Chandigarh

StateCommission

A/340/2023

BISHAKHA CHAKRABORTY - Complainant(s)

Versus

BAJWA DEVELOPERS LIMITED - Opp.Party(s)

VIPIN KUMAR

04 Apr 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Appeal No.	:	340 of 2023
Date of Institution	:	20.11.2023
Date of Decision	:	04.04.2024

1. Bishakha Chakraborty w/o Dhruv  Chakraborty,
2. Dhruv Chakraborty s/o Sh.Dilip Chakraborty,

Both are resident of House No.3183, Sector   47-D, Chandigarh

……Appellants/Complainants

V e r s u s

1. Bajwa Developer Limited, Regd. Office SCO 17-18, Sunny Enclave, Desu Majra, Kharar, District SAS Nagar, Mohali Punjab.
2. Jarnail Singh Bajwa Director, Bajwa Developer Limited, Regd. Office SCO 17-18, Sunny Enclave, Desu Maja, Kharar, District SAS Nagar, Mohali Punjab

…..Respondents/opposite parties

 

BEFORE:    JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                   MR.RAJESH K. ARYA, MEMBER

                            

Present:-    Sh.Vipin Kumar, Advocate for the appellants.

Respondents exparte vide order dated 26.02.2024.

 

PER JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   The complainants (appellants in this appeal) by way of filing this appeal are seeking enhancement of the relief already awarded to them, vide order dated 08.11.2023 passed by the District Consumer Disputes Redressal Commission-II, U.T., Chandigarh (in short the District Commission), in consumer complaint bearing no.432 of 2021. Following relief has already been granted by the District Commission while allowing the said consumer complaint:-

“… Taking into consideration the above discussion and findings, we are of the considered view that the Opposite Parties No.1 to 3 are found deficient in rendering proper service to the complainant and having indulged in unfair trade practice. Hence, the present complaint of the Complainant deserves to succeed against the Opposite Parties No.1 & 2. Accordingly, the present complaint stands allowed against the OPs No.1 & 2 with following directions:-

1. To deliver the actual physical possession of the flat/dwelling unit in question to the complainants, having all basic facilities & amenities, subject to balance payment, if any, and other charges agreed upon by the parties as per their agreement   (Ann.C-1).
2. To pay lumpsum amount of Rs.50,000/- to the complainants towards compensation for causing mental agony and harassment due to their deficient act as well as litigation cost.

This order shall be complied with by the Opposite Parties No.1 & 2 jointly & severally, within a period of 90 days from the date of receipt of its certified copy…”         

Factual scenario:-

2.           Before the District Commission it was the case of the complainants that they booked a 3 BKH Flat in the project of the opposite parties launched by them under the name and style- Sunny Heights, situated at Sector 125, Mohali against total consideration of Rs.37 lacs. They were allotted unit No.3312 on 3^rd floor in the said project. Buyer’s Agreement in respect of the said unit was entered into between the parties, on 4.3.2016 by which date the complainants have paid Rs.18,80,000/- to the opposite parties. It was stated that the complainants made further payment of Rs.1,00,000/- on 7.3.2016 to the opposite parties. Thereafter, a Tripartite Agreement dated 14.3.2016 with BSP @Rs.26,20,000/- was entered between the complainants, opposite parties and HDFC bank. On 28.3.2016 an amount of Rs.6,55,000/- and on 23.9.2016 an amount of Rs.3,93,000/- was paid by the complainants to the opposite parties, through HDFC Bank. In this manner, total amount of Rs.30,28,000/- stood paid to the opposite parties. As per Buyer’s Agreement, the construction of the unit was to be completed within 24 months from the date of agreement i.e. on 04.03.2018 but the opposite parties failed to deliver the possession after completing the construction.  The complainants approached the opposite parties number of times to get the possession but they failed to do so  and ultimately showed their inability. Hence, consumer complaint was filed before the District Commission seeking possession of the unit in question alongwith compensation etc.

 

Written reply filed by opposite parties:-

3.           The opposite parties contested the complaint and filed written reply wherein, while admitting the factual matrix of the case, it was stated that the complainants had paid Rs.30,28,000/- out of Rs.37,00,000/- and have not made the payments within stipulated period.  It was denied that as per Buyers Agreement the construction of the flat was to be completed within a period of 24 months from the date of agreement.  It was submitted that the opposite parties have informed the complainants that the possession will be given after payment of entire amount of the flat.  Denying all other allegations of the complainants and pleading no deficiency in service, the OPs have prayed for dismissal of the complaint.

 

Evidence filed by the parties

4.           The contesting parties led evidence by way of affidavits and numerous documents before the District Commission.

 

Decision of the District Commission:-

5.           The District Commission after hearing the contesting parties and on going through the material available on record, allowed the consumer complaint, in the manner stated above.
6.           Hence this appeal has been filed by the appellants/complainants seeking enhancement of the relief already granted by the District Commission.
7.           Record of the District Commission has been requisitioned.
8.           Despite service, none put in appearance on behalf of the respondents, as  a result whereof, they were proceeded against exparte, vide order dated 26.02.2024.
9.           We have heard the counsel for the appellants and have scanned the entire record of this case.

Submissions of the appellants:-  

10.           During arguments, counsel for the appellants/complainants vehemently contended that though the District Commission allowed the consumer complaint, yet, it fell into a grave error by not awarding  compensation by way of interest on the deposited amount, for the period of delay in delivery of possession of the flat in question.  

Observations and findings of this Commission:-

11.           The short question which needs to be decided in this appeal is, as to whether, the appellants are entitled for compensation by way of interest on the deposited amount, for the period of delay in delivery of possession of the unit in question or not?  Before, answering this question, it is significant to mention here that the respondents/opposite parties have not challenged the order impugned. Perusal of contents of the order impugned reveal that the District Commission has clearly held in para no.7, 8  and 10 that  the opposite parties have failed to fulfill its contractual obligation by offering possession of the Unit/flat to the complainants, having all basic amenities, within the stipulated time or within a reasonable time, which amounts to deficiency in service as well as unfair trade practice on their part.
12.           However, at the same time, we are surprised to note that it has been also held by the District Commission that since the complainants have not paid the complete/full amount to the opposite parties, so they are not entitled to get interest on the partial amount paid in respect of the flat in question.  In our considered opinion, the District Commission has failed to notice that  despite the fact that the appellants had already paid substantial amount of Rs.30.28 lacs against total sale consideration of Rs.37 lacs, yet, the respondents/opposite parties neither placed on record any evidence to prove that they have raised the construction of the flats at the project site and have completed the same or that they have applied for occupation and completion certificates, so that possession of the flats can be offered and  delivered to the complainants. In their complaint, it was the definite case of the complainants that the opposite parties delayed the construction work and ultimately showed their inability to hand over possession of the unit in question. Under those circumstances, if the complainants hold the remaining amount of sale consideration to the extent of around 20% only, they cannot be said to be at fault, because they were legally right in doing so, in view of  principle of law laid down by the Hon’ble Supreme Court of India in Haryana Urban Development Authority Vs. Mrs. Raj Mehta, Appeal (Civil) 5882 of 2002, decided on 24.09.2004, wherein it was held that if the builder is at fault in not delivering possession of the units/plots by the stipulated date, it cannot expect the allottee(s) to go on paying installments to it. Similar view had also been taken by the Hon’ble National Commission in Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), wherein it was held that when development work was not carried out at the site, the payment of further installments was rightly stopped by the purchaser. However, the District Commission fell into a grave error while holding to the contrary, thereby depriving the complainants of compensation amount for the period of delay in delivery of possession.
13.           Thus, in our considered opinion, by not delivering possession of the unit in question by the promised date or even thereafter, the respondents/opposite parties are deficient in providing service and guilty of adoption of unfair trade practice. In DLF Homes Panchkula Pvt. Ltd. Versus Himanshu Arora, Civil  Appeal  No.11097 of 2018, decided on 19 November, 2018 under similar circumstances, the Hon’ble Supreme Court of India has upheld the order of the Hon’ble National Commission awarding interest @9% p.a. for the period of delay in delivery of possession of the units. Relevant part of the said order is reproduced hereunder:-

“……8. Having regard to the above submission, we indicated to the learned Counsel appearing on behalf of the flat purchasers that it would be appropriate if the interest as ordered by NCDRC at 9% per annum is made payable over the period which was determined by the Order of the SCDRC. There is no objection by the flat purchasers to the aforesaid modification being made. Even otherwise, we are of the view that such a modification would be required in the interests of justice since it was the appellants who had questioned the Order of the SCDRC before the NCDRC.

9. In the above facts and circumstances, we confirm the direction of the NCDRC that the appellants shall pay interest @ 9 per cent per annum. However, the period over which interest shall be payable will be in conformity with the Order passed by the SCDRC….”

Thereafter also, irrespective of what was mentioned in the agreements, similar rate of interest i.e. 9% p.a. was granted by the Hon’ble Supreme Court in DLF Homes Panchkula (P) Ltd. Versus Sushila Devi, Civil Appeal Nos.2285-2330 of 2019, decided on 26 February, 2019,  by making reference to the earlier order passed by it in Himanshu Arora’s case (supra).

                   In Nagesh Maruti Utekar Vs. Sunstone Developers Joint Venture, Consumer Case No. 12 of 2017, decided on 04 May 2022 also, the Hon’ble National Commission awarded interest @9% p.a. from the committed date of delivery till possession is delivered. Relevant part of the said order is reproduced hereunder:-

“……Consequently, the Opposite Party Developer is directed to pay interest @9% w.e.f. 31.03.2014, i.e., the expected date of delivery of the possession, on the amount deposited by the respective Complainant till 02.09.2017, i.e., the date on which the possession of the Flat was offered by the Opposite Party Developer, within two months from today.  The Opposite Party Developer shall also pay cost of ₹25,000/- to the Complainants in each case.   Since we have awarded delay compensation till the date of offer of possession instead of actual physical possession of the Flat, the Opposite Party Developer shall not be entitled for any delay interest from the date of offer of possession till the date of payment made by the Complainant for taking physical possession of the Flat.…..”

In Shreya Kumar & 11 Ors. Vs. M/s. Ansal Housing & Construction Ltd. & 3 Ors., Consumer Case No. 1021 of 2017, decided on 05 May 2022, the Larger Bench of the Hon’ble National Commission has awarded interest @9% p.a. from the committed date of delivery till possession is delivered. In Basanta Kumar Nandy & 14 Ors.  Versus Dreamz Infra India Ltd. (Formerly Known As Dreamz Infra India Pvt. Ltd.), Consumer Case No. 2749 OF 2017, decided on 27.06.2022 also, the Hon’ble National Commission awarded interest @9% p.a. from the committed date of delivery till possession is delivered. As such, in our considered opinion, in the present case, if we grant interest @9% p.a. to the complainants on the entire amount deposited by them, from the due date of possession onwards, till delivery of actual possession thereof, that will meet the ends of justice.

14.           Keeping in view the above discussion, this appeal stands partly allowed. The impugned order passed by the District Commission is modified and the respondents/opposite parties, jointly and severally, are directed as under:-
    1. To deliver actual physical possession of the unit in question to the appellants/complainants complete in all respects, after obtaining occupation and completion certificates from the competent authorities, within a period of 03 months (three months) from the date of receipt of a certified copy of this order.

However, it is made clear that the demand of remaining amount due from the complainants, without raising any delayed interest, shall be raised by the opposite parties only on receipt of occupation and completion certificates  from the competent authorities and the complainants shall be liable to pay the same, on the day of delivery of possession of the unit in question by the opposite parties.

1. to pay compensation by way of interest on the entire amount already paid by the appellants/ complainants from the due date of possession i.e. 04.03.2018 till 30.04.2024, in one go, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount for the said period i.e. from i.e. 04.03.2018 till 30.04.2024 shall carry penal interest @9% p.a. from the date of default till this entire accumulated amount is paid to the appellants/complainants.
2. To pay to the appellants/complainants, compensation by way of interest on the entire amount already paid by the appellants/ complainants w.e.f. 01.05.2024 onwards (per month), by the 10^th of the following month till actual delivery of physical possession of the unit, complete in all respects, as ordered in sub-para no.(i) above. 
3. To pay lumpsum amount of Rs.50,000/- as compensation for causing mental agony and harassment and also litigation expenses, as awarded by the District Commission, within a period of 30 days from the date of receipt of a certified copy of this order, failing which, this amount of compensation and cost shall carry interest @9% p.a. from the date of default, till realization.

15.           Certified copies of this order be sent to the parties, free of charge, forthwith, and one copy be placed in the District Commission file.
16.           The concerned file be consigned to Record Room, after completion and record of the District Commission be sent back immediately.

Pronounced

04.04.2024

 

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

(RAJESH K. ARYA)

MEMBER

Rg