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Judgment
Heard Mr. Dron Mishra, Authorised Representative, for the complainants and Mr. Aarif Khan, Advocate, for the opposite parties.
Complainants have filed above complaint under Section 13 (6) (c) read with Section 12 (1) (c) of the Consumer Protection Act, 1986 for directing the opposite parties to (a) refund to the complainants and other flat buyers with same interest the amount which the complainants and other flat buyers have deposited with the opposite parties along with 10% interest from the date of deposit till date of actual refund and in case of buyers who opted for subvention plan the damages should include interest payable to banks on account of delay in paying EMIs and refund the principal amount sanctioned by bank to the builders along with interest as per MCLR; (b) pay to the complainants and other flat buyers with same interest a sum of Rs.1 lac each on account of mental harassment and trauma; (c) award cost of the complaint to the complainants and other flat buyers with same interest; and (iv) any such further order or orders which this Hon’ble Commission deems fit and proper in the facts and circumstances of the case.
Alongwith the complaint, the complainants also filed IA/5360/2020, an application under Section 12 (1) (c) of the Consumer Protection Act, 1986 seeking permission to proceed with the complaint in the joint representative capacity for and on behalf of the persons having same interest. This Commission, vide order dated 27.05.2022 allowed the application and issued notice through publication in two newspapers.
The complainants stated that they are aggrieved by inordinate delay and failure on the part of the opposite parties to handover possession of the respective flats and provide other amenities as stated in the brochure. Being allured by the promises of the opposite parties as mentioned in the brochure, the complainants booked their respective flats by depositing 10% of the sale consideration. After depositing the booking amount, the allottees were forced to sign the one sided agreement under the threat of forfeiture of booking amount. As per clause 18 of the agreement, possession of the flat was to be handed over within 36 months from the date of the application. The complainants have deposited about 95% of the consideration amount. The opposite parties have not handed over possession of the flats even after expiry of the stipulated period. The payment was to be made according to construction linked plan. The opposite parties kept on demanding the payments without any progress in the construction and collected about 95% of the total consideration amount. As per agreement, the opposite parties were required to pay EMIs on behalf of the complainant till date they do not offer possession. After few months, the opposite parties stopped paying EMIs. The opposite parties are sending possession letters to the buyers even without applying for occupancy certificate or completion certificate. The complainants came to know that an FIR for forgery has been registered against the opposite parties for selling the same flat to two or three persons. Alleging deficiency in service and unfair trade practice on the part of the opposite parties, the complainants filed the instant complaint on 22.06.2020.
The opposite parties did not file reply to the complaint and on 16.11.2022 stated that the reply filed to the application under Section 12 (1) (c) of the Consumer Protection Act, 1986 be treated as reply filed in the main complaint. In the said application the opposite parties have not stated anything on merit except that the complaint has been filed on false and frivolous basis. The opposite parties have not committed any deficiency in service and the complaint deserves to be dismissed.
The counsel for the complainants made a statement on 16.11.2022 that the complainants do not propose to file any rejoinder. The complainants filed affidavit of evidence of Mr. Dron Mishra and documentary evidence. The opposite party failed to file affidavit of evidence despite several opportunities.
We have considered the arguments of the parties and examined the record. The complainants have filed copies of various builder buyer agreements ranging from 21.12.2011 to 15.10.2015. As per clause 18/19 of the agreement, the opposite parties were required to complete the construction and handover the possession within 36 months including grace period of 6 months. More than 12 years have passed, but the opposite party has not been able to obtain the completion certificate and handover possession of the respective flats to the complainants even after receiving almost 95% of the sale consideration. This is not only negligence but a gross negligence. Supreme Court in Bangalore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 711, Fortune Infrastructure Vs. Trevor D’ Limba, (2018) 5 SCC 442, Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, (2019) 5 SCC 725, Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 (6) SCALE 462 has held that the home buyer cannot be made to wait for indefinite period for possession. In view of the fact that till today the opposite party has not completed the project, the complainants are entitled for refund of their amounts with interest. Supreme Court in Experion Developers Pvt. Ltd. vs. Sushma Ashok Shiroor (2002) SCC Online SC 416 held that in case of refund, interest @9% per annum is a just compensation.
ORDER
In view of aforesaid discussions, the complaint is partly allowed. The opposite parties is directed to refund entire amount deposited by the complainants with interest @ 9% per annum from date of respective deposit till the date of refund, within two months from the date of this judgment.