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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
C. Viswanath, Presiding Member and Ram Surat Ram Maurya, Member
Promod Balakrishna Pillai and Anr. – Complainants
versus
M/s. Patel Engineering Ltd. and Ors. – Opp. Parties
Consumer Case No.2467 of 2018
Decided on 25.11.2021
Consumer protection Act, 1986 – Section 21 [Consumer Protection Act, 2019 – Section 58] – REAL ESTATE/ Delay in delivery of possession of flats – Refund of amount sought by Complainant – The Complainants are entitled for refund of all the payments with interest if the Builder is not able to give possession of the Building within the stipulated time.Opposite Party No.1 has not provided any evidence to substantiate the plea that the delay was caused due to unforeseen and unexpected events.The Opposite Party No.1 cannot take shelter of the “Force Majeure” Clause – Complaint is partly allowed and Opposite Party No.1 is directed to refund the entire amount deposited by the Complainants alongwith simple interest rate of 10% per annum with effect from the respective date of each payment till the date of refund. [Paras 11, 12]
In Bangalore Development Authority v. Syndicate Bank [2007 (6) SCC 711], Hon’ble Supreme Court held that when possession of the allotted plot/flat/house is not delivered within the specified time, the allottee is entitled to a refund of the amount paid, with reasonable Interest thereon from the date of payment till the date of refund.
ORDER
Complainants are husband and wife. The Opposite Parties are Builders and Promoters of the Residential Project in the name and style “Townsville” at Newtown, Bangalore South. Opposite Party No.2 is subsidiary of Opposite Party No.1. Opposite Party No.2 was later merged with Opposite Party No.1. Opposite Party No.3 entered into Joint Development agreement with the Opposite Party No.1 for the completion of the aforesaid project.
2. The case of Complainants is that they booked a residential unit in the “Townsville” project, Newtown, Bangalore South by depositing a sum of Rs.5,00,000/-. The Complainants were allotted unit No.8A, 3.5 BHK-Garden, vide allotment letter dated 22.06.2011. The project was to be constructed on the land in Hulimangala Village, Jigani Hobli, with a saleable area of 3424 sq. feet, inclusive of proportionate share in common areas with two closed car parks. Opposite Party No.2 issued demand note dated 29.09.2011 for a sum of Rs.14,76,680/- towards payment of instalment. On 10.01.2012, builder-buyer agreement was executed between the Complainants and Opposite Party No.2. According to the agreement, the payment schedule was as follows: -
| Due on or before | Amount |
| Booking and Sale Agreement | 19,76,680.00 |
| On Completion of Foundation Work | 15,61,344.00 |
| On Completion of Podium Slab | 19,51,680.00 |
| On Completion of Slab 1 Work | 7,80,672.00 |
| On Completion of Slab 2 Work | 7,80,672.00 |
| On Completion of Slab 3 Work | 7,80,672.00 |
| On Completion of Slab 4 Work | 7,80,672.00 |
| Commencement of Internal Block Work | 7,80,672.00 |
| Commencement of Internal Plastering | 7,80,672.00 |
| Commencement of External Finishes/ Plastering | 7,80,672.00 |
| Commencement of Flooring | 7,80,672.00 |
| On Possession 1 | 5,20,448.00 |
| On Possession 2 | 8,25,000.00 |
| Total | 1,38,61,200.00 |
3. The demands raised by Opposite Party No.2 were fulfilled by the Complainants by paying upto 9th instalment. The details of payment made by the Complainants are given below:-
| Mode of payment | Instrument Ref. no | Date | Bank | Amount Rs. |
| Local cheque | 969958 | 20/06/11 | HDFC | 5,00,000 |
| Local cheque | 969965 | 21/01/12 | HDFC | 14,76,680 |
| NEFT | 0004F1217000059 | 18/06/12 | HDFC | 75,000 |
| NEFT | RBIPTRN253976935 | 05/06/12 | HDFC | 75,535 |
| Local cheque | 969984 | 09/04/13 | HDFC | 15,61,343 |
| Outstattion cheque | 751823 | 09/04/13 | HDFC | 1,27,875 |
| Local cheque | 969987 | 07/05/13 | HDFC | 19,51,680 |
| NEFT | RBIPTRN294171306 | 09/05/13 | HDFC | 1,59,843 |
| Outstation cheque | 751826 | 21/06/13 | HDFC | 7,80,672 |
| Outstation cheque | 751827 | 21/06/13 | HDFC | 63,937 |
| Outstation cheque | 371885 | 07/08/13 | HDFC | 7,80,672 |
| Outstation cheque | 371886 | 07/08/13 | HDFC | 63,937 |
| Outstation cheque | 371887 | 03/09/13 | Indian bank | 7,80,672 |
| Outstation cheque | 371888 | 03/09/13 | HDFC | 63,937 |
| Outstation cheque | 798024 | 20/10/13 | HDFC | 6,00,000 |
| Outstation cheque | 371898 | 20/10/13 | HDFC | 63,937 |
| Outstation cheque | 371899 | 20/10/13 | HDFC | 1,80,672 |
| Bankers cheque | 713961 | 11/12/13 | SBI | 8,16,735 |
4. The possession of the unit was to be handed over by June, 2014. Opposite Party No.2 never informed the Complainant about the construction status. The Complainants were denied access to the construction site. They were always given the assurance that the construction was in full swing and would be completed in time. Since the construction stage was not known to the Complainants, they stopped making further payments to the Opposite Party. On 09.02.2017, the Complainants sent an email with reasons for non-payment to Opposite party No.2. On 06.06.2017 the Complainants made a request to Opposite Party No.2 to allot a larger unit 20A in place of 8A and settle the issue of delayed possession, but Opposite Party No.2 failed to accede to the request of the Complainants. On 21.07.2017, Opposite Parties Nos.1 & 2 entered into a Jo
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