1.      Heard Ms. Aakanksh Bhola, counsel for the appellant appearing physically and Mr. Aditya Grover, counsel for the respondent through video conferencing. 

2.      The office has reported that there is a delay of 167 days in filing the appeal.  The impugned order was passed on 17.06.2020 while the appeal was filed on 13.01.2021.  During this period, the Supreme Court has waived the limitation in Suo Moto Writ Petition No.3 of 2020.  The appellant has filed IA/365/2021 for condoning the delay.  IA is allowed.  Delay in filing the appeal is condoned.

3.      The above appeal has been filed against the order of the State Consumer Disputes Redressal Commission, Punjab dated 17.06.2020 passed in CC/1022/2018 whereby the complaint for refund has been allowed and the appellant has been directed to refund the entire amount along with interest @ 8% compounded annually and pay a compensation of Rs.66000/- for mental agony as well as cost of litigation. 

4.      Abdul Hafiz, the respondent filed CC/1022/2018 for directing the appellant to refund Rs.6330750/- along with interest @ 12% per annum from 22.05.2015 till the date of actual payment and pay Rs.2 lacs as compensation for mental agony and harassment and Rs.50000/- as litigation cost and any other relief which is deemed fit and proper in the facts of the case. 

5.      The complainant stated that Greater Mohali Area Development Authority, the opposite party was statutory authority.  The opposite party launched a group housing project in the name of ‘Purab Premium Apartment’ at Sector-88, SAS Nagar, Mohali, in the year 2011.  The complainant applied for allotment of a 3 BHK flat and deposited the booking amount.  Lottery for allotment was drawn on 20.03.2012 in which the complainant was selected and letter of intent was issued to the complainant on 22.05.2012 requiring the complainant to deposit 30% initial amount and balance amount in six instalments.  There was other option also to deposit the 95% of the consideration in which 5% rebate was offered.  The complainant deposited 95% of the consideration on 20.07.2012.  Under clause 3.(ii) of the letter of intent, the opposite party was required to hand over possession within 36 months from the date of issue of letter of intent.  The 36 months’ period expired on 22.05.2015.  The opposite party however, failed to hand over possession of the flat in dispute.  The opposite party issued allotment cum offer of possession letter dated 06.06.2017 demanding the balance amount of 5%.  The complainant thereafter, wrote letter dated 29.11.2017 and 08.02.2018 asking for refund of their money along with interest as the opposite party has failed to hand over possession within three years of the issue of letter of intent.  Thereafter, certain communications were made between the parties and ultimately, the opposite party refused to refund the money.  Then this complaint was filed on 31.12.2018. 

6.      The appellant filed its written reply in the complaint and contested the matter.  In the written reply, the appellant has not disputed the material facts.  However, stated that since allotment cum offer of possession letter has been issued on 06.06.2017, therefore, the complainant was not entitled for getting refund after issue of allotment cum offer of possession letter.  The opposite party has also taken ground that the complaint was time barred inasmuch the period of two years for filing the complaint has already expired.  The preliminary objection that there was arbitration clause etc. has also been taken. 

7.      The State Commission, after hearing both the parties, found that under Punjab Apartment and Properties Regulation Act, 1995, the opposite party falls within the definition of promoter under Section 2(y).  The project land is falling under the municipal limit therefore, as per Punjab Municipal Corporation Act, 1976, the opposite party was required to take completion certificate. Since at the time of offer of possession/issue of allotment cum offer of letter dated 06.06.2017, the completion certificate has not been obtained by the opposite party.  Therefore, the offer of possession was not a valid offer of possession.  Since more than three years have expired and the complainant has given his option for refund of the money through letter dated 29.11.2017, therefore, the claim according to clause 3.(ii) of the letter of intent, was maintainable.  Accordingly, the complaint was allowed and the order as mentioned above, has been passed.  Hence, this appeal has been filed.

8.      Counsel for the appellant submitted that the State Commission has carved out a new case which has not been pleaded by the complainant in the complaint, therefore, its finding in respect of new case was not liable to be accepted.  The complaint was time barred and was liable to be dismissed.  Therefore, the order is illegal. 

9.      So far as the argument that the State Commission has carved out a new case is concerned, under the law, the opposite party was required to obtain the completion certificate before offer of possession.  In order to examine the validity of the allotment cum offer of possession letter dated 06.06.2017, the State Commission has gone into the fact as to whether the project was complete at that time and completion certificate has been obtained or not.  This was a legal requirement for examining the validity of the allotment cum offer of possession letter.  Therefore, the finding recorded by the State Commission in this respect cannot be said to be illegal and beyond scope of the pleading/issue between the parties.  Admittedly, on the date of offer of possession i.e. 06.06.2017, the completion certificate has not been obtained.  The completion certificate was issued only on 05.07.2018.  Therefore, on the date of issue of allotment cum offer of possession letter, there was no completion certificate and under the law, offer of possession without completion certificate cannot be treated as a valid offer of possession. 

10.    So far as the issue relating to delay in filing the complaint is concerned, under the letter of intent, it was the duty of the opposite party to hand over possession and not offering possession is a continuing wrong and it cannot be said that at any point of time, the complainant should refuse and claim for refund of the money.  It is only after offer of possession on 06.06.2017 that it was found that the offer was not valid then option for refund was exercised on 29.11.2017 and the complaint was filed within two years from offer of possession i.e. on 31.12.2018.  Therefore, it cannot be said to be barred by limitation.   

11.    So far as the interest granted by the State Commission is concerned, it is perfectly in the terms of the letter of intent and cannot be said illegal.  There is no illegality in the impugned order.  Counsel for the appellant has raised objection for awarding Rs.66000/- under the head of ‘mental agony’.  Since it is not only for mental agony but also by of cost of litigation and not very excessive amount, we do not find any reason to interfere in the matter.  The appellant has deposited some amount before the State Commission in compliance of the interim order dated 29.01.2021 and 06.07.2021.  The respondent may file an execution application before the State Commission to release the decretal amount to the respondent. 

ORDER

In view of the aforesaid discussion, the appeal is dismissed.