R.K. AGRAWAL, J., PRESIDENT

1. The present Appeal has been filed against the Order dated 04.02.2019 passed by the Maharashtra State Consumer Disputes Redressal Commission (hereinafter to be referred to as “State Commission”), whereby the Complaint filed by the Complainant was partly allowed and the Appellant Company was directed to hand over the possession of Flat No. 004 consisting of 3 BHK small, admeasuring 107.77 sq. mtr., Ground Floor, Block No. B-II-5, Sector A-5, East Facing door, corner Flat, ground floor facing park with open car parking space no. 619 in the project, New Haven, to the Complainant within a period of two months from the date of the order, along with ₹25,000/- as cost and pay interest to the Complainant at the rate of 9% per annum on the amount of ₹22,25,000/- from 01.07.2012 till handing over the possession of the Flat.

    

2. Brief facts of the case as narrated in the Complaint are that the Sanjiv Mahendru (hereinafter referred to as the Complainant) had booked a residential flat (3BHK Small) on Ground Floor in the project “New Haven” proposed to be constructed by Tata Housing Development Company (hereinafter referre to as Opposite Party/Appellant) at Mumbai by paying a booking amount of ₹50,000/- on 10.08.2009, subsequent thereto, vide letter dated 26.09.2009, Complainant was allotted residential Flat No.004, measuring 107.77 sq. mtr. i.e., 1160 sq. ft. built up area, on Ground Floor, Block No. B-II-5, Sector A-5, with open car parking space No. 619 in the said Project. Pertinently, as per the master plan annexed with the allotment letter, the location of the unit was earmarked as “As per your preference, east facing door, corner flat, ground floor, facing park”.

    

3. Agreement for sale was executed between the Parties on 18.06.2010, wherein the total sale consideration of the unit was stated to be ₹22,25,000/-. The Complainant had stated to have taken home loan from HDFC Limited via Home Loan Agreement dated 01.10.2010 whereby an amount of ₹12,00,000/- was sanctioned to the Complainant.

    

4. As per Clause 13 of the Agreement, the possession of the Flat No. 004 was supposed to be handed over on or before 31.12.2011, however, the possession got delayed due to default by the Opposite Party. Subsequently, possession was handed over to the Complainant via possession letter dated 19.08.2013 and duplicate keys were handed over to the Complainant. Complainant addressed his grievances before the Opposite Party with respect to inordinate delay caused in handing over the possession, the Complainant was assured that the matter will be taken up by the Senior Officers. The Complainant was asked to inspect the unit, and after due inspection, the Complainant signed the possession letter and took over the possession of the Unit.

    

5. However, in early 2014, the Complainant was informed telephonically that wrong flat has been delivered to the Complainant.Same was also communicated via email dated 31.03.2014 enclosing a letter dated 30.12.2013, stating that “relevant changes have been done at the site”, and the Complainant was further requested to visit the site to take possession of another flat and return the keys of the already allotted flat. The Complainant, after exchange of various correspondences between the Parties, visited the site and was appalled by the act of the Opposite Party since they had changed the locks of the Flat which was “supposedly” in possession of the Complainant. Complainant has further stated that Opposite Party have changed the numbering of the flats and proposed to handover the possession of another unit to the Complainant.

    

6. Aggrieved by the actions/inactions of the Opposite Party, the Complainant preferred a Consumer Complaint being CC No. 875 of 2015 before the State Consumer Dispute Redressal Commission, Maharashtra at Mumbai.

    

7. The Opposite Party appeared before the State Commission submitted their written version raising the preliminary issues that Complaint is barred by Limitation; that Complainant is not a Consumer as envisaged under the Consumer Protection Act, 1986; that no cause of action survives since the Complainant has taken the Possession; that an exorbitant claim of ₹22,00,000/- have been made only with the intention to extort money; that the Commission has no jurisdiction to entertain the Complaint in view of Clause 13 of the Agreement which states that the issues arising out of the agreement will be refereed to Arbitration; that Complainant had defaulted and delayed in making the payment; that Opposite Party is entitled to Reasonable extension of time under the Agreement for Sale; that delay was caused by the Concerned Authority in issuing the Occupation Certificate; that inadequate infrastructure such as water and electricity facilities were provided by the concerned authorities; that there was delay caused in Construction due shortage of sand and labour; that time is not essence of the contract for delivery of Immovable Property and has further denied the contentions as raised in the Complaint.

    

8. After hearing both the parties and perusal of material on record, the State Commission framed the following points for determination:

9. “Whether complainant is a consumer as contemplated under the provisions of consumer Protection Act?

10. Whether the complaint is barred by limitation?

11. Whether there is deficiency in service on the part of the opponent nos. 1 and 2?

12. Whether the complainant is entitled for possession of flat booked?

13. Whether the complainant is entitled for compensation as claimed?

14. What Order?”

     

15. The State Commission whilst dealing with the first issue, responded to the same in affirmative, holding that only because the Complainant has booked another flat in another place like Mumbai, it cannot be said that it was only done for commercial purpose and it will be erroneous to say that Complainant is not a consumer.

     

16. With respect to the second point of determination, the State Commission held that the Complaint is filed well within the limitation period, since even though possession was handed over to the Complainant on 19.08.2013, he was subsequently dispossessed by the Opposite Party by changing the locks and when the prayer is for possession of the unit, there exists a continuous cause of action.

     

17. Whilst dealing with the third point, the State Commission held that the Opposite Party was deficient in service by observing as under:

It is admitted position that the flat bearing No.004 on ground floor was booked by the Complainant, Agreement qua the said flat was executed in favour of the complainant, however, possession which was agreed to be given on 31st December, 2011 was not given on that day. Thus, that itself is deficiency in service on the part of the opponents. The possession of the flat was given on 19th August, 2013. The contention of the opponent is that flat which was booked by him was given to the complainant and there is no deficiency in service on the part of the opponents. The complainant has contended that the flat which was booked by him was initially given in his possession. However, afterwards opponents changed the lock of the said flat when their request of returning of key was not accepted by the complainant. It was also contended that by changing the said lock they have also changed flat number as 002 instead of 004. It is the contention of the opponents that flat which was booked by the complainant was given to him and that was facing north. As per complainant the flat which was booked by him was facing east. So, we have to see which flat was booked by the complainant and which flat was given in possession of the complainant. The Learned Advocate for the opponents has contended that neither in the agreement nor anywhere it is mentioned that the flat facing east was booked by the complainant and that was given to him. The complainant has drawn our attention to page 32 showing position of the flat which was booked by him and given to him and number is 004. It is further material to note that it is mentioned on the said document that “as per your preference East facing door corner flat, ground floor facing park” and the mark was made to the said flat. The complainant has contended that from the document which is at page 32 it is very clear that east facing door corner flat was booked and given to the complainant. He has referred to page 306 which was e-mail sent by complainant to MD as well as Chairman of the opponents. It is mentioned in the said e-mail that :

“Please find enclosed herewith the scanned copy of MASTERPLANOPTION-03-R7 dated 29.06.2009 which was given to me by you only at the time of allotment of my Flat No.B-II-5-004. This copy not only clearly shows the location of the flat marked but also specifies in writing the exact location allotted to me. The wordings are: ‘As per your preference, East facing door, Corner flat ground floor, facing park.’ I hope the good sense will prevail & you will give me the same flat again.”

This was e-mail sent by complainant to Chairman; Brotin Banerjee.

At page 305 there is a reply to said e-mail. It is mentioned in the said reply that:

“This refers to your mail to Mr.Bortin Banerjee and the Chairman’s office, we would like to again inform that the flat given to you is as per the agreement for sale. The sheet attached to you is given at the inquiry level with the various options given to the customer.

Thus, it is very clear that the said e-mail addressed to Chairman, and Mr.Brotin Banerjee along with master plan was received by the opponents. In the said e-mail it was specifically mentioned by the complainant that “East facing door, corner flat, ground floor facing park”. In reply by opponents to said e-mail initially it is mentioned that “East facing door, corner flat, ground floor facing park” was not given to the complainant and it was only mentioned as per agreement the flat is given. The sheet which was attached along with e-mail is also admitted wherein there is specific note, ‘As per your preference, East facing door, Corner flat ground floor, facing park’. So, when a plan mentioning these things was sent to MD and Chairman, in reply there is no denial about that. Only it was said that possession was given as per agreement and advocate for the opponent has argued that in agreement it is not mentioned “East Facing Door”.

(7) The Ld. Advocate for the opponents tried to show that the flat to which the complainant is claiming is 004 and to show that the said number 004, he has pointed out that the Flat on upper floor on that situation is 104. Advocate for the opponents has argued that Flat no.004 is facing north and not East and to support his contention he has shown that the flats on first floor and second floor are also having Flat nos.104 and 204 and which are not East facing and hence, Flat no.004 is not the flat which the complainant is showing as East facing. Complainant has argued that after changing the lock of the flat after handing over possession to the complainant the opponent has also changed the number of flat which was 004 and put number 002 and that flat is given to another person. Considering the said submissions and considering the e-mail sent by the complainant to MD specifically mentioning ‘East Facing Door’, considering the reply given by the opponents to the said e-mail, we find much substance in the contention of the complainant. Otherwise, we find that there is no necessity for the complainant to make so many correspondence with the opponents about the flat facing towards East and lastly, e-mail to MD, Brotin Banerjee, mentioning that flat facing East allotted to him. It is quite possible for a builder to change the number of flats and we find much substance in the argument of the complainant about the change of the number of the flat. Thus, we find that the possession of flat facing east is not with the complainant. It is with the opponents and opponents are admitting that and hence, it is very clear that when possession was given to the complainant on 19th August, 2013 of the flat facing towards East, now that flat is not with the complainant but is with the opponents. As far as the payment of consideration is concerned the opponents have not disputed payment of consideration. It was tried to argue that there was delay in payment. However, the complainant has drawn our attention to possession letter which is at page 124. In para 2 of the said letter it is mentioned that: “We confirm that we have received full and final consideration amount of Rs.22,25,000/- (Rupees Twenty Two Lac Twenty Five Thousand only) from you in accordance with the terms and conditions of payment schedule recorded in the agreement for Sale”.

In view of recital of the said possession letter the argument of the Advocate of the opponents that there was delay in payment cannot be accepted. Thus, we find that the complainant has paid the entire consideration as per schedule mentioned in the Agreement for Sale and possession of booked flat was given to the complainant. However, afterwards the opponents changed the lock and changed the number of the flat and now contending that the flat booked by the complainant is at another place and not facing east. So, that cannot be accepted. Thus, there is deficiency in service on the part of the opponents and hence, we answer point no.(iii) in affirmative.”

1. The State Commission also observed that the argument of the Opposite Party that the Complainant had defaulted in payments, did not survive since the Opposite Party had very well acknowledged the receipt of full and final consideration of ₹22,25,000/-.

    

2. With respect to the fourth, fifth and sixth point of determination, the State Commission held in affirmative holding that the Complainant is entitled to have possession of the Unit booked along with compensation by way of interest at the rate of 9% per annum payable from 01.07.2012 till the actual date of possession. Conclusively, the State Commission directed as under:

3. “Complaint is partly allowed with costs quantified at ₹25,000/- (Rupees Twenty Five Thousand only) payable jointly and severally by the opponent nos. 1 and 2 to the complainant,

4. Opponent Nos. 1 and 2 are jointly and severally directed to handover possession of Flat No. 004 consisting of 3 BHK Small, admeasuring 107.77 sq. mtr. i.e. 1160 sq. ft. built up area, Ground Floor, Block No.B-II-5, Sector A-5, East facing door, Corner flat, ground floor, facing park with open car parking space no. 619 in the project, New Haven to the Complainant within a period of two months from the date of this order,

5. Opponent Nos. 1 and 2 are jointly and severally directed to pay to the Complainant interest @9% per annum on amount of ₹22,25,000/- from 01^st July, 2012 till handing over possession of above flat.”

    

6. Aggrieved by this order, the Appellant has filed the present Appeal before this Commission.

    

7. Ms. Shreya Sircar, learned Counsel appearing for the Appellants/Opposite Parties has vehemently argued that the Complainant has delayed in making timely instalments towards the sale consideration and thus would attract interest @18% per annum since on various occasions numerous demand letters were issued and that there was no delay attributable to the Appellant in obtaining occupation certificate, however, the concerned authorities issued the same after 8 months from the date of application and immediately pursuant thereto obtaining Occupation Certificate the offer of possession was made to the Complainant. Further the learned Counsel has argued that the delay, if any, was caused in laying water and electricity lines, only because of negligence by the concerned authorities and that delay was further caused by the Complainant whilst failing to pay the revised maintenance charges in time.   Learned Counsel has further argued that the Complainant waived off all their future claims against the Appellant when they gave the undertaking while accepting the offer of possession, and thus the Consumer Complaint ought to have been dismissed by the State Commission.  The Learned Counsel has argued that the Complainant has been given possession of right flat, i.e., Flat No. 004, which according to the Floor Plan annexed with the Registered Agreement for Sale, Flat No 004 is North facing.  The Complainant’s claim of East facing Flat is without any evidence and is only made with a mala fide intention for extorting money and extra contractual claims.  She prayed that the Impugned Order dated 04.02.2019 passed by the State Commission be set aside.

    

8. Per contra, Respondent No.1/Complainant has appeared in person, and supported the Order passed by the State Commission as according to him the State Commission had passed a well-reasoned order which is based on a correct and rightful appreciation of evidence and material available on record and does not call for any interference.

    

9. We have heard Ms. Shreya Sircar, learned Counsel for the Appellant, Mr. Sanjiv Mahendru, Respondent No.1 in person, perused the Order dated 04.02.2019 passed by the State Commission and have given a thoughtful consideration to the pleas raised by both the Parties.

    

10. As far as the plea of the learned Counsel for the Appellant regarding penal interest on the delayed payment is concerned, we find that after accepting the amount as full and final and issuing Letter of possession, now at this stage, the Appellants/Developers cannot take stand that there was delay in making payment on the part of the Complainant/Respondent.If that was the case, then before settling the Account of the Complainant/Respondent as full and final the Complainant should have been asked to pay the delayed penal interest before issuing Possession letter to the Complainant. We do not find any force in this plea and the same is rejected.

     

11. We have gone through the Allotment Letter dated 26.09.2009 as also the Agreement to Sale, executed between the Parties and found that in the Allotment letter dated 26.09.2009, the Flat allotted to the Complainant/Respondent has been described as “Residential Apartment No. 004 on the Ground Floor in the Block No. B-II-5 in the Complex “New Haven”.In the Agreement for Sale, the Flat/Property has been described as “Flat No. 004 (consisting of 3 BHK Small) on the Ground Floor and the right to use open car Parking Space No. 619…..of the Building No. B-II-5”.There is no mention about the direction/facing of the Flat either in the Allotment Letter or Agreement to Sale.Therefore, no Deficiency in Service can be fastened on the Appellant/Developer in handing over the possession of Residential Apartment/Flat No. 004 on the Ground Floor in the Block No. B-II-5 in the Complex “New Haven” alongwith open car parking Space No. 619 to the Complainant/Respondent.Since the Appellants/Developers have failed to deliver the possession of the said Flat within agreed / stipulated period, they are liable to compensate the Complainant/Respondent for delayed possession by way of interest @9% p.a. on ₹22,25,000/- w.e.f. 01.07.2012 till the date of actual possession to the Complainant/Respondent.In case, the said Flat is not acceptable to the Complainant/Respondent, he can seek refund of the entire amount deposited alongwith interest @9% p.a. from the date of respective deposit till the date of payment.

     

12. In view of the afore-noted discussions, the Appeal is partly allowed and the impugned Order dated 04.02.2019 passed by the State Commission is modified in following terms:-

    (i)      The Appellants/Opposite Parties are directed to hand over the possession of Apartment No. 004 on the Ground Floor in the Block No. B-II-5 in the Complex “New Haven” with open car parking space No. 619 in the Project New Haven to the Complainant/Respondent within two weeks from today;

    (ii)      The Appellants/Opposite Parties are directed to pay interest @9% per annum on ₹22,25,000/- w.e.f. 01 July 2012 till handing over the possession of the said flat.

    (iii)     In case, the said Flat is not acceptable to the Complainant/Respondent, the Appellants/Opposite Parties shall refund the entire amount deposited by the Complainant alongwith interest @9% p.a. from the respective date of deposit till the date of payment within six weeks from today.

    (iv)     Keeping in view the facts and circumstances of the case, there shall be no order as to costs.