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Judgment
M. Shreesha, J
Challenge in this Revision Petition under Section 21 (b) of the Consumer Protection Act, 1986 (in short "the Act") is to the order dated 18.10.2016 passed by the Telangana State Consumer Disputes Redressal Commission (in short "the State Commission") in First Appeal No. 152 of 2015. By the impugned order, the State Commission has concurred with the finding of the District Consumer Disputes Redressal Forum, Ranga Reddy (in short "the District Forum"), and dismissed the Appeal preferred by both Modi & Modi Constructions (hereinafter referred to as "the Developer) and the Complainants.
The facts in brief are that the husband of the first Complainant and the father of the second Complainant has chosen to purchase an independent Villa No. 46 for a total sale consideration of Rs. 39,00,000/- payable over a period of 9 months. It is averred that an amount of Rs. 25,000/- was received by the Developer on 02.02.2013 vide cheque No. 315818, dated 20.02.2013. The Complainants further paid Rs. 2,00,000/- on 16.02.2013 towards first instalment; Rs. 5,00,000/- on 26.02.2013 towards second instalment, totalling to Rs. 7,25,000/-. On 25.02.2014, the Developer entered into an Agreement. It is averred that the Developer failed to show the span of time and obtained the signatures of the Complainants on the Agreement and thereby pressurized them to pay Rs. 14,75,000/- at a time in terms of the Agreement. Thereafter, the Complainants made a representation on 09.05.2014 seeking refund of Rs. 7,25,000/- paid by them but there was no response. The Complainants had applied for a Housing Loan from LIC Housing Finance, which sanctioned an amount of Rs. 22,00,000/- and the Complainants were required to pay the margin money of Rs. 17,00,000/- for sanction of loan. As the Complainants were short of funds to the tune of Rs. 9,75,000/-, the Developer came forward to finance, who gave a hand loan and took a letter on 09.05.2013 from the Complainants reducing the 9 months span period to 4 months. The Developer paid Rs. 2,43,750/- as an instalment and obtained undated cheques from the husband of the first Complainant. The details of the payment of Rs. 9,75,000/- by the Developer towards Housing Loan is detailed as hereunder:
Amount
Date of credit to A. Bhaskar's account by M/s Modi
Date of debit from Bhaskar account to AV Mahesh Kumar A/C
Date of Credit to AV Mahesh Kumar A/C from A. Bhaskar
Date of debit to M/s Modi Acount from Mahesh Kumar A/C
243750
17-Sep-13
21-Sep-13
21-Sep-13
24-Sep-13
243750
28-Sep-13
10-Oct-13
10-Oct-13
17-Oct-13
243750
21-Oct-13
25-Oct-13
25-Oct-13
31-Oct-13
243750
08-Nov-13
13-Nov-13
13-Nov-13
18-Nov-13
975000
On 20.11.2013, after the fulfilment of margin money, the Developer registered the Villa in the name of the Complainants, though it was not fit to be occupied as forcible possession was given, the Developer got the entire amount released from the financer without intimating the Complainant. The details of the amount released are as follows:
S. No.
Date
Amount (Rs. )
1
27.11.2013
12,48,000/-
2
27.11.2013
6,22,000/-
Total
18,70,000/-
The remaining amount of Rs. 3,30,000/- was retained with the financer awaiting the Occupation Certificate from the Developer. Despite several requests and repeated correspondence, the Developer has failed to respond, but further demanded Rs. 14,20,690/-adding the service tax of Rs. 1,15,690/-. Though the amount were due from the Complainant was only Rs. 3,30,000/-, which were retained by the financer.
It was pleaded that the Developer failed to complete the Villa in all respects though the promised date of delivery was October 2013, the Complainants lost rental per month and were also put to financial loss from October, 2013 till the date of handing over of possession. Vexed with their attitude, the Complainants got issued a legal notice on 12.03.2014, for which the Developer replied on 10.04.2014 with false allegations. Hence another notice was issued on 21.04.2014, but there was no reply. Therefore, the Complainant approached the District Forum seeking direction to the Developer to handover the possession of Villa No. 46 after completing the entire works together with Occupation Certificate, to pay Rs. 25,000/- per month towards compensation from October, 2013 and further Rs. 5,00,000/- to each of the Complainant for the mental agony suffered.
The Developer resisted the Claim on the ground that it was agreed that the possession of the Villa No. 46 would be handed over only after receipt of the total sale consideration of Rs. 39,00,000/- as per schedule mentioned in Clause 3 of the Agreement. The Developer admitted receipt of Rs. 25,000/- as advance, Rs. 2,00,000/- paid on 16.02.2013, Rs. 5,00,000/- on 26.02.2013 totalling to Rs. 7,25,000/-. They deny the knowledge about any loan obtained from LIC Housing Finance and also the proposal for payment of the amount in 9 months. It is admitted that an amount of Rs. 9,75,000/- was paid to the Complainant in four instalments. It was denied that the Complainants were forced to register Villa despite the fact that it was not ready. It was averred that dues of Rs. 14,20,690/- was inclusive of interest on late payment of instalments together with service tax of Rs. 1,15,690/-, which is payable to the Government authorities. It was pleaded that the Villa was complete in all respects except for the sanitary fittings, which are done just before the handing over of the possession of the subject Villa.
The Developer also filed suit for recovery of the dues bearing No. OS 98 of 2013 on the file of 1st Additional Chief Judge of Secunderabad. It was averred that the Complainants have withheld the payments of the instalments and that the Developer received only Rs. 35,70,000/- and further an amount of Rs. 11,23,523/- is still due towards final settlement of the cost of the Villa along with interest and service tax, interest on delayed payments, corpus fund etc. A legal notice was issued on 18.04.2014 calling upon to pay an amount of Rs. 20,48,497/-. It is pleaded that as the Complainants were liable to pay these amounts, there is no deficiency of service on their behalf.
The District Forum based on the evidence adduced allowed the Complaint in part directing the Developer to deliver the Villa No. 46 after receiving the balance sale consideration of Rs. 3,30,000/- from the financer on production of Occupation Certificate and also directed the Developer to complete the minor works as agreed under the Agreement of Sale dated 25.02.2013. One month's time was granted to complete the work.
Aggrieved by the said order, both the Developer and the Complainants preferred First Appeal No. 138 of 2015 and 152 of 2015 respectively. It is the Developer's case that the amount due was Rs. 11,33,523/- and not Rs. 3,30,000/- as observed by the District Forum and that the District Forum had erred in arriving @ Rs. 3,30,000/-. It was the case of the Complainants' before the State Commission, that the District Forum did not award any compensation as the Developer was liable to pay Rs. 25,000/- per month for the damages and rent until the Villa was handed over and also that the District Forum did not take into consideration that there was no Occupation Certificate and did not award the compensation prayed for.
The State Commission while disposing of both the Appeals observed as follows:
"18) The only dispute is that the Villa is not completed in all respects and the Purchasers are required to pay only Rs.3,30,000/- as against the demand of Rs.14,20,690/- of the Builder. Apart from Rs.3,30,000/-, the Builder is claiming an amount of Rs.7,92,523/- which includes service tax of Rs.2,15,420/-; interest on delayed payment of Rs.4,87,177/-; court fee and legal expenses of Rs.50,926/- and corpus fund of Rs.40,000/-. It is also not in dispute that, altogether, the Builder received an amount of Rs.35,70,000/- from the Purchasers.
19) The aspects as regards the payment of service tax, corpus fund and court fees and legal expenses are concerned, the same are answered by the forum below. Hence, we do not feel it necessary to go into those aspects. In so far as the demand for interest on delayed payments is concerned, the Builder has already invoked the jurisdiction of civil court, which is pending adjudication. Admittedly, the villa in question is not completed and still some minor works are remained to be attended. For that matter, both the parties are throwing burden on each other. The Purchasers state that they are ready to instruct their financier to release the amount of Rs.3,30,000/- provided the Builder obtains the Occupancy Certificate and the Builder on other hand states that if the Purchasers clear-off all the dues, they would complete the left-over minor works. As can be seen from the photos exhibited, most of the works in the Villa are completed except fixing of fixtures in toilets and other minor works. As a matter of fact, except filing the account statement, the Builder has not made any demand demanding the Purchasers to pay the dues amount. From the documents exhibited, it is clear that the Builder has agreed to deliver the possession of the villa within one month after receiving the final disbursements.
20) It is only after the Purchasers got issued a notice dated 12.03.2014 under Ex.A15, the Builder got issued a reply on 10.04.2014 under Ex.A16 claiming an amount of Rs.20,48,497/- inclusive of service tax, corpus fund and interest upto 05.04.2014, without furnishing the particulars of entitlement. Again, the Purchasers got issued another notice on 21.04.2014 under Ex.A17, to which, no reply is given by the Builder. Instead, laid the suit bearing OS No.98/2014 for recovery of Rs.20,48,497/- before the I-Addl. Chief Judge, City Civil Court at Secunderabad, which, admittedly, is pending adjudication."
Dissatisfied by the said order, the Complainants preferred this Revision Petition on the ground that the State Commission did not take into consideration that the Developer has already received Rs. 35,70,000/- out of Rs. 39,00,000/- and it was only Rs. 3,30,000/-, which needed to be paid by the Housing Financer and that the Developer cannot claim interest on Rs. 3,30,000/- because there was inordinate delay on their behalf in handing over possession and that the State Commission ought to have awarded the compensation amount prayed for.
It is pertinent to mention that the Developer did not challenge the concurrent finding of both the Fora below and therefore the question of deficiency of service against the Developer with respect to delay in delivery of possession, incomplete works and also non furnishing of the Occupation Certificate has attained finality. Therefore the only limited question is whether the Complainants are entitled for compensation. Admittedly the Complainants have paid an amount of Rs. 35,70,000/- out of the total sale consideration of Rs. 39,00,000/- and the promised date of delivery was October 2013. More than five years have lapsed and the Developer has still not got the Occupation Certificate. It is pertinent not note that there is a submission by the learned counsel for the Revision Petitioner that the suit filed by the Developer, seeking some amount to be paid by the Complainant, was dismissed on 25.07.2018. As the finding of both the Fora below directing the Developer to accept Rs. 3,30,000/- from the financer on production of the Occupation Certificate has attained finality, the Developer is directed to complete all the minor works as stated under the Agreement of Sale dated 25.02.2013 and comply with the concurrent directions given by both the Fora below.
Having regard to the promised date of delivery including grace period of 6 months as per the terms of the Agreement ends on 01.03.2014, we are of the considered view that the Complainants are entitled to interest @ 9% p.a. on the amounts paid from 01.03.2014 till the date of production of Occupation Certificate together with costs of Rs. 10,000/-.
In the result this Revision Petition is allowed in part directing the Developer to pay the interest @ 9% p.a. on the amounts paid by the Complainant i.e. Rs. 35,70,000/- from 01.03.2014 till the date of production of Occupation Certificate together with costs of Rs. 10,000/-. Time for compliance is four weeks, failing which, the amount shall attract interest @ 12% p.a. for the same period.