NCDRC holds the landowner and developer jointly and severally liable for the service's deficiency.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

CONSUMER CASE NO. 3681 OF 2017

PRASHANT TELKAR AND VIJETA KALGHATGI & 51 ORS. ...........Complainant(s)

Versus

ND DEVELOPERS PVT. LTD. & 5 ORS                                          ............Opp.Party(s)

BEFORE: HON'BLE MR. BINOY KUMAR,PRESIDING MEMBER HON'BLE MR. JUSTICE SUDIP AHLUWALIA,MEMBER

Dated : 27 Dec 2022

ORDER

Binoy Kumar, Member

1. The present Joint Consumer Complaint (on behalf of 55 Buyers) is filed under Section 12 (1) (c) read with Section 13 (6) of the Consumer Protection Act 1986 (for short the ‘Act’) read with Order 1 Rule 8 of the Code of Civil Procedure, 1908 by the Complainants/ Buyers against ND Developers Pvt. Ltd. & Others (hereinafter referred to as the Opposite Parties) seeking refund of entire amount collected from them towards consideration of the respective Units along with interest on the ground of delay in construction of the Project.  

2. The facts leading upto the present Complaint are that the Complainants/ Buyers booked a Unit in the Project “ND Laurel” of the Opposite Parties situated at Gunjur Village, Varthur Hobli, Bangalore East Taluk, Karnataka.  The Agreement between the Complainants/ buyers and the Opposite Party No.1 (ND Developers Pvt. Ltd./ Developer) had been entered and the Opposite Party No.1 to undertake the construction of the flats and handover the legal possession of the same to the Complainants.  Other Opposite Parties are the landowners, who had offered the land to the Opposite Party No.1 for development and construction of the flats.  All the Opposite Parties are parties to the Agreement executed with the Complainants and therefore the Opposite Parties, including the Developer and the landowners, are jointly liable for the numerous instances of unfair trade practices, restrictive trade practices and deficiency in services.

3. The Complainants stated that all the Buyers who are part to this Complaint are having common grievance i.e. failure of the Opposite Parties in handing over the peaceful legal possession of the flats within the time stipulated as per the Agreement executed with the Buyers and all of them want refund of the amount deposited with the Opposite Parties. All the Buyers have the ‘same interest’ in terms of the Judgment passed by the Hon’ble Supreme Court in T.N. Housing Board v. T.N. Ganapathy, (1990) 1 SCC 608.

4. As per Clause 9 of the Agreement to Sell dated 31.03.2011, the legal possession of the flats along with all promised facilities and amenities were supposed to be handed over by December, 2012 with an additional grace period of 4 months i.e. by March, 2013.  The Opposite Parties failed to handover the legal possession of the flats and even those Complainants to whom incomplete possession of the flats have been offered. The Opposite Parties have failed to obtain the Occupancy Certificate despite already having collected 95% of the fund from the Buyers.

21. We have gone through the Agreement of one of the Complainants/ Buyers, Mr. Dhiroj Kumar Behera and Mrs.Sabita Sahu, who has accepted possession in 2016.  We notice that as per Clause 9 of the Agreement, the possession of the flat was to be given by December, 2012, with an additional grace period of 4 months.  Thus, the possession was to be given on or before April, 2013.  These Buyers have taken possession on 31/01/2016.  However, even after lapse of more than 6 years from the date of paper possession by these buyers, the Opposite Parties/ Builder has not obtained the Occupancy Certificate till date.  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. in Civil Appeal 4000 of 2019, decided on 11th of January, 2022, wherein, it was held as under:-    “In the present case, the respondent was responsible for transferring the title to the flats to the society along with the occupancy certificate. The failure of the respondent to obtain the occupation certificate is a deficiency in service for which the respondent is liable. Thus, the members of the appellant society are well within their rights as ‘consumers’ to pray for compensation as a recompense for the consequent liability (such as payment of higher taxes and water charges by the owners) arising from the lack of an occupancy certificate”.

22. Though the Complaint has been filed under Section 12 (1) (c) of the Act and the prayer at the time of filing the Complaint in the year 2017 has been for refund on account of delay in giving possession and receipt of Occupancy Certificate, from the record, it is seen that some of the Complainants have taken paper possession in 2016 itself.  Therefore, this Complaint will be limited to the Complainants only and alternate relief will need to be given accordingly. 

23. In view of the discussion above, we partly allow the Complaint with directions as under:- Part-1 Where the Complainants/ Buyers are seeking Refund and have not taken possession: a. 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. b. Any delay beyond two months, will attract an interest rate of 12% per annum for the same period.   Part-2 Where the Complainants/ Buyers have taken paper possession:- a. 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. b. Any delay beyond two months, will attract an interest rate of 12% per annum for the same period.    

24. Pending applications, if any, stand disposed of.

...................... BINOY KUMAR PRESIDING MEMBER ......................J SUDIP AHLUWALIA MEMBER