APPEARED AT THE TIME OF ARGUMENTS

PRONOUNCED ON :   26^TH APRIL 2018

O R D E R

PER DR. B.C. GUPTA, PRESIDING MEMBER

          This first appeal has been filed under section 19 read with section 21(a)(ii) of the Consumer Protection Act, 1986 against the impugned order dated 09.02.2015, passed by the Delhi State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the State Commission’) in consumer complaint No. 320/2012, filed by the present respondent, vide which, the said complaint was allowed and the appellant builder was directed to refund the amount deposited by the respondent/complainant alongwith interest @18% p.a. from the date of deposit and also to pay ₹3.5 lac as compensation for delayed possession and ₹1 lac as litigation charges. 

1. The facts of the case are that the respondent/complainant booked a residential flat with the appellants/opposite parties (OPs) Builders, M/s. TDI Infrastructure Limited on 17.03.2006, after making an initial payment of ₹4 lakh, in their project called Kingsbury Apartments, TDI City, Kundli, Sonepat, Haryana.  The complainant entered into an Apartment-Buyer’s Agreement with the OP Builders on 10.09.2009, as per which, the possession of the said apartment was to be delivered to the complainant within two years of the agreement, i.e., upto 10.09.2011.  The complainant stated that he had made a total payment of ₹32,01,746/- for the flat till 07.05.2012, against the total cost of ₹34,51,175/- as quoted in the agreement, but the OPs were not able to give possession to him as promised, which reflected deficiency in service and unfair trade practice on their part.  The balance 5% of the amount was to be paid to the OP Builders at the time of the delivery of possession.  The complainant sent a legal notice to the OPs on 08.08.2012, but they did not send any reply to the same.  The complainant filed the consumer complaint in question, with the following prayer:-

   “a)     to hand over the possession of the flat No. W6-0103, Kingsbury Apartments, TDI City, Kundli, Sonepat to the complainant.

    

   b)      to pay interest @24% p.a., i.e., 2% per month w.e.f. 10.09.2011 (date of promise of possession of the flat), on Rs.32.00 lacs till the date of actual possession of the flat.  In other words to pay to the complainant Rs.64,000/- per month as compensation/damages for breach of promise, deficiency of service, mental agony etc.

    

   c)      to pay Rs.52,000/- as cost of litigation and miscellaneous charges to the complainant.”

    

2. The complaint was resisted by the OP Builders by filing written version before the State Commission, in which they stated that the complainant had defaulted in making timely payments to them and hence, violated the terms and conditions of the agreement.It is also stated in the written version that they sent a letter dated 26.04.2012 to the complainant, saying that the external finishing work of the unit was complete and that he should make payment of the amount due to them.However, despite sending reminders, the complainant did not deposit the amount in question.The OPs further stated that they offered possession of the unit to the complainant and intimated him about the final area and the total amount payable, but the complainant did not come forward to take possession of the unit after clearing the outstanding dues.The OP builders requested that the consumer complaint should be dismissed.

    

3. The State Commission after taking into account the averments made by the parties, allowed the consumer complaint and directed as follows:-

   “a)     to refund an amount of Rs.32,10,788/- along with interest @ 18% p.a. from the date of its deposit till the date of its realisation.

    

   b)      to pay to the complainant compensation to the tune of Rs. 3.5 Lac i.e. @ Rs. 1 Lac p.a. for the delayed possession.

    

   c)      to pay to the complainant litigation charges to the tune of Rs. 1 Lac.

    

               The abovesaid amount shall be paid by the OPs to the complainant within a period of 30 days from today, failing which interest @ 24% p.a. shall be liable to paid by the OPs thereon. Complaint is accordingly disposed of.”

    

4. Being aggrieved against the above order of the State Commission, the OP Builders are before this Commission by way of the present appeal.

    

5. The learned counsel for the appellants/OP Builders has assailed the impugned order, pleading that the same was a non-speaking order, and had been passed without taking into account the material facts on record.The learned counsel stated that as per the prayer clause in the consumer complaint, the complainant never asked for refund of the amount deposited, but still, the State Commission had ordered refund alongwith an exorbitant interest @18% p.a.The learned counsel argued that any order passed beyond pleadings of the parties, was bad in the eyes of law.In support of her arguments, the learned counsel has drawn attention to an order passed by the Hon’ble Supreme Court in “Bachhaj Nahar vs Nilima Mandal & Ors.” [AIR (2009) SC 1103], saying that relief could be granted only with reference to the prayer made in the consumer complaint.  The learned counsel further stated that they had mentioned in the written version to the complaint that they had offered possession of the property to the complainant, subject to clearance of the dues payable, but the complainant never came forward to obtain the possession.  The learned counsel further argued that during proceedings in the consumer complaint, a settlement had been affected between the parties and a copy of the said settlement deed had been placed on record.  While passing the impugned order, the State Commission had not taken note of the said settlement.  The learned counsel stated that as per a copy of the settlement placed on record, the complainant was required to pay a sum of ₹34,51,175/- in total to them, as full and final payment for the said flat.  The appellant Builders were prepared to act in accordance with the terms and conditions of the settlement even at this stage. 

    

6. The learned counsel for the respondent stated, however, that the OP Builders had failed to honour their commitment of the delivery of the flat within two years of the date of the agreement and hence, they had indulged in deficiency in service towards him.The learned counsel has drawn attention to a letter dated 05.03.2013 sent by the OP Builders, addressed to the complainant, in which they demanded a total sum of ₹9,77,211.01 from him, although he was required to pay the balance amount of ₹2.40 lakh only.Referring to the settlement entered between the parties, the learned counsel stated that the OP Builders had themselves backed out of the said settlement, and hence, at this stage, they were not prepared to proceed further in accordance with the settlement deed on record.

    

7. I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.

    

8. The first point that merits consideration in the matter is whether the State Commission could have allowed refund of the amount deposited to the complainant, although there was no prayer to that effect in the consumer complaint filed before the State Commission.The learned counsel for the appellants/OPs has taken the line of argument that since the prayer clause in the complaint mentions about handing over the possession of the flat only, the State Commission could not have allowed refund of the amount deposited with the appellants/OPs.In this regard, the facts of the case make it clear that the flat buyer’s agreement was executed between the parties on 10.09.2009, according to which, the possession was to be handed over to the complainant within 2 years of the date of the agreement, i.e., by 10.09.2011.It is made out from the documents on record that the appellants/OPs failed to deliver the possession of the property within the time mentioned in the agreement.They have taken the plea that the complainant defaulted in making timely payments to the OP Builders and that they had been continuously writing letters to him from time to time asking him to make such payments.The letter dated 26.04.2012 sent by the OPs to the complainant has been placed on record, in which it has been mentioned that the development work at the site was in full swing.This letter implies that the construction work had not been completed till the date of sending the said letter, meaning thereby that there was no question of delivery of possession by the promised date, i.e., 10.09.2011.Further, it has been stated in the impugned order passed by the State Commission that the complainant sent a legal notice dated 08.08.2012 to the OP Builders with regard to the delivery of the possession, but the said notice was not replied to by them. There is another letter dated 19.11.2012, sent by the appellants/OPs to the complainant, but there is no mention of possession in the said letter.This letter was followed by another letter dated 05.03.2013, vide which the OP Builders asked to deposit a sum of ₹9,77,211.01ps. as outstanding dues.  It has been mentioned in the said letter that in earlier correspondence, the complainant was informed to take possession of the flat by clearing the outstanding dues.  However, there is no reference from where it could be deciphered about the exact date, when the possession was offered.  In their written version to the consumer complaint filed before the State Commission also, the appellants/OPs have mentioned that they offered possession of the flat to the complainant, but the exact date of offer of possession has not been mentioned in the said written version as well.  It is evident from the entire material on record, therefore, that the appellants/OPs failed to deliver possession of the property within the time promised. 

    

9. The issue has been examined by this Commission from time to time in various orders delivered in other cases.In an order passed in “GTM Builders & Promoters Pvt. Ltd. vs. Deepti Ular Jain & Anr.” [FA No. 522 / 2011 dated 29.10.2015], this Commission held as follows:-

   “…..in the event of a Developer failing to deliver possession of the property within the stipulated period, for any reason, save and except a force majeure condition, agreed to between the contracting parties, an allottee cannot be compelled to wait endlessly and he would be within his rights to seek refund of the amount deposited with the Developer against allotment if the delivery of possession of the flat in question as per the scheduled time frame is not in sight…”

    

10. It is made out from above that a complainant could not be forced to take possession of the property, after the expiry of the promised date of delivery of possession as per the agreement.It is held, therefore, that the complainant was very well within his rights to obtain refund of the money deposited by him and hence, the State Commission has not committed any illegality or irregularity in directing refund of the amount deposited, although there was no prayer to that effect in the consumer complaint itself.

     

11. The next issue that requires consideration in the matter is with regard to the settlement deed, as pointed out by the learned counsel for the appellants/OPs during the arguments.A copy of the settlement deed dated 12.02.2014 has been placed on record by the appellants/OPs during proceedings in this appeal, although the same was not appended at the time of filing the appeal, neither there is any mention about the same in the memo of appeal.As stated in the agreement, the appellants/OPs had agreed to hand over the possession of the flat including the car parking, space etc. to the complainant at a price of ₹34,51,175/- as full and final payment.It has been stated in the settlement deed that the complainant had already deposited the amount of ₹32,10,788/- with them, meaning thereby that further amount of about ₹2.40 lakh was to be deposited with them, although the letter dated 05.03.2013 sent by them stated that a sum of ₹9,77,211.01ps. was to be deposited.  During arguments, the learned counsel for the appellants/OPs stated that at this stage, they were agreeable to deliver the possession of the property to the complainant in terms of the settlement deed referred to above.  However, the learned counsel for the respondent/complainant categorically stated that since the OP Builders had not taken any steps in the past to give effect to the said settlement, they were not ready to accept the possession of the flat at this stage in terms of the said settlement.  It is made out from copies of the orders in hearings before the State Commission, placed on record by the appellants/OPs that there was mention of the said settlement before the State Commission on 25.02.2014 and some subsequent dates.  However, later on, the matter was listed for filing evidence of the OP Builders and then, the matter was finally decided on 09.02.2015.  It has been recorded in the order passed by the State Commission on 03.07.2014 that the complainant had written three letters to the OP Builders for getting the sale-deed registered in terms of the settlement and that he was required to deposit the balance amount at the time of getting the sale-deed registered.  However, in subsequent hearings, there is no mention about the steps, if any, taken by the appellants/OPs for giving effect to the settlement deed.  Since at the present juncture, the respondent/complainant is not willing to accept the flat in terms of the settlement deed, the said deed cannot be relied upon in deciding the issue at this moment. 

     

Vide impugned order, the State Commission directed the appellants/OPs to refund the amount of ₹32,10,788/- alongwith interest @18% p.a. from the date of its deposit till realisation and also to pay compensation to the tune of ₹3.5 lakh @₹1 lakh per annum for delayed possession.  It is true that the complainant paid a substantial amount to the OP Builders and they have been using the said money from the date of deposit till today.  However, it is to be examined whether the grant of 18% interest on the said amount is justified or not.  Had the appellant Builders borrowed the said money from a financial institution, they would have paid substantial amount of interest on the same.  Similarly, the complainant also, if he had deposited that money in a Bank in a fixed deposit account, he would have earned interest on the same.  The State Commission in the impugned order have also awarded compensation to the tune of ₹3.5 lakh for the delayed possession.  Considering the going bank rates for the fixed deposits during the period in question, and considering the fact that the appellants failed to deliver the possession as per the promised date, it is felt reasonable to grant interest @12% p.a. on the amount of ₹32,10,788/- from the date of deposit till realisation.  The award of this amount on the deposited amount shall also take care of compensation to be given to the complainant for the delay in possession.  The order passed by the State Commission is, therefore, modified to say that the appellants/OPs shall refund a sum of ₹32,10,788/- alongwith interest @12% from the date of deposit till realisation and also pay cost of litigation to the tune of ₹1 lakh as awarded by the State Commission.  The payment in terms of this order shall be made within a period of 8 weeks from the date of receipt of the said order by the appellants/OPs.  There shall be no order as to costs.