State Consumer Disputes Redressal Commission
Rachna Singla vs Country Colonisers Pvt. Ltd. on 30 January, 2018
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
Consumer Complaint No. 63 of 2017
Date of Institution : 03.02.2017
Date of Reserve : 17.01.2018
Date of Decision : 30.01.2018
Rachna Singla w/o Sh. Sumit Singla,R/o H. No. 253/8, Ram Basti,
Near P.O. Samana, C/o M/s Janki Dass Food, Tehsil Samana,
Distt. Patiala, Punjab.
....Complainant
Versus
M/s Country Colonisers Private Limited having its Registered Office
at P.O. Raon and Silk Mills, Adjoining Coca Cola Depot, G.T.
Road, Chheharta, Amritsar, Punjab - 143105
....Opposite party
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member.
Shri Rajinder Kumar Goyal, Member
Present:-
For the complainant : Sh. S.S. Gill, Advocate
For the opposite party : Sh. Tejeshwar Singh, Advocate
GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER
ORDER
Complainant has filed this complaint against the opposite party (hereinafter referred as Op) under Section 17 of the Consumer Complaint No. 63 of 2017 2 Consumer Protection Act, 1986 (for short the Act) on the averments that the complainant booked one apartment with Ops and their project under the name and style 'Wave Gardens' situated at Sector 85, Mohali on 14.5.2012 by paying a sum of Rs. 3,00,000/-. In furtherance of the booking, the Op allotted apartment No. 1103 in Tower Bougainvillea on 11th floor measuring approximately 1380 sq. ft. for a total sale consideration of Rs. 57,27,750/-. Consequently, an apartment allottee agreement (for short the agreement) was executed between the complainant and Op on 20.10.2012. As per Clause 5.1 of the agreement, the possession of the said apartment was to be handed over within 30 months alongwith an extended period of 6 months from the date of execution of the agreement. The complainant made the following payments:-
S. No. Date Amount (In Rs.)
1. 14.05.2012 3,00,000/-
2. 13.07.2012 5,00,237/-
3. 27.11.2013 10,66,982/-
4. 27.08.2014 5,00,000/-
5. 18.10.2014 13,91,202/-
6. 01.04.2015 4,00,118/-
Total 41,58,539/-
The complainant had also availed loan facility of Rs. 27 Lacs from HDFC Limited, Patiala, out of which a sum of Rs. 17,91,320/- has already been disbursed to the complainant on the basis of tripartite agreement between the parties. According to Clause 4.2 of the agreement, Ops were to charge 18% interest per annum for default Consumer Complaint No. 63 of 2017 3 in making payment within the specified dates and in case the Ops delay the possession, they will pay penalty @ Rs. 5/- per sq. ft. per month of super area. As per Clause 5.5 of the agreement, it is very meager because the complainant is paying back the EMIs to the bank @ 9.5 to 11%. As per Clause 5.1, the possession of the apartment was to be delivered by 19.10.2015 but Ops did not develop the project and there is no likelihood of the possessing being handed over to the complainant whereas the complainant is regularly paying the EMIs to the bank. Complainant wrote letter dated 9.8.2016 to the Ops raising her grievance regarding delay in offer of possession and requested the Ops to pay interest on the already deposited amount for the period till offer of possession but it fell on the deaf ears of the Ops. Alleging deficiency in service on the part of Ops, the complainant filed this complaint seeking following directions against the Ops:-
"a) Refund of the entire payment made to the O.P. i.e. Rs. 41,58,539/- along with interest @ 18% p.a. from the date of deposit of the amounts.
b) Compensation for mental agony and harassment amounting to Rs. 3,00,000/-.
c) Compensation for litigation expenses amounting to Rs. 50,000/-.
d) Any other relief which this Hon'ble Forum deems fit and proper may kindly be granted in the favour of the complainant.Consumer Complaint No. 63 of 2017 4
2. Op on service appeared and filed the written reply through their authorised signatory Raghav Sharma taking the preliminary objections that the complainant is not a consumer as defined under Section 2(1)(d)(ii) of the Act as the apartment in question was taken for commercial purposes as the complainant is already residing in House No. 253/8, Krishna Basti, Samana, Patiala. She is running various businesses in Patiala, therefore, no reason to get apartment at Mohali; in view of the Arbitration Clause, the complaint is not maintainable; the complainant made the payment with the delay, which is clear from the following table:-
S. Payment Stage Amount Due Date Paid on Delay No.
1. Within 90 days 5,33,490/- 24.08.12 25.11.13 1 Year 3 months
2. Commencement of 5,33,491/- 07.12.12 25.11.13 1 Year Construction
3. Ground Floor Roof 4,00,120/- 20.10.13 27.08.14 10 Months Slab
4. 4th Floor Roof Slab 4,00,117/- 22.03.14 27.08.14 7 Months 10.10.14
5. 8th Floor Roof Slab 5,45,483/- 15.06.14 10.10.14 4 Months
6. 12th Floor Roof 5,45,482/- 18.09.14 10.10.14 1 Month Slab In August, 2014, when a sum of Rs. 14,34,530/- (including delay interest) had become due against the complainant. A final notice was sent to the complainant whereby she was informed that after having sent for countless demand notices, a last opportunity is being given to her to pay the dues, failing which her booking shall be cancelled in terms of the agreement. Thereafter owing to her financial difficulty, she was constrained to procure a loan from HDFC and to facilitate the continuation of her booking, Ops agreed not to cancel the same and executed a tripartite agreement with the Consumer Complaint No. 63 of 2017 5 complainant, HDFC Bank to help the complainant as a goodwill gesture; the complaint is bad for non-joinder of HDFC as a necessary party. Out of the total payment of Rs. 41,58,539/-, a sum of Rs. 17,91,320/- have been paid by the HDFC Bank. There is no mandatory time period for completion of the construction because under Clause 5.1, it has been stated that the developer shall endeavour to complete the development of the project as far as possible within 36 months, subject to timely payment by the allottee, failing which the Op will be liable to pay Rs. 5/- per sq. feet per month of the super area of delayed period; the complaint for refund of the amount is not maintainable in the light of terms and conditions of the tripartite agreement and the payment plan opted by the complainant. The complainant himself is a defaulter, therefore, he is not entitled for the refund. Op entered into a memorandum of agreement dated 3.2.2006 with State of Punjab wherein as per Clause 5(e) of the said MOA, the State Government was to acquire land under the provisions of Land Acquisition Act, 1894 and transfer the same to the Op but the State Government failed to acquire the land for critical area, which was not in possession of the Op, which comes to 23.21 acres of the land.
Further external access was to be provided by GMADA; the State Commission does not have any jurisdiction to entertain and decide the present complaint on account of intricate questions of law and facts involved in it, which cannot be adjudicated in summary procedure, therefore, the matter be referred to the Civil Court; the Commission does not have the pecuniary jurisdiction to entertain Consumer Complaint No. 63 of 2017 6 this complaint and that there is no deficiency in service on the part of Op. In parawise reply, it is admitted that the complainant booked one apartment with Op for total sale consideration of Rs. 57,27,750/- and after that buyer's agreement was executed between the parties and the parties are to be governed by the terms and conditions contained in the buyer's agreement. It was also reiterated that the payments of the installments were not paid in time by the complainant and to facilitate the complainant to arrange the loan, tripartite agreement was executed between the Op, complainant and HDFC bank. Deficiency is on the part of the complainant and not on the part of the Ops. Complaint is without merit, it be dismissed.
3. The parties were allowed to lead their respective evidence in support of their complaint. Complainant in his evidence has tendered affidavit of Mrs. Rachna Singla as Ex. CW-1 and documents Exs. C-1 to C-4. On the other hand, Ops have tendered affidavit of Raghav Sharma, Auth. Signatory, as Ex. OP1/A, authority letter Ex. Op1/1 and documents Ex. Op-1/2 to Op-1/27.
4. We have heard the counsel for the parties and have carefully gone through the pleadings of the parties, evidence and documents on the record and our issue-wise findings are as under. Miscellaneous Application No. 2138 of 2017
5. Op has filed an application under Section 89 of the CPC for referring the case for mediation by pleading that in view of the order passed in "Vikram Bakshi V. Sonia Khosla", SLP NO. 6873 of 2010, the Hon'ble Supreme Court observed that Courts Consumer Complaint No. 63 of 2017 7 should emphasize the need of early resolution of the disputes and resort to mediation provided under Section 89 of the CPC, therefore, the case be referred to the mediation. However, we have gone through the application filed by the Op and as also pointed out by the counsel for the complainant that terms of mediation have not been referred by the Op in the application and orally also counsel for the Op was unable to tell the exact date when the possession of the flat complete in all respects shall be handed over to the complainant and what will be the fate of the interest amount after the due date upto the date of delivery of possession. Therefore, in the absence of any terms of resolution, the matter cannot be referred to the mediation, otherwise, the case is mature for arguments and has been fixed for arguments. Therefore, at this stage, the application has been moved by the Op just to avoid the decision. We do not see any merit in the application, the same is hereby declined.
Complaint on Merits
6. Before taking the complaint on merits, some preliminary objections have been taken by the Op, which are required to be addressed. It has been stated that the complainant is not a consumer because the apartment in question was booked for commercial purposes. It has been stated that the complainant owns a residential unit where she is residing House No. 253/8, Krishna Basti, Tehsil Samana, District Patiala; this address has been given in the complaint. It is not necessary that where the Consumer Complaint No. 63 of 2017 8 complainant is residing, it may be her ownership. No document with regard to the ownership of that house by the complainant has been placed on the record. Even if the complainant has this house at Samana, she has stated that she has booked this apartment for her and family members use. Therefore, in case another apartment has been booked for the use of the family, it does not mean that it was booked for commercial purposes. In case the complainant is running some business at Patiala that does not mean that the complainant cannot own a residential unit at Mohali. The real test to check whether the apartment was booked for commercial purposes is whether the complainant is trading in real estate but no such evidence is on the record. A reference can be given to the judgment 2017(3) CLT 459 "Pranab Basak versus Suhas Chatterjee". In that case, two flats were booked by the complainant and a plea was taken that the complainant had booked these flats for investment purposes. It was observed by the Hon'ble National Commission that unless it is established that the complainant is dealing in sale and purchase or his real intention in booking the flat was to sell the same on profit, on appreciation of the value of the real estate. Therefore in the absence of any evidence on the record that the complainant is trading in real estate, no findings can be recorded in favour of the Op that the complainant had booked the apartment for commercial purposes.
7. Op raised the objection that there is arbitration clause No. 13 exist in the agreement and in case of any dispute arose between the parties, the matter is to be referred to the Arbitrator. In Consumer Complaint No. 63 of 2017 9 case the Op was really interested that the matter should be referred to the Arbitrator then they should have moved an application under Section 8 of the Arbitration and Conciliation Act, 1996 alongwith the written reply but no such application was filed. Otherwise under Section 3 of the CP Act, additional remedy has been provided under the Act, therefore, we are of the opinion that the Consumer Fora are duly competent to deal with the complaint despite having the arbitration clause in the agreement.
8. It has been further contended that complaint is bad for non-joinder of necessary parties because the complainant had raised the loan from HDFC on the basis of tripartite agreement between the complainant and Ops. It would have been better for the complainant in case the HDFC would have been a party to the complaint to know the exact amount taken as a loan from the said Corporation but it has been referred in the complaint that HDFC paid a sum of Rs. 17,91,320/-, which has been admitted by the Op in para No. 5 of its reply. Therefore, even if HDFC has not been made a party, in case of refund, it can be ordered to firstly pay the amount due to the bank and the remaining amount shall be paid to the complainant. Therefore, the complaint can be decided without impleadment of the party alleged by the Op then the complaint cannot be dismissed on account of non-joinder of the parties. Therefore, we are of the view that complaint can be decided even in the absence of HDFC because the amount advanced by the HDFC has been admitted by both the parties, therefore, order can be passed to pay the amount due to the HDFC and the balance to Consumer Complaint No. 63 of 2017 10 the complainant. Therefore, we do not see any merit in the objection raised by the Op that the complaint is bad for non-joinder of necessary parties.
9. Another objection taken by the counsel for the Ops is with regard to intricate questions of law and facts are involved, therefore, the matter be referred to the Civil Court. In case we go through the pleadings of the parties, the complainant had booked one apartment with Op and had paid a sum of Rs. 41,58,539/- as demanded by the Op from time to time. Buyer's agreement is there and Op has failed to deliver the possession within the time frame. It is only the interpretation of agreement and then to see whether there is any deficiency in service on the part of Op. We do not see that any complicated questions of law and facts are involved, which cannot be adjudicated by this Commission. The benches of this Commission are headed by retired High Court Judges/retired District & Session Judges, who have long experience at their back and are fully competent to decide such like matters. In this regard, we are fortified by the judgment of "Dr. J.J. Merchant and others Vs. Shrinath Chaturvedi", 2002(6) SCC 635 wherein it was held that 'the State Commission and District Forum are headed by retired High Court Judges and officers of District Judge level and in our view, this is not such a case which cannot be decided by the 'Consumer Fora' after obtaining evidence and if need be after getting an expert opinion'. Further reference can be made to "Shiv Kumar Agarwal versus Arun Tandon and another", 2007(2) CLT 287, decided by the Hon'ble National Commission. In that Consumer Complaint No. 63 of 2017 11 case a plea that case involves complicated questions of fact and law and will need expert evidence, which is not possible in the summary proceedings adopted by the Consumer Fora repelled - Consumer Forum which is headed by Senior Judicial Officers, are capable of dealing with even complex questions. Therefore, we are of the opinion that this Commission is fully competent to decide this complaint and no cause of action is made out to refer the case to the Civil Court.
10. As per the averments in the complaint, the total cost of the apartment is Rs. 57,27,750/- and the complainant has paid a total amount of Rs. 41,58,539/- and on that amount interest @ 18% has been demanded. That amount has not been calculated by the counsel for the Op. He has not given the detail and the interest plus Rs. 3 Lacs has been demanded as compensation. No computation sheet has been filed by the counsel for the Op how the amount cross Rs. 1 Crore i.e. pecuniary jurisdiction of this Commission. During the course of arguments, counsel for the Op has not stressed upon this issue, therefore, this objection taken by the Op is only for the sake of objection, otherwise, the claim of the complainant falls within the pecuniary jurisdiction to this Commission.
11. It is an admitted fact that one apartment was booked by the complainant with the Op and apartment buyers' agreement was executed on 20.10.2012 as Ex. C-1. Payment schedule has been given as per the Annexure II, which reads as under:- Consumer Complaint No. 63 of 2017 12
Payment Plan Construction Linked Plan On Booking 3.0 Lacs for 2BHK, 5.0 Lacs for 3 BHK & 3+S BHK Within 45 days of booking 15% 15% of Sale Price less booking Amt.
Within 90 days of booking 10%
On commencement of 10%
construction
On completion of Ground Floor 7.5%
roof slab of the Tower
On completion of 4th Floor roof 7.5% +50% of PLC if
slab of the Tower applicable
On completion of final roof slab 7.5%
of the tower
On completion of external 7.5%
plaster of the Tower
On completion of Internal 7.5% +50% of Car Park
Flooring usage Rights
On completion of Services 7.5% +50% of Car Park
usage Rights
On intimation for possession 5% + other applicable
charges + Stamp
Duty &
Registration
charges
100%
No doubt that the complainant had paid a sum of Rs. 41,58,539/-, out of the total amount on various dates and there may be some delay in making the payment of these amounts as detailed in the written reply but ultimately, the delay was condoned by them as a goodwill gesture as referred by the Op in para No. 4 of the written reply in preliminary submissions, therefore, delay in payment, if any, is not material once it was condoned and allotment was not cancelled by the Op. As is clear from the payment schedule, the payment was construction linked and the complainant has paid Consumer Complaint No. 63 of 2017 13 upto the stage of completion of the roof slab and the remaining amount was required to be paid. There is demand letter dated 16.11.2012 Ex. Op-1/7, reminder dated 4.6.2013 Ex. Op-1/8 and another reminder dated 5.9.2013 Ex. Op-1/9 but that payment stands paid and then there is another demand notice dated 3.10.2013 and its payment was also made by the complainant.
Another demand notice is dated 24.2.2014, 24.5.2014 and 28.6.2014, its reminder is dated 15.7.2014 and the payment schedule shows that Rs. 5 Lacs was paid on 27.8.2014 and Rs. 13,91,202/- on 18.10.2014 after these notices. After that no notice has been placed on the record by the counsel for the Op that completion of the external plaster of the Tower is complete, internal flooring is complete and services are complete. Once the complainant has raised a loan from HDFC, he has no objection to make the payment, in case the stage of construction would have reached there but it is default of the Op that the remaining payment was not made by the complainant as that stage of the construction was not achieved by the Op. Therefore, there is delay on the part of Op to complete the construction. It has been stated that one agreement (MOA) was executed with the State of Punjab and they were to acquire 23.21 acres land for critical area of the Op and no offer was made by the Punjab Government to acquire this land. This position was in their knowledge at the time of entering into agreement and for that the complainant cannot be held liable and now that excuse cannot be taken for completion of the apartment. Consumer Complaint No. 63 of 2017 14
12. Another plea has been taken that in the agreement, it was only referred that Op shall endeavour to complete the development of the project, so far as possession within 36 months and it was not out date. Under Section 6 of the PAPRA, the Op is required to give the outer date. There is no Clause under the PAPRA that builder shall endeavour to complete the development within such a time, therefore, in case a time has been given in the advertisement that will be taken as an outer date but the Op has not been able to complete the construction within the stipulated period and to hand over the possession to the complainant. In case the Op fails to deliver the possession within the specific time then complainant cannot be asked to wait for indefinite period and it amounts to deficiency in services. It has been so held by the Hon'ble National Commission in case reported as II (2014) CPJ 131 "PUDA versus Kanwalpreet Singh" that in case there is delay in handing over the possession, it amounts to deficiency in service and refund order can be passed. A reference has also been made to I (2017) CPJ 513 (NC) "Neha Suri versus Unitech Reliable Project Pvt. Ltd." In that case, the possession of the flat was not given as agreed. It amounts to deficiency in service. Amount deposited alongwith interest was ordered to be refunded.
13. It has been further argued by the counsel for the Op that according to Clause No. 5.5, in case there is delay in delivery of the possession then the Op is liable to pay the penalty as per Clause 5.5 i.e. @ Rs. 5/- per sq. ft. per month of super area from the date, the possession was to be delivered upto the date of Consumer Complaint No. 63 of 2017 15 payment. Whereas it has been contended by the counsel for the complainant that in case of late payment, the Op is claiming interest @ 18% then similar treatment be given to the complainant. Complainant was at disadvantageous stage. It is one sided agreement and on account of that in case of default on the part of complainant, he has to pay 18% interest whereas Op is to pay just 3%. This question has been dealt in detail by the Hon'ble National Commission in CC No. 427 of 2014 "Satish Kumar Pandey & Anr. Vs. M/s Unitech Ltd." decided on 8.6.2015 wherein the Hon'ble National Commission observed as under:-
"However, a term of a contract, in my view will not be final and binding if it is shown that the consent to the said term was not really voluntary but was given under a sort of compulsion on account of the person giving consent being left with no other choice or if the said term amounts to an unfair trade practice. It was submitted by the learned counsel for the complainants that the term providing for payment of a nominal compensation such as Rs.5/- per square foot of the super area having become the order of the day in the contracts designed by big builders, a person seeking to buy an apartment is left with no option but to sign on the dotted lines since the rejection of such term by him would mean cancellation of the allotment. He further submitted that a person seeking to acquire a built up flat instead of purchasing a plot and then raising construction on it, therefore, is not in a position to protest resist the inclusion of such a term in the Buyer's Agreement, and has to rely upon the reputation of the builder, particularly if he is a big builder such as Unitech Ltd. He Consumer Complaint No. 63 of 2017 16 also submitted that the format of the Buyer's Agreement is never shown to the purchasers at the time of booking the apartment and if he refuses to sign the Buyer's Agreement on the format provided by the builder, not only will he lose the booking, even the booking amount/earnest money paid by him will be forfeited by the builder. I find merit in the above referred submissions of the learned counsel. A person who, for one reason or the other, either cannot or does not want to buy a plot and raise construction of his own, has to necessarily go in for purchase of the built up flat. It is only natural and logical for him to look for an apartment in a project being developed by a big builder such as the opposite party in these complaints. Since the contracts of all the big builders contain a term for payment of a specified sum as compensation in the event of default on the part of the builder in handing over possession of the flat to the buyer and the flat compensation offered by all big builders is almost a nominal compensation being less than 25% of the estimated cost of construction per month, the flat buyer is left with no option but to sign the Buyer's Agreement in the format provided by the builder. No sensible person will volunteer to accept compensation constituting about 2-3% of his investment in case of delay on the part of the contractor, when he is made to pay 18% compound interest if there is delay on his part in making payment.
It can hardly be disputed that a term of this nature is wholly one sided, unfair and unreasonable. The builder charges compound interest @ 18% per annum in the event of the delay on the part of the buyer in making payment to him but seeks to pay less than 3% Consumer Complaint No. 63 of 2017 17 per annum of the capital investment, in case he does not honour his part of the contract by defaulting in giving timely possession of the flat to the buyer. Such a term in the Buyer's Agreement also encourages the builder to divert the funds collected by him for one project, to another project being undertaken by him. He thus, is able to finance a new project at the cost of the buyers of the existing project and that too at a very low cost of finance. If the builder is to take loan from Banks or Financial Institutions, it will have to pay the interest which the Banks and Financial Institutions charge on term loan or cash credit facilities etc. The interest being charged by the Banks and Financial Institutions for financing projects of the builders is many times more than the nominal compensation which the builder would pay to the flat buyers in the form of flat compensation. In fact, the opposite party has not even claimed that the entire amount recovered by it from the flat buyers was spent on this very project. This gives credence to the allegation of the complainants that their money has been used elsewhere. Such a practice, in my view, constitutes unfair trade practice within the meaning of Section 2(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practice for the purpose of selling the product of the builder. Though, such a practice does not specifically fall under any of the Clauses of Section 2(1)(r) of the Act that would be immaterial considering that the unfair trades, methods and practices enumerated in Section 2(1)(r) of the Act are inclusive and not exhaustive, as would be evident from the use of word "including" before the words "any of the following practices".Consumer Complaint No. 63 of 2017 18
The same view was upheld by the Hon'ble National Commission in CC No. 347 of 2014, "Swarn Talwar & Ors. Vs. Unitech Ltd." decided on 14.8.2015. A reference has also been made to the judgment of the Hon'ble Supreme Court in "K.A. Nagmani Vs. Housing Commissioner, Karnataka Housing Board", C.A. No. 6730-6731, decided on 19.9.2012. In that case, the District Forum has allowed interest @ 12% p.a. and its appeal was dismissed by the State Commission as well as the Hon'ble National Commission and after relying upon the judgment of "Ghaziabad Development Authority Vs. Balbir Singh", (2004) 5 SCC 65, the interest @ 18% per annum on the deposited amount was allowed alongwith Rs. 50,000/- as compensation. Against the judgment of the Hon'ble National Commission in "Swarn Talwar & Ors. Vs. Unitech Ltd.", C.C. No. 347 of 2014 (supra), Op preferred the appeal before the Hon'ble Supreme Court i.e. Civil Appeal No. 35562 of 2015, decided on 11.12.2015 and passed the order as under:-
"We have heard learned counsel for the appellant and perused the record. We do not see any cogent reason to entertain the appeal. The judgment does not warrant any interference.
The Civil Appeal is dismissed."
14. However, it was further observed by the Hon'ble National Commission in another judgment 2017(3) CLT 520 (NC) "Ankur Goswami versus Supertech and another" wherein the Hon'ble National Commission observed that this clause in the Consumer Complaint No. 63 of 2017 19 allotment letter would be applied to the case where allottee is seeking possession of the flat and where allottee is not seeking refund of the amount. However, in the present case, the allottee is seeking the refund, therefore, the penalty @ Rs. 5/- per sq. ft. will not be applicable. Further under Rule 17 i.e. Rate of Interest on refund of advance money upon cancellation of agreement of Punjab Apartment and Property Regulation Rules, 1995, it has been provided as under:-
"17. Rate of Interest on refund of advance money upon cancellation of agreement. - The promoter shall refund full amount collected from the prospective buyers under sub- section (1) of section 6 together with interest thereon at the rate of twelve per cent per annum payable from the date of receipt of amount so collected till the date of re-payment."
In the above rule it has been observed to refund the amount alongwith interest @ 12% p.a. The complainant has taken a loan from HDFC and the interest rate varied from 11% to 9%. Therefore, to be just and reasonable, the complainant will be entitled to interest @ 12% on the deposited amount.
15. In nutshell, the Op has failed to deliver the possession to the complainant as promised even after receiving more than 70% of the payment from the complainant, in this way, the Op is deficient in their services. Accordingly, we allow the complaint and direct the Op as under:-
Consumer Complaint No. 63 of 2017 20
(i) refund a sum of Rs. 41,58,539/- alongwith interest @ 12% p.a. from the various dates of deposit till actual payment;
(ii) HDFC Bank will have the first charge on whatever amount has been paid to Op from HDFC Bank alongwith the upto date interest. Firstly the payment will be made to HDFC Bank of the amount due in its accounts against the complainant and the balance payment will be made to the complainant.
(iii) pay Rs. 1 Lac as compensation to the
complainant in equal share; and
(iv) pay Rs. 21,000/- as litigation expenses.
The above directions be complied by Op within a period of 45 days from the date of receiving of the copy of the order, failing which the complainant will be at liberty to execute the order by filing application under Sections 25 & 27 of the CP Act against the Ops.
16. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
17. The counsel for the parties/parties are directed to collect free certified copy of the order from the office of the Commission within a period of 15 days from the date of pronouncement.
(GURCHARAN SINGH SARAN)
PRESIDING JUDICIAL MEMBER
January 30, 2018. (RAJINDER KUMAR GOYAL)
as MEMBER
Consumer Complaint No. 63 of 2017 21