JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL)

          The complainant booked a residential villa with the OP in a project which the OP was to develop in Kochi.  On allotment of a residential villa to the complainant, the parties executed a sale and construction agreement dated 22.02.2014, incorporating their respective obligations in respect of the said transaction.  The possession of the residential villa was expected to be delivered to the complainant by 30.07.2015 though the OP also had a grace period of 3 months available to it.  The possession therefore, ought to have been offered by 30.10.2015.  The sale consideration of the villa was agreed at a total cost of Rs.1,01,38,376.08p with additional charges amounting to a total sum of Rs.50,524/-. During the course of construction, some modification/customization of the residential villa was carried out by the OP at the instance of the complainant, for which, the complainant was to pay a sum of Rs.1,94,407/- + Rs.30,000/-.  Though the complainant also got fixed tiles of his choice in the said villa, the said superior tiles were purchased by him as is evident from the purchase invoices of the tiles filed by him.  Since the possession of the villa was not offered to the complainant despite he having paid a total sum of Rs.1,02,41,657/- to the OP, he is before this Commission seeking possession of the allotted villa alongwith compensation etc. 

2.      The complaint has been resisted by the OP who has admitted the allotment made to the complainant as well as the payment received from him.  It is also an admitted position that the possession of the allotted villa was never offered to the complainant at any point of time before institution of this complaint. 

3.      Vide interim order dated 18.12.2018, this Commission directed as under:

“.... According to the learned counsel for the complainant, no additional amount is payable by them to the OP for the villa allotted to the complainant whereas according to the learned counsel for the OP, substantial amount is due from the complainant, against the aforesaid villa.  The learned counsel for the OP states that he is not sure whether the requisite Occupancy Certificate in respect of the allotted villa has been obtained by the OP or not.  In these circumstances, as an interim order, it is directed that the OP shall deliver possession of the allotted villa, complete, according to it in all respects, to the complainant, within four weeks from today provided that the OP has already obtained the requisite Occupancy Certificate in respect of the said villa.  The possession shall be given and taken without prejudice to the rights and contentions of the parties in the complaint.  In the event of this Commission holding that an additional amount is payable by the complainant to the OP for the said villa, the complainant shall be under an obligation to pay the said amount to the OP alongwith the appropriate interest in terms of the order of this Commission.  The question of compensation if any, to the complainant will be decided at the time of final disposal of the complaint. ....”

          However, the possession in terms of the interim order dated 18.12.2018 is yet to be delivered.  The learned counsel for the OP states that they need three more months before they can offer possession to the complainant since some damage had happened during the recent floods in Kerala. 

4.      The learned counsel for the OP also states that they have already received the requisite Occupancy in respect of the allotted villa. 

5.      The learned counsel for the OP also states that there was some delay on the part of the complainant in making timely payment of the installments.  He further states that though the said installments were paid late, no interest for the delay was charged from the complainant. 

6.      Considering all the facts and circumstances of the case, the complaint is disposed of with the following directions:

          (i)      The OP shall deliver possession of the allotted villa, complete in all respects and in a habitable condition, to the complainant on or before 30.04.2019. 

(ii)      The OP shall pay compensation in the form of simple interest @ 8% per annum to the complainant for the period from 31.10.2015 till the date on which the possession in terms of this order is actually offered to the complainant.

(iii)     The OP, while paying compensation to the complainant in terms of this order, shall be entitled to adjust the balance amount payable by the complainant in terms of this order i.e. Rs.1,01,38,376.08p + Rs.50,524/- + Rs.1,94,407/- + Rs.30,000/- - Rs.1,02,41,657/-.  The OP shall also be entitled to adjust interest @ 8% per annum on the delayed payment if any, except on the last installment which was payable on possession.

(iv)    The OP shall pay a sum of Rs.25,000/- as the cost of litigation to the complainant.

(v)     The compensation in terms of this order shall be paid at the time of offering possession of the villa to the complainant.

(vi)    It is made clear that the interest by the complainant on the delayed payment of the installment shall be adjusted only from the date on which the installment if any, was delayed after the construction had reached the requisite stage as per the agreement between the parties.