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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
C. Viswanath, Presiding Member and Ram Surat Ram Maurya, Member
Sujeet Jain – Complainant
versus
M/s. DB Realty Limited – Opp. Party
Consumer Case No.1658 of 2017
Decided on 5.8.2022
Counsel for the Parties:
For the Complainant:Mr. Gopal Jain, Sr. Advocate, Ms. Sonam Gupta, Advocate, Mr. Devansh Arya, Advocate, Mr. Shashank Agrawal, Advocate, Ms. Bahuli Sharma, Advocate
For the Opp. Party:Mr. Sukumar Pattjoshi, Sr. Advocate, Ms. Swati Sinha, Advocate
IMPORTANT POINT
“Consumer” - the purchases were for commercial purpose and the complainant was not a ‘consumer’.
Headnote:
Consumer Protection Act, 1986 – S.21(1)(a)(i)[Consumer Protection Act, 2019 – S.58(1)(a)(i)] – Services – Real Estate – Allotment of Flat - Delayed Possession – Unreasonable delay in issuance of possession letter - Whether after signing satisfaction letter dated 25.03.2015, which also contained a clause that the complainant left with no claim against the builder, the complainant can claim compensation for delayed compensation - The complainant does not dispute signing of satisfaction letter dated 25.03.2015 but took plea that while getting signature on possession letter, the term “no claim against the opposite party except claim if any under the defect liability” has been surreptitiously added in it. Due dated of possession was 30.06.2016, while possession letter was issued on 25.03.2015. There was unreasonable delay in issuing possession letter. The complainant was residing in a rented accommodation and was paying rent. For taking possession, he had signed satisfaction letter dated 25.03.2015, which was one sided and arbitrary clause and it is not binding - The grounds taken by the opposite party for delay in offer of possession, in written reply is not covered the aforesaid clauses except delay in issue of Occupation Certificate. The causes of delay as shown in the written reply existed prior to the agreement dated 26.12.2011 and are irrelevant. The opposite party did not take any plea that the complainant was defaulter in payment of instalment - In the present case, due date of possession was 30.06.2012 and the builder applied for occupation certificate on 23.12.2014 as such for this period the complainant is entitled for interest on his deposit- Therefore, the complaint is partly allowed. [Paras 12 to 15].
Result: Compliant allowed.
ORDER
Heard Mr. Gopal Jain, Senior Advocate, assisted by Ms. Sonam Gupta, Advocate, for the complainant and Mr. Sukumar Pattjoshi, Senior Advocate, assisted by Ms. Swati Sinha, Advocate, for opposite party.
2. Sujeet Jain has filed above complaint for directing the opposite party to pay (i) Interest @21% per annum, on the total cost of Rs.31813151/-, for the delay in delivery of possession of the Flat No.-B-2201, (ii) Rs.20/- lacs, as compensation, for mental agony and harassment and (iii) any other relief which may be deemed fit and proper in the facts and circumstances of the case.
3. The complainant stated that M/s. D B Realty Limited (the opposite party) was a company, incorporated under the Companies Act, 1956 and engaged in the business of development and construction of group housing building and selling its unit to the prospective buyers. The opposite party launched a project of group housing in the name of “Orchid Woods” (now named as “D B Woods”) at Gokuldham, Goregaon East, Mumbai-400063, in the year 2009. The opposite party propagated and represented that the said project would be completed in all respect with amenities and possession would be handed over till 30.06.2011. The complainant was in need of a 4BHK flat in that locality for his own use. The complainant booked a 4BHK flat on 25.08.2011 and deposited booking amount of Rs.15/- lacs on 25.08.2011 and 30.09.2011 through two cheques. The opposite party allotted Flat No.B-2201, carpet area 1609.59 sq.ft., total cost of Rs.29353100/- on 30.09.2011. Out of remaining sale consideration, Rs.208/- lacs was payable till 15.12.2011, Rs.18/- lacs was payable till 15.03.2012 and balance amount of Rs.3853100/- was payable at the time of offer of possession as per payment schedule supplied along with allotment letter. Agreement for Sale was executed on 26.12.2011. Vide clause-14 of the agreement due, date of possession was 30.06.2012. The complainant made timely payment of remaining instalments but the construction was delayed. The opposite party vide email dated 05.10.2013, informed that construction was completed and internal finishing work was in progress and possession would be delivered from January, 2014. The opposite party issued Letter for Possession dated 25.03.2015 and handed over possession on 21.04.2015. The opposite party did not give any compensation for delay in possession. Under the agreement, the complainant had to pay interest @21% per annum, if payment of the instalment is not made on due date as such the complainant was also entitled for same rate of interest on his deposit as compensation for delay in giving possession. The complainant filed CC/859/2017 and CC/860/2017, seeking compensation within the limitation as provided under Section 24-A of Consumer Protection Act, 1986, which were got dismissed on 19.04.2017, with liberty to file fresh complainants. Thereafter, this complaint was filed on 08.06.2017.
4. M/s. D B Realty Limited (the opposite party) filed its written reply on 21.09.2017 and contested the complaint. It has been stated that Gokuldhan Real Estate Development Company Pvt. Ltd. was amalgamated with D. B. Realty Limited w.e.f. 01.04.2013, as per order of High Court of Judicature at Bombay dated 16.10.2015, which has been taken on record by Registrar of Companies on 23.12.2015. After being satisfied with the project “Orchid Woods”, the complainant booked tow 2BHK flat Nos. C-2801 and C-2802 and Agreement for Sale was executed this respect of it on 25.03.2010. Thereafter the complainant booked a 4BHK flat and deposited booking amount on 25.08.2011 and 30.09.2011 through two cheques. The opposite party allotted Flat No.B-2201, carpet area 1609.59 sq.ft., total cost of Rs.29353100/- on 30.09.2011, in B wing of the building “Orchid Woods”. Agreement for Sale was executed between the parties on 26.12.2011 and was registered as per MOFA Act. The opposite party obtained ‘occupation certificate’ on 23.12.2014 and issued possession letter to the
