A.K. Zade, Member
As per complainant, he purchased a residential one BHK flat bearing No. 903 on 9th floor having carpet area of 450 sq. ft. in building known as ‘Rupji Akansha’, situated at Sahakar Market, CS No. 5662, Pantnagar, Ghatkopar (E), Mumbai, to be constructed by opponent/builder. Opponent No. 1 is a registered partnership firm engaged in the business of construction and opponent Nos. 2 and 3 are partners of opponent No. 1. Complainant booked the said flat on 7.9.2011 for total consideration of Rs. 30,00,000 and paid Rs. 10,00,000 by cheques and Rs. 7,00,000 in cash total Rs. 17,00,000 to opponents between 13.9.2011 and 11.10.2011 towards booking of the said flat as per demand of opponents. On receiving the said amount, opponents issued written allotment-cum-booking letter dated 11.10.2011 in favour of complainant and also issued payment receipt dated 11.10.2011. However, the said receipt and said allotment–cum-booking letter mentioned amount of Rs. 10,00,000 only received by cheques and not the amount of Rs. 7,00,000 received in cash. Complainant was assured of commencement of project and also of execution of agreement to sale shortly. Thereafter, complainant paid Rs. 1,00,000 by cheque dated 22.7.2013 to opponent and again paid Rs. 28,840 by cheque dated 11.11.2013 towards service tax as per demand of opponent by their letters dated 28.8.2013 and dated 30.10.2013. On persuasion by complainant for execution of agreement for sale, opponents assured the same in a short period and also assured that in case of failure they will refund the booking amount of Rs. 18,00,000 and service tax along with interest to complainant. However, there was no progress in construction thereafter and no execution of agreement by opponents. Because of abovesaid failure of opponents, the complainant filed the instant consumer complaint, alleging deficiency in service against opponents and praying for direction to opponents to enter into an agreement to sale in respect of the said flat and to get it registered and to handover to complainant the vacant and peaceful possession of the said flat with occupancy certificate within six months. Alternatively, complainant had prayed for direction to opponents to give possession of another flat of equal area with occupancy certificate in the same area/nearby locality on payment of balance amount of Rs. 11,71,160. In the alternative, complainant had prayed for direction to opponents to refund the amount of Rs. 18,28,840 to complainant along with interest @ 18% for the period from date of payment i.e. 11.10.2011 till realization. The complainant had also prayed for direction to opponents to pay to complainant sum of Rs. 4,50,000 towards delayed possession. Complainant also prayed for Rs. 7,00,000 from opponents towards compensation for stress, inconvenience, harassment, mental agony, etc. because of not handing over possession, an amount of Rs. 2,00,000 towards legal and incidental expenses and an amount of Rs. 11,00,000 towards rental amount/financial loss towards monthly rent for the period from 2011 till filing of complaint along with interest @ 18% p.a. for the period from date of filing complaint till realization.
2. Nobody appeared for opponents although served and hence, matter was proceeded ex parte against them. Complainant filed affidavit of evidence and advanced oral arguments. Complainant filed affidavit-cum-declaration of the marketing manager of opponent No. 1 namely Mr. Viajay Dattaji Bhosale duly notarized on dated 24.1.2018 mentioning the abovesaid cash amount received in his presence by opponent No. 2 in the office of opponent No. 1. During arguments, complainant filed pursis for restraining his prayers to the second alternative prayer mentioned above i.e. refund of Rs. 18,28,840 with interest along with cost, compensation, damages for delay and loss of rent.
3. Perused record. Heard arguments on behalf of complainant.
4. The allotment-cum-booking letter dated 11.10.2011 issued by opponent No. 1 is filed by complainant on record. The same shows details of the subject flat as mentioned by complainant along with consideration amount acknowledging receipt of Rs. 10,00,000. Complainant has filed a personal loan agreement with one Neeta Luthra to show that he has borrowed loan of Rs. 2,00,000 with 18% interest per annum. The letter dated 28.8.2013 of opponent is also on record showing the demand of Rs. 28,840 towards service tax acknowledging receipt of total amount of Rs. 11,00,000. There is receipt dated 6.12.2013 on record issued by Rupji Constructions showing receipt of Rs. 1,00,000 and Rs. 28,840 by cheques dated 22.7.2013 and dated 11.11.2013 respectively. There is affidavitcum- declaration which is notarized on dated 24.1.2018 of the said Vijay Dattaji Bhosale admitting the payment of amount of Rs. 7,00,000 in cash on 11.10.2011 by complainant to the senior partner i.e. opponent No. 2 in his presence in the office of opponent No. 1 and that the said opponent No. 2 had undertook to adjust the said amount against total consideration and to mention it in agreement for sale. The above documents establishes that complainant had paid the amount of Rs. 18,00,000 plus Rs. 28,840 towards service tax i.e. total Rs. 18,28,840 to opponents. The abovesaid transaction between opponents and complainant is in respect of sale/purchase of the subject residential flat for consideration which had been received in part by opponents and hence, we hold that complainant is a consumer in relation to opponents as service provider within the meaning and scope of Consumer Protection Act, 1986. As no agreement to sale had been executed by opponent in favour of complainant and not got it registered, the amount of service tax paid by complainant to opponents had not been utilized by opponents in respect of the said transaction of the subject property. In spite of receiving the abovesaid amount which is almost 60% of consideration amount, opponents failed to execute agreement to sale and to get it registered on payment of registration fee and stamp duty along with related charges by complainant. We therefore hold opponents guilty of deficiency in service. However, there is no progress in construction as per contentions of complainant himself. We therefore, hold complainant entitled for the second alternative relief claimed by complainant and pressed by filing pursis at the time of final hearing i.e. refund of the amount of Rs. 18,28,840 paid by complainant to opponents along with interest.
5. During arguments, Advocate for complainant cited judgements of Hon’ble National Commission in consumer case No. 282 of 2012 decided on 7.5.2015 and in consumer case No. 720 of 2015 decided on 27.7.2016 in support of complainant’s prayer for interest @ 18% p.a. The Hon’ble National Commission granted 18% interest per annum by these judgments, while directing refund of the amount paid by complainants. However, we observe that in those cases, the amounts paid by complainants were about 90% of the consideration value and also there was a provision of payment of interest @ 18% per annum by parties in case of delay. In the instant case, there is no provision of payment of 18% interest per annum in the allotment letter and also payment by complainant is about 60% of consideration value. Thus, the facts in the instant case are different than those in the cited judgments and therefore, we do not find the ratio in these judgments applicable so far as the quantum i.e. rate of interest to be granted to complainant on the amount paid by him is concerned. Advocate for complainant also cited judgement of this Commission in consumer case No. CC/15/402 decided on 20.3.2018 against the same opponents in which also this Commission had granted interest @18% p.a. on the amount paid by complainants. However, in the said case, complainants had alleged that opponents had caused undue influence on complainants to cancel booking. No such undue influence is alleged in the instant case. Hence, we do not find the ratio applicable in the instant case. Also the said personal loan agreement for Rs. 2,00,000 @ 18% interest is not supported by affidavit of the concerned lender and hence cannot be relied upon. Also the complainant himself is responsible for arranging finance for the said transaction and the liability cannot be shifted to opponents in respect of rate of interest accepted by complainant.
6. Hence, in the facts and circumstances of the instant case, we find that the interest claimed by complainant @ 18% p.a. is excessive and unreasonable. In our opinion interest @ 9% p.a. will be just and reasonable to be awarded to complainant on the amounts paid, for the period from date of respective payments till realization. We find that the amount of Rs. 4,50,000 towards delayed possession claimed by complainant is not just and reasonable as interest is already granted to complainant for the said delay. We find the amount of Rs. 7,00,000 claimed by complainant towards compensation for stress, inconvenience, mental agony to be very excessive. In our opinion, an amount of Rs. 1,00,000 will be just and reasonable to be awarded to complainant on this count. We also find the amount of Rs. 2,00,000 claimed by complainant towards legal and incidental expenses very excessive. In our opinion, an amount of Rs. 25,000 will be just and reasonable to be awarded to complainant towards legal and incidental expenses including cost of the complaint. Complainant had also prayed for the amount of rent of Rs. 11,00,000 However, there is no concluded contract between complainant and opponents an
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d there is no agreement between complainant and opponents in respect of payment of rent or loss towards rent and therefore, we do not find the complainant entitled for the same. Hence, we pass the following order— ORDER (i) The Consumer Complaint No. CC/18/676 is partly allowed. (ii) Opponents are held guilty of deficiency in service. (iii) Opponents are directed to pay an amount of Rs. 18,28,840 (Rupees eighteen lakh twenty eight thousand eight hundred forty only) to complainant along with interest @ 9% p.a. from the date of respective payments till realization. (iv) Opponents are also directed to pay Rs. 1,00,000 (Rupees one lakh only) to complainant towards stress, inconvenience and harassment, mental agony, etc. (v) Opponents are directed to pay Rs. 25,000 (Rupees twenty five thousand only) to complainant towards legal and incidental expenses along with cost of this complaint. (vi) Copies of this order be furnished to the parties free of cost. Complaint partly allowed.