APPEARED AT THE TIME OF ARGUMENTS

PRONOUNCED ON:  16^th     DECEMBER   2016

ORDER

PER DR. B.C. GUPTA, PRESIDING MEMBER

          This first appeal has been filed under section 19 read with Section 21(a)(ii) of the Consumer Protection Act, 1986, against the impugned order dated 30.09.2016, passed by the Rajasthan State Consumer Disputes Redressal Commission, (hereinafter referred to as “the State Commission”) in Consumer Complaint No. 65/2015, filed by the present appellant, vide which, the said complaint was partly allowed and the opposite party (OP) was directed to refund the deposited amount of Rs. 6,36,721/- with interest @ 10% per annum from the date of filing the complaint and Rs. 1 lakh as compensation for mental agony and Rs. 1,000/- for litigation expenses.  The complainant has filed the present appeal, seeking enhancement of the compensation awarded to him by impugned order.

2.      The facts of the case are that the appellant/complainant booked a residential flat in the project “Mahima Nirvana”, floated by the opposite party (OP) builder, Mahima Real Estate Pvt. Ltd. at Ajmer Road, Jaipur.  The flat no. D-1001, 2 BHK, type-‘A’ with an built-up area of 1174 sq. ft. for a consideration of Rs. 32,44,800/- was allotted to the complainant by the OP.  The complainant deposited a total sum of Rs. 6,36,721/- with the OP on various dates.  An agreement for the sale of the flat was also signed between the complainant and the builder on 11.02.2014.  The complainant got loan approved from the State Bank of India and a sum of Rs. 26,80,000/- was released by the Bank to the builder’s Bank account.  The complainant was informed by the OP in January, 2015 that the flat was ready for possession.  However, the complainant asked for documents like the occupation certificate, NOC from Jaipur Development Authority (JDA) and environmental clearance etc., but as stated in the consumer complaint, the OP refused to provide those documents and also returned the Bank loan wilfully.  Alleging that the OP builder had indulged in unfair trade practice by refusing to give flat to the complainant, even after receiving the advance amount, the complainant filed the consumer complaint in question, seeking possession of the said flat or in the alternative, to refund the amount deposited by him i.e. Rs. 6,36,721/- and the interest paid to the State Bank of India, which amounted to Rs. 1,47,000/- alongwith 24% interest.  The complainant also demanded a compensation of Rs. 20 lakhs for gross negligence and mental agony on the part of the OP.

3.      The OP builder filed reply to the complaint before the State Commission, in which they stated that the complainant had himself made foreclosure of the Bank loan, following which, they had made payment of the loan amount to the Bank and as such the complainant was not a consumer of the OP anymore.  The OP admitted about booking of  flat no. 1001 by the complainant with the OP and stated that a tripartite agreement was signed between the complainant, the OP and the Bank on 11.02.2014 and the sale agreement was also signed on the same date.  The offer of possession was made on 09.01.2015 and the complainant was asked to deposit 5% remaining amount and also to repay Rs. 40,604/- as penalty interest for delay.  The agreement was, however, dismissed by the complainant himself and the EMI Bank account was closed by him on 21.04.2015.  A ‘No Dues Certificate’ was also issued by the State Bank of India on 08.06.2015.  The complainant was also asked to submit the basic documents with the OP, so that the remaining deposits of the complainant could be refunded.  The OP has sent a final opportunity letter to the complainant on 18.03.2015, in which he was requested to pay all amounts due and get registration done within seven days, or otherwise the allotment of flat would be cancelled.

4.      The State Commission, after taking into account the averments of the parties, partially allowed the complaint and directed the OPs to refund the deposited amount of Rs. 6,36,721/- alongwith interest @ 10% per annum from the date of filing of the complaint and a compensation of Rs. 1 lakh for mental agony and litigation expenses of Rs. 11,000/-.  The State Commission observed that the OP was willing to hand over the possession of the flat, because the pre-EMI interest, payable by the OP uptill handing over the possession, was their liability and that they wanted to get rid of that interest.  There was no malafide intention on the part of the complainant when he asked for completion certification from the OPs, rather the OPs had not been able to explain as to why they could not obtain the said certificate.  It was their responsibility to provide water, electricity and other basic amenities.  The State Commission reached the conclusion that the complainant could not be given possession of the said flat and hence, they ordered the refund of the deposited amount alongwith compensation as stated already.  Being aggrieved against the said order of the State Commission, the complainant is before this Commission by way of the present first appeal.  The complainant has prayed that an amount of Rs. 15,000/- of service tax and Rs. 98,227/- as interest on the sanctioned loan for 2013-2014 and Rs. 14,740/- as interest on sanctioned loan for 2014-2015 and additional charges of Rs. 8,000/- should be paid to him and in this way, a total amount of Rs. 7,72,771/- was payable to the complainant.  The appellant also demanded that alongwith enhancement of compensation, the rate of interest should be allowed at 18% per annum and litigation charges of Rs. 30,000/- should also be allowed.

5.      We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

6.      There is a delay of ten days in filing the present appeal before this Commission.  An application for condonation of delay has been filed, saying that the appellant was currently a resident of Pune and was working there for some Company.  Hence, it was difficult for him to take all necessary steps for filing the appeal within thirty days.  Considering the plea taken by the appellant in the application for condonation of delay, the said delay is ordered to be condoned.

7.      Now, referring to the demand of the appellant to include the interest paid to the Bank, the Bank charges and also service tax of Rs. 15,000/- in the refund amount, it is stated that the OP builder had informed the appellant vide letter dated 19.01.2015 that the flat was ready for occupation and that he should make payment of the balance amount and take possession.  Further, the OP told the complainant vide their letter dated 18.03.2015 that he had failed to pay the long overdue amount of Rs. 3,29,819/-.  He was asked to clear the total dues of Rs. 3,85,804/- within seven days including interest for delayed payment and holding charges within seven days of the issue of letter.  Thereafter, the OP returned the amount of loan to the Bank on 08.04.2015, after cancelling the booking of the appellant.  It is made out from these facts that the complainant failed to pay the outstanding amount due to the builder within time.  Moreover, vide impugned order, an interest @ 10% per annum has been allowed by the State Commission on the amount deposited with them and a further sum of Rs. 1 lakh as compensation for mental agony etc. and Rs. 11,000/- as litigation cost has been awarded to him.  Under these  circumstances, there does not seem to be any justification for enhancement of the said amount by including the interest amount and service tax etc. payable by the complainant.  It is held, therefore, that there is no merit in the first appeal, because the order passed by the State Commission does not suffer from any illegality, irregularity or jurisdictional error.  The said appeal is, therefore, ordered to be dismissed and the order passed by the State Commission upheld.  There shall be no order as to costs.