Consumer Protection Act, 1986: Housing – Apartment Buyers Agreement – Apartment not handed over in time by developer – Allottee filed consumer complaint seeking a direction to the developer to provide the apartment, compliant with all the requirements mentioned in the ABA, within six months of the complaint, i.e., by 3 November 2017 – Along with this, the allottee sought compensation for delayed possession, calculated at the rate of 18 per cent p.a. on the amount deposited with the developer from the date on which actual possession was to be delivered (March 2015) and in case developer failed to deliver the possession of the apartment within six months, refund of the principal amount of Rs 2,23,91,480, with interest at 18 per cent p.a. from the date the amount was paid by the allottee to the developer– Inspite of interim direction of NCDRC to handover possession, the same was not given – On 17 May 2018, allottee filed IA bringing on record several photographs showing that the apartment was not ready and was not in a habitable condition – On 25 September 2018, developer sent email that due to limited work force, the finishing work was slow – By impugned judgment, the NCDRC held that the developer did not contest that an amount of Rs 2,23,91,480 was paid by the allottee – It then noted that the allottee would be considered as a consumer within the meaning of s.2(1)(d) of the Act since the developer had not brought on record anything to prove that the allottee was indulging in the business of buying/selling apartments – NCDRC ordered a refund of Rs 2,23,91,480 with simple interest at the rate of 10.25 per cent per annum, which it noted was the rate of interest payable under the Real Estate (Regulation and Development) Act 2016 in Haryana in respect of cases where refund is made to flat buyers due to the delay of the developer in handing over possession – Hence instant appeal – Held: It is apparent that the developer was not in a position to comply with the interim order of the NCDRC for the handing over of possession – Though the interim direction was issued on 16 February 2018, the email of the developer dated 25 September 2018 indicated that possession could not be handed over due to the absence of an adequate work force at the site – Thus, it is evident that the developer was not in a position to hand over possession of the apartment even after the interim order – In this backdrop, the order of the NCDRC for the grant of refund at the appropriate rate of interest cannot be faulted – In another set of appeals, the finding of fact recorded by the NCDRC in its impugned judgment dated 22 November 2021 was that the amenities which were promised by the developerwere not provided in the Project and the apartment – In view of the matter, the direction for the refund of the amount paid together with interest, cannot be faulted – The developer made a solemn representation to the flat buyer of the amenities which would be provided in the flat and the Project – A breach of this representation is actionable at law. Dismissing the appeals, the Court
HELD: 1. In the present case, since the Fire NOC was only granted on 25 September 2013, the period for delivery of possession of the apartment (the forty-two months period, along with the 180 days’ grace period) would end on 24 September 2017. The appellant issued a notice of possession to the first respondent on 25 September 2017. However, even if this submission of the appellant is accepted, it is apparent that the appellant was not in a position to comply with the interim order of the NCDRC for the handing over of possession. Though the interim direction was issued on 16 February 2018, the email of the appellant dated 25 September 2018 indicates that possession could not be handed over due to the absence of an adequate work force at the site. Thus, it is evident that the appellant was not in a position to hand over possession of the apartment even after the interim order. In this backdrop, the order of the NCDRC for the grant of refund at the appropriate rate of interest cannot be faulted. [Paras 20, 21][423-G-H; 424-A-C]
IREO Grace Realtech Private Limitedv.Abhishek
Khanna and Others (2021) 3 SCC 241 – distinguished.
2.1 In Civil Appeal No 268 of 2022, the first respondent was allotted an apartment in Tower D of the Project. The ABA was signed on 6 September 2013. The appellant issued a notice of possession on 6 September 2016. The first respondent filed a consumer complaint before the NCDRC on 14 February 2017 seeking a refund of the amount paid with interest at 18 per cent per annum or the possession of the apartment, if the appellant was willing to complete the apartment in accordance with the specifications in the ABA in a time bound manner and not charge any further amount over and above the sale consideration. By its judgment dated 22 November 2021, which takes note of the decision of this Court in Abhishek Khanna, the NCDRC directed the appellant to refund the principal amount to the first respondent with interest at the rate of 10.25 per cent per annum. [Para 23][424-D-F]
2.2 The finding of fact which has been recorded by the NCDRC in its impugned judgment dated 22 November 2021 is that the amenities which were promised by the appellant have not been provided in the Project and the apartment. In the course of discussion, the NCDRC has, in fact, tabulated the amenities which were to be but have not been provided. In this view of the matter, the direction for the refund of the amount paid together with interest, cannot be faulted. The appellant made a solemn representation to the flat buyer of the amenities which would be provided in the flat and the Project. A breach of this representation is actionable at law. [Para 25][424-G-H; 425-A-B] Siddharth Vasisht v. lREO Pvt. Ltd. and Ors. Consumer Case No 1062 of 2018; Shamshul Hoda Khan v. IREO Victory Valley Pvt. Ltd. and Anr. Consumer Case No 2110 of 2016 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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