IMPORTANT POINT
Claim on earnest money - For making claim on earnest money, the opposite party has to prove that there has been loss due to non-performance of the part of the agreement by the complainant.

ORDER

The present Appeal has been filed against the Order dated 06.09.2019 passed by the Rajasthan State Consumer Disputes Redressal Commission (hereinafter referred to as the State Commission), whereby the Complaint filed by Lalit Kumar Goyal (hereinafter referred to as the Complainant) before the State Commission was allowed and the M/s. Narayan Builders & Developers (hereinafter referred to as the Appellant Builder) was directed to refund Rs.24,54,479/- alongwith interest @18% p.a. from the date of deposit to the Complainant. The Appellant Builder was also directed to pay Rs.2,00,000/- towards compensation alongwith cost of Rs.20,000/- alongwith interest @9% p.a. from the date of filing of the complaint.

2. Brief facts of the case are that the Appellant Builder launched a Group Housing Project in the name and style of “Urbana Jewells” (hereinafter referred to as the Project) located near Guhana Mandi, Village Madrampura, Tehsil Sanganer, Jaipur. The Original Allottee, Mr. Devendra Kumar Goyal booked a 2 BHK Flat No. O-208 in the said Project by paying booking amount of Rs.4,00,000/- to the Appellant Builder in the year 2008. The Complainant got transferred the said flat in his name by paying Rs.4,00,000/- to the original allottee. Flat Buyer Agreement was executed between the Appellant Builder and the Complainant on 29.03.2012. As per Cost Sheet attached with the Agreement, the total cost of the Flat was Rs.19,42,560/-. As per terms of the Agreement, the possession of the flat was to be delivered within 36 months from the date of execution of the Agreement, i.e., by 28.03.2015. The Complainant had deposited a sum of Rs.24,55,199/- with the Appellant Builder upto 28.03.2014. It was alleged that vide letter dated 25.03.2014, the Appellant demanded Rs.4,46,769/- towards interest on delay payment, which was objected by the Complainant. The Complainant also met with the officers of the Appellant Builder to sort out the matter. Despite that the Appellant Builder issued Cancellation Notice dated 21.02.2015 informing the Complainant that the allotment of the flat would be cancelled if the outstanding amount is not paid within 30 days. It is the case of the Complainant that as per terms of the Agreement, the possession of the flat was to be handed over within 36 months from the date of Agreement, i.e., by 28.03.2015 but despite having received substantial part of the sale consideration, the Appellant Builder has not completed the construction and failed to obtain Completion Certificate from Jaipur Development Authority; No Objection Certificate from Indian Airport Authority and Fire Department rather the Appellant Builder had threatened to cancel the allotment of the Flat for not paying the illegal demand made by the Appellant Builder. Alleging deficiency in service on the part of the Appellant Builder, the Complainant had filed a Consumer Complaint before the State Commission.

3. The Appellant Builder contested the Complaint before the State Commission by submitting that despite several reminders the Complainant defaulted in making payment. They are ready to give possession but after making payment of the outstanding dues. There is no deficiency in service on their part.

4. After hearing both the Parties and perusal of material on record, the State Commission allowed the Complaint in aforementioned terms by observing as under:-

“As per doctrine propounded by Hon’ble Supreme Court and the Hon’ble National Commission – if possession of flat is not given by the Builder on time and he does not get its registration, then the Complainant is entitled to get interest @18% p.a.In this matter also, the situation is same.So the Complainant is entitled to get interest @18% per annum from the date of deposit of the amount till the date of realization.”

5. Aggrieved by the Order passed by the State Commission, the Appellant Builder has filed the present Appeal.

6. Ms. Suchitra Kumbhat, learned Counsel appearing on behalf of the Appellant Build