IMPORTANT POINT
Interest of 7 % - difficulty faced by the complainant, the rate of interest of 7% per annum adopted by the State Commission appears to be quite reasonable and justified.

ORDER

This appeal has been filed under section 51(1) of the Act 2019 in challenge to the Order dated 21.07.2020 of the State Commission in complaint no. 971 of 2018.

2. Learned counsel for the respondent (the ‘complainant’) is present.

Learned proxy counsel appears for the appellant (the ‘builder co.’); the learned counsel is not present. Learned proxy counsel submits that he is making his submissions on instructions.

3. We have heard the learned counsel and have perused the record.

4. The appeal has been filed with reported delay of 204 days. There is no application for condonation of delay.

However, in the interest of justice, to provide fair opportunity to the appellant builder co., to decide the matter on merit rather than to dismiss it on the threshold of limitation, the delay in filing the appeal is condoned.

5. The matter relates to a builder-buyer dispute. Briefly, the builder co. entered into an agreement with the complainant on 23.09.2008 in respect of a residential unit. The complainant inter alia took loan from a financial institution. Since it was a construction-linked plan, the payments were released by the financial institution on the basis of demands made by the builder co. from time to time. The assured date for delivery of possession of the subject unit was 36 months from the date of start of construction of the concerned tower or the date of execution of the agreement whichever was later. The same expired on 22.09.2011. Delivery of possession was not made within the assured period, nor was it even made within a reasonable period thence (reasonable period here would connote a period which may appear reasonable per se and which a reasonable man of ordinary prudence would not normally agitate or object to). The State Commission ordered the builder co. to refund the deposited amount with compensation in the form of simple interest at the rate of 7% per annum from the respective dates of deposit till actual realisation.

6. Learned counsel for the builder co. submits that rather than refund of the deposited amount the State Commission ought to have ordered for delivery of possession of the subject unit. He however admits that even till date the occupancy certificate has not been obtained. Learned counsel further draws attention to the force majeure clause in the agreement and submits that delay in supply of materials and delay in approvals was a “force majeure condition” and therefore the delay in offering possession beyond the assured date was not deficiency in service. Submission in a nutshell is that the complainant may be directed to take delivery of the subject unit in its present condition on an as-is-where-is basis without occupancy certificate and also that no compensation for delay in delivery of possession is warranted since the delay was due to “force majeure condition”.

7. Learned counsel for the complainant submits that the payments were made way back in 2008-2011. The possession was not offered within the assured period or even without a reasonable period thence. The subject unit still suffers from lack of occupancy certificate. Force majeure cannot be irrationally argued for anything and everything related to the builder co.’s own responsibilities. Submission in brief is that since no meaningful legitimate possession of a fully constructed and developed unit can be made by the builder co. even today, the only logical alternative is the refund of the deposited amount with reasonable compensation.

8. A perusal of the State Commission’s impugned Order shows that it is a well-appraised and reasoned order and has aptly dealt with the issues germane to the dispute.

9. In the context of the submissions made by the learned counsel, it may be observed, to place the whole matter in perspective, 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 expe