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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
C. Viswanath, Presiding Member and Ram Surat Ram Maurya, Member
M/s. TDI Infrastructure Ltd. —Appellant
versus
Durga Sharma —Respondent
First Appeal No.166 of 2021
(Against the Order dated 02/07/2019 in Complaint No.501/2018 of the State Commission Haryana)
Decided on 11.2.2022
Counsel for the Parties:
For the Appellant:Ms. Kanika Agnihotri, Advocate
For the Respondent:Mr. Brij Bhushan, Husband of the respondent in person
IMPORTANT POINT
Buyer – A buyer cannot be made to wait for possession for unlimited period.
Headnote:
Consumer Protection Act, 1986 – S.19 [Consumer Protection Act, 2019 – S.51] – Services – Real Estate – Appeal against order of State Commission whereby the complaint was partly allowed and the appellant was directed to refund Rs.2782718/- along with interest – The State Commission has recorded a finding that the construction was incomplete. Although the order of the State Commission was passed on 02.07.2019, but even today appellant has not challenged this finding or produce any ‘Occupation Certificate’ relating to the building in question. According to the Floor Buyer’s Agreement, possession has to be delivered on or before 13.11.2017 till today the appellant is not in a position to deliver the possession – Whether findings of State Commission can be interfered – A buyer cannot be made to wait for possession for unlimited period. In the circumstances, the direction of the State Commission to refund the money realize from the complainant does not suffer from any illegality – First Appeal is partly allowed and order of State Commission is modified to the extent that the appellant shall pay interest @9% per annum on the amount deposited by the complainant from the date of respective deposits till its actual payment. [Paras 7, 8].
Result: Appeal partly allowed.
ORDER
Heard Ms. Kanika Agnihotri, Advocate, for the appellant and Mr. Brij Bhushan (in person) husband and Authorized Representative of the respondent.
2. This appeal has been filed against the order of State Consumer Disputes Redressal Commission, Haryana, Panchkula dated 02.07.2019 passed in Complaint Case No.501 of 2018, Durga Sharma Vs. M/s. TDI Infrastructure Ltd., whereby the complaint was partly allowed and the appellant was directed to refund Rs.2782718/- along with interest @12% per annum from the date of respective deposits till realization. The complainant was also awarded Rs.51000/- as the compensation for mental agony and physical harassment and Rs.21000/- as litigation charges. It has further been directed that in case the amount is not refunded within the period of three months then the interest would be @18% per annum.
3. The office has reported that the appeal has been filed with delay of 580 days. The appellant has filed IA/12146/2021, an application for condonation of delay in which, it has been stated that the appellant did not receive any notice of the complaint being instituted in the State Commission. The appellant was made aware of the impugned order and execution proceedings pending before the State Commission by way of execution application. After gaining knowledge of the execution application pending before State Commission by the end of January, 2020, the officers of the Company applied for a certified copy of the impugned order and had to wait for it. Thereafter the appellant company started to prepare for filing of appeal and could not prepare the appeal as the office of the Company was shut because of various lockdown measures, imposed by the Government due to the spread of Covid-19. The appeal was filed on 03.03.2021. Cause shown is sufficient. The delay in filing of the appeal is condoned.
4. The facts as stated in the complaint and emerged from the documents filed along with appeal are as follows:
(a) M/s. TDI Infrastructure Ltd. (Appellant) (hereinafter referred to as the builder) is a company engaged in the business of construction and development of residential and commercial buildings and selling its unit to the prospective buyers. The builder launched a Group Housing Scheme in the name of Espania Floors at Kamaspur, district Sonipat, Haryana, in the year 2011. The complainant applied for a 3BHK floor on 04.07.2011 and was allotted Floor No.EF-32/GF (built up area 1224 sq.ft., basic sale price Rs.2600000/- and total sale price Rs.2919708/-. The builder prescribed two modes of payment i.e. ‘down payment plan’ and ‘construction linked payment plan’. The complainant opted for ‘construction link payment plan’. The complainant gave a cheque of Rs.190000/- on 04.07.2011. Thereafter, as per demand the complainant deposited Rs.210000/- on 13.07.2011, Rs.400000/- on 19.10.2011, Rs.310024/- on 01.03.2012, Rs.280000/- on 09.06.2012, Rs.280000/- on 08.10.2012, Rs.270216/- on 12.12.2012, Rs.274766/- on 27.06.2013, Rs.37779/- on 21.12.2013, Rs.250000/- on 21.12.2013, Rs.268033/- on 30.12.2016 (total Rs.2782718/-). These deposits are verified from the statement of accounts as maintained by the appellant (Annexure-5) to the appeal. At the time of allotment, the complainant was given undertaking that the possession over the constructed floor would be delivered within 30 months from the date of Floor Buyer’s Agreement. However, the Floor Buyer’s Agreement was executed on 14.5.2015. Almost entire sale consideration (except last installment, which was payable at the time of possession) was taken from the complainant upto December, 2016, but the construction was neither raised nor possession was delivered to the complainant within the period of 30 months, which expired on 13.11.2017 even from the date of execution Floor Buyer’s Agreement. When the complainant enquired in August, 2018 about the construction on the spot, he found that the construction on the site was very slow and will take much more time. The
