These two revision petitions have been filed by the petitioner Divya Ashirwad Properties Pvt Limited challenging two separate orders of the State Commission dated 20th August 2015 passed in two separate appeals 1615 of 2012 and 1516 of 2012.
2. Brief facts leading to these revision petitions are given below:
RP 2378 of 2015
The complainant Prakash Chand Chajard booked a kiosk No. SKF-23 in the proposed project of the petitioner company after making payment of Rs.11,000 as advance in the name of his wife Smt. Umed Kumari and the said kiosk was allotted in the name of Smt. Umed Kumari on 5th May 2007. On 15.12.2008, after the death of the wife of the complainant, the complainant got the booking canceled and requested the petitioner to refund the amount deposited but the amount was not refunded despite repeated requests. Aggrieved, the complainant filed a consumer complaint before the District Forum being complaint No. 244 of 2012. The petitioner/opposite party contested the complaint by filing the reply stating that the kiosk was booked in the name of wife of the complainant under easy installments/ construction linked plan in which she had to deposit the entire amount in 11 installments. Clearly all the installments were not deposited and therefore the complainant was asked by the petitioner to fill the surrender form. As the terms and conditions of the surrender form were not acceptable to the complainant, the surrender was not accepted. The kiosk was booked for commercial purpose with a view to earn profit. Accordingly it was stated that the complainant was not a consumer and moreover complainant had no privity of contract with the petitioner opposite party until the complainant brought a succession certificate from the competent court for which the complainant was advised by the petitioner.
3. The District Forum after hearing both the parties allowed the complaint vide it's older dated 30th October 2012 and directed the petitioner opposite party to refund Rs.3,09,000/- along with 10% p.a. interest from the date of issue of notice i.e. from 30th September 2009 till actual payment. The opposite party was also directed to pay Rs.20,000/- as compensation and Rs.2,000/- as cost of litigation.
4. Aggrieved by the order of the District Forum, the opposite party preferred an appeal before the State Commission being appeal No. 1615 of 2012. The complainant also preferred appeal bearing No. 1516 of 2012 before the State Commission. The State Commission dismissed both the appeals vide it's older dated 20th August 2015.
RP 2379 of 2015
5. The respondent complainant booked shop No. LG-17 in the proposed project of the petitioner/opposite party and paid advance amount of Rs. 11,000/- and the shop was allotted to the complainant. After paying few installments, the complainant decided to withdraw from the project and sought refund of the amount paid by her to the opposite party as the progress of construction was not good and development under the project was incomplete. The complainant had paid a total sum of Rs.9,07,200/-. The opposite party asked the complainant to complete the surrender form, however, as the terms and conditions of the surrender were not acceptable to the complainant, the surrender form was rejected by the opposite party. Aggrieved by the actions of the opposite party, the complainant filed a consumer complaint No. 293 of 2012 before the District Forum. The complaint was resisted by the petitioner opposite party by filing the written reply stating that the complainant had booked the shop for commercial purpose with a view to earn profit. Due to downturn of the real estate market, the complainant is seeking refund as the purpose of investment has not been fulfilled. Thus, the complainant is not a consumer. The complainant is also a defaulter as out of 11 installments she has paid only a few installments and as per the conditions of the allotment, these installments are to be forfeited by the opposite party. It was requested to dismiss the complaint.
6. The District Forum, however, allowed the complaint vide it's order dated 30th October 2012 and directed the petitioner opposite party to refund the amount of Rs.9,07,200/- along with interest @10% per annum from the date of notice that is from 30th September 2009 till actual payment along with Rs.50,000/- as compensation and Rs.2000/- as cost of litigation.
7. Aggrieved by the order of the District Forum, the petitioner opposite party preferred an appeal bearing No. 1616 of 2012 before the State Commission. The complainant also preferred appeal bearing No. 1517 of 2012 before the State Commission. The State Commission dismissed both the appeals vide it's older dated 20th August 2015.
8. Hence, the present revision petitions.
9. Heard the learned counsel for the respondents as nobody turned up for the petitioner for arguments.
10. The learned counsel for the respondents/complainants stated that the petitioner has taken mainly three grounds in the revision petitions. The first is that the respondent complainants are not consumers as they had booked the kiosk/shop for investment purpose to earn profit. In this regard the learned counsel for the respondents stated that every purchase of an immovable property is an investment. It is wrong to say that due to slump in the real estate market, the complainants have filed applications for refund. The fact is that in revision petition No. 2378 of 2015, the complainant had to cancel the allotment and to seek refund because the wife of the complainant who was the allottee of the kiosk died in 2008 itself and then there was no purpose for keeping the allotment alive. In respect of the revision petition No. 2379 of 2015, the learned counsel stated that the petitioner opposite party had promised to give possession by December 2008, however, the construction of the shops in the mall was not complete even till the filing of the complaint in November 2009. When there was no progress in the construction of the shop, there was no hope of starting the business in the shop and therefore refund was sought.
11. It was stated by the learned counsel for the respondents that the second point raised in the revision petitions is that Mr Prakash Chand Chajard has filed both the complaints though Mr Prakash Chand Chajard does not have any privity of contract with the opposite party and he should have brought the succession certificate in CC No 244 0f 2012.The learned counsel stated that the complainant in complaint No. 244 of 2012 is the husband of the allottee and the allottee expired therefore, he is the natural successor of the allottee and therefore he is entitled to file the complaint on behalf of the deceased allottee to get the refund. Similarly in the other case, Mr Prakash Chand Chajard is the power of attorney holder for the complainant Rashmi Chajard who is his daughter-in-law and therefore as power of attorney he has filed the complaint. So it is wrong to say that the complaints cannot be filed by Mr Prakash Chand Chajard as there is no privity of contract between Mr Prakash Chand Chajard and the petitioner opposite party. Thus, there is no substance in the objection raised by the petitioner opposite party that Mr Prakash Chand Chajard should first bring the succession certificate to be able to seek refund of the deposited amounts.
12. The third point raised in the revision petition is that the complainants had not paid the installments as per the demand and therefore they are defaulters and they cannot claim any interest on the amount of refund. In this regard, the learned counsel for the respondents stated that the State Commission has given a finding that no provision could be shown by the opposite party before the State Commission for forfeiture of the installments paid, rather, the State Commission has mentioned that as per condition No. 8 of the allotment letter if the installments are not paid, the allotment will be canceled and the amount will be refunded. In the revision petitions, the petitioner has not countered the finding of the State Commission that there was no provision for forfeiture of the installments paid by the complainants. Thus, clearly the amount paid by the complainants cannot be forfeited by the petitioner opposite party. In fact, the amount should have been refunded as per condition 8 of the allotment letter because the installments were not paid and therefore the allotment should have been canceled. The complainants are entitled to get interest on the amount of refund because the amounts remained with the petitioner opposite party for quite some time.
13. I have carefully considered the arguments advanced by the learned counsel for the respondents and examined the record. I have also seen the revision petitions filed by the petitioner. The learned counsel for the respondents has argued on the three main points raised in the revision petitions.
14. In both the cases the District Forum has only allowed refund of the paid amounts by the complainants along with interest of 10% per annum. A nominal compensation and cost of litigation has also been ordered in both the cases. The orders passed by the District Forum in both the cases are reasonable so far they relate to refund and that is why the State Commission has also dismissed the appeals filed by the petitioner herein.
15. The complainants in their complaints have stated that their case is a consumer dispute and is covered under the Consumer Protection Act 1986 though there is no specific averment that the booking has been made for earning livelihood by means of self-employment. They have also not given any specific reason for purchase of the kiosk or shop except that in the complaint of Rashmi Chajard it is mentioned that due to delay in possession they could not start the business. Thus averments in the complaints only indicate that the complainants had booked these units for being used by them. The Hon’ble Supreme Court in Paramount Digital Color Lab & Ors. etc., Vs. Afga India Pvt. Ltd. & Ors. etc. III (2018) CPJ 12 (SC) has observed the following:-
“13. Thus, in our considered opinion, each case ought to be judged based on the peculiar facts and circumstance of that case. Whether the assistance of someone is required to handle the machine, is a question of fact and necessity? Ultimately, if it is purely for a “commercial purpose” and not for “self-employment”, the complainant may not get the benefit of the Explanation to Section 2 (1)(d) of the Act. The buyers of the goods or commodities for “self-consumption” in economic activities in which they are engaged would be “consumers” as defined in the Act. Furthermore, there is nothing on record to show that the appellants wanted to use the machine in question for purposes other than “self-employment”.
Therefore, the point to be considered is whether the appellants have purchased the machine in question for “commercial purpose” or exclusively for the purposes of earning their livelihood by means of “self-employment”. There cannot be any dispute that the initial burden is on the appellants to prove that they fall within the definition of “consumer”. It is pertinent to mention that respondent No. 4, who is a contesting party, did not choose to file a counter affidavit before the State Commission. In other words, he did not deny any of the claims made by the appellants. None of the parties have led their evidence. Based on the material on record before the State Commission, it proceeded to decide on merits. As the litigation is being fought since 2006 in different Forums, we do not wish to remand the matter, particularly, when there is sufficient material available on record for arriving at the conclusion.”
16. In the light of the above observation of the Hon’ble Supreme Court and keeping in view that even the opposite party has not placed any documentary or oral evidence to prove that the units were purchased for investment purpose and not for their own use and as no contrary evidence is on record, the benefit of doubt can be given to the complainants that they booked these units for earning their livelihoods by means of self-employment.
17. It has been objected by the petitioner that Mr Prakash Chand Chajard has no privity of contract with the petitioner and he has filed both the complaints. In complaint No. 244 of 2012 he has filed complaint as husband of the allottee and in the second complaint 293 of 2012 he has filed complaint on behalf of the allottee as power of attorney holder and also being the father-in-law of the allottee. In fact, it is mentioned in the revision petition that the petitioner had asked him to bring the succession certificate so that the amount could be refunded. The objection raised in the complaint No. 244 of 2012 seems to be a valid objection however, keeping in view the fact that the amount of refund is only about Rs.3 lakhs and the complainant is the husband of the deceased allottee and no other person has come forward to claim this amount, the State Commission has rightly ignored the objection and has allowed the refund to the complainant. In respect of the complaint No. 293 of 2012, it is clear that the complaint has been filed on behalf of the complainant by Mr Prakash Chand Chajard on the basis of the power of attorney. Clearly if the complaint has been allowed, the amount of refund will be given by way of demand draft in the name of the actual complainant and not in the name of the power of attorney holder.
18. An argument also has been raised in the revision petition that the complainants are defaulters as they have not paid installments as per the demand by the petitioner given in the allotment letter and therefore they are not entitled to any interest even if the amount is refunded to them. The State Commission has mentioned that nothing could be shown by the petitioner that there was a provision in the allotment letter for forfeiting the installments paid or the booking amount. The State Commission has also mentioned that condition No. 8 of the allotment letter states that if the installments are not paid, the allotment will be canceled and amount will be refunded. Based on this provision, the amount paid by the complainants has been ordered to be refunded by the State Commission. Even in the revision petitions, no ground has been taken that the finding of the State Commission is wrong and there is some provision for forfeiture of the installments or the booking amount. Therefore it is certain that there is no provision for forfeiture of the installments or the earnest money in the form of booking amount. If the installments were not paid by the complainants, the petitioner opposite party should have cancelled the allotment as per condition No. 8 of the allotment letter and should have refunded the amount, however this has not been done rather, the surrender form has also not been accepted by the opposite party. In these circumstances, the State Commission is right in ordering refund of the amounts paid by the complainants.
19. The question now arises for the rate of interest to be given on this amount of refund. The agreement between the parties in the form of allotment letter does not provide for any interest as per condition 8 of the allotment letter. The position in respect of the deficiency in service on the part of the opposite party is also not clear. In the complaints, it is only mentioned that the opposite party had promised to complete the construction by the end of December 2008 and to give the possession however, no such document is on record. The date of completion of the construction and the date of handing over the possession is not clear and the complainant has not provided any information in this regard which is based on documentary evidence. It has not been made clear in the complaints as to which provision of the agreement has been violated. Thus, in my view, the only deficiency on the part of the opposite party is that the opposite party has not refunded the amount as per condition No. 8 of the allotment letter after the installments were not paid and there was a request for refund of the amount. The opposite party should have disposed of the application for surrender/refund as per the provisions of the allotment letter which has not been done by the opposite party. The booking has been made in the month of May 2007 and the application for surrender/refund was filed by the end of the year 2008 on the ground of slow progress in the project. The ground is not something that is easily palatable. In these circumstance
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s, there seems to be no justification for award of interest at the rate of 10% per annum. If one strictly goes by the agreement, no interest is payable to the complainants, however, as the amount has remained with the opposite party, the complainants deserve some interest on the deposited amount in the light of the judgment of the Hon’ble Supreme Court in Alok Shanker Pandey Vs. Union of India &Ors., II (2007) CPJ 3 (SC) where the following has been observed:- “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.” 20. On the basis of the above examination and in the facts and circumstances of the case, I deem it appropriate to allow an interest of 6% per annum on the amount of refund instead of 10% as awarded by the District Forum and confirmed by the State Commission. 21. Based on the above discussion, the revision petitions are partly allowed and the orders of the fora below are modified to the extent that the rate of interest shall be 6% per annum instead of 10% per annum. Rest of the order passed by the District Forum in both cases is maintained. The orders of the District Forum as modified by this order be complied by the petitioner opposite party within a period of 45 days from the date of receipt of this order.