Chandigarh

StateCommission

A/136/2023

SUSHMA BUILDTECH LIMITED - Complainant(s)

Versus

USHA RANI - Opp.Party(s)

SANJEEV SHARMA ADV

21 Dec 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T. CHANDIGARH

[Additional Bench]

 

Appeal No.	:	A/136/2023
Date  of  Institution	:	19/06/2023
Date   of   Decision	:	21/12/2023

 

 

 

 

 

Sushma Buildtech Limited, B-107, First Floor, Business Complex, Elante, Industrial Area, Phase-I, Chandigarh.

 

….Appellant

Vs.

 

Usha Rani w/o Dharamveer Sharma, 777C, Mona Aeroview Apartments, Swastik Vihar, Patiala Road, Zirakpur, District Mohali (Punjab).

…. Respondent

 

BEFORE: MRS. PADMA PANDEY   PRESIDING MEMBER

                PREETINDER SINGH      MEMBER

 

PRESENT	:	Sh. Sanjeev Sharma, Advocate for the Appellant.
		Sh. Snehdip Oberoy, Advocate for the Respondent.

 

PER PREETINDER SINGH, MEMBER

 

1.         This appeal is directed against the order dated 12.12.2022, rendered by the District Consumer Disputes Redressal Commission-II, U.T. Chandigarh (for brevity hereinafter to be referred as “the Ld. Lower Commission”), vide which, it allowed the Consumer Complaint bearing no.CC/404/2020, by passing the following order: -

“12.   Accordingly, the present complaint is allowed with direction to the OP to refund an amount of Rs.21,79,894/-  to the complainant along with interest @12% p.a. from the respective date(s) of deposit till its payment, less the amount, if any, already paid to the complainant. The OP is also directed to pay an amount of Rs.20,000/- to the complainants towards compensation for causing them immense mental agony and harassment, along with litigation cost of Rs.11,000/-.

13.    The above said order shall be complied with by the OP jointly & severally within a period of 45 days from the date of receipt of its copy, failing which they shall be liable to pay additional cost of Rs.11,000/- to the complainants, apart from the above awarded amount.

14.    The pending application (s), if any, stands disposed of accordingly”.

2.         For the convenience, the parties are being referred to, in the instant Appeal, as position held in Consumer Complaint before the Ld. Lower Commission.

 

3.         Before the Ld. Lower Commission, it was the case of the Complainant that she was allotted one commercial unit measuring 446.73 sq. ft. bearing No.15 on 12th floor to be constructed by the Opposite Party in the project known as “Sushma Chandigarh Infinium” located at Chandigarh-Ambala Highway, Zirakpur, Mohali for a total consideration of ₹20,44,127/- excluding other taxes vide allotment letter dated 24.08.2013. The complainant paid an amount of ₹10,59,962/- as a booking amount. A buyer’s agreement dated 26.08.2013 was executed between the parties. Subsequently assured plan agreement of even date was also executed and the Opposite Party assured to pay monthly return @ ₹34.07 per sq. ft. till the physical possession of the unit. As per Clause 9 of the agreement, the possession was assured to be delivered within 42 months, with an extended period of six months, from the date of execution of the agreement.  Subsequently, the tripartite agreement was executed between the complainant, Opposite Party and the HDFC Bank for an amount of ₹7.00 lacs. The developer was bound to pay monthly pay out in accordance with the assured return plan agreement dated 26.08.2013, yet the same was halted in the month of June, 2019 without assigning any reason. Vide letter dated 18.09.2019, the paper possession of the unit was offered with an intention to wriggle out of the liability under the assured return plan agreement. The complainant visited the site and observed the sorry state of affairs as the unit in question was nowhere close to its completion. Majority of the work of the unit and the project was still left to be completed.  The complainant alleged to have paid a sum of ₹21,79,894/- to the OP.  Due to delay in possession, the complainant allegedly incurring monthly losses @ ₹25,000/- p.m. Left with no other alternative, the complainant got served the legal notice dated 24.06.2020 requiring the Opposite Party to refund the entire amount with interest etc., but to no effect. Hence, the aforesaid Consumer Complaint was filed before the Ld. Lower Commission, alleging deficiency in service and unfair trade practice on the part of the Opposite Parties.

 

4.         In the reply filed before the Ld. Lower Commission, while admitting the factual matrix of the case, Opposite Party pleaded that it has paid the assured return to the tune of ₹10,55,090/- to the complainant from the year 2013 to 2019 as per agreement prior to offer of possession and the complainant has accepted the said amount. It was stated that there was no definitive agreement stating that the possession would definitely be delivered within 42 months and extended period of 6 months thereof from the date of execution of the unit buyer’s agreement. It was asserted that the complainant was offered possession complete with all approvals and amenities in place on 18.09.2019 and an amount of ₹2,45,274/- is still outstanding as on 12.03.2020 which includes installment amount, interest, electricity and maintenance charges etc. Denying all other allegations and pleading no deficiency in service, the Opposite Parties prayed for dismissal of the Complaint.

 

5.         On appraisal of the pleadings of the Complainant and the evidence adduced on the record, Ld. Lower Commission allowed the Complaint of the Complainant as noticed in the opening para of this order.  

 

6.         Aggrieved against the aforesaid order passed by the Ld. Lower Commission, the instant Appeal has been filed by the Appellant/Opposite Party.

 

7.         We have heard the Learned Counsel for the Parties and have gone through the evidence and record of the case with utmost care, along with the written synopsis advanced on behalf of the Respondent/Complainant.

 

8.         Learned counsel for the Appellant raised a plea that the Respondent/Complainant did not fall within the definition of ‘consumer’, it may be stated here that the plea so raised is not supported by any documentary evidence and as such the onus shifts to the Appellant to establish that the complainant has purchased the unit in question for commercial purpose as was held by the Hon’ble National  Commission in Kavit Ahuja vs. Shipra Estates  I (2016) CPJ 31, but since the Appellant failed to discharge its onus, hence we hold that the Respondent/ Complainant is consumer. Plea taken in this regard by the Appellant, therefore, stands rejected. Thus, reliance sought to be placed by the Appellant on the decision of the Hon’ble National Commission in “CC/886/2020 - M/s Freight System (India) Pvt. Ltd. Vs. Omkar Realtors & Developers Pvt. Ltd. & Anr.”, decided on 25.01.2021, is misconstrued and misapplied being clearly distinguishable from the facts & circumstances of the case in hand and thus, the Appellant cannot be allowed to draw any benefit therefrom.  

 

9.         It is coming out from the record that the factum of purchase of the unit in question by the Respondent/ Complainant in the project of the Appellant/ Opposite Party in the manner stated above, execution of agreement, payments made by the Respondent/Complainant as mentioned in the complaint have not been disputed by the parties.  The dispute raised was qua non-deliverance of the possession complete in all respects, despite paying substantial amount in respect of the unit in question and non-refund of the deposited amount along with interest by the Appellant/Opposite Party.

 

10.         It is to be seen as to by which date, possession of the unit in question was to be delivered to the complainant. In the present case, agreement in respect of the unit in question was executed between the parties on 26.08.2013 and as per condition no.9 of the same, the Appellant/opposite party committed to deliver possession thereof, within a period of 42 months plus 6 months grace period. It is therefore held that possession of the unit in question was to be delivered latest by 25.08.2017 (42 months from the date of execution of the agreement plus grace period of 6 months). Record transpired, the Municipal Council, Zirakpur   vide letter dated 15.12.2017 (Annexure R-9) issued partial completion certificate for the project where the complainant has been allotted the unit in question. Further, the said Authority issued the Completion/Occupation certificate of the entire project vide letter dated 25.07.2019 (Annexure R-10).

 

11.         Admittedly, after obtaining due completion certificate, the Respondent/complainant was offered the possession of the unit in question on 18.09.2019 and it has been asserted that in order to justify the delay, the Appellant/Opposite Party had already paid an amount of ₹10,55,090/- to the Respondent/ complainant which has duly been received on account of delayed possession. It is a matter of fact that the Respondent/Complainant vide e-mail dated 04.11.2019 pointed out certain deficiencies, which showed that the Appellant/ Opposite Party was not in a position to deliver the possession of the unit. These assertions have duly been noticed by the Ld. Lower Commission in the light of the judicial pronouncement of the Hon’ble Supreme Court in Civil Appeal No.3533-3534 of 2017 – Fortune Infrastructure vs. Trevor’D Lima, (decided on 12.3.2018) while arriving at a conclusion that the stipulated period of handing over the possession had already been expired and the Appellant/ Opposite Party was not in a position to deliver the unit in question, complete in all respects, to the complainant as promised.

 

12.         The Ld. Lower Commission in the order impugned before us although ordered refund of an amount of ₹21,79,894/-  to the Respondent/ complainant, yet it failed to take due notice of the assured return of ₹10,55,090/- received by her from time to time from the Appellant/ Opposite Party on account of delayed possession. We are of the opinion that the Respondent/ Complainant cannot been allowed to doubly enrich at the cost of the Appellant/ Opposite Party by having received the assured return on one hand and on the other hand to get the refund of the amount paid. At any rate, the Respondent/Complainant is held entitled to the refund of the amount paid with interest @9% from the respective date(s) of deposit minus the amount of the assured return received by her from the Appellant/Opposite Party, along with interest @9% from the respective date(s) of receipt. It is the also case of the Appellant/ Opposite Party that the impugned order allowing refund along with interest @12% p.a. from the respective date(s) of deposit till its payment is contrary to the law laid down by the Hon’ble Supreme Court and this Commission in catena of judgments. We find sufficient force in the same and are of the opinion that the same is on the higher side and instead of 12% interest, it will meet the ends of justice if the Appellant/ Opposite Party is saddled with the liability to pay the interest @9% p.a. Here, we are fortified by the principle of law laid down by the Hon’ble Supreme Court of India in Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, Civil Appeal No.6044 of 2019, decided on 7.4.2022, wherein it was held as under:

“We are of the opinion that for the interest payable on the amount deposited to be restitutionary and also compensatory, interest has to be paid from the date of the deposit of the amounts. The Commission in the order impugned has granted interest from the date of last deposit. We find that this does not amount to restitution. Following the decision in DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda and in modification of the direction issued by the Commission, we direct that the interest on the refund shall be payable from the dates of deposit. Therefore, the Appeal filed by the purchaser deserves to be partly allowed. The interests shall be payable from the dates of such deposits.

At the same time, we are of the opinion that the interest of 9% granted by the Commission is fair and just and we find no reason to interfere in the appeal filed by the Consumer for enhancement of interest.”

                Further, Hon’ble National Consumer Disputes Redressal Commission, New Delhi in “M/s Manohar Infrastructure and Constructions Pvt. Ltd. & Anr. Versus Ankit Jain”, First Appeal No.185 of 2020 decided on 17.05.2022, reduced the interest rate awarded by this Commission on the deposited amount(s) from 12% to 9% and the penal interest from 15% to 12%. Following the case of Ankit Jain (supra), similar view was taken by Hon’ble National Commission in “M/s Manohar Infrastructure and Constructions Pvt. Ltd. Versus Kapil Dua”, First Appeal No.1516 of 2018 decided on 19.12.2022. Not only this, in a recent case  “M/s Manohar Infrastructure and Ors. Versus Jorawer Singh Mann”, First Appeal No.1800 of 2017 decided on 20.03.2023, the Hon’ble National Commission while reducing the rate of interest from 13% to 9%, ordered refund of the amount alongwith interest @9% p.a.  from the respective dates of deposit till the date of payment.

13.         In this view of the matter, we are of the concerted opinion that the orders passed by the Ld. Lower Commission in Para 12 of the order qua allowing refund of ₹21,79,894/- from the respective date(s) of deposit till its payment, along with interest @12% to the Respondent/ complainant needs modification. 

 

14.         In view of above, the present appeal stands partly accepted. The orders of the Ld. Lower Commission are modified and Appellant/ Opposite Party is directed to refund to the Respondent/Complainant the amount of ₹21,79,894/- along with interest @9% from the respective date(s) of deposit minus ₹10,55,090/- already paid towards the assured return along with interest @9% from the respective date(s) of receipt, till realization. The other part of the order with regard to compensation, litigation cost and penal clause for default in making compliance of the order is affirmed.

 

15.         No other point was urged by the Counsel for the Parties.

 

16.         All the pending application(s), if any, also stands disposed off accordingly.

 

17.         Certified Copies of this order be sent to the parties, free of charge.

 

18.         The file be consigned to Record Room, after completion.

Pronounced

21^st December,2023                                                                    

                                         Sd/-                         

                                                                (PADMA PANDEY)

PRESIDING MEMBER

 

 

Sd/-

(PREETINDER SINGH)

MEMBER

“Dutt”