Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.J. Kathawalla and Milind N. Jadhav, JJ., directed the builders who failed to refund the buyers their amount to date to establish that they are virtually paupers not having funds in their bank accounts and their standard of living also bears out the same.

Instant petition was filed by a retired pensioner. It was submitted that the petitioner by registered sale agreement purchased a residential flat for a total consideration of Rs 62, 77,310.

Respondents 6 and 7 were the partners of Respondent 5-Firm.

It was submitted that the possession of the said flat was to be given by 31-05-2015. An amount of Rs 61,58, 136 was paid from time to time to respondent 5 towards the purchase of the said flat. Though the building could not be completed due to several irregularities.

Petitioner filed a statutory complaint with respondent 4 – Maharashtra Real Estate Regulatory Authority seeking withdrawal from the project and refund of monies paid along with interest. Respondent 4 directed respondent 5 to refund the amount collected with the interest of @10.05% p.a.

Petitioner had again approached the respondents 5 to 7 for seeking compliance with the RERA Order, yet the same was neglected. Further, an execution application was filed wherein recovery warrant was issued under Section 40(1) of the RERA Act against respondents 5 to 7 which was forwarded to respondent 2 – Collector for execution and enforcement.

Till 2018, no action took place.

Further, the petitioner apprehended that the respondents 5 to 7 were attempting to avoid and delay the execution of the Recovery Warrant and meanwhile they were disposing of their assets in order to circumvent the due process of law.

In 2021, respondents 5 to 7 approached the petitioner for settlement, however, they committed default in payment of the first installment itself and breached the Memorandum of Understanding.

Petitioner, being aggrieved by the laxity on the part of the Statutory Authorities in execution and enforcement of the Recovery Warrant, approached this Court by the present petition.

Analysis, Law and Decision

Bench noted that respondents 5 to 7 have repeatedly brazenly breached the orders passed by this Court as well as undertakings given to this Court.

The said respondent’s counsel again reiterated in the Court that the respondents do not have any funds and they shall be in a position to pay only a sum of Rs 10 lacs only on 25-08-2021.

In view of the above stated, Court directed the respondents 5 to 7 to give complete disclosure of their movable and immovable, encumbered and unencumbered assets and properties before the next date. They shall also produce their bank statements as well as accounts operated by the firms/s and/ or companies in which they are partners and/or directors; particulars of their standard of living, as indicated through their electricity bills, their credit card statement/ s and the income tax returns that they have failed in the last three years.

Hence, the matter was adjourned to enable the respondent’s advocate to satisfy the Court that they do not have funds whatsoever.

Therefore, respondents 5 to 7 have repeatedly not only taken several flats, purchasers, for a ride, by taking their hard-earned monies and not providing them with their flats on time, nor returning their hard-earned monies, but have also repeatedly taken the Courts for a ride by giving solemn undertaking/s in order to avoid any adverse orders being passed against them, knowing fully well that they have no intention to honour the undertaking/s given by them to the Court. They are also well aware that assignments keep changing from time to time and they can, therefore, endeavour to convince the next Judge taking up the said assignment to grant them further extension of time to make payment, which order would once again be breached with impunity.

In view of the above, the matter was adjourned to 22-07-2021. [Arun Parshuram Veer v. State of Maharashtra, 2021 SCC OnLine Bom 1132, decided on 3-07-2021]


Advocates before the Court:

Mr. Nilesh Gala i/by Law Square for the Petitioner

 Mr. P.G. Sawant, AGP for Respondents 1 to 3 – State

Mr. Ashutosh M. Kulkarni a/w Mr. Akshay Kulkarni for Respondent 4

Mr. Makarand V. Raut a/w Mr. Manoj Nikam for Respondents 5 to 7

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Coram of C. Viswanath (Presiding Member) and Justice Ram Surat Ram Maurya (Member) decided an issue with regard to handing over of possession of flat and cancellation of sale agreement in a builder — buyer dispute.

Arun Kedia (HUF), Arun Kedia and Sabita Kedia (Husband and Wife), members of HUF filed the present complaint.

What led to the filing of the complaint?

OP 1 made advertisements from time to time, inviting applications from prospective buyers for the purchase of the flats.

In 2013, complainants approached the OP and booked a residential flat for purchase and deposited booking charges, in the office of the OP. In June, 2013, a registered sale agreement was executed between the parties. By that time the complainant had deposited an amount of Rs 73,51,426 in the office of the OP. The balance amount was to be paid in instalments.

Complainants paid the amount of instalments as mentioned in the agreement as and when it was demanded by the OP. According to the complainants, thereafter they neither received any demand letter nor possession of the allotted flat was handed to them till March, 2016. They received a demand letter but as in this letter no date of delivery of possession was mentioned as such, they did not deposit the amount demanded in it, rather wrote letters requesting to handover possession over the flat allotted to them.

It was also stated that the complainants were not allowed to go to the site and verify the progress in construction. OP assured the complainants that they would be given possession within a short time.

When the registered notice was served to the OP, they unilaterally cancelled the agreement, mentioning therein that in spite of the demand letter, they had not deposited the instalment as fixed in the agreement.

Complainants requested and sent registered notices to OP to cancel the agreement and hand over the possession, but since the notices were not complied with, the present complaint was filed.

Analysis, Law and Decision

Whether the complainants were defaulter in payment of instalments as fixed in the agreement in spite of the notice given by the OP, they failed to pay it within 7 days and hence the OP exercised its power under the agreement and revoked the agreement?

OR

OP had failed to complete the construction till March 2016 and in order to cover its default, the agreement was cancelled in a high-handed manner, to harass the complainants and divert their mind from asking possession?

Bench noted that the agreement fixed reciprocal liabilities upon both parties.

Further, it was added that if the opposite party has not abided by the terms of the agreement and committed a serious breach then it cannot blame the complainants that they have not deposited the instalments well within time or within seven days issue of the letter of demand.

Commission held that there was nothing on record to prove that the demand letters were actually issued to the complainants. Therefore, the allegation that the complainants committed default in payment on instalment for which the agreement was cancelled was not proved.

Adding to the above reasoning, Clause-14 of the agreement requires service of 30 days prior notice in writing of its intension to terminate the agreement. No such notice was issued by the opposite party to the complainants. Cancellation of agreement, of which the intimation was given through letter, was illegal. 

Coram held that there was nothing on record to show that till March, 2016, the construction was completed and a completion certificate was obtained from the competent authority.

According to Section 8 of the Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, if the builder is not able to hand over the possession over the building/flat within the time specified in the agreement then the builder is liable to pay interest to the purchaser of the flat for the period for which the possession has not been handed over.

Due to latches on the party of the OP, the complainants suffered a loss. The agreement for sale had been cancelled illegally and malafide, in a high handed manner and the complainants were forced into litigation.

Commission directed the OP to handover the possession to the Complainants after taking balance sale consideration within 2 months and execute the final deed of transfer. OP shall also pay simple interest @6% p.a.to the complainants on the amount deposited by them from the due date of possession to the offer of possession after obtaining the Occupancy Certificate.  [Arun Kedia (HUF) v. Runwal Homes (P) Ltd., 2021 SCC OnLine NCDRC 189, decided on 24-06-2021]


Advocates before the Commission:

For the Complainant: Mr. R.M. Kedia, Advocate

Ms. Sabita Kedia, Complainant in person

For the Opp. Party: Ms. Anita Marathe, Advocate

Case BriefsTribunals/Commissions/Regulatory Bodies

Maharashtra Real Estate Regulatory Authority, Mumbai: Coram of Dr Vijay Satbir Singh (Member I), while laying out certain significant observations with respect to the provisions of RERA decided the complaint revolving around delayed possession of flat.

Background

By preferring the present complaint, complainants sought directions from the MahaRERA to the respondent to pay the interest for the delayed possession under Section 18 of the Real Estate (Regulation & Development) Act, 2016 (RERA) in respect of booking their respective flats in the respondent’s project.

Respondent failed to hand over the possession of the flat on time. Complainants sought payment of interest for the delayed possession and further stated that even after the respondent sold more than 50% of the units, it failed to form the association of allottees/ society of allottees till date. The respondent has also failed to execute the deed of conveyance with the complainants along with the other allottees of the project.

Further, it was alleged that the respondent was yet to hand over and allot the parking spaces to respective allottees and was demanding permission from the allottees to utilize the additional FSI and construct the additional floors.

Complainants further stated that they have signed the possession letter and have received the possession of their respective flats in the month of December 2019, though respondent was not ready to allot the parking as well as to form the society of the allottees.

Analysis, Law and Decision

Since the respondent did not hand over the possession of the flats to the complainants and violated the provisions of Section 18 of the RERA and the Rules made thereunder.

Bench did not accept the reasons cited by the respondent for the delay in possession of the flat and apparently the respondent promoter wanted to apply convenient clauses in the agreement to take undue benefits after commencement of the RERA.

Formation of Society and Execution of Conveyance Deed

As per Section 11(4)(e) of the RERA, promoter is liable to enable the formation of society within 3 months of the majority of allottees having booked their flats.

In the present matter, more than 51% of the allottees booked their flats and the full occupancy certificate had been obtained for the said project, hence it was statutory duty of respondent promoter to form a society of the allottees and the respondent had no authority to lay down any condition for the same as it was not permissible under RERA.

Construction of Additional 4th Floor

MahaRERA opined that the present project was registered with MahaRERA after commencement of the RERA and hence provisions of RERA would apply for this project.

Hence, as per Section 14 of the RERA, any change or modification in the sanctioned plan required mandatory consent of the allottees and therefore, if respondent wanted to modify plans including the construction of 4th floor, then it had to be obtained through requisite consent of allottees.

Adding to the above, MahaRERA held that the respondent was liable to pay interest for the period of delay in accordance with the terms and conditions of the agreement.

Selling of the Car Parking

 stated that there is an explicit provision under RERA that promoter can sell only covered car parking by charging a certain amount. Open Parking had to be handed over to society, it could not be sold in the open market.

Therefore, complainant allottees and respondent promoter were bound by the said provision.

Following Order was passed:

  • Respondent directed to pay interest to the complainants till the date of occupancy certificate.
  • Respondent promoter was entitled to claim the benefit of “moratorium period”.
  • Since the complainants want to continue in the project, they are entitled to seek interest for the delayed possession under section 18 of the RERA.
  • Respondent/Promoter directed to form a society as per the provision of Section 11(4)(e) of RERA
  • With regard to construction of additional floor, without the consent of the 2/3rd allottees, the same could not be constructed.
  • It was also directed that respondent was entitled to sell only covered car parking and no cash money be demanded from the allottees.

[Deepesh Singh v. Neelkanth Constructions, Complaint No. CC006000000089761, decided on 30-07-2020]


Advocates before the Authority:

Adv. Nilesh Garde appeared for all the complainants. Adv.Khushiram Jadhvani a/w. Adv. Manali Saraf appeared for the respondent.

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Deepa Sharma (Presiding Member) addressed a matter wherein a consumer was subjected to the agony of delayed possession of a flat by being duped and coerced by the project owner.

Factual Matrix

Complainant 3 had booked a flat in Garden Isels project of the OP and the possession was to be handed over within 42 months, i.e. 3 and a half year, for which he had taken a home loan and had paid an EMI.

OP duped the complainant when he complained of the delay in construction, when OP suggested the complainant of buying another flat. Afterwhich, complainants had bought a flat in the project Imperial Courts and in 2015, an allotment letter was issued, and OP promised to hand over the possession within 24 months.

Further, it was contended that in one month of October, 2015, the Complainant as per the plan and advice of OP sought cancellation of the purchased unit in Garden Isels and requested for the transfer of the amount in the account of Imperial Courts flat.  It was stated that due to the transfer of the said amount, complainant lost home loan monthly EMI paid for over 25 months, 5% deduction on cancellation of the unit and the late payment amount of 2 to 4 Lakhs calculated @ 12% p.a. on the late payment of the installments and this amount comes to approximately 14 to 16 Lakhs and it is recoverable from the Opposite Party along with compensation for harassment and mental agony.

OP was paid total sale consideration amount and as per the possession letter, the flat was to be handed over within 45 days, i.e. by 15th February, 2017. However, series of unfortunate events took place. It was submitted that OP informed the complainants about the shortage of material and therefore informed them that it would take a long time for them to install 7 ACs one Jacuzzi, well-furnished modular kitchen and wardrobes in all four bedrooms.

On the advice of the OP, the Complainants under duress decided to give up all the materials like installation 7 ACs, one Jacuzzi, well-furnished modular kitchen and wardrobes in all four bedrooms and for that purpose, the Opposite Party had given a discount of 4,72,900, while the actual cost of all those articles were more than 15 Lakhs.

It was submitted that the OP had done nothing to ensure the handing over of the possession of the Imperial Courts flat.

The agreement between the parties was biased and contrary to the settled principle of law and public policy, hence, the agreement could not be implemented in the present form. The Complainants were induced to enter into this agreement which OP now sought to enforce.

OP was forcing the complainants to take possession of a flat that was not proposed and the overall condition of the project was not what was represented. Therefore, the agreement stood breached and deserved to be cancelled.

Analysis, Law and Decision 

Crux of the problem was that the flat was to be handed over within 42 months plus 6 months of a grace period, i.e. within 4 years. Before the expiry of 4 years, the complainant had booked a flat at the other project of OP for which the allotment letter was handed over and possession was promised within 24 months.

Coram stated that it is a settled proposition of law that if somebody complaints inducement, force or coercion it is his duty to plead the facts which led to said inducement, coercion or force and thereafter, prove those facts.

It was noted by the Commission that the complainants acted voluntarily and during the existence of an allotment of their flat in Garden Isles project, they booked another flat in Imperial Courts and finding difficult in paying installments towards Imperial Courts flat, they sought cancellation of the allotment of the flat in Garden Isles even before the period within which the possession of the said flat was to be handed over to them and requested for transfer of the money paid against the said flat in the account of Imperial Courts.

When can possession of a flat not be refused?

Commission while referring to the decision of the Supreme Court in Ireo Grace Realtech (P) Ltd. v. Abhishek Khanna, (2021) 3 SCC 241 expressed that where the offer of possession is made along with Occupation Certificate, even if there is a delay in the said offer, the allottees cannot refuse to take the possession.

In light of the above facts and contentions of the matter, Coram held that there was no delay in the offer of possession and complainants since failed to give any valid reason and there existed no valid reason for the complainants to refuse to take possession and terminate the contract, the refusal to take possession is hence not justifiable.

Therefore, Complainants have failed to prove any fact on record to show that the OP had adopted an unfair trade practice or that the agreement was biased or one-sided. [Sudha v. Jaiprakash Associates Ltd., 2021 SCC OnLine NCDRC 166, decided on 29-04-2021]


Advocates before the Commission:

For the Complainant: Nakul Singh Pathania, Advocate

For the Opp.Party: Sukumar Pattjoshi, Sr. Advocate With Sumeet Sharma, Advocate

Case BriefsHigh Courts

Bombay High Court: A.K. Menon, J., addressed a matter wherein an arrangement was executed between the parties for taking care of the elderly mother in light of a conditional gift deed.

The instant application was filed by the plaintiffs praying for urgent relief. Plaintiff 1 is not a resident of India and plaintiff 2 being his mother, was being looked after by the defendant under an arrangement between them.

As a part of the above-stated arrangement, plaintiff 1 contended that defendant executed an undertaking by which the defendant agreed and undertook to look after plaintiff 2 i.e. the elderly mother of plaintiff 1.

A Gift Deed was also executed on the same date in favour of the defendant when the above-stated undertaking was executed by the defendant.

The subject matter of the said Gift Deed was a flat situated in Mumbai in a co-operative housing society. Plaintiffs contended that the gift was conditional upon compliance with the undertaking and hence sought the gift deed needed to be revoked as the defendant had declined to honour the undertaking.

The reason for seeking urgent ad-interim relief is the plaintiffs’ apprehension that the defendant may dispose of the said flat to the detriment of the plaintiffs since the plaintiffs sought to revoke the said gift deed.

Prima facie, the documents stated that the gift deed was indeed executed and so was the undertaking.

Further, there was no satisfactory explanation as to why the execution of the undertaking was denied since it appears that the undertaking was initially shared by the defendant himself in the draft form by e-mail, copy of which was found in the additional compilation of documents filed by the plaintiffs.

Hence, prima facie it appeared that there was a link between the undertaking, obligation therein and the gift deed.

Further, it was submitted that the gift deed purported to gift the flat described therein out of love and affection to the defendant. It was contended on behalf of the defendant by Mr Petkar that even under Section 126 of the Transfer of Property Act, 1882, such a gift deed cannot be revoked and that no case is made out for revocation even assuming that there was an undertaking in place.

In the Court’s opinion, the denial of the execution of the undertaking is suspect and will have to be examined in greater detail. If the defendant had in fact not executed the undertaking, there was no reason for him to have sent those undertaking in draft form and in PDF form to plaintiff 1.

Hence, prima facie case was made out for grant of an ad-interim relief. Bench directed the co-operative housing society housing the suit flat shall make note of this injunction and shall not permit the transfer of the flat till further orders.

Flat in question is to be protected from alienation.[Edward D’Cunha v. Mark Madhu Suvarna, 2020 SCC OnLine Bom 3083, decided on 23-11-2020]


Advocates who appeared in the matter:

Rashmin Khandekar, i/by Taurus Legal, for the Applicants-Original Plaintiffs.

Akshay Petkar, with Aniket Malu, for the Defendant.

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC):  A Division Bench of Dr S.M. Kantikar (Presiding Member) and Dinesh Singh (Member) held that, a homebuyer cannot be made to wait indefinitely for possession.

The instant appeal was preferred by the appellant under Section 19 of the Consumer Protection Act, 1986 against the Order passed by the Maharashtra State Consumer Disputes Redressal Commission wherein OP was directed to handover the possession of the subject flat to the respondent — complainant after receiving the balance consideration amount from respondent — complainant.

Advocates for the appellant — Siddhesh Bhole, Royden Fernandes and Deepam Rangwani.

Advocates for the respondent — Sukruta A. Chimalker and S.B. Prabhavalkar.

State Commission held that there was a deficiency on the part of the OP is not handing over possession and not obtaining the necessary certificates for the subject flat.

Opposite Party was directed to handover possession of the flat within three months after receiving the remaining consideration of Rs. 5.50 lakh as well as to provide Occupancy Certificate and Building Completion Certificate to the Complainant.

Aggrieved with the State Commission’s order, OP filed an appeal before the Commission.

Bench noted that the complainant had paid Rs 11 lakhs by cheque to the OP towards consideration for the subject agreement. OP contended that the subject agreement was cancelled by the complainant.

On perusal of the cancellation letter, it was evident that for more than 2 years, there was no construction work/development at the site of the project. Complainant was also paying interest on the amount paid to the Opposite Party builder firm, therefore, the Complainant requested the Opposite Party to return the entire amount paid.

With regard to the delivery of possession, OP contended that the agreement did not mention the date of delivery of possession of the said flat to the Complainant. However, the buyer cannot be made to wait for an indefinite period.

It was OP’s duty itself to mention the date of delivery of possession in the agreement and failure to do so necessarily requires to be read against the OP. In all contingencies, the complainant could not have been made to wait indefinitely for possession.

OP argued that State Commission grossly erred in disregarding the applicability of the relevant provisions of Specific Relief Act, 1963.

In the above regard, the Court noted that the Act 1986 is for better protection of the interests of consumers, to provide speedy and simple redressal to consumer disputes.

Section 3 specifically provides that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.

In the year 2003, the complainant requested for refund of the entire amount paid by her but OP did not refund the amount paid with or without interest.

Commission opined that the State Commission’s order was reasoned, hence the instant appeal being misconceived and bereft of merit was dismissed.[Adrian Pereira v. Anita Ronald Lewis, 2020 SCC OnLine NCDRC 466, decided on 16-10-2020]

Case BriefsHigh Courts

Jammu and Kashmir High Court: Ali Mohammad Magrey, J. allowed the writ petition and directed the respondents to indemnify the petitioner.

The briefly stated case of the petitioner was that, the respondents invited applications for allotment of flats and the petitioner thereafter submitted a form along with a deposit of Rs 3 lacs in July 2013. The petitioner received a notice in November, 2014 wherein 10 days’ time was given to him to deposit the first instalment which time had already elapsed and it came to the knowledge of the petitioner that the flat had been allotted to him. The petitioner immediately approached the respondents, who provided him with the copy of the letter of intent along with a copy of payment schedule and was told that same was posted to him in December, 2013.

It was submitted that the petitioner had already deposited an initial amount and wasn’t conveyed the letter of intent besides the notice. It was further submitted that the petitioner filed a representation before the respondents, wherein the petitioner prayed for extension of at least three months for making the payment of 1st instalment in the backdrop of the fact that due to the floods in the valley in the year 2014, the petitioner had suffered the huge loss and was not in a position to pay.

It was further submitted that the petitioner after waiting for the response to his representation and also an extension of time keeping in view the previous experience of issuance of notices and late dispatch of the same, approached the respondents but was not given any extension and was told to wait and to his surprise, the petitioner came across another notice in January, 2015 wherein he was asked to deposit the instalment by ending of January, 2015 or in default the petitioner’s letter of intent shall be treated as withdrawn and his initial deposit will be forfeited and flat re-advertised.

The petitioner being aggrieved of the above said notice, challenged the same by virtue of writ petition and this Court disposed of the said writ petition with a direction to the respondents to afford the reasonable time to adhere to the terms of notice in regard to deposit of instalment and in the event such notice not having been served upon him, the same be served after affording reasonable time to the petitioner. The petitioner served the said order on the respondents and filed a detailed representation before the respondents, who chose not to file an appeal against the said order and despite the service on the respondents well within time; no action was taken by the respondents.

The Court on perusal of the facts and circumstances of the case cancelled the impugned notice and letter of intent. Further, the earnest money of Rs 3 lacs deposited by the petitioner was forfeited and the Flat in question re-advertised was declared as being against the order passed by this Court.

The Court further pointed out that it had earlier too directed the respondents to consider the hardship encountered by the petitioner in not making the deposit of instalment on account of the cause projected taking a pragmatic view and bearing in mind that a mere technicality in adherence to notice should not result in defeating his legitimate interests in regard to the acquisition of flat.

Petition was allowed and stood quashed to the extent of forfeiture of Rs 3 lacs and by writ of mandamus. Respondents were directed to pay the amount deposited by the petitioner along with interest of 9% from the date of deposition of the amount to its realization, within a period of one month.[Fida Ahmad v. Srinagar Development Authority, 2020 SCC OnLine J&K 484, decided on 21-09-2020]

Case BriefsHigh Courts

Rajasthan High Court: Mahendar Kumar Goyal, J., dismissed a writ petition which was filed aggrieved by the order of the Rent Tribunal which had dismissed an application filed by the petitioner/non-applicant/tenant under Order 7 Rule 11 CPC.

The respondent-applicant had filed an Original Application under Section 18 of the Rajasthan Rent Control Act, 2001 stating therein that the petitioner was the tenant in his flat under a rent agreement. Alleging default in the payment of rent, his eviction was sought by the respondent. The petitioner-tenant had filed the application under Order 7 Rule 11 CPC which had been dismissed by the Rent Tribunal.

The Counsel for the petitioner, Yogesh Chandra Joshi, contended that the rent agreement does not reveal that the petitioner was tenant in Flat No. 606 but simply read “TWO ROOM SET on 6th FLOOR, OUT OF SOCIETY” in the layout plan of Vaidant Height, Nand Puri-B, Near Mahima Group Apartment, Guru Circle, Pratap Nagar, Sanganer, Jaipur. He further submitted that while dismissing the application, the Rent Tribunal did not appreciate signatures of the first party; second party and witness 2 were obtained later on as the signatures followed mark ‘X’.

The Court while dismissing the writ petition affirmed the order of the Rent Tribunal and explained that Flat No.606 was specifically mentioned in the eviction application under tenancy of the petitioner which, as per the order impugned, was not been disputed even by the petitioner, further the effect of the absence of flat number in the rent agreement was to be examined by the Rent Tribunal, in case any such objection existed in the reply filed by the petitioner and the counsel for petitioner failed to point out any averment or omission in the eviction application which might invite application of the provisions of Order 7 Rule 11 CPC. The Court further stated that the application filed by the petitioner under Order 7 Rule 11 CPC does not reveal any reason for filing it at such belated stage when the case was fixed for the final arguments which indicated malafide intention to delay the disposal of the eviction application. [Anil Joshi v. Beejal Chopra, 2020 SCC OnLine Raj 1256, decided on 24-08-2020]


*Suchita Shukla, Editorial Assistant has put this story together

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Prem Narain, Presiding Member, has directed the developers of “Greenopolis” to refund homebuyers their amount deposited at the interest rate of 9% p.a. and in a few complaints the bench has asked for the possession to be handed over by 30-09-2020 with the occupancy certificate and with a delayed penalty of 6% p.a. on the deposited amount.

Consumer Complaints

Allottees of the project “Greenopolis” situated in Gurgaon alleged deficiency in service on the part of Opposite parties — Three C Shelters (P) Ltd.

Original allottee booked an apartment in OP’s project for a consideration of Rs 87,16, 800/-, apartment was allotted and later the same was endorsed in favour of complainant.

OP’s failed to deliver the possession in 42 months inclusive of 6 months grace period. Till date, the complainant has paid Rs 75,96,776/- to OP’s.

Several complaints have been filed by homebuyers with regard to no delivery and possession of the apartments for which they have paid installments of a very huge amount.

Analysis and Decision

No breach of agreement by complainants | Entitled to relief under Sections 54 and 55 of the Indian Contract Act, 1872

Argument with regard to Sections 54 and 55 of the Indian Contract Act, 1872, OPs relied on the Commission’s decision in DLF Southern Town (P) Ltd. v. Dipu C. Seminal, wherein the complainant had deposited only the booking amount and no installments were paid whereas in the present complaints installment have been paid upto reasonable limit and on no progress in construction, the payment was stopped later.

Force Majeure

Defence of force majeure by OPs cannot be taken as there was no ban on construction and OPs should have put their resources and managerial skills to bring water from outside to complete the construction in time.

Joint Project

Three C Shelters (P) Ltd. pleaded for force majeure conditions for the delay and on the other hand Orris Infrastructure (P) Ltd. pleaded that Three C Shelters was responsible for delay in construction. Both of them had signed on the “Apartment buyer Agreement” and hence Commission stated that both of them were responsible for delay.

Apartment Buyer Agreement

Bench observed that the OP’s clearly have failed to complete the project and give the possession in time to the homebuyers as per the Apartment Buyer Agreement.

Hence allottees have the right to ask for a refund due to the inordinate delay which has been beyond 1 year, the possession was to be given in the year 2016.

No Forfeiture of earnest money

So far as the question of forfeiture of earnest money is concerned, it is seen that the complainants are seeking refunds as the project has been inordinately delayed. Even though the RERA, Haryana has taken a meeting to expedite the project and Three C Shelters (P) Ltd. has agreed to complete the project in phases.

Commission noted that OPs have not paid EDC and IDC to the Government and it seems that the OPs were not serious in timely completing the project. Thus, in these circumstances, there can be no question of forfeiture of earnest money.

Supreme Court in Haryana Urban Development Authority v. Diwan Singh, (2010) 14 SCC 770, observed that subsequent buyers are entitled to receive interest only after the date of endorsement in their favour.

In view of the above, Commission directed Three C Shelters to refund the amount at 9% interest per annum.

In one of the cases, Orris Infrastructure (P) Ltd. is directed to complete the construction work and handover the possession till 30-09-2020 after obtaining an occupancy certificate, and it shall pay interest of 6% p.a. on the deposited amount.

If the possession is not delivered till 30-09-2020, the complainant shall be at liberty to take a refund of the total deposited amount Rs 77,58,581/- along with interest @ 9% p.a. from the date of respective deposits till actual payment. [Sanjay Gupta v. Three C Shelter (P) Ltd., 2020 SCC OnLine NCDRC 178, decided on 20-07-2020]

Case BriefsHigh Courts

“Our country has always been proud of progeny like Shravan Kumar, who to fulfill the wish of his poor, blind and ageing parents, took them on a pilgrimage by carrying them on his shoulder in two baskets put on either side of the bamboo stick, and whilst trying to collect water on his way from a stream, to quench the thirst of his parents, became a target of King Dashrath’s arrow.”

–Bombay High Court

Bombay High Court: A Division Bench of S.J. Kathawalla and N.R. Borkar, JJ., while addressing a matter wherein a 70 year old mother was physically and mentally harassed by one of her daughters,  noted that,

“…it is unfortunate that in the last several years courts are repeatedly witnessing, old parents knocking at its doors, in the twilight years of their lives seeking redressal of their grievances against their children.”

A 70-Year old mother had approached the High Court alleging that she was subjected to mental and physical torture by her daughter (respondent 1).

Court while addressing the said matter stated that, the welfare of the parents / senior citizens is of paramount importance, ascertain the seriousness and correctness of the allegations made, pass appropriate order/s ensuring that no injustice or inconvenience is caused to either party.

Bench in it’s earlier order, when the mother approached the court for relief, had laid down the following order:

Bench assured the petitioner that if she lives in her own flat and face any harassment from respondent 1 or her son, she will be provided all assistance, both by the Court and police authorities.

Installation of CCTV cameras inside the flat has been directed.

Respondent 1 and her son, both have been sternly warned . Senior Inspector of local police station under who jurisdiction the flat come has been directed to give all assistance to the petitioner.

Respondent 1 and her son will not obstruct entry of any of the relatives whom petitioner wants to meet. Also respondent 1 and her son are not allowed to invite or bring any of their guests to the flat without prior permission of petitioner through her advocate.

What is the present situation in the above matter?

Respondent 1 daughter has filed an affidavit stating that the petitioner mother was reacting/over-reacting at the instance of her other sibling namely her sister – Vaishali, who has admittedly temporarily come down with her family from Singapore.

Petitioner refusing the above made an offer to allow respondent 1 and her son to reside in one of her flats at Nalasopara on and from 15th July, 2020 and only on her agreement petitioner would be able to come back to her flat for the remainder of her life and stay in peace.

Court was happy to note that respondent 1 daughter and her son have undertaken to vacate the said flat with a period of 8 weeks.

Keeping the interest of the family and their rights, in mind, Court passed the following order:

  • Undertaking given by the respondent 1 and her son that they will vacate the flat with 8 weeks — is accepted.
  • If the Respondent 1 along with her son, are unable to find premises on leave and license basis within a period of 08 weeks from today, the Petitioner shall allow them to reside in her fat at Nalasopara, until they find a premises of their choice on leave and license basis.
  • Respondent 1 shall pay maintenance charges, electricity, telephone, etc. for the period that she and her son occupy the flat at Nalasopara.
  • Petitioner shall move to her flat once respondent 1 and her son vacate the flat.
  • Since the share certificate issued by the Society admittedly stands in the sole name of the husband of the Petitioner, who passed away intestate on 26th January, 2011, the Petitioner shall not sell, alienate, encumber and part with possession or create third party rights in respect of the said fat during her lifetime, without seeking permission of this Court and without giving notice to all the legal heirs of her husband. However, the Petitioner will be entitled to execute her Will and bequeath her share in the said fat to person/s of her choice.
  • If any of the daughters of the Petitioner and / or any other relatives or any person starts residing in the said fat along with the Petitioner as a Caretaker, such person shall vacate the said fat immediately upon the demise of the Petitioner and shall not make any claim on the said fat, on the ground that he / she / they were residing therein along with the Petitioner.
  • Since Curt has not finally determined any allegations made by either parties, it is made clear that non on the allegations stand established. Petitioner or their family members/ or any other persons hall not publicise any allegations against each other in any manner whatsoever .

Matter was disposed off in the above terms. [Rajani B. Somkuwar v. Sarita Somkuwar, 2020 SCC OnLine Bom 722  , decided on 19-06-2020]


Also Read:

Bom HC | “If children cannot take care of their parents and allow them to live in peace, they atleast ought not to make their life a living hell”; Court sternly warns daughter to not harass mother physically & mentally

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): R.K. Agrawal (President) while deciding the present consumer case held that,

“Wherever the Builder commits a particular date or time frame for completion of the construction and offering possession to the Buyer, they must necessarily honour the commitment made by them.”

In the present matter, Consumer Complaints, under Section 21 read with Section 12(1)(a) of the Consumer Protection Act, 1986  have been filed by the Complainants, the Allottees of Residential Flats/Apartments in a Project, namely, “Mahagun Mezzaria” to be developed and constructed by the Opposite Party, seeking possession of their respective booked Flats or refund of the amount paid with interest and compensation for the losses suffered by them on account of Unfair and Restrictive Trade Practices adopted and the deficient services rendered by the Opposite Party in not handing over the possession of the allotted Flats/Apartments within the stipulated time.

Complainant stated that despite paying the entire sale consideration for the booked flat, the possession of the same, which was to be delivered has not materialized till date, penalty promised in the Allotment Letter for the delay in construction has also not been paid, layout plan of the project has been got amended twice making various changes to the Project including addition of commercial shops open to general public raising various concerns including safety and security, that the Complainants have to pay enhanced Samp duty due to delay in handing over of possession and that the OP has levied the maintenance charges that would be enhanced @15% annually.

Analysis & Decision

Counsel for OP’s contention that Complainants are not ‘Consumers’ and have booked the Flat for earning high speculative gains is not supported by any documentary evidence. Court also noted that Complainants are ‘Consumer’ as defined under Section 2(1) (d) of the Consumer Protection Act, 1986.

Tribunal further stated that the only question for consideration in the present case is, as to whether the Complainants are entitled to any compensation for the delay on the part of the OP in offering possession to them and if so, what should be the quantum of compensation that OP needs to pay to them.

With respect to delay in completion of the construction, the tribunal stated that unless prevented by reasons beyond it control, the OP was under a contractual obligation to complete the construction and handover possession of the apartments within 38 months from the date of completion of raft or on or before 31-12-2012.

The reasons for the delay as stated by the Developer amounted to demonetization and implementation of GST, which ultimately resulted to cause delay on account of the shortage of cash for payment to the labour, shortage of labour and material, no documents were placed on record by the OP. Therefore the said contention cannot be accepted.

OP is ready and willing to hand over possession of the allotted flats with compensation to the Complainants, but some Complainants are not interested in the same due to delay of more than 4 years in delivering the possession change in layout plan and there being no committed date in the near future of completion of the Project. Therefore, they have sought a refund of the amount along with interest and compensation.

Tribunal in view of the stated that, Complainants cannot be made to wait indefinitely for the delivery of the possession when they had already paid almost entire consideration. In such circumstances, it is well within the Complainant’s right to seek for refund of the principal amount with interest and compensation.

In the present case, Tribunal in favour of the Complainants also stated that, Complainants cannot be made to wait indefinitely as the possession of the Unit has not been handed over to them so far and the Opposite Party is enjoying the benefits of their hard-earning money deposited with it.

“If the Builder fails to comply with the contractual obligation and at the same time, is unable to show that the delay in completion of the Flat and offering its possession to the Consumer is on account of circumstances beyond his control, this would constitute deficiency on the part of the Builder/Service Provider in rendering services to the Consumer.”

Hence, Complainants cannot be made to wait for such a long period, they are entitled to refund of the deposited amount along with compensation @12%. [Anil Kumar Jain v. Nexgen Infracon (P) Ltd., 2019 SCC OnLine NCDRC 716, decided on 23-12-2019]