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Rekha Sanjay Pal v/s Rockline Construction Co., Through Its Sole Proprietor Narinderpal Gupta & Another

    Consumer Case No. 3514 of 2017
    Decided On, 14 November 2022
    At, National Consumer Disputes Redressal Commission NCDRC
    By, THE HONOURABLE MR. JUSTICE R.K. AGRAWAL
    By, PRESIDENT & THE HONOURABLE MR. JUSTICE KARUNA NAND BAJPAYEE
    By, MEMBER
    For the Complainant: Ankur Mittal, Advocate. For the Opposite Parties: Kush Chaturvedi, Amit Mehta, Priyashree Sharma PH, Advocates.


Judgment Text
1. The present Consumer Complaint has been filed under Section 21 of the Consumer Protection Act, 1986 (for short “the Act”) against Opposite Party No. 1, Rockline Construction Co. (hereinafter referred to as Opposite Party Builder), through Opposite Party No. 2, Mr. Narinderpal Gupta, Sole Proprietor of Opposite Party No. 1.

2. The brief facts of the case are that allured by an advertisement published by the Opposite Party Builder offering Flats in their Residential Project known as ‘RNA Royal Park’ situated at Building No.1 bearing survey No. 47, CTS No. 1016, 1016-1 to 4 at Village Kanjur, Taluka Kurla (hereinafter referred to as the Project) and specifically mentioning that the Project is ‘Ready Possession with OC – No Service Tax – NO VAT, the Complainants booked a Flat in the said Project by paying a sum of Rs.28,54,270.25ps. towards upfront money of the total sale consideration of Rs.2,02,91,304/- on 2.07.2016. An Agreement for sale was executed between the Parties on 08.07.2016 whereby Flat No. 1605 admeasuring 836 sq.ft. carpet area on the 16th Floor of the Building No. 1 Wing ‘A’ together with 2 stilt Car parking, was agreed to be sold to the Complainants by the Opposite Parties. As per demand of the Opposite Party Builder, total sale consideration was paid to the Opposite Party Builder on different dates upto 25.08.2016. In November, 2016, a representative of the Opposite Party Builder informed the Complainants that Flat, in question, is 90% ready and the Complainants could start the carpentry work in the said Flat. When the Complainants approached the Opposite Party for taking possession of the Flat, they were informed that the possession would be delivered within one month. Despite repeated requests when the Complainants could not get the possession of the Flat, vide e-mail dated 20.12.2016, they requested refund of the amount from the Opposite Party which was replied by the Opposite Party vide letter 23.12.2016 and declined the request of refund but informed that the possession of the flat would be delivered by Feb. or March 2017. On not receiving the possession by March 2017, the Complainants sent Legal Notice on 24.04.2017. Vide letter dated 26.04.2017, the Opposite Party Builder informed that they were casting additional floor on the Building for which approval by the Municipal Authorities is awaited and only after casting additional floor on the Building, possession of the flat would be given to the Complainants. Vide letter dated 26.09.2017, the Complainants were offered possession of the Flat. It is alleged that Complainants were asked to execute some documents before possession of the Flat but the Complainants found the said documents prejudicial to their interest, therefore, the Complainants declined to sign the said documents. Alleging deficiency in service on the Part of the Opposite Parties, present Complaint has been filed with following prayer:-

“i. Direct to the Opposite Parties to hand over to the Complainants within such period as may be fixed by this Hon’ble Commission, quiet, vacant and peaceful possession of the flat viz. flat No. 1605 with three Bedroom together with two Still Car Parking in Building No.1 Wing ‘A’ of NG Royal situate at Kanjurmarg (East), Mumbai, Maharashtra.

ii. Direct the Opposite Parties to provide for information and documents, as under:

a) Supply of entire chain of title of the project including any loan or financial facilities obtained by the Opposite Parties on the said project;

b) Provide to the Complainants the present factual position of the project and the date by which the Opposite Parties will hand over to the Complainants quiet, vacant and peaceful possession of the said flat viz. flat No. 1605 with three Bedrooms together with two Stilt Car Parking in Building No.1 Wing ‘A’ of NG Royal Park situate at Kanjurmarg (East), Mumbai, Maharashtra.

c) Opinion of Advocate inter alia disclosing that the title of the Opposite Party No.1 in the project land is clear and marketable;

d) Disclose of existing encumbrances on the land and the building or building constructed on the same;

e) The date when the possession of the flat would be handed over to the Complainants;

f) Precise nature of title to be passed on to the Complainants on possession of the said flat;

g) Common area and facilities to be provided by the Opposite Parties;

iii. Pass an order directing to the Opposite Parties to pay interest @ 18% pa on a an amount of Rs.2,02,91,304/- (Rupees Two Crore Two Lakhs Ninety One Thousand Three Hundred and Four only) from 30 September 2016 till the date of possession.

iv. Pass an order directing the Opposite Parties to reimburse to the Complainants the actual rent which is being paid by the Complaints for their rented premises present residence at Powai, Andheri (East), Mumbai from 7th December 2016 till the Opposite Parties hand over to the Complainants quiet, vacant and peaceful possession of the said flat viz. flat No. 1605 with three Bedrooms together with two Stilt Car Parking in Building No.1 Wing ‘A’ of NG Royal Park situate at Kanjurmarg (East), Mumabai, Maharashtra.

v. Pass an order directing the Opposite Parties to pay to the Complainants compensation at the rate of Rs.1,00,000/- (Rupees One Lakh only) per day from the September 2016 being the date when the Opposite Parties first promised to give to the Complainants quiet, vacant and peaceful possession of the said flat No.1605 with three Bedrooms together with two Stilt Car Parking in Building No.1 Wing ‘A’ of NG Royal Park situate at Kanjurmarg (East), Mumabai, Maharashtra till actual quiet, vacant and peaceful possession thereof is given to the Complainants.

vi. In alternative to Prayers (1) to (5) this Hon’ble Commission may be pleased to cancel the Agreement for Sale dated 8th July 2016 and direct the Opposite Parties to refund to the Complainants the entire amount paid by them to the Opposite Parties together with interest at 18% per annum from the date of each payment till payment or realization thereof.

vii. Pass an order directing to the Opposite Parties to pay damages to the Complainants to the tune of Rs.75,00,000/- (Rupees Seventy Five Lacs only) for mental agony, torture, and harassment and unfair trade practice, fraud committed by the Opposite Parties on the Complainants and gross deficiency in service provided by the Opposite Parties;

viii. Costs of the present complaint be awarded in favour of complainants and against the opposite parties;

ix. Pass any other or further order (s) which this Hon’ble Commission deems fit and proper in the interest of justice, equity and good conscience..”

3. The Opposite Party Builder contested the Complaint by filing Written Version and denied all the allegations made against them. It was stated that Clause 21 and Clause 66 of the Agreement for Sale executed on 08.07.2016 are relevant, which are reproduced hereunder:-

“21. The said building is expected to be completed and possession of the said Unit is expected to be delivered by on or before 12 months from the date of Agreement unless prevented by or due to act of God or act of items/state or force majors or riots or labour trouble or any litigation or any objection of Municipal or other authorities for any reason or circumstances whatsoever which substantially effects or alters the time herein contained of which are beyond the promoters control in any case the purchaser/s shall not be entitled to claim any damages whatsoever or otherwise or account of delay of default in giving possession of the said unit”

66. The Purchaser is also aware that the promoter is in the process of putting up additional floors and also putting up Commercial on the Ground to 2nd Floor, or 3rd Floor, which the Promoter shall construct the said additional Floors, and the Commercial Floors after the plans are approved, the said Promoter may construct the additional floors/commercial, either before the possession of the Flat is handed over to the purchaser. In any event, the purchaser irrevocable agrees, or confirms, that they have understood, seen the existing 18th Floor building, and have also seen the Elevation of the building which shows Commercial ,l but does not shows the additional floors to be constructed, but additional floors, shall be constructed. The purchaser under no circumstances shall object to the construction of the additional floors i.e. 19th floor and Commercial premise, after the approval either before the possession or after.”

4. It was submitted that as per Clause 21 of the Agreement for Sale, the Possession of the Flat was expected to be delivered on or before 12 months from the date of Agreement, i.e., by 08.07.2017. It was further submitted that as specified in Clause 66 of the Agreement, they wanted to cast some additional floor on the said Building, though the Flat was ready for possession within stipulated period yet keeping in view, the safety of the Complainants which was at stake while casting additional floor, they could not deliver the possession of the Flat before completion of the additional floor on the Building. The Commencement Certificate for additional floor was issued only on 31.05.2017 which was valid upto 30.05.2018. The Construction for 19th floor completed by August 2017. It was further submitted that they offered the possession of the Flat on 18.09.2017, i.e., with a delay of 2 months from the expected date of delivery of the Possession and for this delay they have already compensated the Complainants by way of waiving off the maintenance charges of the Complainants w.e.f. March 2018 to August 2019. It was further submitted that they have already obtained Occupancy Certificate and they have not charged any service Tax or VAT. It was submitted that there is no deficiency in service on their part and it was prayed that the Consumer Complaint be dismissed.

5. We have heard Mr. U.C. Mittal, learned Counsel appearing on behalf of the Complainants, Ms. Priyashree Sharma, learned Counsel appearing on behalf of the Opposite Party Builder, perused the material available on record and have given a thoughtful consideration to the various pleas raised by the Parties.

6. During the course of proceedings, the possession of the Flat has been handed over to the Complainants on 21.02.2018 and the information sought by the Complainants vide Prayer Clause (ii) have already been provided to the Compla

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inants and the same prayer has given up by the Complainants on 08.02.2018. The only dispute remains, is with regard to Delay Compensation. 7. Undisputedly, as per terms of the Agreement, the expected date of delivery of the possession of the Flat was 08.07.2017 but the Opposite Party Builder had offered the possession of the Flat to the Complainants only on 18.09.2017, i.e., with a delay of approximately 2 months. In the catena of Judgments, the Hon’ble Supreme Court has awarded Delay Compensation only in the cases where there was inordinate delay of years in offering the possession of the Flats. But in the instant case, there is a delay of about 2 months which by no stretch of imagination can be said to be an inordinate delay and for this delay of 2 months, the Opposite Party Builder has already compensated the Complainants by waiving off the Maintenance Charges w.e.f. March 2018 to August 2019, which keeping in view the peculiar facts and circumstances of the case, in our considered view, is just and proper. In the said backdrop of the matter, we do not find any substance in the Consumer Complaint and the same is hereby dismissed with no order as to costs.
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