Pune: The legal heirs of a deceased owner/developer of a property cannot shy away from the obligation of handing over flats to homebuyers by claiming that they had no knowledge about the monies paid by purchasers, and that civil suits for declaration of agreements to sell and allied reliefs as cancelled were pending before court.The National Consumer Disputes Redressal Commission (NCDRC), while making these observations on July 17, directed the legal heirs of a deceased developer to hand over possession of flats to two homebuyers in “Shelke Sadan”, a project in Sadashiv Peth, within six weeks. The purchasers were to get these flats by June 2015 and April 2016, respectively, and paid Rs79.52 lakh and Rs66.65 lakh against an agreed consideration of Rs80 lakh and Rs87 lakh, in that order.The developer, Sanjiv Udhavrao Shelke, passed away in April 2015 when the project was being constructed.In the alternative, the bench of Justice Sudip Ahluwalia and presiding member Sadhna Shanker directed the legal heirs to refund the entire deposited amount with 9% simple interest from the respective dates of deposit till realisation and Rs50,000 each towards litigation cost to the complainants.Advocate Milind Mahajan, representing the complainants, told TOI, “The order is to be implemented within six weeks. Our clients are yet to get possession of the flats and we are taking a call on filing a caveat in the Supreme Court, where the next remedy lies for the builder.”The bench said the legal heirs’ contention that they cannot be held liable as the amounts were received by the deceased during his lifetime, was “devoid of merit”. After the original developer’s demise, his legal heirs assumed control of the project, continued construction, executed the agreement to sell with the second complainant, and also instituted civil suits. “Having asserted rights under those very agreements, they cannot simultaneously disclaim the corresponding obligations,” the bench said.Rejecting arguments that the complaints were barred by limitation and were not maintainable, the NCDRC held that failure to deliver lawful possession continued from day to day and constituted a continuing cause of action. The record clearly demonstrated that the project had not obtained the requisite completion/occupancy certificate within the contract period. Mere expiry of the contract period does not extinguish the continuing obligation of the builder to complete the project and deliver possession, it said.Besides, the bench said, pendency of civil suits can be no bar on homebuyers from seeking relief under the Consumer Protection Act as the two matters were distinct. The civil suits seek declarations regarding cancellation of the agreements to sell and consequential reliefs. The present complaints seek redressal for deficiency in service arising from failure to complete construction and deliver lawful possession as per contract obligations, it noted.The bench relied on a couple of its own judgments of 2012 and 2015, which stated that pendency of a civil suit was not a bar to the maintainability of proceedings under the Consumer Protection Act, and that civil proceedings and consumer proceedings may continue simultaneously even where they arise from substantially similar facts.
