AI Structured Summary
Not yet generated for this judgment
Judgment
A. P. Sahi, President Member
Heard learned Counsel for the Complainant. This complaint is for refund alleging deficiency in service by not delivering the possession of the booked premises.
It appears from the record that notices were issued on the admission of the Complaint on 06.09.2019. The Complaint categorically states that the Apartment Buyer Agreement (hereinafter referred to as the ‘ABA’) dated 16.08.2016 was entered into between the Complainant as well as the Opposite Parties No. 1 and 2. This is clearly borne out from the copy of the ABA that has been placed on record. The Opposite Party No. 1 is the first party in the ABA and the second part is Opposite Party No. 2. It is therefore evident that this was an agreement jointly executed by the Opposite Parties No. 1 and 2 for the purpose of delivering the premises in question after construction on the terms and conditions as indicated in the said ABA. The ABA is, therefore, comprehensive and the responsibility and liability of delivering the possession of the completed premises rests on both, namely, Opposite Parties No. 1 and 2.
From the record it appears that notices were issued on 06.09.2019. There is an Office report indicating that as per the tracking report notices were served on 02.11.2019. It is thus evident that both the Opposite Parties stood served way back in 2019 and it is the only Opposite Party No. 1 who has filed the written version contesting this complaint. No written version has been filed by Opposite Party No. 2 nor it has entered any appearance in this Complaint right from inception.
It is also pointed out by the learned Counsel for the Complainant that all payments as disclosed in the Complaint right from the booking amount onwards has been paid to the Opposite Party No. 1 for which receipts have been issued. It is, therefore, evident that the Opposite party No. 1 is under an obligation to answer the allegations made in this complaint.
The main thrust of the argument of the learned Counsel for the Complainant is that in spite of expiry of the period within which the possession had to be handed over, no steps were taken, and, as a matter of fact a very crude infrastructure has come up without there being any hope for the completion of the project or its being handed over by the Opposite Parties.
It is pointed out that the same builders/opposite parties had developed the project in question with 9 towers. Some of the proposed allottees and applicants who had earlier entered into an ABA in the year 2014 were also not delivered possession within the period stipulated in the ABA. Consequently, they came up before this Commission by filing Consumer Case No. 2384/2017 (Mohit Sharma & Anr Verses M/s Ramprastha Promoters and Developers Pvt. Ltd. & Anr.) and other connected matters that was finally decided on 01.05.2019. A copy of the said order is placed on record and identical issues which were raised in the said complaint also form the basis of the contest between the parties in the present complaint, except that in the instant case the ABA has been entered into on 16.08.2016.
According to the learned Counsel for the Opposite Party No. 1 the complaint is premature as it was filed in September 2019. He therefore submits that even without waiting for the entire period of the completion of the project together with the extra time stipulated in the ABA, the present complaint was instituted which was obviously premature and therefore it should be dismissed.
Learned Counsel submits that it is the complainant who has failed to make the payments which almost runs to 33% of the amount that was required to be paid under the ABA. Hence, the answering Opposite Party was compelled in these circumstances to hold on with the project without it being completed due to the default of payment by the complainant.
Rest of the contentions are same as were raised on behalf of the Parties in CC No. 2384/2017 referred to hereinabove.
Coming to the facts of the present case, the following details of payments made by the complainant that are undisputed w.e.f. 10.10.2011 till 28.01.2015 have been narrated in para-4 of the complaint:
S.NO.
RECEIPT NO
RECEIPT DATE
CHEQUE/DRAFT/REF. NO.
CHEQUE/DRA FT/REF. DATE
DRAWNON
NET AMOUNT
GROSS AMOUNT
1.
2027
11.10.2011
003479
10.10.2011
ICICI
Rs.14,06,607
Rs.14,42,892
2.
1430
24.01.2013
896368
23.01.2013
IDBI Bank
Rs.24,18,706
Rs.24,66,221
3.
2224
28.01.2015
056376
28.01.2015
IDIBI Bank
Rs.26,97,864
Rs.28,00,000
Total
Rs.65,23,240
Rs.67,09,113
The receipt of this amount has not been disputed by the opposite parties.
Thus, on a conspectus of the entire facts keeping in view the terms and conditions of the ABA, the only stand taken by the Opposite Parties is that the complaint lodged was premature and the compulsions under which the Opposite Parties could not complete the project.
Having heard learned Counsel for the parties and having perused the material on record, the matter no longer appears to be res integra insofar as the other contentions on facts and law are concerned and stand covered by the judgement in CC No. 2384/2017 decided on 01.05.2019.
The major contention is that this is a premature complaint. It goes without saying that it is now more than a matured complaint as on date as the delay in handing over possession does not stand explained either reasonably or unreasonably and there is no hope of the project being completed or the possession being handed over to the complainant on the facts that have emerged in the present case. Thus, this case also does not stand on any different footing than that decided by this Commission in CC No. 2384/2017. The written version does not come up with any material which may indicate the completion of the project. It is nowhere on record that the occupancy certificate has been obtained by the Opposite Parties. The complainant is therefore in these circumstances not only compelled but also left with no other option but to seek refund which has been rightly prayed for and deserves to be granted.
Accordingly, keeping in view the ratio of the judgment of this Commission in CC No. 2384/2017 referred to herein above that is fully applicable, the present complaint is allowed. The relief claimed for Rs.67,09,113/- is hereby allowed with interest of 12%.
Learned Counsel for the Opposite Party No. 1 submitted that the rate of interest according to recent trends of the judgements of the Apex Court deserves to be scaled down to 9% because of the intervening mitigating circumstances of the present case.
Having considered the same, what appears is that in CC No. 2384/2017, which was decided earlier by this Commission, the interest awarded was 12% in respect of the same project. The Apex Court in the Civil Appeals filed by the Opposite Parties being Civil Appeal Diary No. 31573/2019 and other connected matters dismissed on 20.09.2019 refused to interfere with the judgement and order of the NCDRC. However, it left the question of law open.
There is no other question of law which needs determination in the present proceedings and, therefore, so far as the issue of interest is concerned, judicial discipline demands that no discrimination should be made between the same set of apartment buyers of the same project on the award of interest regarding the same project. Consequently, the interest payable would be 12%.
The Opposite Parties are directed to refund the aforesaid amount of Rs. 67,09,113/- with 12% interest within three months. In the event of default, the interest shall stand enhanced to 14%.
The Complaint stands disposed off on the above terms.