PER MR PREM NARAIN, PRESIDING MEMBER

This consumer complaint has been filed by the complainant Shri Lalatendu Nayak and Anr against the opposite party Supertech Ltd. claiming deficiency in service against the opposite party for not handing over the possession in time of the residential unit booked by the complainant with the opposite party and thereby requesting the refund of the deposited amount.

2.     The brief facts of the case as mentioned in the complaint are that on 31.03.2012, the complainants paid Rs.5,00,123/- to the opposite party – Company as advance for a three BHK flat in the ongoing project namely CAPETOWN Project. The complainant entered into an agreement for flat no.CG 4-1403 in the above-mentioned project on 23.04.2012. As per the demand of the opposite party, the complainant paid an amount of Rs.6,12,700/- on 16.05.2012. On 28.05.2012, the bank from where the complainants obtained the loan transferred an amount of Rs.19,79,000/- to the account of the opposite party as per the demand notice. The bank transferred an amount of Rs.3,89,099/- each on 19.09.2012 and 18.12.2012. On 18.03.2013, 22.03.2013 and 14.12.2013, the complainant transferred Rs.1,26,195/-, Rs.2,07,318 and Rs.3,33,900/- respectively to the account of OP.  The complainant transferred an amount of Rs.1,86,914/- to the account of the opposite party on 12.01.2015.  On 05.01.2017, the possession team of the opposite party company informed the complainant in a letter as regards pre-possession formalities and had also sent a calculation sheet of Service Tax and the possession payment demand notice showing a net dues of Rs.3,57,766/-. On the same day, the complainants received a mail from the opposite party with heading ‘payment demand letter’ showing the dues to be paid as Rs.3,74,088/-. On 07.01.2017, the complainant met the possession team of the opposite party in their office and raised objections on some demands made by the opposite party to which they agreed to consider the same. On 09.01.2017, the opposite party company accepted the objections raised on 07.01.2017 and issued a revised demand notice with a revised calculation sheet showing the final amount payable by complainant as Rs.2,70,091/- and asked to pay the said amount. Complainants paid this demand on 18.01.2017.  On 28.01.2017, the complainants received the provisional “no dues certificate” from the opposite party, but the opposite party did not inform the complainants the date of registration of conveyance deed/ sale deed and delivery of physical possession of  their flat in spite of several reminders sent by complainant no.1 through mail. The team of the opposite party on 10.02.2017 informed the complainants that they were supposed to get physical possession of their unit with completion of all finished and pending works within 45 to 60 days from the date of issuance of No Dues Certificate, i.e., by the end of March 2017.  On 04.03.2017, the complainants visited their unit at the site and found that the unfinished and pending works in the unit were as it is. As they were not able to get the possession of their flat, the complainants sent a legal notice to the opposite party on 24.04.2017 for handing over the possession of the completed unit within seven days of receipt of the notice, but the opposite party did not hand over the possession of the unit. The opposite party sent a reply to the legal notice sent by the complainants denying their claim and liability on 03.06.2017. The opposite party sent a mail to the complainants informing that the unit would be ready by the end of June 2017 as informed by the opposite party on 13.06.2017. On 17.07.2017, the complainant no.1 sent a last mail to the opposite party to hand over the possession of their unit within a period of seven days but the opposite party failed to deliver the possession of their unit. Consequently the complainants have filed the present complaint.

3.     The complaint has been resisted by the opposite party by filing the written statement. It has been stated that the delay has happened due to various Court orders and other litigations. The factors responsible for delay were beyond the control of the opposite party and therefore the opposite party cannot be penalized for such delay. It has been further stated that the occupancy certificate was already obtained, however, the complainant has not come forward to take the possession and is delaying the taking over of the possession. In these circumstances when the flat is ready and the opposite party is ready to hand over the possession, the request of the complainant for refund of the deposited amount cannot be accepted. It has been further stated that this Commission does not have the pecuniary jurisdiction to decide the present complaint as the total consideration of the flat is only Rs.55,69,289/- and the complainant has paid Rs.54,61,004/- only. It has been prayed to dismiss the complaint.

4.     Both the parties led their evidence by way of affidavits which have been taken on record.

5.     Heard the learned counsel for both the parties and perused the record. The learned counsel for the complainant stated that the flat was booked in the project of the opposite party in March 2012 by paying an amount of Rs.5,00,123/- to the opposite party. Further amounts were paid to the opposite party from the own funds of the complainant and an amount of Rs.19,79,000/- was paid by the bank to the opposite party on 28.05.2012. Similarly, amount of Rs.3,89,099/- was paid by the bank on 19.09.2012 and an equal amount was also paid on 18th December 2012. The complainant had paid total amount of Rs.54,61,004/- to the opposite party which is about 95% of the consideration, however, the possession was not handed over to the complainant. Every time the opposite party promised that the possession would be handed over, but again a new demand was sent to the complainant and the possession was not delivered. Finally, the opposite party sent a letter in January 2017 for completion of prepossession formalities demanding Rs.3,57,766/-. On negotiation, the opposite party reduced this amount to Rs.2,70,091/- which was also paid to the opposite party in January 2017 itself. The complainant also received a provisional no dues certificate from the opposite party on 28^th January 2017 and it was given to understand that possession will be handed over within 45 to 60 days. However the complainant visited the site in March 2017 and was surprised to see that the construction of the flats was not complete. Then the complainant sent a legal notice on 24^th April 2017 to hand over the possession within a period of 7 days, however, the possession was still not handed over, rather, the opposite party in their reply dated 03.06.2017 to the legal notice accepted that the flats were under construction and no firm date was given even in the reply for handing over the possession. In these circumstances, the complainant decided to seek refund of the amount paid as there was no certainty about getting the possession of the allotted flat even after 4 years of the due date of possession as per the agreement. The learned counsel has further stated that there has been so much of delay in getting the possession that the complainant is now not interested in taking the possession of the allotted flat as it is not going to serve any purpose for the complainant and the complainant seeks refund of the amounts paid along with 24% per annum interest.

6.     On the other hand, the learned counsel for the opposite party stated that the delay had occurred due to various Court orders for which the opposite party was not responsible. It was stated that writ petition was filed before the Hon’ble High Court bearing WP No. 37443 of 2011 and others titled Gajraj Singh vs State of UP and others. The Hon’ble High Court vide judgment and order dated 21.01.2011 directed Greater Noida Authority and the builders not to carry out any development work and not to implement the Master Plan 2021, till the observations and directions of the National Capital Regional Planning Board were incorporated in the Master Plan 2021, to the satisfaction of the Board. The authority, and in turn the builders were directed to pay an additional compensation at the rate of 64.670% to the farmers. The order dated 21.10.2011 was challenged before the Hon’ble Supreme Court in Civil Appeal no. 4506 of 2015, Savitri Devi vs State of UP and others and the Hon’ble Supreme Court was pleased to uphold the decision of the Allahabad High Court. Delay was caused on account of the farmers agitation and the pending litigation.

7.     Delay was also caused on account of the fact that by interim orders dated 14.08.2013 and 17.09.2013 passed in OA no. 158 of 2013 titled Amit Kumar vs UOI and others, the National Green Tribunal restrained all construction activities within a radius of 10 Kms of the Okhla Bird Sanctuary. Construction in the present project could not be continued during the pendency of the interim order which was eventually vacated by final order in OA no. 158 of 2013 by the National Green Tribunal on 03.04.2014 as the National Green Tribunal found that there was no declaration of an eco-sensitive zone extending to 10 km from the Okhla Bird Sanctuary by the State Government. Delay caused on account of the above facts was not due to any omission on the part of the appellant. The NGT vide final order dated 03.04.2014 in OA no. 158 of 2013 left it to the discretion of the Government to fix the limit of the eco-sensitive zone. The Government of India notified an area up to 100 meter from the Eastern, Western and Southern boundary and an area upto 1.27 km from the northern boundary of the Okhla Bird Sanctuary as an eco-sensitive zone. No construction could be carried on by the petitioner company on account of uncertainty due to pendency of litigation till 19.08.2015, when it was notified that only area upto 100 m from the bird sanctuary would fall within the eco-sensitive zone.       

8.     The learned counsel for the opposite party further stated that in spite of these hurdles, the construction was completed and occupation certificate was obtained on 02.12.2015. Since then, the complainant is delaying taking over of the possession.

9.     It has further been argued by the learned counsel for the opposite party that this Commission does not have the pecuniary  jurisdiction as the total consideration of the flat is only Rs.55,69,289/- and the complainant has paid Rs.54,61,004/- in total. The complainant has asked interest at the rate of 24% per annum. The latest orders of the Hon’ble Supreme Court are that in refund cases, interest at the rate 9% per annum can be granted. With this interest rate, the amount of refund along with compensation in the form of interest cannot reach the limit of Rs.one crore and therefore this Commission does not have the pecuniary jurisdiction to decide the present complaint. In this regard, the learned counsel referred to the judgment of this Commission in the case Sumit Kumar vs Orissa Infrastructure Pvt., Ltd., - CC no. 1116 of 2017 and IA no. 5423 of 2017 decided on 05.05.2017 where the complaint was dismissed on the ground of pecuniary jurisdiction in a similar matter.

10.   The complainant had sought compensation on many counts including the interest at the rate 24% on the deposited amount along with money spent on rent as well as compensation for mental agony for which there is no justification. Time and again this Commission has held that compensation cannot be asked under several heads to reach the pecuniary jurisdiction of the Commission and otherwise also, compensation can only be granted keeping the deficiency of the opposite party in view.

11.   The learned counsel for the opposite party argued that when the occupation certificate was ready and the possession was not deliberately taken by the complainant, the opposite party is not liable to make any interest payment beyond the date of occupation certificate. In support of his argument, the learned counsel for the opposite party relied upon the judgment of the Hon’ble Supreme Court in the case M/s Supertech Ltd., vs Rajni Goyal - Civil Appeal no. 6649-50 of 2018 decided on 23.10.2018 where it has been held that the interest payment was required to be made till the date of occupation certificate only.

12.   We have carefully considered the arguments advanced by both the learned counsel for the parties and have examined the record. We will first examine the issue of pecuniary jurisdiction for the present complaint. First of all, the compensation demanded by the complainant is by way of interest and also for the rental expenditure as well as compensation for mental agony. The complainant has calculated these compensations to be more than Rs.One crore and therefore prima facie this Commission admitted the complaint and issued notice. This Commission in the case of Gaurav Aneja & Anr. Vs. Supertech Limited, II (2018) CPJ 365 (NC) has held that for pecuniary jurisdiction, interest at the rate 18% per annum can be considered. Thus if we calculate the interest at the rate 18% per annum from the date of respective deposits of different amounts, the interest comes to approximately Rs.45,60,800/- and if this amount is added to the amount paid of Rs.54,61,004/-, the figure crosses Rs. one crore. Therefore, this Commission has the pecuniary jurisdiction.

13.   The learned counsel for the opposite party has contended that the delay has been caused due to various Court orders and other litigations in the matter. However, it is seen that all these litigations ended by end of 2015 as per the information given in the written statement filed by the opposite party. The learned counsel has asserted that the occupation certificate was also received on 02.12.2015 and therefore, there seems to be a contradiction in these two assertions made by the learned counsel for the opposite party. Another contradiction which emerges from the record is that the opposite party in its reply dated 3^rdJune 2017 to the legal notice sent by the complainant has informed the following:-

“We have instruction to say that your client has been allotted a flat being Unit no. CG – 4/1403, Supertech Capetown, Sector 74, Noida (UP) under the ‘Flexi Payment Plan’. We have instruction to say that the constructions of flats are in full swing.”

14.   Thus, it is not clear if the occupation certificate was already received by the end of 2015, how the construction of flats was in full swing in June 2017. It is further seen that in the reply to the legal notice sent by the opposite party, there is no whisper of the occupation certificate obtained in the year 2015, rather, the following has been mentioned:-

“We have instructions to say that the contents of paragraph 13 of your legal notice under reply are wrong and denied. We have instructions to say that the delay in possession of flat is neither intentional not willful but due to the unforeseen and unavoidable circumstances beyond the control of our client. We have instructions to say that your client is liable to pay the remaining amount in terms of agreement. The unlawful grievances of your client is denied in toto for the reasons mentioned in the foregoing paras of the present reply.”

15.   From the reply to the legal notice, it is clear that the construction of the flats was continuing in June 2017 and no promise was given in this reply to the complainant to hand over the possession in the near future. The possession was due as per the agreement by October 2013. However, the construction was continuing till 2017 and the possession was not offered by that time in spite of the legal notice issued by the complainant and in spite of issuance of the no dues certificate by the opposite party. Though the opposite party had issued no dues certificate to the complainant, but despite this, the possession was never offered to the complainant till filing of the complaint. If the occupation certificate was really received by the end of 2015, it is not clear as to why the possession could not be delivered even after issuing the no dues certificate to the complainant. Clearly, there has been grave deficiency on the part of the opposite party and there has been inordinate delay in completion of the project and handing over of the flat. The Hon’ble Supreme Court in Civil Appeal No.12238 of 2018 -Pioneer Urban Land & Infrastructure Ltd. vs Govindan Raghavan has held that if there is inordinate delay in handing over the possession, the complainant cannot be compelled to take the possession even if the unit is complete and occupation certificate has been obtained. In fact, the order reads as under:-

“3.8. The National Commission vide Final Judgment and Order dated 23.10.2018 allowed the Consumer Complaint filed by the Respondent - Flat Purchaser, and held that since the last date stipulated for construction had expired about 3 years before the Occupancy Certificate was obtained, the Respondent - Flat Purchaser could not be compelled to take possession at such a belated stage. The grounds urged by the Appellant - Builder for delay in handing over possession were not justified, so as to deny awarding compensation to the Respondent - Flat Purchaser. The clauses in the Agreement were held to be wholly one - sided, unfair, and not binding on the Respondent - Flat Purchaser. 6The Appellant - Builder was directed to refund Rs.4,48,43,026/- i.e. the amount deposited by the Respondent - Flat Purchaser, along with Interest @10.7% S.I. p.a. towards compensation.

9. We see no illegality in the Impugned Order dated 23.10.2018 passed by the National Commission. The Appellant - Builder failed to fulfill 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.”

16.   From the above, it is certain that the complainant is entitled to seek refund of the deposited amount in the circumstances of the case.

17.   Even though the compensation has been sought under many heads, the only way to compensate the complainant would be to grant interest on the amount of refund. In observing this, we are supported by the decision of the Hon’ble Supreme Court in DLF Homes Panchkula Pvt. Ltd. & Anr. Vs. D S Dhanda, ETC; Sudesh Goyal, ETC, 2019 Law Suit (SC) 1207 where the following has been observed:-

“18. This Court in a judgment reported as Secretary, Irrigation Department, Government of Orissa & Others vs. G.C. Roy examined the question as to whether an arbitrator has the power toward interest pendente lite. It was held that a person deprived of use of money to which he is legitimately entitled has a right to be compensated for the deprivation which may be called interest, compensation or damages. Thus, keeping in view the said principle laid down in the aforesaid judgment, the amount of the interest is the compensation to the beneficiary deprived of the use of the investment made by the complainant. Therefore, such interest will take into its ambit, the consequences of delay in not handing over his possession. In fact, we find that the learned SCDRC as well as NCDRC has awarded compensation under different heads on account of singular default of not handing over possession. Such award under various heads in respect of the same default is not sustainable”.

18.   It is seen that the learned counsel for the opposite party has erroneously relied on the judgment of the Hon’ble Supreme Court in the case M/s Supertech Limited vs Rajani Goyal (Supra) because that judgment is in a matter where the possession was sought and order was issued for handing over the possession whereas, in the present case, the matter relates to refund of the deposited amount.

19.   The Hon’ble Supreme Court in the case of Kolkata West International Pvt. Ltd. Vs. Deva Asis Rudra, II (2019) CPJ 29 (SC) has reduced the rate of interest from 12% per annum as given by this Commission to 9% per annum in case of refund. Further, the Hon’ble Supreme Court in the case of DLF Homes Panchkula Pvt. Ltd. & anr. Vs. D S Dhanda, ETC; Sudesh Goyal, ETC, 2019 Law Suit (SC) 1207 has ordered refund of the deposited amount along with 9% per annum interest.

20.   Based on the above discussion, we allow the complaint No. 2265 of 2017 and direct the opposite party to refund the amount of Rs.54,61,004/- along with interest at the rate 9% per annum from the date of respective deposits till actual payment. The opposite party shall also pay Rs.25,000/- to the complainant as cost of litigation for the present complaint. The order be complied with by the opposite party within a period of 45 days from the date of receipt/service of this order.