Flat Purchasers Can't Be Made To Wait For 'Inordinate' Time Period For Possession, Reaffirms NCDRC

Placing reliance on the decision of Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra (Civil Appeal NO. 3182 of 2019), in which the Hon'ble Supreme Court has observed that the flat purchasers cannot be made to wait for inordinate period of time hoping to seek possession, National Consumer Disputes Redressal Commission (NCDRC) reaffirmed to the same effect in Prakash Vishwanath Tiwari v. M/S Monarch & Qurwshi Builders & 2 Ors., directing the opposite parties to pay Rupees 1, 22, 92, 900 (which is the market value of the subject property), jointly and severally, alongwith the interest @ 12% per annum from the March 2013, till the date of realization to the Complainant.

It also directed them to pay him compensation of Rupees 2, 00,000 for the mental agony suffered by him for not realizing his dream and hope of having his apartment together.

Brief Facts

The brief facts are that the Complainant was a tenant of room Nos. 128 and 131 Oshwiara Village, Andheri (w). The said premises was adopted unjustly for Re-Development along with other properties by M/s. Monarch & Qureshi Builders and was under dispute and then the dispute was settled as per Consent terms dated 10.12.2010 agreed between the Complainant and the Developer, before the Bombay City Civil Court Borivali Division. Thereafter, the Agreement of sale was executed between the Complainant and the Developer on 28.03.2011, in accordance with the Consent Terms and the Complainant was allotted a flat No. 2404, "C" wing, 24th floor in building "Evershine Cosmic" in lieu of his old premises Room No. 128 and 131 in addition to two car parking @ 50,000 Rs each, for which the Complainant paid 1,00,000/- vide two cheques dated 27.07.2011. In total the Complainant paid a sum of 5,42,666/- to the Developer for all common amenities and facilities. On 01.10.2016, the Complainant issued Causation Notice to the Developer stating that the Developer has failed to pay the monthly promised interest @ 21% and called upon the Developer to handover the subject property with Occupation Certificate and membership on or before 12.10.2016. The Developer denied the allegation in its reply notice dated and vexed with its attitude, the Complainant approached NCDRC.

Complainants "Consumer" within the meaning of Section 2 (1) (d) (i)

Rejecting the contention of the counsel for the developer that the "complainant" was not a "consumer" as it was a case of rehabilitation and no consideration was paid., Disputes Redressal Commission said that having regard to the fact that the flat No. 2404 in Wing- "C" of Evershine Cosmic was being given to the Complainant in lieu of his original premises i.e. Room No. 128 and 131 in the ground floor, the building of which was given for rehabilitation, and, additionally, the Complainant having also paid 50,000/- each for two car parking space and also the service tax plus VAT of 5,42,666/-, it is of the view that the Complainant does fall within the ambit of the definition of 'Consumer' under Section 2 (1) (d) and (o) of the [Consumer Protection Act, 1986] Act as premises which the Complainant has given in lieu for the new flat is to be construed as consideration paid and promised to be paid.

Commission also rejected the second contention of the counsel that there was no promised date of delivery in the Agreement entered into between the Complainant and the Developer. It said that in Para 17 of the said Agreement, there is a provision for giving compensation within the provisions of Section 8 of the Maharashtra Ownership Flat Act, 1963 while the actual date and year have been left blank.

It noted: "If time was not the essence of the Contract, it is not understood as to how the Developer has agreed in the same paragraph to refund the amount with simple interest @ 9% p.a. if the construction was not completed on the 'aforesaid date'."

Not Obtaining Requisite Occupation Certificate Within a Reasonable Time Period "Deficiency of Service" Within the Meaning Of S. 2(1) (g)

Doing away with the contention that complainant has anything to do with the tussle between the opposite parties, Commission said that Complainant is not concerned with the tussle between both the Opposite Parties and it is their legal right to have the requisite Occupation Certificate before they occupy the flat purchased from the Opposite Parties and it is a contractual as well as legal obligation of the Opposite Parties to obtain such Occupation Certificate at their own cost and responsibility by removing all objections that are raised by the concerned authorities.

Commission said that by not obtaining the requisite "Occupation Certificate" before the promised date of delivery of possession or even within a reasonable period of time thereafter, the Opposite Parties committed an act of "deficiency of service" [under provisions of the Consumer Protection Act, 1986] and for the same act of deficiency of service, they are liable to pay suitable compensation to the Complainant as no flat can be legally offered for being occupied by the purchaser without obtaining the requisite Occupation Certificate.

Commission further said that the Opposite Parties have violated Section 8 of Maharashtra Ownership Flat Act, 1963 as they have delayed the possession of the flat for more than 7 years; and have also violated Section 10 of MOFA as they have neglected to form and register the Co-operative Housing Society and have additionally violated Section 11 of MOFA as they have yet to convey the title and execute the document as per Agreement.