For the Appellants          Ms Zehra Khan, Advocate (VC)

                                     Ms A Shankar, Advocate (Physical)         

For the Respondent        Mr Karan Nehra, Advocate with

                                     Mr Ravi Nayak, Advocate (VC)

ORDER

PER MR SUBHASH CHANDRA

1.     This appeal under section 19 of the Consumer Protection Act, 1986 (in short, ‘the Act’) is directed against the order dated 10^th March 2017 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh (in short, ‘the State Commission’) in CC no. 167 of 2016 allowing the complaint and directing the appellant to :

1. To complete all the development works including completion certificate, electricity connection, water connection and sewerage connection and then issue fresh offer of possession till then as the complainant will be entitled to simple interest on the deposited amount @ 12% per annum from 21.05.2015 till the date of complete certificate;
2. To pay Rs.1,00,000/- as compensation on account of non-construction of the flat within the prescribed period, physical and mental harassment, compelling the complainant to go for litigation; and
3. Pay Rs.21,000/- as litigation expenses.

2.     This order is impugned before us praying to stay the operation of the impugned order and to pass such order or further orders as may be deemed fit proper in the interest of justice.

3.     The facts of the case in brief are that the appellant had promoted a project named ‘Purab Premium Apartment’, Sector 88, SAS Nagar, Mohali in which the respondent was allotted a flat no.1003, 9^th Floor, Block B by draw of lot on 22.03.2012, vide allotment letter dated 22.05.2012, ad measuring 2221 sq ft of residential apartment Type III in respect of which booking amount of Rs. 6,90,000/- was paid on 16.01.2012. The possession was promised within 36 months from the date of draw. The respondent deposited a further amount of Rs.13.80 lakh on 11.06.2016. Despite the respondent depositing the entire consideration amount in a time bound manner, the project was not completed by 21.05.2015 and alleging deficiency in service, the respondent approached the State Commission seeking directions to the appellant to hand over the possession of the said flat after completing the developmental works with compensation by way of interest @ 18% per annum from 22.03.2015 along with compensation of Rs.2.00 lakh for mental agony and harassment and litigation expenses of Rs.50,000/-. On contest, the complaint was allowed in part by the State Commission.

4.     We have heard the learned counsel for both the parties and perused the material on record including the written synopsis of arguments.

5.     On behalf of the appellant it was admitted that it had not been able to deliver the apartment within the stipulated period. The Counsel for the appellant relied on this Commission’s order in CC no. 1278 of 2016 in Purab Premium Apartment Allottees Association vs Greater Mohali Area Development Authority and CC no.1634 of 2018 Purab Premium Apartment Allottees Association vs Greater Mohali Development Authority decided 04.05.2023 which pertains to the same project as per which the appellant had been directed to obtain the completion certificate within 45 days and to hand over the possession with compensation for delay in possession by way of simple interest @ 6% per annum on the amount paid from the committed date of possession till the date of offer of possession based on the completion certificate, certifying that all the work with amenities were completed along with Rs.50,000/- as lump sum compensation and litigation cost of Rs.25,000/- to the complainant Society. Counsel for the appellant has contended that present matter was also covered by the judgment of this Commission and that the present appeal be disposed of in the same terms.

6.     On behalf of the respondent it was submitted that the Letter of Intent dated 22.05.2012 had imposed unilateral and unfair condition on account of its dominant position qua the appellant and therefore, constituted unfair trade practice under section 2 (1) (r) of the Act as held by the Hon’ble Supreme Court in Ireo Grace Realtech Pvt. Ltd., vs Abhishek Khanna and Others, in Civil Appeal no.5785 of 2019 decided on 11.01.2021. Since the occupation certificate was awaited, the flat buyer was entitled to refund of this amount along with compensation and interest. It was contended that the project was not complete as was evident from the decision of Real Estate Regulatory Authority (RERA) in Pratap Singh vs Chief Administrator GMADA and Ors., in ACC no.147 of 2021 decided on 23.05.2022 and the fact that the appellant vide advertisement dated 12.09.2023 had invited tenders for various works in 27 Towers of Purab Premium Apartment. It was also contended that the project was not complete based on the sanctioned lay out plan and there were violations of the provisions of the RERA, 2016 and PAPRA, 1995. The offer of possession by the appellant after more than four years was on an  ‘as is, where is basis’ within 30 days with no refund or rebate or without assurance of completing the development works relating to  facilities and amenities  which was unilateral and arbitrary.

7.     Reliance placed by the appellant that the decision of this Commission in the case of Purab Premium Apartment Allottees Association vs Greater Mohali Area Development (supra) has been considered. Although this case pertains to the same project, it is seen that the facts of these case are different to the facts of the instant case. In the case relied upon by the appellant, the Apartment Allottees Association was the appellant and included allottees who have already taken possession of the apartment and therefore, the facts of the two cases are different and the ratio of this case is therefore not applicable to the present case as contended by the appellant. From the facts of the two cases, it is apparent that the facts are clearly distinguishable as in the instant case possession has not been taken.

8.     It is evident from the facts of the instant case that the allotment of the flat had been done on 20.03.2012 and that possession was stipulated to be handed over on 21.05.2015. An offer of possession was made by the appellant without completion/ occupation certificate being brought on record. The Hon’ble Supreme Court in Samruddhi Co-operative Housing Society Ltd. vs. Mumbai Mahalaxmi Construction Pvt. Ltd., Appeal (Civil) no.4000 of 2019 decided on 11.01.2022 held that a valid and legal offer of possession should necessarily be accompanied by a completion certificate from the appropriate competent authority. In the absence of this being done, the offer of possession is only a paper possession since it does not convey the legal title. In a catena of judgments it has also been held by the Hon’ble Supreme Court and this Commission notably in Kolkata West International City Pvt. Ltd. Vs Devasis Rudra 2019 SCC Online SC 438,  Pioneer Urban Land and Infrastructure Ltd. Vs. Govindan Raghavan, in CA No. 12238 of 2018 decided 02.04.2019, (2019) 5 SCC 725 and Fortune Infrastructure & Anr., vs Trevor D’ Lima & Ors. (2018) 5 SCC 442 that an allottee/consumer cannot be expected to wait indefinitely for possession and is entitled to seek either refund or possession with compensation.     In the instant case the delay of 2015 days, i.e., nearly 8 years is certainly inordinate. Therefore, as held in Govindan Raghavan, (supra) the respondent/ flat purchaser is justified in terminating the Apartment Buyer’s Agreement and cannot be compelled to accept possession when it is offered by the builder and was legally entitled to seek refund of the money deposited with appropriate compensation. The respondent’s prayer in the instant case is for refund with compensation.

9.     In the light of the foregoing, discussion and in the facts and circumstances of this case, we find merit in the appeal, which is allowed with the following directions:

1. The appellant shall refund the entire amount of Rs.20,70,000/- (Rs.6,90,000/- plus Rs.13,80,000/-) deposited by the respondent with interest @ 9% per annum from the respective dates of deposits till the date of this order within eight weeks failing which the applicable rate of interest shall be 12% per annum.
2. The appellant shall also pay litigation cost of Rs.50,000/- to the respondent.

10.   All pending IAs if any, stand disposed of with this order.