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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Prem Narain, Presiding Member
M/s. Siraj Developers and Anr. —Appellants
versus
Yasmin Razak Vanoo —Respondent
First Appeal No.124 of 2015
(Against the Order dated 22/12/2014 in Complaint No. 99/2011 of the State Commission Maharashtra)
Decided on 15.11.2017
Counsel for the Parties:
For the Appellants:Mr. Anmol Chitale, Advocate
For the Respondent:Mr. Uday B. Wavikar, Advocate with Mr. Vikas Nautiyal, Advocate
IMPORTANT POINT
Refund on the basis of Ready Reckoner is not justified.
Headnote:Consumer Protection Act, 1986—Sections 17, 19 and 21—Real estate—Respondent/complainant had booked a residential unit with opposite party/appellant but possession has not been provided to complainant—State Commission has ordered possession of unit booked or any other similar unit in same area or in alternative refund an amount of Rs.71,85,815/- which is based on Ready Reckoner of Government of State—Concept of market value for determining value of goods and services for deciding pecuniary jurisdiction has not been accepted by National Commission—Refund on the basis of Ready Reckoner is not justified in present case, however, a reasonable rate of interest would be justified on amount deposited—Order of State Commission modified to the extent that in alternative of refund, opposite party would be liable to refund deposited amount alongwith 14% interest from date of deposit till actual payment instead of Rs.71,85,815/- as ordered by State Commission.
Held: The undisputed facts are that the respondent/complainant had booked a residential unit with the opposite party/appellant, but the possession has not been provided to the complainant. The State Commission has ordered the possession of the unit booked or any other similar unit in the same area or in the alternative refund an amount of Rs.71,85,815/- which is based on the ready reckoner of the Government of the State. As the appellant has stated that he is not in a position to provide the flat, so he will have to refund the amount, however, he has objected to the amount ordered by the State Commission. In this regard both the parties have given their arguments and drawn attention towards certain judgments. The only question to be decided is whether the refund on the basis of ready reckoner is justified or it should be on the basis of some interest being payable on the deposited amount. The learned counsel for the respondent has referred to the judgment of this Commission in Trivor D’ Lama (supra) wherein refund has been ordered on the basis of present market price in the peculiar circumstances of the case. The learned counsel has also referred to another judgment in Kevit Ahuja (supra) wherein refund has been ordered with 18% p.a. interest on the deposited amount.
In most of the cases of refund, this Commission is awarding interest on the deposited amount. In my view, if flat is not built, there should be no question of offering the market price or on the basis of ready reckoner as the money deposited has not grown to the market value of the flat. Earlier in some cases, in respect of pecuniary jurisdiction, sometimes, the present market value was taken to be the value of goods and services, but a larger Bench of this Commission in Consumer Case No.97 of 2016, Ambrish Kumar Shukla &Ors. Vs. Ferrous Infrastructure Pvt. Ltd., decided on 07.10.2016 (NC), has decided that the value of goods and services for deciding the pecuniary jurisdiction shall be the total consideration paid or promised to be paid at the time of purchase. Thus, the concept of market value for determining value of goods and services for deciding pecuniary jurisdiction has not been accepted by this Commission. In analogy, it seems reasonable to say that the concept of market value cannot be sustained in the cases for refund.
Based on the above considerations, I am of the view that the refund on the basis of ready reckoner is not justified in the present case, however, a reasonable rate of interest would be justified on the amount deposited. Looking at the long period for which the amount remained with the appellant and the current bank rates as well as the recent trend of orders of this Commission, I deem it appropriate to order for refund of the deposited amount alongwith interest @ 14% per annum from the date of deposit till actual refund.
On the basis of the above discussion, the appeal is partly allowed and the order of the State Commission is modified to the extent that in the alternative of refund, the opposite party would be liable to refund the deposited amount alongwith the interest @ 14% p.a. from the date of deposit till actual payment instead of Rs.71,85,815/- as ordered by the State Commission. The order of the State Commission as modified by this order shall be complied by the appellant/opposite party within a period of 8 weeks. The complainant shall be entitled to proceed against OP after 8 weeks for execution of the order. (Paras 11 to 14)
Result: Appeal Partly allowed.
This appeal has been filed by the appellant, M/s. Siraj Developers and another against the order dated 22.12.2014 passed by the State Commission, Maharashtra in C.C. No.11 of 1999.
2. The brief facts of the case are that the appellant was the contractor to develop the area vacated by some slum dwellers and as per the policy of rehabilitation, he was entitled to get 50% of the vacated land and to develop and dispose it off to other buyers. Respondent booked a flat in the building being developed by the appellant. The respondent/complainant booked the flat for a total sum of Rs.26 lakhs and paid a sum of Rs.6,50,000/- as booking amount. The complainant paid different amounts from time to time, aggregating to Rs.13 lakhs. Later on, there was some dispute between the Slum Development Authority and the appellant contractor. The Authority cancelled the agreement executed with the appellant contractor and allotted the project to some other contractor. That matter is separately subjudice at some other level. It is the contention of the appellant on this count that he could not develop the property and could not deliver the flat to the buyer. When the respondent/complainant did not get the possession, he filed a complaint before the State Commission, Maharashtra. The State Commission vide its order dated 22.12.2014 allowed the complaint and passed the following order:
“Order
(1) Complaint is partly allowed.
(2) Opponents are directed to hand over possession of the flat having 1000 sq.ft. area in the building at Survey No.208(P), Shivadi Division, Thakaji Jivraj Road, Shivadi, Mumbai-400 015 to the complainant by accepting remaining consideration of Rs.13 Lakhs from the complainant within six months. In case, opponents decline to accept the amount, complainant is at liberty to deposit said amount in the office of this State Commission within eight days from such refusal.
Alternatively
Opponents are directed to hand over possession of any another flat in the same locality of same size with same price to the complainant by accepting remaining consideration of Rs.13 Lakhs from the complainant within six months. In case, opponents decline to accept the amount, complainant is at liberty to deposit said amount in the office of this State Commission within eight days from such refusal.
Alternatively
At the option of the complainant, opponents are directed to pay amount of Rs.71,85,815/- to the complainant within ninety days, failing which the amount shall carry interest @ 12% p.a. from the date of complaint till its realization.
(3) Opponents are directed to obtain Occupancy Certificate and Building Completion Certificate and hand over it to the complainant.
(4) Opponents are directed to pay Rs.1 Lakh as compensation to the complainant on account of mental agony and physical hardship suffered by the complainant.
(5) Opponents are also directed to pay an amount of Rs.10,000/- to the complainant as costs of this litigation and bear their own costs.
(6) Copies of the order be furnished to the parties.”
3. Aggrieved by the order of State Commission, the OP/appellant has filed the present appeal.
4. Heard the learned counsel for both the parties and perused the record.
5. Learned counsel for the appellant stated that the complaint was highly time barred and even then the State Commission has considered the complaint. The agreement for the flat was entered between the parties on 11.3.1995 wherein the possession was to be delivered in May, 1997. The complaint has been filed on 1.2.2011. Thus, the complaint is highly time barred. The State Commission has erred in allowing the time barred complaint. Learned counsel further mentioned that respondent had filed a criminal complaint on 9.9.1999. Thus, the respondent must have realized by that time that all negotiations have been completed and he was not in a position to get the possession of the flat, still the complainant did not file complaint within two years of filing of the criminal complaint. T
