M/S. ABHINAV PROJECTS & ORS. vs AMIT AGARWAL & ORS.

This First Appeal, under Section 19 of the Consumer Protection Act, 1986 (for short "the Act"), by a real estate developer, namely, M/s Abhinav Projects, a Partnership Firm, and its partners, is directed against the order dated 20.10.2016, passed by the State Consumer Disputes Redressal Commission, West Bengal at Kolkata (for short "the State Commission") in Complaint Case No. CC/13/2015. By the impugned order, while accepting the Complaint filed by Respondents No.1 and 2, alleging deficiency in service on the part of the Appellants herein in not delivering the possession of a self-contained flat admeasuring 1183 sq.ft. on the ground floor of the building named as "Panchwati", the State Commission has issued the following directions to the Appellants : "The OPs are jointly and severally directed to execute the Deed of Conveyance and hand over possession including completion certificate in respect of the property as mentioned in the second Schedule of the Agreement for Sale between the parties dated 10.7.2008 within one month from the date of the order on payment of balance consideration amount as per terms of the Agreement. The OP Nos.1 to 5 are also directed to make payment of compensation of 1,00,000/- in favour of the Complainants."

The sole grievance of the Appellants in this Appeal is that while issuing the afore-extracted directions in favour of the Complainants, the State Commission has failed to award any interest to the Appellants on account of delay on the part of the Complainants in deposit of the amounts, due to be paid by them from time to time in terms of the Second Schedule to the Agreement for Sale dated 10.8.2008. Having heard learned counsel appearing for the Appellants, I am of the opinion that there is no substance in the Appeal.

As per the terms of the said agreement, the possession of the flat in question was to be delivered by the Appellants to the Complainants by March 2011 but admittedly, the Completion Certificate in respect thereof was received by the Appellants only in the year 2015 and therefore, there was a delay of almost four years in delivery of possession of the flat. As per the third Schedule to the Agreement for Sale dated 10.8.2008, the Complainants were required to pay a total sum of 24,78,223/- at different stages of construction in 11 instalments, depending on the progress in the construction of the building. Though it is the stand of the Appellants that there were defaults on the part of the Complainants in making payment of the said instalments but being a case of construction linked payment plan, learned counsel appearing for them has not been able to demonstrate on the basis of any evidence that when a particular instalment was due, the stipulated schedule of construction from stage to stage was maintained by the Appellants. In that view of the matter, the Appellants having failed to establish that the Complainants had failed to pay the instalments at a particular level of construction, it cannot be held against the Complainants that they had defaulted in making payments at the relevant stage of construction. Even otherwise, assuming for the sake of arguments that there was some delay in payment of a particular instalment, having regard to the fact that compensation of only a sum of 1,00,000/- has been awarded by the State Commission for the delay of over 4 years in delivery of the possession, the demand of interest by the Appellants is wholly unjustified.

In view of the above, I do not find any material illegality in the impugned order warranting interference. The Appeal fails and is dismissed accordingly.