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2021 Supreme(Online)(NCDRC) 79
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
C. VISWANATH, PRESIDING MEMBER
JOSE MARIANO CORDEIRO – Appellant
Versus
M/S. KALASH REAL ESTATE DEVELOPERS – Respondent
FIRST APPEAL NO. 12 OF 2018
For the Appellants/Petitioners: Mr. Abhishek Yadav
For the Respondents: NEMO (ex-parte)
Delayed delivery of property violates contractual obligations, warranting compensation under consumer protection laws.
Headnote:(A) Consumer Protection Act, 2019 - Sections relevant to service deficiency and contractual obligations - Buyer entered an agreement for a residential flat, which was not delivered timely, leading to claims of deficiency. (Paras 2, 4, 9)
(B) Contract Law - The principle of ‘Contra Proferentum’ applies when contract ambiguity arises against the drafter. The agreement specified a delivery window the builder failed to meet. (Para 8)
Facts of the case:
The appellant entered into a sale agreement for a residential flat but was not provided possession as per the agreed timeline, leading to inadequate responses from the builder despite multiple notices and complaints. (Paras 2, 4)
Findings of Court:
Consumer complaint established deficiency leading to directions for compensation beyond the State Commission's decisions, including interest on compensation. (Para 9)
Issues: The primary issue was the timeliness of possession delivery and whether the State Commission accurately assessed the obligations arising from the agreement. (Paras 6, 8)
Ratio Decidendi: The court emphasized contractual obligations of timely delivery and applicability of compensation measures in consumer disputes arising from service deficiencies. (Para 9)
Result: Appeal was allowed, with the opponent mandated to compensate for delays and execute the sale deed.
| Table of Content |
|---|
| 1. delayed delivery of property. (Para 1 , 2 , 3) |
| 2. deficiency in service established. (Para 4 , 5 , 7) |
| 3. importance of adhering to agreement terms. (Para 6 , 8) |
The present Appeal is filed by the Appellant against the order passed by the Goa State Consumer Disputes Redressal Commission, Panaji (for short ‘the State Commission’) in CC No.01 of 2016 dated 05.12.2017, whereby the Complaint filed by the Appellant/Complainant was partly allowed.
2. On 26.06.2013, Complainant entered into an Agreement with the Opposite Party for purchase of residential flat No.T-1, measuring 116.88 sq. meter, with open terrace of 53.08 sq. meter, for a consideration of Rs.40,00,000/-. Complainant paid a sum of Rs.25 lakhs on the date of Agreement and Rs.11 lakhs in instalments as per the Agreement. Balance amount of Rs.4 lakhs was to be paid at the time of delivery of possession and execution of the sale deed. Delivery of the flat was to be given within six months from the date of Agreement, with a grace period of 3 months in special cases. The Opposite Party, however, failed to deliver the possession of the flat within the stipulated period. Complainant sent emails dated 14.06.2014, 04.07.2014 and 11.07.2014 to the Opposite Party, but the Opposite Party did not reply to the emails also. Thereafter, Complainants sent a legal notice on 30.12.2014. Even the legal notice was not replied by the Opposite Party. Claiming deficiency in service, Complainant filed a Consumer Complaint before the State Commission with following prayer: -
“(a) Compensate the Complainant for the deficiency in service resulting from the Opposite Party’s failure to comply with his obligations in terms of the para no.6 of the said Agreement for Sale dated 26th June, 2013, by means of payment of the penal interest as provided under the Clause no.7 of the said Agreement for Sale, amounting to the said sum of Rs.22,68,000/- (Rupees twenty two lakhs sixty thousand) only and payment of further sums of Rs.1,08,000/- (Rupees one lakh eight thousand) only, per month, until the date of delivery of possession of the said premises into the hands of the Complainant with simultaneous execution of the competent Deed of Conveyance for transfer of ownership of the said premises together with the proportionate undivided right and share in the said property corresponding to the built up area of the said premises.
(b) Pay the compensation that may be awarded by this Hon’ble Commission in terms of the prayer (a) hereinabove, together with further interest thereon, calculated at the rate of 12% per annum, with effect from the date of the a ward that may be passed by the Commission, until the date of full and effectual payment of the compensation and whatever interest accruing thereon.
(c) Pay further and additional compensation to the Complainant by way of damages on account of mental anxiety, torture and inconvenience suffered by the Complainant, besides further legal costs and inconveniences of litigation, that the Complainant is also entitled to.
(d) Cause the execution of the competent Conveyance or Deed of sale for transfer of ownership of the said premises in favour of the Complainant together with the proportionate undivided right and share in the said property corresponding to the built up area of 116.88 Sq. mts. of the said premises.
(e) To initiate the process for formation of an entity for the regular maintenance of the said property and the Building Scheme, for which the Complainant is ready and willing to pay his proportionate contribution towards defraying the maintenance costs.
(f) Any other relief that may be deemed fit and proper in the circumstances of the case and in the interest of justice, may also be granted to the Complainant.
3. Complaint was contested by the Opposite Party by filing Written Version. It was stated that it was orally agreed that the possession of the flat was to be given within 24 months from the date of signing of the Agreement, with an extended period
