It is the duty of the builder to mention the date of delivery of possession in the agreement

In Adrian Pereira v. Anita Ronald Lewis, the appeal was filed by the Appellant - Opposite Party under Section 19 of the Consumer Protection Act, 1986 against the order dated 29.09.2015 passed by the Maharashtra State Consumer Disputes Redressal Commission, wherein the Complaint was partly allowed and the Opposite Party was directed to handover possession of the subject flat to the Respondent - Complainant after receiving the balance consideration amount from the Respondent - Complainant.

On 07.12.2001, a registered agreement was executed between the parties for sale consideration of Rs. 16.50 lakh. Though not written in the agreement, it was understood that possession was to be delivered to the Complainant by December 2002. But, no satisfactory progress was made up to 15.02.2003. The Opposite Party assured possession of the flat within three months i.e. on or before 31.05.2003. Despite the assurance, no progress was made and therefore the Complainant wrote a letter on 26.05.2003 to the Opposite Party for opting out of the project and for refund of the entire amount paid. The letter was ignored, the refund was not made. On 17.10.2006, i.e. about 3 years and 5 months of the said letter seeking the refund of the amount paid, the Complainant received a letter from the Opposite Party alleging that she had cancelled the agreement and paid only Rs. 11 lakh, which she could collect with interest @ 9% p.a. The Complainant refused, and called upon the Opposite Party to hand over possession of the said flat by accepting the balance consideration. The Complainant filed a Complaint with the State Commission  which was partly allowed. The Opposite Party filed an Appeal before the NCDRC.

The contention of the Opposite Party was that the subject agreement was cancelled by the Complainant vide letter dated 26.05.2003 and that that the agreement has no mention of date of delivery of possession of the said flat to the Complainant.

NCDRC on perusal of the said letter observed that it is evident that for more than two years, there was no construction work / development at the site of the project. The Complainant was also paying interest on the amount paid to the Opposite Party builder firm, therefore, the Complainant requested the Opposite Party to return the entire amount paid. However, the Opposite Party slept over the matter. In the absence of the entire amount being refunded, with reasonable interest, within reasonable time, it cannot be contended that the agreement stood cancelled.

Referring to the judgment of the Hon'ble Supreme Court in Fortune Infrastructure v. Trevor D'Lima and holding deficiency of service on the part of the builder, the NCDRC held that it was the duty of the Opposite Party itself to mention the date of delivery of possession in the agreement and failure to do so necessarily requires to be read against the Opposite Party. In all contingencies, the Complainant could not have been made to wait indefinitely for possession.