1. Aggrieved by the Order dated 28.12.2021 of the State Consumer Disputes Redressal Commission, Lucknow, Uttar Pradesh (hereinafter referred to as the ‘State Commission’), M/s Agarwal Associates (P) Limited through MD (hereinafter referred to as Petitioner/ Builder) filed this Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (for short, the Act) against S K Nigam (hereinafter referred to as Respondent/ Complainant) with prayer to set aside the Order of State Commission, which had set aside the Order of the District Consumer Disputes Redressal Forum, Ghaziabad (hereinafter referred to as the District Forum) dated 06.03.2006 which had dismissed the Complaint. The relevant portion of the Order of the District Forum reads as under:

“It is clear that when the complainant shall not pay money to the opposite party then how the opponent shall give flat to him when the full amount has not been deposited. According to the agreement a sum of Rs. 154200/- was to be deposited by 01.12.1990 but the Complainant has deposited only Rs. 71908/- then now the Complainant cannot say that there is deficiency in the service of the Opposite Party and he has not provided flat to him. So far as question of refund of the amount is concerned then the Complainant is required to move application and receive back the deposited amount after deduction of 20%. It is clear that firstly the Complainant was required to demand this money from the Opposite party and when he would had refused to pay then he could had come to the Forum. If the opponent would had denied to pay back the amount then there would had been deficiency in service of the Opposite Party. Hence, the Complainant is not entitled to receive any kind of relief. Accordingly, the plaint of the complainant is hereby dismissed.”

2. The Appeal filed by the Respondent was allowed by the State Commission and the Order of the District Forum was set aside. The relevant portion of the Order reads as under:

“I have heard the Learned Counsel for the parties and perused the order passed by the learned District Consumer Commission and I find substance in the submission of the learned counsel for the appellant that huge money was paid by the appellant to the Opposite Party during the month of November, 1989 to September, 1990, however, till September, 1994 or till even the filing of the complaint, the work completion was not done by the Opposite Party, therefore, condition stipulated in the agreement and the offer given by the opposite party that an amount of 20% of the deposited money by the appellant will be deducted and balance money will be adjusted  towards the value of the flat as agreed by the respective parties is bad and arbitrary.

I have perused the agreements which are executed in between the parties and are duly signed by the authorized signatories and according to me since the huge amount has been paid by the appellant to the Opposite Party and the allotted flat is handed over beyond the stipulated, as such after huge delay the Opposite Party ought to have liable to pay interest to the appellant on the entire deposited amount from the date of deposit of the said amount till the date of delivery of the flat.

In view of the aforesaid, the order passed by learned District Consumer Commission is set aside. The appellant is directed to provide all details with supportive evidence before the District Consumer Commission alongwith calculated interest which will be paid/adjusted by the opposite party on the deposits made by the appellant at the rate of 10% per annum from the date of deposit till the date of actual possession of the Flat which was handed over by the Opposite Party to the appellant.

It is made clear that in case if after the aforesaid calculation the appellant is liable to pay any amount in pursuance of the agreements, the same will be paid by the appellant to the opposite party within 60 days and if in case there is any liability of payment upon the opposite party, the same will be paid by the opposite party to the appellant within a period of 60 days and further the opposite party will also pay the cost of Rs. 50,000/- to the appellant as case cost. ”

3. As the State Commission and District Forum have comprehensively addressed the facts of the case, I find it unnecessary to reiterate the same in detail.
4. I have heard learned Counsel for the parties and perused the record.
5. Learned Counsel for the Petitioner argued that the Respondent booked a flat on 29.11.1989. The Respondent was required to pay a total sum of Rs.1,54,200/-. However, the Respondent had only paid Rs.71,908/- towards the cost of the commercial flat. The Petitioner is ready to refund the money after deduction of 20% of the total cost. The respondent had made the payments to petitioner by cheques in four stages for Rs.29532/-, 19688/-, 19688/-, 3000/- respectively.  

The Respondent did not make payment as per schedule. Therefore, the Petitioner is entitled to cancel the allotment and forfeit 20% of the amount paid. Ld. Counsel for the Petitioner further argued that the Petitioner vide letter dated 17.09.1994 asked the respondent to pay the instalment up to 95% of the sale value of the unit. But, the Respondent filed the Consumer Complaint before the District Forum. The construction of the Unit could not take place because the Respondent failed to make the payment as per agreed terms and conditions. The Unit has never been handed over to the Respondent. The State Commission has wrongly assumed that possession of the Unit has been given to the respondent. Learned Counsel further submitted that the Petitioner vide letter dated 20.09.2006 requested the Respondent to visit the office of the Petitioner along with all original papers, receipts, agreement and to collect the due payment.

6. Learned Counsel of the Respondent argued that the Occupation Certificate was not received by the Petitioner. Since the Petitioner failed to complete the construction, the Respondent sought refund of the amounts paid. The Petitioner failed to give any specific date of completion of the project in the agreement. Even at the time of filing of the complaint i.e. 1994, the construction of the work was not complete.
7. After going through the Orders of the State Commission, District Forum and grounds, arguments raised in the present Revision Petition, the central issue is whether the Petitioner has committed any deficiency of service under the Act.
8. It is a fact that there has been unreasonable delay in the construction of the Unit. The Complainant had invested heavy amount with the intention to get the possession of the Unit on time. This Hon’ble Commission on the last date of hearing i.e. 13.06.2024 ordered the Petitioner to file the copy of Occupancy Certificate received for the Unit within one week i.e. on or before 20.06.2024. The Petitioner failed to file the Occupancy Certificate till date. Therefore, it is presumed that the Petitioner has not received any Occupancy Certificate from the concerned Authority. The Project is not complete.  The Hon’ble Supreme Court and this Commission in various Orders have stressed upon the importance of Occupancy and Completion Certificate and its absence as deficiency of service under the Act.  I would like to draw attention towards the judgment of Hon’ble Supreme Court in Samruddhi Co-Operative Housing Society Ltd. Vs. Mumbai Mahalaxmi Construction Pvt. Ltd. in Civil Appeal 4000 of 2019, decided on 11.01.2022, wherein, it was held as under:-   

“In the present case, the respondent was responsible for transferring the title to the flats to the society along with the occupancy certificate. The failure of the respondent to obtain the occupation certificate is a deficiency in service for which the respondent is liable. Thus, the members of the appellant society are well within their rights as ‘consumers’ to pray for compensation as a recompense for the consequent liability (such as payment of higher taxes and water charges by the owners) arising from the lack of an occupancy certificate”.

9. In light of the present facts of the case, it is evident that a fundamental error occurred in the Order of the State Commission regarding the possession status of the property in question. The State commission mistakenly assumed that possession had been granted, despite the fact that construction of the house has not even completed. Also, the petitioner in his argument mentioned that the possession of the property has not been handed over to the respondent till date. Therefore, it is necessary to set aside the state commission's order to rectify this error.
10. Since no tentative date was given to the Complainant for giving possession in the Agreement, a period of three years is considered reasonable time period for completion of the Unit. The Unit should have been completed on or before 20.11.1992. In this regard, attention is drawn to the Order of Hon’ble Supreme Court in Fortune Infrastructure v. Trevor D’lima, (2018) 5 SCC 442: (2018) 3 SCC (Civ) 1 decided on 21.03.2018, wherein it was held as under:

“Moreover, a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of the amount paid by them, along with compensation. Although we are aware of the fact that when there was no delivery period stipulated in the agreement, a reasonable time has to be taken into consideration. In the facts and circumstances of this case, a time period of 3 years would have been reasonable for completion of the contract”

11. There is a delay of more than 30 years, despite the Petitioner having received about 50% of the basic Sale Consideration.  I am not in agreement with the submission of learned Counsel for the Petitioner/ Builder that the Unit could not be constructed because of non-payment of balance amount by the Respondent/ Buyer.  The fact is that about 50% amount has already been deposited by the Respondent with the Builder.  The Builder has not adduced any evidence to the effect of the stage of construction.  If more than 50% construction would have taken place or if the other balance Units in the Project would have been completed and Occupation/ Completion Certificate obtained, in such a condition the Builder would be in its rights to deduct the earnest money and return the balance amount.  But having not completed the building, the question of deduction of any earnest money does not arise.  The Builder has also not given any evidence to the effect that the Occupation Certificate has been held up for want of completion of the Unit in question.
12. The Complainant cannot wait for an indefinite time as he has invested amount with the intention to get the possession of the Unit on time.  There are a number of case laws wherein the Hon’ble Supreme Court has decided favourably on the right of the buyers for getting refund of their money in case of undue and unreasonable delay by the Developer in giving possession in terms of the Agreement. 
13. Reliance is placed on the judgment of the Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, II (2019) CPJ 29 SC, decided on 25.03.2021 in which it was 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 is 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 SCDRC and by the NCDRC for refund of moneys were justified.

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. Having regard to all the facts and circumstances of the case, we modify the order of the NCDRC by directing that the appellant shall pay interest at the rate of 9% per annum to the respondent instead and in place of 12% as directed by the NCDRC. Save and except for the above modification, we affirm the directions of the NCDRC.”

14. In another Landmark judgement of Hon’ble Supreme Court, titled Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghvan, ll (2019) CPJ 34 (SC), decided on 02.04.2019, it was held as under:

“We see no illegality in the Impugned Order dated 23.10.2018 passed by the National Commission. The Appellant – Builder failed to fulfil his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent – Purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter. The Respondent – Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired. During this period, the Respondent – Flat Purchaser had to service a loan that he had obtained for purchasing the flat, by paying Interest @10% to the Bank. In the meanwhile, the Respondent – Flat Purchaser also located an alternate property in Gurugram. In these circumstances, the Respondent – Flat Purchaser was entitled to be granted the relief prayed for i.e. refund of the entire amount deposited by him with Interest”.  

15. In view of the discussion above, the Orders of the State Commission and District Forum are set aside.  The present Revision Petition is disposed of with directions as under:-

The Petitioner is directed to refund the entire amount deposited by the Respondent along with interest @ 8% per annum from the respective dates of deposits till realization, within a period of two months of this Order.  Any delay beyond two months, will attract an interest rate of 12% per annum for the same period.

16. Pending application, if any, stands disposed of.