PER HON’BLE M. SHREESHA, MEMBER

          Aggrieved by the common order dated 01.03.2018 in Consumer Complaint Nos.438 and 439 of 2017, passed by the Punjab State Consumer Disputes Redressal Commission, Chandigarh (in short “the State Commission”), Greater Mohali Area Development Authority (GMADA) (hereinafter referred to as “the Authority”) preferred these Appeals, under Section 19 of the Consumer Protection Act, 1986 (in short “the Act”). By the impugned order, the State Commission has allowed the Complaints in part directing the Authority  to refund the entire deposited amounts of ₹50,46,250/- in Consumer Complaint No. 438 of 2017 and ₹41,29,619/- in Consumer Complaint No. 439 of 2017 along with interest @ 8% p.a., compounded annually as stated under Clause 3(ii) of the Letter of Intent. The State Commission also found it a fit case to award compensation of ₹60,000/- and ₹30,000/- towards costs. The Authority was also directed to pay interest, which was paid by the Complainant to SBH and SBI as loans were taken from these Banks for purchase of the subject flats.

2.       For the sake of convenience, First Appeal No. 1852 of 2018 arising out of Consumer Complaint No. 438 of 2017 is being taken as a lead case.

3.       The Complainant had purchased Application Form for two bedroom plus servant room in residential Apartment Type –2 in the scheme floated by the Authority by paying earnest money of ₹5,50,000/-, which is 10% of the total sale consideration of ₹55,00,000/-. The allotment was made through draw of lots, which was held on 19.03.2012. A Letter of Intent was issued on 21.05.2012 to the Complainant, who was successful in the said draw of lots. It is stated that the Complainant availed a loan from SBI to pay the balance amount of ₹50,46,250/- to the Authority in the year 2012 against the total sale consideration of ₹55,00,000/-. It is averred that as per Clause 3(i) of the Letter of Intent, the possession of the said Apartment was agreed to be delivered within a period of 36 months from 21.05.2012. The schedule date for delivery of possession was therefore agreed to be 21.05.2015. While so, when the Complainant visited the spot in May, 2015, he found that there was no such development at the site and therefore he approached the Authority in April, 2016 seeking refund of the deposited amount as stipulated under Clause 3 of the Letter of Intent. Thereafter, the Complainant filed a Consumer Complaint No. 197 of 2016, which was withdrawn due to technical reasons with liberty to file a fresh Complaint and therefore this Complaint was filed. After few days of filing of the previous Complaint, the Authority issued a Letter of Allotment-cum-offer of Possession dated 29.06.2016 to the Complainant, informing him that the Apartment No. 902, Tower No.7, Block C, Type-2 has been allotted to him and an offer was being made to take possession. The Complainant visited the said site and found that major changes were made in the whole project including changes in the super area and therefore sought refund of the amount paid and hence this Complaint seeking following reliefs:

“(i) The Opposite Party be directed to refund the principle amount of Rs.50,46,250/- to the complainant.

(ii)  The Opposite Party be directed to pay Rs.23,77,571/- (due till 21.05.2017) which is the interest calculated @ 8% compounded annually from the respective dates of deposit  and future interest at the same rate till the realization of the amount.

(iii) The Opposite Party be directed to pay Rs.17,25,862/- (Calculated till 06.05.2017) which the complainant has paid to the SBI  on the loan amount taken for the purchase of the flat from the OP. Also the future interest till the disposal of the present complaint.

(iv)  The Opposite Party  be directed to pay to the complainant an amount of Rs.5,00,000/- as compensation for causing mental tension, harassment, undue hardship and agony due to deficiency  in providing the service and unfair trade practice along with Rs.77,000/- as cost of present litigation.

(v) Any other relief this Hon’ble Commission may deem fit, be awarded in favour of the complainant and against the Opposite Party”

4.       The Authority filed its Written Version stating that they had already issued the Letter of Allotment-cum-offer of Possession to the Complainant on 29.06.2016 and therefore the provisions of Clause 3 (ii) would not apply to the Complainant. The Complainant is entitled to interest only for the period beyond 36 months from the issue of Letter of Intent. The super area of the Apartment is as per the specifications, which is mentioned in the Brochure. The grievance of the allotteees was addressed to by a three member committee comprising of Divisional Engineers Civil, Electrical and Public Health. It was denied that facilities swimming pool, lawn tennis court, indoor badminton court table tennis court, football ground, community center, club etc. has not been provided by them. 

5.       Based on the evidence adduced, the State Commission has allowed the Complaint in part observing as follows:

“15.  It is, thus, evident from perusal of this Clause that in case for any reason, the Authority is unable to deliver possession of the apartment within the stipulated period, the allottee shall have the right to withdraw from the scheme, by moving application to the Estate Officer, in which case the Authority shall refund the entire amount deposited by the applicant, along with interest at the rate of 8%, compounded annually. Apart from this, there shall be no other liability of the Authority.  The counsel for the opposite party submitted that the complainant has not applied to the opposite party for withdrawal from the scheme. On the other hand, the submission of the counsel for the complainant is that he has been seeking refund of the money, but was put off by the officials of the opposite party to apply later on. He has to file the complaint thereafter. We are to see the intent of the complainant in this case. The intent of the complainant is to withdraw from the scheme and due to this reason, he has filed the complaint, seeking refund of the amount.  It is proved fact that the opposite party failed to deliver possession within 36 months’ agreed period up till 21.05.2015 to the complainant.  The complainant is entitled to the benefit of withdrawal provision of the scheme, in our view.  The opposite party cannot back out of the withdrawal of this scheme, specifically agreed by it in the LoI. The opposite party remained unable to deliver the possession within 3 years’ stipulated period and the complainant has the right to withdraw from the scheme and the opposite party-Authority shall refund the entire amount deposited by him, along with interest at the rate of 8%, compounded annually.  Apart from this, there shall be no other liability of the opposite party-Authority in this case. The opposite party also extended such type of benefit to Vijay Kumar, as contained in order Ex.C-4.  We do not find any force in the submission of the counsel for the opposite party that they have offered the possession on 29.06.2016 to the complainant, because one thing is clear that the opposite party could not complete the project and deliver the possession of the flat, in question, to the complainant within 36 months’ agreed period.  The complainant is, thus, entitled to invoke the benefit of Clause 3(II) of LoI with regard to withdrawal from the scheme, which provides for refund of the amount with interest at the

rate of 8%, compounded annually.”

6.       Learned counsel appearing for the Appellants contended that the offer of possession was given on 29.06.2016; that the Complainant loses his right to claim refund in terms of the Clause 3 (ii) of the Letter of Intent dated 21.05.2012, as it would come into force only if the Authority had failed to deliver the possession of the Apartment. In this case the possession was offered on 29.06.2016 and the Complainant did not ask for any refund prior to offer of possession. He strenuously argued that the Complainant did not move any Application before the Estate Officer for refund of his amounts and therefore Clause 3 (ii) does not apply to him. Learned counsel also contended that the Authority is ready and willing to refund the amounts to the Complainant as per the Provisions of Section 45(3) of Punjab Regional and town Planning and Development (Amendment) Act, 2013 after making deduction of 10% of the total amount, interest and other dues payable. He further submitted that the Letter of Intent was issued on 21.05.2012 and this Complaint was filed on 01.03.2018, which is beyond two years and therefore is barred by limitation.

7.       Regarding the question of limitation, it is seen from the record that the initial Complaint was filed on 19.07.2016 and withdrawn due to technical reasons and therefore Consumer Complaint No. 438 of 2017 was filed on 27.05.2017 and viewed from any angle it cannot be said to be barred by limitation. In fact this Appeal has been filed with an inordinate delay of 117 days. In the Application seeking condonation of delay, learned counsel has stated that the order copy was received on 18.05.2018, which was put up by the concerned Assistant on 04.06.2018. The date itself is mentioned wrongly as can be seen from the stamp on the State Commission order that it was received on 14.03.2018. In fact the reasoning given by the learned counsel that on account of the bureaucratic process works, it is inadvertent that such a delay has occurred is completely untenable. The Hon’ble Supreme Court of India in Postmaster General & Ors. Vs. Living Media India Ltd. & Anr. (2012) 3 SCC 563, has categorically observed that such bureaucratic and pen pusher delays should not be considered. I do not see any substantial grounds in condoning the delay of 117 days.

8.       Even on merits, it can be seen that the possession according to Letter of Intent shall be offered by 21.05.2015, but the possession according to the learned counsel for the Appellant was offered on 29.06.2016. It is pertinent to note that this offer of possession cannot be considered to be legal possession since it is offered without the Occupation Certificate. For better understanding of the case Clause 3 (ii) is being reproduced as hereunder:

“3. OWNERSHIP AND POSSESSION 

(II) Possession apartment shall be handed over after completion of development works at site in a period of 36 months from the date of issuance of Letter of Intent. In case for any reason, the Authority is unable to deliver the possession of apartments within stipulated period, allottee shall have the right to withdraw from the scheme by moving an application to the Estate Officer, in which case, the Authority shall refund the entire amount deposited by the applicant along with 8% interest compounded annually. Apart from this, there shall be no other liability of the Authority.” 

9.       This Commission in First Appeal No. 1456 of 2016 between the same Authority, Greater Mohali Area Development Authority (GMADA) and Priyanka Nayyar decided on 22.12.2016 has observed as follows:

“10.     It is evident from a bare reading of the Clause that in the event of non-completion of the development work at site within the stipulated period of 36 months, an Allottee is entitled to withdraw from the Scheme and, if he chooses to do so, GMADA is obliged to refund the entire amount deposited by the Allottee, along with interest @ 8% compounded annually.  The stand of GMADA that it is liable to pay interest in terms of the said Clause only after the expiry of 36 months, in our view, is not only tantamount to unfair trade practice, as defined in Section 2(1)(r) of the Act, it would wholly be unequitable on the part of a public oriented department of the State.  It is clear from the Clause that its object is to mitigate the loss suffered by an applicant on account of locking of his funds with GMADA towards the cost of the flat, by payment of nominal interest @ 8% compounded annually because it has failed to complete the development work at the site within a period of 36 months.  Having used an Allottee’s money, who might have borrowed it from Bank or any other source, on interest, as in the present case, and having failed to deliver possession of the property within the stipulated time, GMADA cannot be permitted to arrogate to itself an arbitrary power to withhold the Applicant’s money for three years free of any interest.  In that view of the matter, we are unable to accept the stand of GMADA that its obligation to pay interest at the said rate starts only after the expiry of 36 months.

11.     The question surviving for consideration is as to whether the State Commission is justified in awarding a compensation of ₹2,00,000/- in favour of the Complainant on account of non-construction of the flat within the stipulated period?  Supporting the impugned direction, it is vehemently submitted by learned Counsel appearing on behalf of the Complainant that the said direction has been issued by the State Commission, taking into consideration the fact that on receipt of the Letter of Intent, after seeking permission from GMADA, the Complainant had mortgaged the flat for raising loan for deposit of the sale consideration for the flat.  It is stated at the bar by learned Counsel appearing for the Complainant that in the affidavit filed by way of evidence by the Complainant in the State Commission, which document, unfortunately, has not been placed on record by the Appellant with this Appeal, it was specifically stated that the rate of interest charged by the Bank on the loan disbursed to the Complainant was @ 10.75% and, therefore, it cannot be said that the award of compensation of ₹2,00,000/- to the Complainant, in addition to interest @ 8%, is unreasonable or excessive.

12.     We find substance in the submission made on behalf of the Complainant.  As noted above, admittedly, the flat could not be constructed by GMADA within a period of 36 months, as stipulated in the Scheme, and the amount(s) towards sale consideration, amounting to ₹66,03,835/-, a substantial part whereof being from an interest bearing loan from the Bank, commencing from 04.01.2012, remained with GMADA all through.  Therefore, the award of interest @ 8% in favour of the Complainant is of no solace to her for the aforesaid delay in completion of the flat allotted to her and for the mental agony and harassment suffered by her.”

10.     In the aforenoted Appeal, which has attained finality not only was 8% interest compounded annually was awarded, but also compensation of ₹2,00,000/- was awarded as the Complainant  had taken a loan from the Bank and was paying interest @ 10.75%. Even in the instant case, the Complainant had taken a loan and the Authority has failed to deliver the possession within stipulated period of time and has offered paper possession in the year 2016, without the Completion Certificate.

11.     From the material on record we do not find any merit in the contention of the learned counsel for the Appellant that Clause 3(ii) of the letter of Intent does not apply to the Complainant. Hence we do not find it a fit case to interfere with the well reasoned order of the State Commission and this Appeal fails both on delay and merits.

12.     It is observed from the record that the State Commission has not awarded any default interest for non-compliance of the order within 30 days.

13.     In the result, both these Appeals preferred by the Authority stand dismissed with costs of ₹20,000/- to be paid to each of the Complainants. The statutory deposit in both the Appeals stands transferred to the respective Complainants, with accrued interest, if any.