Translate
Text Highlighter

Bookmark

PDF

Share

Report a problem
AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
Acts
  • Section 14 of the Punjab Apartment and Property Regulation Act, 1995 (in short, PAPRA)
  • Sections 12, 14, 18 and 19 of the Real Estate Regulation and Development Act, 2016.
  • Order 41 Rule 27 CPC read with Section 151 CPC
  • CONSUMER PROTECTION ACT
  • Sections 12, 14, 18 and 19
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Click here to upload
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
Acts
  • Section 14 of the Punjab Apartment and Property Regulation Act, 1995 (in short, PAPRA)
  • Sections 12, 14, 18 and 19 of the Real Estate Regulation and Development Act, 2016.
  • Order 41 Rule 27 CPC read with Section 151 CPC
  • CONSUMER PROTECTION ACT
  • Sections 12, 14, 18 and 19
See more information ...
Smart Summary

Concise Analytical Summary of the Judicial Opinion

Factual and Procedural Background

This order disposes of four First Appeals filed by the appellant, Jalandhar Improvement Trust, against similar orders dated 24.07.2019 passed by the District Consumer Disputes Redressal Forum, Jalandhar. The lead facts are taken from First Appeal No.642 of 2019.

In the lead matter (First Appeal No.642 of 2019), the complainant was allotted an LIG flat (No.87-A, Ground Floor) under the appellant's 51.5 Acre Development Scheme (Bibi Bhani Complex) by allotment letter dated 28.01.2010. The complainant paid the entire sale consideration (Rs. 7,04,222) and completed requisite formalities. Clause 7 of the allotment letter required construction and development be completed within two (and in some references two-and-a-half) years of allotment. The opposite party failed to complete the project and deliver possession within the stipulated period. The complainant filed a consumer complaint on 12.07.2017 seeking refund with interest, compensation for mental agony, and litigation expenses.

The District Forum partly accepted the complaint and directed refund of the sale price with interest @12% p.a., compensation of Rs.20,000 and litigation expenses Rs.7,000. The Trust appealed. Similar facts and reliefs arise in the three other appeals (First Appeals Nos. 643, 644 and 645 of 2019) concerning other allottees/allotments under the same scheme, each with similar pleadings, District Forum orders and appeals.

Legal Issues Presented

  1. Whether the appellant's miscellaneous applications for production of additional evidence (under Order 41 Rule 27 CPC read with Section 151 CPC) should be allowed.
  2. Whether the complainants were entitled to refund of the amounts deposited because the appellant failed to complete the project and deliver possession within the stipulated period under the allotment letters (Clause 7).
  3. Whether legal/physical possession can be delivered in the absence of a Completion/Occupation Certificate required under Section 14 of the Punjab Apartment and Property Regulation Act, 1995 (PAPRA).
  4. Whether the District Forum's award of interest at 12% per annum — and the date from which interest was to run — was correct (specifically whether interest should run from the date of deposit of each instalment or from 28.01.2010).
  5. Whether the District Forum's award of compensation and litigation expenses was justifiable and whether those parts of the orders should be interfered with on appeal.
  6. Whether the cause of action was continuous (and thus not barred by limitation) in light of delayed delivery of possession.

Arguments of the Parties

Appellant (Jalandhar Improvement Trust) — principal contentions

  • The scheme was complete and possession of the specific flat had been offered to the complainant by letter dated 11.05.2017; many allottees were residing and had obtained electricity connections.
  • Any delay in offering possession was slight and beyond the Trust's control.
  • The District Forum awarded interest from 28.01.2010 despite instalments having been paid on various dates; the award of interest at 12% p.a. is excessive and should not exceed 6% per annum.
  • The quantum of compensation awarded by the District Forum was excessive.
  • The appellant sought to place additional documents on record (Ex.OP-1 to Ex.OP-14) by way of additional evidence under Order 41 Rule 27 CPC read with Section 151 CPC.

Respondent / Complainant — principal contentions

  • The opposite party failed to complete construction and development within the stipulated period (Clause 7) — the project was not completed and construction had stopped; the complainant was entitled to the reliefs granted by the District Forum.
  • The District Forum considered the facts and circumstances and passed a reasoned speaking order; there was no ground for interference on appeal.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
First Appeal No.67 of 2019 (Jalandhar Improvement Trust v. Jatinder Kaur & Anr.), order dated 04.06.2019 Prior decision involving the Trust and similar legal/ factual questions arising from the same scheme and allotments. The court observed that the merits of the present appeals were squarely covered by that verdict and proceeded to decide the present appeals in view of that order.
First Appeal No.191 of 2019 (Jalandhar Improvement Trust v. Darshan Lal Narula), order dated 04.09.2019 Another prior decision involving the Trust on similar issues. The court relied on the reasoning in that earlier order when deciding the present appeals.
First Appeal No.855 of 2018 (Vision India Realtors Pvt. Ltd. & Anr. v. Sanjeev Malhotra), National Commission order dated 13.06.2018 Legal principle that legal possession cannot be delivered in the absence of a Completion Certificate issued by the competent authority. The court applied this principle to hold that in the absence of a Completion/Occupation Certificate the Trust could not have legally delivered possession; this supported the conclusion that possession was not lawfully deliverable.
CC No.398/2015 (Sipra Thomes v. Bengal Unitech Universal Infrastructure Pvt. Ltd.), decided 19.05.2016 — relied upon in Kaushik Guhas case Principles about delay in possession, the need for evidence to justify delay attributable to statutory authorities, and the limits of limitation where possession has not been delivered. Used to reinforce that delay caused by statutory approvals must be proved by contemporaneous correspondence and that prolonged delay (years) cannot be justified by alleged short delays of statutory authorities; supported the view that the cause of action remains until possession is delivered or refusal expressed.
Consumer Case No.1702 of 2016 (Shalabh Nigam v. ORRIS Infrastructure Pvt. Ltd. & Anr), decided 06.05.2019 Allottees have the right to ask for refund if possession is inordinately delayed, particularly beyond one year after the stipulated period. The court cited this decision to support the proposition that allottees may seek refund when possession is inordinately delayed.

Court's Reasoning and Analysis

The court's analysis proceeds in two principal strands: (A) the miscellaneous applications for additional evidence and (B) the substantive appeals on entitlement to refund, interest, and other reliefs.

A. Miscellaneous Applications for Additional Evidence

The appellant sought to place on record documents Ex.OP-1 to Ex.OP-14 by way of additional evidence under Order 41 Rule 27 CPC read with Section 151 CPC. The court heard the application and dismissed it for these reasons (as expressly stated):

  • The complaint before the District Forum was filed on 12.07.2017, whereas the documents sought to be produced relate to the period beyond October 2018–2019 and were created afterwards, apparently to fortify the defence.
  • The documents lacked relevancy to the dispute which is the subject-matter of the appeal, and the photographs appeared to have been prepared later; consequently, they could not be allowed as additional evidence.

B. Substantive Merits — entitlement to refund, interest, completion certificate and limitation

(1) Precedent and approach: The court observed that the merits of these appeals were covered by earlier orders of the Commission involving the same appellant and similar facts (First Appeal Nos. 67/2019 and 191/2019) and thus proceeded in view of those earlier decisions.

(2) Factual findings adopted: The court accepted that the allotments were made after a draw of lots (16.08.2009) and by allotment letters dated 28.01.2010 (Ex.C-16 in the lead case). Clause 7 required construction and development, and payment of instalments, within two to two-and-a-half years and that thereafter possession was to be delivered on executing the agreement. The complainant had paid instalments (last instalment paid on 23.01.2015 in the lead case) and the Trust did not dispute deposit of the sale price.

(3) Completion/Occupation Certificate (PAPRA Section 14): The court held that the opposite party failed to produce any Completion/Occupation Certificate as required under Section 14 of the Punjab Apartment and Property Regulation Act, 1995. The court relied on the National Commission's view in Vision India (First Appeal No.855 of 2018) that legal possession cannot be delivered in the absence of a Completion Certificate issued by the competent authority. Consequently, purported offers of possession prior to production of such certificate were not tenable.

(4) Delay, justification and limitation: The court examined the Trust's contention that delays were attributable to statutory approvals and noted the line of authority requiring a party alleging such delays to place on record specific dates of application and grant of permissions and the correspondence with statutory authorities to show that delay was solely attributable to those authorities. The court accepted the reasoning (cited from earlier cases such as Sipra Thomes and Kaushik Guhas) that prolonged delay measured in years cannot be justified by minor delays in statutory approvals. The court also adopted the principle that the cause of action in such cases is recurrent and subsists until either possession is delivered or the seller refuses/demonstrates inability to deliver, meaning the complaints were not barred where possession had not been delivered or refund sought timely after refusal/loss of hope.

(5) Entitlement to refund and interest: Given failure to complete construction and to deliver possession within the stipulated period, and absent completion certificate, the complainant was entitled to refund of the deposited amount with interest. The District Forum awarded interest at 12% p.a. but from the date of deposit stated in the allotment (28.01.2010); the court modified the date from which interest runs. The court reasoned that instalments were paid on different dates (last instalment on 23.01.2015 in the lead case) and therefore awarding interest from 28.01.2010 was incorrect. The court held the complainant was entitled to interest at 12% p.a. from the respective dates of deposit of each instalment till realization. The court explicitly endorsed the 12% rate on the analogy that the allotment letter itself (Clause 2) envisaged much higher penal rates of interest charged by the Trust for delayed payments, making 12% reasonable by comparison.

(6) Compensation & litigation expenses: The court did not disturb the District Forum's award of compensation (Rs.20,000) and litigation expenses (Rs.7,000); these parts of the impugned order were upheld.

(7) Operational directions: The court directed registry to remit sums deposited by the appellant in the Commission (various sums deposited in each appeal) to the District Forum forthwith; the complainants may approach the District Forum for release of the sums and the District Forum may pass appropriate orders after the expiry of the limitation period in accordance with law.

Holding and Implications

Core Holding: The appeals are PARTLY ALLOWED insofar as the awards for refund of deposited amounts are modified to direct refund with interest at 12% per annum from the respective dates of deposit of each instalment until realization. The remaining portions of the District Forum's orders (including compensation of Rs.20,000 and litigation expenses of Rs.7,000) are upheld. The miscellaneous applications for additional evidence are dismissed.

Direct Consequences and Practical Implications

  • Each complainant is entitled to a refund of the amount paid for their respective flat, together with interest at 12% p.a. running from the actual dates of deposit of the sums by the complainant until realization (not from the allotment date 28.01.2010 where instalments were paid on various dates).
  • The awards of compensation (Rs.20,000) and litigation expenses (Rs.7,000) granted by the District Forum remain intact.
  • The appellant's requests to adduce additional documents (applications under Order 41 Rule 27 CPC read with Section 151 CPC) were dismissed for lack of relevance and for being created after the complaint; such documents were not admitted.
  • The registry is directed to remit amounts already deposited by the appellant in the Commission to the District Forum; complainants may seek release of those amounts from the District Forum after the expiry of limitation period and the District Forum will deal with such applications in accordance with law.
  • No new novel principle of law was announced beyond applying established precedents: possession legally requires a Completion Certificate and prolonged delay gives rise to entitlement to refund (with interest) where possession is not delivered or refund is sought after loss of hope; interest should correspond to dates of actual deposit.

Judgment date and author: Order delivered by Justice Paramjeet Singh Dhaliwal, President, dated December 03, 2019.

Show full summary ...
To access the original judgment, please Sign In or Subscribe.

    Jalandhar Improvement Trust v. Amita Patel

    2) To be referred to the Reporters or not? Yes/No

    3) Whether judgment should be reported in the Digest? Yes/No Present:- For the appellant : Sh.S.C. Pathela, Advocate with Ms. Kavita Arora, Advocate For the respondent : Sh. Munish Goel, Advocate. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT This order will dispose of the above noted four (4) First Appeals filed by appellant-Jalandhar Improvement Trust against the similar orders dated 24.07.2019 passed by District Consumer Disputes First Appeal No.642 of 2019 Redressal Forum, Jalandhar (in short, the District Forum), as the questions of law and facts involved in all the appeals are same. Facts are taken from First Appeal No.642 of 2019.

    2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum. First Appeal No.642 of 2019 Misc. Application No.2083 of 2019 (Addl. Evidence)

    3. This application has been filed by the appellant under Order 41 Rule 27 CPC read with Section 151 CPC for placing on record documents Ex.OP-1 to Ex.OP-14 by way of additional evidence.

    4. Heard.

    5. The complaint before the District Forum was filed on 12.07.2017, whereas the documents sought to be produced by the appellant, by way of additional evidence, pertain to the period beyond October 2018-2019 and, as such, the same have been created afterwards just to make defence. Even otherwise, the said documents have no relevancy with the dispute involved in the complaint, which is the subject matter of the appeal. The photographs also seem to be prepared later on and, as such, the same cannot be allowed to be produced in additional evidence. Therefore, the application filed by the appellant is dismissed. Main Appeal/Facts of Complaint

    6. Brief facts, as averred in the complaint, are that the complainant was allotted LIG flat No.87-A, Ground Floor by the First Appeal No.642 of 2019 opposite party under its 51.5 Acre Development Scheme (Bibi Bhani Complex), Guru Amar Dass Nagar, Jalandhar; vide allotment letter dated 28.01.2010. The complainant paid the entire sale consideration of 7,04,222/- and completed all the requisite formalities. As per Clause-7 of the allotment letter, the construction and development work of the flat/complex were to be completed within 2 years of allotment. However, the opposite party failed to complete the project and to deliver possession of the flat to the complainant within the stipulated period despite receipt of entire sale consideration thereof. Alleging deficiency in service on the part of the opposite party, the complainant approached the District Forum by way of filing the complaint, seeking following directions to it:

    i) to refund the amount of 7,04,222/- deposited by him, along with interest at the rate of 18% per annum from the date of deposit till realization; ii) to pay 50,000/- as compensation/punitive damages under Section 14 (1) (d) of the Act on account of mental agony and harassment suffered by the complainant; and iii) to pay 10,000/-, as litigation expenses. Defence of the Opposite Party

    7. Upon notice, opposite party appeared before the District Forum and filed reply to the complaint, raising preliminary objections that the complaint was not maintainable, in view of Sections 12, 14, 18 and 19 of the Real Estate Regulation and Development Act, 2016. The said Act provides that any person, whose complaint in respect of the matters covered under Sections 12, 14, 18 and 19 thereof is pending First Appeal No.642 of 2019 before the Consumer Forum, State Commission or National Consumer Disputes Redressal Commission on or before the commencement of the Act, it may with the permission of such Forum/ Commission, as the case may be, withdraw such complaint and file an application before the Adjudication Officer under the above said Act. The complainant concealed/suppressed material facts. She herself defaulted by not taking possession of the flat, in question, as per terms and conditions of the allotment letter. She neither wrote any letter to the opposite party, nor ever visited it for taking the possession. Rather, the opposite party wrote letter dated 23.05.2017 to her to take possession. However, instead of taking the possession, she filed the complaint seeking refund of the deposited amount. By doing so, she has spoiled the chance of other needy person in getting the flat, to make profits. The complainant is neither consumer nor has raised any consumer dispute. The complaint is time barred. The amenities provided were not a matter of consumer dispute. There was no deficiency in service on the part of the opposite party. On merits, facts regarding allotment of the flat, in question, in favour of the complainant and deposit of entire sale consideration by her were not disputed. Other similar pleas, as raised in the preliminary objections, were reiterated and denying all other allegations levelled in the complaint, dismissal thereof was prayed. Evidence of the Parties and Finding of the District Forum

    8. In support of her claim, the complainant tendered her own affidavits Ex.C-A and Ex.C-B, along with copies of documents i.e. First Appeal No.642 of 2019 payment receipts Ex.C-1 to Ex.C-11, application form Ex.C-12, acknowledgement receipt Ex.C-13, Managers Cheque Ex.C-14, affidavit Ex.C-15, allotment letter dated 28.01.2010 Ex.C-16.

    9. In support of its defence, the opposite party tendered affidavit of Ms Surinder Kumari Ex.OW-1/A only.

    10. The District Forum, after going through the record and hearing learned counsel for the parties, partly accepted the complaint, vide the impugned order, in the following manner: .therefore, the complaint of the complainant is partly accepted and OP is directed to refund the price of the flat i.e. 7,04,222/- along with interest @ 12% per annum from the date of deposit i.e. 28.01.2010, till realization and further OP is directed to pay a compensation to the complainant for mental agony and harassment caused to the complainant, to the tune of 20,000/- and further directed to pay litigation expenses of 7,000/-. The entire compliance be made within one month from the date of receipt of the copy of order.

    11. Hence, the present appeal. Contentions of the Parties

    12. I have heard the learned counsel for the parties and have gone through the record.

    13. Learned counsel for the appellant/opposite party has vehemently contended that the scheme of the appellant is complete in all respects and the possession of the flat, in question, was already offered to the complainant, vide letter dated 11.05.2017. Large number of allottees are residing in the flats, who have also obtained electric connections from PSPCL. There was slight delay in offering possession, but the same was beyond the control of the opposite party. It has been further contended that the District Forum awarded First Appeal No.642 of 2019 interest from 28.01.2010, whereas the payment of instalments were made by the complainant on different dates. Further, the District Forum awarded exorbitant rate of interest i.e. 12% and it should not be more than 6% per annum. The compensation has also been awarded on higher side. The District Forum failed to consider all these facts and passed the impugned order on the basis of conjectures and surmises and the same is liable to be set aside, by way of allowing the appeal.

    14. Per contra, learned counsel for the respondent/ complainant has vehemently contended that the opposite parties failed to complete the construction of the project/flat, in question, within the stipulated period, despite receipt of entire sale consideration from the complainant. As per Clause 7 of the allotment letter dated 28.01.2010, the construction and development work of the flat/complex surrounding were to be completed within 2 years of allotment i.e. upto July 2012. However, the project was not completed even up to the filing of the complaint. In fact, the construction was stopped and no progress was being made at the site. Therefore, the District Forum, while passing the impugned order, has taken all these facts and circumstances into consideration and passed the well reasoned and speaking order. There is no ground to interfere in the impugned order and the appeal is liable to be dismissed. Consideration of Contentions

    15. I have given my thoughtful consideration to the respective contentions raised by the learned counsel for the parties. First Appeal No.642 of 2019

    16. It needs to be mentioned that the merits of the present appeals are squarely covered by the verdict already given by this Commission in First Appeal No.67 of 2019 (Jalandhar Improvement Trust, Jalandhar v. Jatinder Kaur & Anr.) decided along with bunch of other 4 similar appeals, vide order dated 04.06.2019 as well as First Appeal No.191 of 2019 (Jalandhar Improvement Trust v. Darshan Lal Narula) decided along with bunch of other 6 appeals, vide order dated 04.09.2019. So, I proceed to decide the present appeals, in view of the order passed in the above noted appeals.

    17. Admittedly, the complainant applied for allotment of LIG flat in the above noted scheme of the opposite party and she was declared successful in the draw of lots held on 16.08.2009 and was allotted LIG flat No.87-A, Ground Floor, vide allotment letter dated 28.01.2010, Ex.C-16. As per Clause-7 of the allotment letter, the construction of the flat and development activities were to be completed and the payment of entire instalments towards sale consideration were to be made within two and a half years from the date of allotment and thereafter possession of the flat was to be delivered, after executing agreement with the opposite party. It is also an admitted fact that the complainant had paid all the instalments upto 23.01.2015, as is evident from receipts/cheque Ex.C-1 to Ex.C-11, Ex.C-13 and Ex.C-14. Moreover, the opposite party has also not denied the averment of the complainant regarding deposit of entire sale price, in its reply or appeal. However, the opposite party failed to complete the construction development works at the site within the stipulated period. First Appeal No.642 of 2019 The opposite party, in support of their defence, tendered affidavit of Ms Surinder Kumari, Executive Officer, as Ex.OW-1/A only. The plea of the opposite parties that the construction of the flat, in question, was completed and the complainant was offer possession of the flat, vide letters dated 11.05.2017, is not tenable; as the opposite party was bound to complete the development works and construction of the flat, in question, within 2-1/2 years from the date of issuance of allotment letter dated 28.01.2010 i.e. upto 28.07.2012. Be that as it may, the fact remains that no Completion Certificate, as envisaged under Section 14 of the Punjab Apartment and Property Regulation Act, 1995 (in short, PAPRA) was produced by the opposite party before the District Forum, to prove that the flat, in question, has been completed in all respects. It also needs to be mentioned that the so-called Completion/Occupation Certificate in the shape of letter dated 30.08.2019 has been duly declined to be produced, while dismissing the above said application of the appellant. In the absence of Completion/Occupation Certificate issued by the competent authority, the actual and physical possession of a property cannot be legally delivered. The Honble National Commission in its order dated 13.06.2018 passed in First Appeal No.855 of 2018 (Vision India Realtors Pvt. Ltd. & Anr. v. Sanjeev Malhotra also categorically held that legal possession cannot be delivered in the absence of Completion Certificate by the Competent Authority. It was held in Para No.5 as follows: First Appeal No.642 of 2019

    5. During the course of hearing, it was submitted by the learned counsel for the appellant that the completion certificate in respect of the project was obtained by the appellant on 15.03.2016. A copy of the communication dated 15.03.2016 from Municipal Council, Kharar has been placed on record. It is therefore, evident that the completion certificate having been received only on 15.03.2016, the appellant could not have offered legal possession of the apartment to the complainant at any time before that date. As noted earlier, the amount of Rs.1,81,375/- was demanded on 20.04.2015 and the amount of Rs.2,12,489/- was demanded on 06.02.2016. The complainant was requested to pay the aforesaid amount so that the appellant could offer the possession of the flat. The said offer of possession was meaningless being unlawful as the requisite completion certificate had not been obtained by that date.

    18. There is no evidence on record to prove that the flat, in question, or a part thereof had been got certified by the opposite party from the local/competent authority, so as to deliver its complete possession to the complainant for her use and occupation. By not producing Completion/Occupation Certificate issued by the competent authority, the opposite party committed violation of Section 14 of PAPRA.

    19. Regarding the point of delay in delivery of possession and limitation, the Honble National Commission in its decision in Kaushik Guhas case (supra) relied upon its earlier decision in CC No.398/2015 (Sipra Thomes v. Bengal Unitech Universal Infrastructure Pvt. Ltd.) decided on 19.05.2016, in which it was held in Para No.4 to 6 as under:

    4. The complaints have been resisted by the opposite party on identical ground. Though the booking made by the complainants as well as the Buyers Agreement with them has been admitted, it is alleged that there was delay in grant of statutory approvals and permissions related to infrastructural work such as road, electricity, water and sewerage which were beyond the control of the opposite party. It is further stated in First Appeal No.642 of 2019 the written version filed by the opposite party that in the event of delay, the complainants are entitled only to the compensation agreed in the Buyers Agreement which is Rs. 5/- per sq. feet of the super area per month. Another plea taken by the opposite party is that the complainant is barred by limitation prescribed under section 24A of the Consumer Protection Act.

    5. The first question which arises for consideration in these cases is as to whether the opposite party has been able to justify the delay in construction of the flats which it had agreed to sell to the complainants. Though it is alleged that there was delay in obtaining the approvals and permissions required for infrastructural works such as road, electricity, water and sewerage, there is no evidence to prove that the alleged delay occurred on account of reasons not attributable to or beyond the control of the opposite party. In order to justify the delay on the aforesaid ground, the opposite party was required to disclose the dates on which it applied for the requisite permission and the date on which the said permission was granted. It was also required to place on record the entire correspondence between it and the concerned statutory authority in order to demonstrate that the said delay was attributable solely to the concerned statutory authority and not to any deficiency or defect on its part in seeking such a permission from the concerned statutory authority. Moreover, the opposite party was also required to specify how much was the delay attributable to the time taken by the statutory authorities in granting approvals for infrastructural services. Only then, it could have justified the delay to the extent it was attributable solely to the concerned statutory authority. In this regard, it has to be kept in mind that the delay in these cases is not of just a few months. Here, they were required to deliver the possession by March 2010/September 2011 and about 5/6 years from the possession deadline have already expired. Therefore, even if it is presumed for the sake of arguments that there was delay of a few months on the part of the concerned statutory authorities in granting approvals for infrastructural services, that cannot justify the delay of five - six years.

    6. It is next contended by the learned counsel for the opposite party that the booking having been made way back in the year 2007/2008 and the date stipulated in the Buyers Agreement for delivering possession also having expired more than two years before these complaints were filed, the said complaints are clearly barred by limitation. We however, are unable to accept the contention. It has to be kept in mind that a person books a residential flat for the purpose of having a roof over his head and not for the purpose of claiming refund with compensation at a later date. Therefore, the attempt of the buyer would be to get possession of the residential flat booked First Appeal No.642 of 2019 by him even if there is some delay in obtaining the said possession. Therefore, he would like to wait for the buyer to deliver till the time either the seller refuses to deliver the possession or till he loses all hopes of getting possession and therefore does not want to wait any more for the seller to deliver the possession of the flat. In such a case, the buyer, in our opinion, has a recurrent cause of action till the time either the seller delivers the possession or refuses to deliver possession, or expresses his inability to construct the flat sold by him. The cause of action may also arise earlier if the buyer asks the builder to refund the amount paid by him. In that case, if he does not approach the Consumer Forum within two years of demanding the refund, the claim may become barred by the limitation prescribed in section 24A of the Consumer Protection Act. However, as far as these cases are concerned, considering that the opposite party never refused to deliver possession to the complainant, it would be difficult for us to say that the complaints are barred by limitation.

    20. Therefore, in view of the ratio of the law laid down in the above noted case, since the possession had not been delivered nor the amount has been refunded, so there is continuous cause of action in favour of the complainant. However, the complainant cannot be made to wait for delivery of possession for an indefinite period and her demand for refund of the deposited amount, along with interest was justified, on account of failure of the opposite party to complete the project/flat within the stipulated period, was justifed. The Honble National Commission recently held in Consumer Case No. 1702 of 2016 (Shalabh Nigam v. ORRIS Infrastructure Pvt. Ltd. & Anr.) decided on 06.05.2019 that the allottees have right to ask for refund if the possession is inordinately delayed and particularly beyond one year after stipulated period.

    21. As per Clause-2 of the allotment letter, Ex.C-16, in case of delay in depositing the instalments, the allottee was liable to pay First Appeal No.642 of 2019 interest at the rates of 18%, 20%, 22% and 24% for the first, second, third and fourth month respectively. In such circumstances, when the opposite party itself is charging interest at such heavy rates on account of delay in payment of instalments, then on the same analogy, it is also liable to pay interest on the amount deposited by the complainant, on account of delay in delivery of possession of the flat beyond the agreed period. The District Forum rightly awarded interest at the rate of 12% on the deposited amount, which is much less than the interest rate being charged by the opposite party, as per above Clause.

    22. In view of my above discussion as well as the law laid down in the above noted case, it is clear that the opposite party failed to complete the construction of the flat, in question, and development works at the site within the stipulated period. As such, the complainant has been rightly held entitled to refund of the amount deposited by her, along with interest at the rate of 12% per annum. However, the District Forum lost sight of the fact that the payments of instalments were made by the complainant on different dates and the last instalment was paid by her on 23.01.2015. Therefore, the award of interest from 28.01.2010 is wrong and the same is liable to be modified. The complainant is entitled to the refund of the amount deposited by her, along with interest at the rate of 12% per annum from the respective dates of deposit till realization.

    23. Accordingly, the appeal is partly allowed and the impugned order is modified to the extent that the complainant is entitled to the First Appeal No.642 of 2019 refund of the amount deposited by her, along with interest at the rate of 12% per annum from the respective dates of deposit till realization. The remaining part of the impugned order is upheld.

    24. The appellant had deposited a sum of 25,000/- at the time of filing of the appeal. It deposited another sum of 13,76,051/-, vide receipt dated 08.11.2019, in compliance of order dated 11.10.2019. These amounts, along with interest which has accrued thereon, if any, shall be remitted by the registry to the District Forum forthwith. The respondent/complainant may approach the District Forum for the release of the above amount and the District Forum may pass the appropriate order in this regard after the expiry of limitation period in accordance with law. First Appeal No.643 of 2019 Misc. Application No.2086 of 2019 (Addl. Evidence)

    25. In view of the reasons given in Misc. Application No.2083 of 2019 in First Appeal No.642 of 2019, this application is dismissed. Main Appeal

    26. Similarly, in this case, the complainant was allotted LIG flat No.33-A, Ground Floor, in the above said scheme of the opposite party, vide allotment letter dated 28.01.2010, Ex.C-6. As per Clause-7 of the allotment letter, the construction of the flat and development activities were to be completed and the payment of entire instalments towards sale consideration were to be made within two and a half years from the date of allotment and thereafter possession of the flat was to be delivered, after executing agreement with the opposite party. First Appeal No.642 of 2019 The complainant paid the entire price of the said flat i.e. 6,26,422/- to the opposite party and this fact has not been specifically denied by the opposite party in its reply or appeal. However, the opposite party failed to complete the construction and to deliver possession of the flat to the complainant within the stipulated period. Other averments are similar to that of the complaint, involved in First Appeal No.642 of 2019. Similar prayer has been made. The opposite party filed reply on the lines of its reply, as given in First Appeal No.642 of 2019. Similar documents have been filed and similar arguments have been raised by the parties.

    27. The District Forum, after going through the record and hearing learned counsel for the parties, partly accepted the complaint, vide impugned order dated 24.07.2019, in the following manner: therefore, the complaint of the complainant is partly accepted and OP is directed to refund the price of the flat i.e. 6,26,422/- along with interest @ 12% per annum from the date of deposit i.e. 28.01.2010, till realization and further OP is directed to pay a compensation to the complainant for mental agony and harassment caused to the complainant, to the tune of 20,000/- and further directed to pay litigation expenses of 7,000/-. The entire compliance be made within one month from the date of receipt of the copy of order.

    28. Hence, this appeal by the appellant/opposite party.

    29. In view of the reasons and discussion held in First Appeal No.642 of 2019, this appeal is partly allowed and the impugned order is modified to the extent that the complainant is entitled to the refund of the amount deposited by him, along with interest at the rate of 12% per First Appeal No.642 of 2019 annum from the respective dates of deposit till realization. The remaining part of the impugned order is upheld.

    30. The appellant had deposited a sum of 25,000/- at the time of filing of the appeal. It deposited another sum of 11,35,989/-, vide receipt dated 08.11.2019, in compliance of order dated 11.10.2019. These amounts, along with interest which has accrued thereon, if any, shall be remitted by the registry to the District Forum forthwith. The respondent/complainant may approach the District Forum for the release of the above amount and the District Forum may pass the appropriate order in this regard after the expiry of limitation period in accordance with law. First Appeal No.644 of 2019 Misc. Application No.2089 of 2019 (Addl. Evidence)

    31. In view of the reasons given in Misc. Application No.2083 of 2019 in First Appeal No.642 of 2019, this application is dismissed. Main Appeal

    32. Similarly, in this case, the complainant was allotted LIG flat No.54-A, Ground Floor, in the above said scheme of the opposite party, vide allotment letter dated 28.01.2010, Ex.C-12. As per Clause-

    7 of the allotment letter, the construction of the flat and development activities were to be completed and the payment of entire instalments towards sale consideration were to be made within two and a half years from the date of allotment and thereafter possession of the flat was to be delivered, after executing agreement with the opposite party. The complainant paid the entire price of the said flat i.e. 6,24,177/- to First Appeal No.642 of 2019 the opposite party and this fact has been admitted by the opposite party in its reply. However, the opposite party failed to complete the construction and to deliver possession of the flat to the complainant within the stipulated period. Other averments are similar to that of the complaint, involved in First Appeal No.642 of 2019. Similar prayer has been made. The opposite party filed reply on the lines of its reply, as given in First Appeal No.642 of 2019. Similar documents have been filed and similar arguments have been raised by the parties.

    33. The District Forum, after going through the record and hearing learned counsel for the parties, partly accepted the complaint, vide impugned order dated 24.07.2019, in the following manner: therefore, the complaint of the complainant is partly accepted and OP is directed to refund the price of the flat i.e. 6,24,177/- along with interest @ 12% per annum from the date of deposit i.e. 28.01.2010, till realization and further OP is directed to pay a compensation to the complainant for mental agony and harassment caused to the complainant, to the tune of 20,000/- and further directed to pay litigation expenses of 7,000/-. The entire compliance be made within one month from the date of receipt of the copy of order.

    34. Hence, this appeal by the appellant/opposite party.

    35. In view of the reasons and discussion held in First Appeal No.642 of 2019, this appeal is partly allowed and the impugned order is modified to the extent that the complainant is entitled to the refund of the amount deposited by her, along with interest at the rate of 12% per annum from the respective dates of deposit till realization. The remaining part of the impugned order is upheld. First Appeal No.642 of 2019

    36. The appellant had deposited a sum of 25,000/- at the time of filing of the appeal. It deposited another sum of 13,66,542/-, vide receipt dated 08.11.2019, in compliance of order dated 11.10.2019. These amounts, along with interest which has accrued thereon, if any, shall be remitted by the registry to the District Forum forthwith. The respondent/complainant may approach the District Forum for the release of the above amount and the District Forum may pass the appropriate order in this regard after the expiry of limitation period in accordance with law. First Appeal No.645 of 2019 Misc. Application No.2092 of 2019 (Addl. Evidence)

    37. In view of the reasons given in Misc. Application No.2083 of 2019 in First Appeal No.642 of 2019, this application is dismissed. Main Appeal

    38. Similarly, in this case, the complainant was allotted LIG flat No.90-A, Ground Floor, in the above said scheme of the opposite party, vide allotment letter dated 28.01.2010, Ex.C-1. As per Clause-7 of the allotment letter, the construction of the flat and development activities were to be completed and the payment of entire instalments towards sale consideration were to be made within two and a half years from the date of allotment and thereafter possession of the flat was to be delivered, after executing agreement with the opposite party. The complainant paid the entire price of the said flat i.e. 5,87,942/- to the opposite party and this fact has not been specifically denied by the opposite party in its reply or appeal. However, the opposite party failed First Appeal No.642 of 2019 to complete the construction and to deliver possession of the flat to the complainant within the stipulated period. Other averments are similar to that of the complaint, involved in First Appeal No.642 of 2019. Similar prayer has been made. The opposite party filed reply on the lines of its reply, as given in First Appeal No.642 of 2019. Similar documents have been filed and similar arguments have been raised by the parties.

    39. The District Forum, after going through the record and hearing learned counsel for the parties, partly accepted the complaint, vide impugned order dated 24.07.2019, in the following manner: therefore, the complaint of the complainant is partly accepted and OP is directed to refund the price of the flat i.e. 5,87,942/- along with interest @ 12% per annum from the date of deposit i.e. 28.01.2010, till realization and further OP is directed to pay a compensation to the complainant for mental agony and harassment caused to the complainant, to the tune of 20,000/- and further directed to pay litigation expenses of 7,000/-. The entire compliance be made within one month from the date of receipt of the copy of order.

    40. Hence, this appeal by the appellant/opposite party.

    41. In view of the reasons and discussion held in First Appeal No.642 of 2019, this appeal is partly allowed and the impugned order is modified to the extent that the complainant is entitled to the refund of the amount deposited by him, along with interest at the rate of 12% per annum from the respective dates of deposit till realization. The remaining part of the impugned order is upheld. First Appeal No.642 of 2019

    42. The appellant had deposited a sum of 25,000/- at the time of filing of the appeal. It deposited another sum of 12,30,279/-, vide receipt dated 08.11.2019, in compliance of order dated 11.10.2019. These amounts, along with interest which has accrued thereon, if any, shall be remitted by the registry to the District Forum forthwith. The respondent/complainant may approach the District Forum for the release of the above amount and the District Forum may pass the appropriate order in this regard after the expiry of limitation period in accordance with law. (JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT December 03, 2019. (Gurmeet S)

    Use AI to get other relevant cases.
    Try AI Pro free for 7 days Upgrade to AI Pro

    Comments

    Jalandhar Improvement Trust v. Amita Patel
    (Dec 3, 2019)