APPEARED AT THE TIME OF ARGUMENTS For the Appellants | : | Mr. Jogy Scaria, Advocate | For the Respondent | : | Mr. Kuriakose Varghese, Advocate Mr. Deepak Grover, Advocate | | | |
Pronounced on: 12th March, 2020 ORDER PER DR. S. M. KANTIKAR, PRESIDING MEMBER F.A. No. 1505 of 2017 1. Heard the learned counsel for the appellants / builder co. and the respondent / complainant. Perused the material on record. 2. The short delay of 1 day in filing the first appeal is overlooked. 3. Brief facts, shorn of unnecessary detail, are that the complainant had booked an apartment in a project of the builder co. for a total consideration of Rs. 39,12,042/-. The complainant had paid the said consideration in full. An agreement was executed between the complainant and the builder co. on 16.05.2011. The agreed date of completion was 31.08.2014. The builder co. had assured the complainant to handover possession of the subject unit within 90 days from the said date. Being aggrieved by non-delivery of possession within the assured period, the complainant filed a complaint before the State Commission. 4. The State Commission heard both sides, appraised the evidence and partly allowed the complaint vide its Order dated 08.12.2016. Paras 8 and 9 of the appraisal made by the State Commission are reproduced below for ready appreciation: 8. Relying on the above documents the counsel for the opposite parties argued that the delay is caused due to the fault on the part of piling contractor, M/s. Silpa Constructions for which opposite parties cannot be blamed. We are unable to agree. Complainant cannot be blamed for the fault of the contractor of opposite party. It is for the opposite parties to get over those hurdles and complete the construction within the stipulated period which they failed to do. Therefore there is clear deficiency of service on the part of the opposite parties. That apart, except putting some piles opposite parties have not even started the construction which is evident from the report of the commissioner Ext. C1 and the photographs produced by him. Under these circumstances complainants are entitled to refund of the amount paid by her. 9. The counsel for the opposite parties argued that complainant has booked the apartment for business purpose and that therefore she is not a consumer as defined under the Consumer Protection Act. There is no merit in the above contention. No evidence is adduced on the side of the opposite parties to show that the apartment booked by the complainant was for commercial purpose. On the other hand complainant has averred in the complaint and also in the proof affidavit that it was for the residential purpose the apartment was booked. That being so complainant has to be treated as a consumer as defined under the Consumer Protection Act, as held by the National Commission in Aliens Developers (P) Ltd. & Ors. Vs. Katakam Srinivasa Rao & Anr. 1 (2016) CPJ 286 (NC). 5. We note in particular the said extracts of the appraisal made by the State Commission (quoted in para 4 above). We find the Order of the State Commission to be well-appraised and well-reasoned, in returning its findings of deficiency in service against the builder co. and in holding the complainant to be ‘consumer’ within the meaning of Section 2(1)(d) of the Act 1986. 6. It is undisputed that an agreement was executed between the builder co. and the complainant in 2011. The full consideration amount (Rs. 39,12,042/-) was deposited by the complainant with the builder co. in 2011. The agreed date of completion of the project in question / subject flat was 31.08.2014. Another (fresh) agreement dated 21.05.2014 for ‘extension and revision of terms of the sale and construction’ was executed between the complainant and the builder co., and the date of completion of the project in question / subject flat was extended to 20.08.2017. This extended time period, too, was not adhered to by the builder co. The State Commission has inter alia recorded that “except putting some piles opposite parties have not even started the construction which is evident from the report of the commissioner”. 7. We also note that the complaint was filed with the State Commission on 08.10.2014; the decision of the State Commission was pronounced on 08.12.2016; the project in question / subject flat had not been duly and fully completed till even 29.10.2018, the date of hearing of final arguments before this Commission. 8. Unreasonable, inordinate delay in completion and offering of possession is writ large. We have no hesitation in concurring with the findings of the State Commission in respect of deficiency in service on the part of the builder co. 9. In remedy, there can be no two opinions that the amount deposited by the complainant with the builder co. is duly refunded, in full, by the builder co. to the complainant. Regarding interest on the principal amount, it is always desirable and preferable, to the extent feasible and appropriate in the facts and specificities of a case, that some objective logical criteria be identified and adopted to determine an apt rate of interest. The rate of interest cannot be arbitrary or whimsical, some reasonable and acceptable rationale has to be evident, subjectivity has to be minimised. In this case it is seen that the complete consideration (Rs. 39,12,042/-) had been duly paid by the complainant to the builder co. in 2011 for a residential unit. The rate of interest for availing house building loan provided by a bank can therefore be a logical parameter for awarding interest on the amount deposited by the complainant with the builder co. On the face of it itself, it is just and appropriate that the interest on the said principal amount should be paid from the date/s of respective deposit till the date/s of actual realization. In addition, just and reasonable compensation for the loss and injury, harassment and difficulty, uncertainty and helplessness, as also apt and reasonable cost of litigation, should also be awarded. 10. We therefore modify the Award made by the State Commission as below: (i) The builder co. shall refund the amount deposited (Rs. 39,12,042/-) by the complainant with the builder co. with interest from the respective date / s of deposit till the date / s of realization. The rate of interest shall be the rate for house building loan in the corresponding period of a scheduled nationalized bank (take, State Bank of India). If ‘floating’ / varying / different rates of interest were prescribed in the corresponding period, the higher rate shall be taken for the instant computation. (ii) In addition, compensation for the loss and injury, harassment and difficulty, uncertainty and helplessness, shall be Rs. 5,00,000/-. (iii) Cost of litigation shall be Rs. 50,000/-. (iv) All payments shall be made within four weeks of the date of pronouncement of this Order. (v) Failure or omission in timely compliance shall attract higher / penal interest and other compensation / costs (which shall be determined by this Commission in the facts and specificities of that contingency if it so arises). F.A. No. 1506 of 2017 11. Similar facts and same questions of law are involved, as in F.A. No. 1505 of 2017. 12. The F.A. No. 1506 of 2017 is disposed of in terms of the examination and reasoning made hereinabove in respect of F.A. No. 1505 of 2017. Specifically, the Award shall stand modified mutatis mutandis. F.A. No. 1505 of 2017 and No. 1506 of 2017 Both first appeals are so disposed. | 
