M/S. DESAI HOMES vs AIJI JAMES & ANR.

The complainants / respondents booked a three-bed room residential apartment along with a car parking, in a project which the opposite party was to develop at Vazhakkala in Ernakulam. The parties entered into an agreement dated 19.12.2006, incorporating their respective obligations. The consideration for the sale of the flat was agreed at Rs.21,90,997/-. As per the terms of the agreement between the parties, the construction was to be completed the end of 2009. Since the possession of the flat was not offered to them even after expiry of the time period stipulated in the agreement, the complainants approached the concerned District by way of a complaint, seeking possession of the said flat, along with interest @ 24% per annum.

The complaint was resisted by the opposite party which admitted the agreement between the parties and also admitted that the possession was agreed to be delivered by December, 2009. It was claimed that the construction could not be completed on account of the natural calamities such as heavy rains, floods etc. It was also alleged that the complainants had not made payment in time and had also not paid the registration charges and stamp duty, for getting the flat registered in their name. It was also claimed that the Panchayat within whose jurisdiction the construction was going on, demanded huge permit fee which the opposite party challenged later before the High Court and then before the Hon''ble Supreme Court. It was also stated in the reply that the construction of the flat was now complete.

The District Forum, vide its order dated 21.12.2013, directed the opposite parties to hand over possession of the apartment to the complainants and also pay interest @ 12% per annum on the amount deposited by the complainants, with effect from 31.12.2009, till the date of delivery of possession.

Being aggrieved from the order passed by the District Forum, the petitioner approached the concerned State Commission by way of an appeal. The said appeal also having been dismissed vide impugned order dated 17.2.2016, the petitioner is before this Commission by way of this revision petition.

As noted earlier, the opposite party had agreed to complete the construction and deliver possession to the complainants by December, 2009. The said obligation finds incorporation in Clause 6 of the Agreement dated 19.12.2006 and includes the grace period of three months. It is also an admitted position that the opposite party did not complete the construction of the apartment by the end of 2009. A perusal of the Occupancy Certificate issued by Thrikkakara Municipality shows that the said certificate has been issued on 10.4.2012. The petitioner therefore, was not even in a position to offer position of the flats to the complainants before 10.4.2012. Thus, the petitioner defaulted on its contractual obligation by not offering possession to the complainants by 31.12.2009.

The challenge to the charges demanded by Panchayat before the High Court and later before the Hon''ble Supreme Court, would not justify the delay in offering possession to the complainants. In the absence of reasons beyond the control of the petitioner, the delay in offering possession of the flats to the complainants cannot be justified. Therefore, the petitioner must pay adequate compensation to the complainants for the said delay. Considering the cost of finance at the relevant time, award of and all-inclusive compensation @ 12% per annum, in my opinion, cannot be said to be perverse so as to justify interference by this Commission in exercise of its revisional jurisdiction.

It is contended by the learned counsel for the petitioner that the complainants did not pay the registration charges and thereby defaulted in fulfilment of their contractual obligation. I however, find no merit in the contention. The registration charges as per the email dated 30.10.2009 sent by the petitioner were payable at the time of registration. Therefore, the complainants were not required to make advance payment of the registration charges. A perusal of the aforesaid email dated 30.10.2009 shows that the sale consideration of the flat was Rs.21,21,113/-, inclusive of car parking and the whole of that amount had been duly paid by the complainants. Having received that amount, the petitioner ought to have offered possession of the flat to the complainants as soon as the occupancy certificate was received by it. That having not been done, the petitioner must pay compensation till the date possession is actually delivered to the complainants.

It is contended by the learned counsel for the complainants that in their reply filed before the District Forum, they had stated that they were ready to hand over possession to the complainants, subject to payment of registration charges. Admittedly, no letter offering possession was sent to the complainants even during pendency of the consumer complaint. Having already received the occupancy certificate, the petitioner was required to atleast send a letter offering possession of the flat to the complainants. That having not been done, it cannot escape its liability to pay appropriate compensation to the complainants for the delay in delivering possession to them. In any case, the petitioner could not have insisted upon payment of the registration charges before offering possession of the flat to the complainants. The said charges could have been demanded only at the time of registration of the flat in favour of the complainants. As far as the possession of the offer is concerned, that ought to have been offered without insisting upon advance payment of the registration charges.

For the reasons stated hereinabove, I find no good reason to interfere with the order passed by the fora below, in exercise of the revisional jurisdiction of this Commission. The revision petition being devoid of any merit is dismissed, with no order as to costs.