Supreme Court of India
MARVEL OMEGA BUILDERS PVT. LTD. AND ANR.V. SHRIHARI GOKHALE AND ANR. versus SHRIHARI GOKHALE AND ANR on 30 July 2019
[2019] 10 S.C.R. 375
MARVEL OMEGA BUILDERS PVT. LTD. AND ANR.
v.
SHRIHARI GOKHALE AND ANR.
(Civil Appeal Nos.3207-3208 of 2019)
JULY 30, 2019
[UDAY UMESH LALIT AND VINEET SARAN, JJ.]
Consumer Protection Act, 1986 – s.23 – Respondents bookeda residential villa viz., Emerald-07 in a project named ‘Marvel SelvaRidge Estate’ to be developed by the Appellants – Agreement dated.22.03.2013 entered between the parties – Total consideration forthe villa was to be Rs.8.31 crores – Respondents paid Rs.8.14 croresby November, 2013 – Though the appellants had agreed to deliverpossession on or before 31.12.2014, neither the villa was completeby the due date nor was any refund made by the appellants –Respondents filed complaint before the Commission – Complaintallowed by the Commission inter alia directing refund of the entireprincipal amount of Rs.8.14 crores to the Respondents withcompensation in the form of simple interest @ 10% p.a.– Appellantsfiled application seeking extension of time to comply with thejudgment – Rejected – On appeal, held: As against the totalconsideration of Rs.8.31 crores, the Respondents had paid Rs.8.14crores by November, 2013 – Though the Appellants had undertakento complete the villa by 31.12.2014, they failed to discharge theobligation – As late as on 28.05.2014, the Revised ConstructionSchedule had shown the date of delivery of possession to be October,2014 – Thus, there was total failure on part of the Appellants andthey were deficient in rendering service in terms of the obligationsundertaken – Even assuming that the villa is now ready foroccupation (as asserted by the Appellants), the delay of almost fiveyears is a crucial factor and the bargain cannot now be imposedupon the Respondents – Respondents justified in seeking refund ofthe amounts deposited with reasonable interest – Findings renderedby the Commission neither incorrect nor unreasonable on any count– Villa in question shall not be sold nor any third party rights canbe created by the Appellants in respect of said villa till the decree infavour of the Respondents is completely satisfied – So long as the
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Adecree remains to be satisfied, said villa shall be under attachment,subject to such orders as may be required to be passed in connectionwith the execution of the order passed by the Commission.
Dismissing the appeals, the Court
HELD: 1.1 As against the total consideration of Rs.8.31Bcrores, the Respondents had paid Rs.8.14 crores by November,2013. Though the Appellants had undertaken to complete thevilla by 31.12.2014, they failed to discharge the obligation. Aslate as on 28.05.2014, the Revised Construction Schedule hadshown the date of delivery of possession to be October, 2014.CThere was, thus, total failure on part of the Appellants and theywere deficient in rendering service in terms of the obligationsthat they had undertaken. Even assuming that the villa is nowready for occupation (as asserted by the Appellants), the delay ofalmost five years is a crucial factor and the bargain cannot nowbe imposed upon the Respondents. The Respondents were,Dtherefore, justified in seeking refund of the amounts that theyhad deposited with reasonable interest on said deposited amount.The findings rendered by the Commission cannot therefore besaid to be incorrect or unreasonable on any count. [Para 10][379-D-F]
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1.2 The residential villa admeasuring 648.46 square metresbearing No. Emerald-07 in the complex known as ‘Marvel SelvaRidge Estate’ namely the villa in question shall not be sold norany third party rights can be created by the Appellants in respectof said villa till the decree in favour of the Respondents isFcompletely satisfied and so long as the decree remains to besatisfied, said villa shall be under attachment and would be subjectto such orders as may be required to be passed in connectionwith the execution of the order dated 31.05.2018 passed by theCommission in Consumer Case No.2010 of 2016. [Para 11] [379-G-H; 380-A]G
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3207-3208 of 2019
From the Judgment and Order dated 05.09.2018 of the NationalConsumer Dispute Redressal Commission, New Delhi in MiscellaneousApplication No. 578 of 2018H
R. P. Bhatt, Sr. Adv., Javed Shaikh, R. C. Sharma, Rahul Kr.Singh, R. P. Chhibber, Ms. Bharti Tyagi, Advs. for the Appellants.
Saurabh Jain, P. K. Jain, Advs. for the Respondents.
The Judgment of the Court was delivered by UDAY UMESH LALIT, J.
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1. These Appeals under Section 23 of the Consumer ProtectionAct, 1986 are directed against (i) the judgment and final order dated31.05.2018 passed in Consumer Case No.2010 of 2016 and (ii) the orderdated 05.09.2018 passed in Miscellaneous Application No.578 of 2018by the Commission[1].
2. The Respondents had booked a residential villa viz: Emerald-07 in a project named ‘Marvel Selva Ridge Estate’ to be developed bythe Appellants. The total consideration for the villa with three coveredcar parking spaces and open terrace was to be Rs.8,31,04,425/-. Anagreement was entered into between the parties on 22.03.2013incorporating mutual obligations and paras 5(a) and (b) thereof were asunder:- “5. The Promoter declares that:
a) The said Unit shall be constructed in accordance with theplans and specifications approved and sanctioned by theMunicipal Corporation of Pune.
b) Possession of the said Unit agreed to be purchased by thePurchaser/s shall be handed over to the Purchaser/s by thePromoter on or before 31.12.2014 provided that thePurchaser/s shall have made payment of the instalmentstowards the purchase price of the said Unit and othercharges/ deposit/s as mentioned in Clauses 20 to 23hereinbelow as agreed upon without delay at the timesstipulated for payment therefor.”
3. It is a matter of record that during the period July, 2012 toNovember, 2013 the Respondents had deposited Rs.8.14 crores withthe Appellants. Though the Appellants had agreed to deliver possessionon or before 31.12.2014, neither the villa was complete by the due date 1 National Consumer Disputes Redressal Commission, New Delhi A
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Anor was any refund made by the Appellants. It was the case of theAppellants that sometime in April, 2014 the Respondents had suggestedextra work amounting to Rs.2,67,000/- and that Stop Work Notices wereissued by the Pune Municipal Corporation on 23.07.2014 and 15.11.2014.
4. Since the possession of the villa was not delivered, theBRespondents filed Complaint Case No.2010 of 2016 before theCommission praying inter alia for the following reliefs:- “a) Grant a sum of Rs.13,24,07,052/-(towards principal amountof Rs.8.14 crores paid towards purchase of villa along withcompensation in the form of interest of Rs.5.1 crores) at the rateCof 18% per annum calculated upto 31[st] October, 2016, along withpendente lite and future interest at the same rate or such higherrate of interest which this Hon’ble Commission may deem fit inthe interest of justice, from the date of making payments till thedate of actual realisation of the payment.
Db) Grant cost of Litigation to the complainants.”
5. The matter was contested by the Appellants. The Commissionobserved that the additional work requested by the Respondents was ofsuch nature that at best three months additional period could be grantedfor executing such extra work. It was observed that even till the filingEof the Complaint, the possession of the villa was not offered to theRespondents and that if there were Stop Work Notices issued by thePune Municipal Corporation, the Respondents could not in any way beheld responsible for the same. While allowing the Complaint by itsjudgment and final order dated 31.05.2018, the Commission directed:- F“ (i) The opposite party shall refund the entire principal amount ofRs.8.14 crores to the complainants, along with compensation inthe form of simple interest @ 10% per annum from the date ofeach payment till the date of refund.
(ii) The opposite party shall pay a sum of Rs.25,000/- as cost oflitigation to the complainants.”G
6. The Appellants thereafter filed Miscellaneous ApplicationNo.578 of 2018 seeking extension of time to comply with theaforementioned judgment and order passed by the Commission. SaidMiscellaneous Application was rejected by the Commission vide its orderdated 05.09.2018.H
7. The aforesaid judgment and orders of the Commission arepresently under challenge in these appeals, which were preferred with93 days delay. When the matters were taken up on 03.12.2018, thelearned counsel appearing for the Appellants submitted that the villawas ready in all respects and the Completion Certificate would be obtainedwithin 21 days.
8. In their affidavit in reply, with the help of photographs andother material, it was asserted by the Respondents that the villa was stillincomplete. It was stated that on 28.05.2014 the Revised ConstructionSchedule was sent by the Appellants through e-mail which had promiseddelivery of possession by October, 2014 and even after five years fromsaid commitment the villa was still incomplete.
9. In this factual background, the basic issues that arise arewhether the view taken by the Commission was correct and whether itrequires any interference by this Court?
10. The facts on record clearly indicate that as against the totalconsideration of Rs.8.31 crores, the Respondents had paid Rs.8.14 croresby November, 2013. Though the Appellants had undertaken to completethe villa by 31.12.2014, they failed to discharge the obligation. As late ason 28.05.2014, the Revised Construction Schedule had shown the dateof delivery of possession to be October, 2014. There was, thus, totalfailure on part of the Appellants and they were deficient in renderingservice in terms of the obligations that they had undertaken.
Even assuming that the villa is now ready for occupation (asasserted by the Appellants), the delay of almost five years is a crucialfactor and the bargain cannot now be imposed upon the Respondents.The Respondents were, therefore, justified in seeking refund of theamounts that they had deposited with reasonable interest on saiddeposited amount. The findings rendered by the Commission cannottherefore be said to be incorrect or unreasonable on any count.
11. While parting, we must direct that the residential villaadmeasuring 648.46 square metres bearing No. Emerald-07 in thecomplex known as ‘Marvel Selva Ridge Estate’ namely the villa inquestion shall not be sold nor any third party rights can be created by theAppellants in respect of said villa till the decree in favour of theRespondents is completely satisfied and so long as the decree remains A
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[2019] 10 S.C.R.
Ato be satisfied, said villa shall be under attachment and would be subjectto such orders as may be required to be passed in connection with theexecution of the order dated 31.05.2018 passed by the Commission inConsumer Case No.2010 of 2016.
12. With the aforesaid observations the appeals stand dismissed.BNo order as to costs.
Divya Pandey
Appeals dismissed.
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