APPEARED AT THE TIME OF ARGUMENTS

In FA/935/2016 & 936/2016

IN FA/1131/2016 & FA/1132/2016

ORDER

PER DR. B.C. GUPTA, MEMBER

          Two cross appeals, FA/935/2016 and FA/1131/2016 have been filed against the impugned order dated 25.04.2016, passed by the Maharshtra State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the State Commission’) by the rival parties in consumer complaint CC/13/502, filed by the complainant Yogesh Ramling Warad against the builders Teirth Developers and Suyojit Infrastructure Limited etc. 

2.       The other two cross appeals, FA/936/2016 and FA/1132/2016 have been filed against the impugned order dated 21.04.2016, passed by the State Commission in consumer complaint case No. CC/13/503, filed by the complainant Vaibhav Eknath Farkande against the same developers.  Since the facts in these cases are almost similar, the four appeals are being decided by this common order and a copy of the same be placed on each file.  For the sake of convenience, the facts have been quoted from the consumer complaint CC/13/502, which is the subject matter of FA/935/2016 & FA/1131/2016.

3.       Briefly stated, the facts of the case are that both the complainants are members of Aarohi Cooperative Housing Society Limited, which has 166 members, and is registered under the Maharashtra Cooperative Societies Act, 1960.  The said members came together with the purpose of acquiring houses at reasonable prices.  The opposite party No. 3 (OP-3) builder, Suyojit Infrastructure Ltd. approached the said society and offered to construct the houses in a Housing Scheme at Village SUS, Pune for the members of the society.  The OP-2 Vijay Tukaram Raundal had acquired development rights in respect of land with survey No. 123/1, 123/2, 123/3/1, 123/3/2, 123/4/2 and 123/6/2 at the said village.  The OP-2 & OP-3 entered into a joint venture under the name and style of Teirth Developers and Suyojit Infrastructure Limited, which is arrayed as OP-1 in the consumer complaints.  The OP-1 decided to develop the land and provide houses to 166 members of the society, after getting the building plans sanctioned from the Town Planning Department, Pune.  The complainants approached the OPs for the purchase of flats in the said scheme.  The OPs agreed to sell flat D-604 on the 6^th Floor to the complainant Yogesh Ramling Warad for a consideration of ₹20,01,300/-.  A flat-booking agreement was signed between the complainant and the OPs on 15.04.2001, which was duly registered in the office of the Sub Registrar, Haveli No. 15 at Sl. No. 3942/2011 on 30.04.2011.  The saleable area built up for the said unit was 955 sq. ft.  In the other case, the agreement was made between the complainant Vaibhav Eknath Farkande and the OPs for flat No. C-401 for a total consideration of ₹21,12,363/-.  The flat-booking agreement was executed on 14.04.2009, which was duly registered by the Sub Registrar, Haveli No. 19 at Sl. No. 1244/2009 on 18.04.2009.  The saleable built-up area of the said flat was 1111.77 sq. ft.

4.       In the case of Yogesh Ramling Warad, he raised loan from the Axis Bank, Pune and paid a sum of ₹18,19,272/- to the OPs towards part consideration.  In the case of Vaibhav Eknath Farkande, loan of ₹17,38,000/- was raised from the State Bank of India, Aundh Branch.  The complainant paid a sum of ₹18,87,322/- to the OPs.  The OPs agreed to deliver the possession of the flat to the complainant on or before 31.12.2011 in the first case and on or before 30.07.2010 in the second case as mentioned in para 11 of the booking agreements in the respective cases. It is stated that in both the cases, the OPs failed to deliver the vacant and peaceful possession to the complainants within the stipulated time and hence, committed breach of contract.  The complainant had to obtain rental accommodation and suffered mental pain, agony and inconvenience.

5.       It has been alleged in the consumer complaints that the OPs had also not provided all amenities and facilities as per the agreement.  There were many defects and lacunae in the construction of the building and the flats.  The OPs had changed the building plans without consent or knowledge of the complainants.  Through the consumer complaints, a direction was sought to the OPs to deliver the possession of the said flats and also to pay compensation on various counts to the complainants for deficiency in service.

6.       The complaints were resisted by the OP Builders by filing written version in which they denied the allegations against them.  It is stated that a memorandum of understanding was entered between the society and the OPs on 21.06.2009, following which the land was acquired by the OPs for the said development.  A discount of 25% was offered to all the members of the society, purchasing property in the said scheme.  However, the members of the society raised certain disputes, regarding sanction and revision of the construction plans.  On 28.08.2009, a new government resolution was passed and a number of rules were changed pertaining to the total number of buildings permitted, the number of floors in each building and the number of flats on each floor.

7.       The change in the rules happened twice and hence, the plans had to be revised twice.  The change in dates of delivery that occurred due to change in Government Resolution was explained to the members of the society.  After many reminders, the agreement was executed on 20.04.2009.  As per original understanding, the possession was to be delivered by 31.12.2011.  However, it was subject to the terms mentioned in para 12 of the agreement, relating to force majeure conditions.  The OPs further submitted that the complainants had given consent for change of building lay out plans.  Moreover, the OPs had collected Service Tax/VAT as per rules on the subject.  The OPs were willing to hand over possession of the flats to the complainants after receipt of the remaining consideration. 

8.       After considering the averments of the parties, the State Commission allowed the complaints and directed the OPs to hand over the possession of the said flats within 30 days of the payments of amounts, as mentioned in the said order by the complainants.  In addition, the OPs were directed to pay a sum of ₹3 lakh as compensation for mental agony and pain to the complainant Yogesh Ramling Warad and a compensation of ₹5 lakh in the other case of complainant Vaibhav Eknath Farkande.  In addition, litigation cost of ₹50,000/- was also allowed in each case.  Being aggrieved against this order, the complainants as well as the OPs have filed the present appeals as detailed above.

9.       During hearing before us, in the case of FA/935/2016 and FA/936/2016, limited notice was given to the OPs, regarding the payment of compensation of ₹3 lakh in one case and ₹5 lakh in other case.  However, in the other two appeals filed by the builder, notice was given to the complainants for appearance in the case.  The arguments of both the parties have been heard and the record of the case has been examined.

10.     It was mainly contended by the learned counsel for the complainants that they had made prayers to obtain possession of the flats in question, to have the sale-deeds executed in their favour and to have all the amenities and facilities in accordance with the agreement executed between the parties.  The learned counsel alleged that the amenities as agreed had not been provided by the OP Builders.  The construction of the flats had also not been made as per the agreed specifications. The learned counsel stated that their prayer was to increase the amount of compensation to ₹10 lakhs.  The learned counsel also argued that the complaints were not barred by limitation as this was a case of continuing cause of action.  Moreover, there was no need to implead the society as a party.

11.     Per contra, the learned counsel for the builder argued that in accordance with clause 12 of the agreement, reasonable extension of time for giving possession of the units could be given, if the construction and completion of the building was delayed on account of various factors like non-availability of construction material, war, civil commotion, etc. or on account of any order, notification etc. by the Government.  The learned counsel also argued that proper written consent of the complainants had been obtained before making changes in the lay out and building plan etc. and a copy of the same had been placed on record.  The learned counsel for the parties further argued that the complainants had defaulted in the payment of dues, because of which termination of agreement could be done.  The OPs had given due notices followed by reminders and then terminated the agreement with the complainants.  The learned counsel also argued that amenities had been provided to the complainants as per the terms of the agreement. 

12.     In reply, the learned counsel for the complainants stated that substantial amount of money had already been paid to the builders by the complainants.  They were prepared to pay the rest of the amount also.  Moreover, it was provided in the schedule of payment that 6% of the total sale consideration was to be paid at the time of handing over the possession and completion of the amenities. 

13.     We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

14.     From the facts and circumstances on record, it is made out that the complainants paid substantial amounts to the OP builders in compliance of the flat-booking agreements, after raising loan from the banks.  The possession was to be delivered in terms of the agreement on 31.12.2011 in one case and 30.07.2010 in the other case.  It has been brought out in the order of the State Commission that completion certificate was obtained from the competent authority on 03.07.2014 by the OPs in both the cases.  In the case of Yogesh Ramling Warad, a sum of ₹20,01,300/- was paid as consideration of the flat, ₹20,603/- towards VAT and ₹50,477/- towards service tax.  It is also stated that the OPs handed over the possession of the flat to other members of the society, but they withheld handing over the possession to the complainants for the reasons best known to them.  It is evident, therefore, that there was inordinate delay on the part of the OPs to hand over the possession of the flats to the complainants.

15.     The OPs have tried to take shelter under clause 12 of the Agreement saying that they were entitled to reasonable extension of time for giving possession of the units, if the construction and completion of building got delayed due to various reasons.  However, the OPs have not been able to bring any evidence on record which may corroborate their version that there was non-availability of building material, steel and cement and water or electric supply.  There is no evidence of any delay having occurred due to war, civil commotion, act of God etc.  There is no evidence of delay on account of any order or notification issued by the Government.  Whatever changes were there, took place before the signing of the agreement between the parties.  We are supported in this argument by an order already passed by this Commission in “Shweta Kapoor vs. Unitech Limited [CC No. 368/2014 decided on 14.01.2016]”, which is relied upon by the State Commission in their order as well.

16.     From the foregoing discussion, it is clear that the deficiency in service on the part of the OPs has been established because of the delay in the delivery of the possession beyond the period prescribed in the flat-purchase agreement between the parties.  Therefore, there is no illegality, irregularity or jurisdiction error in the orders passed by the State Commission and hence, there is no justification for making any change in the said orders. The State Commission have already allowed compensation of ₹3 lakh to the complainant in one case and ₹5 lakh in another case for mental pain and agony etc.  In the case of Vaibhav Eknath Farkande, the possession was to be delivered by 30.07.2010 and hence, there was more delay in the delivery of the possession.  In the light of these facts, all these appeals are ordered to be dismissed and the orders passed by the State Commission are upheld.  There shall be no order as to costs.