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R.K. Singhal v/s M/s. Sudradh Constructions Pvt. Ltd. Through Its Director, Shri Laxmichand Damji Chheda, Mumbai

    First Appeal No. 685 of 2015

    Decided On, 28 August 2020

    At, National Consumer Disputes Redressal Commission NCDRC


    For the Appellant: Dr. Ravindra Chingale, Advocate, R.K. Singhal – in person. For the Respondent: Amit Gupta, Vidhi Goel, Advocates.

Judgment Text

This appeal has been filed by the appellant R.K. Singhal challenging the order dated 05.08.2015 in consumer complaint No. CC 01/1474 passed by the Maharashtra State Consumer Disputes Redressal Commission Mumbai (in short the State Commission).

2. The brief facts of the case are that initially, the complainant had booked a flat in the building known as “Sahyadri” on 30.06.1993 for consideration of Rs.6,75,000/- with OP1. Thereafter, OPs issued a fresh letter of intent dated 20.12.1994, allotting Flat no. 301 on the 3rd Floor admeasuring about 1000 Sq. Ft. in the same building for total consideration of Rs.8,30,000/- and took back all the previous documents. For the same purchase, agreement to sell dated 20.12.1995 was executed and subsequently, the Deed of Confirmation was executed on 11.02.1997. The complainant has made the payment of Rs.8,20,000/- towards the total sale consideration. As per clause 18 of the agreement dated 20.12.1995 OP promised to deliver the possession of the said flat on 08.06.1998 but OP failed to do so. The complainant sent a legal notice dated 18.12.1999 to OP to pay a sum of Rs.18,27,807/-. OP sent a reply to the said notice on 07.03.2000 raising false defence and stating that the possession of the flat would be handed to the complainant within couple of months. Aggrieved by the act of OP, the complainant filed the complaint before State Commission. State Commission vide its order dated 05.08.2015 allowed the complaint with no cost. State Commission directed OP1 to refund a sum of Rs.39,45,000/- to the complainant within a period of 45 days from the date of issue of this order.

3. Heard the learned counsel for the parties and perused the record. The learned counsel for the appellant stated that the original complaint was filed In the year 2001 for refund of the amount of Rs.8,20,000/- paid to the opposite party, however, an application was given by the complainant for amendment in the complaint on 9th June 2015. This amendment was that the complainant now wanted to take the possession of the flat as the building had become ready in the year 2014. The State Commission has allowed this amendment in its final order, however, the possession of the flat has not been ordered. The State Commission has only granted the compensation as asked for in the amended prayer. The learned counsel stated that as the complaint was amended and amended complaint has been decided by the State Commission, the possession should have been ordered to be delivered by the opposite party to the complainant. The present appeal has been filed for directing the opposite party to hand over the possession. The learned counsel stated that out of the original consideration of Rs.8,30,000/- in the year 1993, the complainant has already paid Rs.8,20,000/- to the opposite party. If the total consideration has been paid by the complainant to the opposite party, there should be no reason why the opposite party should not transfer the possession and title in favor of the complainant.

4. On the other hand, the learned counsel for the opposite party stated that the State Commission has clearly recorded that even after completion of the building, the occupation certificate could not be issued by the competent authority due to non -clearance under the Coastal Regulatory Zone Authority (CRZ) Regulations.

5. The State Commission has clearly mentioned that the occupation certificate is getting delayed due to non-clearance from the CRZ Authority. However, the State Commission has approved the total damages claimed by the complainant in the amended complaint. In fact, the amount ordered by the State Commission for payment by the opposite party is much more than the amount of refund of the original paid amount along with interest at the rate 11% per annum. In fact, the application for amendment of the complaint was moved by the complainant at a very late stage as has been observed by the State Commission. In this situation, when the matter was already contested for about 14 years, the application for amendment should not have been allowed. A complainant cannot change its stand during the pendency of the complaint. Moreover, the amendment in the complaint can only be allowed until the framing of issues as per the provisions of the Code of Civil Procedure. Thus, the prayers made in the original complaint should only be considered. From this aspect, the State Commission has ordered payment of Rs.39,45,000/- to the complainant which is more than reasonable.

6. I have carefully considered the arguments advanced by both the parties and have examined the record. It is true that the original complaint was filed in the year 2001 for getting the refund of the amount of Rs.8,20,000/- paid by the complainant to the opposite party. After 14 years, an application for amendment was filed and the State Commission has partly accepted this application in its final order only to help the complainant so that the complainant gets a reasonable amount of refund. In fact, the application for amendment has been filed at the time of final hearing and therefore the State Commission should not have allowed the same, however, it seems that the State Commission allowed the amendment application partially to accept the total claim of the complainant. If an application is allowed for amendment in a complaint, then the opposite party must get a chance to file a revised written statement and in the present case, nothing of this sort has been ordered by the State Commission. Thus, clearly the prayers in the amended complaint cannot be considered. Considering this appeal only from the point of view of refund, it is seen that the amount of Rs.39,45,000/- has been ordered to be refunded to the complainant in lieu of Rs.8,20,000/- paid by the complainant to the opposite party. 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 observed that for refund cases, interest at the rate 9% per annum is reasonable and sufficient. In the present case, the interest rate comes to more than 11% per annum. It is further seen from the break-up of the

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amount of Rs.39,45,000/- that it is only the amounts under different heads, however, the principal amount of Rs.8,20,000/- is not included in this. Therefore, clearly the complainant is also entitled to refund of the principal amount which is Rs.8,20,000. Thus, I deem it appropriate to allow an additional amount of Rs.8,20,000/- to be paid to the appellant complainant by the opposite party. Consequently, the appellant would be entitled to get Rs.47,65,000/- and the opposite party is directed to pay this amount to the complainant within a period of 45 days failing which this amount will attract an interest at the rate 6% per annum from the date of this order till actual payment.