1. Brief facts relevant for the disposal of this appeal are that the Complainant / Respondent had booked a flat in the year 2009 measuring 180 sq. yds. In Tower B- 58/7 , T- Phase , Kundli My Floors for an initial consideration of Rs. 18,80,488.60/- and which was later on increased by OP to Rs. 19,80,238.60/-. The Complainant paid a total of Rs. 17,90,814/- towards the consideration. The OP had promised to complete the construction and deliver the possession within 24 months, but failed to deliver the possession within the stipulated time, therefore, complainant filed a complaint before the State Commission seeking refund of his amount along with interest and compensation.
2. The complaint was resisted by the OP by filing a written statement. It was contended that the complaint was barred by limitation. The cause of action arose on the last payment made by the complainant i.e 08.01.13, but the case was filed in May, 2015. The Complainant was not a ‘consumer’ but a speculator as she invested money in the project to sell it when the real estate prices are high. The OP denied increase in the price of the flat. It contended that the demand letters to pay the instalments were sent to the Complainant at each stage of advancement in the construction work. The OP denied its assurance made to pay interest @ 18 % p.a on the refund amount and also refused its liability to pay compensation.
3. The State Commission, after hearing both the parties and perusal of documents ordered the OP to refund Rs.17,90,814/- with interest @9% per annum from the respective dates of payment till the date of refund. It observed the following :
8. It is not in dispute by the OP that complainant make the payment till 2013. That is subsequent to all demand letters pleaded by OP, last letter being dated 15.02.12. Thus it can not be said that complainant is defaulter in making payment. Otherwise also she had paid about 95 % of the sale consideration.
9. In view of the above position it is not necessary to go into the controversy whether the OP increased the sale price or nor from Rs. 18,80,448.60 to Rs. 19,80,238.60.
10. To sum up we hold the OP was deficient in fulfilling its terms. The complainant is entitled to refund of the amount. However the interest claimed by her @ 18 % per annum is excessive. In the present scenario it would be reasonable to award interest @ 9 % per annum. Accordingly the OP is directed to refund Rs. 17,90,814 /- alongwith interest @ 9 % per annum from the respective dates of payment till the date of refund.
(paras 8,9 & 10 of the State Commission’s Order)
4. Being aggrieved by the order of the State Commission, the OP preferred the instant First Appeal under Section 17 of the Consumer Protection Act, 1986.
5. Heard the learned counsel for the appellants, perused the entire material on record and gave thoughtful consideration.
6. In my view, it cannot be said that the case was filed after the limitation period. Continuing cause of action exists in the present case. So long as the Complainant was not given legal possession nor refunded the amount, the cause of action will be considered as recurring. In addition, the liability qua the Consumer–Complainant initiated the day when he made his first deposit with the Builder Co., and it continues.
7. This view (supra) dovetails from the decision of the Hon’ble Supreme Court in the case of Meerut Development Authority v. M.K. Gupta IV (2012) CPJ 12 (SC), wherein it was held as under :
“4. In our view, the complaint filed by the respondent who had patiently waited for 27 years with the hope that he will get the plot was rightly not dismissed by the District Forum as barred by limitation because he had a recurring cause for filing a complaint in the matter of non-delivery of possession of the plot.”
A buyer should not be left in desperation for years together after paying almost 95 % of the sale consideration.
In another case, the Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure V. Govindan Raghavan (2019) 5 SCC 725 held as under :
“6.1 In the present case, admittedly the appellant-Builder obtained the Occupancy Certificate almost two years after the date stipulated in the Apartment Buyer’s Agreement. As a consequence, there was a failure to hand over possession of the flat to the respondent-Flat Purchaser within a reasonable period. The Occupancy Certificate was obtained after a delay of more than two years on 28.8.2018 during the pendency of the proceedings before the National Commission.
In Lucknow Development Authority v. M.K. Gupta, this Court held that when a person hires the services of a builder, or a contractor, for the construction of a house or a flat, and the same is for a consideration, it is a “service” as defined by Section 2(o) of the Consumer Protection Act, 1986. The inordinate delay in handing over possession of the flat clearly amounts to deficiency of service.
In Fortune Infrastructure & Anr. v. Trevor D’Lima & Ors., this Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation.
6.2 The Respondent – Flat Purchaser has made out a clear case of deficiency of service on the part of the Appellant – Builder. The respondent – flat purchaser was justified in terminating the Apartment Buyer’s Agreement by filing the Consumer Complaint, and cannot be compelled to accept the possession whenever it is offered by the Builder. The Respondent – Purchaser was legally entitled to seek refund of the money deposited by him along with appropriate compensation.”
8. In the present case, the ingredients of both, ‘deficiency in service’ within the meaning of section 2(1) (g) & (o), and ‘unfair trade practice’ within the meaning of section 2(1)(r) of the Act, are well and truly evident on the part of the Builder Co. / OP.
9. The Act, 1986 is for “better protection of the interests of consumers”, in recognizedly a fight amongst unequals.
Its Statement of Objects and Reasons speaks of “speedy and simple redressal to consumer disputes”.
10. I note that the complainant made first deposit of Rs. 2,50,000/- on 24.07.2009 and till 08.01.2013 he deposited the total amount of Rs. 17,90,814/-, but even after six years the complainant did not get delivery of his constructed flat. The helpless complainant filed a complaint in the year 2015 before the State Commission and the same was decided on 12.11.2018. The appellant / OP filed this appeal on 07.03.2019. The Registry noted the defects during proceedings on 26.03.2019 and granted three opportunities to the appellant to cure the defects i.e. on 26.03.2019, 24.04.2019 and 16.05.2019 but defects were cured and the matter was placed for hearing on admission.
Again on 10.07.2019, at the request of learned counsel for the appellant, the matter was adjourned to 07.08.2019. On 07.08.2019, learned counsel for the appellant sought four weeks’ time to explore the possibility of a voluntary amicable equitable settlement. Therefore, the matter was listed on 18.09.2019 to report settlement, if any, or to otherwise argue the case on merit.
On a bare perusal of the chronology of events, it shows the conduct of the appellant is to delay the matter. All this is not viewed favourab
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ly. 11. Based on foregoing discussion, I find the order of the State Commission to be well appraised and it needs no interference. The first appeal is dismissed. 12. However, in my view it is just and appropriate that Rs. 25,000/- shall be paid by the appellant / OP to the Complainant towards cost of litigation. 13. The appellant / OP shall ensure compliance in its entirety within four weeks of the pronouncement of this Order failing which the entire amount shall carry interest @ 12 % per annum till its realization. 14. The State Commission shall undertake execution as per the law for failure or omission in compliance within the stipulated time-period. 15. The Registry is directed to send a copy of this Order to the State Commission within a week of its pronouncement.