Heard Mr. Sachin Singh, Advocate, for the complainants and Mr. Vijay Kumar, Advocate, for the opposite parties. 

2.       Mrs. Sarala Suresh Kibe and Dr. Suresh V. Kibe have filed above complaint for directing opposite parties to (i) obtain ‘occupancy certificate’ of the premises and handover possession of Apartment No.H-301, complete in all respect to them immediately; (ii) pay delay compensation in the form of interest @18% per annum on their deposit from due date of possession till the date of handing over possession; (iii) pay Rs.1000000/-, as compensation for mental agony and harassment of them; (iv) pay litigation costs; and (v) any other relief which is deemed fit and proper in the facts and circumstance of the case.

3.       The complainants stated that M/s. Gagan Promoters and Developers and M/s. Gagan Constructions (OP-1 and 2) were a firms, registered under the Partnership Act, 1932. Marvel Landmarks Private Limited (OP-3) was a company, registered under the Companies Act, 1956. The OPs were engaged in the business of development and construction of group housing projects. The OPs launched a super luxurious group housing project in the name of “Marvel Isola”, at Village Mohammedwadi, Taluka Haveli, District Pune, in the year, 2009 and made wide publicity of its amenities and facilities. The complainants approached the OPs in October, 2011, who showed a model of the flat in above project and stated that construction of the building was in progress and possession would be delivered till December, 2012. Allured with assurances of the OPs, the complainants booked Apartment No.H-301 in “Marvel Isola” and paid Rs.1000000/- as consideration, Rs.199750/- as VAT and Rs.1216150/- as stamp duty and registration charges on 04.10.2011. The OPs executed an Agreement dated 11.11.2011, in respect of Apartment No.H-301 and two parking in “Marvel Isola” for consideration of Rs.19975000/-. Second Schedule of the agreement provides “construction linked payment plan”, in which, total consideration was payable in 15 instalments at different stages of the construction and last instalment of Rs.1897500/- was payable on offer of possession. Clause-5 of the agreement provides that possession will be handing over on or before 31.12.2012, subject to payment of the instalments. OP-1 executed a supplementary agreement in respect of some extra work on 11.11.2011, for which, Rs.2250000/- was payable on or before taking possession. As per demand of the OPs, the complainants paid Rs.10530000/ on 24.10.2011, Rs.199000/- on 12.11.2011, Rs.2500000/- on 24.11.2011, Rs.2800000/- on 25.01.2012, Rs.675000/- on 17.02.2012 and Rs.449981/- on 20.04.2012. The OPs realized entire consideration (except payable on offer of possession) till 20.04.2012. The OPs gave statement of account, showing that except Rs.89481.26 as balance for service tax, there was “no dues”. In November, 2012, the complainants inquired about date of handing over possession then the OPs unilaterally shifted date of possession till 31.03.2013. The complainants asked to share photographs of their flat, which was shared through email dated 26.11.2012. The complainants found that except plastering and flooring, other finishing works and extra work as per supplementary agreement were not started by that time in their flat. The complainants, through email dated 01.12.2012 requested to ensure completion of all the works and handing over possession till 31.03.2013. The OPs vide email dated 17.01.2013, shifted date for possession till 31.05.2013. The complainants visited the flat on 15.04.2013 and found no progress in their flat. The doors, doors shutters, VRV, kitchen, automation, bathroom finishing, final cleaning were not done. Staircase was unfinished. List was not installed. The complainants, vide emails dated 28.04.2013 and 09.05.2013, asked for delay compensation. The OPs told that they would give a discount of Rs.250000/- and one additional car parking, which was inadequate. The OPs failed to offer possession even in May, 2013. The complainants, vide email dated 24.07.2013, reminded for possession and delay compensation but the OPs did not respond. The complainants gave emails dated 16.09.2013, 16.12.2013, 15.02.2014, 01.03.2014, 24.06.2014, 06.11.2014, 12.11.2014, 13.01.2015 and 09.03.2015 but the OPs did not respond. The complainants held meeting with responsible person of the OPs, several time, lastly on 02.07.2015, but did not give any firm date for delivery of possession. Due date of possession was on or before December, 2012, which expired long back but the OPs did not offer possession. The complainants gave legal notice to the OPs dated 04.08.2015. The OPs vide email dated 12.09.2015, simply stated that any query may be made from its team, whose contract number was supplied. When the complainants made query on the contact number, they were informed that possession would be offered till 31.12.2015. Then, the complainants filed above complaint on 16.12.2015.      

4.       The OPs filed written statement on 15.03.2016, in which, booking of Apartment No.H-301 in “Marvel Isola” on 04.10.2011, execution of the agreement dated 11.11.2011, in respect of Apartment No.H-301 and two parking in “Marvel Isola” for consideration of Rs.19975000/-, execution of the supplementary agreement in respect of some extra work on 11.11.2011, for which, Rs.2250000/-, payable on or before taking possession and payments made by the complainants, have not been disputed. The OP stated that the construction was delayed and the OPs informed the complainants about the progress in construction time to time. The complainants agreed for taking possession till, 2015. The OPs completed the construction of the project and obtained ‘completion certificate’. The OPs informed the complainants to take possession after deposit of the balance amount as per agreement and amount for extra work as per supplementary agreement, in the year 2015. But the complainants neither deposited the balance amount nor took possession. The complainants have committed default. The complaint has been filed concealing material facts and is liable to be dismissed.  

5.       The complainants filed Rejoinder, Affidavit of Evidence, Affidavit of Admission/Denial, Additional Affidavit of Sarala Suresh Kibe and documentary evidence. The OPs filed Affidavit of Evidence of Vishwajeet Subhash Jhavar and documentary evidence. The complainants filed copy of the Article of Agreement dated 11.11.2011, along with IA/624/2016 and Additional Documentary Evidence along with IA/1483/2015. The OP filed IA/5448/2022 for directing the complainants to take possession of the flat after deposit of Rs.14316493/-. Both the parties have filed their written synopsis.

6.       We have considered the arguments of the parties and examined the record. Admittedly the complainants booked Apartment No.H-301 in “Marvel Isola” on 04.10.2011 and deposited Rs.1000000/- as consideration, Rs.199750/- as VAT and Rs.1216150/- as stamp duty and registration charges on 04.10.2011. The parties entered into an agreement dated 11.11.2011, in respect of Apartment No.H-301 and two parking in “Marvel Isola” for consideration of Rs.19975000/- and a supplementary agreement in respect of extra works on 11.11.2011, for which, Rs.2250000/- was payable on or before taking possession. Although payment plan was ‘construction linked payment plan’ but as the construction has already completed up to some extent as such, as per demand of the OPs, the complainants paid Rs.10530000/ on 24.10.2011, Rs.199000/- on 12.11.2011, Rs.2500000/- on 24.11.2011, Rs.2800000/- on 25.01.2012, Rs.675000/- on 17.02.2012 and Rs.449981/- on 20.04.2012. The OPs realized entire consideration (except payable on offer of possession) till 20.04.2012. The OPs gave statement of account, showing that except Rs.89481.26 as balance for service tax, there was “no dues” and do not dispute the payment made by the complainants.

7.       Claue-5(b) of the agreement dated 11.11.2011 provides that possession will be handed over on or before 31.12.2012 subject to payment as per agreement and supplementary agreement. The complainants have stated that in November, 2012, they inquired about date of handing over possession then the OPs shifted date of possession till 31.03.2013. The complainants asked to share photographs of their flat, which was shared through email dated 26.11.2012. The complainants found that except plastering and flooring, other finishing works and extra work as per supplementary agreement were not started by that time in their flat. The complainants, through email dated 01.12.2012, requested to ensure completion of all the works and handing over possession till 31.03.2013. The OPs vide email dated 17.01.2013, shifted date for possession till 31.05.2013. The complainants visited the flat on 15.04.2013 and found no progress in their flat. The doors, doors shutters, VRV, kitchen, automation, bathroom finishing, final cleaning etc. were not done. Staircase was unfinished. List was not installed. The complainants, vide emails dated 28.04.2013 and 09.05.2013, asked for delay compensation. The OPs told that they would give a discount of Rs.250000/- and one additional car parking. The OPs failed to offer possession even in May, 2013. The complainants, vide email dated 24.07.2013, reminded for possession and delay compensation but the OPs did not respond. The complainants gave emails dated 16.09.2013, 16.12.2013, 15.02.2014, 01.03.2014, 24.06.2014, 06.11.2014, 12.11.2014, 13.01.2015 and 09.03.2015 but the OPs did not respond. The complainants held meeting with responsible person of the OPs, several time, lastly on 02.07.2015, but did not give any firm date for delivery of possession. The complainants gave legal notice to the OPs dated 04.08.2015. The OPs vide email dated 12.09.2015, simply stated that any query may be made from its team, whose contract number was supplied.

8.       The OPs produced ‘Part Occupation Certificate’ dated 18.03.2015 but did not produce any letter offering possession to the complainants. The OPs even did not reply the legal notice of the complainants dated 04.08.2015. Due date of possession was on or before December, 2012, which expired long back. The OPs for the first time filed IA/5448/2022 on 13.06.2022 for directing the complainants to take possession of the flat after deposit of Rs.14316493/-. This amount includes Rs.7602993/- towards interest on balance amount. As stated above, the statement of account has been supplied by the OPs, in which, except Rs.89481.26 as balance for service tax, there was “no dues”. The balance amount as per agreement and supplementary agreement dated 11.11.2011, was payable on offer of possession. The OPs failed to produce any evidence that they had ever offered possession with demand of balance amount. In the absence of final demand, the OPs are entitled to charge interest on the balance amount. It is alleged that in compliance of the order dated 10.12.2018, the OPs offered possession on 07.01.2019. Even IA/5448/2022 cannot be treated as valid offer of possession, due to demand of Rs.7602993/- towards interest on balance amount, as held by Supreme Court in Utpal Trehan Vs. DLF Home Developers Limited, (2022) 10 SCC 409. Mere obtaining ‘Part Occupation Certificate’ dated 18.03.2015 does not absolve the OPs from offering possession, as no allottee can take possession, without offer of possession, particularly when payment of balance amount is a condition for taking possession. The OPs have committed gross deficiency in service. The complainants are entitled for delay compensation in the form of interest @6% per annum on their deposit from due date of possession till the offer of possession as held by Supreme Court in DLF Home Developers Pvt. Ltd. Vs. Capital Greens Flat Buyers Association, (2021) 5 SCC 537.

ORDER

In view of aforesaid discussions, the complaint is allowed with cost of Rs.one lac. The opposite parties are directed to offer possession of the flat allotted to the complainants along with final statement of account, within one month from the date of the judgment. In final statement of account the opposite parties will account delay compensation in the form of interest @6% per annum on the deposit of the complainants from due date of possession till the offer of possession. The opposite parties will not charge interest on the balance amount, except Rs.89481.26 as balance for service tax and any other statutory tax, cess etc. already paid by the opposite parties and payable by the complainants on pro-rata basis. On offer of possession, if any amount is payable by the opposite parties, it shall be paid along with final statement of account. If any excess amount is payable by the complainants, they will deposit it within one months from service of demand letter with final statement of account. On settlement of the account, the OPs will handover possession of the flat complete in all respect, as per specifications in the agreement and supplementary agreement dated 11.11.2011 without any further delay.