The division judge bench of Justice Aniruddha Bose and Justice Vikram Nath of the apex court in the case of M/S Ashoka investment co. Vs M/S United towers India (Pvt.) Ltd partly allows this appeal and in partial modification of the impugned order of the NCDRC, directs that respondent will refund the amount of Rs.4,95,000/ being the total sale consideration to the appellant along with interest @ 18% per annum.
BRIEF FACTS
The factual matrix of the case is that the appellant applied for the purchase of two flats for the total sale consideration of Rs.4,95,000/. Further, along with that application, the appellant paid Rs. 1,00,000/- for each of the two flats by way of two demand drafts. As per the agreement, the possession was to deliver within a period of 18-21 months under normal circumstances and if there was any default in payment of installments, the builder would be at liberty to insist for payment of the amount due together with interest @ 18% per annum from the date of default till the date of payment on the defaulted amount. Thereafter, the dispute arose and the respondent raised the demand of Rs.1,56,04 with respect to one apartment and Rs.1,62,202/ for the other apartment. However, the possession was not given and when the appellant visited the apartment, the appellant got to know that the possession was transferred to the third party.
The appellant approached the NCDRC. The NCDRC held that the appellant was a consumer as the amendment in the 1986 Act has been brought in 2003 whereby a person who obtains goods for resale or for any commercial purpose was not to be treated as a consumer within the meaning of the definition of consumer provided under Section 2(1)(d)(i) of the 1986 Act. Further, the NCDRC also found fault on the part of both the parties. The appellant not approaching the Commission with clean hands, with much delay and further the respondent conducting himself in a high handed and arbitrary manner. It accordingly disposed of the complaint by directing the respondents to refund the amount along with interest @ 9% till the date of refund/compliance.
ISSUE BEFORE THE COURT
whether the amount as awarded by the NCDRC in the impugned order has been paid to the appellant or not.
COURT’S OBSERVATION
The hon’ble court held that in the fitness of things and in the interest of both the parties considering the nature of agreement made and also their conduct that the order of the NCDRC requires to be modified. The rate of interest awarded is only 9%. Once, we find that under the agreement, in the event of default, the appellant's liability to pay interest on the defaulted amount could go up to 18%, it would be just and proper in the facts of the present case that 18% interest be awarded on the refund amount. The hon’ble court partly allow this appeal and in partial modification of the impugned order of the NCDRC, also direct that respondent will refund the amount of Rs.4,95,000/(four lakhs and ninetyfive thousand) being the total sale consideration to the appellant along with interest @18% per annum w.e.f. 17.01.1995 till the date, it is paid.
CASE NAME- M/S Ashoka investment co. Vs M/S United towers India (Pvt.)
CITATION- CIVIL APPEAL NO(s).4913 of 2015
CORUM- Justice Aniruddha Bose and Justice Vikram Nath
DATE- 11.10.22
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