JUSTICE V.K.JAIN (ORAL)

          The complainant booked a residential flat with the appellant in a project namely SBP Housing Park, which the appellant was to develop in Mohali. Flat number 265, in tower number 6 was allotted to the compliment for a total consideration of Rs.18,25,000/-. The possession, as per clause 4(a)(i) of the Buyer’s Agreement executed between the parties, was to be delivered by 30.06.2015 though a grace period of 6 months was also available to the appellant for the aforesaid purpose. The possession having not been delivered to him despite they having paid Rs.17,02,197/- the complainants approached the concerned State Commission by way of a consumer complaint, seeking refund of the amount which they had paid to the appellant along with compensation etc.

2.      The complaint was resisted by the appellant  who admitted the payment received from the complainants. It was inter alia stated in the written version filed by appellant that the completion certificate had been obtained by them from the concerned authorities. A copy of the said completion certificate was filed before the state Commission.

3.      Vide impugned order dated 25.02.2019 the State Commission directed as under:-

“i. OPs are directed to deliver the possession of the allotted flat complete in all respects to complainant accompanied with completion certificate issued by competent authority within a period of two months from the date of receipt of copy of this order and complainant shall deposit the balance due amount, if any within a period of one month from the date of receipt of copy of this order with OPs. In the event of default of OPs to deliver the complete possession of the flat to complainants, the complainants shall be entitled to refund of the entire deposited amounts with interest @ 12% per annum from the date of their respective deposits till actual payment.

ii The complainants are also held entitled to recover the interest from OPs @ 12% per annum on the deposited amount from the date of last payment of installments i.e. 31.05.2017 till actual date of delivery of possession by OPs to them, only in case OPs delivered the possession complete in all forms and also execute the conveyance deed in favour of complainants.

 iii The opposite parties are further directed to pay Rs.75,000/- as compensation for mental harassment to complainants and Rs.25,000/- as costs of litigation.

4.      Being aggrieved from the order passed by the State Commission the appellant is before this Commission by way of this appeal.

5.      As noted earlier, as the possession of the allotted flat ought to have been delivered latest by 30.12. 2015 even after giving benefit of the grace period of 6 months to the appellant. The partial cccupancy certificate was issued to the appellant on 28.07.2017. The said partial occupancy certificate was issued subject to the appellant arranging the following certificates and submitting the same to Municipal Council Derabassi within one month of the issuance of the partial occupancy certificate dated 28.07.2017:-

 “1. Fire safety Certificate.

2. NOC from Punjab Pollution Control Board, Zonal Office-1, Patiala.

3. Structure Safety Certificate as per the norms of the Government.”

6.      The learned counsel for the appellant submits that the fire occupancy certificate had been obtained even after before issuance of the partial completion certificate though it was got renewed on 09.10.2018 and 24.11.2018. As noted earlier one of the conditions of the partial occupancy certificate dated 28.07.2017 was that the appellant would submit within one month the fire safety certificate, NoC from Punjab Pollution Control Board and structure safety certificate as per the norms of the government. There is no evidence or even allegation of the fire safety certificate having been submitted in terms of the conditions imposed in the partial occupancy certificate dated  28.072017.

7.      Besides the fire safety certificate appellant was required to obtain NoC  from  Punjab Pollution Control Board and submit the same to the corporation within one month of the issuance of the partial occupancy certificate. There is no evidence of the said NoC having been submitted to the corporation. Structure safety certificate was the third document which the appellant was required to submit to the corporation within one month of the issuance of the partial occupancy certificate. There is no evidence of such a safety certificate as per the norms of the government having been submitted to the corporation. Therefore, it is evident that the conditions subject to which partial occupancy certificate was granted to the appellant on 28.07.2017 have not been fulfilled.  Therefore the appellant could not have acted upon such a partial completion certificate dated 28.07.2017 unless the time for submission of the fire safety certificate, NoC from Punjab Pollution Control Board and structure safety certificate was extended by the corporation. There is no evidence of any such extension having been granted by the corporation to the appellant. Therefore the State commission, in my opinion, was justified in directing the delivery of possession with completion certificate within 2 months and in default, refund of the amount paid by the complainant to the appellant. Since the requisite certificates in terms of the part occupancy certificate dated 20.07.2017 were not submitted by the appellant to the corporation, the appellant cannot on the strength of the said partial occupancy certificate deliver possession of the allotted flats to the complainants. Therefore, they are entitled to refund of the amount which they had paid to the appellant. However, as rightly submitted by the learned Counsel for the appellant no evidence was produced by the complainants before the State Commission to prove the actual loss suffered by them on account of the possession of the allotted flat having not been delivered to them. Hence the direction for payment of interest at the rate of 12% pa. along-with compensation quantified at Rs.75,000/- does not seem to be justified. Considering all the above facts and circumstances of the case, the appellant is directed  to refund the entire principal amount ­­­­­­­ Rs.17,02,197/-  to the complainant along with  all inclusive compensation in the form of simple interest @ 10% p.a. from the date of each payment till the date of refund. The complainant is also entitled to the cost of litigation awarded by the State Commission. Payment in terms of this order shall be made within 2 months from today. The statutory deposits be refunded to the appellant after the  complainant is paid in terms of this order.