JUDGMENT

JUSTICE V.K.JAIN,  (ORAL)

           The complainant/respondent entered into an agreement with the petitioner on 31.07.2006, whereunder a residential flat was to be constructed and delivered to the complainant by the petitioner within a period of 18 months from the execution of the agreement.  The possession, therefore, was required to be handed over by 31.01.2008 after completing the construction of the flat.  The sale consideration for the said flat was agreed at Rs. 5,46,000/-, which was payable in the following manner:

The promoter doth hereby admit and acknowledge the receipt of Rs. 1,50,000/- (Rs. One lakh fifty thousand only) by cash.

2.      The petitioner sent a letter dated 27.09.2006 to the complainant, which to the extent it is relevant, reads as under:

“This is to bring to your kind notice that the work of Shree Yogeshwar Complex fully has completed.  So as per clause mentioned in our agreement you have to pay as the remaining accrue amount.  So, we kindly request you to permit the payment within seven days of Rs. 3,96,000.00 (Rs. Three Lac Ninety Six Thousand only).

          If you will not able to pay the due amount within 7 days you have to pay interest at 18% per annum on due amount as per clause no. 5 mentioned in the agreement which will be calculated from next 7 days of this letter or we will be entitled to revoke your booking.”

          No reply to the said letter was sent by the complainant.  However, a legal notice dated 17.05.2007 was sent by the complainant to the petitioner alleging therein that the construction had not been completed within the stipulated period of 18 months.  The said notice was sent on 10.05.2007.  However, the stipulated period of 18 months from the date of the agreement had not expired by that time since the said period was to expire only on 31.01.2008.  The complainant thereafter approached the concerned District Forum by way of a consumer complaint, seeking possession of the said flat alongwith compensation etc.

3.      The petitioner did not appear before the District Forum and remained ex-parte.  The consumer complaint having been dismissed by the District Forum, the complainant approached the concerned State Commission by way of an appeal.  Vide impugned order dated 16.04.2012, the State Commission allowed the appeal and directed as under:-

“The Respondent No. 1 is directed to hand-over the possession of a flat admeasuring 446 sq. ft. in the locality wherein the flat booked by the Appellant exists after receiving a payment of Rs. 3,96,000/- from the Appellant;

OR

To pay to the Appellant an amount of Rs. 16,98,825/- minus Rs. 3,96,000/- which comes to Rs. 13,02,825/- within a period of two months failing which the amount will carry interest @ 12% p.a. till the realization of the amount.

The Respondent No. 1 to pay costs of Rs. 25,000/- to the Appellant and bear his own costs.”

4.      Being aggrieved from the order passed by the State Commission, the petitioner is before this Commission by way of this revision petition.

5.      The learned counsel for the complainant/respondent has

drawn our attention to clause 5 of the agreement which reads as under:

“5.      The Purchaser/s shall pay to the promoter as per agreement on work-wise instalment.  If the purchaser fails to pay according to work-wise instalment due, the purchaser shall pay within one week of a Notice served individually by the Promoter.  If Purchaser committing default/in making payment on such due dates, the promoter shall grant two month’s time for clearing the arrears payment and promoter shall be entitled to receive interest @ 18% per annum for the period of two months.  If the purchaser further fails to pay the arrears of work-wise instalment within two months, the promoter shall have full right to terminate the agreement with the purchaser or/dispose off and sell the said premises to the third party, out of the sale consideration received, the builder shall deduct 10% expenses and interest @ 18% for the late payment and refund the balance sale consideration to the purchaser.”  

6.      It is evident from a perusal of the above extracted clause that in case of default on the part of the complainant in making payment in terms of the demand raised by the petitioner, it was obligatory for the petitioner to give a two months’ notice to the complainant giving him an opportunity to clear the arrears of payment alongwith interest @ 18% per annum.  No such opportunity having been given to the complainant, the alleged termination of the agreement was illegal.

7.      The next question which arises for consideration is as to what relief the complainant is entitled in the facts and circumstances of the case.  It is an admitted position before us that the flat subject matter of the agreement between the parties is no more available, the same having been sold to a third party.  The direction for giving another flat of 446 sq. feet in the locality where the flat was booked by the complainant is not practical since there is bound to be dispute between the parties as regards the locality, location and specifications of the alternative flat which the petitioner may offer to the complainant in terms of the direction given by the State Commission, in the event he is able to find such a flat.  The appropriate course of action, in our opinion, would be to compensate the complainant on the basis of the ready reckoner rate applicable on the date the consumer complaint was decided.  The State Commission after considering the ready reckoner for the year 2012 found that the market value of the flat at the time the impugned order came to be passed was Rs. 16,98,825/-.  However, since the complainant would have got the subject flat only on making payment of the balance sale consideration within the agreed time period, he must necessarily pay interest on the balance amount of Rs. 3,96,000/- to the petitioner by way of deduction not only of Rs. 3,96,000/-, but also of interest on that amount from the amount of Rs. 16,98,825/- representing the market value of the flat on the date the impugned order came to be passed by the State Commission.  In the facts and circumstances of the case, we are of the opinion that interest should be paid by the complainant @ 10% per annum w.e.f. 27.09.2006 till the date on which the impugned order came to be passed by the State Commission.

8.      For the reasons stated hereinabove, the revision petition is disposed of with the following directions:

(i)      The petitioner shall deduct the balance principal amount of Rs. 3,96,000/- alongwith simple interest on that amount @ 10% per annum w.e.f. 27.09.2006 till 16.04.2012 from the amount of Rs. 16,98,825/- and pay the balance amount to the complainant, alongwith interest @ 10% per annum w.e.f. two months from the date of the impugned order till the date of payment.