APPEARED AT THE TIME OF ARGUMENTS For the Petitioner(s) Mr. Sudhir Nandarajog, Sr. Advocate Mr. Vikas Mehta, Advocate Ms. Aditi Mishra, Advocate Mr. Kumar Rachit, Advocate For the Respondent/ Mrs. Bindu Jain, Advocate Complainant PRONOUNCED ON : 7th JANUARY 2014 O R D E R PER DR. B.C. GUPTA, MEMBER These two revision petitions, i.e., RP No. 4890 of 2012, inesh Vittal Hegde versus Runwal Developers Pvt. Ltd.and RP No. 4108 of 2012, unwal Developers Pvt. Ltd. versus Dinesh Hegdehave been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 29.08.2012, passed by the Maharashtra State Consumer Disputes Redressal Commission (for short he State Commission in FA No. A/11/444, inesh Vittal Hegde versus Runwal Developers Pvt. Ltd. vide which while allowing the appeal, the order dated 19.04.2011 passed by the District Consumer Disputes Redressal Forum, Mumbai (suburban), dismissing the consumer complaint in question, was set aside. This single order shall dispose of both these revision petitions and a copy of the same be kept on each file. 2. Brief facts of the case are that complainant Dinesh Vittal Hegde was allotted flat no. 302 in the scheme, Runwal Pride, behind R Mall, LBS Marg, Mulund and he paid Rs.20,000/- as advance deposit for the same. (It has been wrongly mentioned in the impugned order that two flats were purchased as per agreement dated 11.05.2005). This flat was being constructed by the O.P. unwal Developers Pvt. Ltd.and the total price of the flat was Rs.31,66,750/- including maintenance changes for the first eighteen months. The complainant paid further Rs.30,000/- on 16.12.2004 and Rs.1,16,750/- on 15.03.2005 and in this way, a total sum of Rs.1,66,750/- being 5% of the total value of the flat was paid by the complainant to the OP. An agreement of sale was signed between the parties on 11.04.2005, according to which the OP was to complete the construction and hand over the possession of the flat by 31.10.2006. The registration fee was paid on 07.04.2005 and the flat was registered on 16.04.2005. As per the record of the case, demand letters for payment of money were sent by the builder to the complainant from time to time and he kept on making payments as per the demand made in those letters. On 13.04.2008, the OP sent a letter, requesting final payment of Rs.2,89,713/- saying that 100% construction work had been completed. The said payment was also made on 19.10.2008. The case of the complainant is that the OP failed to deliver the possession to him on one pretext or the other, and finally demanded an additional sum of Rs.9,68,510/- as payment of interest vide letter dated 26.11.2009. The possession was given only after the said amount was paid. The case of the OP, on the other hand, is that this flat had been allotted under Advance Disbursement Facility (ADF), according to which after making payment of Rs.1,66,750/-, the remaining amount of Rs.30 lakh was to be paid in one go. As the complainant had opted for booking under the dvance Disbursement Facility(ADF), the builder, therefore, asked them to make the payment of interest of Rs.9.68 lakh, after taking into account the dates of deposit of various instalments from time to time. The District Forum after taking into account the evidence of the parties, dismissed the complaint in question. However, in appeal, the State Commission partly allowed the appeal of the complainant and directed the OP to refund the amount of Rs.9,68,510/- along with interest @9% p.a. from the date of filing the consumer complaint, i.e., 05.06.2010. Against this order, the present revision petition has been made one by the complainant, Dinesh Vittal Hegde, RP No. 4890 / 2012 in which the complainant has demanded the refund of Rs.9,68,510/- with interest @18% p.a. from 6.5.2010 and a compensation of Rs.6,75,000/- for delay in delivering the possession by 18 months, a compensation of Rs.1,50,000/-, refund of Rs.54,000/- paid towards maintenance charges without receiving possession of flat and withdrawal of demand for additional Rs.23,675/- for maintenance from Feb. 2008 to March 2010 and demand of Rs.41,657/- for property tax and legal expenses of Rs.1,50,000/-. The second revision petition no. 4108/2012 has been filed by the Developer/OP, in which it has been demanded that the impugned order dated 29.08.2012 may be set aside. 3. At the time of hearing before us, learned counsel for the OP/Builder argued that the said flat had been booked by the complainant under the dvance Disbursement Facility according to which the money is required to be paid at the initial stage itself and in the process, the allottee is entitled to some discount. In the present case, the complainant has been found to be a persistent defaulter, because he did not make the payment of the entire money in one instalment. The learned counsel further stated that as stated in the agreement dated 11.04.2005, the interest is to be charged @21% p.a., if any payment is delayed beyond a period of 7 days. The complainant had made full payment and the interest also before taking the possession in this case, but later on, he sought refund of the interest deposited, by filing the consumer complaint in question. The complaint had been rightly dismissed by the District Forum and the same order should have been upheld by the State Commission. Learned counsel contended that OP had sent reminders to the complainant from time to time asking him to deposit the necessary amount with them. Copies of these letters were on record. 4. In reply, the learned counsel for complainant, Dinesh Vittal Hegde denied having availed of any ADF facility. He stated that in his ffidavit in evidencein support of his complaint filed before the District Forum, he had clearly denied having opted for Advance Disbursement Facility. He also denied that he was offered concessional rates of Rs.2,650/- per sq. ft. In fact, the market rate in the locality at that time was Rs.2,650/- per sq. ft. only. Learned counsel has further drawn our attention to the letters received from the OP from time to time, informing about the percentage of completion of the project and asking for more money. In these letters, they never asked for the interest component. The payments were made in accordance with the demands raised in these letters. The learned counsel specifically referred to a letter dated 13.04.2008 through which a demand of Rs.2,89,713/- had been made. The total cost of the flat as well as the amount received has been mentioned in the said letter. The balance cost of the flat has been stated to be Rs.1,58,337/- and by adding various charges like the society charges, maintenance charges, development charges, etc., the sum of Rs.2,89,713/- had been demanded. The said sum was also paid to the builder. The complainant sent a letter dated 28.11.2008 to the builder requesting him to deliver him the possession of the flat since he had deposited the entire money, including the payment of Rs.2,89,713/-. The builder did not deliver the possession, although the project had been completed in February 2008; but then all of a sudden, sent a letter on 25.11.2009, asking for the payment of Rs.9,68,510/- as interest charges. In fact, they insisted that the said amount should be paid in cash, but on the insistence of the complainant, they accepted the said amount through cheque. The learned counsel stated that the builder was supposed to deliver the possession by the year 2006 as per the terms of agreement, but the possession was given on 06.05.2010. He stated that interest should rather be given by the builder to the complainant for the late delivery of possession by way of compensation. The learned counsel also referred to the order passed by the Honle Supreme Court in .N. Bharat versus G.D.A.[IV (2008) CPJ 13 (SC)] and ubi (Chandra) Dutta versus United India Insurance Co. Ltd.[2011 (11) SCC (269)] in support of his arguments stating that interest should be paid from the date of the filing of the complaint. 5. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. It is made out from the facts on record that the builder obtained the occupation certificate for the said project in February 2008, but the possession of the flat was given on 06.05.2010, although it has been mentioned in the agreement dated 11.04.2005 that the possession may be given before 31.10.2006. The crucial documents in the case are the letters written by the builder to the complainant, demanding payment of money from time to time. The total cost of the flat has been stated to be Rs.31,66,750/-, out of which 5% amount, i.e., Rs.1,66,750/- was paid at the initial stage, while booking the flat. Later on, there are letters dated 3.3.2005, 09.05.2005, 17.06.2005, 12.07.,2005, 22.07.2005, 10.12.2005, 10.05.2006, 07.11.2006, 06.11.2007, 25.12.2007, 13.04.2008 and 04.11.2008 on record. In none of these letters, there is mention of any amount due to the builder on account of interest components. In one letter dated 03.03.2005, it has been mentioned that it was ADF case and, therefore, 100% payment was due, but in all subsequent letters, there is no mention of any interest component. On the letter dated 13.04.2008, through which final demand of Rs.2,89,713/- was raised, there is no mention of any interest component. In the detailed letter sent by the Builder on 04.11.2008 to the complainant it has been mentioned as follows:- e are pleased to handover the possession of flat No. 302 on 3rd Floor in A wing at Runwal Pride, LBS Marg, Behind R Mall, Mulund (W) Mumbai as we have already obtained Occupation Certificate (OC) dated 14.02.2008 from Mumbai Municipal Corporation 6. A number of other terms and conditions have been mentioned in the said letter, but it has nowhere been stated that any money is outstanding from the complainant on account of interest. It is only through letter dated 25.11.2009 that a demand of Rs.9,68,510/- was raised by the Builder, saying that the said money was payable on account of interest. 7. From the entire factual matrix of the case, it is made out that in accordance with the agreement dated 11.04.2005, executed between the parties, the said flat was booked under the Advanced Disbursement Facility Scheme under which the entire payment was to be made in one single instalment. On the booking form dated 29.11.2004, copy of which is on record, the cost of the flat was first written as Rs.32,25,305/- @Rs.2,699/- per sq. ft., but later on, there was cutting on these figures and the cost of flat has been shown to be Rs.31,66,750/- at a rate of Rs.2,650/- per sq. ft. In the letters dated 17.01.2005 and 3.03.2005 sent by the OP to the complainant, mention has again been made about the ADF case and it has been stated in the letter dated 03.03.2005 that 100% amount is due. However, interestingly, in all subsequent letters, there is no mention of ADF scheme and in all such letters, the progress of the construction of the flat has been intimated and the sum due has been demanded. The letter dated 13.04.2008 says that the total balance amount is Rs.2,89,713/-, out of which the balance cost of the flat is Rs.1,58,337/-. In the letter dated 04.11.2008, vide which the possession was offered, there is no mention of ADF Scheme. These facts give rise to the presumption that either there was some understanding between the parties to charge the amount in instalments and not in one instalment as per the ADF scheme, or the builder/OP inadvertently raised demand as per the progress of the construction without insisting on lump-sum payment. In this kind of situation, when the agreement between the parties mentions about the payment as per ADF scheme, but subsequently, the amounts were demanded and received as per the progress of construction, it shall be appropriate if the complainant is made to pay only 50% of the additional demand of Rs.9,68,510/- raised by the OP and the balance 50% is foregone by the builder/OP. Accordingly, the OP shall refund 50% of the amount of Rs.9,68,510/-, i.e., Rs.4,84,255/- to the complainant alongwith interest @9% p.a. from the date of the receipt of the said amount of Rs.9,68,510/-. 8. Further, the complainant, in his revision petition, has demanded relief for delayed delivery of possession by 18 months for a sum of Rs.6.75 lakh, a compensation of Rs.1.5 lakh, refund of Rs.5,40,000/- paid towards maintenance charges without receiving possession of the flat, order of withdrawal of demand for additional maintenance charges of Rs.23,675/- from Feb. 2008 to March 2010 and withdrawal of demand for property tax of Rs.41,657/- and cost of legal expenses amounting to Rs.1,50,000/-. 9. Looking at the facts and circumstances of the case, we find it reasonable that the Builder should refund the maintenance charges taken from the complainant, i.e., Rs.5,40,000/- and also cancel his demand for additional maintenance charges because the complainant should be required to pay maintenance charges only when the possession of the flat has been given to him. 10. With the above observations, both these revision petitions are partly allowed; the order passed by the State Commission is set aside and the Builder/OP is directed to make payments and cancel demand for additional maintenance charges as stated above. There shall be no order as to costs.