The present first appeal has been filed by M/s Barnala Builders and Property Consultants against the order dated 02.01.2019 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh (‘the State Commission) in Complaint no. 230 of 2016.
2. The brief facts of the case are that the complainant booked 2 apartments measuring 1852 sq. ft. consisting of 3 BHK each and therefore, apartment no. 602 and 604 were allotted vide allotment letter dated 19.10.2012 and 27.10.2012 respectively. The total value of the said flats after the discount was fixed to Rs.50,00,000/- and Rs.51,00,853/- respectively. The complainant deposited an amount of Rs.70,50,426/- towards the sale consideration of both the flats. Later, the complainant in lieu of both flats purchases an alternative 5 BHK flat bearing no. 603 vide allotment letter 07.02.2014 for total consideration of Rs.76,16,0000/- (after discount) and the deposited amount was adjusted towards the price of this alternative flat. As per the new allotment letter, the possession was to be handed over in May 2015 subject to clearance of all the installments. However, the OP offered the possession of the flat in question vide letter dated 15.04.2016. Aggrieved by the act of the OP, the complainant filed a complaint before the State Commission on 01.08.2016.
3. Complaint no.230/2016 was dismissed in limine by the State Commission vide order dated 05.09.2016. Thereafter, first appeal no. 1333/2016 filed by the complainant before this Commission was allowed vide order dated 18.09.2018. This Commission directed the State Commission to admit the complaint and to decide the same on merits without raising the issue of jurisdiction.
4. The State Commission vide its order dated 02.01.2019 has now partly allowed the complaint. The State Commission has directed OP to pay interest @ 12% p.a. on the amount of Rs.70,50,426/- from 01.06.2015 till the actual and physical possession of the flat in question, complete in all aspects. The remaining sale consideration of the flat shall be adjusted at the time of delivery. Further, State Commission directed OP to pay Rs.70,000/- as compensation for mental agony and litigation expenses as well.
5. Hence the opposite party has filed the present appeal before this Commission.
6. Heard the learned counsel for both the parties and perused the record.
7. Learned counsel for the appellant has stated that the State Commission has not properly considered, misconstrued and mis-interpreted the entire documentary evidence as was available on record. Learned counsel has further stated that the dispute relates to real estate and the State Commission does not have any jurisdiction and the same is vested with Real Estate Regularity Authority (RERA). Thus, the order passed by the State Commission is without jurisdiction. Another legal point has been raised by the learned counsel for the appellant that there is an arbitration clause in the agreement therefore, any dispute should have been settled in arbitration. From this aspect also, the order of the State Commission is without any jurisdiction. The State Commission has not appreciated the fact that there was marginal delay in delivery of possession and was because of the default in payment in accordance with the payment plan of the flat. Learned counsel has stated that the appellant had applied for completion certificate in February 2016 and the competent authority had issued partial completion certificate to the housing project in question and this offer of possession was given to the complainant on 15.04.2016. The State Commission has wrongly observed that there was no completion certificate, hence the offer of possession dated 15.04.2016 was actually a paper possession. Learned counsel has argued that the partial completion certificate was already on record as Ex OP – 13. Thus, there was no illegality in issuing offer of possession to the complainant. It was further argued that there was slight delay in issuing offer of possession which was less than a year and such delays are common in big projects. The State Commission has ordered handing over the possession to the complainant and has also ordered payment of interest @ 12% per annum on the amount of Rs.70,50,426/- from 01.06.2015 till actual date of physical possession. It was argued that the possession was offered to the complainant without much delay and there should not be any question of interest to be paid on the amount deposited by the complainant. Moreover, if the complainant has not come forward to take the possession, the OP should not be burdened with interest @ 12% per annum on the deposited amount.
8. On the other hand, the learned counsel for the respondent/ complainant has stated that there has been delay in offering the possession. Complainant is definitely entitled to interest on the amount paid for the period of delay after the due date of possession. The State Commission’s order is quite reasonable where interest @ 12% per annum on the amount paid by the complainant has been awarded.
9. I have carefully considered the arguments advanced by the learned counsel for the parties and examined the record. I do not find any merit in the argument of the learned counsel for the petitioner that the State Commission did not have jurisdiction because the jurisdiction is vested with RERA. This Commission has already taken a view that the jurisdiction of the consumer forum is not barred inspite of the provisions of RERA. Moreover, the Hon’ble Supreme Court in the case of Pioneer Urban Land and Infrastructure Limited and Anr. vs Union of India decided on 09.08.2019 has already decided that consumer forum, RERA and NCLT will have jurisdiction to decide the complaint and the complainant may file complaint in any of these fora.
10. In respect of the arbitration clause in the agreement, this Commission in the case of Aftab Singh and Ors vs EMAAR MGF Land Ltd. and Ors., decided on 13th July 2017 has already taken a view that jurisdiction of consumer forum will not be barred even if there is an arbitration clause in the agreement. This judgment has also been upheld by the Hon’ble Supreme Court. Thus, it is clear that the State Commission has the jurisdiction to decide the instant complaint.
11. Clearly, there has been delay in offering of the possession. The State Commission has observed that the possession was due on 01.06.2015 and the offer of possession was given on 15.04.2016. The partial completion certificate has been obtained on 08.12.2016 and the final completion certificate on 12.03.2018. I agree, with the observation of the State Commission that the offer of possession dated 15.04.2016 was illegal as it was given before obtaining even the partial completion certificate dated 08.12.2016. From this aspect, the complainant is definitely entitled to some compensation for the delay. The State Commission has ordered 12% per annum interest on the deposited amount for the delay in handing over the possession on the basis of Rule 17 of the Punjab Apartment and Property Regulation Act, 1995 (PAPRA). Clearly provision of Rule 17 of PAPRA is applicable when the amount is to be paid to the complainant. In the present case, for giving possession to the complainant no amount is being required to be paid by the OP to the complainant on which interest can be ordered. Moreover, Consumer Forum has to decide a complaint on the basis of provisions of the Consumer Protection Act 1986 and has to award compensation in accordance with section 14 (1) (d) of the Consumer Protection Act, 1986. Compensation is to be on deficiency in service. The provisions of PAPRA are definitely applicable when an order is being passed by the competent authority under PAPRA. Thus, in my view, interest @ 12% on the deposited amount by the complainant is quite excessive. This is even more than the rate of interest which is being awarded these days when the amount is ordered to be refunded.
12. This Commission has been recently ordering interest @ 4-6% per annum on the amount of deposit for the period of delay in handing over the possession. Thus, I deem it appropriate to modify the order of the State Commission that the appellant/ opposite party will be liable to pay interest @ 6% per annum on the amount of deposit of Rs.70,50,426/- instead of 12% per annum as ordered by the State Commission. The Hon’ble Supreme Court in the case of M/s Supertech Ltd., vs Rajni Goyal in Civil Appeal nos. 6649-50 of 2018 decided on 23.10.2018 has observed the following:
“4. xxxxxxxxxxxxx Furthermore, the period of interest should close on April 2016 when the full occupancy certificate was obtained as per the admission of the respondent – purchaser herself in paragraph 4 (j) of the Consumer Complaint, wherein she has admitted that the appellant – Builder had obtained the completion certificate as late as April 2016. The respondent – purchaser could not have any further grievance after April 2016 with respect to delay in handing over possession. The respondent – purchaser ought not to be allowed to reap the benefits of her own delay in taking possession.
5. In light of the aforesaid discussion, the period of compensation of interest must be computed from 01.05.2014 till 30.04.2016 at the rate awarded by the Commission”.
13. Thus, the period of interest payment is to be restricted to the date of occupation/ completion certificate. In the present case, the final completion certificate has been issued on 12.03.2018. Hence
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, the interest will be paid from 01.06.2015 till 12.03.2018. Complainant has also to pay the remaining amount of consideration and the same shall be paid along with interest @ 6% per annum from 01.06.2015 till actual date of physical possession, if not already paid, in compliance of the order of the State Commission. 14. On the basis of the above discussion, FA no. 491 of 2019 is partly allowed and the appellant is directed to pay interest @ 6% per annum on the amount paid of Rs.70,50,426/- from 01.06.2015 till 12.03.2018. No other compensation is required to be paid. The complainant shall pay the remaining consideration (if not already paid) along with interest 6% per annum from 01.06.2015 till actual delivery of physical possession if the amount is adjusted at the time of physical possession as ordered by the State Commission. The appellant shall deliver the possession within forty five (45) days from the date of receipt of this order, otherwise, the interest @ 6% shall continue to be paid by the appellant till actual physical possession.