ORAL

The present Appeal, under Section 19 of the Consumer Protection Act, 1986 (for short “the Act”) has been filed against the order dated 18.09.2019 of the Delhi State Consumer Disputes Redressal Commission (for short “the State Commission”) in Complaint No.1337 of 2018.

2.      Brief facts of the case are that the Appellant had invited applications from the retired/serving officers for allotment of the flats in their scheme Kharar (Greater Mohali). The Respondent applied for category ‘A-I’ Flat measuring 1900 sq. ft. and costing Rs.30.78 Lakhs.  The allotment was confirmed by the Appellant vide its letter dated 18.01.2007.  As per the allotment letter, the

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Appellant had promised to hand over the possession of the flat to the Respondent/Complainant in the year 2009.  Since the Appellant failed to hand over the possession till the year 2014, the Respondent filed the Complaint before the State Commission asking for the remedy as mentioned by him in the prayer clauses.

3.      In the Written Statement, the Appellant took the plea that delay had occurred due to the fault on the part of the contractor to whom the construction of the flats was handed over.

4.      Parties led their evidences before the State Commission.  On the basis of the evidence on record, the State Commission has held as under:

“8.       On merits it may be mentioned that complainant submitted that now after 13 years he is no more interested in the flat particularly when the same is not in habitable condition and OP is demanding enhanced cost. The Hon’ble Supreme Court has held in Pioneer Urban land and Infrastructure vs. Govindan Raghavan Vol.II(2019) CPJ 34 that complainant cannot be compelled to accept the possession offered after two years of stipulated period. It has also been held that any clause in the agreement which is unfair and unreasonable cannot be enforced. So the clause providing that allottee will not be entitled to any interest or compensation is not enforceable.”   

5.      Vide the present Appeal, the said order has been challenged on the ground that the Complainant had himself defaulted in fulfilling the demands raised by the Appellant.  It is also argued that since in the Complaint, the Complainant/Respondent had sought the possession and had not

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asked for refund of the amount, the impugned order is illegal.  It is also argued that the possession was offered on 16.04.2014 by uploading the website of the Appellant and later again on 01.11.2016.  On enquiry, learned Counsel submits that no letter of possession was ever sent to the Complainant/Respondent.

6.      I have given thoughtful consideration to the arguments of learned Counsel for the Appellant and perused the record.  Admittedly, the Appellant had promised to hand over the possession at the end of the year 2009.  Till the filing of the Complaint in the year 2014 by the Respondent, there was no offer of possession to him.  Learned Counsel has admitted that no letter offering possession was ever sent to the Respondent/Complainant.  It is argued that they had updated their website whereby they had offered possession to the allottees vide updation on 16.04.2014 and 01.11.2016.  It seems that this was done by the Appellant with the sole intention to defeat the claim of the Complainant because admittedly, the OC had been obtained by the Appellant on 08.10.2018 (as disclosed by learned counsel for the appellant).  Without an OC, offer of possession is of                     no consequences and rather cannot be done because no sale deed can be executed without an OC.  As regards the contention

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of the Appellant that since in the Complaint, the Complainant had sought the possession and had not asked for refund of the amount, hence the impugned order is illegal, the contention is rejected.  Reliance is placed on “Kolkata West Internatinal City Pvt. Ltd. Vs. Devasis Rudra, 2019 SCC 438”.  In view of these admitted facts, the State Commission has rightly ordered for refund of the deposited amount following the directions of the Hon’ble Supreme Court in the case of “Pioneer Urban Land And Infrastructure vs. Govindan Raghavan Vol.II(2019) CPJ 34. 

          In “Bangalore Development Authority vs. Syndicate Bank (2007) 6 SCC 711”, the Hon’ble Supreme Court has clearly held that where possession is not offered within specified period, the allottee is entitled to refund of his deposits with interest. 

          In view of the settled law, I found no illegality or infirmity in the impugned order.  The Appeal has no merits and the same is dismissed in limine.