NON­REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 6649­50 OF 2018

M/s. Supertech Ltd.           …Appellant

Versus

Rajni Goyal                                    …Respondent

J U D G M E N T  

INDU MALHOTRA, J.

1. The present Civil Appeals have been filed under Section 23 of

the Consumer Protection Act, 19861  to challenge the

Judgment and Order dated 22.03.2018 in Review Application

No. 94 of 2018 and the Judgment and Order dated 1 Section 23. Appeal – Any person, aggrieved by an order made by the National Commission in exercise of its power conferred by sub­clause (i) of clause (a) of section 21, may prefer an appeal against such order to the Supreme Court within a period of thirty days from the date of the order:

Provided that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period.

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07.02.2018 in Consumer Complaint No. 708 of 2017 passed

by the National Consumer Disputes Redressal Commission at

New Delhi.

2. The factual matrix of the present case, briefly stated, is as

under:

2.1. The Appellant – Builder was developing a project

named ‘Capetown’ in Sector 74, Noida. The Respondent –

Purchaser booked a residential flat with the Appellant –

Builder in the said project.

2.2.    On 22.05.2012, the Appellant – Builder vide Allotment

Letter allotted Flat No. 1606 to the Respondent –

Purchaser. As per the Allotment Letter, possession would

be handed over  in October 2013. This period could be

extended due to unforeseen circumstances by a

maximum of 6 months.

  The Agreement also provided for escalation charges if

there  was  any  fluctuation  in the  price  of construction

materials and/or labour costs during the course of

construction, payable by the Respondent – Purchaser.

  The Agreement provided for payment of maintenance

charges by the Respondent – Purchaser for maintenance

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and upkeep of the complex. These maintenance charges

were payable from the date  of issuance of  a ‘Letter  of

Offer of Possession’.

2.3.    The Appellant – Builder was not  able to hand over

possession of the flat in October 2013 as per the

Allotment Letter dated 22.05.2012.

2.4.    The Appellant – Builder issued a Pre­Possession Letter

on 12.10.2015 to the Respondent – Purchaser for

completion of formalities, before possession could be

handed over. The Pre­Possession Letter stated that upon

completion of formalities as specified in the Letter,

possession of the flat would be offered to the Respondent

– Purchaser. The  Respondent – Purchaser  was called

upon to pay Rs. 12,35,656/– towards the balance cost of

the flat,  maintenance  charges, labour  welfare  charges,

water connection charges, escalation costs, etc. The

Respondent – Purchaser was called upon to deposit the

charges on or before 11.11.2015.

2.5.   The Respondent – Purchaser failed to pay the charges

demanded as per the Pre­Possession Letter by the

Appellant – Builder.

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2.6.   That after over 15 months, on 15.03.2017, the

Respondent – Purchaser filed a Consumer Complaint

under  Section 21(a)(i)  of the  Consumer  Protection Act,

19862 before the National Consumer Disputes Redressal

Commission [hereinafter referred to as “the

Commission”].  The Respondent  –  Purchaser  challenged

the Pre­Possession Letter on the ground that on the date

of issuance of the Pre­Possession Letter, the Appellant –

Builder had not obtained the Occupancy Certificate. The

Respondent – Purchaser also challenged the various

charges demanded by the Appellant – Builder in the Pre­

Possession Letter.

2.7.   The Commission  vide  Judgment and  Order dated

07.02.2018, partly allowed the Consumer Complaint of

the Respondent – Purchaser.  

2 Section 21. Jurisdiction of the National Commission – Subject to the other provisions of  this Act, the National Commission shall have jurisdiction—

(a) to entertain—        (i) complaints where the value of the goods or services and compensation, if any,

claimed exceeds rupees            one crore; and       (ii) appeals against the orders of any State Commission; and (b) to call for the records and pass appropriate orders in any consumer dispute  

which is pending before or has been decided by any State Commission where it appears to  the National Commission that such State Commission has exercised a jurisdiction not  vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the  exercise of its jurisdiction illegally or with material irregularity.

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 The Commission held that out of the charges mentioned

in the Pre­Possession Letter dated 12.10.2015, the

Appellant – Builder was entitled to payment of the

following amounts –

i) An amount of Rs. 3,166/– towards interest on

delayed payment.

ii) Water connection charges if paid to the concerned

Authority, on proportionate basis subject to

furnishing proof of such payment, in terms of this

order.

iii) Labour welfare charges subject to furnishing proof

and computation with respect to the said charges in

terms of this order.

iv) Escalation charges + service tax amounting to Rs.

3,88,797.19/–

   However, the Commission held that since there was a

delay in handing over possession of the flat to the

Respondent –  Purchaser, the  Appellant –  Builder  was

liable to pay Interest to the Respondent – Purchaser by

way of  compensation.  The scheduled date for  handing

over possession was 31.10.2013. The Appellant – Builder

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had issued the Pre­Possession Letter on 31.10.2015. As

per the Respondent – Purchaser, the Appellant – Builder

did not have the Occupancy Certificate on that date.  

  The Commission directed the Appellant – Builder to

pay compensation  in  the  form of  Simple  Interest  @8%

p.a. from 01.11.2013 till  the date on which possession

was actually offered to the Respondent – Purchaser.

2.8.   Aggrieved by the Order dated 07.02.2018, the

Appellant – Builder filed a Review Petition. The said

Review Petition was dismissed by the Commission  vide

Order dated 22.03.2018.

2.9.    Aggrieved by the Order passed by the Commission in

the Consumer Complaint as also in the Review Petition,

the Appellant – Builder has preferred the present Civil

Appeals before this Court under Section 23 of the

Consumer Protection Act, 1986.

3. We have heard the Counsel for the parties, and perused the

pleadings of the case.

4. The Appellant – Builder inter alia submitted that –

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  Possession of the flat  was offered to the  Respondent  –

Purchaser in December 2015 after obtaining the Completion

Certificate for the building.

   Even though the Agreement provided for delivery of

possession by 31.10.2013, the delay occurred because of

various legal impediments in timely completion of the project

because of various  Orders passed by the National Green

Tribunal.  The delay  ought to  be computed  from 6 months

after 31.10.2013, i.e. from 01.05.2014 by taking into

consideration, the 6  months grace period provided in the

Agreement.

  Furthermore, the period of Interest should close on April

2016 when the Full Occupancy Certificate was obtained as

per the admission of the Respondent – Purchaser herself in

Para 4(j) of the Consumer Complaint, wherein she has

admitted that the Appellant – Builder had obtained the

Completion Certificate as late as April 2016. The Respondent

– Purchaser could not have any further grievance after April

2016 with respect to delay in handing over possession. The

Respondent – Purchaser ought not to be allowed to reap the

benefits of her own delay in taking possession.

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5. In light of the aforesaid discussion, the period of

compensation of Interest must be computed from 01.05.2014

till 30.04.2016 at the rate awarded by the Commission.  

6. The Order of the Commission is modified only to the extent

mentioned hereinabove.

7. The Appeals are disposed of accordingly.

.......................................J. (ABHAY MANOHAR SAPRE)

.…...............………………J. (INDU MALHOTRA)

New Delhi, October 23, 2018.

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