Aura Infrastructure Pvt. Ltd vs Rajesh Kumar Singhal

IA 12402/2018 (c/delay)

Learned counsel for the Respondent on instructions states that he has no objection if the application for condonation of delay be allowed subject to costs.

In view of the submission, in the interest of justice and for the reasons disclosed in the application, the delay is condoned on payment of costs of Rs. 20,000/-. The costs shall be paid to the Complainant/Respondent within four weeks from today.

Appeal

The present Appeal, under Section 19 of the Consumer Protection Act, 1986 (for short "the Act"), has been filed by the Opposite Party, Aura Infrastructure Private Limited, against the order dated 14.03.2018 in Complaint No.292 of 2011 of the State Consumer Disputes Redressal Commission, Delhi (for short "the State Commission"), filed by the Respondent herein.

The undisputed facts of the case are that the Respondent had booked a flat in one of the projects of M/s Aura Infrastructure Private Limited (for short "the Appellant") and entered into a Flat Buyer's Agreement dated 17.01.2008. The total sale consideration of the flat was Rs. 14,25,000/-. The Complainant had paid a sum of Rs. 13,53,750/- which was 95% of the total sale consideration.

The contention of the Respondent was that he took a loan of Rs. 8,95,000/- from PNB Housing Bank and was paying EMI of Rs. 10,300/- per month. As per the Flat Buyer's Agreement, the possession of the subject flat was to be handed over by April 2009 to the Respondent/Complainant. When the Complainant found that the Appellant had not been able to complete the project as the progress of the construction was not satisfactory, he pointed it out to the Appellant but of no avail. He thereafter, sent a legal notice dated 31.03.2011 asking for refund of the amount of Rs. 35,19,550/-. He had also contended that all along he had been staying in a rented accommodation and paying Rent of Rs.12,000/- per month. Since the subject flat was not handed over to him in time, in the Complaint the prayer made by him was to direct the Appellant to hand over the possession of the subject flat along with compensation of Rs. 21,65,800/- towards harassment and mental agony and also the costs incurred due to deficiency in service on the part of the Appellant and also another relief which the court would deem fit.

In the Written Statement filed by the Appellant, the Appellant has not disputed the fact that the project was to be completed by April 2009 and the possession was to be handed over by that time and that it had failed to do so. They took several pleas to justify its failure to hand over the possession within the stipulated period which includes resignation of one of the Directors and the delay on the part of Registrar of Companies in this matter and that the global recession which led to acute shortage of funds in finance market and the delayed payment by the allottees etc. It is also contended that the State Commission did not have the pecuniary jurisdiction as well as territorial jurisdiction for the reason that the value of the flat was less than Rs. 20,00,000/- and the prayer for compensation of Rs. 21,65,800/-, which has been claimed, has been made with the sole intention to bring the matter within the pecuniary jurisdiction of the State Commission. It is further contended that the Appellant had neither the main office nor the branch office within the territorial jurisdiction of the State Commission as well as the State Commission did not have the territorial jurisdiction. It is also contended that the Complaint was false and fictitious and has been filed with the ulterior motives and hence, deserves to be dismissed.

Parties had led their evidences by way of affidavits.

After hearing the arguments of the learned counsel for the parties, the State Commission allowed the Complaint and issued the following directions:

refund the amount of Rs.13,55,750/- alongwith interest @18% p.a. from the date of its deposit till the date of its realization.

to pay an amount of Rs.3,00,000/- towards compensation for harassment, inconvenience, sadness, frustration and mental agony caused to the complainant.

to pay litigation charges to the tune of Rs.50,000/- to the complainant.

The said order has been challenged before me on the ground that the findings of the State Commission are illegal, based on conjectures and surmises and are contrary to the evidences on record and the settled preposition of law and hence, liable to be dismissed.

It is argued by the Appellant that no finding has been given by the State Commission on the preliminary objection that the State Commission lacked territorial jurisdiction and the pecuniary jurisdiction. It is further contended that the State Commission has awarded a compensation of Rs. 41,00,000/- on the amount of Rs. 13,53,750/- which was deposited by the Respondent with it and this is highly exaggerated compensation and liable to be set aside. Reliance is placed on "Fortune Infrastructure And Ors. Vs. Trevor D'lima And Ors., Civil Appeal No.s3533-3534 of 2017 decided on 12.03.2018."

Learned Counsel for the Respondent has argued that under the Flat Buyer's Agreement, the Appellant has made itself entitled to interest @ 20% per annum on the delayed payment and the said Agreement is silent about the liability of the Appellant in case of default on its part. It is argued that however subsequently, the Appellant had issued a notice to all the flat buyers wherein it had stated that on account of delay in completion of project it would be paying Rs. 5/- per sq.ft. of compensation on their flats. It is further argued that the Respondent had not only paid the EMI but is also spending money on the rent which he had been paying as he had been all along staying in a rental accommodation on account of failure of the Appellant to hand over the possession of the flat. It is further argued that the payment had been directly made by the Bank to the Appellant from the loan account of the Respondent and therefore, the Appellant was very well aware that the part of the money as towards the cost of the construction had been borne by the Respondent by taking loan from the Bank. It is further contended that the pecuniary jurisdiction has to be decided on the basis of averments in the Complaint and in the Complaint, the Complainant had clearly stated that he is entitled to a compensation of Rs.21,65,800/- along with the flat and the cost of the flat shall also be included in the amount of compensation while calculating the pecuniary jurisdiction. It is also argued that the plea of the Appellant that the State Commission did not have the territorial jurisdiction since the Appellant did not have either the branch office or the main office within its territorial jurisdiction is a false plea and this fact is clear from the Flat Buyer's Agreement wherein the Appellant had given their registered office address as 78-B, Group D-2, Janta Flats, Kondli, Gharoli, Mayur Vihar, Delhi-96 and hence, this contention and argument regarding territorial urisdiction is false and mischievous and is liable to be dismissed. It is submitted that the findings of the State Commission in the impugned order are based on evidences on record and therefore, the Appeal is liable to be dismissed with costs.

I have given thoughtful consideration to the rival contentions and have perused the relevant records.

My findings are as under:

Admittedly, the Respondent had booked a flat with the Appellant and entered into a Flat Buyer's Agreement dated 17.01.2008 and had paid 95% of the sale consideration price totalling to Rs.13,53,750/-. The total consideration price of the flat was Rs.14,25,000/-. Also from the evidences on record, it is clear that till the disposal of the Complaint, the project was not complete and the Appellant was not in a position to offer the possession of the subject flat to the Respondent. The only option before the State Commission was to seek the refund of the deposited amount and accordingly, the said order has been passed. There is no illegality and infirmity in the said order since this part of the order is based on the facts proved on record.

The argument of learned Counsel for the Appellant that the State Commission had no territorial jurisdiction since the Appellant did not have any office in the territorial jurisdiction of the State Commission, is mischievous and false and contrary to its own record which is the Flat Buyer's Agreement dated 17.01.2008. In this Agreement, the Appellant has itself given the address of its registered office at 78-B, Group D-2, Janata Flats, Kondli, Gharoli, Mayur Vihar-III. Therefore, the contention and the argument has no force and rather mischievous in nature. It is also settled preposition of law that the pecuniary jurisdiction of the case has to be made on the averments made in the Complaint. The Complainant has valued the compensation to the tune of Rs. 21,65,800/- while claiming the possession of the subject flat. This compensation is claimed towards damages loss, harassment, mental pain and agony and the costs incurred. In "Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd., I (2017) CPJ 1 (NC)", this Commission has clearly held that the pecuniary jurisdiction means the cost of the subject flat or the goods plus the compensation claimed. In this case, the flat as well as the compensation to the tune of Rs. 35,19,500/- has been claimed. The cost of the flat is Rs.14,50,000/- and the compensation claimed is Rs.21,56,800/-. Hence, the contention and the argument that the State Commission did not have the pecuniary jurisdiction is meritless.

Next argument of learned counsel for the Appellant is that the State Commission has awarded a compensation of Rs.41 Lacs which is more than the deposited amount of Rs.13,53,750/-. It is argued that the interest awarded on the refunded amount to the tune of 18% p.a. is also by way of compensation and therefore, the impugned order needs to be modified on this count. Reliance has been placed on Fortune Infrastructure's case (supra) (Para 25) and it is argued that in this case, the Hon'ble Supreme Court has clearly held that "the damages awarded should not be excessive and the court/tribunal needs to take balanced approach so as to ensure right compensation". The Hon'ble Court has held as under:

"25. In light of the above, we consider that the claim of the respondents (complainants) as granted by the NCDRC seems to surpass the actual-loss based damages and enter the domain of gain-based remedy. Although we do not recognize any a priopri limitations on such claim, but we do not think that it would be appropriate to grant such damages in the case at hand. There is no dispute about the fact that damages for the contractual breach is generally compensatory arising out of the breach. Therefore, the damages awarded should not be excessive and a court/tribunal needs to take a balanced approach so as to ensure right compensation."

On this count, learned Counsel for the Respondent has argued that the grant of interest @18% p.a. is not excessive, particularly in view of the term of the Agreement wherein the Appellant had charged interest @ 20% p.a. from the flat buyers. It is further stated that he had been paying the EMI and also bearing the expenses towards the payment of the rent and therefore, the compensation of Rs. 3,00,000/- towards harassment cannot be considered excessive.

I have given thoughtful consideration to this contention of the learned Counsel. No doubt in the case of Fortune Infrastructure's case (supra), the Hon'ble Supreme Court has held that the courts have to take balanced approach to ensure right compensation and that balanced approach has to be on the basis of the facts and circumstances of each case. In the case of "GDA vs. Balbir Singh, 2004 (5) SCC 65," the Hon'ble Supreme Court has clearly stated that the compensation is to compensate for the loss or the injury and the rate of interest cannot be same in all the cases and depends on the type of loss or the injury suffered by the consumer. The compensation has to be high in the cases wherein the consumer is being deprived of the flat/plot which he was purchasing for his benefit. In the present case, the Respondent has not only contended but has also deposed on oath on affidavit that he has been paying rent @Rs.15,000/- per month for staying in a rented accommodation and there is no evidence to the contrary and no reason to disbelieve this contention and the statement of the Complainant. It is recurring loss which the Respondent/Complainant has been suffering all along on account of failure of the Appellant to hand over the possession of the flat within stipulated time. He had also taken a loan and paid EMI. Besides that, he has been deprived of the pleasure of living in his own house and decorate his own house as he wanted which facility is certainly not available to a tenant. His hopes to live in his own house were shattered and broken due to the fault on the part of the Appellant. Thus, he has not only suffered a lot of financial loss but has also suffered mental pain, agony and harassment as well. One more important point is that although in the Flat Buyer's Agreement, the Appellant has made the Respondent liable to pay interest @ 20% p.a. for the delayed period in making payment of the purchase price, but it had not made itself liable with any liability in the Agreement, in case of delay in giving the possession of the flat. It was only subsequently that it had made itself liable by writing a letter to the flat buyers wherein it undertook to pay Rs. 5/- per sq.ft. per month to the flat owner or the compensation towards the period of delay. This amounts to unfair illegal services since he cannot be put two different criteria, one for itself and other for the flat buyers in an agreement.

Keeping in view the facts and circumstances of the case, the award of compensation @ 18% p.a. on the compensation of Rs. 13,53,750/- cannot be found fault with. The award of compensation of Rs. 3,00,000/- towards the harassment and inconvenience is also appropriate in the light of the facts of the case and so, is the award of litigation charges to the Complainant.

The Appeal has no merit and the same is dismissed in limine with no order as to costs.