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Judgment
Prem Narain, Presiding Member
The present first appeal no. 344 of 2016 has been filed by Vibhor Vaibhav Infrahome Pvt. Ltd., and Anr., against the order dated 18.03.2016 of the Uttar Pradesh State Consumer Disputes Redressal Commission ('the State Commission') passed in CC no. 79 of 2015.
The brief facts of the case are that the complainant No. 1 had bought the flat for his sibling complainant No. 2 bearing no. T-606 and deposited the booking amount of Rs.21,000/- on 08.11.2011. Complainant, further deposited amount on different dates, thus, in total has deposited amount of Rs.4,40,293/- with the appellants/ OP nos. 1-2. At the time of booking of the flat, OP nos. 1-2 assured the respondent no.1/ complainant no. 1 that the scheme is sanctioned and approved by respondent no .3/ OP no.3 and financed by respondent no.4/ OP no.4.
Complainant applied for loan with OP no. 4 which was rejected vide letter dated 21.3.2013, however, it was told to the complainant by the officer of OP no.4 that the tower of OP nos.1-2 is not complete and the scheme is not sanctioned and approved by OP no.3 for which financial assistance cannot be given to the complainant.
Later, OP nos. 1-2 assured the complainant that he may approach DHFL to get the financial assistance. Then the complainant went to DHFL and they issued a loan offer letter dated 13.07.2013.
The appellants/ OP nos. 1-2 neither provided the letter of allotment nor the agreement was executed, however, when complainant demanded for the same, he was informed that his allotment stood cancelled vide letter dated 07.07.2013 which has been already sent to him. Demand letter along with the above letter was sent to the address 9/839, Sector 13, Vasundhra Ghaziabad whereas the address of the complainant as mentioned in the booking was 9/620, Vasundhra Ghaziabad.
Complainant no.1 felt cheated and applied for refund for his deposited amount along with interest on 10.03.2015 which was denied by OP nos. 1-2, thereafter complainant no.1 sent letter dated 14.03.2015 claiming possession of the allotted flat and interest on the deposited amount, but no effort was made by the OP nos.1-2 to redress the grievance of the complainant.
Complainants filed the complaint and prayed to direct OP nos.1-2 to provide physical possession of the allotted flat or in alternative to provide similar flat in the vicinity in the same scheme, to quash the illegal interest, to pay Rs.8.00 lakh as compensation and to pay 24% interest on the deposited amount.
Learned counsel of the complainant has made this prayer during the course of argument before the State Commission that since OPs are not carrying out any construction at the site and booking of the flat was made at least about 5 years before, OPs be directed to refund the deposited amount along with interest.
The State Commission vide its order dated 18.03.2016 has partially allowed the complaint with cost of Rs.10,000/- and directed OP nos.1-2 to refund the amount deposited along with 18% p.a. interest.
Hence, OP nos.1-2 has filed an appeal against the above order.
Heard the learned counsel for the parties and perused the record. The allotment of the complainant was finally cancelled as the complainant did not deposit the balance instalments despite several reminders. It was also stated that the flat was booked for commercial purpose and the complainant is not a consumer of the appellant as neither the allotment letter has been issued nor the builder-buyer agreement has been executed. It was further argued that the complainant had sought physical possession of the flat and not refund of the paid amount. However the State Commission has ordered for refund of the paid amount along with 18% per annum interest. A prayer that was not sought by the complainant cannot be accepted by a consumer forum. It was also stated that the interest awarded is @18% per annum which is highly excessive. This Commission as well as the Hon'ble Supreme Court are not awarding 18% interest on refund these days. The refund is being allowed @ 9% - 10% per annum interest.
On the other hand, the learned counsel for the respondent nos.1 and 2/ complainant nos.1 and 2 stated that when the booking of the flat was made by the complainant it was the duty of the opposite party to have issued an allotment letter. However, in spite of several requests, the OPs did not issue any allotment letter and insisted for further payment. When sizeable part of the consideration was paid to the opposite party, the complainant requested the opposite party nos.1- 2 to execute the builder-buyer agreement, however, the same was not sent to the complainant for execution. Providing no allotment letter and non-execution of the builder buyer agreement are clearly deficiency in service on the part of the OPs. Thus, it cannot be said that the complainant is not a consumer because, there is no allotment letter and there is no builder buyer agreement. The complainant has paid the amount of Rs.4,40,293/- to OP nos.1 - 2 and therefore, the complainant is a consumer of appellant/ OP nos.1-2. OP No. 4 refused loan to the complainant stating that the scheme was not approved by OP no.3. Later on when another financial institution DHFL agreed to provide the loan to the complainant on 13.07.2013, by that time, the OP nos.1 - 2 had already cancelled the booking on 07.07.2013. Thus, the State Commission has rightly allowed the refund of the amount with interest as there was no progress in the construction of the project even after five years of booking.
I have carefully considered the arguments advanced by the learned counsel for both the sides and have examined the record. Clearly, there is no basis for cancellation of the booking of the complainant, as the complainant pursued the loan from OP no.4 and later on with DHFL. Clearly, there is no substance in the argument of the appellant that the complainant is not a consumer of the appellant, because there is no allotment letter and no builder buyer agreement. It was the responsibility of the appellant to have issued the allotment letter after booking was made by the complainant, however, the same was not issued by the OPs. As there was no allotment letter issued and the money paid only remains as booking amount, the complainants are entitled to refund of the same. So far as the question of refund is concerned, it is true that the complaint was filed for possession of the flat. However, at the end of the prayer in the complaint, the following has been mentioned at item no. xi:
"any other order which this Hon' ble State Commission deem fit and proper in the circumstances of the case may also be passed".
From the above, it is clear that the State Commission was competent to pass any other order in the light of the request of the complainant and it passed an order of refund. Otherwise also, in interest of justice and for providing better protection to the consumer, the consumer forum is competent to pass any appropriate order.
Thus, I do not find any illegality in the order passed by the State Commission refunding the paid amount. The only question that can be considered is in respect of rate of interest awarded by the State Commission. The State Commission has awarded 18% per annum interest which is definitely highly excessive. Keeping in view the existing interest scenario, the Hon'ble Supreme Court in the case of Kolkata West International City Pvt. Ltd., vs Devasis Rudra - Civil Appeal no.3182 of 2019 - 2019 SCC online SC 438 decided on 25.03.2019, has reduced the interest @ 12% per annum awarded by this Commission to 9% per annum. However, in the facts and circumstances of the present case, I deem it appropriate to allow interest @ 10% per annum on the amount of refund.
Based on the above discussion, FA no. 344 of 2016 is partly allowed and the order of the State Commission dated 18.03.2016 is modified to the extent that the amount will be refunded along with interest @ 10% per annum instead of 18% per annum as awarded by the State Commission from the date of respective deposits till actual payment. With this modification, the order of the State Commission is upheld.