1.      Heard Ms. Kanika Agnihotri, Advocate, for the appellant and Mr. Brij Bhushan (in person) husband and Authorized Representative of the respondent.

2.      This appeal has been filed against the order of State Consumer Disputes Redressal Commission, Haryana, Panchkula dated 02.07.2019 passed in Complaint Case No.501 of 2018, Durga Sharma Vs. M/s. TDI Infrastructure Ltd., whereby the complaint was partly allowed and the appellant was directed to refund Rs.2782718/- along with interest @12% per annum from the date of respective deposits till realization. The complainant was also awarded Rs.51000/- as the compensation for mental agony and physical harassment and Rs.21000/- as litigation charges. It has further been directed that in case the amount is not refunded within the period of three months then the interest would be @18% per annum.

3.      The office has reported that the appeal has been filed with delay of 580 days. The appellant has filed IA/12146/2021, an application for condonation of delay in which, it has been stated that the appellant did not receive any notice of the complaint being instituted in the State Commission. The appellant was made aware of the impugned order and execution proceedings pending before the State Commission by way of execution application. After gaining knowledge of the execution application pending before State Commission by the end of January, 2020, the officers of the Company applied for a certified copy of the impugned order and had to wait for it. Thereafter the appellant company started to prepare for filing of appeal and could not prepare the appeal as the office of the Company was shut because of various lockdown measures, imposed by the Government due to the spread of Covid-19. The appeal was filed on 03.03.2021. Cause shown is sufficient. The delay in filing of the appeal is condoned.

4.      The facts as stated in the complaint and emerged from the documents filed along with appeal are as follows:

(a) M/s. TDI Infrastructure Ltd. (Appellant) (hereinafter referred to as the builder) is a company engaged in the business of construction and development of residential and commercial buildings and selling its unit to the prospective buyers. The builder launched a Group Housing Scheme in the name of Espania Floors at Kamaspur, district Sonipat, Haryana, in the year 2011. The complainant applied for a 3BHK floor on 04.07.2011 and was allotted Floor No.EF-32/GF (built up area 1224 sq.ft., basic sale price Rs.2600000/- and total sale price Rs.2919708/-. The builder prescribed two modes of payment i.e. ‘down payment plan’ and ‘construction linked payment plan’. The complainant opted for ‘construction link payment plan’. The complainant gave a cheque of Rs.190000/- on 04.07.2011. Thereafter, as per demand the complainant deposited Rs.210000/- on 13.07.2011, Rs.400000/- on 19.10.2011, Rs.310024/- on 01.03.2012, Rs.280000/- on 09.06.2012, Rs.280000/- on 08.10.2012, Rs.270216/- on 12.12.2012, Rs.274766/- on 27.06.2013, Rs.37779/- on 21.12.2013, Rs.250000/- on 21.12.2013, Rs.268033/- on 30.12.2016 (total Rs.2782718/-). These deposits are verified from the statement of accounts as maintained by the appellant (Annexure-5) to the appeal.  At the time of allotment, the complainant was given undertaking that the possession over the constructed floor would be delivered within 30 months from the date of Floor Buyer’s Agreement. However, the Floor Buyer’s Agreement was executed on 14.5.2015. Almost entire sale consideration (except last installment, which was payable at the time of possession) was taken from the complainant upto December, 2016, but the construction was neither raised nor possession was delivered to the complainant within the period of 30 months, which expired on 13.11.2017 even from the date of execution Floor Buyer’s Agreement. When the complainant enquired in August, 2018 about the construction on the spot, he found that the construction on the site was very slow and will take much more time. The complainant, therefore, asked the appellant to refund the entire money as deposited by him, but the appellant was not ready to settle the dispute then this Complaint was filed on 18.08.2018.  

5.      The State Commission in the impugned order found that notices issued to the appellant was refused as such service of the notices of the complaint was presumed. The State Commission proceeded ex-parte against the appellant by order dated 18.01.2019 and recorded evidence of the complainant ex-parte and thereafter heard the matter and by the impugned order dated 02.07.2019 found that as per Floor Buyer’s Agreement dated 14.05.2015, the possession had to be delivered on or before 13.11.2017, but the project was incomplete.  The complainant cannot be compelled to wait for unlimited period.  On these findings, the complaint was allowed and order as stated above was passed.

6.      We have considered the arguments of the counsel for the parties and examined the record. So far as the argument, that the order of State Commission is ex-parte and has been passed in violation of principle of natural justice is concerned, the State Commission in the impugned order has recorded a finding that the appellant has refused the notices of the complaint sent by the State Commission. This finding has not been challenged or has been stated to be incorrect. The notice was delivered to the appellant, which was refused. The principle of natural justice has been complied with and the order cannot be set aside on this ground. 

7.      The appellant has filed the statement of account relating to the complainant as Annexure-5 to the appeal. A perusal of the statement of account shows that the complainant has deposited an amount of Rs.2782718/- in between 04.07.2011 to 30.12.2016. Thus, the payment of all the instalments (except last instalment payable at the time of possession) has been realised by the appellant upto December, 2016. The State Commission has recorded a finding that the construction was incomplete. Although the order of the State Commission was passed on 02.07.2019, but even today appellant has not challenged this finding or produce any ‘Occupation Certificate’ relating to the building in question. According to the Floor Buyer’s Agreement, possession has to be delivered on or before 13.11.2017 Till today the appellant is not in a position to deliver the possession.  Supreme Court in Fortune Infrastructure Vs. Trevor D’ Limba, (2018) 5 SCC 442, Pioneer Urban Land & Infrastructure Ltd. Vs. Govind Raghavan, (2019) 5 SCC 725, Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 (6) SCALE 462 and Wg.Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512, held that the buyer cannot be made to wait for possession for unlimited period. In the circumstances, the direction of the State Commission to refund the money realize from the complainant does not suffer from any illegality.

8.      The point relating to grant of interest has been seriously contested by the counsel for the appellant. The State Commission has awarded interest @12% per annum. Supreme Court in Kolkata West International Pvt. Ltd. Vs. Deashish Rudra, II (2019) CPJ 29 (SC), Arifur Rehman Khan (Wg.Comdr.) Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512 and Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241, after taking notice of market rate has held that interest in the cases of refund from the builder would be 9% per annum In view of the judgement of Supreme Court, the appellant is liable to pay interest on the amount of refund @9% per annum.

ORDER

          In view of aforesaid discussions, the First Appeal is partly allowed and order of State Commission dated 02.07.2019 passed in Complaint Case No.501 of 2018, Durga Sharma Vs. M/s. TDI Infrastructure Ltd. is modified to the extent that the appellant shall pay interest @9% per annum on the amount deposited by the complainant from the date of respective deposits till its actual payment. The remaining order is affirmed.