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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Prem Narain, Presiding Member
R V Prasannakumaar and Ors. —Complainants
versus
Mantri Castles Pvt. Ltd. and Anr. —Opp. Parties
Consumer Case No.913 of 2016
Decided on 8.6.2018
For the Complainants:Mr. Chandrachur Bhattacharya, Advocate
For the Opp. Parties:Mr. Gopal Jain, Sr. Advocate with Mr. Shekhar G. Devasa, Mr. N. Swaminathan, Ms. Prashanti P. Mr. Ashok Kumar Singh and Mr. Manish Tiwari, Advocates
IMPORTANT POINT
Possession of Apartment must be handed over within a reasonable time-schedule.
Headnote:Consumer Protection Act, 1986—Section 21 read with Section 12(1) (c)—Real estate—Booking of Apartments—Possession has not been delivered to complainants by OPs despite committed date of possession having expired much earlier—If project is very big and there are common facilities and amenities proposed for whole project and if there is no commitment to complete facilities and amenities before a particular date, OPs cannot be held liable for deficiency in service in this regard—However, from point of view of consumer, if no date of completion of common facilities and amenities is given, it should be understood that they will also be completed within time frame given for handing over of apartment or at least by date of registration of conveyance deed—Common facilities and amenities as per agreement shall be completed within a period of six months and if same are not completed, OPs shall pay @ Rs.1,000/- per month to each of complainants—So far as payment in respect of car parking is concerned, car parking was not compulsory and every complainant was not required to pay for car parking—This part of complaint cannot be considered under Section 12(1)(c) of Consumer Protection Act, 1986 as common relief claimed by all complainants—No force in claim of complainants for refund of amount paid for car parking spaces—OPs directed to handover possession to complainants within a period of 60 days—OPs directed to complete common facilities and amenities as per agreement within a period of six months failing which OPs shall pay compensation @ Rs.1,000/- per month to each of complainants—OPs also directed to pay Rs.2,000/- to each of complainants towards cost of litigation.
sHeld: Coming to the prayer relating to the amenities and facilities of the project, it is seen that the occupancy certificate has already been issued on 10.2.2016 by the competent authority. In this regard, the OPs have claimed that facilities and amenities are also complete and it is only the club house that is taking some more time and the same will also be completed in the near future. It has been claimed by the OPs that the common facilities and amenities were to be completed in phases and the possession clause was only in respect of the apartment. It is seen that clause 6.1 of the Construction Agreement mentions only the construction and possession relating to apartment. The complainants in their complaint have not mentioned any specific clause under which the common facilities and amenities were to be completed before a particular date. It is true that if the project is very big and there are common facilities and amenities proposed for the whole project and if there is no commitment to complete the facilities and amenities before a particular date, the OPs cannot be held liable for deficiency in service in this regard. However, from the point of view of the consumer, if no date of completion of common facilities and amenities is given, it should be understood that they will also be completed within the time frame given for handing over of the apartment or at least by the date of registration of the conveyance deed. In the facts and circumstances of the case, it is ordered that the common facilities and amenities as per the agreement shall be completed within a period of six months from the date of this order and if the same are not completed, the OPs shall pay @ Rs.1,000/- per month to each of the complainants under the present complaint.
On the basis of the principle laid down by the Hon’ble Supreme Court in the above judgment, I do not find any force in the claim of the complainants for refund of the amount paid for car parking spaces.
The complainants have also prayed in the complaint that complainants be given Rs.4,80,00,000/- (Rupees four crores eighty lakhs only) in total towards mental agony and harassment. It is seen that no break up of this amount has been given and moreover, when the compensation in the form of interest for delayed possession is awarded, there is no justification for awarding any separate compensation for mental agony and harassment as interest awarded is also in the form of compensation as held by the Hon’ble Supreme Court in Ghaziabad Development Authority Vs. Balbir Singh, 2004 (5) Supreme 51: (2004) 5 SCC 65. (Paras 26, 28 and 29)
Result: Complaint Partly allowed.
Prem Narain, Presiding Member—This consumer complaint has been filed originally by 48 complainants against the Opposite Parties under Section 21 read with Section 12(1) (c) of the Consumer Protection Act, 1986 alleging that the complainants had booked apartments with the OPs, however, the possession has not been delivered to the complainants by the OPs despite the committed date of possession having expired much earlier. The following prayers have been made in the complaint:
Direct opposite parties to handover possession of the fully constructed; completed flats without any further delay alongwith all permanent utilities promised as per agreement, copies of all relevant plans, approvals and Occupancy certificate issued by the relevant authorities.
Direct the opposite parties to grant to the 48 complainants/flat owners and other flat owners with same interest who will be impleaded after issuance of public notice, compensation for the entire period of delay @ 18% per annum on the amount deposited by the complainants with the opposite parties till the time actual possession is given.
Direct the opposite parties to provide to the complainants/flat owners and other flat owners with same interest who will be impleaded after issuance of public notice, at the time of possession each of the facilities and amenities which were promised in the agreement.
Direct the opposite parties to pay to the complainants and other flat owners with same interest who will be impleaded after issuance of public notice additional compensation @ 18% interest per annum on the amount deposited for the delay in provision of the promised facilities and amenities. Or in the alternative, in case of non-provision of the promised amenities and facilities, direct opposite parties pay to the 48 complainants a lump sum compensation of Rs.4,80,00,000/- (Rs. Four crore eighty lakhs) to be distributed equally among the complainants in the same proportion to the other flat owners with same interest who will be impleaded after issuance of public notice.
Direct the opposite parties to refund to the complainants /flat owners a sum of Rs.1,44,00,000/- (Rs. One crore Forty Four Lakhs) alongwith 18% interest charged illegally towards car parking space alongwith further compensation inthe same proportion to the other flat owners with same interest who will be impleaded after issuance of public notice.
Direct the opposite parties to pay to the complainants/flat owners a lump sum compensation of Rs.4,80,00,000/- (Rs. Four Crore Eighty Lakhs) by way of compensation for mental harassment and agony, to be distributed equally among the complainants alongwith 18% interest and further compensation in the same proportion to the other flat owners with same interest who will be impleaded after issuance of public notice.
Award cost of the complaint to the complainants.
Pass any such further order or orders which this Hon’ble Commission deems fit and proper in the facts and circumstances of the present case.
2. It has been further alleged that this complaint is being filed in the representative capacity and there are some more similarly placed consumers who seek similar relief and therefore, the complaint be admitted under Section 12(1)(c) of the Consumer Protection Act, 1986.
3. A reply to the application under Section 12(1)(c) of the Consumer Protection Act, 1986 was filed by the OPs. It was submitted that seven complainants have already got the possession and therefore, the commonality of interest was not there amongst all the complainants. Written statement was filed by the OP. After considering the reply as well as averments made in the complaint and after hearing both the parties, this Commission vide order dated 30.11.2016 allowed the application moved by the complainants u/s 12(1)(c) of the Consumer Protection Act, 1986 and also directed the complainants to publish the public notice under Order 1, Rule 8 of CPC.
4. After publication of public notice, certain new complainants joined the
