SONALI CHANDIRAMANI & ANR. V. MARVEL OMEGA BUILDERS PRIVATE LIMITED

• Nitishu Sharma
• 29 Dec, 2023
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SONALI CHANDIRAMANI & ANR. V. MARVEL OMEGA BUILDERS PRIVATE LIMITED

Sonali Chandiramani & Anr. Vs. Marvel Omega Builders Private Limited

CONSUMER CASE NO. 1023 OF 2019

1. SONALI CHANDIRAMANI & ANR.                                                                                                                                          ………..Complainant(s)

Versus

1. MARVEL OMEGA BUILDERS PRIVATE LIMITED
THROUGH ITS MANAGING DIRECTOR ARTHVISHWA”

4TH FLOOR, LANE, NO.5,KOREGAON PARK, PUNE-
411001                                                                                                                                                                                                          ………..Opp.Party(s)

CONSUMER CASE NO. 1024 OF 2019

1. ROMI CHANDIRAMANI & 2 ORS.                                                                                                                                             ………..Complainant(s)

Versus

1. MARVEL OMEGA BUILDERS PRIVATE LIMITED                                                                                                                        ………..Opp.Party(s)

Date of Judgement : 06 December 2023

Judges : JUSTICE RAM SURAT RAM MAURYA
HON’BLE BHARATKUMAR PANDYA

For Complainant : MS. KAWALJIT KOCHAR, ADVOCATE WITH

                               MR. DEEPANSHU, ADVOCATE

For Respondent : MR. VIJAY KUMAR, ADVOCATE

Facts:

• Sonali and Chandru Chandiramani (complainants) booked a flat C-301 in Marvel Selva Ridge Estate project developed by Marvel Omega Builders Pvt Ltd (opposite party).
• Agreement executed on 07.03.2013. Cost of flat Rs. 2.07 crores. Possession to be handed over by 31.12.2014.
• Complainants paid over 90% by May 2014.
• Opposite party failed to handover possession by due date of 31.12.2014. Gave assurances of possession in 1-2 months repeatedly.
• On 14.03.2018, opposite party informed flat is ready. But complainants found deficiencies during inspection – poor quality furniture, defective water pipes and tiles, corroded railings etc. Complainants informed defects vide email dated 22.08.2018.
• Opposite party demanding around Rs. 31 lakhs before possession. Also charging interest @18% from buyers for late payments.
• Complainants sent legal notice on 18.02.2019. Filed consumer complaint on 10.06.2019 seeking possession, compensation, refund of excess demands etc.

Arguments:

Complainants:

• There was delay in possession. Flat had major deficiencies.
• They had paid over 90% by May 2014 as per terms.
• Opposite party informed possession was ready on 14.03.2018 but flat had major issues.
• Seeking possession, compensation for harassment and losses.

Opposite Party:

• Possession was subject to full payment. Complainants failed to make full payment.
• Amount claimed as balance is as per govt norms. Allegation of paying 90% is wrong.
• Completion certificate obtained on 03.09.2016. Complaint filed with intention to harass and get illegitimate compensation.
• Preliminary objections: Complaint time barred. Complainants not consumers. Involves complicated questions.

Rejoinder by Complainants:

• As per Commission’s order dated 26.07.2019, deposited Rs. 23,45,456 as final installment. But opposite party not given possession nor rebate.

Court’s Observations and Directives:

• As per clause 5(b) of agreement, possession to be given by 31.12.2014. Not given till date despite deposit of Rs. 23,45,456 by complainants on 26.07.2019 as directed vide order of same date.
• Opposite party liable to pay delay compensation @ 6% p.a. on amount deposited from 01.01.2015 till possession as per Supreme Court judgments in Wg. Cdr. Arifur Rahman Khan case and DLF Home Developers case.
• After adjusting delay compensation, if any amount payable by complainants, opposite party can charge @ 9% p.a. No interest post 26.07.2019 when complainants deposited as directed.
• Directed settlement of accounts within 1 month. Handover possession and execute conveyance deed without delay thereafter.
• Amount of Rs. 23,45,456 deposited released to opposite party. If excess, refundable to complainants.

Sections referred: Section 2(1)(d) and Section 13(1) of Consumer Protection Act, 1986

Laws referred: None

So in summary, the complainants had booked a flat whose possession was delayed despite paying majority of the amount. The Court directed the builder to pay delay compensation at 6% interest on amount paid by buyers and settle accounts within 1 month and handover possession with further delay along with executing the conveyance deed.

Download Court Copy : https://dreamlaw.in/wp-content/uploads/2023/12/task-30-nitishu.pdf

Full text of Judgement :

1. Heard Ms. Kawaljit Kochar, Advocate, for the complainants and Mr. Vijay Kumar, Advocate, for the opposite party.
2. Sonali Chandiramani and Chandru Chandiramani have filed above complaint, for directing the opposite party to (i) handover possession of flat C-301, Wing ‘C’ in the residential project, namely, Marvel Selva Ridge Estate, Pune in terms of the agreement; (ii) pay compensation of Rs.24658782/- with interest @ 18% per annum from the due date of possession till realization, the for harassment, mental agony and other losses sustained by the complainants; (iii) pay additional expenditure that the complainants may have to bear due to proposed hike in the stamp duty for registration of sub lease and execute the lease deed in favour of the complainants; (iv) handover over possession of the apartment unit C-301 alongwith covered parking spaces CB03 and SC34; (v) handover possession of flat C-301 pending adjudication of the complaint and payment of Rs.3005000/- as claimed by the opposite party may be kept in abeyance (vi) any other order as deemed fit and appropriate in the facts and circumstances of the case.
3. The complainants stated that they are allottees of a residential flat No.C-301, Wing ‘C’ in a group housing project, namely, Marvel Selva Ridge Estate, Pune which was to be developed by the opposite party. The opposite party is a private limited company incorporated under the Companies Act, 1956, having its registered office at “Arthviswa”, 4th Floor, Lane No.5, Koregaon Park, Pune-411001. The opposite party approached the complainant for purchase of the flat. In the brochure luxury specifications were mentioned like earmarked space for entrance, forest reserve, driveways, gates, continuous circular vehicular movement within the complex, playgrounds, swimming pool, gym, club building, dedicated covered parking spaces and EV charging points etc. Allured by the promises of the opposite party, the complainants booked the above flat in the project. On 07.03.2013, an agreement was also executed between the parties. As per agreement, the cost of the flat was fixed at Rs.20740625/- which was to be made as per “construction linked plan.” Possession of the flat was to be handed over by 31st December, 2014. The complainants paid more than 90% of the consideration upto May, 2014. The opposite party failed to handover the possession within the stipulated period. The complainants visited the office of the opposite party several times (12.02.2015, 05.03.2015, 20.04.2015, 03.03.2016, 30.01.2017 and 17.09.2017) and also wrote emails for handing over possession. Every time the opposite party assured that the flat would be ready within a month or two. The opposite party, vide email dated 14.03.2018 informed the complainant that the flat is ready for handing over the possession. The complainants inspected the flat and found various deficiencies therein like poor quality of furniture, defective water pipes, broken tiles, corroded railings, ill fittings and fixtures etc. The complainants brought the said deficiencies to the notice of the opposite party, vide email dated 22.08.2018 but nothing was done by the opposite party upto December, 2018. The opposite party is demanding Rs.24 lacs before handing over possession of the flat, which is not in a habitable condition due to above deficiencies. The opposite party is also demanding Rs.605000/- before possession. The opposite party has charged interest @ 18% for delay in making the payment by the complainants and other home buyers. The complainants sent a legal notice dated 18.02.2019 to the opposite party for deficiency in service and unfair trade practice. Then also the opposite party did not rectify the defects. Therefore, the complainants filed the above complaint on 10.06.2019.
4. The opposite party filed its written reply on 17.01.2020, wherein allotment of flat, execution of agreement for sale dated 07.03.2013 in favour of the complainants and deposit made by them, have not been disputed. The opposite party stated that possession was to be handed over upto 31.12.2014, subject to full payment by the complainants. The complainants failed to comply with the terms of the agreement by not making full payment to the opposite party. Therefore, delay in handing over possession cannot be attributed to the opposite party. The payment made by the complainants includes the charges as per government norms. Therefore, the allegation of the complainants that they have paid more than 90% of the total consideration is wrong. As per statement of account, an amount of Rs.3137065/- is still payable by the complainants with interest @ 18% p.a. The complainants cannot take benefit of their own wrong. The opposite party has completed all requisite requirements as per agreement and obtained the completion certificate on 03.09.2016. The complaint has been filed with ulterior motive with the intention to harass the opposite party by getting illegitimate compensation. The allegations of deficiency in service and unfair trade practice are false and the complaint is liable to be dismissed.
5. The opposite party also raised the preliminary objection that the complaint has been filed without any cause of action. Possession of the flat was to handed over upto 31.12.2014. The complaint filed in 2019 is time barred. The complainants are not consumers under Section 2 (1) (d) of the Consumer Protection Act, 1986 as they have not made full payment to the opposite party. The complaint involves complicated facts which cannot be decided by this Commission in summary jurisdiction.
6. The complainants filed Rejoinder Reply, Affidavit of Evidence of Mrs. Sonali Chandiramani and documentary evidence. In Affidavit of Evidence, it is stated that as directed by this Commission vide order dated 26.07.2019, the complainants have deposited an amount of Rs.2345456/- with this Commission, as final instalment for possession of the flat. However, the opposite party has not given rebate of Rs.129585/- as agreed, nor has rectified the deficiencies pointed out by the complainants. The opposite party filed the Affidavit of Evidence of Vishwajeet Subhash Jhavar, Director of the opposite party. Both the parties have filed their short synopsis of arguments.
7. We have considered the arguments of the counsel for the parties and examined the record. As per clause 5 (b) of the agreement, possession of the flat was to be handed over by 31.12.2014 but the possession has not been handed over. On 26.07.2019, this Commission passed the following order: –

“The complaint is admitted, subject to just exceptions. Issue notice in terms of Section 13(1) of the Consumer Protection Act along with a copy of the complaint to the OP, for 06.12.2019, directing it to give its version of the case within a period of 30 days from the date of receipt of the notice. In the meanwhile, the complainants are permitted to take possession of the allotted flat on payment of the admitted balance amount, if any, to the opposite party and deposit of the entire amount disputed by them with this Commission without prejudice to the respective rights and contentions of the parties in this complaint. The said amount, if deposited, shall not be released to the complainant without prior permission of this Commission and shall be kept in an automatically renewable FDR of a nationalized bank and final order with respect to disbursal of the said amount and interest which accrues on it will be passed at the time of final disposal of the complaint.”

In compliance of the order dated 26.07.2019, the complainants have deposited an amount of Rs.2345456/- with this Commission but till date opposite party has not handed over the possession. As such, the opposite party is liable to pay delay compensation from 01.01.2015 till the date of possession to be handed over to the complainants. 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.

ORDER

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 the date of handing over of possession. 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. As the complainant has deposited an amount of Rs.2345456/- with this Commission in compliance of the order of this Commission dated 26.07.2019 and the opposite party has not issued final statement of account, the opposite party shall not charge any interest after 26.07.2019. After settlement of account within a period of one month, the opposite party will hand over the possession of the flat and execute conveyance deed in favour of the complainants without any further delay. Registry is directed to release the amount of Rs.2345456/- lying in deposit with this Commission with accrued interest, if any, to the opposite party. If in accounting, it is found to be excess amount, then the opposite party shall pay such excess amount to the complainants.

—END—