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Gopal Das Mundhra & Others v/s Ozone Projects Pvt. Ltd. Rep by its Managing Director & Another

    Consumer Case Nos. 2044, 2045 Of 2017, 1701, 1702, 2286, 2287, 2288 of 2018

    Decided On, 07 September 2021

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE R.K. AGRAWAL
    By, PRESIDENT & THE HONOURABLE MR. BINOY KUMAR
    By, MEMBER

    For the Complainants: Aditya Parolia, Advocate. For the Opposite Parties: Nemo.



Judgment Text

R.K. Agrawal, President

These Complaints have been filed by the Complainants under Section 21 of the Consumer Protection Act, 1986 (hereinafter referred to as “the Act”) against Ozone Projects Private Limited. As all these Consumer Complaints are relating to the same Project, i.e., “The Metrozone” and the issues involved are more or less similar, hence all these Consumer Complaints are being disposed of by this Common Order.

2. For the sake of convenience Consumer Complaint No. 2044 of 2017 is being taken as the lead case.

CONSUMER COMPLAINT No. 2044 OF 2017

3. The brief facts as stated in the Complaint are that the Complainants lured by the attractive advertisements of the Project “The Metrozone” of the Opposite Party, on 10.06.2009, booked a Flat No. R-904, admeasuring 2661 sq. ft. in the said Project by paying an advance amount of Rs.5,00,000/- to the Opposite Party. Thereafter, on 23.08.2009, the Complainants entered into an Agreement for Sale and Construction Agreement with the Opposite Party for the aforementioned Flat for a total sale consideration of Rs.1,62,41,932/- (Cost of Land Rs.29,12,000 + Cost of Constructions Rs.1,32,29,931). As per Delivery Schedule mentioned in Annexure-3 of the Construction Agreement the possession of the Flat was to be delivered in January, 2012. It is stated that the Complainants in total paid a sum of Rs.1,69,68,520/- by availing a Housing Loan from HDFC Bank for an amount of Rs.1,00,00,000/-. It is alleged that the Opposite Party failed to hand over the possession of the Flat on agreed time despite having received substantial amount and arbitrarily changed the scheduled dates many times. The possession of the Flat was finally handed over to the Complainants on 01.09.2015, with the delay of 43 months, which caused mental agony, harassment and financial loss to the Complainants.

4. It is averred that the Opposite Party is charging interest @ 18% p.a. for any delay in payment of instalments by the Purchasers, as can be seen from Clause 5 (f) of the Construction Agreement and the Complainants herein have also paid an amount of Rs.3,68,372/- towards interest for delay in payment @ 18% p.a. and keeping in view the parity the Complainants are also entitled for the same interest rate i.e. @ 18% p.a. for delay in possession of the Flat.

5. On 04.02.2017, the Complainants got issued a Legal Notice to the Opposite Party claiming an amount of Rs.1,56,62,240/- towards financial loss for delay in handing over of possession of the Flat. On 12.04.2017, the Opposite Party replied to the Legal Notice and denied all the allegations made by the Complainants and rejected their entire claim. Dissatisfied, with the response to the Legal Notice, the Complainants alleging deficiency in services and unfair trade practices on the part of the Opposite Party, approached this Commission seeking the following reliefs:

“a) Compensate the interest losses incurred to the complainants, an interest amounting to Rs.97,97,527/- (Rupees ninety seven lacs ninety seven thousands five hundred and twenty seven only) at the rate of 18% interest on Rs.1,69,68,520/- (Rupees one crore sixty nine lacs sixty eight thousand five hundred and twenty only) from February, 2012 to August 2015, as it was charged by the Opposite Party from the Complainants for the delayed payments as per clause 5 (f) of the Constructions Agreement at the pro-rata basis for the 43 months delay in handover the possession;

b) Compensate the rental loss of Rs.48,00,000/- (Rupees forty eight Lakh only) approximately incurred to the Complainants;

c) Compensate the Complainants for the mental agony and the harassment to the tune of Rs.10,00,000/- (Rupees ten Lacs only);

d) Compensate the loss of income tax benefit incurred to the Complainants, which is approximately Rs.1,80,000/- (Rupees one lac eighty thousands only) as per the certificate of the Chartered Accountant;

e) Deposit an amount of Rs.5,00,000/- in the National Commission to be utilized for the welfare schemes meant for bona-fide consumers; and

f) Grant cost of Rs.1,00,000/-(One Lac) towards litigation expenses incurred by the Complainants;

Pass such further or other orders or directions as this Hon’ble Commission considers deem fit and proper in the facts and circumstances of the case.”

6. Vide Order dated 20.02.2019, the right of the Opposite Party to file the Written Statement was closed, as the Opposite Party failed to file the Written Statement within the statutory period and the Complainant was directed to file the Evidence by way of Affidavit. On 09.04.2020, the Opposite Party was granted eight weeks’ time to file the Evidence by way of Affidavit. On that day, Mr. Anish R. Shah, Advocate was present for the Opposite Party. As the Opposite Party failed to file the Evidence by way of Affidavit despite several opportunities, on 18.06.2021, a last chance was given to the Opposite Party to file its Evidence by way of Affidavit within four weeks and the matter was directed to be listed for Final Hearing on 26.08.2021. Thereafter, on 26.08.2021, neither the Evidence by way of Affidavit was filed by the Opposite Party nor anyone appeared on its behalf and the matter was heard finally.

7. Heard Mr. Aditya Parolia, learned Counsel for the Complainant.

8. Learned Counsel for the Complainant has placed reliance on the decision of this Commission in Consumer Case No. 1904 of 2018 (Haresh Bathija & Anr. Vs. Ozone Projects Private Limited), I (2021) CPJ 190 (NC), decided on 14.01.2021.

9. From perusal of the record, we find that this matter also relates to the same Project i.e. “The Metrozone” as in Haresh Bathija (Supra). Further, as in the present case, in that case also the Complainants had not been handed over possession of the Flat on time and they also sought compensation for the delayed possession.

10. It is pertinent to mention here that Haresh Bathija (Supra) was contested by the Opposite Party by filing its Written Statement and making Oral Submissions. Disapproving all the pleas raised by the Opposite Party, by a detailed Order this Commission in Haresh Bathija (Supra), has held as under:

10. Having gone through the material available on record, evidence adduced by the Parties as well as the oral submissions made by both the Parties, I am of the view that under the facts and circumstances of the case, the Complainants are entitled for interest @8% p.a. on the deposited amount towards compensation for delay in handing over the possession of the flat. Even though, the Opposite Party Builder had sent a letter of offering possession of the Flat on 26.12.2016 but on account of certain issues, the possession was not delivered/taken. This Commission vide Order dated 05.12.2019 had directed the Opposite Party Builder to hand over the possession of flat, i.e. “Unit No. H202” to the Complainants in a habitable condition on 12.12.2019. For ready reference the Order dated 05.12.2019 is reproduced below:-

“IA No. 7861 of 2019

This Application has been filed by the Complainants, seeking a direction to the Opposite Party to deliver the possession of flat, i.e. “Unit No. H202”, in the building situated at No. 44, Pillaiyar Koil Street (Jawaharlal Nehru Road), Anna Nagar, Chennai-600040.

We have heard Mr. Haresh Bhatija, Complainant No.1, who has appeared in person, and Mr. Anish R. Shah, learned Counsel for the Opposite Party. Learned Counsel for the Opposite Party invited our attention to Annexure A-1 at page 16, filed along with the Application, wherein a demand of Rs.2,52,447/-, after deducting the delay compensation of Rs.8,74,975/-, was made by the Opposite Party in order to give the possession of the flat in question.

Mr. Haresh Bhatija, Complainant No.1, states that he has handed over a cheque of Rs.2,52,447/- to Mr. Anish R. Shah, learned Counsel for the Opposite Party, today. The cheque be received by the learned Counsel for the Opposite Party and the possession of flat in question, i.e. “Unit No. H202” be delivered to the Complainants in a habitable condition on 12.12.2019.

The Application stands disposed of.”

11. It would be appropriate in the interest of Justice that the Opposite Party Builder be directed to pay compensation for delayed delivery of possession in the form of interest @8% p.a. from the date of delivery of possession as specified in the Agreement till the date of Order vide which Opposite Party Builder was directed to deliver the possession of the Flat. Accordingly, the Opposite Party Builder is directed to pay interest @8% p.a. to the Complainants with effect from 30th November 2012 (date of delivery of possession) to 05th December 2019 (date of Order directing Opposite Party to deliver the possession) within a period of six weeks from the date of receipt a copy of this Order. It is made clear that the amount of ?8,74,975/- already received by the Complainants as compensation, will be adjusted by the Opposite Party Builder against the amount calculated in terms of this Order.”

11. The issue involved in the present Complaint and Haresh Bathija (Supra) is similar. Accordingly, following the decision of this Commission in Haresh Bathija (Supra), we allow the present Complaint in part and direct the Opposite Party to pay compensation for delayed delivery of possession in the form of interest @ 8% p.a. on the amount deposited by the Complainants from the respective dates of deposit or from January, 2012 (the promised date of delivery of possession), whichever is later till 01.09.2015 (the date of offer of possession). Time for compliance of this Order is six weeks from the date of receipt of a copy of this order. It is made clear that if any amount is already received by the Complainants as compensation for delay in delivery of possession, the same will be adjusted by the Opposite Party from the amount calculated in terms of this Order.

CONSUMER COMPLAINT No. 2045 OF 2017

12. Mr. B. Rajasekaran and Mrs. Rani booked a residential Flat No. H-707, admeasuring 2661 sq. ft. and entered into Agreement for Sale and Construction Agreement on 30.04.2010. The possession of the Flat was to be delivered in November, 2012 as per Annexure-3 of the Construction Agreement and the actual possession was delivered on 10.04.2017. For all the reasons noted in Consumer Complaint No. 2044 of 2017, we allow the present Complaint in part and direct the Opposite Party to pay compensation for delayed delivery of possession in the form of interest @ 8% p.a. on the amount deposited by the Complainants from the respective dates of deposit or from November, 2012 (the proposed date of delivery of possession), whichever is later till 10.04.2017 (the date of offer of possession). Time for compliance of this Order is six weeks from the date of receipt of a copy of this order. It is made clear that if any amount is already received by the Complainants as compensation for delay in delivery of possession, the same will be adjusted by the Opposite Party from the amount calculated in terms of this Order.

CONSUMER COMPLAINT No. 1701 OF 2018

13. Mr. G. Mahendar Rao and Mrs. Sangeetha Rao booked a residential Flat No. G-204, admeasuring 2661 sq. ft. and entered into Agreement for Sale and Construction Agreement on 30.09.2010. The possession of the Flat was to be delivered in November, 2012 as per Annexure-3 of the Construction Agreement and the actual possession was delivered April, 2018. For all the reasons noted in Consumer Complaint No. 2044 of 2017, we allow the present Complaint in part and direct the Opposite Party to pay compensation for delayed delivery of possession in the form of interest @ 8% p.a. on the amount deposited by the Complainants from the respective dates of deposit or from November, 2012 (the proposed date of delivery of possession), whichever is later till April, 2018 (the date of offer of possession). Time for compliance of this Order is six weeks from the date of receipt of a copy of this order. It is made clear that if any amount is already received by the Complainants as compensation for delay in delivery of possession, the same will be adjusted by the Opposite Party from the amount calculated in terms of this Order.

CONSUMER COMPLAINT No. 1702 OF 2018

14. Mr. G. Mahendar Rao booked a residential Flat No. A-303, admeasuring 2661 sq. ft. and entered into Agreement for Sale and Construction Agreement on 30.06.2012. The possession of the Flat was to be delivered in October, 2013 as per Annexure-3 of the Construction Agreement and the actual possession was delivered June, 2019 as mentioned in the chart submitted by the learned Counsel for the Complainant at the time of Final Hearing. For all the reasons noted in Consumer Complaint No. 2044 of 2017, we allow the present Complaint in part and direct the Opposite Party to pay compensation for delayed delivery of possession in the form of interest @ 8% p.a. on the amount deposited by the Complainant from the respective dates of deposit or from October, 2013 (the proposed date of delivery of possession), whichever is later till June, 2019 (the date of offer of possession). Time for compliance of this Order is six weeks from the date of receipt of a copy of this order. It is made clear that if any amount is already received by the Complainant as compensation for delay in delivery of possession, the same will be adjusted by the Opposite Party from the amount calculated in terms of this Order.

CONSUMER COMPLAINT No. 2286 OF 2018

15. Mr. P. Sailesh Kumar and Mrs. Mitra Devi booked a residential Flat No. Z-1402, admeasuring 2062 sq. ft. and entered into Agreement for Sale and Construction Agreement on 17.04.2013. The possession of the Flat was to be delivered in January, 2016 as per Annexure-3 of the Construction Agreement and the possession of the Flat has not been delivered till date. For all the reasons noted in Consumer Complaint No. 2044 of 2017, we allow the present Complaint in part and direct the Opposite Party to handover the possession of the Flat in a habitable condition and pay compensation for delayed delivery of possession in the form of interest @ 8% p.a. on the amount deposited by the Complainants from the respective dates of deposit or from January, 2016 (the proposed date of delivery of possession), whichever is later till the actual date of delivery of possession. Time for compliance of this Order is six weeks from the date of receipt of a copy of this order. It is made clear that if any amount is already received by the Complainants as compensation for delay in delivery of possession, the same will be adjusted by the Opposite Party from the amount calculated in terms of this Order.

CONSUMER COMPLAINT No. 2287 OF 2018

16. Mr. P. Sridhar booked a residential Flat No. AC-904, admeasuring 1555 sq. ft. and entered into Agreement for Sale and Construction Agreement on 30.09.2011. The possession of the Flat was to be delivered in November, 2013 as per Annexure-3 of the Construction Agreement and the possession of the Flat has not been delivered till date. For all the reasons noted in Consumer Complaint No. 2044 of 2017, we allow the present Complaint in part and direct the Opposite Party to handover the possession of the Flat in a habitable condition and pay compensation for delayed delivery of possession in the form of interest @ 8% p.a. on the amount dep

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osited by the Complainant from the respective dates of deposit or from November, 2013 (the proposed date of delivery of possession), whichever is later till the actual date of delivery of possession. Time for compliance of this Order is six weeks from the date of receipt of a copy of this order. It is made clear that if any amount is already received by the Complainant as compensation for delay in delivery of possession, the same will be adjusted by the Opposite Party from the amount calculated in terms of this Order. CONSUMER COMPLAINT No. 2288 OF 2018 17. Mr. V. Jayakumar booked a residential Flat No. AD-1401, admeasuring 2062 sq. ft. and entered into Agreement for Sale and Construction Agreement on 28.02.2013. The possession of the Flat was to be delivered in March, 2015 as per Annexure-3 of the Construction Agreement and the possession of the Flat has not been delivered till date. For all the reasons noted in Consumer Complaint No. 2044 of 2017, we allow the present Complaint in part and direct the Opposite Party to handover the possession of the Flat in a habitable condition and pay compensation for delayed delivery of possession in the form of interest @ 8% p.a. on the amount deposited by the Complainant from the respective dates of deposit or from March, 2015 (the proposed date of delivery of possession), whichever is later till the actual date of delivery of possession. Time for compliance of this Order is six weeks from the date of receipt of a copy of this order. It is made clear that if any amount is already received by the Complainant as compensation for delay in delivery of possession, the same will be adjusted by the Opposite Party from the amount calculated in terms of this Order.
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