JUSTICE SUDIP AHLUWALIA, MEMBER This Appeal has been filed by the Appellant/Opposite Party against Respondents/Legal Heirs of the original Complainant, challenging the impugned Order dated 05.05.2017 passed by the Ld. State Commission, Delhi, in Complaint Case bearing No. 406 of 2011. Vide such Order, the State Commission had allowed the Complaint. 2. The brief facts of the case are that relying upon the assurance of the Opposite Party that the possession would be handed over by March, 2011, the Complainant had booked a Flat in a new Group Housing Project launched by the Opposite Party, situated at Sector-76, Faridabad in 2008. Subsequently, the Complainant was allotted a Flat bearing No. T-7/101, Park Floors, BPTP after payment of Rs.5,00,000/- on 15.12.2008. It was averred that time was the essence of the contract. The Complainant further claimed to have paid Rs.16,04,533/- by April, 2009. It was the case of the Complainant that on his visit to the construction site in June, 2010, it was found that he was allotted the Flat in a building which was not supposed to be constructed. Therefore, the Complainant claimed cheating and fraud by the Opposite Party. Consequently, he requested for refund and vide Email dated 01.03.2011, the Opposite Party promised that the entire money would be refunded along with 9% interest and also admitted that construction was not yet initiated. Thereafter, the Opposite Party asked the Complainant to fill a pre-drafted form which stated that the Complainant was voluntarily withdrawing his money and further asked him to submit all the original documents which was duly done by the Complainant on the assurance that these were just formalities. 3. It was further the case of the Complainant that he had received merely Rs.15,31,790/- in the last week of May, 2011 as refund by the Opposite Party and contended that the Opposite Party had failed to return the full amount along with interest @ 9%. The Opposite Party failed to even assign a reason for deducting Rs.72,743/-. Therefore, the Complainant was constrained to send a Notice dated 07.07.2011 for getting the dues which were denied by the Opposite Party vide letter dated 30.08.2011. Therefore, the Complaint was filed before the Ld. State Commission being aggrieved by the acts of the Opposite Parties in failing to refund the dues alleging deficiency in services, seeking refund of Rs.72,743/- along with interest @ 18% till realisation, interest @ 18% on deposited amounts till the date of payment, Rs.10,60,500/- for loss due to fake allotment, and appreciation of prices, Rs.20,00,000/- for mental harassment and Rs.25,000/- as legal expenses. 4. The Opposite Party appeared before the Ld. State Commission and resisted the Complaint and denied all the allegations thereby denying deficiency in service on its part. It was contended that the Complainant is not a Consumer because he has already surrendered the allotment of unit No. T7-101 vide surrender application dated 20.04.2011 wherein he had agreed to accept the refund of the deposited amount after deducting all the charges/ interest as per the rules of the Company, as full and final amount payable to him and further encashed the cheque issued for refund of Rs.15,31,790/- unconditionally and without any protest. It was contended that the said case is covered by the decision of this Commission wherein it was held that the privity of Contract or relationship of consumer and service provider between the parties came to an end the moment Petitioner accepted the refund unconditionally and also got the cheque encashed. It was submitted that Rs.72,743/- were deducted on account of brokerage. It was further averred that the Ld. State Commission lacked territorial and pecuniary jurisdiction because as per the Agreement, the Courts at Faridabad have the jurisdiction, and the total disputed amount involved in the subject matter does not exceed Rs.72,743/-. Further, no cause of action arose against the Opposite party. It was further submitted that the Opposite Party had informed the Complainant that it proposed to offer possession within a period of 36 months plus grace period of 180 days from date of issue of Sanction Letter of the Building Plans which was acknowledged and accepted by the Complainant vide Cause 2.1 of the Flat Buyer’s Agreement. Therefore, the Opposite Party prayed for dismissal of the Complaint with exemplary costs. 5. The Ld. State Commission vide its Order dated 05.05.2017 allowed the Complaint against the Opposite Party while directing it to pay Rs.72,743/- along with interest @12% p.a. from 03.05.2011 upto its realization, interest @18% p.a. on the amount deposited by the Complainant from the dates of deposit upto 03.05.2011, Compensation of Rs.2,00,000/- and Rs.20,000/- as litigation charges, and observed that no reasons have been put forth by the Opposite Party for not even starting with the construction of the project uptill 01.03.2011, when the booking amount had been taken on 26.08.2008. It was further observed that the Opposite Party wriggled out of its promises made in the Email dated 01.03.2011, and was required to pay interest @9% p.a. on the amount deposited by the Complainant and the Email also does not refer to any deduction on any count. It was observed that having once given an option to the Complainant to seek refund along with interest @9% p.a., it did not lie in the mouth of the Opposite Party to fall back on the Flat Buyer’s Agreement. Therefore, it was held that the Opposite Party had illegally deducted Rs.72,743/-. The Ld. State Commission had relied on the judgement of “RL Kalathia and Company v. State of Gujarat (2011) 2 SCC 400” wherein it was held that the issuance of ‘No Dues Certificate’ did not disentitle the contractor to agitate if there was an acceptable claim. However, it was also held that the Complainant cannot seek payment of Rs.11,03,634/- on account of appreciation as he had opted for refund. 6. Aggrieved by the above Order, the present Appeal has been filed by the Opposite Party against the Respondents/ Complainant’s Legal Heirs before this Commission. It has been contended by the Appellant that the Respondents/ Complainant’s Legal Heirs had filed an Application dated 23.04.2014 for their substitution before the Ld. State Commission as the original Complainant had died on 29.12.2013. The matter was listed for Final Arguments on 07.03.2017 when an adjournment was sought on behalf of the Respondents. However, the hearing continued on 07.03.2017 which was unforeseen for the Appellant due to which their main Counsel could not appear before the Ld. State Commission on 07.03.2017. The hearing in the matter before the Ld. State Commission was concluded on 07.03.2017 without hearing the arguments of the Appellant and the Order was dictated in open court on the basis of the arguments advanced by the Respondents. However, the Order dated 07.03.2017 remained unsigned for some time. Therefore the Appellants moved an Application before the Ld. State Commission on 23.03.2017 praying for rehearing of the arguments. The Application was taken up on 05.05.2017 when both the parties were heard and the Application was dismissed holding that Order XX Rules 1 and 3 of Civil Procedure Code cannot be resorted to by the Consumer Forum. 7. Heard the Ld. Counsels for Appellant and Respondents. Perused the material available on record. 8. As already noted earlier in Para 2, after the Complainant/Respondent had sought refund of the amount deposited by him vide the Email dated 1.3.2011, the Appellants/Opposite Parties had promised that the entire money would be refunded alongwith 9% interest, and had also admitted that the construction had not been started. The Complainant had made payments of a huge amount exceeding Rs. 15.00 lakhs between 26.8.2008 to 27.4.2009 on the assurance that the possession of the Flat would be delivered to him by March, 2011. But even till that time, the construction was not initiated. 9. In the meantime, on 19.6.2009, the Flat Buyer’s Agreement was executed between the parties, for which no date for delivery of possession was specified, but it was mentioned that such possession would be delivered within a period of 36 months from “the date of issuance of the Sanction Letter of the Building Plans of the Colony”, and that a further grace period of 180 days would be entitled for the Opposite Party/seller to apply for obtaining Occupation Certificate. Nevertheless, in view of the inordinate delay in the construction and obvious inability of the Appellant to deliver possession of the allotted Flat to him within the requisite time, the amount deposited by the Complainant was refunded to him by the Appellant in the last week of May, 2011, but the amount of Rs. 72,743/- was deducted therefrom. 10. When the Complainant sought refund of the said amount as well, it was denied by the Appellant vide its letter dated 20.8.2011. 11. Now, perusal of the Flat Buyer’s Agreement dated 19.6.2009, executed between the parties does not reveal any Clause which would have entitled the Seller/Appellant to make any such deduction on account of “brokerage charges” in the event of the Complainant’s amount being refunded to him. 12. Consequently, the deduction of such amount by the Appellant was patently unjustified, and the Ld. State Commission was therefore certainly correct in ordering the Appellant to refund the same. 13. However, the interest amount awarded to the Complainant @ 12% for the illegally deducted amount of Rs. 72,743/-, and for rest of the amounts refundable/refunded to the Complainant @ 18%, would certainly appear to be exorbitant in the light of the decision of the Hon’ble Supreme Court in the case of “Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, in Civil Appeal No.6044 of 2019, decided on 7.4.2022” where it was held inter alia:- “…32. We are of the opinion that for the interest payable on the amount deposited to be restitutionary and also compensatory, interest has to be paid from the date of the deposit of the amounts. The Commission in the Order impugned has granted interest from the date of last deposit. We find that this does not amount to restitution. Following the decision in DLF Homes Panchkula Pvt. Ltd. Vs. DS Dhanda and in modification of the direction issued by the Commission, we direct that the interest on the refund shall be payable from the dates of deposit. Therefore, the Appeal filed by purchaser deserves to be partly allowed. The interest shall be payable from the dates of such deposits. 33. At the same time, we are of the opinion that the interest of 9% granted by the Commission is fair and just and we find no reason to interfere in the appeal filed by the consumer for enhancement of interest……” 14. With the above observations, the Appeal is allowed in part by modifying the impugned Order passed by the Ld. State Commission. 15. The Appellant is held liable to refund the amount of Rs. 72,743/- to the Respondent/Complainant alongwith interest @ 9% p.a. from the date of its deduction, till actual payment. The interest awarded @ 18% p.a. on the rest of the amounts refunded to the Complainant is reduced to 9% p.a. Further, the Order to pay compensation for harassment, inconvenience, frustration and mental agony, etc. is set aside, but the litigation charges awarded to him are enhanced to Rs. 50,000/- instead of Rs. 20,000/- as directed by the Ld. State Commission. 16. Pending application(s), if any, also stand disposed off as having been rendered infructuous. |
