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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Dinesh Singh, Presiding Member and
Karuna Nand Bajpayee, Member
M/s. Country Colonizers Pvt. Ltd. – Appellant
versus
Anjana Saini and Anr. – Respondents
First Appeal No.475 of 2019
(Against the Order dated 01/01/2019 in Complaint No. 658/2018 of the State Commission Punjab)
Decided on 6.4.2023
Consumer Protection Act, 1986 – Section 21(1)(a)(i)[Consumer Protection Act, 2019 – Section 58(1)(a)(i)] – Services – Real Estate – Allotment of Flat / Plot – Delayed Possession – Unreasonable Delay - parallel rights accrue – To Consumer - It is a well settled position that in case of unreasonable delay beyond the agreed and assured period, two parallel rights accrue to the consumer - In the instant case the complainants have opted for refund of their deposited amount. The delay as already seen is unreasonable and unjustifiable. In the particular facts of the instant case there appears to be no good reason to undo the right which has accrued to the complainants by way of the State Commission’s Order just because the builder co. has now subsequent to the decision of the State Commission (most) belatedly obtained the occupancy certificate and that too when it is still yet to obtain the completion certificate - The unique facts of the instant case show patent deficiency on the part of the builder co. The occupancy certificate was not obtained within the agreed and assured period of 24 months, or even within the grace period of 06 months provided for in the agreement, or even within reasonable period thence still, but was obtained after abnormal unreasonable delay. Admittedly the completion certificate has not been obtained till even today and as such the warranted site development and amenities and conveniences are yet not in place - There can be no two opinions that the builder co. is dutybound to refund the amount deposited by the complainants. And irrespective of whether or not the provisions of PAPRA are applicable, the rate of interest of 12% per annum appears just and equitable – On facts, Appeal dismissed. [Paras 10 to 22].
Result: Appeal dismissed.
ORDER
These two (02) appeals, no. 475 and no. 850 of 2019, under Section 19 of The Consumer Protection Act, 1986 are in challenge to the Orders (02 nos.) dated 01.01.2019 and dated 13.02.2019 of the State Commission in complaints no. 658 and no. 579 of 2018.
2. We have heard the learned counsel for the builder co. (the appellant in both appeals) and for the complainants (the respondents in appeal no. 475 of 2019 and the respondents no. 1 & no. 2 in appeal no. 850 of 2019) and for the finance co. (the respondent no. 3 in appeal no. 850 of 2019) and have perused the record.
3. The learned counsel inform that earlier appeals no. 281 of 2019, no. 282 of 2019 and no. 1967 of 2019, relating to the same project, were dismissed by this bench vide Order dated 10.08.2022. Thereafter a co-ordinate bench of this Commission, placing reliance on the aforesaid Order, dismissed appeal no. 1926 of 2018 vide its Order dated 15.09.2022. The learned counsel provide copies of the Orders dated 10.08.2022 and dated 15.09.2022.
The Order dated 10.08.2022 passed by this bench is being reproduced below for reference:—
Dated: 10 Aug 2022 (in appeals no. 281, 282 and 1967 of 2019)
Order
These three (03) appeals no. 281, no. 282 and no. 1967 of 2019 have been filed under Section 19 of The Consumer Protection Act, 1986 in challenge to the Orders (03 nos.) dated 13.09.2018, dated 24.09.2018 and dated 24.07.2019 of the State Consumer in complaints no. 72, no. 436 and no. 295 of 2018.
2. We have heard Mr. Arjun Nanda, learned counsel for the builder co. (the appellant herein in all three appeals) and Mr. Shyam Kumar, learned counsel for the complainants in complaint no. 295 of 2018 (the respondents no. 1 and no. 2 herein in appeal no. 1967 of 2019). Mr. Maibam N. Singh, learned proxy counsel for the complainant in complaint no. 436 of 2018 (the respondent no. 1 herein in appeal no. 282 of 2019) also make his submissions on instructions. No one appears for the complainants in complaint no. 72 of 2018 (the respondents no. 1 and no. 2 herein in appeal no. 281 of 2019).
We have also perused the material on record, including inter alia the State Commission’s impugned Orders (03 nos.) dated 13.09.2018, dated 24.09.2018 and dated 24.07.2019 and the memoranda of appeals (03 nos.).
First appeals no. 281 of 2019; no. 282 of 2019 and no. 1967 of 2019:
3. Similar facts and same questions of law are involved in these three (03) appeals. As such they are being disposed of vide this common order, with appeal no. 281 of 2019 being taken as the lead case.
First appeal no. 281 of 2019 (lead case):
4. The appeal has been filed with self-admitted delay of 16 days. Mr. Arjun Nanda, learned counsel requests that the delay may be condoned. Mr. Shyam Kumar and Mr. Maibam N. Singh, learned counsel have no objection, and submit that they would prefer putting a period to the lis by a decision on merit.
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. and the complainants entered into an agreement on 28.11.2014 in respect of a residential unit. The complainants paid an amount of Rs.37,23,720/- to the builder co. The agreed and assured date for completing the project and for offering possession of the unit was 24 months from the date of execution of the agreement or the date of initiation of the work whichever was later. The exact date of initiation of the work was unclear. The date of execution of the agreement i.e. 28.11.2014 which in all contingencies was subsequent to the date of initiation of the work was taken by the State Commission for counting the 24 month period. The agreement also provided for a grace period of 06 months beyond the said 24 month period. Counting from the date of the agreement, the agreed and assured
Two parallel rights - It is a well settled position that in case of unreasonable delay beyond the agreed and assured period, two parallel rights accrue to the consumer.
(1) Unreasonable delay - It is a well settled position that in case of unreasonable delay beyond the agreed and assured period, two parallel rights accrue to the consumer.(2) Grace period - Any perio....
“A consumer cannot be made to wait indefinitely or unreasonably and thus complaints hold entitled for refund of amount deposited under Builder Buyer Agreement.”
Compensation - Since the compensation in the form of interest has already been awarded, the Respondents/Complainants shall not be entitled for any other compensation.
The builder's delay in possession constituted deficiency of service, requiring compensation with interest under consumer protection law.
Flat Buyer’s Agreement – Denial of timely possession despite substantial payment – Payment of interest on refund of principal amount is necessary.
(1) Justified Withholding of Payments – An allottee is not necessarily “at fault” for stopping installments if it is evident that the builder is nowhere near completing the project by the committed d....
Just & equitable - the compensation has to be just and equitable, commensurate with the loss and injury suffered.
One-sided contractual terms - Appellant-Builder cannot seek to bind the Respondent with such one-sided contractual terms.
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