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2021 Supreme(Online)(NCDRC) 803
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
MR. JUSTICE RAM SURAT RAM MAURYA, PRESIDING MEMBER
M/S. SHELTER MAKER (I) PRIVATE LIMITED – Appellant
Versus
KAMAL KISHOR S. BHAGERIA – Respondent
FIRST APPEAL NO. 331 OF 2015
For the Appellants/Petitioners: Mr. Vipin V. Bower, Mr. D.T. Pandey, Mr. Nalin Majithia
For the Respondents: Mr. M.L. Lahoty, Mr. Pranab Kumar Nayak, Mr. Anchit Sripat
Consumer protection extends to individuals needing property for livelihood, despite commercial purposes, with builders liable for delayed possession and compensation.
Headnote:(A) Consumer Protection Act, 1986 - Sections 2(1)(d), 2(1)(o) - Complaints regarding possession of commercial property and interest on deposits - Consumer Commission held that complainant is a 'consumer', entitled to compensation for delay in possession and interest on deposit, despite objections on commercial purpose raised by the builder. (Paras 7-15)
(B) Construction Delays - Obligation of builder to deliver possession as per agreement and implications of failure to do so - By not delivering possession timely, builder liable for delayed compensation. (Paras 12-15)
Facts of the case:
Complainant required premises for livelihood, alleged builder delayed delivery of commercial unit. Agreement promised possession in December 2005, but construction not completed. Builder cited various justifications for delay.
Findings of Court:
The complainant, although having invested for commercial use, did not lose 'consumer' status. Builder's claims of the complaint being time-barred rejected, presence of ongoing cause of action affirmed.
Issues: Whether the complainant qualifies as ‘consumer’; implications of delayed possession; and entitlement for interest on deposit.
Ratio Decidendi: Court affirmed complaint was not time-barred; defined 'consumer' excludes commercial purposes only when proven for profit-making; builder's failure to deliver warranted compensation for delay.
Result: First Appeal No.282 of 2015 partly allowed; First Appeal No.331 of 2015 dismissed.
| Table of Content |
|---|
| 1. hearing initiation and parties present. (Para 1 , 2) |
| 2. issue of consumer complaint and builder obligations. (Para 3 , 4) |
| 3. builder's defenses and obligations under consumer law. (Para 5 , 6) |
| 4. definitions of consumer and implications for construction delays. (Para 7 , 8 , 9) |
| 5. clarification on commercial purpose and consumer rights. (Para 10 , 11 , 12) |
| 6. court's conclusion and orders regarding compensation. (Para 13 , 14 , 15) |
1. Heard Mr. M.L. Lahoty, Senior Advocate, for Kamalkumar S. Bhageria, and Mr. Nalin Majithia, Advocate, for M/s. Shelter Makers (I) Pvt. Ltd., in both the appeals.
2. Aforementioned the appeals have been filed from the order of State Consumer Disputes Redressal Commission Maharashtra, Mumbai, dated 25.02.2015, passed in Consumer Complaint No. 227 of 2010, partly allowing the complaint and directing the complainant to pay the balance amount of Rs.579000/- to M/s. Shelter Makers (I) Pvt. Ltd., within 45 days. On deposit of the aforesaid amount, the opposite parties were directed to hand over vacant and peaceful possession of the shop Unit 205, admeasuring 772 sq.ft. of built up area, on second floor of Sale Building No. 1, known as Poonam Plaza, Manjrekar Wadi, Andheri, Ghatkopar Road, Andheri (East), Mumbai to the complainant.
3. Kamalkumar S. Bhageria (the appellant) filed Consumer Complaint No. 227 of 2010 for directing the opposite parties, (hereinafter referred to as the builder) (i) to accept the balance amount of Rs.579000/ and hand over vacant and peaceful possession of the Unit 205, on second floor of Sale Building No. 1, complete in all respect, as per agreement dated 07.05.2006, within stipulated period (ii) to pay an interest @24% per annum on Rs.2316000/- from 07.05.2006 till handing over possession (iii) to obtain “Completion Certificate” and “Occupation Certificate” of the building (iv) to Pay Rs.500000/- as compensation for mental agony and physical harassment and Rs.100000/- as cost of the litigation and (v) any other relief which may be deemed fit and proper, in the circumstances of the case, be passed.
4. The facts, as stated in the complaint and emerged from the documents attached with it, are that the builder was a company, engaged in the business of development and construction of residential and commercial buildings and selling its unit to the prospective buyers. The builders launched a project of commercial complex in the name of “Poonam Plaza”, at CTS Nos. 343 and 343/1 to 343/7 (total area 5673.93 sq. meter), village Gundavili, Andheri (East), Mumbai, in the year 2004. These plots were “the slum land” and allotted to the builder by Slum Rehabilitation Authority, Grih Nirman Bhawan, Bandra, Mumbai, for construction of commercial complex, in order to generate fund, to rehabilitate the residents of slum area. The complainant was in need of one unit, for opening his office for earning his livelihood by way of self-employment. The complainant booked one unit on 07.05.2006. Unit 205, admeasuring 772 sq.ft. of built up area, on second floor of Sale Building No. 1 of Poonam Plaza, for sale price of Rs.2895000/-, was allotted to the complainant and Ownership Agreement was executed in his favour on 07.05.2006. The complainant paid Rs.2316000/- at the time of agreement. Under Clause-9 (a) of the Ownership Agreement, promised date of possession was December, 2005. As per the provisions of Maharashtra Ownership of Flats Act, 1964, if possession date was not clear in the agreement, in that case, the builder would be liable to handover possession within 2 years of the agreement. Slum Rehabilitation Authority issued a notice dated 20.01.2005, to the builder and also lodged criminal complaint at Andheri Police Station on 17.08.2005 under Section 44 and 69 of Maharashtra Regional and Town Planning Act, 1966, against the builder on the allegations that the construction was not being raised in accordance with the permission granted under No. SRA Eng/951/KE/PL/AP dated 25.08.2004.
