NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Dinesh Singh, Presiding Member
Taken up through video conferencing
M/s. Shivalik Infrastructure & Development Pvt. Ltd. – Appellant
versus
Kanchan Sharma – Respondent
First Appeal No.2079 of 2018
(Against the Order dated 04/07/2018 in Complaint No.1057/2017 of the State Commission Punjab)
Decided on 22.9.2021

IMPORTANT POINTS
1) Non-fulfilment of its overall responsibilities of project planning, execution and completion cannot be and are no grounds for condoning or overlooking delay in completion and failure to offer possession within the agreed and assured period.
2) State Commission has drawn its rationale from a state legislation (i.e. Punjab Apartment and Property Regulation Act, 1995 (PAPRA)) in objectively determining the rate of interest of 12% p.a.

Headnote:

Consumer Protection Act, 1986 – Section 19 [Consumer Protection Act, 2019 – Section 51(1)] – Appeal – Against order dt. 04.07.2018 passed by the State Commission – State Commission allowed the complaint, ordered Appellant to refund the deposited amt of Rs. 36,94,708/- with interest at 12% p.a. from the respective dates of deposit till realisation (as per Rule 7 of PAPRA), to pay Rs. 50,000/- as compensation and cost of litigation - Possession of the subject unit has not been offered to the Respondent, there is no other alternative but to refund the amt. deposited by the Respondent - Findings of this Commission: Non-fulfilment of its overall responsibilities of project planning, execution and completion cannot be and are no grounds for condoning or overlooking delay in completion and failure to offer possession within the agreed and assured prd. – Appellant is sternly advised to not undertake any “settlement talks” or attempting any settlement in dilution or compromise to the award made by the State Commission - State Commission has drawn its rationale from a state legislation (i.e. Punjab Apartment and Property Regulation Act, 1995 (PAPRA)) in objectively determining the rate of interest of 12% p.a.

Held: The State Commission had allowed the complaint and ordered the opposite party to refund the deposited amount of Rs. 36,94,708/- with interest at the rate of 12% per annum from the respective dates of deposit till realisation (as per Rule 7 of PAPRA) and to pay Rs. 50,000/- as lumpsum compensation inclusive of cost of litigation.

Learned counsel fairly submits that since possession of the subject unit has not been offered to the complainant, there is no other alternative but to refund the amount deposited by the complainant. The only point of argument is apropos the rate of interest of 12% per annum awarded by the State Commission. The same is unjustified and unequitable, arbitrarily high. A rate of interest of 8% or 9% per annum would be just and equitable.

Here this Commission would like to observe that a perusal of the State Commission’s Order of 04.07.2019 shows that it is a well-appraised reasoned order that has extensively dealt with the issues germane to the dispute. However, to place the whole matter in perspective, it is to say further that prior to, or, at the least, simultaneous to, getting the buyer consumer to enter into its agreement and accepting the first payment towards the total cost of the subject unit, the builder co. was required and expected to have the due pragmatic and realistic assessment and preparation of the project planning, execution and completion. It was the prime responsibility of the builder co. to ensure that it was in a position to deliver the possession of the subject unit to the buyer consumer within the agreed and assured period. Planning, execution and completion were the builder co.’s responsibility, and not of the consumer; (normal) impediments or problems that may arise in planning, execution and completion were again its own responsibility, and not of the consumer. Specifically, availability of land, as well as all approvals from the concerned government, development and municipal authorities, as and when due, being fundamental basic requirements of a residential housing project, were decidedly to be taken care of and dealt with by the builder co. Time and cost overruns were also within the domain of its own duty and obligation. Non-fulfilment of its overall responsibilities of project planning, execution and completion can not be and are not grounds for condoning or overlooking delay in completion and failure to offer possession within the agreed and assured period. All-encompassing plea of force majeure, unforeseeable circumstances, irrespective of its various ‘liberal’ or ‘strict’ interpretations, and irrespective of its various interpretations in different sets of facts, can, but, not be nebulously and irrationally articulated in the agreement, or be successfully contended and argued for anything and everything related to the builder co.’s failure to fulfil its responsibilities for completion of the project without occasioning time or cost overruns.

In respect of the rate of interest, it is seen that the State Commission has inter alia drawn its rationale from a state legislation (i.e. Punjab Apartment and Property Regulation Act, 1995 (PAPRA)) in objectively determining the rate of interest (without any subjectivity). In the given facts and circumstances of this particular case, the same appears to be just and equitable, and no apparent reason to disturb it is visible.

It is made explicit that since the matter has been decided on merit, there can be no question of the builder co. undertaking any “settlement talks” or attempting any settlement in dilution or compromise to the award made by the State Commission. The builder co. is so sternly advised. (Paras 9, 10, 11, 13 & 17)

Result: Appeal, being misconceived and bereft of worth, is dismissed.