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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
V.K. Jain, Presiding Member
Harsh Malhotra —Complainant
versus
Housing Development and
Infrastructure Limited — Opp. Party
Consumer Case No.3188 of 2017
Decided on 3.7.2019
Counsel for the Parties:
For the Complainant:Mr. Vidur Bhatia, Advocate
For the Opp. Party: NEMO
IMPORTANT POINT
In the absence of any loss or damage to flat-purchaser on account of construction of additional floors, the flat-purchaser are not entitled to a share in the profit, if any, made by the builders by constructing and selling additional flats.
Headnote:
Consumer Protection Act, 1986—Section 21—Maharashtra Ownership Flats Act, 1963—Section 7—Complaint—Residential flat—Booking of—Grievance of the complainants is that the possession of the allotted flat has not been offered to them despite they having already paid Rs.1,26,23,996/- to the OP—Possession having not even been offered to the complainants—No agreement between the parties for the payment of for additional facilities fixtures such as premium quality of tiles, Gypsum Plaster, Mahanagar Gas Pipeline and water proofing particularly in bathroom and for outside railing with glass—OP is not entitled to additional amount—In the absence of any loss or damage to complainant on account of construction of additional floors, the complainants are not entitled to a share in the profit, if any, made by the OP by constructing and selling additional flats—Many directions issued—Held that, OP shall deliver possession lawfully and compensation in the form of simple interest @ 8% per annum. [Paras 5, 7, 9 and 10]
Result: Complaint disposed of.
ORDER (ORAL)
V.K. Jain, Presiding Member—The complainants booked a residential flat with the OP in a building namely ‘Metropolis’ which the OP was construct in C.T.S. No. 866B, Village Ambivali, Andheri (West), Mumbai. Flat No. 2202 on 22nd Floor in B Wing of the said building and having saleable area of 96.65 sq.mtrs. was allotted to them for a consideration of Rs.1,26,24,030- exclusive of maintenance deposits, parking charges etc. The terms of the transaction executed between the parties were incorporated in the Agreement for Sale dated 10.06.2009. Clause 6 of the agreement which referred to delivery of the possession of the premises, reads as under-
“6. The possession of the said premises, subject however to the fact that the construction of the building is not delayed on account of non-availability of steel, cement and other building material, water or electricity supply or due to acts of God, Civil Commotion, Riot, War or any notice, order, rule, notification of the Government andor any other Public Body andor Building completion Certificate by M.C.G.M. andor planning Authority and for other circumstances beyond the control of the Developer, is expected to be handed over by the Developer to the Purchasers by 30th Day of December 2013 provided the developer has received the full purchase price of the said premises and the other amounts payable by the Purchasers. The Developer agrees that if, for the reasons beyond their control, they are unable to give possession of the said premises by the date stipulated hereinabove, they shall be liable, on demand by the Purchasers, be liable to refund to the Purchasers the amounts already received by them in respect of the said premises without any interest. It is agreed that upon refund of the said amount, as stated hereinabove, the Purchaser’s shall have no right, title, interest, claim or demand of any nature whatsoever either against the Developer or against the said premises or against the said property in any manner whatsoever and the Developer shall be entitled to deal with and dispose off the said premises to any person or persons as the Developer, may at their absolute discretion desire.”
2. The primary grievance of the complainants is that the possession of the allotted flat has not been offered to them despite they having already paid Rs.12623996- to the OP. The complainants are also disputing the demand of maintenance charges by the OP besides seeking refund of the amount of Rs.431961- collected towards VAT and Rs.163914- towards interest on the VAT. This is also the case of the complainants that the OP constructed a building consisting of 31 storeys as against the proposed building of 27 storeys at the time the agreement was executed between the parties. The complainants are, therefore, before this Commission with the following prayers-
1. Direct the Respondent to remove physical deficiencies and regularise the FSI violation and obtain the Occupation Certificate for Metropolis building and thereafter grant the Complainants possession of the Flat No B-2202 in Metropolis Building
2. Restrain the Respondent from demanding payment or deposit of any maintenance charges since this falls within the domain of the Metropolis Co-operative Housing Society incorporated in June 2017;
3. Award compensation in an amount of Rs.78,01,606 by way of interest at 12% per annum for the delay in granting possession of the Flat from 31 December 2011 until 30 September 2017 and further interest for the period from 1 October 2017 until possession is handed over to the Complainants;
4. Award compensation in an amount of Rs.32,72,670 being the Complainants’ proportionate share in the value of 58 flats realised and 6 flats to be realised by the Respondent from sale of flats constructed on 28 to 31 floors without the Complainants’ prior consent and proportionate interest thereon at 12% per annum amounting to Rs.9,90,905 until 30 September 2017 and further interest until the date of payment;
5. Direct re
