IMPORTANT POINT
Inordinate delay –In a timely fashion would constitute “deficiency in service” on the part of the Opposite Party/Builder.

ORDER

Subhash Chandra, Presiding Member—This order will dispose of First Appeal No.1441 of 2017 filed by M/s Vatika Limited (Opposite Party No.1 before the State Commission) and First Appeal No.1581 of 2017 filed by the Complainant as both the cases challenge the same impugned order dated 16.05.2017 of the State Consumer Disputes Redressal Commission, Rajasthan (for short “the State Commission”) in Complaint No.48 of 2013. First Appeal No.1441 of 2017 has been filed seeking setting aside of the impugned order whereas First Appeal No.1581 of 2017 has been filed seeking enhancement of the compensation.

2. In brief, the facts of the case are that on 23.03.2007 Complainant had booked one residential unit no.17/FF/KDAV/UW in the residential project of M/s Vatika Limited named as “Urban Woods” by paying booking amount of Rs.5,71,245/- and executing an Agreement on 07.07.2007. Possession of the unit was to be handed over to the Complainant within three years, i.e., by 07.07.2010. In the subject unit, a modular kitchen and car parking space were also included. M/s Vatika Limited had made arrangement with Respondent No.2, M/s HDFC Limited, for housing loan to the applicants in the project under which, in addition to the booking amount, the loan of the balance price was to be sanctioned to the applicants and till the handing over of possession, pre EMI interest was to be paid by M/s Vatika Limited and three years after possession being given by M/s Vatika Limited, the EMI of the payment of this loan was to be paid by the Complainant to the Respondent No.2. It is alleged by the Complainant that M/s Vatika Limited did not complete construction in the stipulated period of three years. It is also alleged by the Complainant that he was assured that if M/s Vatika Limited did not fulfill its obligations, the booking amount would be refunded to him along with interest @ 18% p.a. It is alleged that M/s Vatika Limited issued a letter to the Complainant on 09.11.2011 demanding Rs.6,95,702.93 and offering to hand over possession. However, M/s Vatika Limited did not fulfill the terms of the Agreement as per which possession could be handed over after obtaining a Certificate of Occupation from the concerned authorities. It was also alleged that car parking space was subsequently deleted by M/s Vatika Ltd. It is alleged that despite the promise that the entry of the project would be from the Ajmer Express Highway, on which the project was located, the same was not developed.

3. Opposite Parties took preliminary objections that the Complaint had been filed beyond the period of limitation; the valuation of the Complaint was deliberately inflated with the basic intention of the Complainant being to seek refund of the booking amount. It was contended that the present dispute ought to have been referred to the Arbitrator. It was alleged that the Complainant defaulted in making payment on due dates and therefore he was a defaulter. It was stated that though the Complainant was informed about handing over of possession on 09.11.2011, he took no interest in the same. It was contended that the project has been completed in all respects and the flats have been completed. It was prayed that the Complaint be dismissed.

4. By the impugned order, the State Commission rejected the objection regarding jurisdiction and limitation but upheld that there was delay in giving possession of the unit in question. The State Commission allowed the Complaint and directed M/s Vatika Limited to pay to the Complainant the booking amount of Rs.5,71,245/- along with interest @ 9% p.a. from the date of filing of the Complaint till the date of payment and also to pay to the Respondent No.2 within one month the housing loan of Rs.30,46,643/- which was sanctioned to the Complainant and disbursed to M/s Vatika Limited. Costs of Rs.5,100/- was also awarded. No compensation towards mental agony was awarded. Both parties have impugned this order by way of the present Appeals.

5. We have hear