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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
R.K. Agrawal, President and Dr. S.M. Kantikar, Member
Dr. Vijay Purushottam
Kale and Ors. – Complainants
versus
M/s. Hetali Enterprises, Builders
& Developers and Anr. – Opp. Parties
Consumer Case No.2443 of 2017, Consumer Case No.2444 of 2017 and Consumer Case No.2445 of 2017
Decided on 8.12.2021
Consumer Protection Act, 1986 – S.21(a)[Consumer Protection Act, 2019 – S.58(1)(a)] – Real Estate – Delayed possession of Flats Under Redevelopment Plan – Complaints have been filed seeking compensation towards the alleged deficiency, unfair trade practice and delayed possession of their flats under redevelopment plan – Opposite Parties are withholding the possession of flats; coerced the Complainants to withdraw their pending cases filed before District Forum, Police and Dy. Registrar – Complainants have right to claim compensation in the instant case – Therefore there is Deficiency in Service within the meaning of section 2(1) (g) & (o), and Unfair Trade Practice within the meaning of section 2(1) (r), to be well and truly evident on the part of the Opposite Parties since the Opposite Party No. 1 did not pay the amount in timely manner as per the Agreement. [Paras 19 to21]
Held, On one hand the society-Opposite Party No. 2 initially made no compulsion to its members to pay the charges towards the deficiency in open space. However, later on, the Society admitted that the MCGM demand Rs. 8.99 crore to be entirely payable by the individual members of the Opposite Party No. 2 Society and alleged that the Complainants unnecessarily filed the Consumer Complaints against the Opposite Party No. 1.It is apparent from the Agreement that the builder can claim the rate of interest 18% on the delayed payments from the Complainant but in contrary, for the builder, the rate of interest on compensation for delayed possession comes to meager rate of interest 0.24% p.a. Such a disparity in the rate of interest is both unfair and inequitable. Accordingly, it would be just and proper that the Opposite Party No. 1 shall pay the interest at the rate of 9% p.a. for the period of delay. [Paras 17 and 21]
ORDER
Dr. S.M. Kantikar, Member.—These three Consumer Complaints have been filed by Dr. Vijay Purushottam Kale, Dr. Purushottam Gopalrao Kale and Dr. Satishchandra Purushottam Kale (hereinafter collectively referred to as the “Complainants”) under Section 21 (a) (i) of the Consumer Protection Act, 1986 (in short “the Act”) against M/s Hetali Enterprises, Builders & Developers (Opposite Party No. 1) and Andheri Nav Bahar CHS (Opposite Party No. 2/ the Society) at Vile Parle, seeking compensation towards the alleged deficiency, unfair trade practice and delayed possession of their flats under redevelopment plan.
2. Since the facts of the cases and the Opposite Parties are same, these Complaints are being disposed of by this common Order.
3. The Complainants were residing at “Nav Bahar” building in Vile Parle. Their Society named Andheri Nav Bahar Co-op Housing Society (hereinafter referred to as the “Opposite Party No. 2) invited bids from various builders/developers to entrust the redevelopment work (demolition and new construction) of the existing buildings ‘Nav Bahar’ at Lallubhai Park Road Extension, Vile Parle West, Mumbai. M/s. Hetali Enterprises, Builders and Developers (hereinafter referred to as the ‘Opposite Party No. 1/Builder Co.’) was entrusted the redevelopment work. On 30.07.2011, a redevelopment agreement was registered with the appropriate authority as varied by a supplemental agreement dated 05.12.2012 between both the Opposite Parties. Under the said agreement, Opposite Party No. 1 had agreed to provide new flats to the members of the Society - Opposite Party No. 2 in the new building with additional 28% carpet area. The Complainants entered into tripartite agreement on 24.12.2012 and in terms of the agreement, the Complainants were given an offer to purchase additional area at predetermined rates and the possession was to be offered within 24 months of the License date i.e. on or before 31.12.2014 with a grace period of 3 months. The details, as agreed, are reproduced in the chart below:
As per the tripartite agreement: [Original area surrendered by the Complainants, their entitlement of carpet area considering additional 28% agreed to be allotted to them, the additional concessional area purchased by them and the agreed date of possession]
| S.No. | Clause No. | Complainant Vijay Kale | Purushottam Kale | Satishchandra Kale |
| CC No. |
| 2443/2017 | 2444/2017 | 2445/2017 |
| 1 | Original Flat no. (Clause V) | A-42 | A-41 | A- New Flat No. in the 2 |
| 2 | New Flat No. in the new building (Clause XXI) | A-602 | A-601 | A-102 |
| 3 | Surrendered Carpet Area by complainant (Clause V) | 607.50 | 601.00 | 421.50 |
| 4 | Additional 28% area entitled (Clause XX) | 170.10 | 168.28 | 118.50 |
| 5 | Additional area purchased @Rs.20670/- per sq.ft (Clause XX) | 30.375 | 30.05 | - |
| 6 | Additional area purchased @Rs.24650/- per sq.ft (Clause XX) | 67.025 | 70.67 | - |
| 7 | Total carpet area of the new flat (3+4+5+6) (Clause XXI) | 875.00 | 875.00 | 540.00 |
| 8 | License date (date of surrender of flat) (Clause 12.1) | 31.12.2012 | 31.12.2012 | 31.12.2012 |
| 9 | Date of possession (Clause 14) | 31.12.2014 | 31.12.2014 | 31.12.2014 |
| 10 | Per month Agreed charges to pay for alternate accommodation – first 24 months @ Rs.70/sft (Clause 13.1) | Rs.42,525/- | @ Rs.70/- per sq. ft. Rs.42,070/- | Rs.29,505/- |
| 11 | Beyond 24 months Charges per month for alternate accommodation @ Rs.77/sft (Clause 13.1) | Rs.46,777/- | @ Rs.77/- per sq. ft Rs.46,277/- | Rs.32,456/- |
4. It was submitted that as per Clause 19 of the Agreement, the area of the flat was to be physically measured and certified jointly by the Society
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