For the Appellant Mr J P Sharma, Advocate For the Respondent NONE ORDER PER SUBHASH CHANDRA 1. This appeal under Section 51 of the Consumer Protection Act, 2019 (in short, the “Act”) is directed against the order dated 11.11.2022 of the Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal in Complaint no. 61 of 2018 allowing the complaint alleging deficiency in service in delay in delivery of possession of flat and directing the opposite party (appellant herein) to repay the complainant (respondent herein) Rs 23,30,128/- in respect of flat booked by him with interest @ 10% from the dates of payment along with compensation of Rs 1,00,000/- for mental agony within two months failing which with interest @ 10% and costs of Rs 5,000/-. 2. We have heard the learned counsel for the parties and perused the records. The delay of 88 days in the filing of the appeal was considered in light of the application seeking condonation of the delay. For the reasons stated therein, the delay was condoned in the interest of justice. 3. The relevant facts of the case, in brief, are that the appellant had promoted a scheme of residential flats called Mahalaxmi Residential Campus Scheme, Pul Bogda in Bhopal in which the respondent was allotted a 2 BHK MIG flat (No. 109) based on registration application dated 05.09.2013 against payment of Rs 2,86,500/-. The project was planned to be executed on land from the Krishi Upaj Mandi Committee. As per allotment order dated 24.02.2014, flat 109 admeasuring 1468.78 sq ft super built area was allotted for which payments was required to be made in 4 instalments of Rs 4,48,824/- by 26.03.2014, Rs 8,14,268/- by 26.09.2014, Rs 7,80,536/- by 26.03.2015 and Rs 3,05,711 with interest @ 9% in case delivery period was extended beyond 3 years. The first 3 instalments including interest totalling to Rs 23,30,128/- were paid by the respondent on 20.05.2014 and 02.05.2015. Prior to the due date for the 4th instalment (26.02.2017), appellant informed allottees including the respondent vide letter dated 23.01.2017 that the 4th instalment need not be paid till further notice in view of legal issues with regard to the land raised by the Auokaf-a-Amma before the MP State Waqf Tribunal. Alleging deficiency in service due to delay in handing over possession as the project was not complete, respondent approached the State Commission seeking refund and compensation which Complaint was allowed on contest and is now impugned before us. 4. On behalf of the appellant it was argued that the State Commission had erred in not considering the fact that the delay in the project was on account of the litigation regarding the land which arose after commencement of the project and was beyond the control of the appellant. It was also contended that the appellant had deferred the payment of the 4th instalment and interest thereon beyond the three years and that the State Commission failed to appreciate the same. It was submitted that the respondent had, during the pendency of the complaint, deposited the 4th instalment along with other charges on 24.01.2022 on his own which indicated that the respondent was willing to take possession. 5. Per contra, the contention of the respondents is that the appellant’s project had been delayed beyond the period of 3 years stipulated for the handing over of possession. It was submitted that the respondent had paid the required instalments as per schedule and that in view of the delay, the refund of the amount deposited with compensation was liable to be paid to him. It was argued that the State Commission had rightly upheld his prayer. 6. From the foregoing it is manifest that the scheme for MIG residential flats undertaken by the appellant in which the respondent was an allottee has been delayed due to legal issues on account of claim on the land raised by the Auokaf-a-Amma before the MP State Waqf Tribunal after the project was commenced and was under construction. It is also evident from the letter dated 23.01.2017 that the appellant had put the payment of the 4th instalment and interest on hold till resolution of this issue. The payment of this instalment which is not denied by the respondent on 24.01.2022 is contrary to this letter. While the legal challenge to the title of the land on which the project is under execution is claimed by the appellant to constitute a force majeure circumstance which was beyond its control, in the absence of such a clause being part of the Allotment Letter which constitutes the agreement between the parties, the appellant’s reliance on this ground cannot be considered. The contention of the respondent that the project was delayed must therefore be considered to the advantage of the respondent. Accordingly, the order of the State Commission concluding deficiency in service cannot be faulted for this reason since the appellant has admitted delay in the execution of the project, as evidenced by its letter dated 23.01.2017. It has been held, in a catena of judgments, that the Hon’ble Supreme Court in a catena of judgments, notably in Fortune Infrastructure & Anr. Vs. Trevor D’Lima & Ors., (2018) 5 SCC 442 and Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, (2020) 18 SCC 613 that an allottee/consumer cannot be expected to wait indefinitely for a plot or flat. In Pioneer Urban Land and Infrastructure Ltd. Vs. Govindan Raghavan, in CA No. 12238 of 2018 decided 02.04.2019, (2019) 5 SCC 725 the Apex Court held that an allottee/consumer has the right to terminate an agreement in case the builder does not hand over possession after a reasonable period of time. Thus, while an allottee consumer can be expected to wait for a reasonable amount of time for possession to be handed over of a flat booked by him, it would not be reasonable to expect him to wait for an indeterminate period of time as is evident in the present case since no time-line has been indicated by the appellant. 7. The prayer of the respondent before the State Commission in Complaint No. 61 of 2018 was to refund the sum of Rs 23,30,128/- paid to the appellant with interest thereon @ 12% p.a. or Rs 35,00,000/- on the basis of current market value with Rs 10,00,000/- for mental agony with any other relief considered deemed fit. The relief awarded by the State Commission is that the appellant pay Rs 23,30,128/- received by it in respect of flat booked by the respondent with interest @ 10% from the respective dates of payment along with compensation of Rs 1,00,000/- for mental agony within two months, failing which, with interest @ 10%, and costs of Rs 5,000/-. 8. From the record, it is evident that the Allotment Letter dated 24.02.2014, Clause 13 provided for refund as under: 13. After allotment of property in case Pradhikaran is unable to deliver possession to the allotee due to any reason whatsoever, then Pradhikaran will refund deposited amount along with 7% interest. The respondent is therefore liable for refund in terms of this Clause in respect of the amounts deposited by him as per the schedule of payments, excluding the amount deposited by him despite directions not to do so until instructions in view of the land related matter before the MP Waqf Tribunal, since this deposit was made by him of his own volition. 9. In view of the foregoing, this first appeal is partially allowed and the directions of the State Commission modified as under: (i) Appellant is directed to refund the amount of Rs 23,30,128/- from the respective dates of deposit with interest @ 7% p.a. to the respondent within 8 weeks of the order, failing which the applicable rate of interest will be 9% p.a. till realization; (ii) Directions for compensation of Rs 1,00,000/- for mental agony awarded by the State Commission are set aside; (iii) Appellant shall also pay the respondent costs of Rs 25,000/-. 10. The appeal is disposed of with these directions. Pending IAs, if any, also stand disposed of with this order. |
