The Complainant/Respondents booked a residential apartment in a project namely, “Woodbury Apartment”, which the Appellant Company was to construct at Zirakpur at Punjab. The possession of the Apartment as per clause 22 of the terms and conditions of allotment dated 29.10.2019, was to be delivered within a reasonable time from the date of allotment. The sale consideration for the apartment was agreed at Rs.31,90,473/- the Complainants paid Rs.36,62,331/- to the Appellant. Since the possession of the Apartment had not been given to them, the Complainants approached the concerned State Commission by way of a Consumer Complainant, seeking possession of the allotted flat, or in the alternative, refund of the amount which they have paid to the Appellant with interests, etc. The Complainants took the possession of the apartment on 03.02.2018 pursuant to impugned order passed by the State Commission.

2.       The Complaint was resisted by the Appellant Company, which admitted the allotment made to the Complainant and the payment received from them. It was inter alia stated in the written version filed by the Appellant that after completing the constructions and providing the basic amenities they had offered possession to the Complainant vide letter dated 25.04.2011 but the Complainants had not accepted the possession.

3.       The State Commission vide its impugned order dated 03.02.2018, directed the Appellant as under:

1. To refund the amount of Rs.36,62,2331/- to the Complainants, alongwith interest @ 12% p.a., from the respective dates of deposits onwards.

    

2. To pay compensation, in the sum of Rs.1.50 lacs for causing mental agony and physical harassment, to the Complainants, as also escalation in prices.

    

3. To pay cost of litigation, to the tune of Rs.40,000/- to the Complainants.

    

4. The payment of awarded amounts mentioned at sr. nos. (i) to (iii) shall be made by the Opposite Parties to the Complainants, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) thereafter shall carry penal interest @ 15% p.a., instead of 12% p.a., on the amounts mentioned at sr. nos. (ii) and (iii) from the date of filing this complaint, till realization.

Being aggrieved from the order passed by the State Commission the Appellant is before this Commission, by way of this Appeal.

4.       As noted earlier, the possession of the allotted apartment was taken by the Complainant during pendency of the Consumer Complaint pursuant to an impugned order passed by the State Commission. The case of the Complainant is that major deficiency such as water seepage in the bathroom and walls of the guest room and master bedroom, the leakage in the sanitary fittings, defects in the stairway were found in the apartment which the Appellant had not removed. It was also pointed out that no fire lighting arrangements had been made, rain water harvesting system was not installed and no shopping facilities were provided.

5.       The defects noted herein above a part, the admitted position is that the Appellant does not have a requisite occupancy certificate till date in respect of the apartment delivered to the Complainants. The delivery as well as acceptance of the possession of the apartment without requisite occupancy certificate was not permissible in law. Therefore, neither the Appellant should have offered nor the Complainants should have taken the possession of the Apartment pursuant to the impugned order dated 03.02.2018.

6.       The next question arises for consideration is to what would be the appropriate order to be passed in the case where belated possession is accepted by the allottee who found several defects in the apartment delivered to him and more importantly, the occupancy certificate in respect of the apartment has not been obtained. One course of action can be to direct the developer to remove the defects found in the apartment delivered to the allottee, but this course of action can be adopted only where the requisite occupancy certificate has been obtained. However, in the present case, the Appellant does not have requisite occupancy certificate even as on today and it is not known when the Appellant will be able to obtain the said occupancy certificate. Therefore the Complainants who are not willing to retain the possession of the apartment cannot be compelled to retain it for an indefinite period till the Appellant is able to obtain the requisite occupancy certificate. The allottee in such a case is entitled to seek refund of the amount which he has paid to the developers with appropriate compensation. However considering that the allottee has chosen to take the possession despite the occupancy certificate not being available at the time of possession he should get compensation only till the date of possession taken.

7.       As far as the quantum of compensation is concerned, the State Commission has awarded interest to the Complainant in terms of the provisions of the Rule 17 of PAPRA Rules, as was noted by this Commission in the order dated 30.08.2019, in First Appeal No. 418 of 2019, M/s Ansal Housing & Construction Limited & Anr. Vs. Sanjay Lal & Anr. pertaining to an allotment made in this very project.

8.       For the reasons stated in above, the Appeal is disposed of with the following directions:

1. The Appellant shall refund the entire amount received from the Complainant along with the compensation interests in the form of simple interest @ 12% per annum, from the date of each payment till 03.02.2018, when possession was taken by them.

2. The Appellant shall deliver peaceful and vacant possession of the apartment to the Appellant by depositing its keys with the State Commission within one week from today. On depositing of the keys with the State Commission under intimation to the Appellant, the payment in terms of this order shall be made within the next six weeks. On such payment, the keys will be handed over the Appellant.