Goldbricks Infrastructure Private Limited vs Krushna Kadu

V.K. Jain, J

The complainant / respondent booked a residential flat with the appellant in a project namely "Anandam World City) at Model Mill Compound, Nagpur. Unit No. 306 of Tower-E was allotted to the complainant for a consideration of Rs.58,78,600/-. The price of the flat was payable in installments linked with the stage of construction. The complainant made a total payment of Rs.62,74,425/- to the appellant on different dates. The complainant was offered possession for the limited purpose of fit-outs on 17.6.2015, which the complainant did not take. The occupancy certificate was received by the appellant on 7.8.2015. The possession of the flat having not been delivered to her, despite she having paid Rs.62,74,425/-, inclusive of taxes, the complainant approached the concerned State Commission by way of a consumer complaint.

The complaint was resisted by the appellant, which inter-alia stated in its written version that there was an outstanding amount of Rs.16,45,734/- against the complainant, which she had not paid. The break-up of the said amount is as under:

Rs.6,73,600/-

Possession

Rs.23,576/-

Service tax

Rs. 1,93,223/-

Interest amount

Rs.2,34,000/-

Maintenance amount

Rs.78,000/-

corpus amount

Rs.86,471/-

Interest amount on maintenance and corpus

Rs.1,91,864/-

Old interest balance

Rs.1,65,000/-

Upkeepment charges @ Rs.15,000/- per month w.e.f. May,2016

Rs.16,45,734/-

Total outstanding

The State Commission vide impugned order dated 20.3.2019 directed as under:

"i) the complaint is partly allowed.

(ii) The opposite parties to hand over peaceful and vacant possession of residential family Unit No.306 of Tower-E, situated on 3rd floor of "Anandam World City" having total carpet area of 976 sq.ft. situated at Modal Mill, Ganeshpeth Nagpur to the complainant and execute sale deed of the same as per agreement in favour of complainant. The complainant shall bear expenses for execution and registration of sale deed.

(iii) The opposite parties to refund the excess amount of Rs.1,54,865/- with 12% p.a. interest from the date of registration of the complaint i.e. 28.12.2016 till its realization by the complainant. The said amount of refund is inclusive of the parking charges which the opposite parties has recovered from the complainant so no separate order for refund of the parking charges needs to be passed.

(iv) the opposite parties to refund Rs.1,50,000/- to the complainant which the opposite parties have accepted towards interest.

(v) The opposite parties jointly and severally to pay Rs.1,00,000/- as compensation for the mental and physical harassment to the complainant and Rs.25,000/- towards litigation expenses.

(vi) the opposite parties to issue the occupancy certificate to the complainant.

(vii) copy of the order be furnished to both parties free of cost."

Being aggrieved the appellant is before this Commission.

There is no dispute with respect to the sale consideration agreed to be paid by the complainant to the appellant. The main dispute between the parties is with respect to the delay in payment of the installments for which interest @ 18% per annum has been charged by the appellant from the complainant. The contention of the learned counsel for the complainant is that no interest was payable by the complainant since no particular time was fixed for making payment of the installments. I however find no merit in the contention. The relevant clause in the agreement reads as under:

"The purchaser/s shall pay the respective payment as stipulated hereinabove strictly within the fifteen days of the owner/developer sending notice of the completion of each stage. The aforesaid payment shall be made by the purchaser/s in favour of "Goldbricks Infrastructure Pvt. Ltd." If the purchaser/s fails to pay any of the installments on their respective due dates, then without prejudice to other rights of the owner / developer, purchaser/s shall be liable to pay interest at the rate of 18% per annum on all the amounts that may become due and payable by the purchaser/s to the owner / developer under the terms of this agreement from their respective due dates till payment. It is also specifically understood by the purchaser/s that delay in securing sanction of Housing Loan, if any, applied for by her/him/it, shall not be a ground for non-payment of the installments on due stages."

It would thus be seen that the payment was to be made within fifteen days of the demand being raised by the builder at the relevant stage. The said period of fifteen days, in my opinion, has to be computed from the date on which the demand notice was actually served upon the complainant and not the date on which the said notice was issued. The complainant cannot be made to pay interest for the time taken by the builder in dispatch and delivery of the notice. She was entitled to a clear time of fifteen days for making the payment. Therefore, the said period of fifteen days is to be computed from the date on which the demand notice was received by the complainant. The interest would be chargeable till the date on which the cheque / pay order / demand draft was actually delivered by the complainant to the builder and not the date on which the said cheque / pay order / demand draft was actually encashed by the builder. The appellant is entitled to interest to the extent it is calculated on the aforesaid basis.

As far as the maintenance charges are concerned, the security deposit / corpus for maintenance of the complex at the rate specified in Clause 17 of the agreement is to be paid to the appellant at the time the possession is actually taken. The appellant is required to deposit the said amount in a fixed deposit and utilize the interest for the maintenance of the complex.

Since there was outstanding against the complainant, due to non-payment of which the possession could not be delivered to her, despite the appellant having obtained the occupancy certificate, no justification for payment of any compensation by the appellant to the complainant is made out. The appeal is therefore disposed of with the following directions:

(i) The appellant shall calculate the interest for the overdue payments strictly in terms of this order, within two weeks from today.

(ii) The interest so calculated shall be added to the principal amount of Rs.58,78,600/-. The taxes such as VAT etc., would also be added to the amount so computed. The maintenance security/corpus calculated in terms of Clause 17 of the agreement will also be added to the amount so worked out by the appellant. The balance amount due from the complainant shall be conveyed to her within two weeks from today, after adjusting the entire amount paid by her.

(iii) The complainant shall pay the balance amount calculated in the above referred manner to the appellant within two weeks of receiving the demand.

(iv) The possession of the flat complete in all respects shall be delivered to the complainant within four weeks of the complainant making payment in terms of this order.

The appeal stands disposed of.