having area of about 793.95 sq.ft. carpet. The price fixed was `11,57,000/-. The price was entirely paid and, accordingly, allotment letter dated 03/04/1996 was issued in favour of the flat purchasers viz. complainants. In addition to it for a parking space `50,000/- were paid on 17/08/1996. By its communication dated 12/10/2000, the builder communicated expected date of possession as 31/07/2003. However, the possession was not handed over accordingly. Agreement to sale is witnessed by a registered agreement which was registered on 07/12/2006. On 27/03/2005 property tax regarding the flat of `34,155/- was paid. Since the possession is yet to be handed over, the consumer complaint was filed inter-alia claiming the possession of flat and compensation of `50,50,320/- for delay in delivering the possession. Further relief claimed is refund of amount of `34,155/- i.e. tax paid with interest @ 18% p.a. and `11,00,000/- as damages for anxiety, mental agony, causing family disturbance and trauma of travelling about 30 k.ms everyday. Besides this, `6 lakhs were claimed as expenses for this litigation.
As far as complaint no.66/2008 is concerned, same is filed against the builder -Lok Housing and Construction Ltd. by the complainants- Mrs.Rajul Harshad Shah and Mrs.Bela Harish Shah (who are daughter-in-laws of complainant -Pranlal D. Shah from complaint no.65/2008) who booked a flat bearing no.602 situated in building C-1 at Lok Everest and having an area about 790.00 sq.ft. carpet. Total agreed consideration was `18,54,000/- and on payment of the same allotment letter was issued on 03/04/1996. In addition to it `50,000/- were paid for open parking space on 17/08/1996. Builder offered possession of the flat to the complainants by its letter dated 28/02/2006 and also demanded an amount of `2,08,990/- towards the share capital & entrance fee and various deposits, etc. as per the break up given in the annexure to the said letter. The builder further informed by its letter dated 25/10/2006 to the complainants about receipt of occupation certificate. Agreement pertaining to the flat was executed on 14/03/2007 and was registered on 26/04/2007. However, since the possession was not delivered, consumer complaint is filed inter-alia claiming the relief of possession, compensation for delay in giving the possession @ 2% simple interest per month w.e.f. 01/04/1997 till filing of the complaint amounting to `50,49,000/-. Further, damages of `5,00,000/- for the anxiety and mental agony as well as for trauma of travelling from Nasik to Mumbai and `6,00,000/- as expenses, are also claimed.
Opponents by filing their written versions in both the consumer complaints, opposed both the consumer complaints. They first took up the issue that the complainants are investors, which according to them could be inferred amongst others from the fact of obtaining a written assurance of 2% reduction of rate in the letter of allotment. It is also alleged that mentioning of 2% rebate for the delayed possession was done under pressure from the complainants since the complainants were pressing for refund of entire amount beyond March 1997. As far as complaint no.65/2008 is concerned, it is alleged that possession of the flat was delivered to the complainants in the year 21/04/2004. In respect of flat no.601 (complaint no.65/2008) there is a balance of consideration of `7,06,000/- and the receipt on which the complainants rely does not pertain to the flat in question. The project was delayed due to recession in the construction industry. It is also further denied that it was verbally agreed between the parties that the amount of `2,09,930/- towards the amenities were agreed to be adjusted against the delayed possession. The builder company was for some time declared as Relief Undertaking under the provisions of BRU and, therefore, all the proceedings were stayed by operation of law. It may be clarified at the outset that such stay is no more effective and, therefore, as submitted by the builder itself, complaint herein could proceed further.
We heard both the parties at length. Considered the affidavits in evidence filed in the respective complaints.
Considering the totality of the circumstances and the material placed on record of both the complaints, it appears that complainant –Pranlal D.Shah from complaint no.65/2008 was actually dealing with the builder in respect of transactions of both the flats covered by both these complaints. As far as statement of the builder that complainants are not the real flat purchasers but are investors, we find the builder failed to establish their such allegation. Builder wanted to brand transaction as investment based upon the alleged mention of rebate of 2% in the allotment letters which according to builder was a term incorporated under pressure brought by the complainants. We find such inference, perhaps, considering totality of the circumstances and in view of the registered agreement executed later on cannot be inferred. In fact, such allegation is not much pressed at the time of argument.
As far as mention of rebate @ 2% is concerned, on the basis of which hefty compensation is claimed in both the complaints, we find though it is so mentioned in the respective allotment letters, still since terms of sale of the flat gets merged with the registered agreement executed later on and where such term of rebate is absent; we find as per the settled or concluded contract between the parties, no such rebate @ 2% is payable and, therefore, to claim compensation on the basis of such term cannot be granted.
Further, at this stage itself, we would like to mention that besides directing handing over the possession, alternatively, we are considering to grant compensation at the prevailing market rate as an alternative relief, infra, and, therefore, complainants would also get benefit of escalation of prices or would get suitably compensated in case possession of respective flats is not delivered to them.
Admittedly, the project was stalled for one or more reasons. Complainants were well aware of the circumstances as revealed from the material placed on record. Correspondence between the parties placed on record further shows that the delay in handing over possession was not much objected or viewed as such by the complainants. In the year 2000 witnessing the improvement in the situation, progress of the building was further started and the builder expressed hope to hand over the possession (by its letter dated 12/10/2000) by 31/07/2003. However, same could not be given. Completion of the building was ensured only in the year 2006 and the occupation certificate was obtained on 25/10/2006. In the meantime, complainants perhaps even paid their share of property tax by depositing the said amount with the builder. However, that would be a subject matter of actual tax paid when assessed by the Corporation and of which complainants can always claim the accounts from the builder.
It appears that some dispute regarding payment between the complainants and the builder arose for some time. In complaint no.65/2008, payment witnessed by a receipt for `7,06,000/- was disputed. However, we find that said receipt was duly issued for M/s.LAN Constructions Co. Pvt.Ltd. by Mr.Lalit Gandhi, who is the Chairman of the opponent/builder. It is the projection of the complainant that said receipt was for the payment towards the part of consideration of flat no.601 but the builder preferred to issue receipt in the form signing the same for M/s.LAN constructions Co. Pvt. Ltd. Under the circumstances, it is for the builder since they possess the information in respect of builder company as well as M/s.LAN Constructions Co. Pvt.Ltd. through their Chairman Mr.Lalit Gandhi to explain these circumstances, which they failed to do and, therefore, we find no reason not to accept the case of the complainants that payment of `7,06,000/- witnessed by the receipt in question is actually towards the payment against the purchase price of flat no.601.
It may be further stated that as per the clause no.10 of the respective agreements, `2,09,930/- were payable at the time of delivery of the possession. Complainants submitted that it was orally agreed to adjust these amounts against their claim for delayed possession. Builder disputed the same. However, considering totality of the circumstances and, the fact of non delivery of the possession even after 2006 after the occupation certificate is obtained, we find it proper to hold that this amount of `2,09,930/- is not payable to the builder by the complainants at the time of taking possession of the flat and possession could be handed over in spite of insisting for such payment.
In the course of arguments, at Bar, it was submitted that the flats are no more available for being physically handed over to the complainants. Therefore, we take into consideration this factor to grant alternative relief of monetary compensation in case flat is not delivered. We find it proper and just to award such compensation should be at par with the current market prices. There is no current rate of flat prices available. However, for this purpose we take into consideration the property prices at various localities published in ‘Times of India’ in its Saturday edition (October 27, 2012 Issue) wherein capital value per sq.ft. of the property at Mulund (West) is shown as between range of `10,700/- to `13,500/-. We do not know the exact location as relevant to capital value in the above referred information of which due notice can be taken but in the given circumstances, we find it proper to award compensation considering the rate per sq.ft. at `12,100/- which is an average of property prices of Mulund (West). For the reasons stated above, we hold accordingly and pass the following order:-
ORDER
Consumer complaints are partly allowed.
In Consumer complaint no.65/2008:
Opponent/Builder shall hand over habitable possession of the disputed flat no.601 in building C-1 of Lok Everest project, Jata Shankar Road, Mulund(W), Mumbai 400 082 to the complainants and complainants to receive the same.
ALTERNATIVELY
Opponent/Builder shall pay compensation of `96,07,400/- to the complainants in lieu of handing over possession of the flat.
Opponent/Builder to bear its own costs and pay `25,000/- as costs to the complainants.
In Consumer complaint no.66/2008:
Opponent/Builder shall hand over habitable possession of the disputed flat no.602 in building C-1 of Lok Everest project, Jata Shankar Road, Mulund(W), Mumbai 400 082 to the complainants and complainants to receive the same.
ALTERNATIVELY
Opponent/Builder shall pay compensation of `95,59,000/- to the complainants in lieu of handing over possession of the flat.
Opponent/Builder to bear its own costs and pay `25,000/- as costs to the complainants.
Pronounced on 30th October, 2012.
