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Judgment
Heard Mr. Devesh Bhatia, Advocate, for the complainant.
Sunita Kirtikumar Patel has filed above complaint, for directing the opposite parties to (i) handover possession of Unit No.502, carpet area 1085 sq.ft., in the building “Emerald” Azad Nagar Cooperative Housing Society, with stilt car parking and pay credit compensation in the form of interest @24% per annum on her deposit, as per clause-16 of the agreement; or in alternative (ii) refund Rs.27500000/- with interest @24% per annum from the date of respective deposit till the date of refund; (iii) pay Rs.1000000/- as compensation for mental agony and harassment; (iv) pay Rs.200000/- as litigation costs; and (v) any other relief which is deemed fit and proper in the facts and circumstances of the case.
The complainant stated that M/s. Sun Vision Emerald (opposite party-1) was a partnership firm, registered under the Partnership Act, 1932 and engaged in the business of development and construction of group housing project and Sh. Jitendra Jain (opposite party-2) was its partner. One Sushila Dhalumal Lakhani had lease-hold right in Plot No.10/11, CTS No.345/17 admeasuring 683.1 sq.mtrs. of village Vile Parle (West), taluka Andheri, Mumbai, which consisted an old structure “Moti Mahal” of which, she and her family members were owners. They formed Azad Nagar, Co-operative Housing Society Ltd. and transferred their right to it. The owners and its assignees transferred their right in the said property together with their share in Azad Nagar, Co-operative Housing Society Ltd. in favour of the partners of M/s. Sun Vision Emerald in the year 2010. On reconstitution of the firm M/s. Sun Vision Emerald on 10.04.2012, Sh. Jitendra Jain (opposite party-2) had become its owner. The opposite parties decided to redevelop the said property and got sanctioned its Layout Plan from Municipal Corporation of Greater Mumbai for construction of Stilt + 12 upper floors, in the name of “Emerald”. Municipal Corporation of Greater Mumbai issued IOD on 05.12.2010 and “commencement certificate” on 04.03.2011. The opposite parties made wide publicity of its amenities and facilities. Believing upon the representations of the opposite parties, the complainant booked a flat in the said building and the opposite parties allotted Flat No.502, carpet area 1085 sq.ft, on the 5th floor of the said building, for total consideration of Rs.29500000/-. The complainant paid Rs.2500000/- on 28.11.2014, Rs.20000000/- on 22.12.2014 and Rs.5000000/- on 22.12.2014 through cheque. The opposite parties executed an agreement on 27.03.2015, in which, deposit of Rs.27500000/- was acknowledged. Clause-16 of the agreement provides that possession will be handed over on or before March, 2017 with reasonable extension of time and if the developer fails to deliver possession till then the allottee would be entitled to claim refund with interest @24% per annum. The power of attorney holder of the complainant, vide letters dated 30.08.2016, 12.09.2016 and 30.11.2016, sought for update of the construction, which were not responded by the opposite parties. Then this complaint was filed on 28.07.2017.
In spite of service of notice, the opposite parties did not file its written reply and its right to file written reply was closed by order dated 12.02.2018. The complainant filed Affidavit of Evidence of Suresh Kumar Pukhraj Jain, documentary evidence and written synopsis.
We have considered the arguments of the complainant and examined the record. The opposite parties, in the registered agreement dated 27.05.2015, acknowledged deposit of Rs.27500000/- towards consideration of Flat No.502, carpet area 1085 sq.ft., in the building “Emerald” Azad Nagar Cooperative Housing Society, with stilt car parking. Clause-16 of the agreement provides that possession will be handed over on or before March, 2017 with reasonable extension of time; and If the developer fails to deliver possession till then the allottee would be entitled to claim refund with interest @24% per annum. The opposite parties failed to delivery possession within promised date or even till today. The facts stated in the complaint, are proved from documentary evidence and Affidavit of Evidence of S.P. Jain. Although agreement provides for interest @24% per annum for refund, but we are awarding interest on the principle of Section 73 of the Contract Act, 1872. Supreme Court in Experion Developers Private Limited Vs. Sushma Ashok Shiroor, 2022 SCC OnLine SC 416, held that 9% interest, in case of refund, is just compensation, which is restitutory and compensatory both.
ORDER
In view of aforesaid discussions, the complaint is partly allowed with cost of Rs.2/- lacs. The opposite parties are directed to refund Rs.27500000/- with interest @9% per annum from the date of respective deposit till the date of refund and the cost of Rs.2/- lacs, within a period of two months from the date of producing a certified copy of this judgment before them. If the opposite parties fail to refund the amount as directed above within two months, they shall be liable to pay interest @12% per annum, after two months.