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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos.  6784-6785 OF 2018

CCI Projects (P) Ltd.                          ……Appellant

VERSUS

Vrajendra Jogjivandas Thakkar                     ..…. Respondent

WITH

CIVIL APPEAL Nos. 6786-6787 OF 2018 (CCI Projects (P) Ltd.  vs.  Vrajendra Jogjivandas Thakkar)

JUDGMENT

Uday Umesh Lalit, J.

1. These appeals under Section 23 of the Consumer Protection Act, 1986

are  directed  against  the  common  order  dated  23.01.2018  passed  by  the

National  Consumer  Disputes  Redressal Commission,  New  Delhi

(“Commission” for short) in Consumer Case Nos.975 and 976 of 2016.

2. In Consumer Case No.976 of 2016, Vrajendra J. Thakkar, HUF had

booked a residential flat with the appellant in a project named “White Spring

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Building”,  which  the  appellant  was  to  construct  at  Village  Magathane

Dattapada  Road,  Borivali  (East),  Mumbai,  for  a  consideration  of

Rs.90,38,850/- and flat No.6A in the building was allotted to said Vrajendra J.

Thakkar, HUF.  The parties entered into an agreement dated 30.10.2012 and

in terms of Clause 17 of said Agreement, the possession was to be delivered

by August, 2014.  However, in terms of the Agreement, the date of delivery of

possession would stand automatically  extended in the event  of  any of  the

contingencies specified in the said clause which was to the following effect:

“Possession of the said Premises in the said Building shall be given by The Promotor to the Purchaser on or before August, 2014 on a “best effort” basis.  Provided that in the even of occurrence of any of the following events,  the  aforesaid  date  of  possession  shall automatically stand extended by a period by which the possession is delayed on account of such event(s) –

(a)   Non-availability of steel,  cement,  other  building of construction materials, water or electricity supply;

(b)   War, civil commotion, strike, lockout, riots,  acts of terrorism,  epidemics,  earthquake,  flood,  other  act  of God,  any  prohibitory  order  of  any  court,  tribunal  or authority  against  the  development  of  the  said Properties:

(c)  Any notice,  order,  rule,  notification,  circular  of  the Government  and/or  other  public  or  competent authority,  court,  tribunal  or  Quasi-judicial  body  or authority;

(d)   Delay  in  getting  NOC,  permissions  licenses, approvals,  consents,  connections,  plans,  occupancy,

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certificate, completion certificate and permissions from MCGM and other authorities/bodies.

(e)   Change in any law, rules, regulations, bye-laws of any Government, authorities,  public/local bodies affecting the development of the said Properties.

(f)   Any  notice/direction  notification,  order  from  the forest  department,  Ministry  of  environmental department, pollution control department, MCGM, any Government  Department  or  public  body/local Authority, in respect to the said Properties;

(g)   Delay or default in payment of the balance purchase price and/or other amounts payable hereunder by the Purchaser  to  the  Promoter  (without  prejudice  to  the right of  the Promoter  to terminate this Agreement in terms of clause 12 above.”

3. Said Vrajendra Thakkar, HUF thereafter transferred the allotment in

favour of mother of the present respondent namely Kumudben Jagjivandas

Thakkar.  Said Kumudben Thakkar thereafter gifted the very same Apartment

to the present respondent.

4. In Consumer Case No.976 of 2016, Smt. Hemali Vrajendra Thakkar

had booked a residential flat with the appellant in the same project and Flat

No.6B was allotted to her for the same consideration of Rs.90,38,850/-.  She

also entered into similar agreement dated 30.10.2012 having identical clauses

including the aforesaid Clause No.17 to deliver  the possession by August,

2014.  Later,  the aforesaid allotment was transferred by Hemali  Vrajendra

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Thakkar in favour of her mother-in-law namely Kumudben Thakkar who in

turn gifted the same to the respondent herein.  The gift deed dated 19.08.2015

contained one of the recitals as under:

“And Whereas, although the Donee has other siblings too but right  from beginning the Donor and her late husband  had  been  staying  with  the  Donee  and  his family at the aforementioned address and it is only the Donee who had been taking care  of  each and every thing of the Donor and her husband from the smallest to the biggest of their requirements. … … …”

5. On or about 02.06.2016, the aforesaid Consumer Case Nos.975 and

976  of  2016  were  filed  contending  inter  alia that  though  sum  of

Rs.85,86,911/-  had  been  deposited  in  respect  of  each  of  the  flats,  no

possession was delivered by the appellant.  In the circumstances following

reliefs were prayed for:

“a.  OP be directed to handover the legal possession of flat to complainant within one month AND

b.  OP be directed to pay to Complainant 18% interest per annum on Rs.85,86,911/- from September 2014 on the consideration amount already paid to  OP till  OP handover the possession of the flat to Complainant.  Or

c. if granting prayer a) & b) is legally not possible then in alternative OP be directed to hand over any other newly constructed flat to complainant consisting same area, at the same rate in same locality in tower with same facility. OR

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d.   OP  be  directed  to  refund  the  Complainant Rs.2,00,00,000/-  (Rupees  Two  Crore)  the  current market value of the said flat. AND

e.  AND OP be directed to pay the complainant 18% interest per annum on Rs.85,86,911/- from September, 2014 on the consideration amount already paid to OP till OP refund complainant Rs.2,00,00,000/- the current market value of the said flat. AND

f.  OP be directed to pay complainant Rs.5,00,000/- as compensation  for  causing  mental  stress,  harassment and agony. AND

g.  OP be directed to pay to Complainant Rs.1,00,000/- as litigation cost.

h.  Any other relief  as Hon’ble Commission deem fit and proper.”

6. The  appellant  resisted  the  complaints  and  submitted  that  the

construction  activity  had  begun  after  obtaining  requisite  permissions.

However,  New Development  Control  Rules  stood  notified  in  2012  which

obliged  the  builder/developer  to  prefer  fresh  application  after  seeking

mandatory permission from the Fire Department. An application in that behalf

was made on 21.12.2012 after complying with the mandatory provisions but

the amended No Objection Certificate came to be granted only on 07.05.2013.

Additionally, between August, 2013 till September, 2015 i.e. for more than 24

months there was restriction on sand mining activity as a result of which, one

of the basic raw material for construction had become scarce in the market.  It

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was further stated that the complainants themselves were in default and as

such demand for  payment  of  Rs.1,04,207/-  in  respect  of  each of  the  flats

towards  interest  on  outstanding  amounts  was  raised  and appropriate  debit

notes were issued by the appellant.

7.  During  the  pendency  of  the  matters  before  the  Commission,  the

possession of the aforesaid flats 6A and 6B was offered by the appellant vide

letter  dated  16.11.2016.   On  10.07.2017  the  Commission  directed  the

complainants  to  pay  admitted  sums  to  the  appellant  and  to  deposit  the

disputed sums with the Commission, whereafter the possession of the flats

was taken on 04.08.2017.  The matters before the Commission thus stood

confined to the issue whether the complainants in both the cases were entitled

to any compensation in respect of delayed payment or whether the appellant

was entitled to have the period extended in terms of aforesaid clause No.17.

8. The Commission rejected the submission in respect of amended NOC

granted  on  07.05.2013.   It  further  rejected  the  submission  regarding  non-

availability of sand by observing that no document had been placed on record

to substantiate such claim.  The Commission observed that except the sum of

Rs.104,207/-  which  the  appellant  sought  to  recover  towards  interest  for

delayed payment, rest of the sums were not disputed by the complainants and

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stood  paid  to  the  appellant.   After  considering  the  rival  claims  the

Commission disposed of the complaints with following directions:

“1.  The balance, if any, out of the amount deposited by  the  complainant  with  this  Commission  before taking  possession  of  the  flat  and  proportionate interest  which  may  have  accrued  on  that  amount deducting (i) the interest amount of Rs.10427/- (in both the complaints) and (ii) an amount equivalent to compensation payable to the complainant in terms of  direction  (3)  below,  shall  be  released  to  the opposite party.

2.   The  amount  of  Rs.104207/-  shall  (in  both  the cases)  be  released  to  the  complainant  along  with proportionate  interest  which may have  accrued on that amount.

3.  The opposite party shall pay compensation in the form of  simple  interest  @ 8% per  annum on  the amount  which  had  been  paid  by  that  date,  to  the complainant, w.e.f. 01.09.2014 till the date on which the possession was actually delivered to him.  The compensation  to  the  extent  available  shall  be adjusted  out  of  the  amount  payable  to  the complainant in terms of direction (1) above.

4.  The opposite party shall also pay Rs.25,000/- as the  cost  of  litigation  in  each  complainant  to  the complainant.

5.  The payment by the OP in terms of the order shall be made within three months from today.”

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9. In these  appeals  challenging the correctness  of  the  decision of  the

Commission,  we  heard  Mr.  Sanjiv  Sen,  learned  Senior  Advocate  and  Dr.

Vinod Kumar Tewari, learned Advocate for the parties.

10. It was submitted by Mr. Sanjiv Sen, learned Senior Advocate:

(a)  The complaints were not maintainable in as much as the original

allottees had transferred their interest.  Reliance was placed on the

decision of this Court in Haryana Urban Development Authority

v. Raje Ram1.

(b)  The time lost between 21.12.2012 till 07.05.2013 on account of

mandatory requirement for  re-submission of  plans,  the appellant

was entitled to have that period extended.

(c)  The National Green Tribunal had banned sand mining activities

across the country on 05.08.2013 which came to be relaxed only

when new policy was formulated by Union of India in September,

2015.  It  was submitted that the availability of sand during this

period had come down to 20% of what it was before.  

It was therefore submitted that the appellant was not at fault.  In any

case the possession was offered on 16.11.2016 and thus it was only a short

1 (2008) 17 SCC 407

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period of more than 2 years between August, 2014 and 16.11.2016 which was

the  period  in  question.   In  his  submission,  the  period  stood  completely

explained and as such the Commission was not justified in imposing liability

on the appellant.   

11. The learned Advocate for the respondent on the other hand submitted

that the transfers effected by the parties were within the family.  He submitted

that the appellant  was not entitled to any extension of  period.  He further

submitted that the order passed by the National Green Tribunal had banned

illegal sand mining activity and not sand mining activity itself.  The sand was

thus available in market.

12. We  have  gone  through  the  record  and  considered  the  rival

submissions.  The decision of this Court in the case of Haryana Development

Authority (supra)  turned  on  individual  facts  of  the  case  where  the  very

entitlement of the subsequent allottees to claim damages or compensation for

delayed delivery of possession was found to be unsustainable. Said decision

of this Court related to cases where the original allottees had transferred the

allotment in favour of total strangers with the permission of the authority and

as found by this Court, the subsequent allottees were aware that there was

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delay in delivering the allotted plots on account of time taken in forming the

layout or on account of encroachment and yet had purchased the interest of

the original allottees. In the present case the transfers were effected within the

family where the members had been living together.  The decision of  this

Court in Haryana Urban Development Authority (supra) cannot be stretched

to  say  that  in  every  case  where  there  is  a  transfer,  the  complaint  by  the

subsequent transferee would not be maintainable at all.   

13. At the same time, the appellant is justified in saying that as a result of

mandatory  requirements  to  resubmit  the  plans  and  get  the  fresh  NOC  in

respect  of  fire  safety  permission,  the  period  between  21.12.2012  to

07.05.2013 stood  completely  explained.   Thus,  out  of  the  period between

August, 2014 till 16.11.2016, the appellant would be entitled to have a period

of 6 months of extension.  That still leaves us with a period of a year and 8

months.  The Commission has awarded 8% interest  on the deposited sum.

The deposited sum in either case being Rs.85.86 lakhs, going by the direction

issued by the Commission, the interest element in respect of the period of one

year and 8 months would be in the region of Rs.11.4 lakhs.  We now consider

the second part of the submission.  It is true that there was no complete ban on

sand mining.  But as a result of reduced availability of sand in the market, the

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demand and supply ratio must have been upset. The appellant would therefore

be entitled to some benefit on that count.  

14. Considering the entirety of the matter, in our view, instead of direction

No.3  issued  by  the  Commission,  a  lumpsum  payment  of  Rs.5  lakhs  in

substitution of said direction, would meet the ends of justice. We, therefore,

modify the directions issued by the Commission.  Retaining directions 1, 2 &

4, the direction No.3 is substituted and in its place the appellant would be

required to pay a lumpsum compensation of Rs.5 lakhs to the respondent in

respect of each case.  We direct that all the sums covered by the directions

shall be made over within 2 months from today failing which the respondent

complainant shall be entitled to 8% interest on the amounts in question.

15. With these directions civil appeals stand disposed of. No costs.

......………..……..……J.       (Uday Umesh Lalit)

..……..…..……………J.            (R. Subhash Reddy)

New Delhi, November 27, 2018