Civil Appeal Nos.3207-3208 of 2019 Marvel Omega Builders Pvt. Ltd. and Anr.  Vs.  Shrihari Gokhale and Anr.

1

Reportable  IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 3207-3208 OF 2019

MARVEL OMEGA BUILDERS  …Appellants PVT. LTD. AND ANR.

Versus

SHRIHARI GOKHALE AND ANR.         …Respondents

J U D G M E N T

Uday Umesh Lalit, J.

1. These Appeals under Section 23 of the Consumer Protection

Act, 1986 are directed against (i) the judgment and final order dated

31.05.2018 passed in Consumer Case No.2010 of 2016 and (ii) the

order dated 05.09.2018 passed in Miscellaneous Application No.578

of 2018 by the Commission1.

2. The Respondents had booked a residential villa viz: Emerald-

07 in a project named ‘Marvel Selva Ridge Estate’ to be developed by

the  Appellants.   The  total  consideration  for  the  villa  with  three

1 National Consumer Disputes Redressal Commission, New Delhi

Civil Appeal Nos.3207-3208 of 2019 Marvel Omega Builders Pvt. Ltd. and Anr.  Vs.  Shrihari Gokhale and Anr.

2

covered  car  parking  spaces  and  open  terrace  was  to  be

Rs.8,31,04,425/-.  An agreement was entered into between the parties

on 22.03.2013 incorporating mutual obligations and paras 5(a) and (b)

thereof were as under:-

“5.   The Promoter declares that:

a) The said Unit shall be constructed in accordance  with  the  plans  and specifications  approved  and sanctioned  by  the  Municipal Corporation of Pune.

b) Possession of the said Unit agreed to be  purchased  by  the  Purchaser/s shall  be  handed  over  to  the Purchaser/s  by  the  Promoter  on  or before 31.12.2014 provided that the Purchaser/s  shall  have  made payment of the instalments towards the purchase price of the said Unit and  other  charges/  deposit/s  as mentioned  in  Clauses  20  to  23 hereinbelow as agreed upon without delay  at  the  times  stipulated  for payment therefor.”

3. It is a matter of record that during the period July, 2012 to

November, 2013 the Respondents had deposited Rs.8.14 crores with

the  Appellants.  Though  the  Appellants  had  agreed  to  deliver

possession on or before 31.12.2014, neither the villa was complete

Civil Appeal Nos.3207-3208 of 2019 Marvel Omega Builders Pvt. Ltd. and Anr.  Vs.  Shrihari Gokhale and Anr.

3

by the due date nor was any refund made by the Appellants.  It was

the  case  of  the  Appellants  that  sometime  in  April,  2014  the

Respondents had suggested extra work amounting to Rs.2,67,000/-

and  that  Stop  Work  Notices  were  issued  by  the  Pune  Municipal

Corporation on 23.07.2014 and 15.11.2014.   

4. Since  the  possession  of  the  villa  was  not  delivered,  the

Respondents  filed  Complaint  Case  No.2010  of  2016  before  the

Commission praying inter alia for the following reliefs:-

“a)  Grant  a  sum  of  Rs.13,24,07,052/- (towards principal amount of Rs.8.14 crores paid  towards  purchase  of  villa  along  with compensation  in  the  form  of  interest  of Rs.5.1 crores) at the rate of 18% per annum calculated  upto  31st October,  2016,  along with  pendente lite and future interest at the same  rate  or  such  higher  rate  of  interest which this Hon’ble Commission may deem fit in the interest of justice, from the date of making  payments  till  the  date  of  actual realisation of the payment.

b)  Grant  cost  of  Litigation  to  the complainants.”

5. The  matter  was  contested  by  the  Appellants.   The

Commission  observed  that  the  additional  work  requested  by  the

Civil Appeal Nos.3207-3208 of 2019 Marvel Omega Builders Pvt. Ltd. and Anr.  Vs.  Shrihari Gokhale and Anr.

4

Respondents was of such nature that at best three months additional

period  could  be  granted  for  executing  such  extra  work.   It  was

observed that even till the filing of the Complaint, the possession of

the villa was not offered to the Respondents and that if there were

Stop Work Notices issued by the Pune Municipal Corporation, the

Respondents could not in any way be held responsible for the same.

While allowing the Complaint by its judgment and final order dated

31.05.2018, the Commission directed:-

“  (i)  The  opposite  party  shall  refund  the entire principal amount of Rs.8.14 crores to the  complainants,  along with  compensation in  the  form of  simple  interest  @ 10% per annum from the date of each payment till the date of refund.

(ii)  The opposite  party  shall  pay a  sum of Rs.25,000/-  as  cost  of  litigation  to  the complainants.”

6. The  Appellants  thereafter  filed  Miscellaneous  Application

No.578  of  2018  seeking  extension  of  time  to  comply  with  the

aforementioned judgment and order passed by the Commission. Said

Miscellaneous Application was rejected by the Commission vide its

order dated 05.09.2018.  

Civil Appeal Nos.3207-3208 of 2019 Marvel Omega Builders Pvt. Ltd. and Anr.  Vs.  Shrihari Gokhale and Anr.

5

7. The aforesaid  judgment  and orders  of  the  Commission are

presently  under  challenge  in  these  appeals,  which  were  preferred

with 93 days delay.  When the matters were taken up on 03.12.2018,

the learned counsel appearing for the Appellants submitted that the

villa was ready in all respects and the Completion Certificate would

be obtained within 21 days.   

8. In their affidavit in reply, with the help of photographs and

other material, it was asserted by the Respondents that the villa was

still  incomplete.   It  was  stated  that  on  28.05.2014  the  Revised

Construction  Schedule  was  sent  by  the  Appellants  through e-mail

which had promised delivery of  possession by October,  2014 and

even  after  five  years  from  said  commitment  the  villa  was  still

incomplete.   

9. In  this  factual  background,  the  basic  issues  that  arise  are

whether the view taken by the Commission was correct and whether

it requires any interference by this Court?

Civil Appeal Nos.3207-3208 of 2019 Marvel Omega Builders Pvt. Ltd. and Anr.  Vs.  Shrihari Gokhale and Anr.

6

10. The facts on record clearly indicate that as against the total

consideration of Rs.8.31 crores, the Respondents had paid Rs.8.14

crores by November, 2013.  Though the Appellants had undertaken to

complete  the  villa  by  31.12.2014,  they  failed  to  discharge  the

obligation.   As  late  as  on  28.05.2014,  the  Revised  Construction

Schedule had shown the date of delivery of possession to be October,

2014.  There was, thus, total failure on part of the Appellants and

they were deficient in rendering service in terms of the obligations

that they had undertaken.   

Even assuming that the villa is now ready for occupation (as

asserted by the Appellants), the delay of almost five years is a crucial

factor and the bargain cannot now be imposed upon the Respondents.

The Respondents were, therefore, justified in seeking refund of the

amounts  that  they  had  deposited  with  reasonable  interest  on  said

deposited amount.  The findings rendered by the Commission cannot

therefore be said to be incorrect or unreasonable on any count.      

11. While  parting,  we  must  direct  that  the  residential  villa

admeasuring 648.46 square  metres  bearing No.  Emerald-07 in the

Civil Appeal Nos.3207-3208 of 2019 Marvel Omega Builders Pvt. Ltd. and Anr.  Vs.  Shrihari Gokhale and Anr.

7

complex known as ‘Marvel Selva Ridge Estate’ namely the villa in

question shall not be sold nor any third party rights can be created by

the Appellants in respect of said villa till the decree in favour of the

Respondents  is  completely  satisfied  and  so  long  as  the  decree

remains  to  be  satisfied,  said  villa  shall  be  under  attachment  and

would be subject to such orders as may be required to be passed in

connection with the execution of the order dated 31.05.2018 passed

by the Commission in Consumer Case No.2010 of 2016.   

12. With the aforesaid observations the appeals stand dismissed.

No order as to costs.

……………………..J. [Uday Umesh Lalit]

……………………..J. [Vineet Saran]

New Delhi; July 30, 2019.