MAHIMA REAL ESTATE PVT. LTD. & ANR. vs NISHANT KHADARIYA

This first appeal has been filed by opposite parties against the order dated 09-09-2014 of the Rajasthan State Consumer Disputes Redressal Commission (for short, the State Commission).

The short facts of the case are that the complainant/respondent applied on 29-09-2006 for advance registration by paying Rs.3,00,000/- to the appellants. Originally he was booked against Flat No.101 in ''O'' Tower on 10-11-2006. He deposited in total Rs.22,37,637/- with the appellant. Later on the complainant/respondent applied for change of the flat on 26-08-2010 due to his personal problems. He was later allotted flat No.801 in Tower ''N''. His original allotment of flat 101 in ''O'' Tower was cancelled and all the money paid by him was adjusted towards new allotment of flat No.801 in Tower ''N''. The appellant sent intimation of possession to the complainant on 25-03-2013. In the meantime, complainant wanted to get his original flat 101 in ''O'' Tower and he filed a consumer complaint before the State Commission.

The State Commission partly allowed the complaint and passed the following order on 09-09-2014. "The amount of Rs.22,37,637/- deposited by the complainant remained with opponent, therefore, opponent shall on that amount from dated 29-05-2009 to till today 9% annual interest rate calculated and adjust due amount of Rs.1,39,146/- and refund rest extra amount received to the complainant.

Possession of flat No.N-801 be given within two months and adjust amount as aforesaid and refund rest extra amount received to the complainant within two months.

To the complainant Rs.25,000/- for mental agony and expense of complaint Rs.10,000/- shall be given.

Two months time is given to the opponent for the compliance of the order otherwise the complainant shall be entitled to get 18% annual rate interest on all above amounts."

Present appeal has been filed against the above order of the State Commission by the opposite party/appellant on the ground that there was no deficiency in service on the part of the opposite party.

We heard the learned counsel for both the parties and perused the records carefully.

The learned counsel for the petitioner argued that the complainant had himself got the flat changed to N-801 from O-101 due to his personal problems. As per the request of the complainant the flat was changed and new letter of allotment was issued and it was made clear to the complainant that the flat will be ready only in 2013 and then the possession would be given. In fact, the possession intimation was sent on 25-03-2013 but the possession was not taken by the complainant rather, he wanted his original allotted flat 101 in ''O'' Tower which was sold to somebody else.

The learned counsel states that State Commission has rightly ordered that the possession of N-801 be given to the complainant and the petitioner is ready to handover the possession of N-801 since 25-03-2013. If there is any delay on the part of the complainant/respondent, the petitioner is not liable to pay any interest for that period. The State Commission has wrongly ordered interest on the amount of Rs.22,37,637/- since 29-05-2009 till date of order of the State Commission.

The learned counsel for the respondent stated that the complainant changed the flat because N Tower was coming up earlier and it was expected that he will get the possession of N-801 quickly. As the money deposited by the complainant has remained with the petitioner and the possession of the flat has been delayed, petitioner is liable to pay interest as ordered by the State Commission.

We have carefully considered the arguments advanced by both the parties and have gone through the records thoroughly. We find that the petitioner changed the flat from 101 in ''O'' Tower to 801 in Tower ''N'', on the request of the complainant on 26-08-2010. As this was a sort of new booking, the possession was required to be delivered within 30 months as per the agreement between the parties. The petitioner gave the possession intimation to the complainant on 25-03-2013 which was about one month later than the prescribed period. Thus, in our view there is no justification for paying interest from 26-08-2010 till date of order of the State Commission i.e. 09-09-2014. The payment of interest at the rate of 9% per annum on the amount of Rs.22,37,637/- from 29-05-2009 till 26-08-2010 is perfectly justified. The petitioner is also required to pay the charges as per the agreement for delay in possession for about one month as the possession intimation should have been given before 26-02-2013 and it was given on 25-03-2013.

Based on the above discussion, we partly allow the appeal and direct the petitioner to pay interest at the rate of 9% per annum on the amount of Rs.22,37,637/- from 29-05-2009 to 26-08-2010 after adjusting Rs.1,39,146/- as ordered by the State Commission, to the complainant. Order of the State Commission stands modified only to this extent and all other components of the order of the State Commission shall remain valid for compliance by the appellant. This order be complied within 45 days.

No order as to costs for this appeal.