1.      This consumer complaint under section 21(a)(i) of the Consumer Protection Act, 1986 (in short, the ‘Act’) alleges unfair trade practice and deficiency in service in delay in handing over possession of a plot booked in a project promoted and executed by the opposite party within the promised time and seeking refund of the amount deposited with compensation and other costs.

2.      The facts, according to the complainant, are that he booked a flat in a project, Purab Premium Apartments, SAS Nagar, Mohali being developed by the opposite party for his residential purpose by depositing 10% of the amount and was successful in the draw of lots on 19.03.2012. On 21.05.2012 a Letter of Intent (LoI) was issued by opposite party allotting a Type 2 flat at a sale consideration of Rs 55,00,000/- and required initial payment of 30% to be made. Complaint paid Rs 11,00,000/- by 22.06.2012 since 10% had been paid earlier. Thereafter 65% was to be paid and the final 5% at the time of possession. As per clause 3 of the LoI, possession was to be handed over within 36 months from the date of the LoI, i.e., by May 2015. In case of delay, the allottee had the right to withdraw and the opposite party undertook to refund the entire amount with 8% interest compounded annually. The complainant made the balance payment as per the schedule of the opposite party. However, in May 2015, the project was not complete, and possession was not offered. Opposite party informed the complainant on 06.09.2016 of pending dues and penal interest of Rs 4,07,280/- which was asked to be paid by 20.09.2016. The complainant paid this amount and replied on 20.09.2016 and informed the opposite party including the forwarding of the receipt. Opposite party however, issued another notice on 27.12.2016 asking for this amount to be remitted to which the complainant replied on 25.01.2017 clarifying that payment had already been made.

3.      On 09.03.2017, opposite party allotted Apartment No. 1201, Tower 4, Block D, Floor 11, Type 2 with a car park to the complainant and asked for the balance 5% to be paid in order to take possession within 30 days. Rs 2,75,000/- as balance, Rs 1,10,000/- as corpus fund and Rs 9612/- as maintenance fund for 3 months was asked to be deposited. Rs 2,28,000/- towards service tax was also learnt by the complainant to be outstanding. While the balance 5% and other dues were deposited on 31.10.2018 and 02.11.2018, complainant contested service tax in view of judgments of the High Courts of Delhi as well as Punjab & Haryana vide letter dated 12.12.2018. Through a public notice dated 15.12.2018 in a local newspaper, opposite party asked allottees to pay the necessary dues failing which allotments were liable for cancellation. The complainant wrote to the opposite party on 17.01.2019 stating that he had paid the dues.

4.      Complainant states that the apartment was not handed over to him. On the basis of an RTI application by another allottee, the complainant learnt that 480 flats were incomplete as per information dated 29.01.2019 and that only 19 of the 27 towers planned had been constructed. Underground parking was expected to be completed by June 2019. An Occupancy Certificate (OC) dated 05.07.2018 was provided. The complainant alleges that since the OC was dated July 2018, the offer of possession dated March 2017 was clearly a charade and that possession by 21.05.2015 as per LoI had not been provided. As there was a delay of over 3 years, the complainant, having lost interest in the project, sought refund of the money paid on 05.03.2019 which amounted to Rs 67,68,030/- along with interest @ 18%, the rate charged by the opposite party. It is contended that the project is still incomplete and therefore the complainant is before this Commission with the prayer to direct that:

(i)     there was deficiency in service on behalf of the opposite party;

(ii)    the opposite party refund Rs 67,68,030/- paid to the opposite party with 18% interest p.a. from the respective dates of payment till realization;

(iii)    opposite party pay the complainant compensation of Rs 10,00,000/- for mental agony and harassment;

(iv)   opposite party pay the complainant litigation expenses of Rs 1,00,000/-;

(v)    any other order deemed fit and proper be passed.

3.      Upon notice, the complaint was resisted by the opposite party by way of a reply. Preliminary objections were taken that (i) the claim for refund was untenable as the complaint was not maintainable since possession had already been offered on 09.03.2017; (ii) the right of the complainant to withdraw from the scheme was limited by Clause 3(II) of the LoI dated 21.05.2012 and the right to withdrawal was not exercised; (iii) the complainant was himself in breach of obligation regarding timely payments as per clause 2 of the LoI and there were delays in payments of instalments by him which cannot be condoned as per Clause 2.3 (II) beyond 12 months; (iv) complainant’s refusal to take possession within 30 days makes him liable under Clause 7(II) of the LoI for forfeiture of the earnest money deposited since the offer of possession was on an ‘as is, where is’ basis and complainant is not entitled to make any claim as to lack of facilities; (v) the claim is barred by limitation under section 24A of the Act as the cause of action arose on 20.05.2015 and the complaint was filed well beyond the two years stipulated; (vi) this Commission lacks jurisdiction since the terms and conditions of allotment in clause 5(I) state that the allotment will be governed by the Punjab Regional & Town Planning & Development Act, 1995; (vii) the opposite party is entitled to deduct 10% earnest money under Clause 5(II) of the LoI; (viii) the complainant was not a ‘consumer’ under section 2(d) of the Act having purchased it for investment purposes; (ix) there was no deficiency in services or unfair trade practice since the complainant failed to take over possession within 30 days of offer dated 09.03.2017. 

4.      Parties led their evidence and filed rejoinder, affidavit, and evidence as well as short synopsis of arguments. I have heard the learned counsel for the parties and carefully considered the material on record.

5.      Learned counsel for the complainant argued that the claim for refund was justified in view of the inordinate delay in handing over of possession of the flat in light of the Hon’ble Supreme Court's judgment in Pioneer Urban land and Infrastructure Ltd. Vs. Govindan Raghavan, (2019) 5 SCC 725 in Civil Appeal no. 12238 of 2018 decided on 02.04.2019 that an allottee as a consumer is entitled to seek refund of the money paid by him to the opposite party/builder in case of inordinate delay on the part of the opposite party to hand over possession. It was argued that the opposite party’s reliance on Clause 2.3(II) is erroneous since it itself published a public notice extending this period in a newspaper. The argument of the opposite party that the complaint was barred by limitation was not tenable since possession was offered in 2017 and payments accepted in 2018. There was a continuous cause of action according to the complainant and complaint was filed in time in March 2019. The entitlement to deduct 10% earnest money and to cancel the allotment is challenged on the ground that the opposite party accepted the interest on the delayed payment and reliance on section 45(3) of the Punjab Regional & Town Planning Development Act, 1995 is argued to be meritless since the condition of a notice by the Estate Officer to the allottee had not been met. The complainant is argued to be a ‘consumer’ under the Act in terms of this Commission’s order in Kavita Ahuja Vs. Shipra Estate Ltd. & Jai Krishna Estate Developers Pvt. Ltd. in CC 137 of 2010 dated 12.02.2015 as no evidence is brought on record that the flat was purchased for trading or a ‘commercial purpose’. Finally, reliance is placed on this Commission’s order in GMADA Vs. Anupam Garg, First Appeal No. 1852 of 2018 dated 01.04.2019 that upheld the prayer for refund with 8% interest compounded annually along with future interest and Rs 5 lakhs for mental agony.

6.      Per contra, learned counsel for the opposite parties denied the averments of the complainant while admitting the booking of the apartment and payments being received although with delays ranging from 8 days to 599 days from the respective due dates resulting in levy of penal interest @ 18% as on 30.06.2016 of Rs 4,07,280/-. It is contended that complainant’s claim for refund does not lie after issuance of allotment letter dated 09.03.2017 since he had duly paid the balance payment of 5% as well as the corpus towards the society’s welfare and maintenance charges. It is contended that the complainant was bound by the terms of Clause 3 (II) of the LoI as per which he was permitted to withdraw from the scheme but he had not exercised his option to do so. Having made payments without demur or protest even after the lapse of the date of delivery/handing over possession, the right to withdraw has been foregone and as per section 45 (3) of the Town Planning Act, GMADA was entitled to cancel the allotment and deduct 10% of the total consideration under the LoI. Opposite party contends that the complainant is barred by principles of estoppel. Reliance is placed on judgments of the Hon’ble Supreme Court in R.N. Gosain Vs. Yashpal Dhir, (1992) 4 SCC 683 regarding the doctrine of qui approbat non reprobate i.e. one who approbates cannot reprobate and in Krishna Bahadur Vs. Purna Theatre, (2004) 8 SCC 229 regarding waiver. It is stated that the reliance on the RTI application is misconceived and that the underground parking was complete and only marking was under progress. It was contended that the complainant was himself in breach of his obligation to make timely payments and therefore liable for forfeiture of earnest money since Clause 2.3(II) mandates that delay in payments cannot be condoned beyond 12 months. Reliance was placed on the Hon’ble Supreme Court’s judgment in Bangalore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 711 that in a self-financing scheme of construction on a no-profit basis, nonpayment or delay in payment of instalments does not entitle an allottee to compensation for deficiency in service due to delay in possession. It is also stated that the complaint is barred by limitation as the cause of action arose on 20.05.2015 when the flat was to be handed over. Lastly, the rate of interest claimed is contended to be exorbitant.

7.      From the foregoing, it is manifest that the opposite party offered possession of the flat in question on 09.03.2017 whereas it was stipulated to be handed over as per the Allotment Letter on 20.05.2015. The complainant refused to take over possession contending that the project was not complete as per information obtained under the Right to Information Act. The opposite party has taken the position that this contention was ‘mischievous’ and only averred that the basement parking markings were pending. It is also evident that there was a dispute between the parties regarding the payment of service tax of Rs.2,28,000/-. However, none of the parties pressed this issue during final arguments although the opposite party contended that the complainant had been a defaulter and therefore liable for cancellation of allotment with forfeiture of earnest money.

8.      The preliminary contentions of the opposite party have been considered. The contention that the complainant is not a ‘consumer’ but an investor has not been supported by any evidence by the opposite party on whom the onus lies, in terms of Kavita Ahuja (supra). As regards the issue of limitation, the argument of the opposite party is not sustainable as it admittedly offered possession on 09.03.2017 and also accepted delayed payment in 2018. Having accepted delayed payments with penal interest, it is also now not open for the opposite party to contend that the complainant is a ‘defaulter’ as held by this Commission in Ankur Goswami Vs. Supertech Ltd. & Anr., 2017 SCC OnLine NCDRC 1240. Insofar as jurisdiction of this Commission is concerned, the Hon’ble Supreme Court in M/s Imperia Structures Ltd. Vs. Anil Patni & Anr. (2020) 10 SCC 783 held that remedies under the Consumer Protection Act were in addition to the remedies available under special statutes; hence, this objection does not sustain.  

9.      Admittedly, there is a delay of nearly 22 months in the offer of possession by the opposite party. The Hon’ble Supreme Court has laid down in Pioneer Urban Land and Infrastructure Ltd. Vs. Geetu Gidwani Verma & Anr., Civil Appeal No. 12238 of 2018 with No. 1677 of 2019 dated 02.04.2019 and in Pioneer Urban land and Infrastructure Ltd., vs Govindan Raghavan in Civil Appeal no. 12238 of 2018 decided on 02.04.2019 (2019) 5 SCC 725 that a buyer cannot be compelled to take possession of a flat when there is delay in delivery of possession by the builder and the buyer is obliged to refund along with compensation or interest for such delay. It has also laid down in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, Civil Appeal No. 3182 of 2019 decided on 25.03.2019 the right of the consumer to seek refund in view of the inordinate delay on the part of the opposite party. The seeking of refund with reasonable interest therefore is the right of the complainant in view of the delay on part of the opposite party which constitutes deficiency in service and an infair trade practice.  

10.    Compensation for the delay has been considered in a catena of judgments by the Hon’ble Supreme Court and this Commission, based on the facts of each case. In Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, C.A. No. 6044 of 2019 decided on 07.04.2022 the Hon’ble Supreme Court has held the compensation by way of interest has to be both compensatory as well as restitutionary and held that interest @ 9% would be fair and just. Compensation on the same lines is considered to be appropriate in this matter also since the offer of possession has been made by the opposite party although it is contended by the complainant to be an offer of an incomplete project.

11.    In view of the foregoing discussion and in the facts and circumstances of this case, the complaint is found to have merits and is liable to succeed. It is accordingly partly allowed with the following direction:

(i)     opposite party is directed to refund Rs.67,68,030/- received from the complainant in full with compensation in the form of interest @ 9% per annum from the respective dates of deposit;

(ii)    this order shall be complied within 2 months from the date of this order failing which the applicable rate of interest shall be 12%;

(iii)    opposite party shall also pay the complainant litigation cost of Rs 50,000/-.

Any pending Ias stand disposed of with this order.