1. Heard Mr. Aditya Parolia, Advocate, for the complainants and Mr. Sunder Patjoshi, Senior Advocate assisted by Mr. Manish Tiwari, Advocate, for the opposite party.
2. Suman Kumar Jha and Pratibha Jha (the complainants) filed this complaint for directing Mantri Technology Constellation Private Limited (the opposite party), (hereinafter referred to as the builder) (i) to refund INR 35368359/- along with interest @ 18% per annum, from the date of each deposit till its payment, (ii) to pay compensation of INR 1000000/-, for mental agony and harassment, (iii) to pay INR 100000/- as the cost of litigation and (iv) any other relief which the Commission deems fit and proper, in the circumstances of the case, be passed.
3. The facts as stated in the complaint and emerged from the documents attached with it are that the builder was a company, engaged in business of development and construction of residential and commercial buildings and selling its unit to the prospective buyers. The builders launched a project of 3, 4 & 5 BHK luxurious villas in the name of “Mantri Signature Villas” on OMR-ECR Link Road, Akkarai, Chennai. The complainants booked a villa and were allotted Unit No. OL-14, Building No. Oleander, admeasuring 3900 sq. ft. at the rate of INR 8240/- per sq. ft., basic price INR 32136000/-, in the said project, on 29.06.2013. Payment plan was “Construction Linked Payment Plan”, under which 10% of the basic price was to be paid on the date of booking, 15% on the date of agreement, 25% on completion of foundation, 20% at the time of ground floor roof slab, 20% at the time of last floor roof slab and 10% at the time of offer of possession. Agreement for Sale & Agreement for Construction were executed between the parties on 13.09.2013. Under Annexure-B-1 to Agreement For Construction, the promised period of handing over the possession was May, 2015. The complainants deposited INR 1000000/- on 29.06.2013, INR 2181464/- on 03.09.2013, INR 4772196/- on 12.11.2013, INR 32136/- on 01.03.2014, INR 48204/- on 01.03.2014, INR 2000000/- on 29.04.2014, INR 4614360/- 03.05.2014, INR 1419640/- 13.05.2014, INR 4475333/- on 25.08.2014, INR 524667/- on 25.08.2014, INR 1868720/- on 16.09.2014, INR 18875/- on 16.09.2014, INR 45397/- on 25.09.2014, INR 18875 on 17.10.2014, INR 1135371/- 03.12.2014, INR 2046087/- on 16.12.2014, INR 1000000/- on 01.12.2015, INR 135377/- on 01.12.2015, INR 2046087/- on 07.01.2016. INR 32136/- on 07.01.2016, INR 1943244/- on 10.08.2017, INR 3912988/- on 28.08.2017 and INR 59750/- on 28.08.2017 (Total INR 35363059/-). The complainants diligently followed the payment plan and deposited money as and when demanded by the builder but the builder delayed the construction. The builder, vide email dated 11.12.2015, sent images of the construction, in which, no satisfactory progress in the construction was found. The complainants, vide email dated 15.12.2015, made query as to whether they would expect possession till March, 2016 but no reply was given. The builder, vide email dated 07.06.2017, called for pre-delivery inspection. The complainants, after inspection, vide email dated 07.06.2017, suggested some alteration. The builder, vide email dated 17.06.2017, demanded of INR 3592865/-, to be deposited on or before 26.06.2017, mentioning therein that the construction had reached at registration and possession stage. The complainants made query about final date of possession. Then, an email 03.07.2017 was given mentioning therein that revised possession date as August, 2018. The complainants, vide email dated 04.07.2017, protested that they were waiting for possession from more than two years and wanted a specific date for possession. The builder, vide email dated 07.08.2017, raised demand on INR 5915244/-, to be deposited on or before 26.06.2017, mentioning therein that the construction had reached registration and possession stage. The complainants deposited INR 1943244/- on 10.08.2017, INR 3912988/- on 28.08.2017 and INR 59750/- on 28.08.2017. The complainants were invited to take possession of the villa on 06.09.2017. When, the complainants visited the villa, they found that the villa was not complete in all respect and was not in liveable condition. On the other hand, the builder was insisting to sign the paper, in which, it was written that they were receiving possession of the villa in fully ready condition. The complainants did not agree for signing that paper and were disappointed with the attitude of the builder, who was insisting to sign above said paper in the garb of alleged rule of the builder that if they wanted to take key of the villa then they had to sign it. The complainants took several pictures, showing incomplete constructions of the villa. The complainants, vide email dated 07.09.2017, made a detail protest of the attitude of the builder but no reply was given. Thereafter, the complainants gave a legal notice dated 27.09.2017 (dispatched on 03.10.2017), asking for refund of their money along with interest @ 18% per annum from the date of each deposit. But no reply was given by the builder. Then, on the allegations that the construction of the villa was incomplete in September, 2017 and was not in liveable condition although more than two years have passed after promised date of possession, which was May, 2015, in the construction agreement and the complainant were asked to sign a document that the construction was complete in all respect, as a condition for taking possession, this complainant, was filed on 08.01.2018 was for refund of the money etc.
4. The builder contested the complaint and filed its written reply on 28.08.2018, in which, material facts have not been denied. It has been stated that Chennai Metropolitan Development Authority approved building plan and layout of house site plan on 11.03.2013. Corporation of Chennai, Town Planning Section granted permission for development plan on 04.06.2013. The constructions were started thereafter with sincere efforts. The main contractor, who was appointed, for civil works for the project, unilaterally, terminated the contract in midway. Thereafter, a new contractor was hired, who took time in restart the construction on the spot. In the month of December, 2015, due to heavy rain, entire Chennai, including the construction site was flooded and the work was completely stopped. There was shortage of skill workers throughout. There was shortage of steel also. In August, 2016, sand lorry operators went on indefinite strike. Due to which, supply of sand on the site was stopped. Whatever delay was caused, it was beyond the control of the builder and due to force majeure. In Agreement For Construction, aforesaid reasons have been provided a reasonable cause for delay in construction and on its basis demand for refund of money is not maintainable. It appears that the complainants booked the villa as an investment for deriving profit and not for personal use. When, the market in real estate went down, then they demand for refund of money with interest @ 18% per annum. The complainants are not a consumer, within the meaning of Consumer Protection Act, 1986. The builder used to share the progress in construction to the customers time to time. There was no harassment of the customers on their behalf. The constructions of the villas were completed since August, 2017, and various allottees were given possession of it. The complainants were also informed vide emails dated 07.08.2017 and 28.09.2017 for taking possession. Under Clause-8 (G) of Agreement For Construction, it was agreed between the parties that in case of delay in delivery of possession, the builder would be liable to pay compensation at the rate of Rs.3/- per sq.ft., per month. For delay in construction, neither refund can be asked nor can interest at the rate of 18% per annum and compensation be claimed. The contract between the parties contains an arbitration clause in case of any dispute and the complaint is not maintainable. The disputed questions of facts are involved as such the complainants be relegated to go before Civil Court for adjudication of dispute. The complaint suffers from the defect of non-joinder of necessary parties.
5. The complainants filed their rejoinder reply on 23.10.2018 in which the material facts stated in the complaint were reiterated. It has been denied that the complainants invested money in the villa, for earning profit. It has been stated that the complainants booked the villa for their residence. They took loan of Rs. 69.7 lakhs on interest of 11.2% per annum 22.08.2013, from State Bank of India, by mortgaging their earlier house. Thereafter, they took home loan of Rs. 2.14 crore on interest of 10.3% per annum from State Bank of India on 31.03.2014, for paying instalments of the building plan. Complainant-1 took loan from his Provident Fund on 25.08.2014. Agreement For Sale & Agreement For Construction were one sided documents as the complainants had no option but to sign the dotted lines of the agreements, under the threat of forfeiture of their booking amount. Possession notices were deceptive and given only for collecting money although at that time, neither the construction was complete nor was Occupation Certificate obtained. The builder was insisting to sign the paper, in which, it was written that they were receiving possession of the villa in fully ready condition although the construction was incomplete.
6. Along with complaint, the complainants filed copy of website relating to the details of the builder (Annexure C-1), copy of brochure of “Mantri Signature Villas” (Annexure C-2), Application Form dated 15.07.2013 (Annexure C-3), Agreement For Sale & Agreement For Construction dated 13.09.2013 (Annexure C-4), Email dated 11.12.2015 of the builder and reply dated 15.12.2015 (Annexure C-5), Email dated 07.06.2017 of the builder and reply dated 07.06.2017 (Annexure C-6), Email dated 17.06.2017 and 22.06.2017 of the builder and reply dated 23.06.2017 and Email dated 03.07.2017 of the builder (Annexure C-7), Email dated 04.07.2017 (Annexure C-8), Email dated 04.08.2017 (Annexure C-9), Email dated 07.08.2017 (Annexure C-10), Photographs of the villa as taken on 06.09.2017 (Annexure C-11), Email dated 07.09.2017 (Annexure C-12), Legal notice dated 27.09.2017 (Annexure C-13) and Some of the payment receipts (Annexure-C-14). Along with rejoinder reply, the complainants filed Home loan sanction letter dated 31.03.2014 as (Annexure RE-1), Mortgage Loan sanction letter dated 22.08.2013 as (Annexure RE-2), Lease Agreement dated 28.02.2017 and renewal dated 03.01.2018 as (Annexure RE-3), Papers relating to loan taken from Provident Fund and cheque dated 25.08.2014 (Annexure RE-4). The complainants filed an Affidavit of Evidence of Suman Kumar Jha and an Affidavit of Evidence of Pratibha Jha. The complainants filed Affidavits of Admission/Denial of Suman Kumar Jha and Pratibha Jha. The complainants filed additional Affidavit of Evidence of Suman Kumar Jha and Affidavit of Evidence of Pratibha Jha.
7. Along with written Reply, the opposite party filed Permission granted by Corporation of Chennai, Town Planning Section dated 04.06.2013 (Annexure-R-1), Approval granted by Chennai Metropolitan Development Authority dated 11.03.2013 (Annexure-R-2), Planning permission for layout of the villas granted Chennai Metropolitan Development Authority dated 11.03.2013 (Annexure-R-3), Website photographs relating flood in Chennai, in December, 2015 and December, 2017 (Annexure-R-4), Media report relating to Sand Lorry Operator’s strikes dated 11.08.2016 (Annexure-R-5), Papers relating to delivery of possession to two villas (Annexures-R-6 and R-7), photographs showing that some of the villas owners were residing (Annexures-R-8 and R-9), Email dated 11.12.2015 and reply email dated 15.12.2015 (Annexure-R-10), Email dated 07.06.2017 (Annexure-R-11). Email dated 20.06.2017 (Annexure-R-12), Email dated 27.07.2017 (Annexure-R-13), Email dated 07.08.2017 (Annexure-R-14), Email dated 07.09.2017 (Annexure-R-15), Email dated 28.09.2017 (Annexure-R-16) and photographs of the villa (Annexure-R-17). Affidavit of Evidence and Affidavit of Admission/ Denial of Girish Gupta H.S. have been filed. Both the parties filed their short Synopsys.
8. We have considered the arguments of the counsel for the parties and examined the record. The complainants booked the disputed villa on 29.06.2013. Agreement For Sale & Agreement For Construction were executed between the parties on 13.09.2013. Under Annexure-B-1 to Agreement For Construction, the promised period of handing over the possession was May, 2015. Payment plan was “Construction Linked Payment Plan”. The builder did not raise any dispute that the complainants had committed any default in payment, on issue of demand notice. The flood in Chennai was in December, 2015 and Sand Lorry Operators strike was in August, 2016, i.e. subsequent to the promised date of delivery of possession. According to the builder, the construction was completed in August, 2017, as such, there was delay in construction for more than two years, according to their own version. The complainants dispute this fact also and have filed various photographs, taken on 06.09.2017, showing incomplete construction. As such, let us examine as to whether the construction of villa was complete in August, 2017.
9. The builder, vide email dated 07.06.2017, called the complainants for pre-delivery inspection. The complainants, after inspection, vide email dated 07.06.2017, suggested some alteration. The builder, vide email dated 17.06.2017, demanded INR 3592865/-, to be deposited on or before 26.06.2017, mentioning therein that the construction had reached at registration and possession stage. The complainants made query about final date of possession. Then, an email 03.07.2017 was given, mentioning therein that revised possession date as August, 2018 (Annexure-C-7). The complainants, vide email dated 04.07.2017, protested that they were waiting for possession from more than two years and wanted a specific date for possession. Then the builder, vide email dated 07.08.2017, raised final demand of INR 5915244/-, to be deposited on or before 26.06.2017, mentioning therein that the construction had reached registration and possession stage. The complainants deposited INR 1943244/- on 10.08.2017, INR 3912988/- on 28.08.2017 and INR 59750/- on 28.08.2017. The complainants were called to take possession of the villa on 06.09.2017. When, the complainants visited the villa, they found that the villa was not complete in all respect and was not in liveable condition. They have filed photographs of villa (Annexure-C-11) taken on 06.09.2017, showing incomplete construction.
10. Clause-E(2) of Agreement For Construction provides as follows:-
“2. Possession/Handing over Possession in this agreement is limited to the developer obtaining Completion Certificate from the concerned local authority/Project Architect and intimating the purchaser to take possession of the Villa.”
11. The builder has nowhere stated that he had obtained Completion Certificate from the concerned local authority/Project Architect, before issue of email dated 17.06.2017 and 07.08.2017 nor produced the Completion Certificate. The builder relied upon Rule-20 of Tamil Nadu Combined Development and Building Rules, 2019 and argued that “Completion Certificate” was not required for the villa. These Rules were not inexistence, in 20
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17. From the photographs filed by the complainants, it is proved that the construction was incomplete even on 06.09.2017. As such, it is proved that earlier, the builder through email dated 03.07.2017, gave expected date possession as August, 2018. Only for raising final demand, emails dated 17.06.2017 and 07.08.2017 were issued although construction was not complete till then nor Completion Certificate was obtained. 12. When the complainant went for taking possession on 06.09.2017, the builder insisted them to sign the paper, in which, it was written that they were receiving possession of the villa in fully ready condition, in the garb of alleged rule of the builder that if they wanted to take key of the villa then they had to sign it. This was an unfair trade practice. Offering possession of incomplete construction and without obtaining “Completion Certificate” does not justify the act of the builder. 13. Supreme Court in Bangalore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 711, Fortune Infrastructure Vs. Trevor D’ Lima, (2018) 5 SCC 442 and Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 SCC OnLine SC 438 has held that the buyer cannot made to wait for indefinite period for possession. In IREO Grace Realtech Pvt. Ltd. Abhishek Khanna, (2021) 3 SCC 241, only those buyers were directed to take possession, in respect of whom “Occupation Certificate” had been issued. O R D E R In view of aforementioned discussions the complaint is allowed with cost of Rs. one lakh. The builder is directed to refund the entire amount deposited by the complainants along with interest @ 9% per annum from the date of each deposit, within period of two months.