NCDRC Holds Landowner Jointly And Severally Liable Along With Developer For Deficiency In Service

The complainants booked a unit in the project "ND Laurel" situated in Karnataka. It was submitted that the buyers were in agreement with the opposite party no.1 (ND Developers Pvt. Ltd.) to undertake the construction of the flats and their development. Other opposite parties are the landowners and are jointly liable for the numerous instances of unfair trade practices, restrictive trade practices and deficiency in service. As per the agreement the buyers were supposed to get the possession of the flats in December, 2012 with an additional grace period of four months along with other facilities such as road work, STP , lift, corridor, staircase etc. However, despite taking 95% of the funds from the buyers the opposite parties have failed to obtain an occupancy certificate and the construction of the flats has been of poor quality. Further the possession of incomplete flats was offered without the promised basic amenities.

The opposite parties submitted that the complaint is barred on limitation as the complaint was filed 2 years after the cause of action arose. It was further submitted that that the complaint is not maintainable as out of the 52 complainants, 18 have already taken possession of the allotment and hence all of the complainants cannot have the similar prayer. They also referred to the decision of the commission in the case Ambrish Kumar Shukla & Ors V. Ferrous Infrastructure Pvt. Ltd and stated that only 52 buyers have filed the complaint while there are over a 100 allotees in the project. It was further mentioned that the Opposite Party No.1 has delivered the possession despite several hurdles.

The bench observed that the submission of the Opposite Party with reference to Ambrish Kumar Shukla & Ors V. Ferrous Infrastructure Pvt. Ltd and noted that there should be a sameness of interest and not the same cause of action.

The opposite part no.4 who is a landowner submitted that the delay in construction is on account of opposite party no. 1 who is the builder and hence has no role in the matter and should not be help jointly aur severally liable. Here the bench relied on the order of the commission in the case Pooja Daryani & Anr V. M/s Umag Realtech Pvt Ltd in which it was held that the opposite party being the confirming party in a collaboration agreement entered among the opposite parties, even when being a landowner is jointly and severally liable for any compensation. Any other arrangement is inter se between the opposite parties and shall not bind the complainants.

The bench noted that there has been an unreasonable delay in the completion of project and the complainants cannot wait indefinitely for the possession as they have invested heavy amounts with the intention to get the possession. To solidify their observations the bench placed reliance on several supreme court judgements such as Kolkata West International City Pvt. Ltd. Vs. Devasis Rudran, Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghvan, Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor and Supertech Ltd. Vs. Rajni Goyal.

The bench also noted that the possession was supposed to be given in December, 2014 with a grace period of 4 months. However, there was a continuous delay. Some complainants did accept the allotment but only in 2016 but the opposite parties have yet not been able to obtain an occupancy certificate. The bench noted that for the others who have not taken such paper possession in the absence of Occupation Certificate the delay is around 9 years. Thus, there is continuous delay of more than 9 years for obtaining Occupancy Certificate. The Builder/ Developer cannot force a buyer to take possession without Occupancy Certificate. In this regard attention is drawn to the order of Hon'ble Supreme Court in Samruddhi Co-Operative Housing Society Ltd. Vs. Mumbai Mahalaxmi Construction Pvt. Ltd.

The commission partly allowed the complaint with the following directions:

Where the Complainants/ Buyers are seeking Refund and have not taken possession:

1. The Opposite Parties are directed to refund the entire amount deposited by the respective Complainants/ Buyers along with delay compensation @ 9% per annum on the deposited amount from the respective dates of deposits till realization, within a period of two months of this Order.
2. Any delay beyond two months, will attract an interest rate of 12% per annum for the same period.

Where the Complainants/ Buyers have taken paper possession:-

1. the Opposite Parties are directed to complete the construction of the flats allotted to the Complainants in all respects, duly obtaining the requisite Occupancy Certificate at their own cost and responsibility and offer and give possession of the respective Units to the Complainants within 06 months of this Order alongwith delay compensation @ 8% per annum from the proposed date of possession as per the respective Agreements which will include the grace period, till the offer of possession or obtaining Occupancy Certificate whichever is later.
2. Any delay beyond two months, will attract an interest rate of 12% per annum for the same period.

Case Title: Prashant Telkar and Vijeta Kalghatgi & 51 Ors V. ND Developers Pvt. Ltd & 5 Ors

CONSUMER CASE NO. 3681 OF 2017

Counsel for the Complainant: Mr. Bishwajit Bhattacharya, Sr. Advocate, Ms. Narayani, Advocate &Mr. Chandrachur Bhattacharya, Advocate

Counsel for the Opposite Parties:Mr. Karthik K.R., Advocate for OP-1 , Mr. Kush Sharma, Advocate & Ms. Priya Choubey, Advocate for OP-4

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