These appeals have been filed by the appellant Ansal Lotus Melange Project Pvt. Ltd. against the separate orders dated 12.11.2013 passed in consumer complaint Nos.45 & 46 of 2013 by the State Consumer Disputes Redressal Commission, UT Chandigarh, (in short ‘the State Commission’). 

2.      As the facts and the decision of the State Commission are similar in both the cases, both the appeals are decided by a common order.  The appeal No.867 of 2013 will be taken as lead case for discussion purpose.  The brief facts of the case are that in the year 2007, appellant conceived a residential project in the name of Orchard County in Sector 115, Kharar Landran Road, Mohali.  On 16.11.2010, the respondents applied for allotment of an apartment and made initial payment of Rs.6,67,650/- vide Cheque No.214587.  The said cheque was dishonoured upon presentation and the booking was cancelled.  On 04.12.2010, respondents issued a fresh cheque and the booking was restored.  On 05.08.2011, respondents were informed that due to lack of payment from the respondents, the down payment plan was changed to construction linked plan.  The said letter was received back undelivered.  On 25.08.2011, the aforesaid information was transmitted to the respondents via email.  The said email also required the respondents to make a payment of Rs.30,92,175/-.  On 28.11.2011, the Municipal Council Kharar advised the Chief Town Planner, Chandigarh to grant partial completion certificate to the appellant.  On 18.01.2012, the allotment letter was executed between the parties which contained the detailed terms and conditions.  The said allotment letter was signed by the respondents.  On 18.02.2012 a demand of Rs.28,99,955/- was raised and the respondents paid a sum of Rs.8,70,000/-.  This was followed by another payment of Rs.27,55,000/- on 15.03.2012 making the total amount paid by the respondents to Rs.42,85,765/-.  On 24.03.2012 vide possession letter of even date, the possession of the apartment was offered to the respondents.  The said letter was received back unserved.  On 09.04.2012, the possession was offered by email.  On 07.02.2013, appellant demanded all pending dues from the respondents.  On 30.3.2013, the marketing department of the appellant shared current photographs of the project with the respondents vide email.  On 04.04.2013, despite the fact that the possession was offered on 09.04.2012 and that the respondents had failed to either take the possession or to pay the pending dues, the appellant was forced to initiate cancellation proceedings and to issue cancellation notice.  On 03.05.2013, respondents replied to the cancellation notice.  On 24.06.2013, respondents filed a consumer complaint being complaint No.45 of 2013 before the State Commission.   On 18.09.2013, the appellant filed its written version to the aforesaid complainant.  On 02.10.2013, rejoinder filed by the respondents to the written version of the appellant.  The State Commission passed the following order on 12.11.2013:-

“”i.    The opposite parties are, jointly and severally directed to refund the amount of Rs.42,92,650/- to the complainants, alongwith interest @10% per annum, from the respective dates of deposits, within two months, from the date of receipt of a certified copy of this order.

ii.     The opposite parties are further, jointly and severally directed to pay compensation, in the sum of Rs.1,00,000/- for causing mental agony and physical harassment, to the complainants, within two months from the date of receipt of a certified copy of this order.

iii.    Housing Development Finance Corporation Limited (HDFC) shall have the first charge on the amount to be refunded, to the complainants by the opposite parties, to the extent, the amount is due to it, against the complainants as it (HDFC) advanced loan in their (complainants) favour for part payment of the price of flat, in question, under the Tripartite Agreement dated 19.2.2012.

iv     The opposite parties are further, jointly and severally directed to pay cost of litigation to the tune of Rs.10,000/- to the complainants.

v.     In case the payment of amounts, mentioned in Clauses (i) and (ii) is not made, within the stipulated period, then the opposite parties shall be liable to pay the amount mentioned in Clause (i) within interest @12% P.a., instead of 10% P.A. from the respective dates of deposits till realization and interest @12% P.A., on the amount of compensation, mentioned in Clause (ii) from the date of filing the complaint, till realisation, besides payment of costs, to the tune of Rs.10,000/-.”

3.      Hence the present appeal.

4.      Heard the learned counsel for both the parties and perused the record.  Learned counsel for the appellants stated that the cheque by which the original booking was made got dishonoured and therefore, the booking was cancelled.  However, when the complainant again deposited the booking amount, the booking was revived, but for a changed unit.  After getting the partial occupancy certificate, possession was offered to the complainant subject to clearing of dues.  However, the complainant did not take the possession.  Learned counsel stated that as per para 10 of the allotment letter, the appellant Company is entitled to make additions and other changes in the project.  Accordingly, two additional towers and floors were increased.  The complainant has also signed this allotment letter, therefore, the complainant is bound by the conditions mentioned in the allotment letter.  The complainant has wrongly alleged that the possession was not offered, whereas the fact is that the possession was already offered.  However, the complainant did not clear the dues and therefore, the possession could not be granted to the complainant.  The project is already in an inhabitable condition and more than 50 families are already living in that project.  The completion certificate was already obtained before issuing the possession letter to the complainant and therefore, no deficiency can be attributed to the appellants/opposite parties.  If the building is complete and the completion certificate has been issued by the competent authority then there should be no question of refund to the allottee and if the allottee wants refund then opposite parties should be allowed to forfeit the earnest money.  However, the State Commission has simply allowed the refund of the deposited amount along with interest @10% per annum.

5.      It was further stated by the learned counsel for the appellants that Clause 9 of the allotment letter dated 18.01.2012 clearly states that the plan is tentative and the company may vary conditions or the plan.  As the allotment letter was signed by the complainant, so he has consented to this Clause and therefore, the company is entitled to make changes in the plan and no deficiency can be attributed to the Company.  To explain, learned counsel read out Clause 9 which reads as follows:

“9.  That the Apartment allottee has accepted the plans, designs, specifications shown to him which are tentative and are kept at the company’s office and agrees that Company may effect such variations, additions, alterations, deletion and modifications therein as it may, in its sole discretion deemed appropriate and fit or as may be done by any competent authority and the apartment allottee hereby gives his consent to such variation/addition/alteration/deletion and modification.  The Apartment Allottee has also accepted the specifications and information as to the material to be used and features in the construction of apartment as set out in the brochure/in the annexure to his agreement, which are also tentative and the company may make such variations and modifications therein, as it may, in its sole discretion, deem fit and proper or may be done by any competent authority and the apartment allottee gives his consent to such variations and modifications.”

6.      It was further argued that under Clause 16 of this allotment letter the complainant has given his consent for not raising any issue in respect of further construction by the opposite parties.  This Clause reads as under:-

“16.         THAT the Apartment Allottee agrees and undertakes that he shall after taking possession of the said premises or at any time before or thereafter, have no right to object to the Company constructing or continuing with the construction of the other building (s) adjoining, put up additional floors to the Building, or otherwise in the site earmarked for Group Housing in the said colony.”

7.      On the basis of these Clauses, the learned counsel argued that appellants had decided to change the building and construction plan and the complainant was bound by the condition that he cannot raise objection for further construction being carried out or to be carried out by the opposite parties.  It was further argued by learned counsel that the allotment does not promise any specific date for completion of the building or for handing over the possession and therefore, it cannot be said that there has been delay in completion of the project or delay in handing over the possession.  The fact is that the building is ready and the complainant does not want to take possession due to slump in real estate market and the State Commission has wrongly allowed the refund of the deposited amount. 

8.      On the other hand, learned counsel for the respondents/complainants stated that the complainants applied for East facing flat bearing No.901 in Tower No.8 on the 9^th floor for better living and paid about Rs.42,85,765/-.  The possession was offered just to avoid payment of compensation in the form of interest for delayed possession.  The first and foremost deficiency on the part of the opposite parties is that no firm date was given for completion of the construction and for handing over of the possession.  Even the full occupancy certificate has not been obtained by the opposite parties and the opposite parties have only filed a partial completion certificate.  In such position when the project has been inordinately delayed and even the full completion certificate has not been obtained, the complainant is not obliged to take the possession of the flat, as the building is not completely ready. The State Commission has objectively dealt with Clause 9 of the Allotment allegedly giving power to opposite parties to make changes in the construction plan.  The learned counsel pointed out the following observations of the State Commission:-

“13. The next question, which arises for consideration, is, as to whether, the complainants were right in seeking refund of account of variation, addition, alteration, deletion and modification in the project.  No doubt, as per Clause 9 of the allotment letter (Annexure C-3), the opposite parties could affect variation, addition, alteration, deletion and modification in the project at their own discretion.  Apparently, this would not mean that the opposite parties could indulge in deviations detrimental to the interests of the complainants.  In fact, in Clause 10, it is also mentioned, “That the Company shall under normal conditions, complete the construction of “Orchard Country” as per the said plans and specifications seen and accepted by the Apartment Allottee (with additional floors for Apartments if permissible) with such additions, deletions, alterations, modifications in the layout, building plans”.  Again in Clause 10, it is provided “if for any reason the company is not in a position to allot the property applied for, the company, at its sole discretion, shall consider for any alternative property or refund the amount deposited with simple interest @10% per annum.”

14.  In the instant case, the complainants have pleaded that 240 flats have been added.  As admitted by the opposite parties, they have added 144 flats to two towers.  There is force in the argument of the Counsel for the complainants, that increase in the number of flats, would burden the use of common facilities.  Though the opposite parties have pleaded that common facilities are being augmented, but their plea is without any cogent documentary evidence.  The opposite parties have also not come up with any satisfactory explanation, to controvert the contention of the complainants, that raising of two towers namely Tulip and Carnation, on the eastern side of the flat allotted to the complainants, hindered the scenic view of the hills and also blocked the direct sunlight.”

9.      It was further argued by the learned counsel for the complainant that every consumer has a limited capacity to pay and accordingly he books the flat. In the present case, the super area has been increased by 137 sq. ft. for which additional demands were made. The complainant is not ready to pay any extra amount for this increased super area as this additional area is of no benefit to the complainant.  The capacity of the complainant to pay is limited and therefore, if the complainant cannot pay for the increased area, the only remedy available to the complainant is to get refund.  After considering all these aspects and contentions raised by the opposite parties, the State Commission has passed a judicious order for the refund of the deposited amount in the facts and circumstances of the case.  The opposite parties should not have any objection for refund of the deposited amount as the opposite parties are able to sell the property definitely at a higher rate due to lapse of time.

10.    I have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties and have examined the material on record.  The first and foremost deficiency of the appellants/opposite parties is that no firm period has been given for completing the construction or for handing over the possession.  This is not only clear violation of the law, but, it is also an unfair trade practice.  The flat was booked in the year 2010 and the allotment letter was issued on 18.01.2012.  It has been alleged that the possession offer letter was issued on 09.04.2012 after receiving the partial completion certificate on 07.03.2012.  The complaint was filed on the basis of fact that there were many changes in the construction plan, which were detrimental to the interests of the complainants.  Clearly, if the allottee is not satisfied with the changes made in the project and feels that he is adversely affected by these changes, he has right to seek refund, even if he has given a consent in the allotment letter that opposite parties are entitled to make changes in the plan and to make construction accordingly because the consent was given without knowing full implications of the intended changes that would be made by the opposite parties as the changes were not disclosed to the complainant.  In this regard, I agree with the observations of the State Commission in para 13 and 14 of the impugned order.  Thus, I find that there is no error in the order passed by the State Commission so far as it relates to refund of the deposited amount along with 10% p.a. interest.  There is a provision for refund of the deposited amount along with 10% p.a. in the agreement itself and therefore, the State Commission has not awarded any excessive interest on the refund amount.  The State Commission has also awarded a compensation of Rs.1,00,000/-, which is not justified as the interest includes all kinds of compensations into it.

11.    Based on the above discussion, I do not find any error in the impugned order of the State Commission so far as it relates to refund of the deposited amount along with 10% interest from the date of respective deposits till actual payment.  However, the order of the State Commission in respect of award of compensation of Rs.1,00,000/- is set aside.   Similarly, the order relating to payment of 12% p.a. interest after two months of order of the State Commission is also set aside.  The interest of 10% p.a. shall be valid till the date of actual refund as per the order of the State Commission.  With these two modifications, the order of the State Commission is upheld.  Six weeks’ time is granted to the appellants/opposite parties to comply with the order of the State Commission as modified by this order.  Accordingly, the First Appeal Nos.867 & 868 of 2013 stand disposed of in terms of the above order.