M. Shreesha, Member
This Complaint is filed under Section 21 (a) (i) of the Consumer Protection Act, 1986 (in short "the Act") against M/s. Monarch Infrastructure Developers Private Limited (hereinafter referred to as "the Developer"), seeking the following reliefs:
"A. Direct the Opposite Party to complete the construction of the building with the common amenities for flat no. 201 with the specifications described in Annexure A to the Agreement to sell dated 07.10.2014, provide Lift & firefighting measures in the building and obtain required Completion Certificate from the Nagpur Municipal Corporation and hand over the vacant possession of Flat No. 201, Imperial Park, Plot No. 4-A, Buty Layout, Khasra No. 77, Mouza Ambazari, Nagpur, Maharashtra to the Complainants; and
B. Direct the Opposite Party to execute and register the sale deed for the Flat No. 201, Imperial Park, Khare Town, Dharampeth, Nagpur, Maharashtra in favour of the Complainants; and
C. Direct the Opposite Party to pay to the Complainants simple interest at the rate of 18% p.a. on the amount of Rs.97,95,000/- from the date of respective payments till realization; and
D. Direct the Opposite Party to pay an amount of Rs.4,45,000/- (Rupees Four Lakhs Forty Five Thousand Only) to the Complainants with interest thereon at the rate of 18% p.a. from the date of respective due dates till its realization; and
E. Direct the Opposite Party to pay Rs.10,00,000/- (Rupees Ten Lakhs Only) to the Complainants towards compensation for injury, mental agony and harassment, negligence suffered by the Complainants; and
F. Allow the present complaint with costs against the Opposite Party; and
G. Pass such other order and grant such other relief as this Hon'ble Court may deem fit and proper in the facts and circumstances."
2. The facts in brief are that the first and second Complainants, who are mother and son were co-owners of land admeasuring 350.18 square meters bearing Plot No. 4-A, Buty Layout, Khasra No. 77, Mouza Ambazari, Nagpur, Maharashtra. It is averred that the Developer approached them for buying that property for construction of Apartments and on 19.09.2014, it was agreed between the parties that the Complainants would sell their Land and House to the Developer, who will construct an Apartment Scheme, in which the Complainants could purchase a Flat for their residential use. A plan of the proposed building was duly sanctioned by the concerned authorities on 19.09.2014 and on 07.10.2014 a registered sale deed was executed, by which the Complainants sold their land with the built up house for a total sale consideration of Rs.2,40,00,000/-. It is stated that on the same day an Agreement to Sell was executed between the Complainants and the Developer by which the Complainants had agreed to purchase Flat No.201 having a super built up area of 140.189 square meter on the second floor of the building known as 'Imperial Park' together with an undivided share of 16.667% in plot No.4-A for a total consideration of Rs.90,00,000/-. It is averred that Rs.44,00,000/- was paid by the Complainants to the Developer on 07.10.2014 by way of cheques which was acknowledged by the Developer and the balance sale consideration was to be paid as per the construction plan. A Deed of declaration was also executed between the parties and registered with the Sub Registrar, Nagpur as contemplated under Maharashtra Apartment Ownership Act, 1970. As per para 2 of the said Deed, the common areas and facilities which have to be provided by the Developer in the Apartment scheme 'Imperial Park' also included one lift. Annexure-A of the said Deed lists the specifications of the subject Flat.
3. It is averred that as per the Clauses of the Deed, the Developer had to complete the construction work and handover the Flat to the Complainants by 17.03.2016 i.e. 18 months from the date of the sanctioned plan which is 19.09.2014. An additional Grace period of 6 months was also given which ends on 19.09.2016. During this period, the Developer was liable to pay Rs.15,000/- per month to the Complainants towards rent and thereafter Rs.20,000/- per month towards liquidation damages in addition to the rent. It is pleaded that the Developer did not complete the Flat with all the specifications as per Annexure-A and also stopped paying rent to the Complainants since March, 2018, in compliance of their obligation under Agreement to sale dated 07.10.2014, the Complainants paid an amount of Rs.87,95,000/- to the Developer and Rs.10,00,000/- towards the additional area made available to them. Hence the total consideration of Rs.97,95,000/- has already been paid to the Developer, but possession has not been received as on the date of filing of the Complaint though only a balance amount of Rs.2,00,000/- is due and payable as per Clause 2 of the Agreement. While so, on 17.06.2017, the Complainants requested the Developer to give a final schedule as the possession was delayed for more than one year and three months, and received a reply with all false claims stating that the interiors and the finishing part of the Apartment has to be completed at their own cost. The Complainants got issued a Legal Notice dated 20.11.2017 and have also taken photographs, showing that the lift was not installed and the construction material is lying all around the building. The Developer is liable to pay an amount of Rs.4,45,000/- under Clause 17 and 18 of the Agreement. Hence, the Complaint seeking possession together with delayed period compensation in terms of the rent and the liquidated damages and also the registration of the Sale Deed.
4. The Developer filed their written version admitting the execution of the Agreement to Sell dated 07.10.2014; purchase of the land of 350.180 square meters belonging to the Complainants; the plan being sanctioned on 07.10.2014 and Sale Deed also being registered on the same date; the total sale consideration of Rs.90,00,000/-; Rs.44,00,000/- paid by the Complainants; the deed of declaration executed between the Complainants and the Developer and also admitted that the construction had to be completed within 18 months of the date of sanction plan with a grace period of 6 months and the liability to pay the rent and liquidated damages.
5. It is denied that the Developer failed to complete the Flat with all the specifications listed in the Agreement and stopped paying rent to the Complainants since March, 2018. It is stated that the physical possession of the Apartment would not be delivered to the Complainants unless the entire agreed costs including the charges for installation of electrical and water meters, legal expenses including stamp duty and registration fee, service tax and VAT and all other taxes are paid in full to the vendor. It is averred that there is no whisper in the entire Complaint with respect to the payments of these amounts and that they have made repeated requests to the Complainants to pay the said amounts. It is further averred that the Complainants were very much aware of the fact that the work was going as per the schedule and delay if any, in completion was due to the extra work which was done only under the instructions of the Complainants. The Complainants were also receiving the rents and hence there is no deficiency of service on their behalf.
6. It is further averred that the Developer had written a letter dated 27.08.2016, which was acknowledged by the Complainants on 31.08.2016, wherein it was informed that the electrical pipe and the plastering Work of the Flat was complete and if the Complainants wished to get the false ceiling done, he should inform the Developer. It is also stated that the Complainants undertook the interior works and it was suggested to complete the tiling of the floor and negotiated an amount of Rs.3,50,000/-, which was to be deducted from the final consideration and a letter was also issued on 02.12.2016 to this effect. As the contractors engaged by the Complainants did not complete the interior work and on the request of the second Complainant, the Developer agreed to complete the work of fixing bath room tiles and agreed to bear the difference of Rs.688,080/-, thereafter since the extra civil work was required to be done an amount of Rs.8,000/- was charged which is still due and payable. Therefore, it is averred that it is the Complainants who are delaying the completion of the Flat. The rent of Rs.15,000/- per month was also being paid and as the area of the Apartment is likely to be enhanced to above 1850 square feet, the Complainants are under obligation to pay the sale consideration for an enhanced area, rest of the allegations made by the Complainants are denied. It is stated that the Complainants are taking advantage of their own wrong by not making the complete payment on time and hence seeks dismissal of the Complaint with cost.
7. The Complainants filed their Affidavit by way of Evidence and marked Exhibit P-1 (copy of the Building Permit and Commencement Certificate dated 19.09.2014), Exhibit P-2 (copy of the registered sale deed dated 07.10.2014), Exhibit P-3 (copy of the Agreement to Sell dated 07.10.2014), Exhibit P-4 (copy of the Deed of Declaration dated 07.10.2014), Exhibit P-5 (copy of the chart of details of payments made by the Complainants), Exhibit P-6 ( copy of the demand notices and receipts issued by the Developer), Exhibit P-7 ( copy of the letter dated 17.06.2017), Exhibit P-8 ( copy of the undated letter issued by opposite party), Exhibit P-9 ( copy of legal notice dated 20.11.2017), Exhibit P-10 (photographs of the building and flat taken on 08.04.2018), Exhibit P-11 ( copy of application dated 11.04.2018 filed under RTI), Exhibit P-12 ( copy of the reply dated 21.05.2018), Exhibit P-13 ( copy of leave and license agreement dated 17.02.2018), Exhibit P-14 ( copy of the application dated 26.10.2018 filed under RTI with MSEDC) and Exhibit P-15 ( copy of reply dated 15.11.2018 received from MSEDC) on their behalf.
8. The Developer filed its Affidavit by way of Evidence and marked Annexure R-1 (Copy of the letter dated 27.08.2016), Annexure R-2 (Copy of the letter dated 21.12.2016), Annexure R-3 (Copy of the building permit), Annexure R-4 (Copy of the revised sanctioned plan), Annexure R-5 (Copy of the letter dated 15.01.2018), Annexure R-6 (Copy of the reply dated 06.12.2017), Annexure R-7 (Copies of the photographs) and Annexure R-8 (Copy of the Application submitted for Occupancy Certificate) on their behalf.
9. The Developer also filed an Affidavit of the Accountant stating that the Complainants have taken possession of the Apartment and they wanted to do POP in their own design in all the rooms and also fixed doors of their own choice and it was agreed that the difference of amount would be adjusted in the sale consideration. It is deposed by the Official that the Complainants till date did not come forward to deposit the charges required for installation of electrical and water meters, legal expenses stamp duty, registration charges, service tax and VAT apart from what was outstanding towards payment of balance sale consideration. It is also deposed that when the second Complaint was doing the interiors of the Apartment, the official had personally requested the Complainant to pay the outstanding dues, but there was no response and even as on date the Apartment is under lock and key with the Complainants. They also filed an Affidavit of one Mr. Nilkant Itnakar, who deposed that the Application for Occupation Certificate was filed in the month of February, 2019 and that he does the liaisoning job and assisted the Developers in getting their plans sanctioned and that he is in the knowledge that the delay in the issuance of the Occupancy Certificate is only on account of the Municipal Corporation being busy with the elections. He also deposed that the construction is complete and habitable.
10. Learned Counsel for the Complainants apart from reiterating the admitted facts contended that on 26.10.2018, the Second Complainant filed an Application under RTI Act, 2005 with the Assistant Engineer, Maharashtra State Electrical Distribution Company (MSEDC) to ascertain whether the Developer had applied for Electric Meter and vide a Letter dated 15.11.2018, MSEDC informed the Complainants that the Application for the sanction of load of electricity for building has not yet been approved by MSEDC.
11. For the sake of brevity, the admitted facts are not being reiterated.
12. Only point for consideration is whether there is any deficiency of service on behalf of the Developer and if the Complainants are entitled to the reliefs claimed.
13. From the material on record, it is evident that the Occupancy Certificate has only been applied in February 2019 and the Developer has also filed an Affidavit to this effect, while, it is not in dispute that as per Clause 18 of the Agreement, the Agreement the Developer was to complete the construction within18 months plus a grace period of six months from 19.09.2014, which is the date of sanction plan and the same ends on 16.09.2016. The Hon'ble Supreme Court in catena of judgement has laid down that legal possession can be given to the flat purchasers only with the Occupation Certificate. In the instant case it is an admitted fact that the Occupation Certificate was applied for only in February 2019. Learned Counsel for the Developer also draw our attention to the documents filed along with the Affidavit of Evidence establishing that the request deposit has been made for Application for Occupation Certificate on 07.02.2019.
14. It is denied by the Complainants in their Rejoinder, Affidavit filed by way of Evidence that the payments have not been made according to the payment schedule. It is also denied the delay was due to extra work that was done under the instructions of the Complainants. It is reiterated that only an amount of Rs.2,00,000/- remains to be paid which they are ready and willing to pay at the time of registration of the Sale Deed as agreed.
15. Learned Counsel appearing for the Complainants submitted that as per Agreement to Sell the Complainants need not pay charges for installment of water meter, service tax and VAT.
16. A brief perusal of the Agreement shows that the Developer shall not deliver the actual physical possession of the subject Apartment to the purchaser until the entire agreed aounts including the charges for instalments, legal expenses including stamp duty, registration fee, service tax, VAT and all other taxes are paid in full to the vendor. We are of the considered view that the amounts pertaining to the aforenoted expenses shall be paid by the Complainants at the time of the registration of the Sale Deed. There is no documentary evidence on record to establish that it was only because of the additional works of the Complainants' Flat that the delay had occurred. It is pertinent to mention that even at the time of issuance of letter dated 17.06.2017, there was also delay of one year and three months in delivery of possession as per the terms of the Agreement. At the cost of repetition, there is no documentary evidence to establish that the Complainants had to pay an amount of Rs.16,500/- for the wooden frame used or for other expenses. Keeping in view that the Occupancy Certificate was applied only on 07.02.2019, there is no evidence on record to establish that the delay was caused only on account of some meagre amounts to be paid by the Complainants, or on account of some minimal works to be completed in their flat, we are considered view that there is deficiency of service on behalf of the Developer in delaying the delivery of possession.
17. Now we address to the compensation amount which is prayed for by the Complainants. At this juncture, it is relevant to reproduce Clause 17 and 18 of the Agreement to Sell contracted between both the parties on 07.02.2014 :
"17. That the Vendor has agreed to pay to the purchaser during the period of build
Please Login To View The Full Judgment!
ing construction Rent @ of Rs.15,000/- (Rupees Fifteen Thousand) only per month for his occupation till the date of handing over or possession of said Apartment. 18. That the Vendor shall make the Apartment chosen by the Purchaser available for her/ his occupation within a period of 18 (Eighteen) months from the date of sanction of Building Plan, however the Vendor shall be entitled for a grace period of 6 (six) Months from such due date. In case of Vendor's failure to deliver possession of said Apartment even during the grace period, then the Vendor shall pay a sum @ of Rs.20,000/- (Rupees Twenty Thousand Only) per month by way of liquidated damages to the Purchaser with effect from the completion of grace period till the date of handing over actual possession of the said Apartment to her/him." 18. It is pleaded by the learned Counsel appearing for the Complainants that the rental amounts were paid only till March 2018. We are of considered view that the Developer shall adhere to the terms mentioned in Clause 17 and 18 of the Agreement and pay the requisite compensation to the Complainants within eight weeks from the date of receipt of a copy of this order. All the common amenities for Flat No. 201 with the specifications described in the Agreement to Sell, shall be completed including the provision of lift and firefighting measures and the Developer shall complete and register the Sale Deed after obtaining the Occupation Certificate within eight weeks from the date of receipt of copy of this order, failing which the amount deposited by the Complainants i.e. Rs.97,95,000/- shall attract interest @ 9% per annum from the promised date of delivery till the date of realization. We also award costs of Rs.25,000/- to be paid by the Developer to the Complainants.