PER S.K. NAIK, MEMBER

            A delay of five days in filing this appeal, as reported by the Registry is condoned. 

The appellant – Delhi Development Authority  was the opposite party before the Delhi State Consumer Disputes Redressal Commission, Delhi (for short the ‘State Commission’). The respondent - Mr. Ashok Vij was the complainant whose complaint has been allowed by the State Commission vide its order dated 9.6.2004 directing the appellant/opposite party to pay interest @ 18% p.a. on the deposited amount from the date of 5^th and final demand letter till the date of actual possession.  The appellant/opposite party was also directed to pay interest @ 18% p.a. on the amount of Rs.1,01,702/-  refunded as excess charges to the respondent/complainant from the date of deposit till the date of refund on 29.10.1999 and further to pay  cost of Rs.10,000/- within 30 days of the date of receipt of its order.

          Aggrieved there upon, the appellant/opposite party has filed this appeal under Section 19 of the Consumer Protection Act., 1986.

Facts of the case in brief are that ---- the respondent/complainant was allotted a flat in Pocket – I, Block-1, Cat.-II, Duplex in Dwarka for a total estimated cost of Rs.8,30,000/- vide appellant’s letter dated 10/18.8.1994.  As directed vide the said allotment letter, the respondent/complainant paid lump sum amount of Rs.7,28,607/- by Dec., 1994.  This constituted 90% of the total cost of the flat.  When, however, there was no response to the number of letters written to the appellant with regard to handing over the possession of the flat,  a complaint was filed before the State Commission to direct the appellant/opposite party to handover possession and further pay  compound interest on the amount paid by him @ 24% p.a. from the date of payment and also to pay damages and compensation to the tune of Rs.2 lakhs.

          During the pendency of the complaint before the State Commission, the appellant on 18.3.1999 had issued a letter of possession and the possession was physically taken over by the respondent/complainant on 10.9.1999.  The appellant has also refunded a sum of Rs.1,01,702/- through a cheque dated 29.10.99 as the estimated cost of the flat had been reduced from 8,30,000/- to 6,82,100/-. This amount also included interest on account of the delay in construction of the flat. 

The State Commission thereafter proceeded to adjudicate on the remaining question of the rate of interest to be allowed on the deposits made by the respondent/complainant.  As stated earlier, the State Commission has ordered payment of interest @ 18% p.a. on not only the deposited amount but also on the amount of Rs.1,01,702/- which was refunded by the appellant on account of reduction in the estimated cost of construction as also on account of interest payable to the respondent/complainant for the delayed period of construction as per the terms and conditions.  It is this order which is under challenge before us.

          Learned counsel for the appellant has submitted that the State Commission has failed to appreciate that the terms and conditions were binding upon parties and it could not force the appellant to grant any relief in contravention of such terms and conditions.  She has drawn our attention to clause 4 of the terms and conditions which reads as under :-

“The estimated cost of the flat as given in this letter is provisional and is subject to revision on the completion of the flat.  Any price difference between the estimated cost and the cost as it works out on completion as per costing formula in vogue, would have to be paid along with the fifth and final installment.  No definite time by which the construction of the flats will be completed can be indicated at this stage.  Normally it takes 21/2 years period for completion of the project.  Sometimes, due to unforeseeable reasons completion of project may delayed.  For delay beyond 30^th month upto 36^th month till the issue of demand letter for fifth and final installment the allottee shall be paid interest @7% p.a. and beyond 36^th month interest will be paid 10% on his/her deposit.”

          These terms and conditions are binding on both the parties. In accordance therewith the appellant has paid interest @ 7% p.a. beyond the 30th month and further paid interest @ 10% beyond the 36th month until 16.11.1998 ; further, this clause does not stipulate any definite time frame within which the construction of the flat was to be completed and handed over to the allottee.  Learned counsel for the appellant, therefore, contends that the State Commission has failed to appreciate that the appellant has already allowed belated construction interest to the complainant as per terms and conditions.  Ordering payment of further interest @ 18% p.a. on the refunded amount of Rs.1,01,702/- which is not the actual amount deposited by the respondent/complainant but it includes a sum of Rs.78,861/- as interest for the belated construction would amount to unduly benefiting the respondent/complainant. The State Commission, therefore, has acted with material irregularity in allowing the interest @ 18% p.a. from the date of 5^th and final demand letter till physical possession of the flat.  

          Explaining the so-called delay, learned counsel has submitted that firstly as seen from the terms and conditions quoted above, no definite time by which the construction of the flat was to be completed could be indicated.  Secondly, it normally takes about 2 ½  years for completion of the project and which due to unforeseeable circumstances may get delayed.  It was precisely for this reason that there is the in built provision of payment of interest to the allottee  for the delayed period of construction.  In the present case, interest has been paid upto 16.11.1998 and the possession letter was given within three months i.e.  on 18.3.1999 and the same could not be termed as unreasonable delay in part of the appellant.  It is a different matter that the respondent/complainant has completed the formalities to take over the possession after a few months for which the appellant cannot be blamed.

          Finally learned counsel has relied upon the order passed by this Commission in DDA Vs. R.K.Saxena & Ors. in RP/819-851/1999, RP/2495/2004 and RP/1673/2005 in which in similar circumstances the Commission has referred to the conditions stipulated for payment of interest by the DDA for delay in completion of a project and held that award of interest @ 10% was appropriate. 

          Learned counsel for the respondent/complainant has justified the order passed by the State Commission on the ground that the appellant having received 90% of the cost of the flat in one go during the year 1994 handed over possession only during Sept.1999, after a gap of five years.  The rate of interest @ 7% that too after a period of 30 months and interest @ 10% after 36 months cannot be termed as reasonable and the appellant being a Public Authority should be  more equitable in its treatment.  The State Commission, therefore, is fully justified in awarding 18% rate of interest.

          We have heard the learned counsel for the parties and also perused the records of the case.

From the statement of account at page 31 of the paper book, it is evident that the original estimated cost of the flat has been reduced from Rs.8,30,000/- to Rs.6,82,100 and the amount deposited in excess thereof has been accounted for along with interest thereon and he has been given a refund of Rs.1,01,702/- vide cheque dated 29.10.1999.   This cheque includes interest as per clause 4 of terms and conditions till issue of demand letter for 5^th and final installment i.e. to say 16.11.1998.  The complainant shall be entitled to 10% interest on the refunded amount from date of deposit till date of refund as against 18% granted by the State Commission which is excessive.

The Apex Court in Bangalore Development Authority Vs. Syndicate Bank (2007) 6 SCC 711 has laid down that where the delay in delivering possession of the allotted plot/flat/house is for justifiable reasons, ordinarily allottee will not be entitled to any interest or compensation.  In the case before us in so far as the question of delay in handing over physical possession of the flat is concerned, it is pertinent to note that 5^th and final demand letter was issued on 16.11.1998, the possession letter was issued on 18.3.1999 and physical possession was given on 10.9.1999.  Thus, there is a delay of about  10 months in handing over physical possession from the date of 5^th and final demand letter.  The physical possession of the flat in the case  under consideration was given during the pendency of the proceeding before the District Forum on 10.9.1999.  The contention of learned counsel for the appellant before us is that there was delay on the part of the complainant in furnishing necessary documents which were given only on 10.3.1999 and the possession letter was immediately issued on 18.3.1999.  It was further contended that it would not be fair to place the entire blame on the appellant for delay in handing over possession specially when other Authorities like DVB and DJB took time to provide electricity and water connectivity. No reasons for delay in handing over of physical possession were placed before the State Commission.  It is only in the appeal filed before this Commission that the appellant has mentioned reasons for delay in giving physical possession in para 4 of the appeal.  The appellant did not even seek permission to place the said additional facts relating to delay in handing over physical possession nor any material has been placed to substantiate the said reasons except for bare averments in appeal.  The complainant would, therefore, be entitled to payment of interest @ 10% on the deposited amount from the date of 5^th and final demand letter till the date of actual physical possession.

For the aforesaid reasons, the appeal is allowed only to the extent of reduction of interest from 18% to 10% and rest of the appeal is dismissed.  In the facts and circumstances, there shall be no order as to costs.

          …………………..………J

     (R.K. BATTA)

       (PRESIDING MEMBER)

                                                                   ……………….……………

                                                        (S.K. NAIK)

                                                                            MEMBER

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