IMPORTANT POINT
Delay of 5 years - There is a delay of more than 5 years in obtaining completion/ Occupancy Certificate from the promised date of delivery of possession, therefore the Complainant cannot be compelled to take possession of the Flat in question and the Complainant is entitled for refund of her money along with interest.

1ORDER

R.K. Agrawal, President.—This Appeal has been filed by Arihant Superstructures Ltd., under Section 51 of the Consumer Protection Act, 2019 (hereinafter referred to as “the Act”), challenging the Order dated 13.09.2021, passed by the Rajasthan State Consumer Disputes Redressal Commission, Circuit Bench at Jodhpur in Consumer Complaint No. 9 of 2017, whereby the State Commission has allowed the Complaint and directed the Appellant herein to refund the amount of Rs.26,80,340/- along with interest @ 9% per annum as also the compensation of Rs.,1,00,000/- for mental agony and litigation cost of Rs.10,000/-.

2. The relevant facts leading to the present First Appeal are that the Complainant/ Respondent herein, on 21.10.2012 had booked a Flat No. Belita-702, admeasuring 1090 sq. ft. in “Arihant Adita”, the project of the Opposite Party/ Appellant herein. Thereafter, on 07.11.2012, the Agreement for Sale was executed between the Appellant and the Respondent for the aforesaid Flat for a total sale consideration of Rs.26,00,000/-. Vide Letter dated 19.11.2012, the Appellant informed the Respondent that the Construction will be completed by 31.07.2014, and Completion Certificate will be provided by that time. Based on the said Letter, the Respondent took equitable mortgage loan from the State Bank of Bikaner and Jaipur, Kota Branch. It is averred by the Complainant/Respondent in the Complaint that she had timely deposited all the installments as per payment plan and in total she had paid an amount of Rs.26,80,340/- to the Appellant. It is alleged that despite collecting the entire sale consideration, the Appellant failed to give possession and the Completion Certificate of the Flat by 31.07.2014, due to which she was deprived of Income Tax Rebate. On 01.10.2015, the Appellant had offered the possession of the Flat without Completion/ Occupancy Certificate, which was not accepted by the Complainant/ Respondent on the pretext that she would not take possession of the flat until the Appellant provide a Completion Certificate. As the Appellant failed to obtain Completion Certificate and hand over possession of the Flat, the Complainant on 27.03.2017, through an Advocate, issued a Legal Notice to the Appellant, which was not responded by them.

3. Therefore, alleging deficiency in service and unfair trade practice on the part of the Appellant, the Complainant approached the State Commission seeking refund of amount of Rs.26,80,340/- with interest @ 24% per annum as also compensation of Rs.2,00,000/- for mental agony and litigation cost.

4. Upon notice, the Complaint was contested by the Appellant by filing a Written Version, wherein the Appellant had admitted, the booking of the Flat in question and receipt of amount as also the Letter dated 19.11.2012, indicating the date for Completion. It was alleged that the Complainant concealed the relevant facts and had not approached the State Commission with clean hands. It was further averred that the construction of the Flat was completed on time and possession was offered. Several letters were sent to the Complainant/ Respondent to take possession of the Flat, but the Complainant failed to take possession of the Flat and she is liable to pay FTTH, DCP, maintenance Charges, etc. in terms of the Agreement for Sale. It is averred that she cannot take advantage of her misdoings and claim for refund of the amount with interest and compensation. All the other averments made in the Complaint were denied as baseless and contrary to the facts and sought for dismissal of Complaint with cost.

5. It is recorded by the State Commission that the Complainant filed her Evidence by way of Affidavit. However, the Opposite Party has not filed any evidence in support of its claim. It is further recorded by the State Commission in the impugned Order that the Advocate, who was pursuing the case on behalf of the Appellant and filed Vakalatnama, on 12.03.2021, had submitted that he had no instructions in the matter.