The main legal point established is that housing construction falls within the definition of service under the Consumer Protection Act, and the court can grant interest on equitable grounds even when there is no provision for it in the agreement.

Mr. B.K. Taimni, Member—This com-plaint has been filed by the complainant, Dr. Poornima Advani & Ors. complaining deficiency in service on the part of the opposite party, M/s. India Builders Corporation & Ors.

2. Briefly the facts of the case are that complainant booked a flat with the O.Ps. in September, 1996 and the complainants were allotted flat No. C/07/01 in “C” Block of Platinum City in Bangalore for a total consideration of Rs. 16,01,522/-. Instalments were paid as per schedule. During the visit of the complainant in January, 1998 to Bangalore after discussion with O.Ps., it was agreed to allot flat No. A/04/02 and all the instalments paid against C/07/01 were transferred in favour of Flat No. A/04/02. The price of newly allotted flat was to be Rs. 19,27,400/-. According to the instalment plan, as per O.Ps. letter dated 7th January, 1998, 95% of the total cost was payable by September, 1998 and five percent on possession. Presumption was that flat would be delivered within the year 1998. When the complainants took up the matter for handing over the possession of the flat A/04/02 in Platinum City, several alternative offers were made by the O.P., but no firm commitment was forthcoming on the date of handing over the possession of A/04/02. Admitted position is that from the complainant, Rs. 15,14,920/- stood paid by October, 1998 but work had not started in the construction of “A” Block i.e. and as late as 11th September, 1998, the O.Ps. informed the complainant that delay in handing over the possession could range between 12-18 months. When even after expiry of this period, completion of “A” Block and Flat No. A/04/02 was nowhere in sight, the complainant wrote to the O.P. on 7th May, 2001 to refund the entire deposited amount. Getting no reply from the O.P. on this letter the complaint has been filed by the complainant in July, 2001 praying for following reliefs :

1. Specific performance of the contract by the respondent in respect of flat No. A/04/02 along with the damages for wrongful delay in completing the work and handing over the flat contracted for, bring A/04/02 at their own instance; or

2. Refund the deposits made by us with the developers from time to time plus interest plus compensation for affecting our income on the one hand and mental peace of the family on the other hand.

The claim in respect of sub-para (2) above comprise the following :

1. Deposit of Rs. 15,41,920/- paid in between September, 1996 and June, 1998, lying with the respondents till the date of petition towards non-existent block in the project titled Platinum City.

2. Provisional interest of Rs. 12,71,200/- at 24% calculated upto 30.6.2001.

(Note a) The final figure can be calculated only when the full deposit amount is refunded.

(Note b) Attention is invited to Clause 4 in the original terms and conditions referred to earlier whereby interest at 24% per annum was chargeable on all delayed payments. It would be fair to assume that if the developers charges this rate of interest on delayed payments, their liability on deposits wrongfully held by them cannot be any less.

3. Compensation of Rs. 25,00,000/- for loss of all chances of managing a reasonable income by two aged senior citizens, causing them mental trauma and financial crunch at this advanced age, depriving both of them from having a comfortable living during the end days of their lives when they needed financial security the most.

3. Notice was issued to the O.P. who have filed a written version. They have stated that complainant is not a consumer and the complaint is barred by limitation. The complainant has asked for a specific performance of a contract which is outside the purview of C.P. Act, 1986. The delay in handing over the possession is on account of unavoidable reasons. The O.Ps. have already offered possession of Plot No. C/07/01 for the interregnum period till flat A/04/02 is ready but the complainant has not accepted it. O.Ps. are agreeable to refund of money dep