The above noted Revision Petitions(R.P. Nos. 861 and 862 of 2017) have been filed by the Petitioners/Complainants against the impugned orders dated 06.12.2016, passed by Delhi State Consumer Disputes Redressal Commission at New Delhi (for short, ‘State Commission’) in First Appeal Nos.124 & 125 of 2014, respectively.

          2.      These Revision Petitions (R.P. Nos.861 and 862 of 2017) have been filed by Petitioners, Mr. P.P. Gambhir and Sanjeev Kumar Gambhir, respectively against the orders dated 06.12.2017 passed in First Appeal Nos.124 and 125 of 2014 respectively. Since the facts of these Revision Petitions are similar, It is proposed to disposed of the same by a common order by taking the Revision Petition No. 861 of 2017 as a lead case.

3       Brief facts of the case as per Petitioner/Complainant  are that that he had booked a flat in a project to be developed by the Respondent/Opposite Party at Pant Nagar (Rudrapur) Uttarakhand with an approximate super area of 878 sq. ft. and while booking the flat he had adopted the instalment linked plan and had paid Rs.2,17,305/- vide cheque dated 17.08.2006 against a receipt. The Respondent confirmed the allotment of Apartment in Tower No.Volga-B-203, 2^nd Floor, Tower Volga having approximate super area of 910 sq. ft. and also annexed the payment plan and advised him to pay the next instalment of Rs.3,12,045/-. The said payment was made by the Petitioner to the Respondent by cheque dated 14.11.2006.  It was alleged that in all the petitioner had paid Rs.5,29,345/-  for the aforesaid flat, whereas total cost of the flat was Rs.15,01,500/-, which was to be paid in instalments by 17.03.2008. The Petitioner was assured that the construction had started and was to be completed by 31.03.2008 when the possession of the flat would be delivered to the Petitioner on receipt of 5% of the BSP. Subsequently, without the consent of the Petitioner, the Respondent had changed the schedule of construction and payment plan without giving any reason and sent another instalment payment plan dated 28.10.2007, whereby the Petitioner was to make first instalment by 10.11.2007 and subsequent instalment after every two months and last instalment by 10.01.2009 and the remaining 5% was to be paid on an offer of Possession. Further, the revised schedule had adversely affected the whole plan of the Petitioner and he also tried to verify the fact of commencement of construction and had come to know that the same had not yet started. The Respondent also did not give any positive response to the Petitioner when he made a request for refund of the paid amount with interest vide letter dated 24.05.2008. Reminders were also sent but with no result. The Petitioner had sent a legal notice through counsel to which a vague reply was given by the Respondent. Ultimately, the Petitioner filed a complaint before the District Forum for refund of the amount alongwith compound interest and also claimed Rs.1,50,000/- towards damages and litigation cost to the tune of Rs.50,000/-.

4.      The Respondent contested the complaint by filing the written version admitting therein that the Petitioner had booked the aforesaid flat with the Respondent and also made payment of Rs.5,29,345/-. Further, as per own case of the Petitioner, he had adopted the instalment plan and not the construction linked plan and timely payment of instalment was the very essence of the contract, which he did not adhere to and  thus there was no deficiency on the part of the Respondent. It was stated that in case of refund, the Respondent was entitled to deduct 50% of the BSP as laid down in the application form itself.

5.      The District Consumer Disputes Redressal Forum-X, New Delhi (for short ‘District Forum’) vide its order dated 03.01.2014 while allowing the Complaint observed as under;

“On merits, it is the contention of counsel for respondent that even according to the complaint itself, the complainant had adopted instalments payment plan and not the construction linked plan and payment of instalments in time was essence of the contract but he failed  to adhere to the same and no deficiency can be attributed to the company and in case of refund they are entitled to deduct 15% of BSP as laid down in the application form itself. However, the compliant contended that after he had paid an instalment(subsequent to deposit of initial amount) the respondent company, all of a sudden, came out with a new plan rescheduling the time of payment and commencement of construction work to which he did not agree and as such he became entitled to refund of his money. We feel inclined to agree with this contention. The copies of letters (documents) with regard to both the instalment plans are available on record and as per the first one, the payment of instalments, after initial booking was to commence on 17.11.06, whereas according to second(revised) plan dated 28.10.2007, the first instalment after payment of the booking amount was to commence on 10.11.07. Last instalment, as per the original plan, was to be paid on 17.03.08( and the balance of 5% to be paid at the time of offer of possession) and according to revised plan, the relevant date was 10.01.09. However, the complainant had already paid the first instalments, after initial booking amount, prior to the date of payment of first instalment as per the revised plan and, apparently, rescheduling(result in delay in the delivery of possession) was done without his consent and in our considered view he was very well within his rights not to opt for the revised plan and was justified in asking refund. In the facts of the case we deem it appropriate to dispose of the complaint with a direction to the respondent to refund the paid amount with interest @ 9% P.A. from the date of deposit(s) by the complainant till actual refund along with cost of litigation to the tune of Rs.5,000/-.Let the order be complied within one month of the receipt thereof.”   

6.      Dissatisfied with the order of the District Forum,  both the Petitioners preferred two separate Appeals i.e. (F.A. Nos.124 and 125 of 2014) respectively before the State Commission for enhancement of the interest awarded. The State Commission, vide their impugned orders dated 06.12.2016, while dismissing the Appeal observed as under;

“12. Perusal of the appeal shows that the payment has been accepted by the appellant/complainant under protest and a letter has also been placed on record by the appellant/complainant reserving his right to challenge the impugned order. In these circumstances it cannot be said that appeal filed is an afterthought and is to be thrown out on aforesaid ground. As regards the grant of rate of interest is concerned, we may mention that the Ld. District Forum has considered all the aspects of the matter before passing the impugned order. Ld. District Forum has noted that respondent/OP had re-scheduled the payment and commencement of construction as a result of which the relevant date of possession and the number of instalments were changed and due to said reason the appellant /complainant had himself withdrawn from the booking. We may mention that the appellant/OP who did not opt for the re-scheduling. Further the stand of respondent/OP is that the rescheduling was done on the demand of large number of allottees of the project as they had requested more time for payment of instalments. The respondent/OP had also sent a letter dated 16.09.2008 to appellant/complainant whereby he was requested to visit the office of the respondent/OP to choose a flat of same size in some other tower of same project and it was assured that the possession of the flat would be given within the scheduled period. However, the appellant /complainant did not come forward.

13. The Ld. District Forum has considered all the material aspects of the matter and thereafter had given the directions for refund of the amount along with interest @9% per annum. In the facts and circumstances of the case we find no case to enhance the rate of interest and to award compensation as is prayed.

1. The appeal stands dismissed.”

   7.      Hence, this Revision Petition.

   8.      The Petitioner who was present in person, contended that he had been awarded an inadequate rate of interest by the lower Fora. He stated that the various Courts have awarded the higher rate of interest. He has relied upon the following citations in support of his case:

   1.          M/s. R.N.A. Builders (N.G.) Vs. Suresh   Pandey & Anr, dated 11.01.2017, in (First Appeal Nos.353 of 2014 & 361 of 2015) passed by National Consumer  Commission;

    

   2.          M/s. R.N.A. Builders (N.G.) Vs. Dharampal Kuldeep Singh  & Anr, dated 11.01.2017, in (First Appeal Nos.354 of 2014 )  passed by National Consumer  Commission;

    

   3.          Jitendra Balani Vs. M/s. Unitech Ltd. dated 08.02.2016 in (C.C. Nos.510, 511, 513 & 514 of 2016) passed by National Consumer  Commission; and

    

   4.          M/s. Unitech Residential Resorts ltd. Vs. Atul Gupta and Anr.  dated 19.10.2016 in (Civil Appeal No.(s) 6044/2015, passed by the Supreme Court of India.

    

   9.      The above cases as relied upon by the Petitioner are not applicable as the facts in these cases are not similar to those cited.

   10.      In the instant case, I have gone through the record, it is seen that as per the Application-Form in R.P. No. 861 of 2017, Mr. P.P. Gambhir is the first applicant and Sanjeev Kumar is the second applicant. However, the Complaint has been filed only by Mr.P.P.Gambhir. In R.P. No.862 of 2017, Mr.Sanjeev Kumar Gambhir is the first applicant and his father Mr. P.P. Gambhir, is the second applicant but the Complaint has been filed only by Mr. Sanjeev Gambhir. In R.P. No.861 of 2017 the applicants were allotted Flat No.B-203, 2^nd Floor, Tower Volga, Pant Nagar (Rudrapur), Uttarakhand  at a cost of Rs.15,01,500/-with an additional charges of Rs.1,12,300/- for car parking, power back-up charges, interest free maintenance security charges and club Membership fee. In R.P. No.862 of 2017, the applicants were allotted Flat No.E-108, 1^st Floor, Tower Volga, Pant Nagar (Rudrapur), Uttarakhand at a cost of Rs.20,13,000/- with an additional charge of Rs.1,21,600/-. As per Complaint, the Petitioners /Complainants had originally applied for an allotment with the Respondent due to the attractive terms offered by the Opposite Party and as the construction at site was to start in November, 2006 and was to be completed by 31.03.2008. At that point of time, the Petitioner was getting opportunities and offers for investment of the amount in the projects of other builders whose projects have since taken off on time. The Petitioner had opted for allotment in the project of the Respondent and had not opted for any other offer of other builders. The Petitioner had thus lost the good opportunity of owning an apartment by March, 2008, which was available at that time in other builders’ projects. The Petitioner admitted that on his request for refund of the amount, the Respondent had offered an alternative plot in any other project, which was not accepted by him. He rather insisted for refund. Admittedly, the revised payment plan was sent to the Petitioner on 28.10.2007 whereby he came to know that the completion of the project would be by January, 2009. He then wrote to the Respondents after seven months on 24.05.2008 asking for refund stating that since there was delay on their part to meet their commitments as per letter of allotment, they may not be interested to retain the said flats as the delay in completion was causing a lot of loss of interest and income to them. Even in their legal notice issued on their behalf, it had been stated that the Complainant was getting good opportunity and offers for his investment had he purchased a residential flat from any other builders whose projects had taken off on time but believing in false promises of the Respondent, the Petitioner had opted for their project and thus suffered huge financial loss and opportunity to acquire alternative apartment and/or land building at another suitable place within his means. Thus, it appears that the Petitioners were only interested in the best returns for their investment.

   11.      Further, nowhere in their Complaints, have the Petitioners/ Complainants pleaded that the said two flats had been booked in Pant Nagar as they had planned to shift their residence from E-340, Greater Kailash-II, New Delhi to the said flats in Pant Nagar. This would lead to the conclusion that these flats were being purchased by father and son for investment purposes to generate additional income for them.

   12.    The Fora below have in the above circumstance already taken a lenient view of the Complaints by directing the Respondent/Opposite Party to refund the entire amount deposited to the Petitioner/Complainant along with interest @ 9% P.A along with cost of Rs.5,000/- . In the facts and circumstances mentioned above as observed by the State Commission, there is no case for enhancement of the rate of interest.

   13.    Thus, in view of the above discussions, I find that no jurisdictional or legal error has been shown to us in the impugned order  which call for interference of this Commission in the exercise of powers under Section 21(b) of the Consumer Protection Act, 1986. The order of the State Commission does not call for any interference nor does it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity in dismissing the Appeals filed by the Appellants.  Thus, these Revision Petition Nos. 861 and 862 of 2017 are hereby dismissed being devoid of any merits.

   14.    No order as to cost.