PRONOUNCED ON:__30th March 2017 ORDER PER DR. B.C. GUPTA, PRESIDING MEMBER These two appeals have been filed under section 19 read with Section 21(a)(ii) of the Consumer Protection Act, 1986 against the impugned order dated 08.04.2015, passed by the Delhi State Consumer Disputes Redressal Commission, (hereinafter referred to as “the State Commission”) in Consumer Complaint No. 156/2012, filed by the appellants Nitin Gupta & Shaweta Gupta in First Appeal No. 775/2015, against the opposite party (OP) builders Eldeco Infrastructure and Properties Ltd., who are the appellants in First Appeal No. 446/2015. As per the impugned order, the following directions were given by the State Commission to the OP builders:- “a. to refund to the complainant an amount of Rs. 66,97,096/- along with interest @ 18% p.a. from the date of deposit till the date of its realisation. b. to pay to the complainant compensation to the tune of Rs. 4 lac for harassment, mental agony, inconvenience, anguish and frustration. c. to pay to the complainant litigation charges to the tune of Rs. 2 lac.” 2. Briefly stated, the facts of the case are that the complainants Nitin Gupta and his wife Shaweta Gupta booked a flat with the OP builders, Eldeco Infrastructure and Properties Ltd., vide their application dated 26.05.2008, upon which a residential unit no. 601, 6th Floor, Type-D, Block S-6, having super area of 1955 sq. ft. was allotted to the complainants for a total consideration of Rs. 66,97,096/-. The complainants paid a booking amount of Rs. 3,65,646/- vide two receipts dated 26.05.2008. A Flat Buyers’ Agreement was executed between the parties on 10.06.2008. The complainants paid the total amount of Rs. 66,97,096/- to the OP till 13.07.2008. It is stated that the OP builders agreed to deliver the possession of the residential unit within 34 months i.e. upto May, 2011. However, finding no progress at site, the complainants sent an e-mail to them on 22.04.2011, in reply to which, the OP stated on 10.01.2012 that the possession shall be handed over to them by the last quarter of 2012. However, since the OP builders failed to deliver the said possession, the consumer complaint in question was filed, seeking directions to the OP to pay interest on the deposited amount of Rs. 66,97,096/- @ 18% per annum from June, 2011 till completion of the development works. In addition, direction was sought to the OP to pay a penalty of Rs. 5/- per sq. ft. per month from June, 2011 onwards as per the terms of the agreement. The complainants also demanded compensation of Rs. 10 lakhs for mental harassment etc. and Rs. 50,000/- as cost of litigation. In total, a total amount of Rs. 23,62,772/- was asked by the complainants vide their complaint dated 22.09.2012. The State Commission allowed the complaint and gave directions as noted earlier vide impugned order. Being aggrieved against the impugned order, the complainants as well as the OP builder have challenged the same by way of the present two appeals. In Appeal No. 446/2015, filed by the OP builders, a prayer has been made that the impugned order should be set aside, since the unit in question was ready for delivery of possession. In the appeal filed by the complainants, a prayer has been made, that a further amount of Rs. 1,85,725/- and Rs. 2,80,900/-, the total being Rs. 4,66,625/- had been deposited by them towards lease money and parking charges with the OP builders. The said amount should also be refunded to them, apart from the amount already ordered by the State Commission. 3. During arguments before us, the learned counsel for the OP builders stated that after filing of the consumer complaint in question, they had offered possession of the property to the complainants vide their letter dated 12.12.2013. The complainants had been asked to pay the balance charges and settle the dues with them before taking possession. The learned counsel stated that in the evidence affidavit also, they had mentioned that final demand notice dated 12.12.2013 had been issued to the complainants. However, on their failure to comply with the demand, the possession could not be given. 4. The learned counsel for the complainants, however, stated that the unit in question was still not ready for occupation and in fact, the completion certificate had not been obtained by the builders. There was no question of delivery of possession under such circumstances. Referring to the demand notice dated 12.12.2013 sent by the builders to them, the learned counsel argued that the OP had mentioned in the said notice that the project was ‘near completion’. In fact, they had never offered possession of the unit to them. The complainants filed an application for obtaining information about the project under the Right to Information Act, 2005 in the month of January, 2014 from the office of the New Okhla Industrial Development Authority (NOIDA). The said Authority issued letter no. 1398, dated 29.01.2014, saying that the OP builders had applied for completion/occupation certificate of tower no. 4, 5 and 6 on 21.10.2013 and the same was under process. 5. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. 6. From the facts and circumstances of the case on record, it is abundantly clear that the complainants had paid almost the entire consideration for the plot i.e. Rs. 66,97,096/- by 13.07.2008 i.e. shortly after the agreement between the parties was executed. It is evident, therefore, that they had been waiting for the possession of the property for a considerable long time. Under the terms and conditions of the agreement, the possession was to be delivered within a period of 34 months i.e. by May, 2011. However, the OP builders have not been able to deliver the possession of the property within the time agreed. The State Commission have rightly observed in the order that the sole defence taken by the OP builders was that there was a global slowdown in the market. This contention on the part of the builders cannot be given any weight, because after accepting the hard-earned money of the complainants, it was their duty to ensure that the possession of the property was delivered in time. The reasons given by the OP builders for non-delivery of the possession in time are, therefore, without any reasonable basis. 7. Similar matters have been decided by this Commission in the recent past as well. In Unitech Ltd. vs. Vivek Prakash [FA/125/2015 : decided on 13.2.2015], it was held that the grounds to support the plea of Force Majeure were fake. This Commission upheld the order passed by the State Commission, granting interest at the rate of 18% per annum from the date of deposit till realization. In “Subhash Chander Mahajan & Anr. vs. Parsvnath Developers Ltd.” [CC/144/2011 : decided on 5.5.2014], another Bench of this Commission ordered payment of interest at the rate of 18% per annum from the date of deposit till realization. In “Swarn Talwar & Ors. vs. United Ltd.” [CC No. 347/2014 decided on 14.08.2015] and allied matters, this Commission ordered payment of simple interest @18% p.a. as a comprehensive, all inclusive compensation. In “Ravi Kumar Rajoria & Anr. vs. Unitech Ltd. & Ors.” [CC No. 362/2014 decided on 25.05.2016] and allied matters, the total consideration amount deposited by the complainants was ordered to be paid back with interest @18% p.a. from the date of receipt till realisation. In addition, compensation for harassment was also awarded. In “Puneet Malhtora vs. Parsvnath Developers” [CC/232/2014 decided on 29.1.2015], this Commission ordered to refund the amount deposited by the complainant alongwith interest on that amount @18% p.a. from the date of deposit till realisation. 8. The Hon’ble Supreme Court in their landmark judgment in Ghaziabad Development Authority vs. Balbir Singh [2004 (2) CPJ 12 SC], made it clear that the quantum of interest to be allowed in a particular case was to be determined according to the facts and circumstances of each case. It was not justified to grant interest @ 18% in each and every case. However, the facts and circumstances of the present case make it clear that the OP builders have not given any plausible explanation for not following the time schedule provided in the agreement between the parties. On the other hand, the complainants parted with the entire amount of consideration at the time of entering into agreement in the year 2008. Even at the time of arguments before us, the learned counsel for the OP builders was pointedly asked, as to whether they had obtained the occupation certificate in question. However, there was no satisfactory reply coming on behalf of the OP builders in so far as the completion of the construction is concerned. The OP builders have mainly relied on the document dated 12.12.2013 vide which, a demand notice was sent to the complainants. However, the said document also mentions that the construction work was ‘near completion’, meaning thereby that the flat was still lying incomplete. The direction given by the State Commission in the impugned order, by which the money deposited by the complainants has been ordered to be refunded to them alongwith interest @ 18% per annum, is therefore, based on a correct appreciation of the merits of the case. It is held, therefore, that there is no illegality, irregularity or jurisdictional error in the said order of the State Commission in so far as the directions given to the OP builders are concerned. The appeal filed by the OP builders i.e. First Appeal No. 446/2015 is, therefore, ordered to be dismissed. The complainants have mentioned in their First Appeal No. 775/2015 that they had deposited an additional amount of Rs. 4,66,625/- with the OPs towards lease money and parking charges. The said amount is also directed to be returned to the complainants alongwith interest @ 18% per annum from the date of deposit till realization. The First Appeal No. 775/2015 filed by the complainants is, therefore, allowed and the order of the State Commission is ordered to be modified to that extent. There shall be no order as to costs. |
