This consumer complaint has been filed by the complainants Ria Gupta and Anr. against the opposite party SS Group Private Limited alleging deficiency on the part of the opposite party in not providing the booked flat in time and for not refunding the paid amount on demand of the complainants.2. Brief facts of the case are that the complainants booked a residential unit measuring 2,000 sq.ft with the opposite party vide application dated 30.04.2012 for a total sale consideration of Rs.1,15,82,000/- with a construction linked payment plan. Vide allotment letter dated 17.05.-2012, the complainants were allotted unit No. 17B in the project “Almeria” of the opposite party. On 12.06.2012, a flat buyer agreement was executed between the complainants and the opposite party. As per clause 8 of the said agreement, the opposite party was under an obligation to complete the project and hand over the possession of the said unit within 36 months i.e. on or before 12.06.2015. The complainants also obtained a housing loan from the bank for Rs.60 lakhs vide sanction letter dated 18.09.2013 to ensure timely payment as per the payment schedule. It has been averred that till May 2017, the complainants have paid an amount of Rs.17,98,825/- in the form of pre-EMI, other incidental charges and EMIs to the bank. Despite the payment of Rs.1,04,03,462/- towards the total sale consideration of the unit by the complainants, the opposite party failed to deliver the possession of the said unit within the stipulated time as per the agreement. The complainants sent a legal notice dated 19.02.2016 to the opposite party requesting to refund the entire amount paid by them along with interest as there was no progress in the project. Seeing no response from the opposite party, the complainants again sent another notice dated 05.03.2016 reiterating their request for refund. The opposite party replied the said notice vide their letter dated 24.05.2016 with the allegations against the complainants that they are the defaulters and they have not paid the total amount as per the payment schedule. The complainants then again replied on 10.06.2016 and 19.05.2017 but there was no response from the opposite party. Hence, the complainants filed this complaint before this Commission with the following prayers:(a) direct the Opposite Party to handover possession of the said Unit immediately alongwith delayed interest @18% per annum from due date of possession, i.e. 12.06.2015 till date of actual possession; or(b) in the alternative direct the Opposite Party to refund the entire consideration amount of Rs.1,04,03,462/- (Rupees One Crore Four Lac three Thousand Four Hundred Sixty Two only) to the Complainants alongwith interest @18% per annum from the date of respective payments till its full realization;(c) also direct the Opposite Party to pay an amount of Rs.17,98,825/- (Rupees Seventeen Lakhs Ninety Eight Thousand Eight Hundred Twenty Five only) alongwith interest @18% per annum to the Complainants for the exhorbitant amounts paid to HDFC Limited in the form of Pre-EMI, incidental charges, additional investment and EMI for availing loan facility till date, to pay consideration to the Opposite Party for the period from 2013 to 2017.(d) Direct the Opposite Party to pay an amount of Rs.10,00,000/- (Rupees Ten Lakhs only) to complainants for mental agony and harassment suffered by the complainants on account of the gross breaches committed by the Opposite Party;(e) award the cost of the litigation;(f) in that behalf pass such other orders as may be deemed fit, proper and necessary.3. The complaint has been resisted by the opposite party by filing the written statement. It has been submitted that the complainants are the investors and not the real buyers of the flat and therefore the complaint is not maintainable. It is further argued that the complainants have defaulted many times in payment of installments and therefore the project could not proceed as expected because the project is built from the money received from the allottees. It has been requested to dismiss the complaint.4. Both the parties have filed their evidence by way of affidavits which have been taken on record.5. Heard the learned counsel for both the parties and perused the record. The learned counsel for the complainants has stated that the possession was due by 12.06.2015 but till filing of the complaint, no offer letter was issued by the opposite party. The learned counsel stated that even though the complaint has been filed for giving the possession along with interest for delay in heading over the possession, but now the complainants have arranged for alternative unit and therefore the complainants only want refund of their amount paid to the opposite party. The learned counsel for the complainants also alleged that the opposite party had raised a demand of about Rs.30 lakhs along with an interest of about Rs.9 lakhs due on the complainants for which there was no justification and therefore complainants are not interested in taking the allotted unit. The learned counsel for the complainants stated that as per clause 8 of the agreement, the application for refund in the form of notice was given to the opposite party after 51 months from the date of agreement, however, the opposite party did not refund the amount which the opposite party was bound to refund along with 15% per annum interest.6. The learned counsel for the complainants further stated that in a similar case involving the same project and the same opposite party being consumer complaint No. 2135 of 2016 this Commission has allowed the refund of the paid amount along with 9% per annum interest from the date of respective deposits till actual payment along with litigation cost of Rs.50,000/-. It was requested by the learned counsel that a similar order may be passed in the present complaint case.7. On the other hand, the learned counsel for the opposite party has stated that the complainants have been regular defaulter in making the payment of installments as per the payment schedule agreed between the parties. It has further been stated that the complainants are not the genuine purchasers of the flat for their residence, rather, they are investors and had booked the flat keeping the possible price rise in mind. The learned counsel for the opposite parties stated that the construction was completed in the year 2017. However, sometime has been taken in getting the occupancy certificate, which was obtained on 17.10.2018. Just after getting the occupancy certificate, the possession letter was issued to the complainants. Thus, there is no delay on the part of the opposite parties. It does not appeal to logic when a person has invested about Rs.1,crore, then why would he not like to take possession even if possession is likely to be slightly delayed. This will only happen when the allottee does not want flat for residential purpose and had booked unit only for an investment to earn profit later on. However, the prices in the real estate sector have stagnated or have declined, therefore, the complainants are seeking refund whereas the project is now ready and possession can be given to the complainants. Learned counsel further stated that the occupation certificate for the project was obtained on 17.10.2018 and the offer letter was sent on 15.11.2018 to the complainants but the complainants did not come forward to take possession. It was also stated by the learned counsel for the opposite party that the delay in project has happened as some of the allottees did not pay the installments in time which led to paucity of funds for construction and therefore allottees including the complainants are themselves responsible for the delay in completion of the project. Thus, no deficiency can be attributed to the opposite party for delay in the project and for delay in handing over the possession.8. We have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties and have examined the record. So far as the question of complainants being consumer is concerned, it is seen that the opposite party has not filed any evidence to prove that the flat has been booked for earning profit. The opposite party has raised this issue only to avoid their liability towards the complainants. The complainants have paid the major portion of the consideration to the opposite party and neither the possession has been offered in time nor the amount has been refunded, therefore, the complainants are clearly the consumers as per Section 2(1)(d) of the Consumer Protection Act 1986.9. It is not clear when the complainants had given legal notice for refund of their paid amount, why have they filed the complaint for seeking possession of the flat in question?. However the learned counsel for the complainants has now clarified that the complainants have obtained another residential unit and therefore they require only refund in the matter because there has been inordinate delay in offering possession of the said flat by the opposite party. Hon’ble Supreme Court in Civil Appeal No.12238 of 2018 titled as “Pioneer Urban Land & Infrastructure Ltd. versus Govindan Raghavan” has observed that a complainant cannot be compelled to take possession after a long delay from the due date of possession as per the agreement even if the occupancy certificate has been obtained.10. This Commission in consumer complaint No. 2135 of 2016 Deepanshu Saini and Anr. versus SS Group Private Limited and 3 Ors decided on 04.09.2019 has observed the following:-“12. I have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties and examined the record. The admitted fact is that the possession was due on 30.5.2015 and the occupancy certificate has been obtained on 17.10.2018. Clearly, there is a huge delay in the project. Letter of offer of possession was issued on 22.11.2018. The complainants have not accepted offer of possession as the complainants have already given a notice for cancelling the agreement as per clause 8.3 (b) of the agreement. Now, the question arises as to when the opposite parties have agreed to have a clause like 8.3(b) in the agreement and if the complainants have acted in accordance with this clause, the opposite parties should also have acted in compliance of this clause. Even this Clause 8.3 (b) seems one sided because the complainants’ money is already blocked and if the same is not returned till the unit in question is sold to a third party, this is clearly prejudicial to the interest of the consumer. The interest @ 15% is only payable when the flat is sold to a third party and the money is not refunded within 90 days from that sale. All these conditions are totally one sided and they are the result of the dominant position of the builder at the time of signing the builder-buyer agreement because by that time lot of money of the complainants is already blocked with the builder.13. The main reason for delay in completion of the project has been told to be due to delay in obtaining environmental clearance for the project. Though, this may not be directly within the control of the opposite parties to get the clearance, however, the clear procedures are laid down and it depends on the management of the builder company how efficiently and meticulously they pursue the environmental clearance with the competent authority. Thus, this cannot be considered as force majeure, therefore, the delay on account of this factor cannot be excluded from the total delay in the project. Hon’ble Supreme Court in Civil Appeal No.12238 of 2018 titled as “Pioneer Urban Land & Infrastructure Ltd. versus Govindan Raghavan” has upheld the order of this Commission by observing the following:“3.8. The National Commission vide Final Judgment and Order dated 23.10.2018 allowed the Consumer Complaint filed by the Respondent - Flat Purchaser, and held that since the last date stipulated for construction had expired about 3 years before the Occupancy Certificate was obtained, the Respondent - Flat Purchaser could not be compelled to take possession at such a belated stage. The grounds urged by the Appellant - Builder for delay in handing over possession were not justified, so as to deny awarding compensation to the Respondent - Flat Purchaser. The clauses in the Agreement were held to be wholly one - sided, unfair, and not binding on the Respondent - Flat Purchaser. 6 The Appellant - Builder was directed to refund Rs. 4,48,43,026/- i.e. the amount deposited by the Respondent - Flat Purchaser, along with Interest @10.7% S.I. p.a. towards compensation.9. We see no illegality in the Impugned Order dated 23.10.2018 passed by the National Commission. The Appellant - Builder failed to fulfill his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent - Purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter. The Respondent - Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired. During this period, the Respondent - Flat Purchaser had to service a loan that he had obtained for purchasing the flat, by paying Interest @10% to the Bank. In the meanwhile, the Respondent - Flat Purchaser also located an alternate property in Gurugram. In these circumstances, the Respondent - Flat Purchaser was entitled to be granted the relief prayed for i.e. refund of the entire amount deposited by him with Interest.10. The Civil Appeals are accordingly dismissed, and the Final Judgment and Order dated 23.10.2018 passed by the National Consumer Disputes Redressal Commission is affirmed.”14. On the basis of the above observations of the Hon’ble Supreme Court, it is clear that if the occupancy certificate is sufficiently delayed say beyond two years then the complainants cannot be compelled to take possession of the property and they are entitled to refund. In the present case also, the occupancy certificate has been delayed by roughly three years, therefore, complainants cannot be compelled to take the possession. As the learned counsel offered certain concessions at the time of argument, learned counsel for the complainants was asked whether the complainants would consider offer given by the learned counsel for the opposite parties. It was categorically denied by the learned counsel for the complainants. The learned counsel for the complainants stated that the complainants are now only interested in refund of the amount as they have lost faith in the opposite parties. Learned counsel for the complainants further stated that he has no objection if the amount due to IHFL is directly remitted to IHFL by the opposite parties/ builder and the remaining amount be given to the complainants.”11. The above observations are equally applicable in the present case as the present complaint is also against the same opposite party and under the same project. In the present case, clearly the possession was due by June 2015 and the occupation certificate has been obtained in October 2018, thus there being a delay of more than two years in obtaining the occupation certificate. In these circumstances, the complainants cannot be compelled to take the possession of the said flat as observed by the Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. versus Govindan Raghavan (supra). Clearly, the complainants are entitled to get refund of their paid amount from the opposite party.12. Learned counsel for the complainants has demanded interest at the rate 18% per annum o
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n the amount of refund in the complaint. Keeping in view the current interest scenario, the interest at the rate 18% per annum seems quite excessive and is not justified. The i Hon’ble Supreme Court in DLF Homes Panchkula Pvt. Ltd. & anr. Vs. D S Dhanda, ETC; Sudesh Goyal, ETC, 2019 Law Suit (SC) 1207 has awarded 9% per annum interest on the amount of refund where the houses could not be delivered to the complainants. In another case Kolkata West International Pvt. Ltd. Vs. Deva Asis Rudra, II (2019) CPJ 29 (SC), the Hon’ble Supreme Court has reduced the interest rate @ 12% per annum awarded by this Commission to 9% per annum on the amount of refund. In the present case, the house was offered to the complainants, though with delay, but the complainants have not taken the possession of the flat. Moreover, the interest rates have further fallen since the passing of the judgments of the Hon’ble Supreme Court in DLF Homes Panchkula Pvt. Ltd. & anr. Vs. D S Dhanda, ETC; Sudesh Goyal (supra) and in Kolkata West International Pvt. Ltd. Vs. Deva Asis Rudra (supra). This Commission in CC No.2094 of 2019, Ankur Goyal Vs. M/s. Rise Project Pvt. Ltd., decided on 14.10.2020, (NC) has allowed refund along with interest at the rate 8% per annum on the amount of refund. Keeping all aspects in view, the following order is passed.ORDER13. The complaint No. 1632 of 2017 is allowed and the opposite party is directed to refund the amount of Rs.1,04,03,462/- along with 8% interest per annum to the complainants from the dates of respective deposits till actual payment within a period of 8 weeks from the date of receipt of this order. The complainants will also be entitled to get litigation cost of Rs.50,000/- from the opposite party.