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Rajesh Kumar Atmaprasad Pandey v/s M/s. Krypton Construction Pvt. Ltd.

    First Appeal No. 361 of 2013

    Decided On, 22 February 2018

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE DR. B.C. GUPTA
    By, PRESIDING MEMBER & THE HONOURABLE DR. S.M. KANTIKAR
    By, MEMBER

    For the Appellant: Akshay Bobde, Advocate. For the Respondent: E.A. Sasi, Advocate.



Judgment Text

Dr. S. M. Kantikar, Member

1. The above said two cross appeals have been filed under Section 19 of the Consumer Protection Act, 1986 against the order dated 22.2.2013 passed in CC No. 63 of 2009 by the Maharashtra State Consumer Disputes Redressal Commission, Maharashtra (in short, ‘the State Commission’) whereby the complaint of the complainant was partly allowed and the OP was directed to hand over vacant and peaceful possession of flats bearing No. 501 and 502 in question, on payment of balance amount to the OPs/Appellants.

2. The brief facts are that Rajesh Kumar Atmaprasad Pandey, the complainant, had purchased two flats bearing No. 501 and 502 under the project developed by M/s Krypton Construction Pvt. Ltd./OP. A registered agreement was entered on 2.6.2006 between the parties for the total consideration of Rs. 71 lakhs. At the time of agreement, the said building was completed upto 5th floor. The complainant had paid Rs.67,26,000/- and the balance of Rs.3,74,000/- was due, which was to be paid at the time of taking the possession of flats in December, 2007. The OP did not deliver the possession of flats to the complainant as agreed, but he had delivered possession to some of the flat purchasers and they had occupied the flats. The complainant approached the OP and requested several times for the possession, but no avail. The OP blatantly refused to hand over the possession of the flats.

3. Being aggrieved, the complainant filed the complaint before the State Commission, claiming possession of the flats in question alongwith the compensation of Rs.27,67,800/- towards the loss of rent and the interest. The OP did not appear before the State Commission and remained absent continuously. Therefore, the State Commission decided the complaint ex parte and allowed the same. The State Commission directed the complainant to deposit balance consideration amount of Rs.3,74,000/- within 15 days and thereafter, OP shall handover the vacant and peaceful possession of the flats bearing No. 501 and 502. It was also directed that OP shall pay Rs. 5 lakh towards delay in delivery of possession and Rs. 1 lakh towards mental agony and Rs.25,000/- as costs.

4. Being aggrieved, both the parties have filed appeals before this Commission. The complainant filed F.A. No. 361 of 2013 for enhancement of compensation, whereas the OP-2 filed F.A. No. 206 of 2013 for setting aside the order of State Commission and dismissal of the complaint.

5. We have heard the learned counsel for both the parties. The counsel for OP submitted that the complainant was not a consumer. He had booked the property as an investor and was interested to earn profit by renting the premises. Thus, it was for commercial purpose. The counsel relied upon the judgment of this Commission in Chilukuri Adarsh vs. M/s Ess Kss Vee Constructions (CC No. 111 of 2012) in which it was held that, if the consumer had booked more than one units, he was not a consumer. In another case of Jag Mohan Chhabra & Anr. vs. DLF Universal Ltd. [IV (2007) CPJ 199 (NC)], the complainant, who purchased ground and first floor, was not a consumer. The counsel further submitted that the construction and possession of the flats was expected to be delivered in the month of December, 2007 as per clause 14 of the agreement. Because of the tenants, who were not willing to shift, thereby causing hurdles for further progression of the building, the OP was not able to develop the property. The property was under re-development scheme; therefore, peacemeal construction was not possible. Moreover, few tenants/occupants also have filed a writ petition before Hon’ble High Court of Mumbai and it was pending, therefore, the project got stalled indefinitely. Therefore, the OP was not at fault for the delay.

6. The counsel for the complainant submitted that the builder fraudulently refused to hand over the flats. The OP has not filed any evidence regarding completion of the project and handing over the possession as agreed, who took frivolous ground of non-cooperation and obstruction from the tenants. The OP had insisted the complainant for the unconditional withdrawal of consumer complaint and thereafter, possession would be handed over. The counsel relied upon few judgments of Hon’ble Supreme Court viz. Ghaziabad Development Authority vs. Balbir Singh 2004 Lawpage (SC) 415 in which, the Hon’ble Supreme Court granted interest @18% per annum. In another judgment Laxman Kumar Harwani vs. Madhya Pradesh State Co-operative Housing Complex, 2002 Lawpad (Trib) 1448 the Hon’ble Supreme Court held that, the complainant be compensated for delayed delivery of the flat with suitable interest. In another judgment of Bangalore Development Authority vs. Syndicate Ban (2007) 6 SCC 711, it was held that interest could be granted to 24%.

7. We gave our thoughtful consideration to the arguments from both the parties. It is an admitted fact that OP was ready to hand over the possession subject to the condition of withdrawal of the complaint filed before the State Commission. In our view, such a restriction on the complainant was an illegal demand and deprivation of the complainant’s legal right and it also amounts to unfair trade practice on the part of OP. Similarly, the complainant had demanded Rs.27,67,800/- towards the loss of rent till March, 2009 as a compensation. In our view, the demand is highly inf

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lated and the complainant had not placed any evidence on record to substantiate his claim. 8. Considering those facts, the State Commission has awarded Rs. 5 lakhs by way of damages towards delayed possession and also Rs. 1 lakh towards mental agony. In our view, it is just and proper compensation. We do not find any reason to enhance the compensation or to impose any further interest. 9. On the basis of discussion above, we do not find any illegality or infirmity in the order passed by the State Commission, which requires any interference. Both the appeals are hereby dismissed.
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