Anjana Bansilal Thakkar vs M/S. Shwas Homes Pvt. Ltd. & 2 Ors

This consumer complaint has been filed by Anjan Bansilal Thakkar against the opposite party M/s. Shwas Homes Pvt. Ltd. & Ors.

Brief facts of the case are that the complainant is NRI working abroad. The 1st opposite party is a private Limited Company doing land development and villa/ apartment construction business in Kerala. The 2nd and 3rd opposite parties are its Directors. Lured by the various representations made by the opposite parties, the complainant entered into Agreement for sale with the 1st opposite party by which the 1st opposite party agreed to sell to the complainant Plot No.39A in Aqua City having an extent of 8 cents in Sy. No.176/3 of Karumaloor Village, Paravur Village, Ernakulam District, Kerala State, together with the right to use all the common amenities and facilities proposed to be developed in the said Aqua City with other owners and/or purchasers of the other portions of land, for a total consideration of Rs.8,00,000/-. The complainant further entered into agreement for construction with the 1st opposite party by which the 1st opposite party agreed to construct a villa in the plot No.39A having an area of 3,115 sq.ft., and the common amenities and facilities mentioned in the agreement for construction, for a consideration of Rs.95,57,375/-. It was specifically agreed that the possession of the villa shall be delivered to the complainant on 30.09.2010.

The opposite parties always made the complainant to believe that the construction of her villa was progressing ahead of the schedule and promised her through email that the entire work of her villa with electricity and water connection will be completed on 30.06.2010, even though the completion date as per the agreement is 30.09.2010. The applicant paid Rs.1,14,77,831/- which being the total amount payable under the agreement for sale as well as agreement for construction as early as on 21.03.2012 and the opposite parties confirmed by email that the complainant paid all the amounts including the payment for electric connection, water connection, registration of sale deed, tax, maintenance charges, building tax, workers welfare fund, etc, and sent a statement of account to the complainant by email. When the opposite parties failed to deliver the villa even after a lapse of 4 years from the committed date the complainant caused to issue legal notice to the opposite parties on 05.11.2014.

The opposite parties then sent a draft of the sale deed by email and informed her that they are ready to register the sale deed in her favour. On examination of the draft sale deed, the complainant realised that the property offered to be registered in her name was a totally different one; that is, the property mentioned in the draft sale deed was villa No.66 having an area of 3.30 Areas (8.151 cents) of land in Sy. No.431/3A -1, whereas the scheduled property agreed to be purchased by the complainant was Plot No.39A having an extent of 8 cents in Sy. No.176/3 of Karumaloor Village. Further, most of the common amenities and facilities offered by the opposite parties were not completed by the opposite parties. The complainant contacted the opposite parties over telephone and the opposite parties informed the complainant that they would sell the scheduled property to a third party if the complainant failed to get the offered property registered in her name.

As the complainant was only interested in her villa on plot No.39A, and it was informed by the opposite parties that the same has been sold to some other party and the draft agreement was sent for villa No.66, the complainant decided not to purchase the villa on another plot and filed the consumer complaint before this Commission for refund of the amount paid.

Notice was issued to opposite parties, however the opposite parties did not file the written statement inspite of granting reasonable opportunity to the opposite parties. Consequently, the right of the opposite parties to file the written statement was closed vide order dated 15.09.2016 of this Commission. The complainant then filed the evidence affidavit.

Heard the learned counsel for the complainant as well as for the opposite parties. The learned counsel for the complainant stated that the complainant entered into two agreements with the opposite parties, first being for the plot No.39 and the second was for construction of villa over that particular plot. When the opposite parties failed to deliver the villa even after a lapse of 4 years from the committed date i.e. 30.09.2010, the complainant caused to issue legal notice to the opposite parties on 05.11.2014. The opposite parties then sent a draft sale deed by e-mail and informed the complainant that they are ready to register the sale deed in her favour. On perusal of the draft sale deed, the complainant realised that the property offered to be registered in her name was totally different one i.e. the property mentioned in the draft sale deed was villa No.66 having area of 3.30 Areas (8.151 cents) of land in Sy. No.431/3A -1 whereas the scheduled property agreed to be purchased by the complainant was plot No.39A in Aqua City having an extent of 8 cents in Sy. No.176/3.

It was further argued by the learned counsel that the complainant inquired from the opposite parties and it was informed to the complainant that the property on plot No.39A has been sold to some other party and if the complainant wants to take offered property then the complainant should get sale deed registered. The learned counsel further argued that the original allotment of plot No.39A was in front of the river whereas the offered property is not near the river. As the property has been changed, the complainant is not interested in taking possession of the offered plot. Hence, the complaint has been filed for refund of the deposited amount of Rs.1,14,77,831/-along with interest @15% p.a. from 30.09.2010. On the point of interest learned counsel relied upon the judgment of this Commission in FA No.250 of 2014, EMAAR MGF Land Limited & Anr. Vs. Amit Puri, decided on 30.03.2015 (NC)

Learned counsel further stated that Rules of RERA Kerala, which have been notified on 18.06.2018 clearly mentioned the following:-

"18. Rate of interest payable by the promoter and the allottee.- (1) The annual rate of interest payable by the promoter to the allottee or by the allottee to the promoter, as the case may be, shall be the State Bank of India's Benchmark Prime Lending Rate plus two per cent and shall be computed as simple interest.

(2) In case of payment from the promoter due to the allottee the interest on amount due shall be computed at the rate as per sub-rule (1) above from the agreed date of payment of such amount from the allottee to the promoter as per the agreed payment schedule as part of the agreement of construction or sale.

(3) In case of payment from the allottee to the promoter, the interest on amount due shall be computed at the rate as per sub-rule (1) above from the agreed date of payment of such amount from the allottee to the promoter as per the agreed payment schedule as part of the agreement of construction or sale.

Timelines for refund- Any refund of money along with the applicable interest and compensation, if any, payable by the promoter in terms of the Act or the rules and regulations made thereunder, shall be payable by the promoter to the allottee within forty-five days from the date on which such refund along with applicable interest and compensation, if any, becomes due."

On the other hand, learned counsel for the opposite parties stated that the property is ready and the opposite parties are willing to give the possession of the agreed property to the complainant. The opposite parties have invested money given by the complainant in construction of the said villa by the year 2014 and the opposite parties are ready to hand over the said property to the complainant. In such situation, the complainant should be directed to take over the possession of the said villa.

Learned counsel further stated that they have sent several reminders to the complainant to come and take the possession of her villa. Learned counsel mentioned the e-mail dated 01.04.2014 sent by the opposite parties to the complainant, which mentions the following:-

"Dear Mam,

Good -Morning

Hope this mail finds you with good health and cheers. As per out correspondences for the last one year regarding the handing over of your villa you have never turned up to receive the keys.

One year back we have informed you that all the works in your villa has been completed and accordingly we have send you the completion certificate also. As it is a township in near by plots works are going on it will be very difficult to maintain the villa for all the time.

As per your visit you have requested to make some rectification works again in your villa and accordingly we have rectified all the works which you have notified and ready for occupation. So as soon as you receive this mail please come and take the handing over of your villa on or before 07.4.2014. For your kind information we hereby confirm you that we will not do any further rectification works in your villa as of now all the works were completed and ready to occupy.

If you are delaying to take the handing over then again we can able to do any rectification works in your villa. And once the handing over is done then you have maintain the villa by yourself.

Regarding the registration process as we told earlier during your visit we have provided you the stamp paper to make the thumb impression and provide the same to us but you have taken in with you in hand. Once you return the stamp paper with thumb impression we will start the registration process.

Awaiting your reply at the earliest.

For any further clarification please contact us."

Learned counsel for the opposite parties stated that e-mails sent by the opposite parties to the complainant clearly show that villa was ready since 2014 and the opposite parties were sending reminders to the complainant to come and take the possession of the said villa. However, the complainant had not turned up to take the possession of her villa, so when the construction is complete and the opposite parties are willing to handover the said villa to the complainant, there should be no question of refund of paid amount. Learned counsel further argued that the complainant has asked interest @15% p.a. on the amount deposited by the complainant in case the refund is ordered. There is no agreement in this regard and therefore, no interest can be awarded on the amount of refund.

I have given a thoughtful consideration to the arguments advanced by the learned counsel for both the parties and have examined the record. Though the learned counsel for the opposite parties during the arguments stated that the opposite parties are willing to hand over the possession of the said villa of the complainant, from the draft sale deed that was sent to the complainant for approving the same, clearly stated the plot No.66 instead of the original plot No.39A that was allotted to the complainant. If the allotted property is not given to the complainant by the opposite parties, then the complainant has every right to cancel the agreement and to seek the refund. Moreover, there is a delay of more than 4 years in the construction of the villa, which is also a ground for seeking refund. During the arguments I asked learned counsel for the complainant whether the complainant would be willing to take the possession of the said villa. The learned counsel informed that the complainant was not interested in the villa and wants refund. As no written statement has been filed by the opposite parties, their version has not come on record, however, from the e-mail dated 01.04.2014 that has been filed by the complainant herself, it is seen that the opposite parties have informed the complainant that the construction was ready. Complainant was requested to take the possession of the said villa.

Clearly, the complainant had not taken the possession of the villa though construction was completed and the villa was ready to be handed over. The complainant may have taken the possession of the said villa along with delay charges as per the agreement. Clearly, the opposite parties may not have earned interest on the amount given by the complainant as the same has been used in construction of the said villa. As mentioned above, the ground of allotment of other property as well as huge delay of 4 years in completion of the construction are sufficient ground for seeking refund and therefore, the complaint is liable to be allowed and the amount of Rs.1,14,77,831/- paid by the complainant is liable to be refunded by the opposite parties. So far as the question of interest is concerned, it is seen that there is no provision in the agreement for such interest on the amount of refund. Hence, the same is to be ordered by the Commission. As the money has remained with the opposite parties, the opposite parties are liable to pay the interest as held by the Hon'ble Supreme Court in Alok Shanker Pandey Vs. Union of India &Ors., II (2007) CPJ 3 (SC) as under:-

"9. It may be mentioned that there is misconception about interest. Interest is not a penalty or punishment at all, but it is the normal accretion on capital. For example if A had to pay B a certain amount, say 10 years ago, but he offers that amount to him today, then he has pocketed the interest on the principal amount. Had A paid that amount to B 10 years ago, B would have invested that amount somewhere and earned interest thereon, but instead of that A has kept that amount with himself and earned interest on it for this period. Hence equity demands that A should not only pay back the principal amount but also the interest thereon to B."

Now the question of interest rate is to be decided in the present case. The Hon'ble Supreme Court in HUDA Vs. Raj Singh Rana, Civil Appeal No.4436 of 2008, decided on 16.7.2008 has held as under:

"10. The concept of levying or allowing interest is available in almost all statutes involving financial deals and commercial transactions, but the provision empowering Courts to allow interest is 13 contained in the Interest Act, 1978, which succeeded and repealed the Interest Act, 1839. Section 3 of the said Act, inter alia, provides that in any proceeding for the recovery of any debt or damages or in any proceeding in which a claim for interest in respect of debt or damage already paid is made, the Court may, if it thinks fit, allow interest to the person entitled to the debt or damages or to the person making such claim, as the case may be, at a rate not exceeding the current rate of interest, for the whole or part of the periods indicated in the said Section."

From the above observation of the Hon'ble Supreme Court, it is clear that interest cannot be granted which will be more than provided under the Interest Act 1978. The prescribed rate under the Interest Act, 1978 currently is 10%.

So far as the provision of interest given in the Rules of RERA (Kerala) is concerned, it is seen that Rule 19 is in regard to the refund of the amounts paid by the allottee to the builder and this Rule is applicable when the order is passed under the provisions of the Act, Rules or Regulations made under the Real Estate (Regulation and Development) Act, 2016. As no order of refund is being passed under these provisions, this Rule 19 and consequentially Rule 18 do not seem to be applicable when the order is being passed under the Consumer Protection Act, 1986 where the complainant has availed the alternative remedy as per Section 3 of the Consumer Protection Act, 1986. At the most, the award of interest can be considered under the Interest Act, 1978 as opined by Hon'ble Supreme Court in HUDA Vs. Raj Singh Rana (supra). As the complainant is not ready to take the possession of the said villa and she wants refund of the deposited amount, in the facts and circumstances of the case, I deem it appropriate that the amount paid by the complainant to the opposite parties be returned to the complainant along with interest @ 9% p.a. simple interest.

On the basis of the above discussion, the complaint is allowed and following order is passed:

ORDER

The opposite parties shall refund the amount of Rs.1,14,77,831/- to the complainant along with 9% p.a. interest from the date of respective deposits till actual payment. The order be complied by the opposite parties within 3 months from the date of receipt/service of this order.