1. < > challenge in these First Appeal Nos. 1886 of 2018, 1887 of 2018, 1888 of 2018, 1889 of 2018 and 160 of 2019, filed under Section 19 of the Consumer Protection Act, 1986 (hereinafter referred to as "the Act") by M/s. Arihant Shivank Infra Projects Limited (hereinafter referred to as the "Opposite Party Builder") is to the Orders dated 21.08.2018 and 20.11.2018 passed by the Rajasthan State Consumer Disputes Redressal Commission, Jaipur (hereinafter to be referred to as the "State Commission"), in Complaint Nos. 03 / 2017, 20 / 2017, 21 / 2017, 22 / 2017 and 23 / 2017 whereby the Complaints were allowed and the Opposite Party Builder was directed to refund the deposited amount by the Complainants alongwith 18% interest from the date of deposit. The Opposite Party Builder was also directed to pay 2 lakh towards compensation for mental agony and 50,000/- towards cost of proceedings.
Since the facts and question of law involved in all these Appeals are similar except for minor variations in the flat number and dates and events, these Appeals are being disposed of by this common Order. However, for the sake of convenience, First Appeal No. 1886 of 2018 is treated as the lead case and the facts enumerated hereinafter are taken from Complaint No. 20 of 2017.
1.Succinctly put, the material facts, giving rise to filing of the Complaint, are that the Opposite Party Builder is engaged in construction activities of both Commercial and Residential Projects.It had launched its residential Project in the name and style of 'Dynasty' located at Village Ramsingpura @ Rampura, Tehsil Saganer, Jaipur (hereinafter referred to as 'the Project').The Representative of the Opposite Party Builder visited Pilani and conducted a seminar in respect of the Project and provided the detailed information and Brochure of the Project to the Complainants. On the basis of the information provided by the Opposite Party Builder, the Complainant entered into an Agreement to Sell dated 12.07.2012 with the Opposite Party Builder and booked a flat, i.e., Flat No. 324, having super built-up area 930 sq. ft. for a total sale consideration of 15,44,400/- plus Service Tax.The Complainant had paid the booking amount of 1,55,583/- and the balance amount of 13,82,590/- alongwith service tax was to be paid as per payment schedule. As per Clause 9 of the Agreement, the Opposite Party Builder was liable to hand over the possession of the Flat by 30.04.2015 with a grace period of 12 months, i.e., latest by 30.04.2016.As per demand of the Opposite Party Builder, the Complainant deposited a sum of 15,83,400/- instead of 15,44,400/- upto February 2014.The Complainant approached the Opposite Party Builder for obtaining the information about physical possession of the Flat, where she was assured by the Opposite Party Builder that the possession of the flat will be handed over very soon. The Complainant personally visited the site to see the progress of the construction where she was surprised to see that there was a simple structure and no construction activity was going on at the site and the material used in the construction was of very low quality. After completion of 12 months of grace period, she again approached the Opposite Party Builder for getting possession of the Flat but the Opposite Party Builder again gave a stereo-typed reply that possession will be handed over very soon. She again visited the site and found that there was no development in construction activity. The site was as it was when she earlier visited. Despite receiving the full sale consideration, the Opposite Party Builder failed to deliver the possession within stipulated period and seeing the pace of construction activity there was no possibility of getting the possession of the flat in near future, therefore, the Complainant alleging Unfair Trade Practice and Deficiency in Service on the part of the Opposite Party Builder filed a Consumer Complaint before the State Commission seeking the following reliefs:-
"(1) Compensation mentioned in para 19 to 23 of the Complaint, i.e.,
19. That the Complainant according to her necessity booked a flat in DYNASTY, possession of which is not delivered by the Opposite Party Builder within stipulated time, due to which she is suffering loss for which she is entitled for Compensation of 20,00,000/- towards non-delivery of possession in time;
20. Complainant had to made multiple visits to the Opposite Party Builder for which she is entitled for compensation of 1,00,000/-;
21. Complainant and his family had to suffer mental agony for which she is entitled Compensation of 20,00,000/-;
22. She is entitled for Physical possession of the flat from the Opposite Party;
23. Complainant has deposited the amount with the Opposite Party after obtaining loan therefore, she is entitled for compensation in the form of Interest @18% p.a. on the deposited amount from the Opposite Party.
(2). Cost of Complaint and Advocate fees a sum of 1,00,000/-."
2. The Opposite Party Builder contested the Complaint before the State Commission by filing Written Statement. In the Written Statement, the Opposite Party Builder submitted that the delay in completing the Project had been caused due to obtaining Environment Sanction from the State Government which was to be granted within 90 days but the State Government took 11 months' time to grant the Environment Sanction in the absence of which Construction activity could not be possible and it disturbed the Construction Schedule. Accordingly, the delay was caused due to the reasons which were beyond their control and, therefore, they are not liable to pay damages for delay in handing over the possession of the Flat. However, in terms of Clause 9 of the Agreement, they are liable to pay damages @ 5/- per sq. ft. per month for the delayed period and that too only in normal circumstances. The Opposite Party Builder further submitted that they are still ready to give the possession of the Flat to the Complainant. There is no deficiency in service or unfair trade practice on their part and prayed that the Complaint be dismissed.
3. During the proceedings, before the State Commission the Opposite Party Builder was granted time to file Evidence on record subject to payment of costs. But the Opposite Party failed to deposit the Cost, therefore, Evidence of the Opposite Party Builder was not taken on record by the State Commission.
4. After hearing both the Parties, perusal of material on record and relying upon the Judgments of this Commission in "Jitendra Balani vs. Unitech Ltd." (CC No. 511 / 2015 dated 08.02.2016) and "Pankaj Kothari vs. Unitech Ltd." (CC No. 308 / 2014 dated 13.04.2016), the State Commission held that the Complainant is entitled for the refund of money alongwith interest and allowed the Complaints in afore-mentioned terms by observing as under:-
"The contention of the complainant is that interest should be allowed @ 18% as per agreement to sale the non-applicants are also charging the same rate of interest on the delayed payment or default and reliance has been placed on judgment passed by the National Commission in Consumer Complaint No. 144/2011 Subhash Chander Mahajan Vs. Parsvnath Developers Ltd.
In view of the fact that the non-applicants are charging 18% interest on the delayed payment it is in the fitness of the things to allow same rate of interest to the complainant in case of default on the part of the non-applicants.
The other contention of the non-applicant is that he is ready to give possession of the property but to substantiate this contention no documentary evidence, completion certificate is submitted and in view of above this contention has no force.
In view of the above the complaint is allowed. The complainant is entitled for refund of Rs.15,83,400/- alongwith 18% interest from the date of deposit. The complainant is also entitled for a sum of Rs.2 lakhs as compensation for mental agony and Rs. 50,000/- as cost of proceedings. The order be complied within one month."
5. Feeling aggrieved by the Orders dated 21.08.2018 and 20.11.2018 passed by the State Commission, the Opposite Party Builder has filed the present Appeals before this Commission.
IA No. 15137 / 2019
1.M/s. Arihant Shivank Infra Projects Limited, the Appellant has filed an Application being IA No. 15137/2019 seeking condonation of 28 days' delay in filing Review Application No. 249 of 2019 seeking review / modification of Interim Order dated 19.07.2019 passed in FA No. 160 of 2019.Heard the Learned Counsel for the Parties and perused the averments made in the Application seeking condoantion of delay of 28 in filing the Review Application. We are satisfied that the Appellant had given sufficient reasons for condonation of the delay. Accordingly for the reasons stated in the Application, delay in filing the Review Application is condoned and the Review Application be treated as having been filed within limitation. IA No. 15137/2019 stands allowed.
REVIEW APPLICATION NO. 249 / 2019 in FIRST APPEAL No. 160 / 2019
2.Appellant, M/s. Arihant Shivank Infra Projects Limited, has filed the RA No. 249 / 2019 under Section 22 of the Consumer Protection Act, 1986 seeking review / modification of interim Order dated 19.07.2019 passed in FA No. 160 / 2019 to the extent that the Appellant shall not limit its right to appeal only as far as the interest of 18% is awarded rather will challenge the Order dated 20.11.2018 passed by the State Commission in CC No. 03 / 2017 and direction of "Appellant refunding the amount of 12,87,587/- alongwith interest 9% @ from the date of each deposit to the Complainant/respondent within four weeks by way of demand draft. The Appellants are also directed to pay compensation and cost of proceedings as awarded by the State Commission" is stayed till the final disposal of the present appeal.
3.Since the facts of the case and question of law involved all these matters are similar, we have decided to deal all these matters on their merit through this common Order, therefore, without going into the merits of the Review Application, FA No. 160 / 2019 is also being decided alongwith other Appeals through this Common Order on merits.
4.Mr. Devesh Tripathi, learned Counsel for the Appellants submitted that the State Commission had adjudicated the present cases without taking the Evidence of the Appellant on record. According to him the Opposite Party Builder (the Appellant herein) have suffered irreparable loss as their Evidence was not taken on Record by the State Commission which has resulted in gross failure of justice. He prayed that the evidence filed by the Opposite Party Builder should be taken on Record and the matter should be decided after taking into consideration the evidence filed by the Opposite Party Builder. The State Commission overlooked the Clause 9 of the Agreement according to which the Opposite Party Builder is liable to pay compensation @Rs.5/- per sq. ft. for delay in handing over the possession only in case of delay in normal circumstances and they are not liable to refund the money.The State Commission has erred in awarding an exorbitant sum of 15,83,400/- alongwith 18% interest from the date of deposit in addition to the compensation of 2 lakh. He relied upon Judgments of Hon'ble Supreme Court in the case of Ghaziabad Development Authority vs. Balbir Singh, (2004) 5 SCC 65 and K.A. Nagamani vs. Housing Commissioner, Karnataka Housing Board, (2015) 16 SCC 587 and submitted that the quantum of compensation to be awarded be decided after considering the merits in different cases. He further submitted that the Complainant did not follow the payment schedule and there was default on the part of the Complainants in making the payment. He further submitted that requisite Statutory Approvals from the State Government Department have been obtained and they issued Offer of Possession letter to the Complainant on 15.11.2017 but the Complainant did not accept the offer of possession and harassing the Opposite Party Builder by filing frivolous Complaints. He submitted that the Orders dated 21.08.2018 and 20.11.2018 passed by the State Commission are bad in law and prayed that the Orders dated 21.08.2018 and 20.11.2018 be set aside and their Appeals be allowed.
5.Per Contra, Ms. Ankita Chaudhary, learned Counsel for the Respondents / Complainants supported the Orders passed by the State Commission as according to her the State Commission had passed well-reasoned Orders which are based on a correct and rightful appreciation of evidence and material available on record and do not call for any interference. She further submitted that the State Commission was perfectly justified in law in not taking the evidence filed by the Opposite Party Builder on record.
6. We have heard Mr. Devesh Tripathi, learned Counsel for the Appellants, Ms. Ankita Chaudhary, learned Counsel for the Respondent, perused the Impugned Orders passed by the State Commission, the Complaints, the Written Statement and all the documents on Record.
7. It is evident that the State Commission has passed the Impugned Orders without taking on record the Evidence filed by the Opposite Party Builder as the Builder has failed to deposit the Costs. After taking into consideration the various pleas raised by the learned Counsel for the Parties, we are of the considered opinion that the State Commission was not justified in law refusing to take the evidence filed by the Opposite Party Builder merely on the ground of not depositing the Costs. It ought to have granted some more opportunity for depositing / payment of the Costs. Thus, there has been failure of just
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ice.We are, therefore, not going into the various pleas on merits of the Appeals raised by the learned Counsels for the Parties, leaving it open for them to raise it before the State Commission. Therefore, without going into the merits of the Appeals, in the interest of justice, the impugned Orders passed by the State Commission are set aside and the matters are remanded back to the State Commission for proper adjudication of the cases after taking into account the Evidence filed by the Opposite Party Builder.All the Complaint Case Nos. 03/2017, 20/2017, 21/207, 22/2017 and 23/2017 are restored to the files of the State Commission. The Evidence filed by the Opposite Party Builder shall be taken on record by the State Commission subject to payment of Costs of 5,000/- by the Opposite Party Builder to the Complainant, in each case, within 10 days from today. The State Commission is requested to expeditiously decide the matters afresh after taking into account the Evidence filed by both the Parties, preferably if possible within six months from the date of first appearance before the State Commission. The Parties and/or their Counsels shall appear before the State Commission on 25.02.2021 and shall file a copy of this Order.The Registry is directed to refund the statutory amount alongwith accrued interest, if any, to the Appellant within 10 days from today. The First Appeals stand disposed off in above terms. However, in the peculiar facts and circumstances of the case, there shall be no Order as to Costs. Order Dasti.