National Consumer Disputes Redressal
Vivek Kishorchandra Mehta & Anr. vs Puranik Builders Pvt. Ltd. & Anr. on 3 October, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 522 OF 2017 (Against the Order dated 20/01/2017 in Complaint No. 347/2016 of the State Commission Maharashtra) 1. VIVEK KISHORCHANDRA MEHTA & ANR. Resident of 2402, E-2, Neelkanth Green, Tiju-ji-ni-wadi Road, Manpada, Thane West Maharashtra 2. Komal Vivek Mehta Resident of 2402, E-2, Neelkanth Green, Tiju-ji-ni-wadi Road, Manpada, Thane West, Maharashtra ...........Appellant(s) Versus 1. PURANIK BUILDERS PVT. LTD. & ANR. Through its Managing Director, Puraniks One, Kanchand Pusph,Near Suraj Water Park, Kavesar, Ghodbunder Road, Thane West Thane-400 607, Maharashtra 2. Mehta Realtors Through Mr.Jitendra Mehta, 401, 4th Floor, Dev Corpora, Near Cadbury Junction, Eastern Express Highway, Thane West 400 601, Maharashtra ...........Respondent(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Appellant : Mr. B.S.Banthia , Advocate For the Respondent : For the Respondent No.1 : Mr. Mohit P Bhansali, Advocate
For the Respondent No.2 : Mr. Nilesh Parte, Advocate
Dated : 03 Oct 2018 ORDER
This appeal has been filed by the appellant Vivek Kishorchandra Mehta & anr. against the order dated 20.1.2017 of the State Consumer Disputes Redressal Commission, Maharashtra ( in short 'the State Commission') passed in Complaint No.CC/16/347 wherein the complaint filed by the complainants has been dismissed. The appellant had filed complaint bearing No. CC /16/347 before the State Commission against the opposite parties/respondents alleging that an amount of Rs.60,00,000/- was paid to the opposite parties by the complainants for booking of a three room flat. However, there was no construction, so, complainants asked for the refund of the same and the amount was refunded by the opposite parties. However, the opposite parties did not pay any interest on the amount. The complaint was resisted by the opposite parties stating that only Rs.40,00,000/- were paid by the complainants and the same was refunded without any deduction. The State Commission dismissed the complaint vide its order dated 20.1.2017 as under:-
"[1]Ad. Sachin Daga is present for the complainant. Adv. Mohit Bhansali is present for the opponent no.1. Adv. Nilesh Parte is present for the opponent no.2. He has filed his vakalatanama on record.
[2] It appears that complainant himself has cancelled the booking of the flat no.404 out of Building no.A-3. It is admitted fact that the complainant received back an amount of Rs.60,00,000/- paid towards consideration without any protest. It appears that the contract between the parties came to an end. Now, relationship between the parties does not exist as consumer and service provider. Therefore, consumer complaint is not admitted and dismissed in limine."
2. Hence the present appeal.
3. Heard the learned counsel for both the parties and perused the record.
4. Learned counsel for the appellants stated that the amount of Rs.40,00,000/- were paid on 25.4.2014. However, the complainants came to know on 22.3.2015 that there was no three BHK flat in the project though the booking was made for three BHK flat. Accordingly, the complainants objected to issue of any allotment letter by the opposite parties and sought refund of the paid amount. Opposite parties agreed to repay on current market price or atleast 18% p.a. interest on the paid amount. The actual amount was refunded from August, 2015 to October , 2015. However, no interest has been paid by the opposite parties though the money remained with opposite parties for over a year.
5. It was further argued by the learned counsel for the appellants that the State Commission has wrongly concluded that the relationship of the complainants with the opposite parties as consumer and service provider ended when the paid amount was refunded by the opposite parties to the complainants. The finding of the State Commission is not based on any law or any legal pronouncement of the Hon'ble Supreme Court or of this Commission. A consumer complaint can be filed within a period of two years from the cause of action and even if the relationship supposedly came to an end on the date of payment, the complaint can be filed within a period of two years from that date. The complaint was filed in the year 2016 and the refund of the amount was made from August 2015 to October 2015. Hence the complaint was well in time and the relationship of consumer and service provider shall be deemed to continue till that date.
6. The State Commission has also mentioned that the amount of refund was received by the complainants without any protest. It was argued that there was no option but to accept the refund, otherwise the complainants would not have received even that amount and would have suffered further. However, payment of interest is intrinsic to the fact that the money remained with the opposite parties for a long time i.e. more than a year. Thus, the State Commission has erred in passing the impugned order, which is not sustainable either in the eyes of law or in the facts and circumstances of the present case.
7. On the other hand, learned counsel for the respondents/opposite parties stated that there was no agreement between the parties for paying any interest on the paid amount. There was also no agreement in the form of allotment letter or builder -buyer agreement between the parties otherwise the opposite parties would have claimed forfeiture of earnest money. It was a simple refund matter on the request of the complainants and the opposite parties refunded amount of Rs.40,00,000/- which was deposited by the complainants. It is wrong to say that Rs.60,00,000/- was paid to opposite parties. A fact is that only Rs.40,00,000/- were paid for booking of the unit and complainants issued a legal notice only for refund for Rs.40,00,000/-, so, there is no question of paying any interest on Rs.60,00,000/-. When there is no agreement for paying interest, the opposite parties are not liable to pay any interest to the complainants.
8. I have given a thoughtful consideration to the arguments advanced by the learned counsel for both the parties and have examined the record.
9. The State Commission has given a finding that the relationship between the parties came to an end after the amount was refunded by the opposite parties. The question is even if the agreement is cancelled and one party is aggrieved by non-implication of that agreement/understanding, Consumer Protection Act 1986 allows the consumer to file complaint within a period of two years and in the present case the complaint has been filed within a period of two years. Hence, the finding of the State Commission does not stand on a firm legal footing. So far as the question of protest by the complainants while receiving the amount is concerned, any protest on their part would have denied them the benefit of receiving the amount of refund and the prudence at that time demanded that they should first accept the refund and later claim for interest. Hence, both the grounds on which the complaint has been dismissed by the State Commission are not sustainable.
10. From the legal notice sent by the complainants to the opposite parties, it is clear that refund of only Rs.40,00,000/- was asked for. The opposite party No.1 in its reply has admitted receiving Rs.40,00,000/- and disputed the amount of Rs.60,00,000/-. The complainants have not filed rejoinder to the reply or any other proof that Rs.60,00,000/- was ever paid to the opposite parties.
11. Coming to the question of interest, it is the main argument of the appellant that amount remained with the opposite parties for about one year and therefore, the opposite party is liable to pay the interest on this amount. As there was no agreement between the parties, the opposite parties are not entitled to deduct any earnest money or any amount for that matter. Hon'ble Supreme Court in Alok Shanker Pandey Vs. Union of India &Ors., II (2007) CPJ 3 (SC) has held that:-
"9. It may be mentioned that there is misconception about interest. Interest is not a penalty or punishment at all, but it is the normal accretion on capital. For example if A had to pay B a certain amount, say 10 years ago, but he offers that amount to him today, then he has pocketed the interest on the principal amount. Had A paid that amount to B 10 years ago, B would have invested that amount somewhere and earned interest thereon, but instead of that A has kept that amount with himself and earned interest on it for this period. Hence equity demands that A should not only pay back the principal amount but also the interest thereon to B."
12. From the above judgment, it is clear that if money has remained for some time with the opposite parties, they are liable to pay some interest on that amount. As there was no agreement in terms of payment of interest or on the rate of interest and the complainant himself has cancelled the contract and demanded the refund of the amount paid, I deem it appropriate to allow a lump sum compensation equivalent to interest @6% p.a. on the amount refunded of Rs.40,00,000/- for one year. Thus, opposite parties have to pay Rs.2,40,000/- (rupees two lakhs forty thousand only) as interest on the refunded amount to the complainants.
13. Based on the above discussion, the appeal is allowed and the opposite party No.1/respondent No.1 shall pay Rs.2,40,000/- (rupees two lakhs forty thousand only) to the appellants/complainants within a period of 45 days from the date of receipt of this order.
...................... PREM NARAIN PRESIDING MEMBER