Per Mr.Narendra Kawde – Hon’ble Member:
1. This consumer complaint has been filed by the Complainant alleging deficiency in service against Mrs.Hemanti Deepak Kulkarni, Authorised signatory and (2) D.S. Kulkarni Ltd. Co. (hereinafter referred to as the ‘builder developer’) for not delivering the possession of flat purchased by the Complainant under the registered agreement within a stipulated period with occupancy certificate. The Complainant has prayed for the possession of the flat and alternatively refund of `65,81,000/- with interest @24% per annum, `8,00,000/- with interest @18% per annum on account of expenditure made, `7,00,000/- towards compensation for mental torture and mental agony and cost of litigation of `1,00,000/-.
2. Admittedly, the Complainant jointly with his wife Mrs.Saba Parvez Kadge purchased Flat No.903 on 9th Floor, B-2 Wing, (on D.S.K. Madhuvan Project) by registered agreement dated 28.07.2008. The total agreed consideration is `65,81,000/-. The Complainant has paid the amount of `61,74,980/-. Legal possession of the flat was to be delivered by end of December, 2008. Possession was delayed and yet not delivered to the Complainant and all the efforts and persuasions of the Complainant for delivery of the possession proved to futile. Aggrieved thereby this consumer complaint is filed seeking the reliefs as narrated in opening paragraph of this body of the order, supra.
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3. Builder developers were served and appeared in the case. Filed written version inter alia denying the allegations of the Complainant and prayed for rejection of the complaint under section 26 of the Consumer Protection Act, 1986, as vexatious and unfounded by imposing fine on the Complainant. The builder developer shown the willingness to refund of `61,74,980/- received on account of the purchase of the said flat by deducting stamp duty and registration charges. Further, it is the case of the builder developer, the flat possession could not be delivered as stipulated in the registered agreement by end of December, 2008 due to threefold difficulties hampering the construction of the project. First, non-availability of skilled workers due to Marathi agitation in Mumbai. Secondly, directions of Municipal Corporation of Greater Mumbai for construction of ramp and culvert and thirdly, stay granted by the Hon’ble High Court, Mumbai in Writ Petition No.2113 of 2008.
4. Heard the Ld.Advocates of the parties, perused the record placed before us and the affidavit in evidence led by both the parties. A legal notice issued by the Complainant for delay in handing over the possession was appropriately replied by the Opponent builder developer. The first notice regarding intention of the Complainant to cancel the agreement was also replied as the intention to cancel the registered agreement was without any reason. It is stated across the Bar that rest of the flat purchasers in the project have occupied their respective flats as occupancy certificate from the competent authorities already obtained. It was also stated that after paying the balance of `4,06,020/- with interest (agreed consideration `65,81,000 – `61,74,980/-) by the Complainant the flat possession would be handed over. However, the demand of the Complainant to claim interest on account of delayed possession as argued by the Ld.Advocate of the Opponent is not justifiable for the reason that for long period of almost thirteen months there was stay received from Hon’ble High Court resulting into delay in completion of the project Municipal Corporation orders were finally issued on 20.11.2009. Thus, crucial period from the date of stay on 17.09.2008 till 20.11.2009 could not be utilized to make progress of the construction owing to the stay received from the Hon’ble High Court. However, no explanation coming forward for the delay beyond the period under litigation allegedly cause due to agitation of Marathi. Therefore, we hold that there is delay in handing over the possession. At the same time, we noticed from the record available before us that as against the agreed total consideration of `65,81,000/-, the Complainant has paid `61,74,980/-. The Complainant owes to pay the balance amount of `4,06,020/-. The notices were issued demanding the balance consideration together with interest. However, it is made clear that the possession is delayed for almost three years excluding the period under litigation before Hon’ble High Court. No convincing explanation is on record from the Opponent builder developer to account for this delay. In the interest of justice it will be appropriate that the balance consideration of `4,06,020/- is paid without any interest by the Complainant prior to handing over the disputed flat. At the same time in view of the failure on the part of the Opponent builder developer no case has been made out to charge interest on balance receivable from the Complainant. The fact remains that legal possession has not been so far handed over to the Complainant.
5. Argument of the Ld.Advocate of the Opponent builder developer is that the wife of the Complainant as co-purchaser of the flat is not a party to the complaint. It is true that the Complainant as a husband filed this consumer complaint though wife of the Complainant is also party for execution of the agreement. Complainant in his capacity as a husband interested as joint purchaser of the flat has filed this complaint. Moreover, as per the policy of the Government, the name of the wife in purchase of the house property is required to be incorporated jointly whenever transaction of the property takes place. Therefore, even though the agreement is in the joint names and the name of the wife is not added in the consumer complaint the ultimate result of the complaint is going to affect the husband and wife both equally. In view of this, the complaint cannot be defeated or rejected on this technical ground. We, therefore, do not agree with the submissions of Ld.Advocate of the Opponent builder developer on this count.
6. In view of the observations made above, we hold that the Opponent builder developer has incurred deficiency in service in not delivering the possession of the disputed flat to the Complainant. Therefore, direction for handing over the possession after receiving balance consideration towards full and final settlement of agreed consideration to the Opponent builder developer will meet ends of justice. The alternate prayer of the Complainant is for the refund of total consideration paid with interest @24% per annum. In case Complainant is not interested to obtain the possession by paying the balance consideration this option will be at the discretion of the Complainant. We hold accordingly and pass the following order:
O R D E R
(i) Complaint is partly allowed.
(ii) Complainant is directed to deposit with the Opponent Builder Developer balance consideration of `4,06,020/- within a period of 15 days from the date of this order and if the Opponent builder developer refuses to accept this amount then in such case within a period of eight days from thereafter the Complainant shall deposit the said amount with the State Commission.
(iii) Opponent builder developer is hereby directed to handover to the Complainant vacant and peaceful possession of Flat No.903, 9th Floor in B-2 Wing of DSK Madhuban Project situated at Plot No.06 at Andheri Kurla Road, Mumbai, within a period of 15 days from the date of deposit of the balance consideration amount by the Complainant as ordered hereinabove.
OR
Alternatively, the Builder Developer is directed to refund amount of `61,74,980/- together with interest @18% per annum thereon from 23.09.2009 (i.e. date of filing the complaint) to the Complainant within a period of 60 days from the date of this order.
(iv) Opponent builder developer is directed to pay `50,000/- for mental agony and `50,000/- for costs of litigation.
(v) Rest of the prayers of the Complainant stand rejected as not specifically admitted.
Pronounced on 26th February, 2013.
