1. Heard Ms. Sukrita A. Chimalker, Advocate, for the complainants and Mr. Bhaskar Nayak, Advocate, for the opposite party. 2. Dr. Mihir Ravindra Bapat and Dr. (Mrs.) Swati Mihir Bapat have filed above complaint, for directing the opposite party to (i) to handover possession of Flat No.1106 (carpet area 1170 sq.ft.) and mechanical car parking in the building “Hubtown Substone”, Bandra (east), Taluka Andheri, Mumbai, with full “occupation certificate” after taking balance consideration of Rs.3717450/-; (ii) pay delay compensation in the form of interest @24% per annum on the amount paid by the complainants from 31.12.2014 till the date of handing over possession; (iii) pay Rs.2500000/-, as compensation for mental agony and harassment; (iv) pay Rs.100000/-, as litigation costs; and (v) any other relief which is deemed fit and proper in the facts and circumstances of the case. 3. The complainants stated that Sunstone Developers Joint Venture (formed by Hubtown Limited and Swapanranjan Infrastructure Private Limited, the companies, 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 “Hubtown Substone”, at Survey No.341 (pt), CTS No.629/1251 (area 9032.45 sq. meters), village Bandra, Bandra (east), Taluka Andheri, Mumbai,, in the year 2012 and made wide publicity of its amenities and facilities. “Hubtown Substone” project was developed under Slum Rehabilitation Scheme of Mumbai city. Slum Redevelopment Authority (SRA) issued Letter of Intent dated 28.04.2005 (revised on 06.12.2010) for sale building. Executive Engineer of SRA sanctioned layout plan on 30.12.2010 for construction of 3 basement + Ground + 19 upper floors. The SRA granted “commencement certificate” dated 01.07.2011. Believing upon the representations of the opposite party, the complainants booked Flat No.1106 on 14.09.2012 and deposited booking amount. The opposite party executed an agreement for sale dated 19.12.2012, in respect of Fat No.1106 (carpet area 1170 sq.ft.) and mechanical car parking No.83A & 83B, basic sale price of Rs.37500000/- in the building “Hubtown Substone”. Clause-3.4 of the agreement, provides payment plan as ‘construction link payment plan’. Clause-2(j)(VIII)(d) of the agreement provides possession date as December, 2014. By the time of agreement, the complainants paid Rs.18634125/- towards consideration and Rs.1907800/- towards stamp duty and registration charges. Till December, 2014, the complainants paid total Rs.26212500/-. The opposite party, vide letter dated 22.08.2014, informed that due to change in policies of Government of Maharashtra and Municipal Corporation and amendment in Development Control Regulations, 1991, the opposite party was required to revise Intimation of Disapproval (IOD); On receipt of this approval, the opposite party again applied for “commencement certificate” but SRA had delayed issue of “commencement certificate’; As such due date of possession was revised as June, 2015. The opposite party, vide letter dated 10.06.2015, again revised due date of possession as March, 2016. In both these letters, the opposite party, informed that if the complainants were not agreeable for extended period, they had an option to cancel the agreement under clause-19.5 of the agreement and their money would be refunded within 120 days of the receipt of cancellation request. The complainants came to know that the opposite party had held meeting with the flat owners of lower floor on 25.06.2016 and informed that the project would completed upto 14th floor in first phase within further 12 months and fit-out possession would be offered after six months upto 5th floor. The opposite party delayed construction and obtained “part occupation certificate” in respect of 1st to 13th floors on 31.07.2017 and issued letter dated 07.08.2017 relating to ‘offer of possession’ with demand of Rs.7434900/- towards balance consideration and Rs.824625/- as service tax. The complainants visited site on 06.02.2018 and found that construction was incomplete and basic amenities, such as water and electricity connection, which are necessary for habitation, were missing. During visit, the complainants also noticed that a country liquor bar was also being run in the compound of the project. By that time, the complainants have paid Rs.33642450/-. The complainants met with Ms. Gauri, in the office of the opposite party and raised their protest in above respect. However, the opposite party issued payment reminders dated 29.08.2017 and 15.09.2017. The complainants then further deposited Rs.3779575/- and TDS of Rs.101600/- on 18.09.2017. But, the opposite party did not handover possession with amenities. The complainants gave a legal notice dated 07.02.2018, for handing over possession with delay compensation. The opposite party replied vide notice dated 20.02.2018 and denied for delay compensation and asked for balance payment. The complainants, vide notices dated 24.02.2018 and 14.03.2018 asked to complete the amenities. The opposite party, vide letter dated 30.03.2018, demanded Rs.6005283/-, with threat to cancel the agreement and forfeit 25% of the consideration. Then this complaint was filed on 21.05.2018. Sunstone Developers Joint Venture (formed by Hubtown Limited and Swapanranjan Infrastructure Private Limited, the companies, 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 “Hubtown Substone”, at Survey No.341 (pt), CTS No.629/1251 (area 9032.45 sq. meters), village Bandra, Bandra (east), Taluka Andheri, Mumbai, in the year 2012 and made wide publicity of its amenities and facilities. “Hubtown Substone” project was developed under Slum Rehabilitation Scheme of Mumbai city. Slum Redevelopment Authority (SRA) issued Letter of Intent dated 28.04.2005 (revised on 06.12.2010) for sale building. Executive Engineer of SRA sanctioned layout plan on 30.12.2010 for construction of 3 basement + Ground + 19 upper floors. The SRA granted “commencement certificate” dated 01.07.2011. Believing upon the representations of the opposite party, the complainants booked Flat No.1106 on 14.09.2012 and deposited booking amount. The opposite party executed an agreement for sale dated 19.12.2012, in respect of Fat No.1106 (carpet area 1170 sq.ft.) and mechanical car parking No.83A & 83B, basic sale price of Rs.37500000/- in the building “Hubtown Substone”. Clause-3.4 of the agreement provides payment plan as ‘construction link payment plan’. Clause-2(j)(VIII)(d) of the agreement provides possession date as December, 2014. By the time of agreement, the complainants paid Rs.18634125/- towards consideration and Rs.1907800/- towards stamp duty and registration charges. Till December, 2014, the complainants paid total Rs.26212500/-. The opposite party, vide letter dated 22.08.2014, informed that due to change in policies of Government of Maharashtra and Municipal Corporation and amendment in Development Control Regulations, 1991, the opposite party was required to revise Intimation of Disapproval (IOD); On receipt of this approval, the opposite party again applied for “commencement certificate” but SRA had delayed issue of “commencement certificate’; As such due date of possession was revised as June, 2015. The opposite party, vide letter dated 10.06.2015, again revised due date of possession as March, 2016. In both these letters, the opposite party informed that if the complainants were not agreeable for extended period, they had an option to cancel the agreement under clause-19.5 of the agreement and their money would be refunded within 120 days of the receipt of cancellation request. The complainants came to know that the opposite party had held meeting with the flat owners of lower floor on 25.06.2016 and informed that the project would completed upto 14th floor in first phase within further 12 months and fit-out possession would be offered after six months upto 5th floor. The opposite party delayed construction and obtained “part occupation certificate” in respect of 1st to 13th floors on 31.07.2017 and issued letter dated 07.08.2017 relating to ‘offer of possession’ with demand of Rs.7434900/- towards balance consideration and Rs.824625/- as service tax. The complainants visited site on 06.02.2018 and found that construction was incomplete and basic amenities, such as water and electricity connection, which are necessary for habitation, were missing. During visit, the complainants also noticed that a country liquor bar was also being run in the compound of the project. By that time, the complainants have paid Rs.33642450/-. The complainants met with Ms. Gauri, in the office of the opposite party and raised their protest in above respect. However, the opposite party issued payment reminders dated 29.08.2017 and 15.09.2017. The complainants then further deposited Rs.3779575/- and TDS of Rs.101600/- on 18.09.2017. But, the opposite party did not handover possession with amenities. The complainants gave a legal notice dated 07.02.2018, for handing over possession with delay compensation. The opposite party replied vide notice dated 20.02.2018 and denied for delay compensation and asked for balance payment. The complainants, vide notices dated 24.02.2018 and 14.03.2018 asked to complete the amenities. The opposite party, vide letter dated 30.03.2018, demanded Rs.6005283/-, with threat to cancel the agreement and forfeit 25% of the consideration. Then this complaint was filed on 21.05.2018. 4. The opposite party filed its written reply on 11.09.2018, in which, allotment of flat, execution of agreement for sale dated 19.12.2012 in favour of the complainants and deposit made by them, have not been disputed. The opposite party stated that the present project was undertaken as a part and parcel of a Slum Rehabilitation Scheme which required re-housing of a large number of slum dwellers in rehabilitation building, which was co-related with generation of Floor Space Index (FSI) of free sale building. Maharashtra Municipal Corporation of Greater Mumbai (MMCGM) and Slum Rehabilitation Authority (SRA) made changes in Development Control Regulation, which was finally notified in middle of 2014. One of the slum dwellers refused to vacate the area occupied by him. For which, the opposite party approached Bombay High Court, which was allowed in November, 2014. Under the change regulation, rehab tenement was increased from 225 sq.ft carpet area to 269 sq.ft. which required revision of LOI. Urban Development Department took time in delegation of its power, which was delegated in May, 2015. Thereafter, revised layout was sanctioned in December, 2015 and the construction was started. The opposite party, vide letter dated 22.08.2014, informed that due to change in policies of Government of Maharashtra and Municipal Corporation and amendment in Development Control Regulations, the opposite party was required to revise Intimation of Disapproval (IOD); On receipt of this approval, the opposite party again applied for “commencement certificate” but SRA had delayed issue of “commencement certificate’; As such due date of possession was revised as June, 2015. The opposite party, vide letter dated 10.06.2015, again revised due date of possession as March, 2016. Due to delay for the reasons beyond their control, the opposite party gave option to the complainants to get their agreement cancelled and take back their money. But the complainants did not exercise their option. Now after completion of the project, they cannot raise issue relating to delay. The opposite party completed construction and obtained “part occupation certificate” in respect of 1st to 13th floors on 31.07.2017 and vide letter dated 07.08.2017, offered possession’ with demand of Rs.7434900/- towards balance consideration and Rs.824625/- as service tax. Instead of depositing balance amount and taking possession, the complainants started raising various issues and themselves delaying the matter. It has been denied that at the time of offer of possession, amenities were not complete. Delay did not occur due to negligence of the opposite party as such they are not liable to give any compensation. Exorbitant claims have been made in this complaint. Preliminary objection that the complainants were not consumers and under clause 53 of the agreement, the dispute was liable to be referred to Maharashtra Chamber of Housing Industry, are also raised. 5. The complainants filed Rejoinder Reply, Affidavit of Evidence of Dr. Swati Mihir Bapat and documentary evidence. In Affidavit of Evidence, Dr. Swati Mihir Bapat has stated that this Commission, by order dated 05.07.2018, directed the opposite party to handover possession after taking balance consideration excluding interest. The complainants deposited Rs.3717450/- as balance consideration, Rs.495525/- and Rs.90000/- as society charges on 09.07.2018 and Rs.562500/- as, service tax on 26.07.2018. The opposite party handed over possession on 17.07.2018. The opposite party filed Affidavit of Evidence of Ali Murtaza. Both the parties have filed their short synopsis of arguments. 6. We have considered the arguments of the counsel for the parties and examined the record. In this case, possession was handed over to the complainants on 17.07.2018. The dispute between the parties remained in respect of interest as claimed by the opposite party and delay compensation as claimed by the complainants. This Commission in CC/12/2017 Nagesh Maruti Utker Vs. Sunstone Developers Joint Venture (decided on 04.05.2022) and other connected cases, did not accept the plea of force majeure as raised by the opposite party for delay in delivery of possession and directed the opposite party to pay delay compensation in the form of interest @9% per annum on the deposit of the home buyers from due date of possession till the offer of possession. 7. In the present case, clause-2(j)(VIII)(d) of the agreement provides possession date as December, 2014. The opposite party offered possession vide letter dated 07.08.2017. As such, the opposite party is liable to pay delay compensation from 01.01.2015 till 06.08.2017. The opposite party did not adjust delay compensation in final statement of account as such the opposite party is entitled to claim interest on the balance amount after adjusting delay compensation. Supreme Court in Wg.Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512 and DLF Home Developers Pvt. Ltd. Vs. Capital Greens Flat Buyers Association, (2021) 5 SCC 537, held that interest @6% p.a. on the deposit of home buyers for the delayed period is appropriate delayed compensation. O R D E R In view of above discussions, the complaint is partly allowed. The opposite party is directed to give delay compensation in the form of interest @6% per annum on the deposit of the complainants from 01.01.2015 till 06.08.2017. After adjusting delay compensation if any amount remained to be paid by the complainants, the opposite party will charge interest @9% per annum on it from 08.09.2017. If the complainants have deposited excess amount, then the opposite party will return it with interest @9% per annum from the date of deposit till the date of refund. After settlement of account within a period of one month, the opposite party will execute conveyance deed, if required, without any further delay. |
