Raj Kumar Rathore vs M/S. Piyush Infrastructure India Pvt. Ltd. & 5 Ors

M. Shreesha, J

This Complaint has been filed under Section 21 (a) (i) of the Consumer Protection Act, 1986 (in short "the Act") against M/s. Piyush Infrastructure India Pvt. Ltd. (hereinafter referred to as "the Developer"), the Chairman and the Directors of the Developer, seeking the following reliefs:

"To allow and admit the complaint filed by the complainant;

To direct the Respondents company to pay the claim of a sumof Rs.48,86,005/- along with interest of Rs.78,48,972/- totalling to RS.1,27,34,977/- (Rupees one crore twenty seven lac thirty four thousand nine hundred seventy seven only) with future pendent lite interest and future pendent lite interest @ 24% per annum upon the said amount to the complainant;

To direct the Respondents company to pay a sum of Rs.20,00,000/- (rupees Twenty Lac only) towards humiliation, harassment, torture and mental tension, pain and agony suffered by the complainant due to negligence, deficiency in service, criminal breach of trust and false commitment madeby the respondents to the complainant;

To direct the Respondents to pay the legal charges of Rs.2,50,000/- to the complainant;

Any other or further relief (s), which this Hon'ble Commission may deem fit and just in the facts and circumstances, be also passed in favour of the complainant and against the Respondents, in the interest of justice."

The brief facts as set out in the Complaint are that the Executives of the Developer presented a very rosy picture of their project i.e. "Piyush Mahendera Metropolitan Mall" to the Complainant and the Complainant lured by their rosy representation and promise of possession on or before 30 months from the date of start of the project the Complainant booked shop/office in the project for his livelihood by opening an office for his own professional purpose. The Developer allotted Shop/ Unit No. Shop No/7, admeasuring 590.900 sq. ft., at Ground Floor, in the project "Piyush Mahendera Metropolitan Mall" vide their allotment letter dated 24.06.2011. The Buyer's Agreement was executed between the parties on 29.08.2011. It is stated that the Complainant has paid an amount of Rs. 48,86,005/- (From March, 2008 to October, 2015) out of the total sale consideration of Rs. 49,93,015 including IDC and EDC to the Developers and has further paid an amount of Rs. 81,750/- towards Service Tax. It is stated that after taking 96% of the consideration from the Complainant the Directors of the Developer i.e. Opposite Parties 2 to 4 have appointed new Directors i.e. fifth and sixth Opposite Parties w.e.f. from 08.12.2015 with an ill intention to usurp the hard earned money of the Complainant. It is averred that in the year 2015 a meeting was arranged between the Complainant and the Opposite Parties and an assurance was given to the Complainant that the project will be completed with six months. After sometime the Complainant again approached Opposite Parties 2 to 6 for delivery of the possession of the unit, but there was no proper response. Thereafter, when the Complainant visited the site, he was shocked to see that the construction work was still at an initial stage. It is stated that the Complainant is entitled for interest @ 24% p.a. as the Developer is charging interest @ 18% p.a. for the first one month delay and @ 24% p.a. thereafter, on all outstanding dues, as can be seen from Clause III(A) (3) of the Buyer's Agreement. The Complainant issued a legal notice dated 28.09.2017 to the Opposite Parties, seeking refund of the principle amount paid i.e. Rs. 48,85,970/- along with interest @ 24% p.a. from March, 2008 till 30.09.2017 and Rs. 20,00,000/- towards physical and mental agony, but despite service of notice, the Opposite Parties failed to reply to the legal notice. Vexed with the attitude of the Opposite Parties, the Complainant approached this Commission seeking the aforenoted reliefs.

The Opposite Parties despite service of notice on 07.04.2018 did not choose to appear before this Commission and hence vide order dated 05.07.2018, the Opposite Parties were proceeded ex parte. Even on 10.08.2018, the Opposite Parties did not choose to take any steps or file any Application to set aside the ex parte order. Thereafter on 11.10.2018, the matter was adjourned for final hearing. The matter was finally heard on 19.03.2019.

The Complainant filed their Affidavit by way of Evidence and marked Ex.CW-1/1 (copy of the Buyer Agreement), Ex.CW-1/2 (colly) (copy of the payment receipts), Ex.CW-1/3 (colly) (legal notice dated 28.09.2017), Ex.CW-1/4 (copy of the letter dated 19.12.2017 and acknowledgment receipt dated 08.12.2017), Ex.CW-1/5 (colly) (copy of I.D. proof of Complainant) and Ex.CW-1/6 (colly) (copy of interest calculation sheet) on his behalf.

A perusal of the Complaint shows that the there is a specific pleading in the main body of the Complaint that the Complainant had paid an amount of Rs. 48,85,970/- to the Opposite Parties for purchase of a shop meant for earning livelihood. It is also averred that the Opposite Parties had coerced the Complainant to sign the Agreement and despite paying 96% of the entire sale consideration, the possession was neither given nor was there any specific response to his legal notice dated 28.09.2017. It is seen from the record that the first payment was made way back on 25.03.2008 and the same is evidenced in Ex. CW-1/2. It is relevant to mention that this 96% payment of the total sale consideration was made between March, 2008 and October, 2015.

The Hon'ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra [Civil Appeal No. 3182 of 2019, decided on 25.03.2019], has observed as follows:

"..........It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years is beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund.

In the circumstances, we are of the view that the orders passed by the SCDRC and by the NCDRC for refund of moneys werejustified."

In the instant case also the Complainant cannot be made to wait indefinitely for possession of his shop, when there is absolutely no response from the Opposite parties and the Complainant is entitled for refund of the principal amount with interest. Though it is the Complainant's case that for any default, the Opposite Parties charged interest @ 18% p.a. for the first month and @ 24% p.a. for the subsequent months, having regard to the fact that Banks have lowered the interest rate and the Hon'ble Supreme Court has been awarding interest keeping in view the current market situation and considering the recent decline in the cost of borrowing and return on the investments made with the Banks, we are of the considered view that simple interest @ 12% p.a. would meet the ends of justice, together with compensation of Rs. 1,00,000/- and costs of Rs. 25,000/-.

In the result, this Complaint is allowed in part directing the Opposite Parties to refund the principal amount i.e. Rs. 48,85,970/- with simple interest @ 12% p.a. from the respective dates of deposit till the payment is made together with compensation of Rs. 1,00,000/- and costs of Rs. 25,000/. This amount is directed to be paid within four weeks from the date of receipt of a copy of this order, failing which, the amount shall attract interest @ 14% p.a. for the same period.