M/s Omway Buildestate Pvt. Ltd. vs Vineet Yadav

Deepa Sharma, Presiding Member

The present Appeal has been filed by the Appellant against the order dated 15.03.2018 of the State Consumer Disputes Redressal Commission, Jaipur, Rajasthan (for short “the State Commission”) in Complaint No.130 of 2015 whereby the Complaint of the Respondent herein was allowed and following directions were issued:

The Opposite Party will pay ₹6,75,000/- and interest from 03.09.2012 at the rate of 15 percent per annum;

The Opposite Party will pay ₹29,16,000/- and interest from 19.10.2012 at the rate of 15 percent per annum;

The Opposite Party will pay ₹1,10,962/0 and interest from 10.12.2012 at the rate of 15 percent per annum;

₹25,000/- (Rupees Two lakhs Fifty Thousand only) for the mental agony suffered by the Petitioner for not getting the flat and would pay interest at the rate of 9 percent per annum from 27 October 2015 i.e. the institution of the Petition;

The Opposite Party would pay ₹50,000/- as petition cost and would pay interest at the rate of 9 percent per annum from 27 October 2015 i.e. the institution of the Petition;

The aforesaid proceedings would be completed within two months.”

The Opposite Party has filed the present Appeal against the impugned order challenging it on various counts.  On 28.08.2018 when this Appeal was heard, notice was issued on the limited issue.  Following is the order of this Commission:

“Notice limited to the question of rate of interest, be issued to the Respondent, returnable for 27th November 2018.

Appellant shall remit directly to the Respondent/Complainant a sum of ₹10,000/- towards travel and allied expenses within two weeks.

The proposal of the Appellant regarding giving a plot in lieu of the flat, will be considered after the Respondent puts in appearance.”

This order is final order since it was not challenged by the Appellant and therefore, this Commission right now has to confine its findings only on the issue of rate of interest.

I have heard the arguments.  It is argued on behalf of the Appellant that since there were stay orders by the High Court and the Hon’ble Supreme Court, the construction activity on the subject plot had been stayed and since the Appellant is covered under the force majeure clause 33 (a) to Agreement itself, the Appellant is not entitled to pay any interest on the refunded amount.

It is argued on behalf of the Respondent/Complainant that he had paid the entire amount in the year 2012 and the promised date of delivery of possession was September 2014 and till that time, no activity of construction had been started on the plot.  It is further argued that since the State Commission on merit held that the Appellant is deficient in service, the Appellant has to refund the entire deposited amount along with interest because the Appellant kept the money with them and enjoyed it fully.  It is further argued that while vacating the stay, the High Court had nowhere held that for this period the Appellant is not entitled to pay any damages for their acts.  Hence, the Appellant cannot be absolved of their liability to pay the interest on his money which they had enjoyed all this period.

I have given thoughtful consideration to the arguments of learned Counsels.  There is a clear finding on deficiency in service on the part of the Appellant.  The findings are that since the Opposite Party has failed to deliver the possession of the subject flat within the stipulated period, they are made liable to refund the entire deposited amount which they had received from the Complainant and no notice on these findings has so far been issued.  These findings stand confirmed.

Once it is found that there is a deficiency in service and all the contentions regarding force majeure which gives the Appellant a justifiable reason for not being able to complete the construction within the stipulated period, had been rejected and the Opposite Party had been found guilty of deficiency in service, the same argument cannot be raised at this stage.  Also while vacating the stay order, the concerned High Court has nowhere held that for this period, the Appellant shall not be held liable to pay any damages for their acts.  Also since the Appellant had enjoyed this money of the Respondent/Complainant all this period, they are bound to pay the interest.  It is also clear that simply because a matter was pending before High Court and the stay was granted which subsequently vacated, does not absolve the Appellant from paying the interest on the amount which they were held liable to refund.

In view of the above, I found no illegality or infirmity in the impugned order. The impugned order is hereby confirmed. The Appeal is dismissed having no merit.