IMPORTANT POINT
Alternate Flat – In the instant case, the impugned order has rightly upheld the prayer of the appellant for possession and ordered the handing over of possession of the alternative flat to the appellant within 3 months.

ORDER

Subhash Chandra, Presiding Member—This appeal under Section 19 of the Consumer Protection Act, 1986 (in short, the ‘Act’) assails the order dated 17.03.2016 of the State Consumer Dispute Redressal Commission, Karnataka, Bangalore (in short, the ‘State Commission’) in Consumer Complaint no. 118 of 2013 pertaining to the construction of the apartment booked by the appellant with the respondent. The impugned order upheld the complaint and directed as below:—

“The complaint is hereby allowed with a cost of Rs 5000/-. The complainant as well as OP are hereby directed to approach Corporation Bank, Vontikoppal Branch, Temple Road, Mysore to obtain NOC for the purpose of execution of sale deed of flat no. S 4 apartment in “Pratham Pooja”. OP is further directed to execute sale deed in favour of complainant in respect of flat no. S 4 in “Pratham Pooja” within a period of three months from the date of this order within which time both the parties shall obtain NOC from Corporation Bank.

OP is further directed to pay interest @ 8% pa on amount of Rs 17,40,000/- from the date of complaint till execution of sale deed and handing over of possession to the complainant under proper acknowledgement.”

2. The facts of the case, according to the appellant, in brief, are that she entered into an Agreement to Sale (in short, the ‘Agreement’) with the respondent on 07.07.2008 in respect of Flat No. G 4, Ground Floor in “Pratham Ashirwad”, Vijaynagar First Stage, Devaraj Mohalla, Mysore admeasuring 1105.30 sq ft super area for a sale consideration of Rs18,00,000/-. Appellant paid the sum of Rs17,40,000/- towards the flat after obtaining a loan of Rs.16,00,000/- from Corporation Bank. The balance 5% was required to be paid at the stage of registration. As per the Agreement, appellant was liable to pay interest @ 18% p.a. for delay in payments as per the schedule while the respondent was liable to pay the appellant Rs.5,000/- per month for delay in handing over possession beyond the specified time of delivery.

3. Respondent sent a letter of completion on 25.02.2011 but despite several emails by the appellant to register the flat, the respondent conveyed that the flat would not be ready till 16 August 2011 and hence registration was not possible. It was thereafter learnt by the appellant that the landowner of the property was in possession of the flat and was involved in litigation with the respondent.

4. Under compelling circumstances, respondent agreed to accept allotment of flat no. S 2 in lieu of flat G 4, and entered into another Agreement with the respondent on 16.09.2011. However, this apartment was also subsequently found to have been sold to a third party. Respondent then assured the appellant that flat G 4 would be reallotted and gave an undertaking on 21.08.2012 to hand over vacant possession for registration on or before 15.10.2012, failing which Rs 20,000/- per month would be paid as damages. However, on 05.01.2013 the flat was found to be still occupied by the landowner of the property by the appellant. The respondent then offered flat S 4 and assured registration in 45 days, which he failed to do. Respondent also did not respond to 2 legal notices by the appellant on 22.02.2013 and 17.06.2012 for registration and damages.

5. Thereafter, appellant filed Consumer Complaint no.118 of 2013 before the State Commission which came to be decided on contest in her favour. The impugned order is, however, challenged on the ground that the State Commission failed to appreciate that the respondent was liable for unfair trade practice and deficiency in service in failing to comply with the terms of the Agreement in handing over flat no. G 4 and that the impugned order was erroneous in requiring an NOC from the Bank when 95% of the payment stood paid. It was also contended that the State Commission erred in not appreciating that the respondent had undertaken to hand over vacant possession of this flat as per undertaking dated 21.08.2012 on or be