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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Ram Surat Ram Maurya, Presiding Member
Gunakara Giri and Anr. – Appellants
versus
Samiah International Builders
Pvt. Ltd. and Anr. – Respondents
First Appeal No.196 of 2015 and
First Appeal No.447 of 2015
Decided on 4.5.2022
Consumer Protection Act, 1986 – S.19 [Consumer Protection Act, 2019 – S.51] – Appeal against order of State Commission whereby builder was directed to issue was directed to issue the letter of possession - Services – Contract of construction – Time not the essence of contract – Breach of Contract – No Compensation for – Mental agony and harassment - Real Estate – Allotment of Flat / Plot – Delayed Possession - The builder, in compliance of order of State Commission offered possession - However, the complainant, lodged his protest in respect of incomplete construction and did not take possession – Thus in a contract involving construction, time is not the essence of contract unless specified – Thus in the matter breach of contract, there is no scope for compensation for mental agony and harassment - The builder does not dispute that payment plan was “Construction Linked Payment Plan” under which, fifth last instalment was payable at the time of offer of possession, which was March, 2011. As per demand, the complainant paid four instalments timely, which has not been disputed. The builder, vide a corrigendum dated 01.05.2011, changed payment plan as “Pre-construction Payment Plan”, which amounts to unfair trade practice and as such the complainant was justified in not responding subsequent demand notices, as these demands were made prior to offer of possession – Therefore Appeal filed by the Builder is dismissed. [Paras 9, 10]
Result: F.A. No.196 of 2015 is partly allowed and F.A. No.447 of 2015 is dismissed.
ORDER
Ram Surat Ram Maurya, Presiding Member.—Heard Gunakara Giri, the appellant/complainant, in person and Mr. Nasir Husain, Advocate, Proxy Counsel, for the respondent.
2. Aforementioned appeals have been filed from the order of State Consumer Disputes Redressal Commission, Uttar Pradesh at Lucknow dated 13.01.2015, passed in Consumer Complaint No.87 of 2013, whereby the complaint was allowed with cost of Rs.5000/- and Samiah International Builders Private Ltd. (the opposite party) was directed to issue the letter of possession of Flat No.405, as per original agreement to Gunakara Giri (the complainant), who was directed to ensure payment of last instalment and take possession.
3. Gunakara Giri (the appellant) filed CC/87/2013, for directing Samiah International Builders Private Ltd. (the respondent) (the builder) (i) to handover the possession of Flat No.405, a 3BHK flat in “Melrose Avenue”, Vrindavan Yojna, Raebareli Road, Lucknow, (ii) to award compensation of Rs.20/- lacs, for the financial loss suffered by him (iii) to award compensation of Rs.10/- lacs, for mental agony and harassment, (iv) to award cost of litigation and (v) any other relief which is deemed fit and proper be awarded to the complainant.
4. The complainant stated that Samiah International Builders Private Ltd. (the opposite party) (the builder) was a Noida based Real Estate Developer and engaged in the business of developing and constructing residential and commercial building and selling its unit to the prospective buyers. The builder launched a project of group housing in the name of “Melrose Avenue” at GH-01, Sector-6-A, Vrindavan Yojna, Raebareli Road, Lucknow, in the year 2008. The complainant applied for allotment of a 3BHK flat on 11.04.2010 and deposited Rs.450000/- on 12.04.2010. The builder allotted Flat No.-405 at 3rd Floor, (area 153.28 sq.mtr., Basic Sale Price-Rs.3000000/- and Covered Car Parking-Rs.100000/-) to him on 15.04.2010. The builder executed an agreement dated 16.04.2010, and vide letter dated 16.04.2010 promised for delivery of possession, on or before 15.03.2011 and payment plan was “Construction Linked Payment Plan”, under which, 15% of basic sale price had to be paid within 30 days of the booking and remaining amounts in three equal instalments. The complainant applied for Home Loan of Rs.25/- to Army Group Insurance Fund, which was sanctioned to him. As per demand, Rs.822194/- was deposited on 24.06.2010. The builder, vide letter dated 18.10.2010, informed that due to difficulty in getting approval of construction of ground plus 9 floor, the project would be constructed up to ground plus 7 floor. The builder issued demand letter dated 17.10.2010, demanding Rs.871888/- to be deposited till 31.10.2010, which was deposited on 23.11.2010. Last instalment was payable at the time of offer of possession as per payment plan. The complainant moved an application to Army Group Insurance Fund for release of last instalment. As loan was sanctioned on the term of “Construction Linked Payment Plan”, Army Group Insurance Fund issued a letter dated 28.02.2011, requiring the complainant to submit (i) A letter from builder that the flat was ready for possession and (ii) Photograph duly authenticated by registered architect, showing that construction was complete, for release of last instalment. As the construction was not complete, the builder was not in position to issue a certificate that the flat was ready for offer of possession nor certificate of architect regarding completion of the construction. The complainant, vide letter dated 15.03.2011, requested to complete construction and issue offer of possession. The builder, vide a corrigendum dated 01.05.2011, changed payment plan as “Preconstruction Payment Plan”. The builder then issued a demand letter dated 02.06.2011, demanding Rs.333368/- as due at that stage. As the complainant depended upon loan as sanctioned by Army Group Insurance Fund, he wrote a letter dated 20.06.2011 that he wo
(1) Time not the essence of Contract - Thus in a contract involving construction, time is not the essence of contract unless specified.(2) Breach of Contract - in the matter breach of contract, there....
Multiple compensations – Multiple compensations for singular deficiency is not justifiable.
(1) Flat buyers should not be made to wait for eternity to get possession (2) Onus is on builder to abide by flat buyers’ agreement.(3) If construction is not completed as promised, flat buyer has th....
“Allottees of Flats cannot be made to wait indefinitely for possession of their flats.”
(1) Construction had to be completed within 36 months with grace period of 6 months from the date of commencement of construction, i.e., up to June 2016, while possession notice was given on 28.04.20....
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