Sridharan A G vs M/S. Mantri Castles Pvt. Ltd. & Anr

The present consumer complaint has been filed by Sridharan A G against M/s Mantri Castles Pvt., Ltd., and Anr.

The brief facts of the complaint are that the complainant booked a flat with the opposite party and paid a sum of Rs.2,01,69,610/- and this amount was paid on 29.03.2012 and another amount of Rs.1,13,000/- was paid on 11.03.2015. Thus the total amount of Rs,2,02,82,610/- was paid to the opposite party. As per the builder buyer agreement the possession was to be given on 31.01.2014. It has been alleged in the complaint that the possession has not been given to the complainant along with the facilities mentioned in the Schedule 'D' of the agreement. Though the possession was offered on 02.05.2016, but the complainant has not taken the possession as the facilities were not there. Consequently, the complainant filed the present consumer complaint. The complainant sought the following reliefs in the complaint:

Direct the opposite parties to complete the work with all its amenities, facilities, landscapes, obstruction free pathways, internal roads, lawns, garden, children play area, etc., as undertaken and assured in Scheduled D of the agreement to Construction viz., Document no.5 and hand over the possession of the flat bearing no. D 21 02 at 21st Floor of Wing D Tower having a super built up area on 3010 sq feet with terrace area of 1256 Sq feet in the multi-storeyed building known as Mantri Serenity situated in converted land;

Direct the opposite parties to pay interest at 1.5% per month (18% per annum) for delay in handing over the possession of the flat, on the amount of Rs.2,02,82,609/- from January 2014, viz., the date on which the opposite party had undertaken to deliver the possession of the flat, till the date of actual delivery of possession; or in the altenate

Direct the opposite parties jointly and severally to refund to the complainant, the entire amount of Rs.2,02,82,609/- together with interest at 1.5% per month (18% per annum) from March 2012, viz., the date of receipt of the amount till the date of its actual payment;

Direct the opposite parties to pay a sum of Rs.20,00,000/- as compensation for deficiency of service and unfair trade practice and for mental agony, harassment, inconvenience, hardship, difficulties, problems etc., caused to the complainant together with a sum of Rs.5,00,000/- as cost of this proceedings; and

Grant all other such consequential relief as this Hon'ble Commission deems fit in the interest of justice and equity.

The complaint was resisted by the opposite party by filing written statement wherein it has been stated that the occupancy certificate was obtained on 10.02.2016 and offer for possession was sent to the complainant on 02.05.2016. However, the complainant has not taken the possession and therefore, there is no deficiency on the part of the opposite party and it has been requested to dismiss the complaint.

Both the parties filed their evidence by way of affidavits which have been taken on record.

I have heard the learned counsel for the parties and perused the material on record. Learned counsel for the complainant states that he is not interested in getting the possession of the flat as the same has been inordinately delayed and therefore he may be refunded the amount he has paid to the opposite party with interest. He further states that the occupancy certificate obtained by the opposite party is not complete and the facilities are still not in place, therefore, he decided to seek refund.

On the other hand, the learned counsel for the opposite party states that occupation certificate was obtained on 10.02.2016 and the possession was offered on 02.05.2016. If the complainant does not take the possession the opposite party cannot be held responsible for the delay in handing over the possession. It is true that the project was delayed, however, when the occupancy certificate has been obtained clearly it implies that the facilities are in place. Learned counsel referred to the judgment dated 08.06.2018, passed by this Commission under section 12 (1) (c) of the Consumer Protection Act, 1986 in CC no. 913 of 2016 - R V Prasana Kumar and Ors vs Mantri Castles Pvt. Ltd., and Anr., which is for the same project, wherein, this Commission has decided that the occupancy certificate was obtained on 10.02.2016 and it was accepted that the facilities were complete and this Commission allowed interest only upto 31.07.2016 to the complainants who sought possession.

Learned counsel for the opposite party further states that the flat allotted to the complainant is fully ready and therefore, the opposite party cannot be burdened with any interest if any amount is ordered to be refunded to the complainant. Learned counsel for the opposite party further states that if the agreement is cancelled by the purchaser then the opposite party is entitled to forfeiture of 10% of total consideration of the amount.

So far the question of forfeiture of 10% of the consideration is concerned it is seen that Hon'ble Supreme Court in Civil Appeal No. 193/2015, M/s. Kailash Nath Associates vs. Delhi Development Authority & Anr. has held that the opposite party is entitled to forfeiture of the earnest money only when the opposite party has suffered loss and proof has been placed for such loss. The Hon'ble Supreme Court has observed as follows:

"29. Based on the facts of this case, it would be arbitrary for the DDA to forfeit the earnest money on two fundamental grounds. First, there is no breach of contract on the part of the appellant as has been held above. And second, DDA not having been put to any loss, even if DDA could insist on a contractual stipulation in its favour, it would be arbitrary to allow DDA as a public authority to appropriate Rs.78,00,000/- (Rupees Seventy Eight Lakhs) without any loss being caused. It is clear, therefore, that Article 14 would apply in the field of contract in this case and the finding of the Division Bench on this aspect is hereby reversed."

The Hon'ble Supreme Court has observed that forfeiture can only be affected if there is a loss to the opposite party, however in the present case, no proof has been filed that the opposite party has suffered any loss.

I have carefully examined the material on record and considered the arguments advanced by the learned counsel for both the parties. From the arguments, it is brought out that the complainant is not interested in taking over the possession of the said flat due to alleged deficiencies. As held in R V Prasana Kumar and Ors vs Mantri Castles Pvt. Ltd., and Anr. (supra) this Commission has already accepted that the occupancy certificate has been obtained by the opposite party on 10.02.2016 and therefore, it will be presumed that the basic facilities are in existence. Clearly, once the offer was made after getting the occupancy certificate, the offer of possession was totally valid and for the period beyond 02.05.2016 the complainant cannot claim interest at the rate which can be given for the actual delay which is from the date of due possession till the offer letter was made after getting the occupancy certificate, i.e., 02.05.2016.

The Hon'ble Supreme Court in the recent pronouncement in Kolkata West International Pvt. Ltd. Vs. Deva Asis Rudra, II (2019) CPJ 29 (SC) has reduced the rate of interest from 12% per annum as granted by this Commission to 9% per annum in the refund case. Accordingly, the complainant may be entitled to only 9% per annum interest on the deposited amount from the date of respective deposits till 02.05.2016. Further, as the complainant did not take the possession in spite of the availability of occupancy certificate, the complainant would not be entitled to this rate of interest for period beyond 02.05.2016 when he was offered possession. However, as the money remained with the opposite party, for the period beyond 02.05.2016 also, the complainant would be entitled to some interest for this period also in the light of the decision of the Hon'ble Supreme Court in the case of Alok Shanker Pandey Vs. Union of India &Ors., II (2007) CPJ 3 (SC), wherein the following is observed:-

"9. It may be mentioned that there is misconception about interest. Interest is not a penalty or punishment at all, but it is the normal accretion on capital. For example if A had to pay B a certain amount, say 10 years ago, but he offers that amount to him today, then he has pocketed the interest on the principal amount. Had A paid that amount to B 10 years ago, B would have invested that amount somewhere and earned interest thereon, but instead of that A has kept that amount with himself and earned interest on it for this period. Hence equity demands that A should not only pay back the principal amount but also the interest thereon to B."

In the circumstances of the case, I deem it appropriate to allow interest @ 6% per annum for the period beyond 02.05.2016 till actual payment.

Consequently, the complaint is allowed and the opposite party is directed to refund the amount of Rs.2,02,92,609/- along with 9% per annum interest from the date of respective deposits till the date of offer of possession which is 02.05.2016. The opposite party shall also pay interest @ 6% per annum on this amount from 03.05.2016 till the actual payment. The opposite party is directed to comply with this order within a period of eight weeks from the date of receipt of this order. Parties to bear their own costs.