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Judgment
Subhash Chandra, Presiding Member
This First Appeal under section 19 of the Consumer Protection Act, 1986 (in short, the Act) challenges order dated 20.12.2018 of the State Consumer Disputes Redressal Commission, Punjab, Chandigarh (in short, the State Commission) in Consumer Complaint No. 699 of 2018 allowing the complaint and seeks the setting aside of this order. This order will also dispose of FA 546 of 2019 and FA 578 of 2019 which involve the same issues of law and facts emanating from orders of the State Commission in Consumer Complaint nos. 700 of 2018 and 699 of 2018 which were disposed by orders dated 20.12.2018 and 09.01.2019 respectively. As the facts and details of the order are similar in these matters, for reasons of convenience, the facts are taken from FA 538 of 2019.
The relevant facts according to the appellant/respondent, are that it had allotted a residential flat no. 1942, First Floor admeasuring 1255 sq ft to the respondents/complainants in its project Affordable Homes, TDI City, Mohali for a sale consideration of Rs 33,54,999/- on 09.01.2014. A sum of rs 5,00,000/- towards basic sale price and Rs 2,50,782/- towards EDC was paid by respondent no. 1 A Floor Buyers Agreement (Agreement) was signed 20.06.2014. The respondent no. 1/complainant paid an instalment obtained a loan from Respondent No. 2 for Rs 24,00,000/- of which Rs 22,80,000/- was disbursed and a tri-partite agreement signed on 18.11.2014. The respondents/complainants had opted for Payment Plan C under which the appellant/respondent undertook to pay pre-EMI on behalf of the respondents/complainants under a subvention scheme. An offer of possession was made by the appellant on 05.04.2016 requiring the respondent no. 1 to make the balance payment and execute the sale deed. However, respondent failed to make the balance payment of Rs 5,52,545/- and therefore was liable to pay holding charges as per Agreement of Rs 10/- per sq ft per month in terms of Clause 11 of the Agreement. A Partial Occupancy certificate was issued by GMADA on 11.05.2016. Respondent 1 was also called upon to pay Club Membership charges and although club facilities were not started the facilities of the club in Sector 117-118 were offered. Club Building Completion Certificate dated 06.12.2017 was also obtained. Appellant contends that the respondent no. 1 failed to make the balance payment or deposit the holding charges with the interest for delay in payment and issued a legal notice dated 02.05.2016. Thereafter CC 699 of 2018 was filed which was erroneously upheld by the State Commission without appreciating the facts and documents. The appellant is before us praying to:
(i) call for the records in CC No. 699/2018 from the State Consumer Disputes Redressal Commission, Punjab;
(ii) allow the present Appeal and set aside the order dated 20.12.2018 of the State Consumer Disputes Redressal Commission, Punjab in CC No. 699 of 2018; and
(ii) pass any other order(s)/direction(s) deemed fit in the in the interest of justice.
The appeal was resisted by way of reply by the respondents. It is contended by respondent no. 1 that the appellants offer of possession dated 05.04.2016 was a mere paper possession as the project was incomplete as on that date. Therefore, the respondent was not in a position to accept possession. It is also submitted that in view of the project remaining incomplete, all charges claimed were infructuous. The order of the State Commission was stated to be in order and it was prayed that the appeal be dismissed. On behalf of respondent 2 it was contended that it had only extended a loan to respondent 1 and there was no cause of action involving it as the dispute was between the appellant/builder and the respondent no. 1/allottee.
The order of the State Commission reads as follows:
(i) To deliver actual physical possession of the apartment/flat, complete in all respects, to the complainants along with all the promised facilities and the Completion and Occupation Certificates obtained from the concerned competent authorities within a period of three months from the date of receipt of certified copy of this order subject to the payment of balance outstanding amount towards the price of the apartment/flat without any interest or penal interest by the complainants;
(ii) to execute the sale/convenience deed and get the same registered in the name of the complainants after handing over the actual physical possession of the apartment/flat in question as per direction (i) above within a period of three months thereafter and the expenses for the same shall be borne by the complainants;
(iii) To pay pre-EMI interest to the complainants paid by them to opposite party No. 2-DHFL on account of pre-EMI interest for a period of 24 months;
(iv) to pay interest on the deposited amount of Rs 30,30,782/- at the rate of 12% per annum with effect from 20.12.2017 till the date of actual delivery of possession of the apartment/flat in question;
(v) not to charge Club Membership Charges from the complainants; and
(vi) to pay Rs 50,000/- as compensation for mental tension and harassment suffered by the complainants, including litigation costs.
However opposite party No. 1 shall first adjust the outstanding amount, as stated above, from the amounts payable to the complainants and if some amount still remains to be paid to the complainants then the same be paid immediately to them.
We have heard the rival contentions of the learned counsel for the parties and carefully considered the material on record.
Learned counsel for the appellant submitted that the project was executed under the provisions of the Industrial Policy, 2003 under which the State Government acquired 10% of the land and the project was exempted as a mega housing project from the provisions of the Punjab Apartment and Property Regulation Act (PAPRA), 1995 as per notification dated 18.09.2009 and agreement between the appellant and State Government dated 21.09.2006. It is contended that the Buyers Agreement was executed on 20.06.2014 even though respondent no. 1 had paid only Rs 5,00,000/- and that relevant loan documents were submitted in November 2014 when a tripartite agreement was signed. An offer of possession was made on 05.04.2016 and notice to pay arrears was issued which was not done and Rs 5,52,545/- was yet to be paid. An Occupancy Certificate dated 11.05.2016 was issued by GMADA. All statutory are required to be paid by the allottee as per Clause 16 of the Agreement. Respondent No. 1 is stated to not be a consumer under section 2(1)(d) of the Act but are speculative investors since they delayed entering into the Buyers Agreement till after getting the loan sanctioned by Respondent No. 2 and are admittedly residing in their own house. It was submitted that respondent nos.1 and 2 delayed the payment of instalment intentionally with the intention to speculate and it was argued that as per judgment of Honble Supreme Court in Supertech Limited Vs. Rajni Goyal, (2019) 17 SCC 681 in CA Nos. 6649-50 dated 23.10.2018 the period of delay attributable to the purchaser must be excluded from the period for which interest was payable by the builder.
Per contra, the learned counsel for the respondent No. 1 submitted that the offer of possession dated 05.04.2016 was not a valid document since the appellant did not have an Occupancy Certificate till 11.05.2016. The offer of possession was also not valid since neither the flat in question had been completed nor the development of facilities executed. The nonpayment of final dues was therefore justified. Charging of holding charges by the appellant was also not justifiable on part of the appellant since the project was incomplete and no Completion Certificate was available. The Club Building had also not been completed and the charges for membership was not justified. Accordingly, the impugned order was in order.
The preliminary objection of the appellant that the respondent No. 1 was not a consumer under the Act since he had invested in the apartment for speculative purposes has been considered at the outset. No evidence to support this contention has been brought on record. The onus to prove this contention lies upon the appellant which has not been discharged. The State Commission has rightly relied upon this Commissions judgment in Kavita Ahuja & Ors. Vs. Shipra Estate Ltd. and Jai Krishna Estate Developers Pvt. Ltd. & Ors. in CC No. 137 of 2010 dated 12.02.2015, I (2016) CPJ 31 (NC) to reject the contention of the appellant in the absence of any cogent evidence being brought on record. Hence, this contention of the appellant is not tenable and cannot be considered.
From the record, it is manifest that respondent No. 1 had paid Rs 30,30,782/- timely towards the apartment/flat and the final instalment of Rs 5,52,545/- was due only on offer of possession. Appellants argument that the respondent No. 1 lacked funds is not relevant since it is not material whether the said payment was through loan or from his own savings or a combination of both. It is not in dispute that the offer of possession dated 05.04.2016 preceded the obtaining of the Occupancy Certificate dated 11.05.2016. It is also not disputed that the Club Building was not ready on the date of offer of possession and its completion certificate was obtained by the appellant on 06.12.2017. The non-payment of the final instalment by respondent No. 1 on the ground that the project and the flat in question was not complete cannot be construed to be a default in payment as per the Payment Plan since no Completion Certificate has been brought on record by the appellant. No evidence has also been brought on record to prove that delay in remittance of loan amount was deliberate or with the intention to speculate in the property as alleged. In view of the foregoing facts, respondent No. 1 cannot be faulted for not making the payment of the final instalment which was to be paid when legal possession was offered. The imposition of holding charges by the appellant is also not considered to be valid for the reason that the project was incomplete, and the levy charge cannot be justified for that reason. The Club Membership levied is also not tenable on the ground that its membership itself was not mandatory. The Club building was admittedly not ready till 06.12.2017 when its completion certificate was obtained and until then facilities were offered in another Club. As regards the direction of the State Commission to the appellant to pay pre-EMI interest to the complainants paid by them to respondent No. 2 (DHFL) for 24 months, the same cannot be found fault with as it was an essential part of the Agreement under the Payment Plan C opted for by respondent No. 1. The reliance of the appellant on Rajni Goyal (supra) cannot be accepted since respondent No. 1 paid the instalment once the loan was sanctioned and no mala fide in causing any delay has been established by the appellant. The findings of the State Commission with respect to these issues do not therefore warrant any interference by this Commission. The appellant is held to be in default of contractual obligations amounting to deficiency in service under the Act.
However, in view of the judgment of the Honble Supreme Court in DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda, Etc. in Civil Appeal No.4910-4941 of 2019, (2019) SCC OnLine SC 689 that for a singular deficiency there cannot be multiple reliefs awarded the order of the State Commission awarding Rs 50,000/- for mental agony, harassment and litigation cannot be sustained. Therefore, litigation cost alone of Rs 25,000/- is considered adequate for this reason.
In Wg Cdr Arifur Rahman Khan & Ors. Vs. DLF Southern Homes Pvt. Ltd. & Ors., Civil Appeal No. 6239 of 2019 decided on 24.08.2020, (2020) 16 SCC 512, the Honble Supreme Court had laid down that in case of possession of the flat being handed over a 6% rate of compensatory interest on the amount deposited for the period of delay would be reasonable. Therefore, the award of 12% rate of interest awarded by the State Commission cannot be justified and is accordingly modified to 6% on the deposited amount of Rs 30,30,782/- with effect from 20.12.2017 till the date of actual delivery of possession of the apartment/flat .
For the foregoing reasons, the first appeal is partly allowed and the orders of the State Commission are slightly modified and the appellant/respondent is directed to:
(i) deliver legal physical possession of the apartment/flat, complete in all respects, to the complainants along with all the promised facilities and the Completion and Occupation Certificates obtained from the concerned competent authorities within a period of three months from the date of receipt of certified copy of this order subject to the payment of balance outstanding amount towards the price of the apartment/flat without charging any interest or penal interest;
(ii) execute the sale/conveyance deed and get the same registered in the name of the respondent/complainant after handing over the legal physical possession of the apartment/flat in question as per direction (i) above within a period of three months the expenses for which shall be borne by the complainants;
(iii) pay pre-EMI interest to the complainants paid by them to respondent/opposite party No. 2 (DHFL) on account of pre-EMI interest for a period of 24 months;
(iv) pay interest on the deposited amount of Rs 30,30,782/- at the rate of 6% per annum with effect from 20.12.2017 till the date of actual delivery of possession of the apartment/flat in question;
(v) not charge Club Membership Charges from the respondent/complainant; and
(vi) pay the respondent/ complainant Rs 25,000/- as litigation costs.
FA 546 of 2019 and 578 of 2019 are also disposed of in the above terms.
Pending IAs, if any, also stand disposed of with this order.