Per Justice Mr.S.B. Mhase, Hon’ble President We heard Mr.Ashutosh Marathe, Advocate for the appellants and Mr.S.L. Kale, Advocate for the respondents. 2. This appeal can be disposed of finally at the stage of admission itself. The appellants herein are the org. complainants, namely, husband and wife. Respondent Nos.1&2 are the builders/developers. There was an agreement between the appellants/complainants and respondents/opponents to purchase a Row-house for consideration of `11,50,000/- and the agreement was registered. Now scheme is completed and the possession has been handed over. Not only that but Conveyance Deed is also executed in favour of the appellants. The appellants had approached the District Consumer Disputes Redressal Forum to seek Occupancy Certificate or Completion Certificate and documents of NA permission, so also they made a prayer that respondents/opponents/builders shall take steps to record names of the appellants in the 7/12 extract, namely, Property Card. This complaint was allowed with directions to supply those documents and by way of its further directions District Consumer Disputes Redressal Forum directed that the above referred compliance be done within 60 days, otherwise, for delay of each day, `100/- shall be charged. It is further directed that `25,000/- be paid for mental agony and `3,000/- by way of costs. So far as appellants are concerned, appellants had no grievance in respect of this order. The appellants had come forward with the appeal since prayer made by the appellants/complainants in Para 11(E) of complaint is not granted by the District Consumer Disputes Redressal Forum. Said prayer is as follows :- “[E] The Opponents may be ordered to pay an interest @ 24% p.a. from 01/01/2009 as agreed in clause 7(n) of the agreement till documents promised are given to the complainants. The accrued interest from 01/01/2009 to 28/02/2011 thus, for 26 months (`11,50,000/- x 2% x 26) comes to `5,98,000/-.”
This submission of the Learned Counsel for the appellants is based on specific terms, namely, clause (n) of the agreement dated 25/08/2008. According to said clause, respondents/builders were expected to complete the construction on or before 01/01/2009 and thereafter, they have to obtain Occupancy Certificate or Completion Certificate from the competent authority or officer and said condition is an essence of contract. For whatever reasons, if the Completion Certificate is not obtained on 01/01/2009 or before that, the builders/developers are under obligation to pay interest @ 24% p.a. from 01/01/2009 till the Completion Certificate is given to the Row-house purchasers, namely, complainants/appellants. Learned Counsel submitted that this prayer was specifically made. However, District Consumer Disputes Redressal Forum has failed to consider this aspect. He submitted that even though the document of Conveyance and possession has been delivered to them, till today Completion Certificate or Occupancy Certificate and the NA permission documents have not been given to the complainants/appellants and therefore, the complainants/appellants are entitled to get interest on the amount of consideration from 01/01/2009. Learned Counsel appearing for the respondents/builders submitted that possession has been handed over and Conveyance has been executed and therefore, there has been every compliance on their part. Therefore, he submitted that prayer (E) has not been granted by the District Consumer Disputes Redressal Forum and it is rightly not granted. He tried to invite our attention wherein the amount of consideration is to be paid in a particular time and if not paid, the respondents/builders are entitled to forfeit the amount and/or for delayed payment, they are entitled to charge interest @ 21% p.a. Thus, he tried to make an attempt to get the amount adjusted as against the claim made by the appellants/complainants. Ultimately, at one point of time, we asked the Learned Counsel whether there is any cross appeal filed by the builders, but he submitted that there is no appeal by the builders and builders have accepted the award, but subsequently, vehemently argued that the order which has been passed by the District Consumer Disputes Redressal Forum is not sustainable in law. In fact it was not possible in the absence of any appeal or challenge to the said order. Now, only question remains for our consideration whether prayer (E) is to be granted or not. 3. Before we consider this aspect, we would like to consider the claim of the builders that they are entitled to charge the interest @ 21% p.a. is not sustainable in law because such claim was never made in the written version which is filed in the District Forum. Not only that assuming for a moment that there was delayed payment as they contended, at that time they should have insisted for enforcement of that clause. If they accepted the amount, rights which were available under said condition stands waived and/or by their conduct they were stopped from raising such objection. When ex facie such objection was not raised in the written version, at eleventh hour, such submission, relying upon certain clause cannot be permitted and therefore, we are not inclined to consider the claim of 21% p.a. interest as made by the respondents/builders. 4. Now, coming to the case made out by the appellants, appellants had specifically made prayer. It is also admitted fact that as on today, neither Occupancy Certificate is obtained nor a Completion Certificate and even documents of NA permission has not been handed over to the complainants. What is important to note that the term and condition No.(n) is an essence of the contract and when particular act is made an essence of contract, its a performance and to provide a service in accordance with that condition, is an obligation that cannot be waived and if it can be waived, it can be waived at the option of the complainants. Therefore, this aspect should have been looked into by the builder and builder should have appropriately settled the matter at the appropriate stage. We find that claim has been rightly made. District Forum has committed a gross error in not considering at all the point raised and the prayer made and therefore, there is no alternative, but to allow the appeal. Therefore, we pass the following order :- -: ORDER :- 1. Appeal is partly allowed. 2. The impugned order passed by the District Consumer Disputes Redressal Forum is confirmed by this appeal. 3. In addition to the said order of District Forum, we direct that interest @ 24% p.a. from 01/01/2009 till actual delivery of Occupancy Certificate and the Completion Certificate to the complainants/appellants be recovered from the respondents/opponents/builders on an amount of `11,50,000/-. 4. However, in the facts and circumstances, no order as to costs. 5. Copies of the order be furnished to the parties. Pronounced Dated 4th May 2012. |
