CCI PROJECTS (P) LTD.versusVRAJENDRA JOGJIVANDAS THAKKAR

                        [2018] 14 S.C.R. 213                            213


                     CCI PROJECTS (P) LTD.                              A
                                 v.
            VRAJENDRA JOGJIVANDAS THAKKAR
               (Civil Appeal Nos. 6784-6785 of 2018)
                       NOVEMBER 27, 2018                                B
  [UDAY UMESH LALIT AND R. SUBHASH REDDY, JJ.]
       Consumer Protection Act, 1986 – s.23 – Two consumers
booked one residential flat each in a building project, which
appellant was to construct – Separate agreements in the year 2012
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were entered into, by both the consumers with appellant – Possession
of flats was to be delivered by August 2014 – Though sum of
Rs.85,86,911/- had been deposited in respect of each flat, no
possession was delivered by the appellant by August 2014 – The
two consumers filed separate complaints against the appellant –
During the pendency of the matters, the possession of flats was         D
offered by the appellant vide letter dated 16.11.2016 and which
was subsequently taken by the complainants – Commission, inter-
alia, directed appellant to pay compensation in the form of simple
interest @ 8% p.a. on the amount paid by the consumers/
complainants, w.e.f. 01.09.2014 till the date on which the possession
                                                                        E
was actually delivered to complainant – Appellant contended that
the time lost between 21.12.2012 till 07.05.2013 was on account of
mandatory requirement for re-submission of plans, therefore, the
appellant was entitled to have that period extended – On appeal,
held: The period between 21.12.2012 to 07.05.2013 was completely
explained by the appellant, as it was mandatorily required to re-       F
submit the plans and get fresh NOC in respect of fire safety
permission – Thus, out of the period between August, 2014 till
16.11.2016, the appellant was entitled to have a period of 6 months
of extension as per the agreements – Deposited sum in either case
was Rs.85,86,911/- – Interest @ 8% p.a. awarded on the deposited
                                                                        G
amount by the Commission for the remaining period of one year
and 8 months was in region of Rs. 11.4 lakhs – Considering the
entirety of the matter, instead thereof, lumpsum compensation of
Rs.5 lakhs to be paid to the complainants in respect of each case.

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                                213
214               SUPREME COURT REPORTS                   [2018] 14 S.C.R.


A           Disposing of the appeals, the Court
             HELD: 1. The appellant is justified in saying that as a result
      of mandatory requirements to re-submit 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
B     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
C     respect of the period of one year and 8 months would be in the
      region of Rs.11.4 lakhs. Further, considering 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 demand and supply ratio must have been upset. The
D     appellant would therefore be entitled to some benefit on that
      count. [Para 13][220-E-G]
           2. Considering the entirety of the matter, a lumpsum
      compensation of Rs.5 lakhs to be paid to the respondent in
      respect of each case. Therefore, the directions issued by the
E     Commission are modified. [Para 14][220-H; 221-B]
            CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 6784-
      6785 of 2018.
             From the Judgment and Order dated 15.03.2018 and 23.01.2018
      of the National Consumer Disputes Redressal Commission, New Delhi
F     in Review Application No. 90 of 2018 and Consumer Complaint No. 975
      of 2016 respectively.
                                      With
            Civil Appeal Nos. 6786-6787 of 2018.
G          Sanjiv Sen, Sr. Adv., Debmalya Banerjee, A. S. Aman,
      Manish Sharma, Arvind Kapoor, Ms. Iqra Khalid, Mrs. Manik
      Karanjawala, M/S. Karanjawala & Co., Advs. for the Appellant.
            Dilip Singh, Dr. Vinod Kumar Tewari Advs. for the Respondent.

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   CCI PROJECTS (P) LTD. v. VRAJENDRA JOGJIVANDAS                             215
                      THAKKAR

      The Judgment of the Court was delivered by                              A
      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.            B

       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 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         C
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     D
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        E
      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,    F
      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-   G
      judicial body or authority;
      (d) Delay in getting NOC, permissions licenses, approvals,
      consents, connections, plans, occupancy, certificate, completion
      certificate and permissions from MCGM and other authorities/
      bodies.                                                                 H
216                SUPREME COURT REPORTS                     [2018] 14 S.C.R.


A           (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
B           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
C           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.
D            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
E     the possession by August, 2014. Later, the aforesaid allotment was
      transferred by Hemali Vrajendra 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:

F           “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. … … …”
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             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:
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    CCI PROJECTS (P) LTD. v. VRAJENDRA JOGJIVANDAS                                217
           THAKKAR [UDAY UMESH LALIT, J.]

      “a. OP be directed to handover the legal possession of flat to              A
      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                                                     B
      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
      d. OP be directed to refund the Complainant Rs.2,00,00,000/-                C
      (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          D
      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
                                                                                  E
      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.            F
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,            G
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 was further stated that the

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218                SUPREME COURT REPORTS                     [2018] 14 S.C.R.


A     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,
B     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
C     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
D     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 stood paid to the appellant. After considering
E     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
F           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
G           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

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       CCI PROJECTS (P) LTD. v. VRAJENDRA JOGJIVANDAS                           219
              THAKKAR [UDAY UMESH LALIT, J.]

          that date, to the complainant, w.e.f. 01.09.2014 till the date on     A
          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.                    B
          5. The payment by the OP in terms of the order shall be made
          within three months from today.”
      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.                       C

          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               D
          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     E
          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       F
any case the possession was offered on 16.11.2016 and thus it was only
a short 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.
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      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
1
    (2008) 17 SCC 407                                                           H
220                 SUPREME COURT REPORTS                       [2018] 14 S.C.R.


A     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
B     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 delay in delivering the
C     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
D     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
E     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
F     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 demand and supply
      ratio must have been upset. The appellant would therefore be entitled to
G     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
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    CCI PROJECTS (P) LTD. v. VRAJENDRA JOGJIVANDAS                               221
           THAKKAR [UDAY UMESH LALIT, J.]

directions 1, 2 & 4, the direction No.3 is substituted and in its place the      A
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.
                                                                                 B
      15. With these directions civil appeals stand disposed of. No costs.

Ankit Gyan                                                Appeals disposed of.



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