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Judgment
V.K.Jain, J
The complainant/respondent was allotted a residential flat by the appellant vide its letter dated 28.01.2009 in a proposed housing complex at Banur, in District Patiala of Punjab at a tentative price of Rs.20.18 lacs. One of the terms of the allotment stipulated that no refund shall be made if the offer of possession of the flat was not made.
Vide letter dated 03.11.2014, the complainant was informed that the final cost of the flat was Rs.33,10,000/- and was asked to make the balance payment of Rs.20,99,000/-. On receipt of the aforesaid letter, the complainant, vide his letter dated 02.01.2015, sought refund of the amount paid by him to the appellant primarily on the ground that he could not have afforded the cost of Rs.33.10 lacs. Since the said refund was not granted, the complainant/respondent approached the concerned State Commission by way of a consumer complaint.
The complaint was resisted by the appellant which not only sought to justify the delay in completion of the project but also relied upon the terms and conditions of allotment which clearly stipulated that no refund shall be made after the offer of possession of the flat. The State Commission, vide its order dated 18.05.2018, directed as under:
To refund the amount Rs.12,11,000/-, to the complainant, alongwith interest @ 9% p.a., from the respective dates of deposits onwards.
To pay compensation, in the sum of Rs.30,000/-, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
To pay cost of litigation, to the tune of Rs.11,000/- to the complainant.
The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) thereafter shall carry penal interest @10% p.a., instead of 9% p.a. from the date of default, and interest @10% p.a, on the amounts mentioned at sr. nos.(ii) and (iii), from the date of filing of this complaint, till realization.
Being aggrieved from the aforesaid directions of the State Commission, the appellant is before this Commission.
The learned counsel for the respondent submits that the issue involved in this appeal is squarely covered by two decisions of this Commission, the first being the decision dated 14.11.2017 in FA No.999/2015 Satish Kumar Vs. Managing Director, Housefed and the other being the decision dated 06.02.2018 in FA/1355/2017 Managing Director, Cooperative Housing Complex of Housefed Vs. Gurdev Singh Azad. I have perused the orders of this Commission relied upon by the learned counsel for the respondent. The order of this Commission in Satish Kumar (supra) to the extent it is relevant, reads as under:
I find force in the arguments of the learned counsel of the appellant that the first consumer complaint filed before the District Forum was in respect of the compensation for delay in possession and as there was no prayer in this complaint for refund of the amount paid and as the circumstances changed, the complainant decided to get the refund of the amount paid to the OP because the cost of the flat was increased inordinately by 62% and the possession was also not offered within the time promised so the second complaint was filed. It is true that in the allotment letter, only the tentative price of the flat was mentioned. It is expected that the final price would be somewhere near the tentative price and even may increase by 10-20%, but the price has increased by 62%. Every customer has his capacity to pay and in this case the complainant had offered to purchase a flat with tentative price of Rs.20.18 lakhs.
He might be arranging this amount, but if he is told that the final price is 62% more than the original price, then, his capacity to pay is definitely affected. As the possession was also not given in time, the OP is clearly deficient in terms of not offering the possession in time. Though the OP has relied upon several judgments wherein it has been held that pricing is not a subject matter of consumer dispute and increase in price cannot make the builder deficient, I find that the complainant is not alleging any deficiency to the OP for increase in price of the flat, however, he is only complaining that as the price has been increased beyond his capacity to pay and that the possession has also not been offered in time, he is seeking refund. I do not find any illegality in this demand. The clause 11 of the allotment letter states that if the possession is not taken by the last date of offer, holding charges will be levied and finally allotment will be cancelled after forfeiting the money deposited. This clause would be applicable when the possession is handed over in time which is not the case in the present matter. The OP has itself admitted that there has been delay in the implementation of the project due to several reasons.
It is true that the tentative price was given in the allotment letter and final price was to be given at the time of offer of possession. Considering from the point of view of consumer, if the final price is told to be 62% higher than the tentative price, then what a consumer can do except to withdraw from the project if it is beyond his means to pay the increased price and pursue for the refund. In my opinion, it is appropriate to allow the refund of the deposited amount with OP. Moreover, the Consumer Protection Act, 1986 states that it is an Act to provide for better protection of the interests of the consumers. Thus, if the arguments of the OP are accepted, then the complainant is neither entitled to refund nor he will be able to get the possession of the flat as he will not be able to pay for the increased price of the flat because the price of the flat has increased to a level which is beyond his capacity to pay. Obviously, interest of the consumer is to be protected under the Consumer Protection Act, 1986.
The decision of this Commission in Managing Director, Cooperative Housing Complex of Housefed (supra), to the extent it is relevant, reads as under:
The facts not in dispute are that the Complainant has paid an amount of ₹12,11,000/- upto 31.08.2011; that the tentative cost of the flat was ₹20,18,000/-; that the allotment was made on 22.06.2009; and that there was no time period mentioned in the Allotment letter. It is pertinent to note that the Complainant had written a number of letters to the Appellant seeking information about the delivery of possession. It is relevant that after addressing a letter to the Appellant on 06.02.2012, the Respondent received a reply that the possession of the flat was likely to be handed over during the last quarter of the year 2012. However, admittedly even by 06.06.2013, the possession was not handed over and the Respondent had written another letter seeking a specific date of delivery of possession. As the Respondent did not receive any sort of information regarding the date of delivery of possession, he was constrained to seek information under R.T.I. on 12.08.2013, for which he received a reply on 23.08.2013 which is evasive, bald and does not give any information about the delivery of possession.
In the instant case though 'Time' was not the essence of contract, the fact remains that the Allottee was not even informed of the likely date and was kept in the dark and the Appellant has remained silent for more than two years even after the Respondent sought information under the R.T.I. Act. Merely saying that 'time' is not specified in the Allotment letter does not absolve the Appellant from completion of the project not disclosing the date of possession, without giving substantial reasons, is ultra vires to what the Hon'ble Supreme Court has laid down in "Bangalore Development Authority Versus Syndicate Bank" (2007) 6 SCC 711. The direction of the State Commission to refund the amount paid by the Complainant at reasonable interest @12% cannot be stated to be illegal in any manner. The Appellant was deficient in not giving any information about the date of delivery of possession after its letter dated 12.03.2012. The contention of the Learned Counsel that no refund shall be given after the offer of possession is made, is unsustainable in the light of the fact that in the demand letter dated 19.11.2014, vide which the Respondent was directed to take the possession of the flat by 15.02.2015, is much after the Complainant approached the District Forum. To reiterate, the Complaint was initially filed before the District Forum and was withdrawn on 20.08.2014, which date is much prior to the demand letter which was issued by the Appellant herein. It is also relevant to mention that the Appellant filed their Written Version before the District Forum on 23.07.2014 and the offer of possession was made much later on 19.11.2014. It can be safely concluded that the offer of possession was only after the Complainant sought for refund of the amount paid and therefore, it does not attract the 'refund clause' stated under 'surrender of flat'.
In view of the above referred decisions rendered by two coordinate Benches of this Commission in respect of the same project and seeking the same reliefs which the respondent sought in the complaint filed by him, I need not revisit the matter and consequently hold that the order passed by the State Commission directing refund of the amount paid by the respondent/complainant to the appellant alongwith interest @ 9% per annum, compensation quantified at Rs.30,000/- and the cost of litigation quantified at Rs.11,000/- does not call for any interference by this Commission in exercise of its appellate jurisdiction. However, the appellant is granted two months from today to make payment in terms of the order of the State Commission, paying interest @ 9% per annum. The direction of the State Commission for payment of penal interest @ 10% per annum would not apply if the appellant makes full payment in terms of the order of the State Commission alongwith interest @ 9% per annum within two months from today. The appeal stands disposed of.