Per Justice Sham Sunder , President This appeal is directed against the order dated 4.2.2011 rendered by the District Consumer Disputes Redressal Forum-I, U.T. Chandigarh (hereinafter to be referred as the District Forum only), vide which it accepted the complaint as under ; “The complaint is allowed with a direction to the OPs to hand over physical possession of completely built up flat in question, within a period of six months from today i.e 04.02.2011, failing which, the OPs shall be liable to refund the total amount paid by the complainant, alongwith interest @ 24% p.a. from the date of respective deposits, till its realization, till the payment is actually made to the complainant. Besides handing over the possession of the said flat by the OPs, to the complainant, within six months; as per Note 3 of the payment plan, attached with the allotment letter, the OPs are also directed to pay the complainant Rs.5 per Sq.ft. per month, for the period from 28.08.2008 till the date, when the possession is actually made to the complainant. The OPs are also directed to pay to the complainant Rs.7,000/- as cost of litigation.” The complainant is also directed to pay the balance 10% of the total cost of the flat being the balance amount of the flat to the OPs simultaneously on receipt of its physical possession. 2. The facts, in brief, are that, in response to the advertisement, given by the OPs (now appellants) for allotment of residential units, the complainant (now respondent) booked an apartment. He was issued allotment letter dated 29.8.2006, according to which, the possession was to be delivered on or before 28.8.2008. He (complainant) paid an amount of Rs.50,000/- at the time of booking, and Rs.1,15,000/- on 9.10.2006. Thereafter, an ‘agreement to sell’ dated 6.11.2006 was executed by the OPs, in favour of the complainant. On the representation of the OPs, the complainant after taking loan of Rs.14,50,000/- from the Birla Home Finance Ltd., paid an amount of Rs.14,85,000/-, as per the specific payment plan mentioned in the allotment letter, but he was not given possession of the apartment. A letter dated 11.1.2010 was also written to the OPs, apprising them that the complainant had already made payment of 90% of the cost of apartment, but still possession was not delivered to him. Left with no alternative, the complainant then sought the refund of amount deposited by him alongwith interest @ 24%. The OPs replied to the letter acknowledging that the complainant was one of the few customers who had paid the instalments, as per schedule. They also stated, in the reply, that the construction was going to start soon, but nothing was done. It was further stated that the aforesaid acts of the OPs, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act,1986(hereinafter to be called as the Act only) for delivery of possession of the complete built up apartment, or refund of amount deposited by the complainant alongwith interest @ 24% p.a. ; for payment of penalty @ Rs.5 per sq.ft. per month from 28.8.2008 till the possession of the unit was handed over, or the refund of full amount alongwith interest and for payment of Rs.5 lacs as compensation for physical harassment and mental agony and indulgence into unfair trade practice, besides litigation expenses, was filed by him. 3. The OPs, in their written reply, admitted the factual matrix of the case. It was denied that the complainant made payment, as per the terms and conditions of the agreement to sell. It was stated that the complainant was supposed to pay 90% of the total amount, by 22.11.2007. However, he paid the same on 27.9.2008, only i.e. with a delay of 10 months. It was denied that the OPs stopped the construction of apartments intentionally. It was stated that the construction of apartments was delayed due to non payment of dues, by the complainant, and other customers on time; recession in the market ; and also due to non cooperation of the bank, with which, the OPs had made an arrangement for getting loan. It was further stated that the OPs were ready to pay the penalty, as per the note, appended on the payment plan till the possession of the unit/apartment was given. It was denied that the OPs were deficient, in rendering service, or indulged into unfair trade practice. The remaining allegations were denied, being wrong. 4. The parties led evidence, in support of their case. 5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the District Forum, passed the order, in the manner, referred to, in the opening para of the instant order. 6. Feeling aggrieved, the instant appeal, has been filed, by the appellants/OPs . 7. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 8. The Counsel for the appellants, submitted that the construction of residential units has not yet been abandoned, by the appellants. He further submitted that the construction of units, was in full swing, and the apartments shall be completed within no time. He further submitted that the complainant did not make payment of instalments, in time, to the extent of 90%. He further submitted that the construction of the apartments was delayed on account of recession, in the market; non payment of dues by the complainant and other customers on time ; and also due to non cooperation of the bank, with which , the OPs had made an arrangement for getting loan. He further submitted that interest @ 24% granted, by the District Forum, is highly excessive, unfair and unreasonable. He further submitted that the District Forum also fell into a grave error, in awarding interest, which constituted compensation, as also additional compensation @ Rs.5 per sq.ft. per month. He further submitted that these reliefs could not be granted, simultaneously. He further submitted that the order of the District Forum, being illegal, is liable to be set aside. 9. On the other hand, the Counsel for the respondent/complainant submitted that the OPs miserably failed to complete the construction of apartments and deliver possession thereof, on or before 28.8.2008 i.e. within 24 months from the date of allotment. He further submitted that 90% payment of the cost of apartment, by way of instalments, was made by the complainant, in time. He further submitted that since, the OPs were to charge interest @ 24% P.A., as per the terms and conditions of the agreement, in case of late payment of instalment, the District Forum was right, in granting interest at the same rate, on account of non-delivery of possession in time by the OPs, or non-refund of the amount, to the complainant. He further submitted that the District Forum was right, in granting interest, as also compensation, as both these reliefs were provided in the allotment letter/payment plan and the agreement executed between the parties. He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld. 10. After giving our thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in our considered opinion, the appeal deserves to be partly accepted, for the reasons, to be recorded hereinafter. Undisputedly, the complainant, in pursuance of the advertisement given by the OPs, for allotment of units, booked an apartment. He was issued allotment letter dated 29.8.2006 annexure C-2. There is, no dispute, about the factum, that the complainant paid a sum of Rs.14,85,000/-, by way of instalments, against the total cost of the apartment, to the tune of Rs.16,50,000/-. There is, hardly any dispute, about the factum, that till date, neither construction of the apartment has been completed, nor possession thereof, has been delivered to the complainant. The complainant even took loan from Birla Home Finance Ltd. and is paying interest to the said Company. It was, with this loan that the payment of instalments of the cost of apartment, was made by the complainant. The submission of the Counsel for the OPs, to the effect, that the construction could not be completed, due to non payment of dues by the complainant and other customers on time; recession in the market and also due to non cooperation of the bank, with which, the OPs had made an arrangement for getting loan is without any substance. This was the headache of the OPs and not of the prospective buyers of apartments, who had paid huge amounts, to them, towards the price of apartments. Annexure C-12 is the letter, which was written by the OPs, to the complainant, which clearly showed that construction of the apartments had not been completed. In this letter itself, it was stated by the OPs, that the complainant was one of their few customers, who had paid instalments, as per schedule. Under these circumstances, the submission of the Counsel for the OPs, to the effect, that the instalments were not paid by the complainant, in time, cannot be taken as correct. Since, the complainant had already made payment of 2/3rd of the total price of the apartment, and the construction of the same had not been completed, even after the expiry of the period of two years i.e. upto 28.8.2008, there was no alternative with him, than to ask for delivery of possession, or in the alternative, for refund of the amount with interest and compensation. The District Forum was, thus, right in coming to the conclusion, that there was deficiency, in rendering service, on the part of the OPs, as they failed to deliver possession of the apartment in question, to the complainant, by 28.8.2008 or even till today. The findings of the District Forum, in this regard, are affirmed. 11. The District Forum granted the refund of amount deposited by the complainant with interest @ 24% p.a., from the date of respective deposits, till realization. In our considered opinion, interest @24% p.a. was highly excessive. The District Forum was required to grant interest, at a reasonable rate. In our considered opinion, interest @ 15% p.a, if granted, shall be reasonable. The order of the District Forum, to that extent, is liable to be modified. 12. Coming to the submission of the Counsel for the appellants, that the District Forum fell into a grave error, in granting, interest, as also compensation simultaneously, it may be stated here, that the same does not appear to be correct, and, is liable to be rejected. Interest was granted by the District Forum, on the ground, that the amount of Rs.14,50,000/- was illegally and improperly withheld by the OPs, for a long time. As per note 3 of the payment plan C-1, the OPs undertook to pay the penalty to its customers @Rs.5 per sq.ft. per month for any delay in handing over of possession beyond the committed period of 24 months, from the date of allotment. This is the document, which was issued by the OPs, and they were bound by the terms and conditions thereof. Since, there was clear- cut condition in C-1 regarding the payment of compensation, the District Forum was right, in granting the same. In this view of the matter, the submission of the Counsel for the appellants/OPs, being devoid of merit, must fail, and same is rejected. 13. The Counsel for the appellants, however, placed reliance on Rajender Singh Vs Chandigarh Builders & Promoters Limited & Anr.,III(2005)CPJ 1, in support of his contention, that interest and penalty cannot be awarded simultaneously. The facts of the aforesaid case, are clearly distinguishable, from the facts of the instant case. A perusal of the facts of the aforesaid case, reveals that there was no condition, in any document, issued by the builder, that it would be liable to pay penalty/compensation for non delivery of possession of the apartment, within the stipulated period. In the instant case, as stated above, in C-1 there is note 3, which provides for the payment of penalty/compensation @ Rs.5 per sq.ft for any delay in handing over possession of the apartment, beyond the committed period of 24 months, from the date of allotment. No help, therefore, can be drawn from Rajender Singh’s case (supra) , by the Counsel for the appellants. 14. For the reasons recorded above, the appeal is partly accepted, with no order as to costs, in the following manner ; (i) the appellant/OP NO.1 shall pay interest @ 15% p.a. on the amount deposited by the complainant from the date of respective deposits, till the payment was actually made to the complainant, instead of @ 24% p.a. granted by the District Forum. (ii) In the event of delivery of possession of apartment, within the period stipulated by the District Forum, the remaining 10% balance price shall be paid by the complainant/respondent. (iii) The other reliefs granted and the directions given by the District Forum, shall remain intact. 15. Certified Copies of this order be sent to the parties, free of charge. 16. The file be consigned to record room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
