M/S. PRIMOS BUILDERS vs ANANT SHRIPAD KAMAT

This revision petition has been filed by the petitioner against the order dated 3.7.2009 passed by the State Consumer Disputes Redressal Commission, Panaji, Goa (in short, ''the State Commission'') in Appeal No. 39 of 2003 - M/s. Primos Builders & Ors.Vs. Anant Shripad Kamat by which, while dismissing appeal, order of District Forum allowing complaint was upheld, but liability of OP No. 2 was shifted on OP No. 1.

Brief facts of the case are that Complainant/Respondent entered into an agreement with OP/petitioner for construction of flat at agreed price of Rs.2,08,000/- and possession was to be delivered on 31.12.1996. It was further submitted that complainant entered the flat on 23.08.1997 and found many defects and deficiencies and occupancy certificate was also not given to him. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint and submitted that complainant did not make payment in time and there was delay in payment at every stage. It was further submitted that as amounts were not paid as per agreement, possession was not delivered to the complainant and possession in August was given only for performing Puja and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed OP to pay interest @ 18% p.a. on Rs.1,73,000/- for the period from 1.1.1997 to 12.3.1997 and interest on Rs.2,04,000/- for a period from 13.3.1997 to 22.8.1997 subject to payment of Rs.4,000/- by complainant to OP. Appeal filed by OP was dismissed by learned State Commission vide impugned order and liability was fastened only on the petitioner as other partner was no more partner of the firm against which, this revision petition has been filed.

Heard learned Counsel for the parties and perused record.

Learned Counsel for the petitioner submitted that inspite of proof of delay in payment, learned District Forum committed error in allowing interest and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

It is not disputed that parties entered into agreement for construction of flat on 9.1.1995 and possession of flat was to be given by 31.12.1996 subject to payment of due amount. Learned Counsel for the petitioner submitted that complainant failed to make payment as per agreement. Perusal of agreement reveals that payments were to be made as per stage of construction. Learned Counsel for the petitioner submitted that payment was to be made by complainant without any notice from OP. Perusal of agreement reveals that no specific date has been given for completion of stage of construction and no notice intimating completion of stage has been given by OP to the complainant. Learned State Commission rightly observed that complainant cannot dream when various stages were completed. Learned District Forum and learned State Commission has rightly given due weightage to inspection reports made by Panel Valuer for grant of loan by LIC and in such circumstances, there is no reason to disbelieve reports of Valuer of LIC and it can be presumed that work was incomplete to the extent mentioned in inspection reports on various dates. In such circumstances, it cannot be inferred that there was no delay in payment except payment of balance Rs.4,000/-.

As far occupancy certificate is concerned, learned Counsel for the petitioner has placed on record occupancy certificate dated 2.9.1996 issued by Village Panchyat Corlim, but in response to notices given by complainant, OP has not intimated that occupancy certificate had already been received on 2.9.1996 and in such circumstances, on the basis of aforesaid occupancy certificate it cannot be presumed that construction was complete in all respect before 2.9.1996.

Learned District Forum allowed 18% p.a. interest for the delayed period and learned State Commission also upheld grant of interest, but learned Counsel for the petitioner has placed reliance on judgment of Hon''ble Apex Court in (2007) 6 SCC 711 - Bangalore Development Authority Vs. Syndicate Bank in which it was observed as under: "12. ... The Commission also assumed that mere delay automatically meant deficiency in service and in all such cases, the allottee will be entitled to interest at 18% per annum from the date of payment till date of delivery by relying on its decision in HUDA vs. Darsh Kumar. The decision of the Commission in HUDA vs. Darsh Kumar was held to be unsustainable by this Court, on appeal in HUDA vs. Darsh Kumar [2005 (9) SCC 449]. This Court held that there cannot be uniform award of interest at 18% per annum in all cases and that in cases of complaints of deficiency in service by a development authority relating to allotment of plots/flats, the principles laid down in Balbir Singh (Supra) should be applied. Therefore, the decision of the Commission under appeal, based on its earlier decision in Darsh Kumar, cannot be sustained.

As already noticed, where the grievance is one of delay in delivery of possession, and the Development Authority delivers the house during the pendency of the complaint at the agreed price, and such delivery is accepted by the allottee-complainant, the question of awarding any interest on the http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8 price paid by him from the date of deposit to date of delivery of possession, does not arise. The allottee who had the benefit of appreciation of price of the house, is not entitled to interest on the price paid. In this case, the 11 houses were delivered in 1997 at the agreed prices (Rs. 5.5 lacs per corner HIG House and Rs.4.75 lacs per other HIG Houses). In view of it, the order of the Commission awarding interest at 18% per annum on the price of the houses is unsustainable and liable to be set aside.

Hon''ble Apex Court observed that on account of delay in delivery of possession allottee is not entitled to interest @ 18% interest as he gets benefits of appreciation of price of the house. In the case in hand, there is nothing on record to show that there was appreciation of price of the flat during the period of depositing amount and receiving possession and in such circumstances, complainant was entitled to some interest, but certainly not 18% p.a. interest. As per Clause 8 of the agreement if builder was unable to give possession, he was bound to return amount with 9% p.a. interest and in such circumstances, complainant who has accepted possession after 7? months he is entitled to interest on aforesaid amount only at the rate of 9% p.a. and to this extent revision petition is to be allowed.

Consequently, revision petition filed by the petitioner is partly allowed and order dated 3.7.2009 passed by the State Commission in Appeal No. 39 of 2003 - M/s. Primos Builders & Ors.Vs. Anant Shripad Kamat and order of District Forum dated 9.6.2003 passed in Complaint No. 118/1999 - Anant Shripad Kamat Vs. M/s. Primos Builders & Ors. is modified and rate of interest is reduced from 18% to 9% and rest of the order is upheld. Parties to bear their own cost.