BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 24/05/2011

Date of Order : 30/04/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 265/2011

Between

And

O R D E R

A. Rajesh, President.

1. Briefly stated, the case of the complainant is as follows :

On 19-12-2006, the complainant booked a 3 bed room flat marked as 504 E with car park in the project of the opposite party by name DD Golden Gate, Tower-5. On account of that on the same day, he entered into an agreement with the opposite party and paid a sum of Rs. 3,11,500/-. As per the agreement, the opposite party agreed to hand over the possession of the flat by September 2009. The complainant paid the total cost of the flat amounting to Rs. 22,85,000/- as per the agreement. The opposite party executed a deed of sale on 05-10-2009. Initially, the opposite party agreed to hand over the possession of the flat in January 2010 which was again changed to June 2010 and then to February 2011, but they failed to keep their words. Later, the complainant visited the work site and it did not seem like the flat would be ready for hand over in June 2011. The opposite party has no intention in completing the flat and handing it over in time in the near future, since they are working on a number of projects simultaneously. The complainant has availed loans to purchase the flat on the belief that the flat would be delivered to him in time. On 28-02-2011, the complainant caused to issue a lawyer notice to the complainant demanding the opposite party to complete the construction and to hand over possession of the same, though accepted there was no response. Thus, the complainant is before us seeking the following directions against the opposite party :

1. To direct the opposite party to complete and hand over the possession of the flat forthwith.

2. To pay interest @ 18% p.a. for the total amount paid to the opposite party.

3. To pay compensation for the deficiency in service on the part of the opposite party.

4. To pay future interest @ 24% on the total amount paid to the opposite party.

2. The version of the opposite party is as follows :-

As per the agreement between the parties, the construction of the flat had to be completed and handed over the possession by 30^th September 2009. However, there was a grace period of 3 months from the agreed date and even the same can be extended as per clause 15 of the agreement. The completion and handing over the possession of the flat has been extended due to reasons beyond the control of the opposite party as per clause 15 in the agreement. The total amount received by the opposite party under the agreement is Rs. 22,45,695/- and not Rs. 22,85,000/- as claimed by the complainant. On receipt of the lawyer notice, the opposite party expressed their willingness to settle the grievances. There is no deficiency in service and negligence on the part of the opposite party. The opposite party is not liable to pay any compensation as prayed for. The complaint is liable to be dismissed.

3. The complainant was examined as PW1 and Exts. A1 to A9 were marked on his side. Neither oral nor documentary evidence was adduced by the opposite party. Heard the counsel for the parties.

4. The points that came up for consideration :-

1. Whether the complainant is entitled to get the possession of the flat in question?

2. Whether the complainant is entitled to get interest for the amount received by the opposite party?

3. Whether the opposite party is liable to pay compensation and costs of the proceedings to the complainant.

5. Point Nos. i. to iii. :- Admittedly, the complainant and the opposite party entered into Ext. A1 agreement for sale and for construction dated 19-12-2006. It is not in dispute that as per Ext. A1 agreement, the opposite party agreed to complete the construction and hand over the possession of the flat on 30-09-2009 with a grace period of 3 months. It is also not in dispute that the complainant paid a total sum of Rs. 22,45, 695/- to the opposite party. The opposite party has disputed acceptance of Rs. 40,000/- from the complainant, the complainant did not produce any evidence for the payment of the said amount.

6. According to the complainant, there is inordinate delay in completing and handing over the possession of the flat thereby, the complainant had to suffer mental agony and financial loss. The counsel relied on the following decisions rendered by the Higher Judiciary :

1. Ghaziabad Development Authority Vs. Bajbir Singh (2004) 5 supreme Court Cases 65.

2. M/s. Padmavathi Enterprises Vs. Mrs. Dharshi Lakhamshi Dedhia Revision Petition No. 3275 of 2010.

3. D.D.A Vs. Krishan Lal Nandrayog 2006 (2) CPC 659 S.C.

4. Ram Kishore Towari Vs. Ghaziabad Development Authority Revision Petition No. 2267 of 1999.

5. Kunj Behari Mehta & Anr. Vs. Ansal Properties & Industries Ltd. 2008 (3) CPC 191 N.C.

6. GDA Vs. Alok Chandra Sharma Revision Petition No. 637 of 2001

7. H.P. Housing Board Vs. Janak Gupta Civil Appeal No. 6346 of 2002.

8. Engene Rent Vs. Ms. Shirin Farias Prabhu (NCDRC) R.P. No. 2867 of 2006 decided on 08-04-2011.

9. Punjab Urban Planning & Development Authority Vs. Sukhwinder Singh R.P. No. 2686 of 2002 decided on 25-01-2010.

7. Per contra, the learned counsel for the opposite party submitted that the date of completion and handing over the possession of the flat has been extended due to reasons beyond the control of the opposite party as described in clause 15 in Ext. A1 agreement and there is no negligence or deficiency of service on the part of the opposite party in handing over the possession of the flat.

8. Clause 15 in Ext. A1 agreement reads as follows :-

“That any delay in the completion of the construction for reasons beyond the control of the Owners and Promoters & Builders including, but not exhaustive, natural calamities like heavy rains, floods, earthquakes, drought famine, pestilence, or riots or civil commotion, labour strike or by reason of Government or judicial restraints on construction or short supply or non-availability of essential items like cement, Steel or other building materials and the time during which such contingency continues shall be excluded in calculating the period for completion of construction and delivery of the apartment and this includes force majeure also.”

9. It is pertinent to note that apart from the averments in the version, nothing is on record to substantiate the contentions of the opposite party that the delay in completion and handing over possession of the flat was caused due to the reasons beyond their control. In short, pertinently there is deficiency in service on the part of the opposite party for the delay in handing over the possession of the flat that too after the acceptance of the total consideration in advance for which they are liable squarely reasons which has not been explained for. Though the opposite party contended that as of now the flat is in habitable condition and ready for handing over the possession, they have not produced any evidence to substantiate the same.

10. The decision cited by the complainant in the above cases necessarily go to show that the opposite party is liable to pay interest for the amount received by them. Though in 4 cases, the quantum has been fixed at 18% the rest lay on 12%. We are inclined to go by the majority of decisions.

9. In the result, we partly allow the complaint and direct as follows :

1. The opposite party shall deliver the possession of the flat to the complainant immediately.

2. The opposite party shall pay interest @ 12% p.a. for Rs. 22,45,695/- being paid by the complainant the amount accepted by the opposite party from the grace period as per clause 15 in Ext. A1 till the date of actual delivery of the flat to the complainant.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in open Forum on this the 30^th day of April 2012.

Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :: Nil

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