The complainants / respondents booked a residential apartment with the appellant in a project, which the appellant was to develop in Sector 104 of Mohali. Flat No. 702, in the project namely ‘Taj Towers’ was allotted to the complainants, for a total consideration of Rs.59,85,000/-, which was later increased to Rs.65,10,000/-. The booking was made in May, 2012. The complainants made a payment of Rs.34,50,000/- to the appellant. The possession of the allotted flat was offered to the complainants vide letter dated 22.1.2016. The appellant, while offering possession also demanded a sum of Rs.18,00,000/- from the complainants towards interest for the delayed payments. The complainants informed the appellants vide letter dated 30.5.2016 that they were willing to pay the balance amount at the time of delivery of possession, but the appellants insisted on payment of the balance amount before delivering possession of the flat. The complainants thereafter, approached the concerned State Commission by way of a consumer complaint, seeking refund of the amount paid by them to the appellants with compensation etc.
2. The complaint was resisted by the appellants, which admitted the allotment made to the complainants as well as the payments received from them. It was inter-alia stated in their written version that the complainants had defaulted in making payment and the possession was offered to them on 22.1.2016, subject to payment of the balance amount, including interest for the period the payment was delayed.
3. The State Commission vide its order dated 29.11.2018 directed as under:
“i) to refund the amount of Rs.34,50,000/- to the complainants, along with interest at the rate of 12% per annum from the various date of deposit till realization;
ii) to pay Rs.40,000/- as compensation on account of the mental agony and harassment suffered by the complainants as well as litigation expenses.”
Being aggrieved from the order passed by the State Commission, the appellant is before this Commission by way of this Appeal.
4. This is the submission of the learned counsel for the appellants that no particular time frame was committed by the appellants to the complainants for delivery of possession of the allotted flat and in any case, they had offered possession of the allotted flat to them within a reasonable time on 22.1.2016. It is however an admitted position that the requisite occupancy certificate in respect of the allotted flat has not yet been obtained by the appellant though, it claims to have applied for the issuance of the said occupancy certificate. This is also the contention of the learned counsel for the appellant that the Inspection Committee had recommended the issuance of the occupancy certificate but the same has not been issued till date.
5. Section14 of the Punjab Apartment and Property Regulation Act, 1995 (PAPRA), to the extent it is relevant reads as under:
“14. It is the responsibility of the promoter –
(i) In the case of apartments, to obtain from the authority required to do so under any law completion and occupation certificates for the building and if a promoter, within a reasonable time, after the construction of the building, does not apply for an occupation certificate form the aforesaid authority, the allottee of an apartment may apply for an occupation certificate from the said authority; and (ii) in the case of a colony, to obtain completion certificate from the competent authority to the effect that the development works have been completed in all aspects as per terms and conditions of the licence granted to him under section 5.
(2) The authority referred to in sub-section (1) shall, after satisfying itself about the agreement of sale between the promoter and the allottee, and the compliance of the building regulations and all other formalities, issue an occupation certificate.”
6. The State Commission has also relied upon the Notification dated 07.7.2015 issued by the Government of Punjab, which is applicable to the properties falling within Municipal limits and Clause 3.12 (i) of the said Notification reads as under:
“No person shall occupy or allow other person to occupy any new building or part of a new building for any purpose whatsoever until such building or part thereof has been certified by the local authority or of any person authorized by it in this behalf to be in every respect completed according to the sanctioned plan fit for the use for which it is erected.”
7. As rightly noted by the State Commission, the possession of the allotted flat could not have been offered to the complainants without obtaining the requisite occupancy certificate. In fact, the complainants also would be committing breach of law if they occupy the allotted flat which does not have the requisite occupancy certificate. Therefore, the offer of possession made by the appellants vide letter dated 22.1.2016 being contrary to the provisions of Section 14 of PAPRA and Clause 3.12(i) of the Notification dated 7.7.2015 issued by Punjab Government, the complainants could not have taken possession on the basis of the said letter dated 22.01.2016.
8. More than seven years have already expired from the date on which the flat was booked by the complainants with the appellant. The complainants cannot be expected to wait indefinitely for the possession of the allotted flat and is entitled to seek refund of the amount paid by them to the appellants, along with appropriate compensation. A reference in this regard can be made to the decision of the Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, Civil Appeal No.3182 of 2019 decided on 25.3.2019, where the Apex Court inter-alia held as under:
“It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed form the date of the agreement. Even according to the developer, the completion certificate was received on 29.3.2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years is beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund.”
9. As far as the rate at which interest has been awarded to the complainants is concerned, the order passed by the State Commission is based upon the rate prescribed in Rule 17 of the PAPRA Rules, 1995 framed under Section 45 of the PAPRA, which has been extracted in the order of the State Commission and reads as under:
“17. Rate of interest on refund of advance money upon cancelation of agreeme
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nt – The promoter shall refund full amount collected from the prospective buyers under subsection (1) of Section 6 together with interest thereon at the rate of twelve percent per annum payable from the date of receipt of amount so collected till the date of repayment.” 10. For the reasons stated hereinabove, I find no illegality or infirmity in the order passed by the State Commission. The order passed by the said Commission, therefore, does not call for any interference by this Commission in exercise of its appellate jurisdiction. The appeal being devoid of any merit is hereby, dismissed, with no order as to costs. 11. The statutory deposit shall be refunded to the appellants after it has complied with the order passed by this Commission.