For the Appellant Ms Kanika Agnihotri, Mr Shaurya Rohit and Mr Abhishek Das, Advocates For the Respondent Mr B P Agarwal, Advocate with Mr Umesh Singh Respondent – IN PERSON ORDER PER SUBHASH CHANDRA 1. This appeal under Section 51 of the Consumer Protection Act, 2019 (in short, the “Act”) is directed against the order dated 24.05.2022 of the Delhi State Consumer Disputes Redressal Commission, Delhi in Complaint no. 859 of 2017 allowing the complaint and directing the opposite party (appellant herein) to refund the complainant (respondent herein) Rs 25,77,585/- received towards consideration of the flat booked by the respondent with interest @ 6% till 24.05.2022 from the respective dates of deposit within 2 months failing which with interest @ 9% p.a., Rs 1,00,000/- for mental agony and harassment and Rs 50,000/- towards litigation cost. 2. We have heard the learned counsel for the parties and perused the records. The delay of 233 days in the filing of the appeal was considered in light of the application seeking condonation of the delay. For the reasons stated therein, the delay was condoned in the interest of justice. 3. The relevant facts of the case, in brief, are that appellant had allotted respondent a 3 BHK unit no. RF-67/TF, 3rd Floor admeasuring 113.71 sq m in its project Espania Royale Floors, Kamaspur, NH-1, Sonepat, Haryana vide allotment letter dated 05.01.2013. A Builder Buyer Agreement (BBA) was executed on 11.02.2013 as per which respondent agreed to make payments as per a Construction Linked Plan. The sale consideration agreed was Rs 27,49,085/- and possession was promised within 30 months from the date of the Agreement. Respondents paid the appellant Rs 25,77,585/- towards the sale consideration in various tranches and thereafter stopped making payments. According to the appellant this was despite several reminders. Respondents approached State Commission in CC No. 859 of 2017 in May 2017 which came to be decided on contest in favour of the respondents. This order is impugned before us. 4. On behalf of the appellant it was argued that the State Commission Failed to appreciate that the respondents were wilful defaulters who, despite receipt of demands for payment and reminders issued on 29.01.2013, 28.08.2013, 07.11.2013, 08.04.2014 and 26.06.2014, failed to deposit the instalments due. Therefore, they were not entitled to seek a refund or relief under the Act. It was contended that during the pendency of the complaint the appellant had offered possession of the unit in question subject to payment of outstanding dues and had also offered possession on 03.04.2021 for fit-out which was not accepted by the complainants/respondents. According to the appellant the respondents were investors and not “consumers”. The State Commission had erroneously concluded that there was deficiency of service on the part of the appellant. It was contended that the State Commission had unjustly penalised the appellant since it has been held by the Hon’ble Supreme Court in Randhir Singh vs Omaxe Chandigarh Extension Developers Pvt Ltd., 2014 SCC OnLine NCDRC 782 and Mera Baba Real Estate Pvt Ltd vs. Rakesh Jain, 2016 SCC OnLine NCDRC 1230 that offer of possession without payment of full consideration could not be made. It was also contended that the onus of proving deficiency in service lay on the respondents as held by the Supreme Court in SGS India Ltd. vs Dolphin International Ltd., 2021 SCC OnLine SC 879 and in Ravneet Singh Bagga vs KLM Royal Dutch Airlines and Anr., (2000) 1 SCC 66. It was submitted that the respondents remained in arrears of Rs 13,03,090/- despite notices. It was contended that the parties were bound by the terms of the Agreement and that as per Clause 7 of the BBA, timely payment was the essence of the contract. It was also submitted that the appellant had failed to disclose the full facts. 5. Per contra, the contention of the respondents is that appellants were required to hand over possession within 30 months from the date of the BBA executed on 11.02.2013 as per Clause 28 and therefore a legal notice was issued on 08.03.2017. It was stated that the appellants had unduly delayed in the handing over of possession and that there had been a gross deficiency in service on part of the appellants. Respondents contended that they were “consumers” under the Act and relied upon this Commission’s judgement in Narendra Kumar Bairwal and Ors., vs Ramprastha Promoters and Developers Pvt Ltd and Ors., in CC No. 1122 of 2018 decided on 01.11.2019 wherein it was held that the onus to prove that the purchase was for a commercial purpose lay on the appellant who was required to do so on the basis of documentary evidence, which had not been discharged. It was also contended that as possession had not been handed over as per the BBA, the respondents had a continuing cause of action as held by this Commission in Mehnga Singh Khera and others vs Unitech Ltd., I (2020) CPJ 93 (NC). It was further contented that the Hon’ble Supreme Court had in Wg Cdr Arifur Rehman Khan and Ors., vs DLF Southern Homes Pvt Ltd and Ors.,, 2020 (3) RCR (Civil) 544, held that “failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency”. Reliance was also placed on the judgement of the Supreme Court in Kolkata West International City Pvt Ltd vs Devasis Rudra, II (2019) CPJ 29 SC that the complainant cannot be made to wait indefinitely for delivery of possession and it would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession and therefore the prayer for refund of money was justified. It was also contended that this Commission had held in Aashish Oberai vs Emaar MGF Land Ltd, I (2017) CPJ 17 NC that in view of default on part of the builder in performing its contractual, the complainant allotted cannot be compelled to accept the offer of possession and was entitled to refund of the entire amount paid and in Emaar MGF Land Ltd. & Ors. Vs. Amit Puri, II (2015) CPJ 568 NC that after the date of delivery, it was the discretion of the allottee to either accept offer of possession or seek refund with reasonable interest. In this context, reliance was also placed on the Supreme Court’s judgment in Pioneer Urban Land & Infrastructure Ltd., Vs. Govindan Raghavan, II (2019) CPJ 34 (SC) which held that wholly one-sided terms in an Apartment Buyer’s Agreement are unfair and cannot bind the respondent to such contractual terms. It was also submitted that the appeal was barred by limitation. Counsel for the respondent also submitted, during oral arguments, that the offer of possession was not a valid offer as it was not supported by either a Completion or Occupation certificate and therefore was not acceptable. 6. From the foregoing, it is apparent that the appellant did not complete the project as undertaken in the BBA and offer possession to the respondent within the stipulated time of 30 months from the date of the Agreement, i.e. by 11.08.2015. Admittedly the offer of possession for fit out was made on 03.04.2021. Appellant has not denied that there was no Completion Certificate as on that date as alleged by the respondent. It is not denied that a sum of Rs 25,77,585/- stood received by the appellant against the sale consideration of Rs 27,49,085/- No evidence has been brought on record by the appellant that the respondent was issued any notice for cancellation of the allotment. Having not taken steps to do so, it is not open for the appellant to now contend that the respondents were ‘defaulters’ who could not claim relief before the Consumer fora. It is also manifest that the respondents have waited for nearly two years after the promised date of possession and thereafter sought refund of the money deposited with the appellant with compensation. The fact is that despite the payment plan being construction linked, construction had lagged and was not completed within the 30 months that was provided for in the BBA. The respondents were therefore stopped making payments and cannot be faulted for the same. The appellant cannot claim that they are not entitled to do so in light of Debasis Rudra (supra) and Govindan Raghavan (supra). In view of the default of the appellant in offering possession within a reasonable period of time after the expiry of the stipulated period of 30 months as undertaken by it in the BBA, the contention that the respondents were not entitled to refund cannot be sustained. In view of the fact that the appellant has also not brought any documentary evidence to establish that the respondents were engaged in the business of purchase and sale of flats or plots for profit, he has failed to discharge the onus of proof on him to establish that the respondents were not ‘consumers’ under the Act. Deficiency in service is therefore writ large on the appellant and the finding of the State Commission in this regard cannot be found fault with. We therefore see no reason to interfere with the same. 7. In so far as the quantum of compensation awarded by the State Commission is concerned, however, we consider it apposite to refer to the judgement of the Hon’ble Supreme Court in Experion Developers Private Limited Vs. Sushma Ashok Shiroor, 2022 SCC OnLine SC 416, wherein it has held that while compensation has to be compensatory and restitutionary, it should also be fair and just. It was also held that compensation in cases of refund @ 9% p.a. simple interest is a fair compensation from the respective dates of deposit. We tend to respectfully agree with this view of the Hon’ble Apex Court. 8. In light of the discussion above and the facts and circumstances of this case, we do not find merit in the appeal. The prayer to set aside the order of the State Commission is disallowed. However, the directions of the State Commission in the impugned order are modified as under: (i) appellant shall refund the amount of Rs 25,77,585/- to the respondent with interest @ 9% p.a. simple interest from the respective dates of deposit within 8 weeks of this order failing which the applicable rate of interest shall be 12% till realization. There shall be no deduction on any ground on this amount. (ii) appellant shall also pay the respondents litigation cost of Rs 50,000/- along with the refund with interest directed above. 9. The first appeal is disposed of with these directions. Pending IAs, if any, also stand disposed with this order. |
