Kiran Joshi vs S.M.V. Agencies Pvt. Ltd.

This First Appeal by the Complainant is directed against the order, dated 08.08.2014, passed by the State Consumer Disputes Redressal Commission, UT Chandigarh (for short "the State Commission") in Complaint No. 141 of 2013. By the impugned order, in the Complaint filed by the Complainant against the Respondent/Developer, seeking compensation and interest on account of delay in delivery of possession of the flat in question, the State Commission, while partly allowing the Complaint, has directed the Opposite Party to pay to the Complainant a sum of ₹7,24,100/- (which includes ₹2,00,000/- towards compensation for mental agony and harassment suffered by the Complainant) within a period of 30 days of receipt of copy of the order, failing which interest @ 12% p.a. on the said amount was directed to be paid till payment.

Briefly stated, the facts necessary for disposal of the Appeal are that the Complainant, an individual, had booked a flat on the fifth floor of the project launched by the Respondent, christened as 'Sunrise Greens', at Zirakpur, District Mohali. She was allotted Flat No.H-501, at the total cost of ₹33,75,204/-. In addition to the essential earnest money, amounting to ₹4,00,000/-, paid by the Appellant to the Respondent on 2.4.2008, a further sum of ₹25,36,428/- towards part-sale consideration was also paid by her on 24.5.2008. It appears that subsequently, with mutual consent, the flat allotted at the 5th floor was exchanged with another flat No.G-303, with the same area, vide allotment letter dated 16.11.2009, at the revised price of ₹34,15,385/-. According to the Complainant, the possession of the flat was to be delivered by 30.6.2009.

However, having realised that the completion of the flat in the near future was not in sight, the she filed the Complaint against the Respondent, inter alia, praying for a direction to them to pay to her a sum of ₹5,00,000/- towards poor construction; ₹10,00,000/- as compensation and damages for mental and physical suffering; ₹15,000/- per month as rent/damages on account of delayed possession; ₹33,000/- towards litigation expenses with miscellaneous expenses of ₹15,000/- and interest @18% p.a., on the amounts deposited by her with the Respondent. Possession of the flat, complete in all respects, was also prayed for.

The Respondent remained unrepresented before the State Commission and was therefore, proceeded against ex parte. On appraisal of the material placed on record by the Complainant, the State Commission has come to the conclusion that undoubtedly there has been a delay in completion and delivery of the possession of the said flat. Accordingly, relying on Clause 30 of the letter of allotment dated 16.11.2009, the State Commission has directed the Respondent to pay to the Complainant a compensation/penalty @ Rs.5/- per sq. ft. of the super area per month for the period from 01.7.2009 to 30.6.2014.

The State Commission has, however, rejected the claim of the Complainant that in the absence of any circumstances, which could be considered as a force majeure condition, she was entitled to interest @18% p.a. on the amount already deposited, instead of a compensation/penalty @Rs.5/- per sq. ft. The State Commission has directed that if the amounts, mentioned in para 1(supra) are not paid within a period of 30 days from the date of receipt of the copy of the order, interest @ 12% p.a. shall be payable on the said amounts from 9.11.2013 till realisation. Hence, the present Appeal. The Respondent/Developer seems to be satisfied with the directions issued in the impugned order.

We have heard learned counsel for the parties and perused the documents on record.

The main thrust of the arguments advanced by learned Counsel appearing for the Complainant is that having come to the conclusion that there were no force majeure circumstances, as pleaded on behalf of the Respondent, the State Commission erred in not awarding interest @ 18% p.a. on the amounts deposited by her, viz. ₹29,36,428/- as far back as on 29.5.2008 and restricting the relief fixed to a compensation @ Rs.5/- per sq. ft. in terms of Clause 30 of the Agreement.

It is pertinent to note that during the pendency of the Complaint before the State Commission, the physical possession of the flat was handed over to the Complainant on 9.7.2014.

Having carefully perused Clause 30 of the said Agreement, we are not persuaded to agree with learned Counsel for the Complainant. A bare reading of the Clause shows that in the event of delay in possession of the flat to an allottee, the Developer had committed itself to pay to the allottee a compensation @Rs.5/- per sq. ft. of super area per month. However, the said payment was subject to the force majeure Clause. In short, the effect of the said Clause was that in the absence of any force majeure circumstances, the Complainant was entitled to receive compensation @ Rs.5/- per sq. ft., which has correctly been awarded by the State Commission.

However, the question falling for consideration is as to whether the Complainant is entitled to any interest on the aforesaid amount which she had deposited with the Respondent as far back as in May 2008?

At the outset, we may note that the stand of the Respondent to the effect that the possession of the flat having been delivered to the Complainant in the year 2014, there was no inordinate delay in delivery of possession, does not impress us at all. Admittedly, the possession was to be delivered in the year 2009, but is stated to have been delivered in the year 2014, the Respondent was not possessed of the completion certificate. It is conceded that completion certificate had been received only in the year 2015. In the absence of the Completion Certificate, the Complainant was not obliged to accept the possession of the flat but because of dire necessity of roof over her head she had no option but to accept the possession on almost "as is where is basis", in our opinion, delivery of possession of the flat in the year 2014 was no delivery as contemplated in the Agreement between the parties.

In the light of the above, and bearing in mind the fact that the possession was delivered to the Complainant on 9.7.2014, but without the completion certificate, which was admittedly received by the developer only in October 2015, we are of the opinion that in view of the stipulation in the Agreement to the effect that in the event of delay in payment of any instalment by the Complainant to the Respondent, the Respondent was entitled to charge from the Complainant interest @ 18% p.a., on the same analogy, in addition to the paltry amount Rs.2,00,000/-, awarded by the State Commission as compensation, interest at least @ 11% p.a. on the amount deposited by her in the year 2008, i.e., Rs.29,36,428/- from 18.4.2008, till 9.7.2014 - when the possession was taken by her, subject to the outcome of her Complaint, which at that point of time was pending before the State Commission, deserves to be granted in her favour.

At this juncture, it is also pertinent to mention that under similar circumstances, vide order dated 30.11.2015 in FA/729/2013 (Inder Singh Bakshi vs. SMV Agencies Pvt. Ltd.), in addition to the afore-stated compensation, interest @ 12% p.a. had been awarded by this Commission. Being aggrieved by th said direction, the Respondent had carried the matter further in Special Leave Petition (C) No.5325/2016. However, the Petition was dismissed by the Hon'ble Supreme Court, vide order dated 11.3.2016.

Before parting with the case, we may also deal with the decision dated 4.1.2016, rendered by this Commission in RP/3338/2007, pressed into service by learned Counsel for the Respondent in support of his submission that having received possession of the flat during the pendency of the Complaint before the State Commission, the Complainant had ceased to be a "Consumer" under the Consumer Protection Act, 1986 (for short "the Act"). In our view, the said decision is clearly distinguishable on facts, in as much as, in that case, as recorded in the order, the Complainant "had taken possession with open eyes and without any pre-conditions", whereas in the present case, the possession was taken pursuant to Complainant's Email dated 2.6.2014, addressed by her to the Respondent.

In the said mail, while pleading that she was in dire need of shifting to the booked flat, she had clearly stated in unequivocal terms that she be given possession of the flat at the earliest, "subject to the outcome of and without prejudice to the said case as and when the same is finally decided". Additionally, in our opinion, till the possession of the flat, complete in every respect, which would include the Completion or Occupancy Certificate, as the case may be, is delivered to the purchaser, the cause of action will continue. Hence, the argument is rejected.

Consequently, the Appeal is partly allowed to the extent indicated above. The amount, due in terms of this order, shall be remitted to the Complainant within 6 weeks from the date of receipt of the copy of this order, by means of a Demand Draft in her favour.

The Appeal stands disposed of in above terms with no order as to costs.