Back
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Ram Surat Ram Maurya, Presiding Member and
Dr. Inder Jit Singh, Member
Sangeeta Vinod Deshani and Anr. – Complainants
versus
CCI Projects Pvt. Ltd. – Opp. Party
Consumer Case Nos.1453, 1454 and 1683 of 2017
Decided on 5.4.2023
Counsel for the Parties:
For the Complainant:Mr. Ajay Kumar Jha, Advocate, Mr. Ashish Chauhan, Advocate
For the Opp. Party:Mr. Sanjib Sen, Sr. Advocate, Mr. Dinesh Kumar Seth, Advocate, Mr. Mridul Y. Suri, Advocate, Ms. Anjali Singh, Advocate
IMPORTANT POINTS
(1) Delay - Section 73 of Contract Act, 1872 provides for compensation due to non-fulfilling of the obligations under the contract by one contracting party, if the other contracting party suffers from any loss.
(2) Loss of rentals - Delay in offer of possession amounts to deficiency in service and the home buyer is entitled for compensation i.e. loss of rentals.
Headnote:
Consumer Protection Act, 1986 – Section 21[Consumer Protection Act, 2019 – S.58] - Services – Real Estate – Allotment of Flat / Plot – Delayed Possession - Builder Buyer Agreement – Unfair terms and conditions - Delay compensation ordered - Thus court will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract or an unfair and unreasonable clause in a contract, entered into between the parties, who are not equal in bargaining power. Where a man has no choice rather no meaningful choice but to give his consent to a contract or to sign the dotted line in a prescribed and standard form or to accept as set of rules or part of the contract, howsoever unfair, unreasonable and unconsciousable a clause in that contract or form or rule may be - Section 73 of Contract Act, 1872 provides for compensation due to non-fulfilling of the obligations under the contract by one contracting party, if the other contracting party suffers from any loss. Delay in offer of possession amounts to deficiency in service and the home buyer is entitled for compensation i.e. loss of rentals - The home buyers are entitled for delay compensation in the form of interest @6% per annum on their deposit from due date of possession till the offer of possession – On merits, the complaints are partly allowed. The opposite party is directed to pay delay compensation. [Paras 5 to 13].
Result: Complaint partly allowed.
ORDER
Heard Mr. Ajay Kumar Jha, Advocate, for the complainants and Mr. Sanjib Sen, Sr. Advocate, assisted by Mr. Dinesh Kumar Seth, Advocate, for the opposite party.
2. Above complaints have been filed for delay compensation and consequential reliefs and the complainants are home buyers in the project “Rivali Park” launched by the opposite party. As such these complaints are being decided by a common judgment.
3. Sangeeta Vinod Deshani and Vinod Dharamdas Deshani have filed CC/1453/2017, for directing the opposite party to (i) decree the present complaint in favour of the complainants; (ii) declare that the undertaking forcibly taken by the opposite party is illegal and void and to direct the opposite party not to insist upon such an undertaking; (iii) rectify the deficiencies in construction of the subject-flat and to give final possession of the subject flat; (iv) pay interest @18% per annum on the subject value of the flat from August 2014 till the actual date of delivery; (v) award an interest of 18% per annum from the date of the complaint till actual payment; (vi) pay Rs.50000/- as costs of litigation; and (vii) any other relief which is deemed fit and proper in the facts and circumstances of the case. The complainants stated that CCI Projects Private Limited (the opposite party) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. The opposite party launched a group housing project in the name of “Rivali Park”, consisting of hotels, offices, shops, flats, duplexes, row houses, penthouses etc. at City Survey Nos.163A and 165, Village Magathane, Western Express Highway, Taluka Borivali, Mumbai, in the year 2005 and made wide publicity of its facilities and amenities. The said project had two wings and the residential wing was named as “White Spring”. The complainants were in need of residence for themselves and were looking for it, in that locality. The complainants booked a 2BHK flat, in above project and deposited booking amount on 15.03.2010. The opposite party allotted Flat No.12-B, saleable area approx. 781 sq.ft., for basic consideration of Rs.9411750/-, Wing B, “White Spring”, in project “Rivali Park” to the complainants. Clause-18 of the Allotment letter provides 36 months from the date of commencement of the construction, for completion of the construction with grace period of six months. Annexure-1 of Allotment letter provides “construction linked payment plan”. As per demand, the complainant deposited instalments regularly. The opposite party, vide letters dated 19.03.2012 and 07.05.2012 informed that construction was being delayed. The opposite party, vide letter dated 10.09.2012, informed that the construction was undertaken with full spring and possession would be handed over till August, 2014. The opposite party executed an Agreement dated 02.07.2013, in respect of above flat. By the time of the execution of the agreement, the complainants had deposited Rs.7058815/- and balance amount was payable at the time of offer of possession. In Clause-17 of the agreement, due date of possession was mentioned as “on or before August, 2014”. The opposite party, vide letter dated 15.04.2015, again unilaterally changed the date of possession as February, 2016. The opposite party, through letter dated 26.04.2016, offered to commence fit-out process in the flat from 06.05.2016, expecting final possession up to 30.07.2016, subject to issue of “occupation certificate” and raised various demands, which were payable at the time of possession. The complainants deposited the demanded amount. The complainants, vide letter dated 15.07.2016, sought for permission of the opposite party for carrying out interior works. The opposite party, vide letter dated 09.08.2016, informed that “occupation certificate” had not been issued and granted permission for carrying out interior works on various conditions. The opposite party obtained “Occupation Cert
