BEFORE: HON’BLE MR. SUBHASH CHANDRA, PRESIDING MEMBER For the Appellant Mr Paras Chaudhary, Mr Uma Shankar and Ms Vini Wadhawan, Advocates
For the Respondent Mr Nitin Garg, Advocate
ORDER 1. This first appeal under Section 51 of the Consumer Protection Act, 2019 (in short, ‘the Act’) assails the order dated 22.11.2021 of the Delhi State Consumer Disputes Redressal Commission, New Delhi (in short, ‘the State Commission’) in Complaint case no.CC/1350 of 2016 allowing the complaint. 2. I have heard the learned counsel for the parties and have carefully perused the material on record. 3. The relevant facts of the case, in brief, are that the respondent had booked flat in a project of the appellant namely KLJ Heights, Bahadurgarh, Haryana. As per the Flat Buyers Agreement (FBA) dated 07.11.2012. Flat no. 503, Tower B 2 admeasuring 1600 sq ft (super area) was allotted to the respondent for a sale consideration of Rs.1920/- per sq foot exclusive of all other charges mentioned in the schedule of payment. As per Clause 4 (1) and 4 (2) of the FBA, the appellant was required to deliver the flat within 36 months from the date of the FBA with a grace period of six months, i.e., by 06.05.2016. As per the application form and the FBA, the appellant had stated that all approvals were in place since 2008 to develop the said project and that the flat in question would be delivered as per the schedule in the FBA. A sum of Rs.32,12,501/- was paid by the respondent over several instalments to the appellant as per the demand raised including through a loan of Rs.10 lakh obtained by the respondent from the State Bank of Patiala, Bahadurgarh. As possession was not offered as per the date indicated in the FBA, the respondent sent a legal notice dated 10.10.2016 seeking refund of the amount already paid with interest to no avail. Thereafter, a Consumer Complaint no.1350 of 2016 was filed before the State Commission on 04.11.2016. This complaint came to be disposed of on contest through the impugned order dated 22.11.2021 along with the complaint directing the appellant to refund the entire amount paid by the respondent (Rs.32,12,50/-) along with interest @ 6% per annum from the date of each payment till 22.11.2021, the date of the order, along with interest or, in default thereof, with interest @ 9% per annum from the date of each instalment till realisation, along with Rs.2.00 lakh for mental agony and harassment and litigation cost of Rs.50,000/- without deduction of TDS on the amount being paid/refunded. This order is challenged before us. 4. The appellant has contended that the State Commission’s order erred in directing the refund of the money deposited with it by the respondent without appreciating that the delay was only of 11 months on account of the delay in obtaining the occupation certification without which the possession could not have been offered. It was contended that the Occupation Certificate was received by the appellant on 20.04.2017 and offer of possession was made to the respondent on 22.04.2017. It was contended that the State Commission had over looked the fact that the appellant had completed the project on 19.08.2015 which was prior to the expiry of 36 months and that the appellant had applied for Occupation Certificate from the competent authority. The delay in handing over of possession was therefore attributed to delay in obtaining the Occupation Certificate which would have amounted to an illegal offer of possession as held by this Commission in Kamal Kishore and Ors. vs Supertech Limited in CC no.1009 of 2016 dated 14.03.2017. It was further contended that some delays in large projects were inevitable as had been opined by this Commission in Vineet Kumar and Ors vs DLF Universal Limited and Ors., in FA no.1340 of 2016. It is the case of the appellant that despite force majeure and other circumstance beyond the control of the appellant, the delay in the offer of possession was essentially due to the delay in the grant of the Occupation Certificate. It was further contended that the State Commission had erroneously held that the respondent to be a “consumer” under the Act since the respondent has not booked the flat for his personal accommodation but for commercial gain as he was the owner of two other flats in the vicinity. Reliance was placed on the judgment of the Hon’ble Supreme Court in Ireo Grace Realtech Private Limited vs Abhishek Khanna dated 11.01.2021 wherein it was held that the “buyers are obligated to take possession of the apartment, since the construction was completed and possession was offered on 28.06.2019, after the issuance of occupation certificate on 31.05.2019 by the developer. However, the obligated compensation for the period of delay which has occurred from 27.07.2018 till date the offer of possession was made to the allottees”. It was, therefore, prayed that the impugned order be set aside and the respondent be directed to take possession along with compensation for delay. 5. Per contra, the respondent contended that there was no infirmity in the judgment of the State Commission since it had been held by the Hon’ble Supreme Court in Wg Cdr Arifur Rahman Khan & Aleya Sultana & Ors. Vs DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512 dated 24.08.2020 that “failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within the contractually stipulated period amounts to deficiency”. It was contended that as per the FBA, both the parties were bound by the terms and conditions even though it was set out by the appellant. It was argued that the Hon’ble Supreme Court in Experion Developers Pvt. Ltd., vs Sushma Ashok Shiroor, Civil Appeal no.6044 of 2019 upheld the approach the National Commission in holding that clauses of the agreement are one sided and the consumer is not bound to accept the possession of the apartment and can seek refund of the amount deposited with interest, if it chooses to do so. 6. On merits, it was argued that the flat was booked in September 2012 and the date of the FBA was 07.11.2012. The appellant offered possession after 4 ½ years which was illegal and that the fresh offer of possession was required to be decided upon. It was denied that the flat had been booked to make commercial gains and that the appellant had not discharged the onus of proving this which was on it. Reliance was placed on the judgment of the Hon’ble Supreme Court in Pioneer Urban Land and Infrastructure Ltd. Vs. Govindan Raghavan, in CA No. 12238 of 2018 decided on 02.04.2019, (2019) 5 SCC 725 which held that failure of the builder to fulfil the obligation of obtaining the occupation certificate and offering possession of the flat within the time stipulated in the agreement cannot compel a flat purchaser to take possession of the flat after the term provided under the agreement had expired. The respondent has also relied upon the judgment of the Hon’ble Commission in Narain Builders and Developers vs Madhvi Sharma and Ors., in FA no.1859 of 2019 dated 02.08.2022 and Emaar MGF Land Ltd., and Ors., vs Amit Puri II (2015) CPJ 568 (NC). 7. From the facts of this case it is evident that the respondent had booked a flat in question on 05.11.2012 when an allotment letter was issued to him. A Flat Buyers Agreement dated 07.11.2012 was executed between the parties whereby possession was stipulated to be offered after 36 months from the signing of the FBA with 6 months of grace i.e., by 07.05.2016. Admittedly the Occupation Certificate was received by the appellant on 20.04.2017 and offer of possession was issued on 22.04.2017. The contention of the appellant is that delay is of only 11 months which was not inordinate in view of the nature of the project which was susceptible to certain delays. The State Commission has however, relied on the judgments of the Hon’ble Supreme Court and this Commission in holding that the respondent was entitled to seek refund in view of the delay and has proceeded to order refund with 6% interest along with other compensation and in default, with 9% rate of interest in case of non-compliance within the stipulated period. Appellant has not been able to discharge the onus of establishing that the respondent was in the business of buying and selling of flats for commercial gain to support his contention that he was not a ‘consumer’ under Section 2 (1) (d) of the Act. 8. The issue, therefore, is whether the State Commission was justified in ordering refund of the deposited amount along with interest as ordered, or whether in terms of the case law relied upon by the appellant including Abhishek Khanna (supra), the respondent was obligated to take possession since a Occupation Certificate had been obtained. 9. It is evident from the facts of this case that the respondent had issued a Legal Notice to the appellant on 10.10.2016 seeking refund since as per the FBA, the offer of possession was to have been made by 07.05.2016. As there was no reply to the legal notice, the respondent moved the State Commission by way of Consumer Complaint. In Abhishek Khanna (supra) the issues related to two separate categories of consumers including one in whose case the offer of possession had not been made since the Occupation Certificate had not been obtained and in the other category Occupation Certificate had been received but the same needed to be reckoned from the date of obtaining of the Licence from the relevant authorities of the Fire Department. In the instant case, however, the only contention taken by the appellant is that the Occupation Certificate was delayed by the concerned authorities and therefore, the offer of possession was delayed. 10. We are inclined to respectfully agree with the Hon’ble Supreme Court’s views in a catena of judgments including Pioneer Urban Land and Infrastructure Ltd. Vs. Govindan Raghavan, in CA No. 12238 of 2018 decided 02.04.2019, (2019) 5 SCC 725, Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, (2020) 18 SCC 613 and Fortune Infrastructure & Anr. Vs. Trevor D’Lima & Ors., (2018) 5 SCC 442, wherein it has been held that in case of delay in completion of a project, a consumer cannot be expected to wait and is well within his right to seek refund of the sale consideration paid with reasonable compensation and which is fair and equitable. In DLF Homes Panchkula Pvt. Ltd. vs D S Dhanda (2020) 16 SCC 318, decided on 10.05.2019 the Hon’ble Supreme Court has also held that multiple compensation for a singular default or deficiency is not justifiable. 11. In the present case, the respondent cannot be faulted for seeking refund of the amount deposit by him, with the appellant. The delay of 11 months in the offer of possession is admitted by the appellant. As laid down by the Hon’ble Supreme Court in D S Dhanda (supra) compensation for delay in offer of possession was liable to be paid only till the date of offer of possession. It is not disputed that the offer of possession in the instance case was made on 22.04.2017. Therefore, the respondent is entitled to compensation till this date. 12. In view of the foregoing discussion and the facts and circumstances of this case, we find merit in the appeal which is partly allowed with the following directions: - Appellant shall refund the entire amount of Rs.32,12,501/- along with interest @ 9% per annum from the date of respective deposits till 22.04.2017, the date offer of possession, within 8 weeks of this order, failing which, the amount shall repaid with interest @ 12% per annum till realisation;
- The appellant will also pay the respondent litigation cost of Rs.50,000/- along with the above;
- There shall be no deduction of any TDS on the amount being paid / refunded in terms of the judgment of this Commission in New Park Elite Welfare Association vs BPTP Ltd., and Anr., EA no.225 of 2020 in CC no. 1395 of 2016 decided on 21.02.2024;
- Direction of the State Commission to pay Rs.2.00 lakh towards mental agony and harassment is set aside.
All pending IAs, if any, stand disposed of by this order. |
