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M/s. Utopia Projects Pvt. Ltd., Goa v/s Christopher Agnelo Pinto & Another

    First Appeal No. 544 of 2015
    Decided On, 26 August 2020
    At, National Consumer Disputes Redressal Commission NCDRC
    For the Appellant: Nemo. For the Respondents: Arvind C, Proxy Counsel for R Anand, Advocate.

Judgment Text

The appellant M/s Utopia Projects Private Limited has challenged the order dated 08.05.2015 passed by the State Consumer Disputes Redressal Commission Goa (in short the State Commission) in CC No. 16 of 2014 by way of the present appeal.

2. The brief facts of the case are that the complainants had entered into an agreement for sale dated 31.01.2012 with OP for the purchase of a “Row House” bearing no T4 in the “Amar Prem” project for a total consideration of Rs.42,70,000/-. The said agreement was duly registered on 15.2.2012.

3. As per clause 15(a) of the said agreement, it was agreed to handover the possession of the said Row House on or before September 2013 which shall have grace period of 4 months. Till September 2012, complainant has paid Rs.12,60,000/- towards the purchase of said flat.

4. Complainants kept sending repeated requests reminders for the progress of the project but OP always kept complainants in dark by delaying tactics. OP gave a proposal through letter that he shall invest the money of the complainant in the neighbouring development project for which the complainant rejected the proposal.

5. Complainant issued legal notice dated 07.04.2014 to OP calling upon them to handover the possession of the Row House complete in all respect but OP kept giving false excuses on one pretext or other by reply dated 22.04.2014.

6. Complainants filed the complaint and prayed either to handover the possession or refund the deposited amount with 18% per annum interest.

7. The State Commission vide its order dated 08.05.2015 partly allowed the complaint and directed OP to refund the amount of Rs.12,60,000/- along with 18% per annum interest. Further, the State Commission directed OP to pay Rs.50,000/- as compensation and Rs.10,000/- towards litigation costs.

8. Hence, the opposite party has filed the present appeal.

9. Heard the learned counsel for the respondent as none appeared for the appellant on the day of hearing as well as on previous three dates. The matter is being decided under the provision of Section 13(2)(c) of the Consumer Protection Act 1986.

10. The learned counsel for the respondent stated that all the objections raised by the appellant in the appeal have already been decided by the State Commission and finally the State Commission has reached to the conclusion that the amount paid by the complainant be refunded with 18% per annum interest. The appellant has taken the ground that there existed no consumer and service provider relationship between the parties and therefore, the complaint was not maintainable. If the agreement was cancelled by the appellant, then the appellant should have refunded the amount as per the agreement to the complainant, however, the same was not refunded and the appellant enjoyed the money of the complainant even after the cancellation of the agreement. Thus, the opposite party cannot take any advantage of the cancellation of the agreement. The appellant has also taken a ground that as per clause 9 c of the agreement, the complainant would be entitled to get the refund only after the booking amount has been paid by the alternative buyer to the opposite party. Clearly, this condition is an unfair trade practice on the part of the opposite party as the complainant will have to wait to get his money back even if the opposite party is deficient in service. It was requested that appeal should be dismissed.

11. I have carefully considered the arguments advanced by the learned counsel for the respondent complainant and I have also examined the grounds taken in the appeal filed by the appellant. It has been stated by the appellant that the complainants have been defaulters and have not paid the amount as per the payment schedule given in the agreement. Thus, no relief can be granted to the complainants. It has further been stated that the agreement was cancelled by the opposite party because of non-payment of the installments by the complainants. If the allotment was cancelled, then the appellant should have refunded the amount as per the provisions agreed in the agreement between the parties. However, the opposite party kept the money with them. Thus, no advantage can be given to the appellant for cancellation of the agreement because the opposite party has not logically concluded the cancellation of the agreement. The complainant is not going to keep a tab on the opposite party as to know when the alternate buyer has given the booking amount to the opposite party. Therefore, this condition is clearly an unfair trade practice and has been agreed by the complainant only because the opposite party is a dominant contracting party in the agreement in question.

12. Once the opposite party has already cancelled the agreement, there is no question of any allotment of the property to the complainant. Hence, the consequences of cancellation of the agreement should follow. The opposite party should have refunded the amount as per the provisions of the agreement which has not been done by the opposite party and the opposite party has enjoyed the money of the complainants for a long time. If the money is to be refunded by the opposite party, then it has to be refunded along with interest as the money has remained with the opposite party for a long time as per the decision of the Hon’ble Supreme Court in the case of Alok Shanker Pandey Vs. Union of India & Ors., II (2007) CPJ 3 (SC), where it has been held that interest is to be paid by the person who has retained the money. However, it is seen that the interest awarded by the State Commission at the rate 18% per annum is quite high in the light of the order of the Hon’ble Supreme Court in the case of Kolkata West International City Pvt. Ltd., vs Devasis Rudra – Civil Appeal no.3182 of 2019 – 2019 SCC online SC 438 decided on 25.03.2019, where the Hon’ble Supreme Court has reduced the rate of interest from 12% per annum ordered by this Commission to 9% per annum in a refund case. Accordingly, the order of the State Commission requires modification basically in th

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e interest rate which is reduced from 18% per annum to 10% per annum in the facts and circumstances of this case. When the interest has been drastically reduced, I do not see any reason to set aside the order for payment of Rs.50,000/- as compensation. 13. Based on the above discussion, the order of the State Commission is modified to the extent that the appellant/opposite party will refund the amount as ordered by the State Commission with an interest at the rate 10% per annum instead of 18% per annum as awarded by the State Commission. With this modification, the order of the State Commission is upheld. The appeal No.544 of 2015 stands disposed of accordingly.