IMPORTANT POINTS
1) Respondent/Complainant cannot be held a defaulter in making the payment as there was no construction at the site and no steps were taken up by the Builder to the complete the Project.
2) Project has not been completed and the possession of the Office/shop hasn’t been handed over to the Respondent/Complainant

ORDER

R.K. Agrawal, President.—Delay in filing both the Appeals is condoned.

2. These two First Appeals, by Kuber Builders (for short the “Builder”)/Opposite Party in the Complaint, are directed against the Orders dated 08.12.2015, passed by the State Consumer Disputes Redressal Commission, Maharashtra at Mumbai (for short “the State Commission”) in Complaint Cases No. 459 & 460 of 2002. By the impugned Orders, the State Commission has allowed the Complaints, preferred by the Respondent herein directing the Appellant Builder to hand over the possession of Shop/office booked by the Complainants in “Kuber Heritage”/“Kuber Classique” Shopping-Cum-Residential Complex subject to payment of balance consideration by the Complainants/Respondents herein to the Builder or alternatively to refund the amount deposited by the Complainants along with interest @ 12% from the date of filing of Complaint till realization and to pay a sum of Rs.1,00,000/- towards compensation for mental agony suffered by the Complainant and Rs.25,000/- as costs.

3. Since the issues involved in both the Complaints, between the same parties, are similar; except for minor variations in the dates, amounts and Project and the reliefs claimed in both the cases, the Complaints have similar facts; these Appeals are also being disposed of by this common order. However, for the sake of convenience, First Appeal No. 315 of 2006 is treated as the lead case and the facts enumerated hereinafter are taken from Complaint No. 459 of 2002.

4. The Complainant booked an office for the personal use of their Director in a Scheme, namely, “M/s Kuber Heritage” to be developed by the Builder on the Plot No.1, Sector 4, Khargar, Navi Mumbai consisting of 14 Upper Floors with Ground and First Floor being Shopping Complex for commercial and non-residential user, by paying a sum of Rs.1,89,393.60 on 13.09.1995. The total Sale Consideration of the office was Rs.9,46,968/-. The Complainant approached the Builder number of time to execute the Agreement in his favour in respect of the said Office, however, the Builder did not take any step. Finally, on 29.11.1995, the Builder issued a Letter of Intent to the Complainant informing that the Complainant was tentatively allotted Shop/Office no. 14 admeasuring 394.57 sq. ft. (including the area of balcony and chargeable terrace on the ground floor of the said building) and the construction of the said building would be completed within 30 months from the date of commencement of the construction of the said building on the approval of the said building plans by CIDCO. It was also informed that the Agreement to Sell was under preparation and the same would be executed in favour of the Complainant very soon. The Complainant paid the total amount of Rs.6,39,202.20 to the Builder. However, the Builder despite having received such a huge amount from the Complainant, in violation of the Maharashtra Ownership Flat Act, 1963, miserably failed to enter into Agreement and to complete the construction of the Building and to hand over physical possession of the allotted office. Hence, alleging deficiency in service and Unfair Trade Practice on the part of the Builder, the afore-noted Complaint came to be filed before the State Commission, praying for a direction to the Builder to enter into Agreement duly registered and stamped; hand over possession of the Shop No. 14 booked by the Complainant or alternatively to pay the interest @ 21% on the amount of Rs.6,39,202.20 from the date of payment till the date of actual handing over the possession of the office to the Complainant; to pay an amount of Rs.3,00,000/- towards compensation for mental agony and Rs.50,000/- towards incidental expenses.

5. Upon notice, Builder contested the Complaint, by filing their Written Versions. It is pleaded on behalf of the Builder that the Writ Petition No. 3944 of 1998 was filed against them and an order dated 13.08.1998 was passed by the Delhi High Court restraining them along wi