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Judgment
V.K. Jain, J
The complainant / appellant entered into an agreement with the respondent on 27.12.2006 whereunder a residential flat in a project, namely, 'Rohan Seher' was to be constructed by the respondent and sold to the complainant/appellant for a consideration of Rs.6126500/-The aforesaid sale consideration was payable in the following manner:-
AMOUNT PARTICULARS
a) Rs. 918,690.00 Already paid before execution of this agreement
b) Rs. 612,935.00 To pay within 7 days from execution of this agreement
c) Rs. 918,975.00 Within 8 days of completion of Basement slab of the building in which the said residential unit is situated.
e) Rs. 918,975.00 Within 8 days of completion of First floor slab of the building in which the said residential unit is situated.
f) Rs. 918,975.00 Within 8 days of completion of Second floor slab of the building in which the said residential unit is situated.
g) Rs. 918,975.00 Within 8 days of completion of Third floor slab of the building in which the said residential unit is situated.
h) Rs. 306,325.00 Within 8 days of commencing of the Brickwork of the said residential unit.
i) Rs. 306,325.00 Within 8 days of commencing of the Flooring work of the said residential unit.
j) Rs. 306,325.00 Within 15 days of obtaining completion certificate from PMC or at the time of delivery possession of the said residential unit by the promoter to the purchaser/s, whoever is earlier, along with all other dues payable under this agreement.
Rs. 6,126,500.00 TOTAL
The complainant made a total payment of Rs.24,50,000/- to the respondent. The construction linked demands raised by the respondent from time to time were not paid. The respondent sent a notice dated 5.11.2008 to the complainant/appellant expressing intention to terminate the agreement in case the balance amount of Rs.4223635/- was not paid within a period of 15 days from the receipt of notice. The said amount included interest on the delayed payment of the balance sale consideration. Though the complainant replied to the aforesaid notice on 17.11.2008, he did not pay the entire amount, the cheque sent by him being for only Rs.918750/-. The respondent sent yet another notice dated 22.12.2008 to the complainant, demanding the balance amount to avoid termination/cancellation of the agreement. No further payment was made thereafter. Since the cheque of Rs.918750/- which the complainant had sent to the respondent were not encashed, the payment made by the complainant to the respondent remained Rs.24,50,000/-. The complainant thereafter approached the concerned State Commission by way of a consumer complaint seeking possession of the allotted flat along with compensation etc.
The complaint was resisted by the respondent primarily on the ground that the complainant having not paid the balance sale consideration and interest on that amount, notice terminating agreement was issued to him. it was also stated in the reply filed by the OP that they were ready to give possession of the flat to the complainant on his paying the balance sale consideration with interest @ 15%.
Vide impugned order dated 26.9.2016, the State Commission directed as under:-
"1) Consumer complaint is partly allowed with costs quantified to Rs. 30,000/- (Rs. Thirty Thousand only).
2) Opponents are jointly and severally directed to hand over vacant and peaceful possession of Unit No. 74, First and Second Floor, "Rohan Seher, Baner, Pune together with parking slot as incorporated in the agreement by accepting balance consideration of Rs. 36,76,500/- (Rs. Thirty Six Lacs Seventy Six Thousand Five Hundred only) with simple interest @ 9% payable from 05/01/2008 within a period of 90 days.
3) Complainants are directed to pay Rs. 36,76,500/- (Rs. Thirty Six Lacs Seventy Six Thousand Five Hundred only) to the opponent within a period of 70 days from today. In case the opponents refuse to accept the said amount, complainants to deposit the said amount with the Office of this State Commission within 8 days from such refusal, if any."
Being aggrieved from the order passed by the State Commission, the complainant is before this Commission by way of this appeal.
The first question which arises for consideration in this appeal is as to whether the complainant/appellant had committed default in timely payment of the balance sale consideration or not. As noted earlier, the balance payment was linked with the stage of the construction. The respondent raised demand on the construction reaching the stipulated level and also annexed a copy of the certificate issued by the architect to prove that the construction had reached the said specified level. No evidence has been led by the complainant before the State Commission to prove that the said certificates were false and that the construction had actually not reached the level at which the amount demanded by the respondents was to become payable. Therefore, the complainant in our opinion was under a contractual obligation to pay interest on the amount which he had not paid despite having received demand letter from the respondents. We also find from a perusal of the record that the installments linked with construction were demanded by the respondents and had become payable much before 5.1.2008. The State Commission, however, has directed the appellant to pay interest on that amount only w.e.f. 5.1.2008. Considering that the respondents has not challenged the order passed by the State Commission, we are not inclined to award interest from the date on which the said installments had become due. We, however, maintain the direction of the State Commission to the complainants/appellants to pay the balance amount of Rs.3676500/- along with interest on that amount @ 9% per annum w.e.f. 5.1.2008. The said interest would be payable w.e.f. 5.1.2008 till the date the principal amount of Rs.3676500/- was actually paid to the respondents.
In fact, the complaint would be barred by limitation and on merits also the complainant will not be entitled to the possession of the flat, if the notices sent by the respondent to the complainant are treated as cancellation of the agreement. However, since no cross appeal has been filed by the respondent, we are not inclined to delve further into this aspect of the matter.
We also find that the State Commission did not award any compensation to the complainants for the period during the construction was delayed. It transpired during the course of arguments that the respondents had applied for the requisite Occupancy Certificate on 6.5.2009 though the said Occupancy Certificate was issued on 24.6.2009. We award compensation in the form of simple interest @ 8% p.a. to the complainants/appellants on the entire amount of Rs.24,50,000/- which he had paid to the respondents w.e.f. 1.9.2008 till 24.6.2009 when the Occupancy Certificate was actually issued.
The respondents are also directed to register the agreement in favour of the complainants/appellants, within six weeks of the complainants/appellants paying the requisite stamp duty and registration charges to the respondents.
Rest of the directions given by the State Commission are maintained.
The appeal stands disposed of.