CCI PROJECTS (P) LTD. versus VRAJENDRA JOGJIVANDAS THAKKAR on 27 November 2018

1. These appeals under Section 23 of the Consumer ProtectionAct, 1986 are directed against the common order dated 23.01.2018 passedby the National Consumer Disputes Redressal Commission, New Delhi(“Commission” for short) in Consumer Case Nos.975 and 976 of 2016.

2. In Consumer Case No.976 of 2016, Vrajendra J. Thakkar, HUFhad booked a residential flat with the appellant in a project named “WhiteSpring Building”, which the appellant was to construct at VillageMagathane Dattapada Road, Borivali (East), Mumbai, for a considerationof Rs.90,38,850/- and flat No.6A in the building was allotted to saidVrajendra J. Thakkar, HUF. The parties entered into an agreementdated 30.10.2012 and in terms of Clause 17 of said Agreement, thepossession was to be delivered by August, 2014. However, in terms ofthe Agreement, the date of delivery of possession would standautomatically extended in the event of any of the contingencies specifiedin the said clause which was to the following effect:

“Possession of the said Premises in the said Building shall begiven by The Promotor to the Purchaser on or before August,2014 on a “best effort” basis. Provided that in the even ofoccurrence of any of the following events, the aforesaid date ofpossession shall automatically stand extended by a period by whichthe possession is delayed on account of such event(s) –

(a) Non-availability of steel, cement, other building of constructionmaterials, water or electricity supply; (b) War, civil commotion, strike, lockout, riots, acts of terrorism,epidemics, earthquake, flood, other act of God, any prohibitoryorder of any court, tribunal or authority against the developmentof the said Properties:

(c) Any notice, order, rule, notification, circular of the Governmentand/or other public or competent authority, court, tribunal or Quasi-judicial body or authority; (d) Delay in getting NOC, permissions licenses, approvals,consents, connections, plans, occupancy, certificate, completioncertificate and permissions from MCGM and other authorities/bodies.

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A(e) Change in any law, rules, regulations, bye-laws of anyGovernment, authorities, public/local bodies affecting thedevelopment of the said Properties.

(f) Any notice/direction notification, order from the forestdepartment, Ministry of environmental department, pollution controlBdepartment, MCGM, any Government Department or public body/local Authority, in respect to the said Properties; (g) Delay or default in payment of the balance purchase priceand/or other amounts payable hereunder by the Purchaser to thePromoter (without prejudice to the right of the Promoter toCterminate this Agreement in terms of clause 12 above.”

3. Said Vrajendra Thakkar, HUF thereafter transferred theallotment in favour of mother of the present respondent namelyKumudben Jagjivandas Thakkar. Said Kumudben Thakkar thereaftergifted the very same Apartment to the present respondent.

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4. In Consumer Case No.976 of 2016, Smt. Hemali VrajendraThakkar had booked a residential flat with the appellant in the sameproject and Flat No.6B was allotted to her for the same consideration ofRs.90,38,850/-. She also entered into similar agreement dated 30.10.2012having identical clauses including the aforesaid Clause No.17 to deliverEthe possession by August, 2014. Later, the aforesaid allotment wastransferred by Hemali Vrajendra Thakkar in favour of her mother-in-law namely Kumudben Thakkar who in turn gifted the same to therespondent herein. The gift deed dated 19.08.2015 contained one of therecitals as under:

“And Whereas, although the Donee has other siblings too butFright from beginning the Donor and her late husband had beenstaying with the Donee and his family at the aforementionedaddress and it is only the Donee who had been taking care ofeach and every thing of the Donor and her husband from thesmallest to the biggest of their requirements. … … …”

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5. On or about 02.06.2016, the aforesaid Consumer Case Nos.975and 976 of 2016 were filed contending inter alia that though sum ofRs.85,86,911/- had been deposited in respect of each of the flats, nopossession was delivered by the appellant. In the circumstances followingreliefs were prayed for:

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“a. OP be directed to handover the legal possession of flat tocomplainant within one month AND

b. OP be directed to pay to Complainant 18% interest per annumon Rs.85,86,911/- from September 2014 on the considerationamount already paid to OP till OP handover the possession of theflat to Complainant. Or

c. if granting prayer a) & b) is legally not possible then in alternativeOP be directed to hand over any other newly constructed flat tocomplainant consisting same area, at the same rate in same localityin tower with same facility. OR

d. OP be directed to refund the Complainant Rs.2,00,00,000/-(Rupees Two Crore) the current market value of the said flat.AND

e. AND OP be directed to pay the complainant 18% interest perannum on Rs.85,86,911/- from September, 2014 on theconsideration amount already paid to OP till OP refund complainantRs.2,00,00,000/- the current market value of the said flat. AND

f. OP be directed to pay complainant Rs.5,00,000/- ascompensation for causing mental stress, harassment and agony.AND

g. OP be directed to pay to Complainant Rs.1,00,000/- as litigationcost.

h. Any other relief as Hon’ble Commission deem fit and proper.”

6. The appellant resisted the complaints and submitted that theconstruction activity had begun after obtaining requisite permissions.However, New Development Control Rules stood notified in 2012 whichobliged the builder/developer to prefer fresh application after seekingmandatory permission from the Fire Department. An application in thatbehalf was made on 21.12.2012 after complying with the mandatoryprovisions but the amended No Objection Certificate came to be grantedonly on 07.05.2013. Additionally, between August, 2013 till September,2015 i.e. for more than 24 months there was restriction on sand miningactivity as a result of which, one of the basic raw material for constructionhad become scarce in the market. It was further stated that the A

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Acomplainants themselves were in default and as such demand for paymentof Rs.1,04,207/- in respect of each of the flats towards interest onoutstanding amounts was raised and appropriate debit notes were issuedby the appellant.

7. During the pendency of the matters before the Commission,Bthe possession of the aforesaid flats 6A and 6B was offered by theappellant vide letter dated 16.11.2016. On 10.07.2017 the Commissiondirected the complainants to pay admitted sums to the appellant and todeposit the disputed sums with the Commission, whereafter thepossession of the flats was taken on 04.08.2017. The matters beforethe Commission thus stood confined to the issue whether the complainantsCin both the cases were entitled to any compensation in respect of delayedpayment or whether the appellant was entitled to have the period extendedin terms of aforesaid clause No.17.

8. The Commission rejected the submission in respect of amendedNOC granted on 07.05.2013. It further rejected the submission regardingDnon-availability of sand by observing that no document had been placedon record to substantiate such claim. The Commission observed thatexcept the sum of Rs.104,207/- which the appellant sought to recovertowards interest for delayed payment, rest of the sums were not disputedby the complainants and stood paid to the appellant. After consideringEthe rival claims the Commission disposed of the complaints with followingdirections:

“1. The balance, if any, out of the amount deposited by thecomplainant with this Commission before taking possession ofthe flat and proportionate interest which may have accrued onFthat amount deducting (i) the interest amount of Rs.10427/- (inboth the complaints) and (ii) an amount equivalent to compensationpayable to the complainant in terms of direction (3) below, shallbe released to the opposite party.

2. The amount of Rs.104207/- shall (in both the cases) be releasedGto the complainant along with proportionate interest which mayhave accrued on that amount.

3. The opposite party shall pay compensation in the form of simpleinterest @ 8% per annum on the amount which had been paid by CCI PROJECTS (P) LTD. v. VRAJENDRA JOGJIVANDASTHAKKAR [UDAY UMESH LALIT, J.]

that date, to the complainant, w.e.f. 01.09.2014 till the date onwhich the possession was actually delivered to him. Thecompensation to the extent available shall be adjusted out of theamount payable to the complainant in terms of direction (1) above.

4. The opposite party shall also pay Rs.25,000/- as the cost oflitigation in each complainant to the complainant.

5. The payment by the OP in terms of the order shall be madewithin three months from today.”

9. In these appeals challenging the correctness of the decision ofthe Commission, we heard Mr. Sanjiv Sen, learned Senior Advocate andDr. Vinod Kumar Tewari, learned Advocate for the parties.

10. It was submitted by Mr. Sanjiv Sen, learned Senior Advocate:

(a) The complaints were not maintainable in as much as the originalallottees had transferred their interest. Reliance was placed onthe decision of this Court in Haryana Urban DevelopmentAuthority v. Raje Ram[1].

(b) The time lost between 21.12.2012 till 07.05.2013 on accountof mandatory requirement for re-submission of plans, the appellantwas entitled to have that period extended.

(c) The National Green Tribunal had banned sand mining activitiesacross the country on 05.08.2013 which came to be relaxed onlywhen new policy was formulated by Union of India in September,2015. It was submitted that the availability of sand during thisperiod had come down to 20% of what it was before.

It was therefore submitted that the appellant was not at fault. Inany case the possession was offered on 16.11.2016 and thus it was onlya short period of more than 2 years between August, 2014 and 16.11.2016which was the period in question. In his submission, the period stoodcompletely explained and as such the Commission was not justified inimposing liability on the appellant.

11. The learned Advocate for the respondent on the other handsubmitted that the transfers effected by the parties were within the family.He submitted that the appellant was not entitled to any extension ofperiod. He further submitted that the order passed by the National Green A

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ATribunal had banned illegal sand mining activity and not sand miningactivity itself. The sand was thus available in market.

12. We have gone through the record and considered the rivalsubmissions. The decision of this Court in the case of HaryanaDevelopment Authority (supra) turned on individual facts of the caseBwhere the very entitlement of the subsequent allottees to claim damagesor compensation for delayed delivery of possession was found to beunsustainable. Said decision of this Court related to cases where theoriginal allottees had transferred the allotment in favour of total strangerswith the permission of the authority and as found by this Court, thesubsequent allottees were aware that there was delay in delivering theCallotted plots on account of time taken in forming the layout or on accountof encroachment and yet had purchased the interest of the originalallottees. In the present case the transfers were effected within thefamily where the members had been living together. The decision ofthis Court in Haryana Urban Development Authority (supra) cannotDbe stretched to say that in every case where there is a transfer, thecomplaint by the subsequent transferee would not be maintainable at all.

13. At the same time, the appellant is justified in saying that as aresult of mandatory requirements to resubmit the plans and get the freshNOC in respect of fire safety permission, the period between 21.12.2012Eto 07.05.2013 stood completely explained. Thus, out of the periodbetween August, 2014 till 16.11.2016, the appellant would be entitled tohave a period of 6 months of extension. That still leaves us with a periodof a year and 8 months. The Commission has awarded 8% interest onthe deposited sum. The deposited sum in either case being Rs.85.86lakhs, going by the direction issued by the Commission, the interest elementFin respect of the period of one year and 8 months would be in the regionof Rs.11.4 lakhs. We now consider the second part of the submission.It is true that there was no complete ban on sand mining. But as a resultof reduced availability of sand in the market, the demand and supplyratio must have been upset. The appellant would therefore be entitled toGsome benefit on that count.

14. Considering the entirety of the matter, in our view, instead ofdirection No.3 issued by the Commission, a lumpsum payment of Rs.5lakhs in substitution of said direction, would meet the ends of justice.We, therefore, modify the directions issued by the Commission. Retaining H

CCI PROJECTS (P) LTD. v. VRAJENDRA JOGJIVANDASTHAKKAR [UDAY UMESH LALIT, J.]

directions 1, 2 & 4, the direction No.3 is substituted and in its place theappellant would be required to pay a lumpsum compensation of Rs.5lakhs to the respondent in respect of each case. We direct that all thesums covered by the directions shall be made over within 2 months fromtoday failing which the respondent complainant shall be entitled to 8%interest on the amounts in question.

15. With these directions civil appeals stand disposed of. No costs.

Ankit Gyan

Appeals disposed of.

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