Per Mr.S.R.Khanzode, Hon’ble Presiding Judicial Member.
Heard Mr.S.V.Shirsat-Advocate for the appellant.
Perused the record including the impugned order. Respondent/original complainant –Sou.Renu Navin Singh (herein after referred as ‘complainant’) filed a consumer dispute against the Appellant/original opponent (herein after referred as ‘builder’) for deficiency in service for defects in construction as well as delay in giving possession of flat and for not giving Occupation Certificate. The Forum partly allowed the consumer complaint and directed builder to make available Occupation Certificate to the complainant and also awarded compensation of `25,000/- for delayed possession. Feeling aggrieved thereby, the builder preferred this appeal.
Admittedly, Occupation Certificate is yet to be given to the complainant. Therefore, cause of action for the same is continuous and direction given accordingly by the forum, as per impugned order, to obtain and hand over Occupation Certificate to the complainant cannot be faulted with.
In respect of compensation of `25,000/- which is awarded for delayed possession, it is submitted on behalf of the appellant that since the possession was obtained on 26/02/2000, the consumer complaint filed alleging deficiency in service on the part of handing over delayed possession is not maintainable and barred by limitation since the consumer complaint was filed on 28/03/2003. It is also submitted that if actionable relief is barred by limitation, there arise no question of granting compensation for the same i.e. deficiency in service for delayed possession.
It is a case for delayed possession which is delayed by almost three years referring to the clause in the agreement. It is stated on behalf of the builder that possession was offered in the year 1997, but actually it was taken by the complainant in the year 2000 and, thus, the builder is not responsible for the alleged delay in handing over the possession. But in view of section 3 of Maharashtra Flats Ownership Act 1963 (‘MOFA’ in short), the possession itself cannot be offered or taken legally without any Occupation Certificate. So in the eyes of law even if physical possession was given, the possession is under shadow of this shortcoming on the part of the builder. Admittedly, Occupation Certificate is also not given and without which the flat purchaser, namely, the complainant certainly faces not only inconvenience but his legal possession is affected by the same. Under the circumstances, even though the forum in an operative part of the impugned order mentions that the compensation of `25,000/- was given for delayed possession. Looking into these aspects mentioned earlier, we find there is no reason even to disturb this finding of granting compensation of `25,000/-. For the reasons stated above, we find the appeal devoid of any substance and holding accordingly we pass the following order:-
ORDER
Appeal is not admitted and stands rejected accordingly.
Copies of the order be furnished to the parties.
Pronounced on 15th September, 2011.
