JUSTICE J.M. MALIK

1. Dr. N.Y. Kachawalla, the complainant, is a Doctor in Mumbai. An agreement of allotment of two-bed room, hall, kitchen apartment, with one car parking space, on 23 Floor, admeasuring rd 1695 sq.ft., was entered into between the complainant and Orbit Corporation Ltd., the OP, wherein, the OP issued a letter of allotment dated 21.10.2009, which is placed on record as Annexure- A1. This complaint was filed before this Commission on 07.10.2013. The grouse of the complainant is that uptill the filing of the complaint, the said apartment was not given to him, in spite of repeated requests. The complainant paid a sum of Rs.17,41,701/- vide cheques, each, on 17.08.2010 and

01.12.2010. On 27.07.2011, the OP demanded a sum of Rs.89,698/- which was duly paid. The total amount of Rs.1,16,11,340/- was paid as part payment. On 19.09.2011, the complainant called upon the OP to pay interest in the sum of Rs.15,16,962/- with further interest till the OP actually commenced the construction activities and handed over the possession of the said apartment. This is an indisputable fact that the OP has laid the foundation of the said apartment. In its letter dated 13.10.2011, marked as Annexure- F, the OP agreed to hand over the possession of the apartment till August, 2013. However, there was no construction. Thereafter, correspondence went on between the parties. The complainant, again demanded interest on the said amount, vide letters dated 19.09.2011,

03.11.2011 and 10.12.2012. The OP also refused to refund the amount already paid by the complainant. Consequently, this complaint was filed, with the following prayers :-

a) That the Opposite party be ordered and directed -1- by the Honble National Consumer Disputes Redressal Commission to pay to the complainant a sum of Rs.1,16,11,340/- (Rupees One Crore Sixteen Laksh Eleven Thousand Three Hundred Forty only) paid to Opposite Party on account of part payment of consideration till date with interest thereon at the rate of 18% p.a., from date of payments, till Opposite Party, pay the same to the complainant; b) That the Opposite Party be ordered and directed by the Honble National Consumer Disputes Redressal Commission to pay to the complainant a sum of Rs.1,00,00,000/- (Rupees One Crore only) or such other amount as the Honble Commission may deem fit and proper on account of the delay and damages loss caused to and or suffered by the complainant on account of the avoidance /negligence / delay/ deficiencies of services in continuing construction and or handing over vacant possession of the said flat /car parking allotted to complainant as per Annexure A1 with interest thereon at the rate of 18% p.a., or such other rate from the date of the complaint, till payment and realisation thereof; c) In alternative to prayer (1) and (b) above, and in the event of opposite party failed and neglected to pay the amounts prayed for the Opposite party be ordered and directed by the Honble Commission to execute and register Agreement for Sale under Section 4 of the Maharashtra Ownership Flat Act (Annexure I hereto) for sale of the apartment No. 2301 in Orbit Grand and one car parking space as more particularly described in Annexure A1 hereto within such time as the Honble Commission may deem fit and proper and direct the opposite party to adjust the amounts of interest claimed by complainant and damages as per prayers (a) and (b) above on account of further part payment of the consideration amounts payable by Complainant and further direct the opposite party to put complainant into peaceful and vacant possession of the said flat with car parking space within such time and the Honble Commission may fix; d) That opposite party be ordered and directed by the Honble Commission to execute and register agreement for sale under Section 4 of the Maharashtra Ownership Flat Act for sale of the apartment No.2301 in Orbit Grand and one car parking space as more particularly described in Annexure A hereto with such time as the Honble Commission may deem fit and proper; e) That the opposite party be ordered and directed by the Honble Forum to pay the cost of as incidental to the present complaint

. THE DEFENCE :

2. On 29.09.2006, the OP became the owner of the land, together with the building or structures thereon, now known as Murgiwala Chawl No.1 and 2 (formerly known as Dadabhai Chawl No.1 and

2) along with godown and sheds thereon. The OP agreed to construct free of cost e quivalent area in the new building, the actual area of 1971 sq.ft. carpet area covered the three shops occupied by the then owners. It was agreed that the said three shops would not form part of the Conveyance, however, the OP would be entitled to utilise the entire F.S.I. available on the said property minus the said area of the said three shops which shall remain the ownership of the then owners only and that the assessment of the said three shops shall be done independently. By another Deed of Conveyance, executed on 25.12.2006, the OP acquired the property known as Dadabhai Chawl No.3 standing on the land of Lower Parel Division together with the structures thereon situated at N.M. Joshi Marg, Lower Parel, Mumbai.

3. The OP have amalgamated the First and Second property including the plot on which the said three shops existed and has been carrying out composite redevelopment scheme. The OP was granted NOC by the MHADA under the Maharashtra Housing and Area Development Act, 1976, for redevelopment of the said property, on 10.06.2009. Between the years 2009 and 2010, the OP had already executed Permanent Alternate Accommodation Agreements with more than 95% of the Tenants/ Occupants who have vacated over the possession of their respective premises to the OP for the purpose of redevelopment. It is averred that since the last three years, the tenants are languishing in the transit accommodation and the OP are bearing their transit accommodation charges. The OP do not want to be more burdened with such costs and are interested in completing the project and handing over possession. It was also agreed that the OP shall endeavour to reconstruct the said three shops to be provided to the Vendors therein at the same place and that the area of the said three shops shall be equivalent to the area which the Vendors therein currently were in possession of. The OP was required to demolish the existing structure of the said three shops to utilise the entire FSI of the said property which would be available to the OP only after demolition of the said three shops. The OP further submits that after obtaining the Commencement Certificate, on 08.03.2010, upto 7 Floor, the OP had started construction work at site and completed th foundation work but was not in a position to continue further construction of the building unless the said three shops were vacated and demolished. Ultimately, MBRR Board issued three letters on 19.01.2012 calling upon the occupants of the said three shops to show cause as to why action under Section 95(A) of the MHADA should not be initiated. The occupants of the said three shops filed a suit challenging the said three letters dated 19.01.2012. The application made by Op for impleadment, was refused by the City Civil Court which was taken up before the Honble High Court vide Writ Petition, which was allowed. However, the City Civil Court granted ad-interim reliefs in favour of the occupants of the said three shops, which was subsequently vacated. Appeal filed by the occupants was also dismissed and the appeal filed by the OP was disposed of.

4. However, the OP made a statement before the Honble High Court, that without prejudice to the rights and contentions of the OP, they would not move the authorities and insist on compliance with the order passed under Section 95 (A) of the MHAD Act, for a period of four weeks from the date of the orders both dated 22.11.2012, passed in both the appeals. After expiry of four weeks, the OP, vide letter dated 21.12.2012, asked the authorities to take appropriate proceedings for insistence of compliance of the order passed under Section 95(A) of the MHAD Act, 1976, at the earliest. The police authorities were also requested vide letter dated 13.02.2013 to enable MBRR Board to proceed with eviction proceedings in case the occupants did not vacate their existing shops. The three shops were demolished and the plans for amendment and approval were sent.

5. Due to increase in FSI which had occurred due to change in policy, sometime in the year 2009, whereby the area to be given to tenants as rehabilitation area increased from 225 sq.ft. to 300 sq.ft. The OP submitted amendments to their plans on 15.05.2010 and the said plans were received with the increased FSI from the Municipal Corporation of Great Bombay on 21.05.2011. Due to further changes in the Development Control Regulations which came in January, 2012, the OP was entitled to fungible FSI and accordingly, the plans were amended and submitted for approval on 15.01.2013. The plans were further amended and revised plans were submitted for approval on 07.06.2013. The OP is still awaiting the approval from Municipal Corporation of Greater Mumbai.

6. Again, due to changes in policies, environment clearance was required to be taken by OP for their project in which the flat of the complainant is located. The said application for environment clearance was made on 28.02.2012, which was received only on 30.06.2013. It is contended that due to all these reasons, the construction of the flat could not be carried out. It was mentioned in the letter dated 21.09.2009 that the area proposed to be provided may increase or decrease by 10% and the final consideration shall vary accordingly. It was further stated in the said letter that the parties shall execute an Agreement for Sale, within a period of six months from the date of the letter. It was further mentioned that the possession of the premises for interiors and fit outs shall be provided to the flat purchasers within 36 months from the date of construction. The detailed terms and conditions were to be incorporated in the agreement for sale which, till date, is not yet executed between the parties. However, a draft copy has been shown to the complainant.

7. The delay occurred in the progress of the project, was due to circumstances entirely beyond the control of the OP due to which the possession got delayed. The agreement could not be executed because the complainant has failed to execute the agreement for sale. Final date of possession was to be stated in the agreement for sale which could not be executed as the complainant failed to execute the same. The OP has completed six part slabs and are trying to do everything in their power to ensure expeditious completion of the project. The OP is now awaiting the approval from Municipal Corporation of Greater Mumbai and endorsement of the same on the Commencement Certificate which the OP expects to be received shorty. All the other allegations have been denied. SUBMISSIONS AND FINDINGS:

8. We have heard the counsel for the parties. The learned counsel for the OP vehemently argued that due to the OP could not raise the construction. He explained that the force majeure, work up to foundation has already been raised. Due to eviction of the shopkeepers redevelopment plan or amended plans which have not yet been sanctioned and due to non-receipt of environment clearance, the work could not progress and hence the exact date of possession could not be mentioned. The letter dated 21.10.2009 is crucial. The allotment to the complainant was made through this letter, the relevant portion of which is reproduced here, as under :- Consideration : The total consideration payable by the flat purchaser to the Developer is Rs.3,25,11,750/- (Rupees Three Crores Twenty-Five Lakhs Eleven Thousand Seven Hundred and Fifty only) including the allotment of one car parking space. (Place note :- The saleable area proposed to be provided may increase or decrease by 10% and the final consideration shall vary accordingly). The aforesaid total consideration Rs.3,25,11,750/- (Rupees Three Crores Twenty-Five Lakhs Eleven Thousand Seven Hundred and Fifty only), shall be paid as follows :- Rs.81,27,938/- RupeesEighty one Lakhs Twenty seven Thousand Nine Hundred Thirty-eight only, being part of consideration payable on or before 31 October, 2009. st Rs.17,41,701/- Rupees Seventeen Lakhs Forty-one Thousand Seven Hundred and one only, being part of the consideration payable on start of construction after demolition of existing Rs.17,41,701/- Rupees Seventeen Lakhs Forty-one Thousand Seven Hundred and one only, being part of consideration payable on completion of foundation. Rs.17,41,701/- Rupees Seventeen Lakhs Forty-one Thousand Seven Hundred and one only, being part of consideration payable on completion of plinth. Rs.17,41,701/- Rupees Seventeen Lakhs Forty-one Thousand Seven Hundred and one only, being part of the consideration amount payable on completion of 3 slab. rd Rs.17,41,701/- Rupees Seventeen Lakhs Forty-one Thousand Seven Hundred and one only, being part of the consideration amount payable on completion of 6 slab. th Rs.17,41,701/- Rupees Seventeen Lakhs Forty-one Thousand Seven Hundred and one only, being part of the consideration amount payable on completion of the 10 slab. th Rs.17,41,701/- Rupees Seventeen Lakhs Forty-one Thousand Seven Hundred and one only, being part of the consideration amount payable on completion of the 15 slab. th Rs.17,41,701/- Rupees Seventeen Lakhs Forty-one Thousand Seven Hundred and one only, being part of the consideration amount payable on completion of the 20 slab. th Rs.17,41,701/- Rupees Seventeen Lakhs Forty-one Thousand Seven Hundred and one only, being part of the consideration amount payable on completion of the 25 slab. th Rs.17,41,701/- Rupees Seventeen Lakhs Forty-one Thousand Seven Hundred and one only, being part of the consideration amount payable on completion of the 30 slab. th Rs.17,41,701/- Rupees Seventeen Lakhs Forty-one Thousand Seven Hundred and one only, being part of the consideration amount payable on completion of the RCC Structure. Rs.17,41,701/- Rupees Seventeen Lakhs Forty-one Thousand Seven Hundred and one only, being part of the consideration amount payable 3 months after completion of the terrace slab. Rs.17,41,700/- Rupees Seventeen Lakhs Forty-one Thousand Seven Hundred only, being part of the consideration amount payable 6 months after completion of the terrace slab. Rs.17,41,700/- Rupees Seventeen Lakhs Forty-one Thousand Seven Hundred only, being balance of the consideration payable at the time of possession. The saleable area was mentioned approximately, 1695 sq.ft.

9. The learned counsel for the OP stressed that the payment of the flat has been taken in respect of first three entries, mentioned above. The OP was aware of the fact that there was no construction, therefore, it did not ask for payment of remaining eleven instalments. It further stipulates that :

Time shall be of essence :- Time as to the payment shall be the essence of this allotment. The flat purchasers shall be liable to pay interest @ 18% p.a., on all delayed payments from the due date till the payments are received. Execution of Documents : The parties hereto shall execute an agreement for sale in accordance with the provisions of the Maharashtra Ownership Flats Act, 1963, within a period of six months from the date

. hereof

10. The flat purchasers were also directed to pay other charges before taking possession. It was clearly, specifically and unequivocally stated that the possession of the premises for interiors and fit outs shall be provided to the flat purchasers within 36 months from the date of construction.

11. The attention of this Commission was also invited towards an earlier order of this Commission, dated 16.04.2013, passed by the Bench presided over by Honble Mr. Justice Ajit Bharihoke and . The complainant filed a complaint for possession of Mr. Suresh Chandra, in C.C. No. 68 of 2013 the flat or for refund of the amount, in the above said matter. It was observed by the said Bench :-

The opposite party is under obligation to deliver possession of the finished flat with car parking by 31.08.2013, which date is yet to come. Therefore, in our considered view, the instant complaint is pre-mature and it does not disclose of action. Learned counsel for the complainant has contended that there is cause of action in favour of the complainant because it is practically impossible for the opposite party to complete construction of the multi-storeyed building within a period of slightly more than four months. We do not agree with this contention because it is based upon the presumption that the opposite party would fail in meeting his obligation by 31.08.2013

.

12. The learned counsel for OP vehemently argued that all the things were not under the control of OP and consequently, delay in its part should be condoned. He also submitted that OP should be given further three years time to construct the apartment. He also argued that under the old Scheme, these area was of 225 sq.ft only and under the new redevelopment plan, this area has been increased to 300 sq.ft.

13. We are unable to countenance all these feckless arguments. One must know the significance of a home. It is well said :

Home, the spot of earth, supremely blest A dearer, sweeter spot, than all the rest

. The opposite party is trying to feather its own nest, i.e., to make profit, for itself, at the expense of others. Moreover, the rates of land have increased by leaps and bounds, and there should be no difficulty in returning the money to the complainant.

14. Before allotment of the flats, the OP should have anticipated that these problems, such as eviction of the shopkeepers would crop up in the near future. Before allotment of the flats and accepting the amount from the consumers, it should not have allotted the flats. It is very difficult, though, not impossible to get the tenants evicted from the shops. Secondly, the eviction of the tenants from the said three shops has got no bearing with this complaint. Foundation has already been laid down. Consequently, there was no rub to complete the construction. It is difficult to fathom, why, the consumer should suffer for his deliberate inaction, negligence and passivity. It is clear that OP succeeded in its attempt to feather its own nest, i.e., to make profits for itself, often, at the expense of others. It has played fast and loose with the consumers. The complainant must have spent his hard-earned money. His amount his withheld for the reasons which were not beyond the control of OP.

15. It is also not understood, why, there was redevelopment plan, why and how the OP could change the area of the flats from 225 sq.ft. to 300 sq.ft. As per letter, detailed above, he was entitled to increase 10% of the total area. This is deficiency in service. The Fabian policy, adopted by the OP is useful for itself alone. It is also not understood why the agreement was not executed within six months. This Bench, in the case of Samarth Associates Engineers & Builders & 2 Ors., Vs. Ramesh Ramchandra Lokhande, Revision Petition No.4729 of 2012, dated 10.09.2013, placed ., decided by the reliance on Case No.19 of 2010, Belaire Owners Association Vs. DLF Ltd. & Ors Competition Commission of India. Vide supplementary order dated 03.01.2013, the Competition Commission of India, held, as under :-

7. The following deficiencies are apparent on the face of the record. First of all, it is not understood, why the agreement was not executed at or about the execution of receipt of Rs.25,000/-. In Belaire Owners Association Vs. DLF Ltd. & Ors., Case No.19/2010, vide supplementary order dated 03.01.2013, the Competition Commission of India, held : 1) The terms of the agreement to be entered into with the allottee were never shown to the allottee at the time of booking of the apartment. These terms and conditions of the agreement were prepared and framed by the company unilaterally without consulting the buyer. Once the company had already received considerable amount from the applicants/buyers, this agreement was forced upon the allotteees and the allottee had no option but to sign the agreement, as otherwise the agreement provided for heavy penalties and deduction from the money already deposited by the allottees with the company, which itself was an abuse of dominance. The appropriate procedure would have been that a copy of the agreement which DLF proposed to enter with the allottee should have been made available to the applicants at the time of inviting applications

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16. An appeal was preferred before the Honble Apex Court with the same cause title, bearing Civil , which was dismissed. Appeal Nos. 36667-68 of 2013

17. There is not even an iota of evidence, why this change was going to be effected, whether the consumers had agreed to this proposal, whether it was brought to their notice, whether agreement to this effect was signed or not. There is no evidence on the record which may go to answer these knotty questions. This action of the OP is arbitrary, despotic, unreasonable and unfair. This is a matter of unfair trade practice. Had the OP raised construction in the year 2009 itself, the environmental laws would not have come by that period. It came subsequently and its certificate can be obtained within no time, if ones intentions are bonafide.

18. The OP did not make any headway with this project. The letter dated 13.10.2013, Annexure-F is crucial. Its para 3, runs as follows :-

3. Without prejudice to the aforesaid and with reference to paragraph 1 of your letter under reply what is stated therein is substantially correct except that in the said letter dated 21 October, nowhere it is stated that the commencement of construction started in st November, 2009 as alleged by you. It is highly absurd to mention in a letter of October, 2009, that the construction has started in November, 2009. We would further like to state that it was agreed that the possession of flat for interiors and fit outs shall be provided within 36 months from the date of commencement of construction. It is to your knowledge that the construction commenced on or about August, 2010. Hence, the possession of the . It is further pertinent to note flat interiors and fit outs is to be given only by August, 2013 that the first instalment after the amount paid at the time of booking was to be paid on start of construction after demolition of existing structure. You are aware that the said payment was made by you 20 August, 2010. Hence, the possession of the flat interiors th and fit outs is to be given to your client, only by August, 2013

.

19. Had the OP been bonafide, it would have taken steps in this regard. Its position was like a fish that needed a bicycle. The consumers are exasperated by senseless play. The delay cannot be condoned under false pretence. The learned counsel for OP stated that if the OP is required to pay back the money to each of its consumers/ complainants, it would become a bankrupt.

20. The consumers have nothing to do with it. The problems of the consumers are greater than that. If they cannot get a house, within a period of five years, which have already elapsed, plus, further three years, which is now being promised, the very purpose of owning a house shall stand frustrated.

21. In K.A. Nagamani Vs. Karnataka Housing Board, Civil Appeal Nos. 6730-31 of 2012, decided the Honble Apex Court, held as under :- on 19.09.2012,

But in cases where monies are being simply returned, then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot. He is being deprived of that flat/plot. He has been deprived of the benefit of escalation of the price of that flat/plot. Therefore, the compensation in such case would necessarily have to be higher. For the reasons aforesaid, we allow the appeals and pass the following orders :- i) The respondent is directed to pay the appellant-complainant interest at the rate of 18% per annum on Rs.2,67,750/- from the date of its respective deposit till the date of realization with further direction to refund the amount of Rs.3,937/- to her, as directed by the Consumer Forum. ii) The respondent is directed to pay the appellant complainant further sum of Rs.50,000/- as compensation for deficiency in service on their part. iii) The respondent is also directed to pay the appellant-complainant a sum of Rs.20,000/- towards cost of the litigation incurred by her

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22. Under these circumstances, we allow the complaint. As the OP is unable to give the premises in dispute, therefore, it is directed to return the sum of Rs.1,16,11,340/- (Rupees One Crore Sixteen Lakhs Eleven Thousand Three Hundred and Forty only) to the complainant, with interest @ 18% p.a., as per law laid down by the Honble Apex Court, in K.A. Nagamani Vs. Karnataka Housing Board, i.e. from the date of deposit, till the date Civil Appeal Nos. 6730-31 of 2012, decided on 19.09.2012, of realization, with litigation charges in the sum of Rs.1,00,000/-. The entire amount be paid within a period of 45 days, from the receipt of the order, otherwise, it will carry interest @ 21% p.a., till realization. ......................J J.M. MALIK PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER