Raju Ananda Shelar & Anr vs M/S Jayati Constructions

Challenge in this Revision Petition filed under section 21 of the Consumer Protection Act, 1986 (for short the 'Act'), is to the order dated 14.06.2018 in FA/15/647 passed by the State Consumer Disputes Redressal Commission, Maharashtra, Circuit Bench at Pune (hereinafter referred to as 'the State Commission'). By the impugned order, the State Commission has partly allowed the Appeal preferred by the Petitioners/Complainants, directing the Opposite Party, (hereinafter referred to as 'the Developer') to handover possession of flat within one month from the date of entire payment of the remaining consideration alongwith interest @18% p.a. to be paid by the Complainant from 01.02.2012 till the date of the order. The Complainant was directed to deposit the entire remaining consideration of Rs.9,60,000/- with interest @18% within six weeks intimating the Developer and upon such intimation, the Developer was directed to handover the possession to the Petitioners/Complainants. Aggrieved by this order, the Petitioners/Complainants preferred this Revision Petition

The facts, in brief, of the case are that the Complainants booked a flat with the Developer in its 'Devang Complex' project for a total consideration of Rs.12,00,000/- and paid a sum of Rs.2,40,000/- for which an Agreement was executed on 19.01.2011. The Complainants approached the Financial Corporation for a loan which was sanctioned but not disbursed. Since the Agreement did not specify the exact date of delivery of possession, it is averred that the Complainants approached the Developer to rectify the Agreement to that effect, but the same was not done. Hence the Complainants sought a direction to the Developer to rectify Clause 6 in the Agreement and handover the possession of the flat completing the construction and accepting the remaining consideration together with other reliefs.

The Developer filed their Written Version admitting the execution of the Agreement, the total sale-consideration, but contended that there is no deficiency in service on their part as the Complainants did not adhere to the terms of the payment and hence the Agreement was terminated and therefore, sought for dismissal of the Complaint.

The District Forum based on the Evidence adduced has directed the refund of the entire amount paid by the Complainants. Aggrieved by the said order, the Complainants had preferred an Appeal before the State Commission, which had partly allowed the Appeal with the aforementioned directions.

The Learned Counsel appearing for the Petitioners/Complainants contended that the interest @18% p.a. awarded by the State Commission is excessive and prayed for a direction to the Developer to accept the balance amount of consideration, i.e., Rs.9,60,000/- without interest and handover the possession. He also prayed for compensation and costs to be levied upon the Developer.

The Learned Counsel for the Developer placed reliance on Clause 6 in which it is stated that the possession would be given by the Developer within two years from the date of final payment given by the purchaser and in the instant case since final payment has not been given by the Complainants, the significance of the date of delivery of possession is lost.

A perusal of the material on record evidences that Demand Notices were given to the Complainants for payment of the sale-consideration. For better understanding of the case, clause 5 of the Agreement entered into between the parties, is reproduced as under:-

"In case the Purchaser desire to borrow from any financial institution for purchasing the said flat, the Purchaser shall make his own arrangements for such loan and shall get the loan sanctioned within period of one month from the date of Agreement and if the payment is not received within such stipulated period then interest @18% p.a. shall be paid by the Purchaser on due amounts. Further, the Promoter may raise the consideration payment from time to time as per the progress of the work and issue demand letters to pay the amounts and the purchaser is bound to pay a such, failing which the purchaser will pay 18% interest on due amount."

From the afore-noted Clause it is evident that if the payment is not received within the stipulated period then interest @18% would be paid by the Purchaser on the amounts due and payable. It is pertinent to mention that the Demand Notices did not annex the Certificate of the Architect explaining the stages of production as admittedly it was a construction related plan and the Complainants have to be informed about the respective stages. Be that as it may, the fact remains that the Complainants have not paid the balance sale-consideration and the only point for consideration is whether interest @18% p.a. is payable or not.

A perusal of the agreement evidences that there is no clause with respect to any penalty which could be imposed on the Developer if there is any delay in the period of delivery of possession or in obtaining of the Occupancy Certificate. The Hon'ble Supreme Court in "Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan [2019 (5) SCC 725]" has laid down that one sided clauses in the Agreement construe 'Unfair Trade Practice' as defined under section 2(r) of the Act. Keeping in view the ratio laid down by the Hon'ble Apex Court in "Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan" (supra), we are of the considered opinion that not specifying any penalty in the terms of the Agreement for any delay whatsoever caused by the Developer construes Unfair Trade Practice. To meet the ends of justice and balance equities and further keeping in view the lowered interest rates we are of the considered view that the Complainants be directed to pay the balance sale-consideration, i.e., Rs.9,60,000/- with interest @12% p.a. from the date of filing of the Complaint till the date of actual payment within four weeks from today, failing which the amount shall attract interest @18% p.a. for the same period. This Revision Petition is partly allowed modifying the interest rate in the Order of the State Commission to the extent indicated above.