NEW DELHI: The Maharashtra state consumer commission has sentenced two partners of a construction firm to two years in jail for failing to comply with its order to complete a flat, obtain an occupancy certificate and hand over possession to the buyers. The commission, in its order dated August 6, also fined each partner Rs 10,000 and imposed a Rs 10,000 fine on the construction firm.Why did the complainants approach the consumer commission?Sunil Sadanand Vaiti and his wife Kirti Sunil Vaiti had filed a consumer complaint against Sterling Constructions and its partners Sameer Ziaudddin Khan and Sarosh Khan over a flat in the Sterling Apartments project in Kurla, Mumbai.The Maharashtra state consumer commission had earlier held the builders guilty of deficiency in service for failing to hand over possession of the flat. It directed them to complete flat A-701 on the seventh floor, obtain the occupancy and building completion certificates and hand over possession to the complainants.The commission had directed the complainants to pay the remaining consideration of Rs 14.50 lakh along with Rs 25,000 as a deposit for expenses and another Rs 25,000 towards share money and entrance fee. The total amount was Rs 15 lakh.The commission had also directed the builders to pay 21% annual interest on Rs 16.50 lakh from August 30, 2013, the date of filing of the complaint, until possession was handed over. It also ordered them to pay Rs 1 lakh as compensation for the physical and mental harassment suffered by the complainants.The complainants later approached the state commission with an execution application, alleging that the builders had failed to comply with the earlier order.The commission issued process against the builders and recorded their plea. They pleaded not guilty and said there had been no deliberate disobedience of the order.The builders said the demarcation of the entire plot had changed, forcing them to alter the building plan. Sameer Khan said the company purchased the required TDR and FSI in 2015 and submitted amended plans to the corporation.He further said a revised plan was submitted in 2022 because of the setback requirements and that a fire NOC had been obtained. The revised plan for obtaining the full commencement certificate and occupancy certificate was still pending, he said.“The accused is unable to comply the impugned order entirely. It is further contended that there is no willful disobedience of the order on the part of the accused,” the commission order states.Why did the commission hold the builders liable?The bench comprising President S.P. Tavade and Member Vijay C. Premchandani noted that during cross-examination, Sameer Khan admitted that possession of the flat had already been given to the complainants but the occupancy certificate had not been obtained.The complainants argued that the possession given by the builders could not be treated as lawful possession because the occupancy certificate had not been obtained.“The accused handed over the possession of the alleged flat, however, failed to give lawful possession. The said fact narrates that the accused has willfully and deliberately disobeyed the impugned order passed in the original consumer complaint,” the commission said.The commission therefore held that the builders had failed to comply with its earlier order.It also rejected the builders’ defence that changes in regulations had prevented them from complying with the order. The commission noted that the builders had taken different positions during the proceedings.“The accused miserably failed to comply the order and the said fact is admitted even in the cross examination of the accused,” the commission observed.The commission held that the complainants had proved that the builders committed an offence punishable under Section 27 of the Consumer Protection Act, 1986.The commission noted that the builders had taken a long time to comply with the original order and had still failed to do so. It also found that they had not established that compliance was beyond their control.The commission allowed the execution application. It fined Sterling Constructions Rs 10,000.It convicted its partners Sameer Khan and Sarosh Khan and sentenced each of them to two years of simple imprisonment. They were also fined Rs 10,000 each.The commission said there would be no order as to costs and directed that copies of the order be provided to both sides free of cost.
