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Judgment
A. P. Sahi, President Member
Heard learned counsel for the complainants who are two in number. They have demanded refund of payments extended vis-à-vis the allotment of their premises in a project which is a joint venture between the opposite parties no. 1, 2 and 3.
The apartment which has been booked is described as Apartment No. 15D on the 15th Floor in Labanya Tower-2 of the Higher Income Group cluster of an area of 1675 sq. ft. vide allotment letter dated 12.06.2007. The contention is that total amount of Rs.44,80,207/- was paid and it was assured that the possession shall be delivered within 36 months of the signing of the allotment letter, meaning thereby that the possession was to be given latest by 30.06.2010.
It is now undisputed that till date no letter of possession has been issued nor the possession has been offered to the complainants. It is in this background that the present complaint came to be filed six years ago after seven years of the lapse of date of possession as mentioned herein above.
Learned counsel submits that there is hardly any dispute on these facts and therefore in view of the aforesaid gross deficiency in service of the opposite parties no. 1, 2 and 3, which is now established with the exchange of affidavits, the complainants need to be compensated keeping in view the fact that this Commission has awarded 18% interest in the Consumer Complaint No. 282 of 2012 (Dewan Ashwani & Ors. Vs. Unitech Reliable Projects Pvt. Ltd. & Anr.) decided on 07.05.2015. A copy of the said judgment has been filed as Annexure-C to the complaint.
Further reliance has been placed on the judgment in the case of Wing Commander Arifur Rehman Khan & Ors. Vs. DLF Southern Homes Pvt. Ltd. 2020 (16) SCC 512. The Learned counsel has also urged that similar cases have been allowed by the NCDRC in respect of the very same project that arose out of an order of the State Commission which stands reported in 2020 SCC OnLine NCDRC 597 (Bengal Shelter Housing Development Ltd. Vs. Smita Singh And Anr.. The contention therefore is that keeping in view the provisions of Clause 8 and Clause 11 of the allotment letter which remains undisputed, the delay is established on record. Hence, the complainants are entitled for refund.
Learned counsel for the opposite parties appear to have taken an objection to the maintainability of the complaint itself on the ground that the complainants are not home buyers but are investors and which fact is sought to be substantiated in the pleadings that were contained in the earlier complaint filed by the complainants along with some others that was withdrawn with liberty to file individual complaints. In short, the pleadings of that complaint contained in para-13 are sought to be made a defence by the opposite parties to contend that the complainants are not consumers and are investors. The said para-13 is extracted hereunder:
“13. That all the core elements of the commercial transactions between the OP-2 and the Complainants as mentioned above are tabulated in a concise manner below (Table-1). Due to failure of OPs to deliver the promised allotted apartments/flat, the Complainants have incurred cumulative direct financial loss which is estimated at 18% P.A and same is mentioned in the Table-1, row no. 12 and same is claimed hereby as one of the compensation.
XXX XXX XXX”
Responding to the said argument on behalf of the opposite parties, learned counsel for the complainants has invited the attention of the Bench to para-10 of the very same complaint, where the following assertion has been made:-
“10. …. The five families (10 Complainants), booked the flats to secure their retirement homes and to establish a caring residence for their respective aged parents in Kolkata, India during their working in Abu Dhabi and paid all the demanded instalments (amount of consideration money) to the OP No. 2 the details of which are mentioned in the Transaction Chart herein below. …”
A perusal of these pleadings clearly demonstrate that the complainants had come out with a clear case that in order to secure a retirement home for their parents they had applied for acquiring the said property and it was not for any commercial or any other commercial transaction purpose. It is urged that the words commercial transaction in para-13 were vis-à-vis the developer to indicate financial transactions and not for any trade or commerce with regard to the real estate. The contention therefore is that the inference sought to be drawn by the opposite parties on the strength of such averments is not borne out from records and hence the contention that the complainants are not consumers is not correct.
Having considered the submissions raised, the contention raised on behalf of the complainants is clearly established, inasmuch as the booking, the allotment letter as well as the transactions nowhere lead to any such conclusion that they were investments in real estate for the purposes of trading and commerce in the real estate. The purpose in the earlier complaint as well as in the present complaint has been explicitly stated for the purpose of settling families in the residential flats which had been booked. There is no evidence on behalf of the opposite parties other than what has been indicated above to demonstrate that the complainants have either acquired any other property or are involved in the business of real estate. In such circumstances, the only conclusion that can be drawn is that the present complaint has been filed in respect of the property that was sought to be acquired for their own personal use and not for any commercial purpose. Consequently, the said objection taken on behalf of the opposite parties deserves to be rejected.
Coming to the issue of delay, there is hardly any defence and therefore the contention raised on behalf of the complainants is bound to be accepted.
Learned counsel for the opposite parties also contended that this project is being monitored by the High Court of Judicature at Calcutta and certain directions were issued as a result whereof the project is on and the possession is now being delivered to other flat buyers. It is therefore contended that there was no intention to delay nor were they deficient in intention to earn profit out of the said project inasmuch as no additional charge is being claimed from the flat buyers. The aforesaid position may be correct but it is by now well settled in the cases decided by the Apex Court including the cases that have been relied by the learned counsel for the complainants that a flat buyer cannot be made to wait endlessly for delivery of flats. In the present case the date of possession was admittedly in the year 2010 and 13 years have passed. This is more than an endless wait. In such circumstances, any proceedings being conducted for delivery of possession or monitoring of the project by the Calcutta High Court cannot arrest the right of the complainants to seek refund. Consequently, the proceedings before the Calcutta High Court in respect of the completion of the project is no legal impediment in the passage of the complainants in claiming delayed compensation under the jurisdiction of the Consumer Fora. This argument is also therefore unsustainable.
The judgments relied on by the complainants are squarely supporting their stand but insofar as interest is concerned, the judgment in the case of Wing Commander Arifur Rehman Khan & Ors. Vs. DLF Southern Homes Pvt. Ltd. (Supra) has proceeded to award only 9% interest and therefore following the ratio thereof and keeping in view this admitted position, seeking refund of their hard-earned money by the complainants who are senior citizens and are at their advanced age of their life is justified and is hereby allowed.
In this view of the matter, the complaint is allowed with a direction that the entire amount tendered by the complainants to the opposite parties shall be refunded along with interest @ 9% interest with effect from the date of respective deposits till the date of actual payment within a period of three months from today. In the event of any default, the rate of interest shall stand enhanced to 12%.
The complaint stands disposed of in the above terms.