National Consumer Disputes Redressal
Inderjit Singh Bakshi vs S.M.V. Agencies Pvt. Ltd. on 30 November, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 729 OF 2013 (Against the Order dated 26/08/2013 in Complaint No. 19/2013 of the State Commission Chandigarh) 1. INDERJIT SINGH BAKSHI S/O. SHRI SOHAN SINGH R/O. 403, SECTOR-35-A, CHANDIGARH ...........Appellant(s) Versus 1. S.M.V. AGENCIES PVT. LTD. SCO 64-65, GROUND FLOOR, SECTOR-34-A, CHANDIGRAH ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE D.K. JAIN, PRESIDENT HON'BLE DR. B.C. GUPTA, MEMBER For the Appellant : Mr. Gurpreet Singh, Advocate Mr. G. Malhotra, Advocate For the Respondent : Mr. Kabir Sarin, Advocate Dated : 30 Nov 2015 ORDER This First Appeal by the Complainant is directed against the order, dated 26.08.2013, passed by the State Consumer Disputes Redressal Commission, UT Chandigarh (for short "the State Commission") in Complaint No. 19 of 2013. By the impugned order, in the Complaint filed by the Complainant against the Respondent/Developer, seeking compensation and interest on account of delay in delivery of possession of the flat in question, the State Commission has granted the following reliefs to the Complainant:-
"(i) The opposite party shall pay shall pay compensation/penalty @Rs.5/- sq. ft., of the super area, per month, for the period of delay, i.e., 01.07.2009 to 30.11.2012, to the complainant.
(ii) The opposite party shall further pay Rs.1.50 lacs, as compensation, for mental agony and physical harassment, caused to the complainant, for delayed offer of possession of the flat, in question.
(iii) The opposite party shall further pay Rs.20,000/-, as cost of litigation, to the complainant.
(iv) The amounts mentioned, in Clauses (i) and (ii) shall be paid by the opposite party, within a period of 45 days, from the date of receipt of a certified copy of the order, failing which, the amount mentioned in Clause (i), shall carry interest @9% p.a., from 01.07.2009 till realisation, whereas, the amount of compensation, mentioned in Clause (ii), shall carry interest @9% P.A., from the date of filing the complaint, till realisation, besides payment of cost of litigation."
2. Briefly stated, the facts necessary for disposal of this Appeal are that the Complainant, an individual, had booked a flat on the fifth floor of the project launched by the Respondent under the name and style of Jaipuria Sunrise Greens, Zirakpur, admeasuring approximately 1747 sq. ft. The total cost of the flat was agreed to be Rs.34,00,920/-. In addition to the essential earnest money, amounting to Rs.4,00,000/-, paid by the Appellant/Complainant to the Respondent on 2.04.2008, a further sum of Rs.25,36,428/- towards part-sale consideration was paid by the Complainant on 24.04.2008. It appears that subsequently, with mutual consent, the flat allotted at the 5th floor was exchanged with another flat at the ground floor, with the same area, vide allotment letter dated 20.11.2009. According to the Complainant, the possession of the flat was to be delivered by 30.06.2009. However, having realised that the completion of the flat in the near future was not in sight, the Complainant filed the Complaint against the Respondent, inter alia, praying for a direction to the Respondent to pay to him a sum of Rs.10,00,000/- as compensation and damages and a further sum of Rs.44,000/- towards litigation expenses alongwith interest @12% p.a., on the amounts deposited by him with the Respondent as also on the amount claimed as compensation, totalling to Rs.41,15,278/-.
3. The Complaint was resisted by the Respondent on diverse grounds, including on the preliminary objection of maintainability of the Complaint on the ground that the Complainant was not a 'Consumer'. It was pleaded that since the possession of the flat had already been offered to the Complainant initially on 26.09.2012 and later on 20.05.2013, the relief prayed for could not be granted.
4. On appraisal of the material placed on record by the parties, the State Commission has come to the conclusion that undoubtedly there has been a delay in completion and delivery of the possession to the Complainant. Accordingly, relying on Clause 30 of the letter of allotment dated 18.04.2008, the State Commission has directed the Respondent to pay to the Complainant a compensation/penalty @ Rs.5/- per sq. ft. of the super area per month for the period from 01.07.2009 to 30.11.2012. The State Commission has, however, rejected the stand of the Complainant that there being no circumstances which could be considered as a force majeure condition, he is entitled to interest @18% p.a. on the amount already deposited, instead of a compensation/penalty @Rs.5/- per sq. ft. The State Commission has directed that if the amounts, mentioned in para 1(supra) are not paid within a period of 45 days from the date of receipt of the copy of the order, interest @ 9% p.a. shall be payable on the said amounts from 01.07.2009 till realisation.
5. We have heard learned counsel for the parties and perused the documents on record.
6. The main contention urged by learned Counsel for the Complainant is that having come to the conclusion that there were force majeure circumstances, as pleaded on behalf of the Respondent, the State Commission erred in not awarding interest @ 18% p.a. and restricting the fixed compensation @ Rs.5/- per sq. ft. in terms of Clause 30 of the Agreement. In the alternative, it is pleaded that the Respondent/Developer having used Complainant's money to the tune of Rs.26,36,428/-, deposited as far back as on 24.05.2008, and the Complainant is yet to get the possession of the flat, he is entitled to interest on the said amount @18% p.a.
7. Per contra, learned counsel appearing for the Respondent has vehemently submitted that the possession of the flat having been offered to the Complainant in the year 2012 and later in the year 2013 and he having refused to accept the offer on the plea that the flat is not complete in every respect, no further interest, in addition to what has already been awarded by the State Commission is payable to the Complainant. It is also alleged that as a matter of fact, the Complainant is not interested in taking possession of the flat, otherwise he would have taken recourse to execution proceedings.
8. Having carefully perused Clause 30 of the said Agreement, we are not persuaded to agree with learned Counsel for the Complainant. A bare reading of the Clause shows that in the event of delay in possession of the flat to an allottee, the Developer had committed itself to pay to the allottee a compensation @Rs.5/- per sq. ft. of super area per month. However, the said payment was subject to the force majeure Clause. In short, the effect of the said Clause was that in the absence of any force majeure circumstances, the Complainant was entitled to receive compensation @Rs.5/- per sq. ft., which has correctly been awarded by the State Commission. However, the question for consideration is as to whether Complainant is entitled to any interest on the aforesaid amount which he had deposited with the Respondent as far back as in May 2008.
9. We are not convinced with the stand of the Respondent that the possession of the flat having been offered to the Complainant in the year 2012 and then in 2013, there was no inordinate delay in delivery of possession, which was to be delivered in the year 2009. Admittedly in the year 2012 or even in 2013, when the possession is claimed to have been offered, the Respondent was not possessed of the completion certificate from the authorities concerned. As a matter of fact, it is conceded that requisite completion certificate has been recently received in the year 2015. If that be so, offer of possession, stated to have been made to the Complainant in the year 2012, was no offer at all. An allottee is not obliged to take possession of a flat unless it is complete in every respect, including the completion certificate.
10. In the light of the above-noted factual matrix, and bearing in mind the fact that till date the possession of a complete flat to the Complainant has not been delivered, we are of the opinion that since as per stipulation in the Agreement that in the event of delay in payment of any amount by the Complainant to the Respondent, the Complainant was liable to pay interest to the Respondent @ 18% p.a., on the same analogy, in addition to the paltry amount Rs.1,50,000/- awarded by the State Commission as compensation, the Complainant is entitled to interest @ 12% p.a. on the amount deposited by him in the year 2008, i.e., Rs.29,36,428/- from 30.06.2009, i.e., the committed date of possession of the flat till the date of realisation. The said amount shall be paid to the Complainant within 6 weeks from the date of receipt of the copy of this order.
11. The Appeal stands disposed of in above terms with no order as to costs.
......................J D.K. JAIN PRESIDENT ...................... DR. B.C. GUPTA MEMBER