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Judgment
Dr. Inder Jit Singh, Presiding Member
The present First Appeal (FA) has been filed by the Appellant against Respondent as detailed above, under section 19 of Consumer Protection Act 1986, against the order dated 24.04.2018 of the State Consumer Disputes Redressal Commission, Punjab, (hereinafter referred to as the “State Commission”), in Consumer Complaint (CC) no 886 of 2017 inter alia praying to quash and set aside the impugned judgment and final order dated 24.04.2018 passed by the State Commission. The Appellant was the Opposite Party (OP) and the Respondent was Complainant in the said CC 886/2017 before the State Commission.
Notice was issued to the Respondent on 08.08.2018. Operation of the impugned order was stayed subject to Appellant depositing 50% of the decretal amount as ordered by the State Commission. The Appellant and the Respondent filed their Written Arguments/Synopsis on 08.05.2019 and 11.02.2022 respectively.
Brief facts of the case, as emerged from the FA, Order of the State Commission and other case records are that vide allotment letter dated 01.03.2014, the complainant (Respondent herein) was allotted residential apartment No.1104, Floor 11, Tower No. 19 in Royal Citi, Chandigarh, Ambala Highway Zirakpur Tehsil Derabassi Distt. Mohali, measuring 1460 sq.ft. by the OP (Appellant herein), for a sale consideration of Rs.46,40,000/-. An agreement was got executed on 01.03.2014 itself. Although as per allotment letter, flat was to be delivered in 30 months, as per Agreement, the period was changed to 36 months. A tripartite agreement was executed by OP with complainant and Axis Bank Limited vide which a loan of Rs. 35 lakhs was sanctioned to complainant. As per the tripartite agreement, the instalments were to be claimed by OP directly from the bank. The payment of Rs.43,08,914/- was made to OP (Rs.32,08,914/- from Bank and remaining paid by the complainant). As the possession of the flat, complete in all respects along with completion certificate (CC) was not delivered by the OP, Complainant filed a consumer complaint before the State Commission seeking refund of amount paid along with compensation.
Vide Order dated 24.08.2018, the State Commission has allowed the complaint with following directions to OP (Appellant herein):-
“(i) To refund the amount of Rs.48,12,604/- to the complainant and her husband Harvinder Singh Basraaa in equal shares along with interest at the rate of 12% per annum from the respective dates of deposits till realization; and
(ii) To pay ₹1,00,000/- as compensation for the mental agony and harassment suffered by the complainant and her husband including litigation expenses.”
Aggrieved by the order passed by the State Commission the OP (Appellant herein) has filed the Appeal before this Commission, mainly on the following grounds:-
(i) the State Commission while passing the impugned order, neither had pecuniary jurisdiction nor territorial jurisdiction to entertain and decide the complaint. The relief sought by the complainant and the subject matter of the complaint exceeded Rs. 1 crore, in view of the Full Bench judgment of the National Commission in 'Ambrish Kumar Shukla & Others Versus Ferrous Infrastructure Pvt. Ltd.', and accordingly, the complaint was liable to be dismissed on the ground of pecuniary jurisdiction.
(ii) complaint was filed by Sarabjeet Kaur alone, but since the unit in question was allotted by the Appellant/OP to Harvinder Singh alongwith complainant, therefore, the complaint having not been filed by Harvinder Singh Basra, was liable to be dismissed being not maintainable. Despite a specific objection having been raised in the said behalf, the State Commission ordered refund of the amount on the ground that affidavit of co-applicant was produced. The State Commission erred in not noticing the relevant provisions, wherein any document sent from foreign land, can only be taken in evidence or accepted in evidence, if the same is got embossed from a Local Authority and not otherwise. In the instant case, co-applicant of respondent never appeared himself or filed any complaint, therefore, the complaint itself was bad for splitting up of the claim and refund could not have been ordered to a person who had never raised a demand in the said regard. State Commission also erred in not appreciating the fact that the complaint was also liable to be dismissed on account of impleadment of necessary parties. Axis Bank ought to have been impleaded as party.
(iii) State Commission also ignored the fact that respondent/complainant is not consumer within definition of the Consumer Protection Act, as the purchase of the unit in question was apparently made for the purpose of investment.
(iv) State Commission did not appreciate the fact that none of the instalments were ever paid by the respondent/complainant in time. Since none of the instalments were paid in time, the respondent/complainant is not entitled to any relief being herself at fault.
(v) State Commission erred in not appreciating the fact that the unit in question was ready for possession and as such letter dated 01.06.2017 was addressed to the respondent/complainant and Harvinder Singh Basra for the purpose of inspection by them, to confirm the time when they want to take over possession, so that final finishing touches, which are given just before handing over possession, can be carried out.
(vi) State Commission erred in observing that possession was to be delivered on or before 28.02.2017 and the complaint was filed after 8 months and that possession has not been delivered to the complainant. Letter dated 01.06.2017 makes it clear that the possession was to be given after clearing of formalities by the allottee, which admittedly complainant never completed.
(vii) Commission further erred in observing that no partial completion certificate or completion or occupation certificate was produced on record. State Commission erred in ordering refund of the amount, which order ought to be modified.
Heard counsels of both sides. Contentions/pleas of the parties, on various issues raised in the FA, based on their FA/Reply, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
6.1. Respondent/complainant argued that the due date of possession was 36 months from the date of agreement which comes to 28.02.2017, Appellant/OP failed to provide possession along with a valid, completion/occupation certificate issued by the competent authority. The State Commission has territorial jurisdiction. The project/unit in question is located in Punjab, which is under the jurisdiction of Punjab State Commission, as the value of goods and services along with compensation claimed is less than one crore, the State Commission has pecuniary jurisdiction Respondent- complainant is a consumer and Appellant/OP has not produced any evidence to show that the flat was purchased for commercial purposes. With respect to non-joinder of husband of the complainant, it is stated that the husband of Respondent/ complainant had signed the legal notice which proves that the husband of the complainant was not satisfied with the Appellant and disapproves the assertion made by the Appellant in their reply. The Affidavit of the Respondent’s husband provide that husband is a co-applicant and was equally aggrieved by the service provided by the appellant and demanded the relief. The assurance made by the Appellant that flat is ready and in habitable condition is wrong. The photographs provided by the Appellant are from the outside of the building while the condition from the inside of the flat is raw and this was major point of contention between the Appellant and Respondent. Offering possession letter without completion certificate from the Competent Authority is not valid offer of possession. The Appellant has made a wrong assertion in his reply that the respondent is a chronic defaulter as the tripartite agreement clearly mentioned that Respondent has authorised Axis Bank to pay the loan instalments directly to the Appellant on its behalf. Therefore the respondent cannot be faulted if the bank made any delays in making payments as the responsibility lied with Axis Bank.
6.2 Appellant, re-iterating most of his contentions as stated in the Appeal Petition, argues that Respondent alone filed the Complaint while her husband was the first Applicant and she is the joint applicant hence there is a misjoinder of the Parties. Appellant stated that although the Completion Certificate was obtained on 09.11.2016, and possession was offered after completion of works on 01.06.2016, which is marginally beyond the stipulated period. It was admitted by the Appellant that the Completion Certificate was not placed on record before the State Commission, which OP claims was due to oversight. It was argued that photographs produced by the Complainant only show that finishing touches were yet to be given, which are generally done when the allottee informs the date of taking possession. In case the complainant does not want to take possession then amount can be refunded only after deducting the earnest money and that too with rate of interest. There is a marginal delay of only two months from the committed date of possession which is not to be ignored.
We have carefully gone through the order of the State Commission dated 24.08.2018. State Commission has duly considered various contentions raised by OP before State Commission like lack of territorial jurisdiction, pecuniary jurisdiction, complainant not being a consumer, non-joinder of complainant’s husband etc. and adequately addressed these issues with sound reasoning and case law. We tend to agree with the findings of State Commission on these issues. On merits too, the State Commission had duly considered the rival contentions of both sides and given its findings, stating inter alia that OP has not complied with the provisions of PAPRA Act and Rules framed thereunder, has failed to fulfil his obligations of delivery of possession along with valid OC/CC by the committed date, the act and conduct of OP has resulted in injury and loss of opportunity to the complainant and OP’s acts amounts to deficiency in service.
We find no irregularity or infirmity in the order of State Commission, which is a well-reasoned order, adequately addressing various issues raised by the parties. We find no grounds to interfere with the orders of State Commission. OP has failed to deliver the possession of Unit to the complainant with valid CC/OC within the committed date, which amounts to deficiency in service on the part of OP, entitling the complainant to claim refund along with reasonable compensation. It was held by Hon’ble Supreme Court in Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. vs DLF Southern Homes Pvt. Ltd. & Ors. (2020) 16 SCC 512, “failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within the contractually stipulated period, amount to deficiency”.
However, we find that interest awarded @12% is on a higher side. In the interest of justice to both sides, we reduce it to 9% p.a. Hence, the order dated 24.08.2018 of the State Commission is upheld with modification to rate of interest from 12% to 9%. First Appeal stands disposed of accordingly.
The pending IAs in the case, if any, also stand disposed off.