1.      Heard Mr. Chirag M. Shroff, Advocate, for the appellants and Mr. Manohar Burde, the respondent, in person.

2.      The Chief Officer, Nagpur Housing & Area Development Board and others (the opposite parties) have filed above appeal from the order of Maharashtra State Consumer Disputes Redressal Commission at Nagpur, dated 07.02.2019, passed in CC/16/52, allowing the complaint.

3.      The office has reported 1 day delay in filing the appeal. The appellants have not filed any application for condonation of delay. The delay in filing the appeal is condoned in the interest of justice.

4.      Mr. Manohar Burde (the respondent) filed CC/16/52 (i) to declare the demand notice dated 12.01.2015 issued by the appellants, demanding further amount of Rs.156832/- towards sale consideration, as an act of unfair trade practice, (ii) to direct the appellants to return the amount of Rs.156832/- with interest @15% per annum, from the date of deposit of the amount till the date of refund, (iii) to direct the appellants to pay Rs.50000/- as compensation for causing mental agony/ harassment in forcing him to pay additional amount illegally, (iv) to direct the appellants to pay Rs.20000/- as the cost of litigation.

5.      Mr. Manohar Burde (the respondent) stated that the appellants launched a group housing project of 2BHK and 3BHK in the name of “MHADA City” at Opp: Geeta Mandir, Subhash Road, Nagpur and gave advertisement in September, 2009, inviting applications from eligible persons. The respondents applied for a 3BHK flat and deposited the required money of Rs.4/- lacs on 23.09.2009. Allotment was done by lottery system, draw of which was done on 03.01.2010, in which, the respondent was allotted Flat No.-E/102, Building No.2. Remaining sale consideration was payable in eight instalments. The respondent paid Rs.4907357/- in seven instalments from 31.12.2011 to 31.03.2013. Eighth instalment of Rs.315515/- was paid on 26.08.2013. The appellants vide letter dated 26.12.2011 assured to deliver possession by June, 2013. The respondent inquired in April, 2013 about progress of the construction in the office of the appellants, then they informed that possession would be delayed for 5-6 months. Although possession was delayed but instalment of Rs.315515/- was realized on 26.08.2013. The appellants issued a letter dated 15.11.20014, to the allottees requiring them to form a Co-operative Housing Society, as per rules. The allottees in their meeting dated 13.12.2014, formed Co-operative Housing Society and elected among them one Promoter and one Chief Promoter and other office bearers and submitted all the papers for registration before Dy. Registrar, Co-operative Societies, Nagpur. Even after formation of Co-operative Housing Society, possession was not delivered. The appellant issued a fresh demand notice for Rs.156832/- on 12.01.2015 although entire sale consideration was paid. The respondent protested the demand but it was unheard. Under the threat of cancellation of allotment, the respondent deposited Rs.156832/- on 27.04.2015. The office bearers of Co-operative Housing Society also inquired for expected date of delivery of possession but no reply was given. Then this complaint was filed in 20.06.2016, claiming deficiency in service and unfair trade practice.       

6. The appellants filed their written reply in which material facts were not disputed. They stated that the respondent had his own house at Plot No.-345, Samrath Gajanan HSG Society, Dutawadi, Nagpur, as such, he was not eligible for allotment of flat in this scheme. The respondent has booked this flat for commercial purpose and was not a consumer. The complaint was barred by limitation. They stated that the construction was completed in December,2013 and the appellants applied for issue of “occupation certificate” on 16.12.2013, before Municipal Corporation, Nagpur, who required for “No Objection Certificate” from Ministry of Environment and Forest, Government of India. Due to not issuing “occupation certificate”, delivery of possession has been delayed. The cost of the flats as mentioned in the advertisement was tentative. Final sale price has to be determined after completion of the construction. On determination of final cost of the flat, fresh demand notice for Rs.156832/- on 12.01.2015 was issued. There was no illegality in it.

7.      After remand, State Commission, vide impugned judgment dated 07.02.2019, held that there was unreasonable delay in offer of possession. If the appellants were no able to obtain “occupation certificate” from the competent authority, then the respondent cannot be made to suffer. The respondent was entitled for interest @15% per annum from the date of respective deposit till the date of possession. The respondent was not entitled to claim current market value of the flat. The respondent has already deposited huge amount and was deprived from possession for a long time as such he was entitled for compensation of Rs.10/- lacs for the loss suffered by him. In case of refund, he was entitled for interest @15% per annum.  On these findings, the complaint was allowed and the appellant were directed to (i) to complete the construction of Flat No.-E/102, in Building No.2 of MHADA City Nagpur, in all respect and obtain “No Objection Certificate” within six months and shall deliver possession of the flat along with “occupation certificate” and deed of conveyance after getting balance price. (ii) to pay interest @15% per annum on the amount deposited by the respondent from 01.07.2013 till the date of delivery of possession. (iii) In the event of impossibility to obtain “occupation certificate” within six months, the respondent would be entitled to recover entire amount deposited by him along with interest @15% per annum from the date of respective deposit till the date of realization and compensation of Rs.10/- lacs. (iv) The appellants would pay Rs.100000/- for mental agony and harassment and cost of Rs.25000/-. Hence this appeal has been filed.

8.      The appellants have failed to obtained “occupation Certificate” within six months from 07.02.2019 as such they deposited about Rs.70/- lacs before State Commission in the year 2019. The respondent vide his letter dated 07.08.2019, sent to the appellants opted for (i) refund of entire amount deposited by him with interest @15% per annum from the date of respective deposit till the date of payment. (ii) to pay compensation of Rs.10/- lacs, due to failure to deliver possession and (iii) to pay Rs.100000/- as compensation for mental agony and harassment and Rs.25000/- as the cost of litigation. 

9.      We have considered the arguments of the counsel for the parties and examined the record. The respondent applied for the flat on 23.09.2009 and deposited application money of Rs.4/- lacs. The respondent was allotted flat on 03.01.2010. Thereafter, the respondent deposited Rs.4907357/- during 31.12.2011 to 31.03.2013, Rs.315515/- on 26.08.2013 and Rs.156832/- on 27.04.2015. The advertised cost of the flat has been deposited till 26.08.2013. It is alleged by the appellants that “occupation certificate” has been obtained in June, 2021, which is unreasonable delay. The respondent has now opted for refund of his money as such, he cannot be compelled to take possession, after such as long time. 

10.    Supreme Court in Banglore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 442, Fortune Infrastructure Vs. Trevor D’Lima, (2018) 5 SCC 442 and Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 SCC OnLine SC 438, held that a home buyer cannot be made to wait for possession of the flat for indefinite period.

11.    Supreme Court in Banglore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 442, held that in the matter of contractual obligation, there is scope for compensation for mental agony and harassment. In DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda, II (2019) CPJ 117 (SC) held when interest is awarded as compensation in the cases of refund of money, then awarding additional compensation was not justified. Now Supreme Court in the cases of Ireao Grace Realteck (P) Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241 and Civil appeal No.2324 of 2021 M/s. Barnala Builders and Property Consultants Vs. Lt.Col. Sameer Balodi (decided on 06.06.2021), has fixed the interest @9% per annum in the cases of refund.

ORDER

In view of the aforesaid discussions, the appeal is partly allowed. The order of State Commission dated 07.02.2019 is modified. The appellants are directed to refund entire amount deposited by the respondent with interest @9% per annum from the date of respective deposit till the date of actual payment, within a period of two months from the date of this judgment. The respondent would also be entitled for a consolidated cost of Rs.50000/-.