MARVEL OMEGA BUILDERS PVT. LTD. AND ANR.V. SHRIHARI GOKHALE AND ANR.versusSHRIHARI GOKHALE AND ANR

                        [2019] 10 S.C.R. 375                               375


     MARVEL OMEGA BUILDERS PVT. LTD. AND ANR.                              A
                                   v.
                SHRIHARI GOKHALE AND ANR.
                (Civil Appeal Nos.3207-3208 of 2019)
                            JULY 30, 2019                                  B
      [UDAY UMESH LALIT AND VINEET SARAN, JJ.]
       Consumer Protection Act, 1986 – s.23 – Respondents booked
a residential villa viz., Emerald-07 in a project named ‘Marvel Selva
Ridge Estate’ to be developed by the Appellants – Agreement dated.
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22.03.2013 entered between the parties – Total consideration for
the villa was to be Rs.8.31 crores – Respondents paid Rs.8.14 crores
by November, 2013 – Though the appellants had agreed to deliver
possession on or before 31.12.2014, neither the villa was complete
by the due date nor was any refund made by the appellants –
Respondents filed complaint before the Commission – Complaint              D
allowed by the Commission inter alia directing refund of the entire
principal amount of Rs.8.14 crores to the Respondents with
compensation in the form of simple interest @ 10% p.a.– Appellants
filed application seeking extension of time to comply with the
judgment – Rejected – On appeal, held: As against the total
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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 – Thus, there was total failure on part of the Appellants and         F
they were deficient in rendering service in terms of the obligations
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 – Respondents justified in seeking refund of
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the amounts deposited with reasonable interest – Findings rendered
by the Commission neither incorrect nor unreasonable on any count
– 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 – So long as the
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                                   375
376            SUPREME COURT REPORTS                     [2019] 10 S.C.R.


A     decree remains to be satisfied, said villa shall be under attachment,
      subject to such orders as may be required to be passed in connection
      with the execution of the order passed by the Commission.
            Dismissing the appeals, the Court
            HELD: 1.1 As against the total consideration of Rs.8.31
B     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.
C     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,
D     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. [Para 10]
      [379-D-F]
E            1.2 The residential villa admeasuring 648.46 square metres
      bearing No. Emerald-07 in the 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
F     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. [Para 11] [379-
      G-H; 380-A]
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            CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3207-
      3208 of 2019
            From the Judgment and Order dated 05.09.2018 of the National
      Consumer Dispute Redressal Commission, New Delhi in Miscellaneous
      Application No. 578 of 2018
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       MARVEL OMEGA BUILDERS PVT. LTD. AND ANR. v.                           377
              SHRIHARI GOKHALE AND ANR.

      R. P. Bhatt, Sr. Adv., Javed Shaikh, R. C. Sharma, Rahul Kr.           A
Singh, R. P. Chhibber, Ms. Bharti Tyagi, Advs. for the Appellants.
         Saurabh Jain, P. K. Jain, Advs. for the Respondents.
         The Judgment of the Court was delivered by
         UDAY UMESH LALIT, J.                                                B
       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.                                                          C
       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 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                 D
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      E
                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       F
                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      G
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 by the due date
1
    National Consumer Disputes Redressal Commission, New Delhi
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378            SUPREME COURT REPORTS                        [2019] 10 S.C.R.


A     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
B     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
C           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.

D           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 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
E     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:-

F           “ (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.”
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            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.
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   MARVEL OMEGA BUILDERS PVT. LTD. AND ANR. v.                                 379
 SHRIHARI GOKHALE AND ANR. [UDAY UMESH LALIT, J.]

      7. The aforesaid judgment and orders of the Commission are               A
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.
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       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.                                C

      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?
        10. The facts on record clearly indicate that as against the total     D
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         E
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            F
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                 G
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
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380             SUPREME COURT REPORTS                       [2019] 10 S.C.R.


A     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.
B     No order as to costs.


      Divya Pandey                                              Appeals dismissed.



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