R.K. AGRAWAL, J., PRESIDENT 

1.       Delay in filing both the Appeals is condoned.         

2.       These two First Appeals, by Kuber Builders (for short the “Builder”)/Opposite Party in the Complaint, are directed against the Orders dated 08.12.2015, passed by the State Consumer Disputes Redressal Commission, Maharashtra at Mumbai (for short “the State Commission”) in Complaint Cases No. 459 & 460 of 2002. By the impugned Orders, the State Commission has allowed the Complaints, preferred by the Respondent herein directing the Appellant Builder to hand over the possession of Shop/office booked by the Complainants in “Kuber Heritage”/”Kuber Classique” Shopping-Cum-Residential Complex subject to payment of balance consideration by the Complainants/Respondents herein to the Builder or alternatively to refund the amount deposited by the Complainants along with interest @ 12% from the date of filing of Complaint till realization and to pay a sum of ₹1,00,000/- towards compensation for mental agony suffered by the Complainant and ₹25,000/- as costs.

3.       Since the issues involved in both the Complaints, between the same parties, are similar; except for minor variations in the dates, amounts and Project and the reliefs claimed in both the cases, the Complaints have similar facts; these Appeals are also being disposed of by this common order.  However, for the sake of convenience, First Appeal No. 315 of 2006 is treated as the lead case and the facts enumerated hereinafter are taken from Complaint No. 459 of 2002.    

4.       The Complainant booked an office for the personal use of their Director in a Scheme, namely, “M/s Kuber Heritage” to be developed by the Builder on the Plot No.1, Sector 4, Khargar, Navi Mumbai consisting of 14 Upper Floors with Ground and First Floor being Shopping Complex for commercial and non-residential user, by paying a sum of ₹1,89,393.60 on 13.09.1995. The total Sale Consideration of the office was ₹9,46,968/-. The Complainant approached the Builder number of time to execute the Agreement in his favour in respect of the said Office, however, the Builder did not take any step. Finally, on 29.11.1995, the Builder issued a Letter of Intent to the Complainant informing that the Complainant was tentatively allotted Shop/Office no. 14 admeasuring 394.57 sq. ft. (including the area of balcony and chargeable terrace on the ground floor of the said building) and the construction of the said building would be completed within 30 months from the date of commencement of the construction of the said building on the approval of the said building plans by CIDCO.  It was also informed that the Agreement to Sell was under preparation and the same would be executed in favour of the Complainant very soon. The Complainant paid the total amount of ₹6,39,202.20 to the Builder.  However, the Builder despite having received such a huge amount from the Complainant, in violation of the Maharashtra Ownership Flat Act, 1963, miserably failed to enter into Agreement and to complete the construction of the Building and to  hand over physical possession of the allotted office. Hence, alleging deficiency in service and Unfair Trade Practice on the part of the Builder, the afore-noted Complaint came to be filed before the State Commission, praying for a direction to the Builder to enter into Agreement duly registered and stamped;  hand over possession of the Shop No. 14 booked by the Complainant or alternatively to pay the interest @ 21% on the amount of ₹6,39,202.20 from the date of payment till the date of actual handing over the possession of the office to the Complainant; to pay an amount of ₹3,00,000/- towards compensation for mental agony and ₹50,000/- towards incidental expenses.

5.       Upon notice, Builder contested the Complaint, by filing their Written Versions.  It is pleaded on behalf of the Builder that the Writ Petition No. 3944 of 1998 was filed against them and an order dated 13.08.1998 was passed by the Delhi High Court restraining them along with Sahara and JVG from disposing of their assets. However, vide Order dated 24.09.2002, passed by the Division Bench of Delhi High Court, they were exonerated from all the charges.  It is further contended that during the period from 1999-2000 when they were facing lot of problems due to “RUN” created on the Company, a special case (MPID) No. 07/2000 was registered against Kuber Group before the Crime Branch Mumbai, under the Maharashtra Protection of Interest of Depositors (In Financial Establishment) Act, 1999 (for short, the MPID Act) and subsequently five properties of Kuber Group including “Kuber Heritage” were attached vide Order dated 16.08.2002 by the State Government of Maharashtra on which the objection was raised by the Investor of the “Kuber Heritage”.  Accordingly, the attachment of the properties were made absolute by Order dated 16.01.2001. However, the said Special Case No. 07/2000 was still pending at City Civil and Sessions Courts at Greater Bombay. It is further submitted that though the Complainant has made a claim of depositing ₹6,39,202.20 but he had annexed only two receipts with the Complaint amounting to ₹2,28,786/- only.  The Complainant has defaulted in making the payments of the due instalments as per Schedule. The Complainant has not made any payment after the year 1996. Since, the Complainant has not paid any further amount after 1996, the Agreement to Sell was never executed in his favour.

06.     On appreciation of the material available on record and the evidence adduced by the parties before it, the State Commission came to the conclusion that the Complainant is a Consumer and was entitled for possession of the allotted Office.  The State Commission observed as under:-

“ It is contended by the Complainant that office was booked by the Complainant for total consideration of ₹9,46,968/- and out of that ₹6,39,2020.20/- were paid by the Complainant.  Opponent has not disputed about booking of the office by the Complainant.  However, Opponent contended that the Complainant has made default in payment. However, it is material to note that Complainant has filed the receipts issued by the Opponent about payment made by the Complainant and those receipts are at pages 11,12, 18 & 19 of the complaint compilation.  Those receipts support the contention of the Complainant that the Complainant has paid amount of ₹6,39,202.20/-.  At page 13, there is a letter of the Opponent dated 29.11.2015 addressed to the Complainant i.e. letter of intent for reservation of shop No. 14 in proposed “ Kuber Heritage” Shopping Cum Residential Complex on Plot No. 1, Sector 4, Kharghar, Navi Mumbai.  Total cost of the Office is mentioned as ₹9,46,968/-.  We have already discussed above about receipts of payment made  by the Complainant to the Opponent and total payment is ₹6,39,202.20/-. It is an admitted position that the Opponent has not handed over possession of the said shop to the Complainant and has not returned the amount and hence, there is clear cut deficiency on the part of Opponent.  Opponent tried to show that some Writ Petition was filed against the Opponent in Delhi High Court, then MPID case is registered against Opponent and their properties were seized and hence, they could not complete the construction work and hand over possession of the shop.  The fact remained that in spite of accepting ₹6,39,202/-, Opponent has not handed over possession of the shop to the Complainant.  Thus, it is clear cut deficiency on the part of the Opponent.

          We know that the Complainant has not alternatively claimed any refund of  ₹6,39,202.20/- along with interest, but claimed only interest on that amount till handing over possession of the shop.  However, being a consumer proceeding, we find it proper to grant alternative relief at the option of the Complainant of refund of the amount of  ₹6,39,202/- with interest @ 12% p.a. from the date of filing of complaint till realization in case of failure to hand over possession of the shop.  Complainant is entitled for the some amount on account of mental agony.  We quantify it at ₹1,00,000/-.

07.     Hence, the present Appeal by the Builder.

08.     We have heard the learned Counsel appearing for the parties, perused the Impugned Order passed by the State Commission, the Complaint, the Written Statement and the written submissions filed by the parties.

09.     Learned Counsel appearing for the Appellant Builder submitted that delay in the construction of the Project and handing over the possession of the Office to the Complainant was due to default on the part of the Complainant to make the payment in times and owing to filing of Writ Petition before the Delhi High Court and MPID No. 07/2000 under the MPID Act, 1999 which was beyond the control of the Builder. It is further stated that right of possession was with the Competent Authorities under the MPID Act. The other Investors had also approached to the MPID Court for refund of the amount deposited by them. There is no allegation of deficiency in service in the Complaint on the part of the Builder and the Complainant ought to approach the MPID Court for refund of the amount.

10.     Per Contra, Learned Counsel appearing for the Respondent/Complainant supports the well-reasoned passed by the State Commission.

11.     It is an admitted fact that an office/shop was booked by the Complainant in First Appeal No. 315 of 2016 in the “Kuber Heritage” Project of the Builder on 13.09.1995 by paying the booking amount of ₹1,89,393.60/-.  Vide Letter of Intent dated 29.11.1995, the Complainant was allotted shop No. 14, admeasuring 394.57 sq. ft. It was further informed by Letter of Intent that the building plans for the Building are ready for submission to CIDCO and it was expected that the construction of the Building would be completed within thirty months from the date of the commencement of the construction of the said Building on the approval of the Building Plan by CIDCO. It was also specifically mentioned in the Letter of Intent that if for any reason within or outside the control of the Builder, the Project is abandoned, no claim will be preferred except to refund of money with interest. The Builder has not executed the Agreement to Sell in favour of the Complainant on the ground that the Complainant was a defaulter in making the payment. The total Sale Consideration of the shop/office mentioned in the Letter of Intent was ₹9,46,968/-.  We fully agree with the finding recorded by the State Commission based on the evidence that the Complainant has paid an amount of ₹6,39,202.20 to the Builder out of the total Sales consideration of ₹9,46,968.20 and further the Complainant was a Consumer. The Complainant cannot be held a defaulter in making the payment as there was no construction at the site and no steps were taken up by the Builder to the complete the Project.  Even if, for the sake of arguments, it is presumed that delay in completion of the Building was due to filing of the Writ Petition No. 3944 of 1998 before the Delhi High Court and a Special Case (MPID) bearing No.07 of 200 under the MPID Act, 1999, there is no whisper in the Written Statement as to what steps were taken by the Builder to get sanctioned the building plans from CIDCO or to complete the Project during the period from 1995, (when booking was done)  to 1998 (when Writ Petition was filed). Moreover, if the Complainant was defaulter, the Builder was at liberty either to charge interest on delayed payment or to cancel the booking which option has not been exercised by the Builder. Nevertheless, the fact is that the Project has not been completed and the possession of the Office/shop has not been handed over to the Complainant and there is also not any possibility of completion of the Project in the near future. 

12.     In Emmar MGF Land Ltd. & Ors. vs. Amit Puri - II (2015) CPJ 568 NC, this Commission has held that after the promised date of delivery, it is the discretion of the Complainant whether he wants to accept the offer of possession, if any, or seek refund of the amounts paid with reasonable interest. In our view, it is well within the Complainant’s right to seek for refund of the principal amount with interest and compensation as there is no possibility of completion of Project under the aforementioned circumstances, in the near future. The Complainant cannot be made to wait indefinitely for the delivery of possession when he had already paid a huge amount of ₹6,39,202.20 out of total Sale Consideration of ₹9,46,968/-. 

13.     At this juncture, we place reliance on the judgment of the Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, - II (2019) CPJ 29 SC,  in which the Hon’ble Apex Court has observed as hereunder:-

          “.....It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years in beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund.

                   In the circumstances, we are of the view that the orders passed by the SCDRC and by the NCDRC for refund of moneys were justified.”

14.     In the present case also, the Complainant has booked the Office in the year 1995 and yet the possession has not been handed over to him. Therefore, we are of the considered view that the Complainant is entitled for refund of the principal amount with reasonable interest and compensation. Accordingly, keeping in view the ratio laid down by the Hon’ble Supreme in DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda - II (2019) CPJ 117 (SC) that compensation under multiple heads cannot be awarded, we are of the considered view that simple interest in the form of compensation @ 9% per annum would meet the ends of justice together with costs of ₹50,000/-.

15.     Consequently, We dispose of both the First Appeals as under:-

FIRST APPEAL NO. 315 OF 2016

          The Appellant Builder shall refund a sum of ₹6,39,202.20 to the Complainant along with interest @ 9% p.a. from the respective date of deposit till payment, within a period of eight weeks from the date of passing of this order failing which the amount shall attract the interest @ 12% p.a. for the same period.  The Complainant shall also be entitled for costs of ₹50,000/-.

FIRST APPEAL NO. 316 OF 2016

          The Appellant Builder shall refund a sum of ₹22,65,000/- to the Complainant along with interest @ 9% p.a. from the respective date of deposit till payment, within a period of eight weeks from the date of passing of this order failing which the amount shall attract the interest @ 12% p.a. for the same period.  The Complainant shall also be entitled for costs of ₹50,000/-.