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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
V.B. Gupta, P.M.
SHREE SAI DEVELOPERS PVT. LTD. AND OTHERS - Appellants
Versus
VILAS GANPAT GHORPADE - Respondent
First Appeal No. 378 of 2014. (Against the Order dated 24/02/2014 in Complaint No. 34 of 2009 of the State Commission Maharastra).
Decided on : 27-07-2015
Mohd. Wasay Khan, Advocate, for the Appellant; Pawan Kumar Ray, Advocate, for the Respondent
The main legal point established is that a builder's misrepresentation and delay in project completion can constitute deficiency in service, leading to liability for compensation.
Headnote:
Delay Condoned - Consumer Dispute - Urban Land (Ceiling & Regulation) Act, 1976, Section 8 - The court discussed the delay in possession of a flat and the demand for payment by the builder. It highlighted the provisions of the agreement, misrepresentation by the builder, and the deficiency in service. The court found the builder at fault and directed them to hand over possession of the flat and pay compensation to the complainant.
Fact of the Case:
The respondent entered into an agreement with the appellants to purchase a flat. The possession was delayed, and a dispute arose regarding the payment demanded by the builder. The State Commission partly allowed the complaint, leading to this appeal.
Finding of the Court:
The court found that the builder misrepresented the relevant statutory permissions and admitted to the delay in project execution. It held the builder at fault for the delay in possession and deficiency in service.
Issues: The issues revolved around the delay in possession, demand for payment, and the builder's alleged deficiency in service.
Ratio Decidendi: The court held that the builder's misrepresentation and delay in project completion constituted deficiency in service. It directed the builder to hand over possession of the flat and pay compensation to the complainant.
Final Decision: The court dismissed the appeal and directed the builder to pay punitive damages and interest if they fail to deposit the amount within the prescribed period.
ORDER
V.B. Gupta, (P.M) - Delay condoned.
2. Appellants/Opposite Parties No.1 to 3 have filed this appeal in which there is challenge to impugned order dated 24.02.2014, passed by State Consumer Disputes Redressal Commission, Maharashtra, Mumbai (for short, 'State Commission) in Complaint Case No.CC/09/34 vide which the consumer complaint filed by Respondent/Complainant was partly allowed.
3. The brief facts of this case are, that respondent executed a registered agreement with the appellants on 25/10/2005 for purchase of flat bearing No.903 admeasuring 945 sq.ft. built-up area on 9th floor in 'D building, in Golden Park Tower, a project developed by the appellants for agreed consideration of Rs. 20,79,000/- . Possession of flat was to be delivered on or before 30/06/2007. Respondent paid an amount of Rs. 5,40,540/- against the agreed consideration. Appellants sent demand notice dated 13/07/2007 for amount of Rs. 3,95,010/- outside the purview of terms & conditions of the agreement. The consumer complaint has been filed by respondent alleging deficiency in service against the appellants praying for direction to hand over possession of the flat and not to create third party interest. Further, it is prayed that appellant be directed to pay @ Rs. 3,000/- per day from August 2008, till date of payment towards mental agony along with interest @ 24% and cost.
4. Appellants in its written version, inter alia contending that as per stipulations of the registered agreement, respondent failed to pay an amount of Rs. 3,95,010/- as demanded vide notice dated 13/07/2007. The respondent failed and neglected to make the payment of balance consideration on time. Therefore, booking was cancelled. The project was delayed as the local municipal authorities stayed the construction for want of environmental clearances and NOC from the Labour Commissioner. The respondent was duly intimated about the delayed status of the project, vide letter dated 02/11/2006. Amount of Rs. 83,160/- was required to be paid on or before the casting of each slab and not after the completion, as falsely presumed by the respondent. Since, dispute arose for failure of payment as per demand by the respondent, no deficiency in service as alleged can be attributed to the appellants and prayed for dismissal of complaint.
5. The State Commission allowed the complaint partly.
6. Hence, this appeal.
7. I have heard learned counsel for the parties and perused the record.
8. It is submitted by learned counsel for the appellants that demand for payment of due amount was duly communicated to the respondent. Despite receipt of the demand letter, respondent did not make any payment for about one and half years. Thereafter, he filed the consumer complaint in the year 2009 without mentioning therein that as per terms of the agreement and schedule of payment, further amount has become due and payable by respondent during one and half years. Further, as per clause 9 of the agreement, it has been specifically mentioned that in case, purchaser commits any default in making payment, as per the schedule of payment then he is liable to pay an interest @ 24%. The cancellation of the flat had been done in full conformity with the clauses and terms and conditions as stipulated in the agreement. It is further submitted, that project was delayed as certain formalities was not obtained from the concerned authority and respondent was duly intimated about the delay in project. There is no deficiency on the part of the appellant, whereas respondent is defaulter who had not made the timely payment.
9. On the other hand, it is submitted by learned counsel for the respondent that admittedly the project in question has been delayed by the appellants themselves. Thus, there is deficiency in service on the part of the appellants. Since, appellants have failed to give the possession within the specified period, the State Commission rightly allowed the complaint.
10. The State Commission in its impugned order
