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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
C. Viswanath, Presiding Member
Jose Mariano Cordeiro – Appellant
versus
M/s. Kalash Real Estate Developers – Respondent
First Appeal No.12 of 2018
(Against the Order dated 05/12/2017 in Complaint No.01/2016 of the State Commission Goa)
Decided on 1.2.2021
Consumer Protection Act, 1986 – Sections 2(1)(g) and 19 : [Consumer Protection Act, 2019 – Sections 2(11) and 41] – Allowed of Flat – Delay in delivery of possession – Compensation – Scope – On 26.6.2013, complainant ensured into an Agreement with opposite party for purchase of a residential flat – Flat was to be delivered within six month with a grace period of three months – Opposite party failed to deliver possession within stipulated period – Since deficiency in service is established on part of respondent, complainant is entitled for compensation for delay in delivery of possession of flat – Appellant thus, held entitled for compensation for delayed hasting over of possession – Order accordingly.
Held: As per para 6 of the Agreement dated 26.06.2013, flat was to be delivered within 6 months from the date of Agreement, with grace period of 3 months. The Opposite Party, however, failed to deliver the possession of the flat within the stipulated period. Complainant sent emails dated 14.06.2014, 04.07.2014 and 11.07.2014 to the Opposite Party, but the Opposite Party did not reply to the emails also. Thereafter, Complainants sent a legal notice on 30.12.2014. Even the legal notice was not replied by the Opposite Party. Therefore, a Complainant filed a Consumer Complaint before the State Commission.
Regarding quantum of compensation granted by the State Commission, Learned Counsel for the Appellant submitted that the doctrine of ‘Contra Proferentum’ shall apply in the instant case. State Commission directed the Opposite Party to execute the sale deed for transfer of ownership of the flat in favour of the Complainant, after receiving the balance amount from the Appellant/Complainant. State Commission held that ‘The original sanction plan has not been produced by the OP. We are not inclined to believe that the delay in delivering possession of the said premises was on account of changes suggested by the Complainant. The failure of the developer to hand over possession within the contractually stipulated period amounts to deficiency in service within the meaning of Section 2 (1) (g), warranting the invocation of the jurisdiction vested in the NCDRC to issue a direction for the removal of the d efficiency in service.’ In the present case, possession was to be handed over within six months with a grace period of three months in special case. In view of the foregoing discussion, the Appellant/Complainant is entitled for compensation for delayed handing over of possession. (Paras 7 to 9)
Result: Appeal Disposed of.
ORDER
C. Viswanath, Presiding Member.—The present Appeal is filed by the Appellant against the order passed by the Goa State Consumer Disputes Redressal Commission, Panaji (for short ‘the State Commission’) in CC No.01 of 2016 dated 05.12.2017, whereby the Complaint filed by the Appellant/Complainant was partly allowed.
2. On 26.06.2013, Complainant entered into an Agreement with the Opposite Party for purchase of residential flat No.T-1, measuring 116.88 sq. meter, with open terrace of 53.08 sq. meter, for a consideration of Rs.40,00,000/-. Complainant paid a sum of Rs.25 lakhs on the date of Agreement and Rs.11 lakhs in instalments as per the Agreement. Balance amount of Rs.4 lakhs was to be paid at the time of delivery of possession and execution of the sale deed. Delivery of the flat was to be given within six months from the date of Agreement, with a grace period of 3 months in special cases. The Opposite Party, however, failed to deliver the possession of the flat within the stipulated period. Complainant sent emails dated 14.06.2014, 04.07.2014 and 11.07.2014 to the Opposite Party, but the Opposite Party did not reply to the emails also. Thereafter, Complainants sent a legal notice on 30.12.2014. Even the legal notice was not replied by the Opposite Party. Claiming deficiency in service, Complainant filed a Consumer Complaint before the State Commission with fol lowing prayer: -
“(a) Compensate the Complainant for the deficiency in service resulting from the Opposite Party’s failure to comply with his obligations in terms of the para no.6 of the said Agreement for Sale dated 26th June, 2013, by means of payment of the penal interest as provided under the Clause no.7 of the said Agreement for Sale, amounting to the said sum of Rs.22,68,000/- (Rupees twenty two lakhs sixty thousand) only and payment of further sums of Rs.1,08,000/- (Rupees one lakh eight thousand) only, per month, until the date of delivery of possession of the said premises into the hands of the Complainant with simultaneous execution of the competent Deed of Conveyance for transfer of ownership of the said premises together with the proportionate undivided right and share in the said property corresponding to the built up area of the said premises.
(b) Pay the compensation that may be awarded by this Hon’ble Commission in terms of the prayer (a) hereinabove, together with further interest thereon, calculated at the rate of 12% per annum, with effect from the date of the a ward that may be passed by the Commission, until the date of full and effectual payment of the compensation and whatever interest accruing thereon.
(c) Pay further and additional compensation to the Complainant by way of damages on account of mental anxiety, torture and inconvenience suffered by the Complainant, besides further legal costs and inconveniences of litigation, that the Complainant is also entitled to.
(d) Cause the execution of the competent Conveyance or Deed of sale for transfer of ownership of the said premises in favour of the Complainant together with the proportionate undivided right and share in the said property corresponding to the built up area of 116.88 Sq. mts. of the said premises.
(e) To initiate the process for formation of an entity for the regular maintenance of the said property and the Building Scheme, for which the Complainant is ready and willing to pay his proportionate contribution towards defraying the maintenance costs.
(f) Any other relief that may be deemed fit and proper in the circumstances of the case and in the interest of justice, may also be granted to the Complainant.
3. Complaint was contested by the Opposite Party by filing Written Version. It was stated that it was orally agreed that the possession of the flat was to be given within 24 months from the date of signing of the Agreement, with an extended period of 6 months due to unforeseen circumstances. It was further stated that the delay in handing over the possession occur
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