JUDGEMENT
INDU MALHOTRA,J. -
(1.)The present statutory Appeals have been filed under Section 23 of the Consumer Protection Act , 1986 to challenge the Final Judgment and Order dated 23.10.2018 passed in Consumer
Case No. 238 of 2017 and Consumer Case No. 239 of 2017 by
the National Consumer Disputes Redressal Commission
(hereinafter referred to as "the National Commission").
(2.)Since a common issue arises in both the Civil Appeals, they are being disposed of by the present common Judgment and
Order.
(3.)For the sake of brevity, the facts in C.A. No. 12238 of 2018 are being referred to, being the lead matter.
The factual matrix of the said Civil Appeal is as under :
3.1. The Appellant - Builder launched a residential project by the name "Araya Complex" in Sector 62, Golf Course Extension Road, Gurugram. The Respondent - Flat Purchaser entered into an Apartment Buyer's Agreement dated 08.05.2012 with the Appellant - Builder to purchase an apartment in the said project for a total sale consideration of Rs. 4,83,25,280/-. As per Clause 11.2 of the Agreement, the Appellant - Builder was to make all efforts to apply for the Occupancy Certificate within 39 months from the date of excavation, with a grace period of 180 days.
3.2. The excavation of the project commenced on 04.06.2012. As per Clause 11.2 of the Agreement, the Builder was required to apply for the Occupancy Certificate by 04.09.2015, or within a further grace period of 6 months i.e. by 04.03.2016, and offer possession of the flat to the Respondent - Flat Purchaser. The Appellant - Builder however failed to apply for the Occupancy Certificate as per the stipulations in the Agreement.
3.3. The Respondent - Flat Purchaser filed a Consumer Complaint before the National Commission on 27.01.2017 alleging deficiency of service on the part of the Appellant - Builder for failure to obtain the Occupancy Certificate, and hand over possession of the flat. The Respondent prayed inter-alia for :-
• Refund of the entire amount deposited being Rs. 4,48,43,026/-, along with Interest @18% p.a.; and
• Compensation of Rs. 10,00,000/- for mental agony, harassment, discomfort and undue hardship; and
• Refund of the wrongfully charged taxes including Service Tax, and other charges along with Interest @18% p.a.; and
• Litigation Costs of Rs. 1,00,000/-.
3.4. On 06.02.2017, the National Commission passed an ex- parte Interim Order restraining the Appellant - Builder from cancelling the allotment made in favour of the Respondent - Flat Purchaser during the pendency of the Consumer Case.
3.5. During the pendency of the proceedings before the National Commission, the Appellant - Builder obtained the Occupancy Certificate on 23.07.2018, and issued a Possession Letter to the Respondent - Flat Purchaser on 28.08.2018.
3.6. The Appellant - Builder submitted before the National Commission that since the construction of the apartment was complete, and the Occupancy Certificate had since been obtained, the Respondent - Flat Purchaser must be directed to take possession of the apartment, instead of directing refund of the amount deposited.
3.7. The Respondent - Flat Purchaser however submitted that he was not interested in taking possession of the apartment on account of the inordinate delay of almost 3 years. The Respondent - Flat Purchaser stated that he had, in the meanwhile, taken an alternate property in Gurugram, and sought refund of the entire amount of Rs. 4,48,43,026/- deposited by him along with Interest @18% p.a.
3.8. The National Commission vide Final Judgment and Order dated 23.10.2018 allowed the Consumer Complaint filed by the Respondent - Flat Purchaser, and held that since the last date stipulated for construction had expired about 3 years before the Occupancy Certificate was obtained, the Respondent - Flat Purchaser could not be compelled to take possession at such a belated stage. The grounds urged by the Appellant - Builder for delay in handing over possession were not justified, so as to deny awarding compensation to the Respondent - Flat Purchaser. The clauses in the Agreement were held to be wholly one - sided, unfair, and not binding on the Respondent - Flat Purchaser. The Appellant - Builder was directed to refund Rs. 4,48,43,026/- i.e. the amount deposited by the Respondent - Flat Purchaser, along with Interest @10.7% S.I. p.a. towards compensation. The rate of Interest @10.7% S.I. p.a. was fixed in accordance with Rule 15 of the Haryana Real Estate (Regulation and Development) Rules, 2017 which reads as follows :
"15. An allottee shall be compensated by the promoter for loss or damage sustained due to incorrect or false statement in the notice, advertisement, prospectus or brochure in the terms of Section 12. In case, allottee wishes to withdraw from the project due to discontinuance of promoter's business as developers on account of suspension or revocation of the registration or any other reason(s) in terms of clause (b) sub- section (I) of Section 18 or the promoter fails to give possession of the apartment/ plot in accordance with terms and conditions of agreement for sale in terms of sub-section (4) of section 19 . The promoter shall return the entire amount with interest as well as the compensation payable. The rate of interest payable by the promoter to the allottee or by the allottee to the promoter, as the case may be, shall be the State Bank of India highest marginal cost of lending rate plus two percent. ."
(emphasis supplied) However, for the period when the Interim Order dated
06.02.2017 was in operation, which restrained the Appellant - Builder from cancelling the Respondent's
allotment, no Interest was awarded. The National
Commission ordered payment of Interest from the date of
each installment till 05.02.2017; and from the date of the
Order passed by the Commission till the date on which the
amount would be refunded.
3.9. Aggrieved by the Order dated 23.10.2018 passed by the National Commission, the Appellant - Builder preferred the present statutory Appeal under Section 23 of the Consumer Protection Act, 1986.