M/S. Tulip Infratefch Pvt. Ltd vs Kamlesh Sharma

Heard.

This appeal has been filed by the appellant M/s Tulip Infratech Pvt. Ltd., against the order dated 30th May 2019 of the Delhi State Consumer Disputes Redressal Commission, ('the State Commission') in complaint case no. 1559 of 2016.

There is a delay of 13 days in filing the appeal. As the delay is only marginal, the delay is condoned on the grounds mentioned in the application for condonation of delay.

I have heard the learned counsel for the appellant who states that a builder buyer agreement was entered with the respondent/ complainant in the year 2013 and as per the builder buyer agreement the project was to be completed and possession was to be given within 48 months from the date of commencement of the construction. Learned counsel states that the construction was commenced in the year 2016 and when the further amount was demanded from the complainant he filed a consumer complaint before the State Commission. The State Commission has ordered refund of the amount of Rs.13,86,426/- deposited by the complainant along with 7% per annum interest.

Learned counsel states that the project is ready and the complainant has defaulted in the payment as per the demand given by the appellant/ opposite party and therefore, the complainant be directed to deposit the remaining amount and take the possession. If that is not possible the appellant should be allowed to refund the deposited amount without any interest as the appellant has already invested in the building and no interest has been earned by the opposite party on this amount.

I have carefully considered the arguments advanced by the learned counsel for the appellant and examined the record. It is seen that the total consideration of the flat was Rs.44,82,900/- and only Rs.13,86,426/- was paid by the complainant. The complainant has genuinely entered into the agreement with the OP in the year 2013. It is however, stated that the construction did not start for 3 years whereas only four years was provided for the total construction after commencement of the construction. There is no date mentioned in the builder buyer agreement for commencement of the construction and the OP took three years to start the construction of the flat. It clearly means that all the approvals may not be in place when the builder buyer agreement was signed. The amount received from the complainant may have been utilized by the builder in some other project. Further, major amount has not been paid by the complainant and now he cannot be asked to pay this amount. In the complaint, the only request was made for refund and the State Commission has accordingly passed an order of refund with a reasonable compensation in the form of interest @ 7% per annum and no other compensation has been ordered by the State Commission. At this belated stage, the complainant cannot be compelled to take possession of the flat as held by the Hon'ble Supreme Court in Civil Appeal No.12238 of 2018 titled as "Pioneer Urban Land & Infrastructure Ltd. versus Govindan Raghavan" as under:

"3.8. The National Commission vide Final Judgment and Order dated 23.10.2018 allowed the Consumer Complaint filed by the Respondent - Flat Purchaser, and held that since the last date stipulated for construction had expired about 3 years before the Occupancy Certificate was obtained, the Respondent - Flat Purchaser could not be compelled to take possession at such a belated stage. The grounds urged by the Appellant - Builder for delay in handing over possession were not justified, so as to deny awarding compensation to the Respondent - Flat Purchaser. The clauses in the Agreement were held to be wholly one - sided, unfair, and not binding on the Respondent - Flat Purchaser. 6 The Appellant - Builder was directed to refund Rs. 4,48,43,026/- i.e. the amount deposited by the Respondent - Flat Purchaser, along with Interest @10.7% S.I. p.a. towards compensation.

We see no illegality in the Impugned Order dated 23.10.2018 passed by the National Commission. The Appellant - Builder failed to fulfill his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent - Purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter. The Respondent - Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired. During this period, the Respondent - Flat Purchaser had to service a loan that he had obtained for purchasing the flat, by paying Interest @10% to the Bank. In the meanwhile, the Respondent - Flat Purchaser also located an alternate property in Gurugram. In these circumstances, the Respondent - Flat Purchaser was entitled to be granted the relief prayed for i.e. refund of the entire amount deposited by him with Interest.

The Civil Appeals are accordingly dismissed, and the Final Judgment and Order dated 23.10.2018 passed by the National Consumer Disputes Redressal Commission is affirmed."

Clearly, the order of the State Commission is very reasonable and I do not find any merit in the appeal to interfere with the well-reasoned order passed by the State Commission in Complaint Case no. 1559 of 2016. Consequently, the appeal fails and the order of the State Commission is upheld.