Monika Dudani Mehtab vs Parsavnath Developers Ltd. & 2 Ors

M. Shreesha, J

Aggrieved by the order dated 12.07.2018 in CC No. 1202 of 2015 passed by the State Consumer Disputes Redressal Commission, Delhi (for short the "State Commission"), the Complainant preferred this Appeal under Section 19 of the Consumer Protection Act, 1986 (for short "the Act"). By the impugned order, the State Commission while allowing the Complaint directed the Opposite Parties (hereinafter referred to as "the Developer") to refund the principal amount paid by the Complainant along with interest @ 8% p.a. from the date of receipt of the amount till its realization with compensation of Rs. 50,000/- for the mental agony. The Complainant preferred this Appeal seeking enhancement of the amounts awarded by the State Commission together with increase in the rate of interest.

Briefly put, the facts of the case are that the Complainant had entered into an Agreement with the Developer on 01.03.2008 for a three bed-room apartment in the project of Developer titled "Parsvnath Privilege" for a total consideration of Rs. 41,57,000/-. It was averred that despite making all the payments as per the schedule, the construction of the flat was incomplete though the promised date of delivery of possession was May, 2010. It was stated that though the Complainant wanted to choose the Construction Linked Payment Plan the dealing Commercial Manager convinced the Complainant to choose the Time Linked Payment Plan and having been assured by him, the Complainant opted for Plan 'C' mode of payment i.e. Tine Linked Payment Plan. In case the possession of the subject residential unit was not handed over by May, 2010, Clause 10(c) of the Flat Buyer Agreement comes into play. Clause 10(c) stipulates that the Developer shall pay to the Buyer compensation @ Rs. 5/- per sq. ft. of the super area of the flat per month for the period of delay. When the Complainant visited the site in October, 2008, she realized that the construction work at the site had come to a total standstill. Thereafter she addressed a letter to the Developer on 03.02.2009 requesting for converting the payment from Plan 'C' to Plan 'B' which is a Construction Link Payment Plan. She received reply on 10.06.2010 stating that the construction activity of the project had slowed down and they were re-scheduling the Plan and proposed to complete the Project by March, 2012. The Complainant was also informed that they have organized dedicated funds for the Project from Punjab National Bank.

It was averred that despite making multiple visits to the Project site, the construction was far from being complete despite all the payments duly made by the Complainant. The Complainant was constrained to seek monetary help from her parents, had to bear the burden of rental accommodation, had suffered medical exigency as her husband had suffered from double slip disk in March, 2012 which added to the pressure for looking for an alternate rental accommodation. The Complainant and her husband moved back to Chandigarh as they had to make the decision of moving base out of Delhi as they could pay the high rentals. The photographs that were taken on 25.11.2015 show the stage of ongoing construction. Vexed with their attitude the Complainant approached the State Commission seeking the following reliefs:-

a) Refund the money paid by the Complainant i.e. Rs. 42,59,465/- along with interest @ 24% p.a. compounded along with past, pendent lite and future interest @ 24% p.a. compounded till the date of actual realization of the payment;

b) Pay penalty charges @ Rs. 5/- per sq. ft. p.m. on the flat havinv super area of 1855 sq. ft. along with pendent lite and future compensation @ 24% p.a. for the period of delay till the date of actual realization of the amount;

c) Pay Rs. 20 lakhs to the Complainant towards compensation;

d) Pay the litigation expenses as decided by the State Commission; &

e) Any other order, relief or direction which the State Commission may deem fit and proper under the circumstances of the case.

The Developer filed their Written Version stating that the Complainant had requested for change of property from T-21701 to T18-601 vide his letter dated 03.07.2011 which was accepted by the Developer on 16.07.2011. The basic cost of the flat was Rs. 41,57,000/- and the Complainant had taken more than one unit for investment purposes and, therefore, she was not a 'Consumer'. It was averred that the Complainant was seeking recovery of the amount and, therefore, the same does not fall within the ambit of 'Service' as defined under Section 2(1)(o) of the Act. It was averred that on account of global recession the pace of construction had slowed down as a result of which the Project was delayed. The Flat Buyer Agreement stipulates that in the event of any delay in the construction, the Complainant will be entitled to compensation at Rs. 5/- per sq. ft. Though the promised date of delivery was May, 2010 it was only on account of the reasons beyond the control of the Developer that the Project got delayed. There is no deficiency of service which can be attributed to the Developer and, therefore, the Complaint be dismissed with costs.

The State Commission based on the evidence adduced, allowed the Complaint in part directing the Developer to refund the amount along with interest @ 8% p.a.

The Complainant who was present in person vehemently contended that the State Commission has erred in awarding interest @ 8% p.a. and that the State Commission has, without any reasons, subverted various sacrosanct principles of law inter alia 'Doctrine of stare decisis', Principle of parity', 'Right to expect judicial uniformity' and 'Right to be compensated for deprivation'. She strenuously argued that Hon'ble Supreme Court in a catena of Judgements has laid down that principles of parity and natural justice should be followed while awarding compensation. In GDA Vs. Balbir Singh (2004) 5 SCC 65 has indicated the factors to be kept in view while determining the adequate compensation. The Hon'ble Apex Court has stated thus:-

That compensation cannot be uniform and can best of illustrated by considering cases where possession is being directed to be delivered and cases where only monies are directed to be returned. In cases where possession is being directed to be delivered the compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting. But in cases where monies are being simply returned then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot. He is being deprived of that flat/plot. He has been deprived of the benefit of escalation of the price of that flat/plot. Therefore the compensation in such cases would necessarily have to be higher.

If the delay is only of one or two years the escalation in the cost of construction will not be as much as in a case where the delay is of five years or more. Therefore, if compensation has to be awarded for escalation in the costs of construction, it must be done under that head after taking into consideration the amount of delay. In Haryana Urban Development Authority vs. Rajnish Chander Sharde JT 2000 (8) SC 154 the facts were such that they justified a grant of interest at the rate of 18% per annum. This Court has noted that there was delay in delivery of possession and in the meantime the complainant had been compelled to live in rented accommodation and pay Rs. 1600/- per month. This Court has noted that interest at 18% was given instead of directing the body to compensate for the loss caused i.e. at the rate of Rs. 1600/- per month. It is on those facts this Court upheld the grant of interest @ 18% per annum.

It is relevant to mention that the Developer did not prefer an Appeal and, therefore, the finding of deficiency of service against them has attained finality. The only question which arises whether the Complainant is entitled to interest @ 24% p.a. and enhanced compensation. It is an admitted fact that compensation was not given despite being a delay of more than 8 years in offering possession. Even in the Written Version the Developer has not stated any substantial reasons or filed any documentary evidence to establish any reason beyond their control. We rely on the principal of restitutio ad integrum according to which while awarding compensation the Court should take into consideration that the Complainant should take into consideration that the Complainant should be put in the same position as he was earlier prior to the happening of the event which caused the mental harassment to him or her. In the instant case for any delayed payments the Developer was charging interest @ 18% p.a. as per the Flat Buyer Agreement.

The Complainant relied on the decision dated 05.05.2014 of this Commission in CC No. 144/2011 Subhash Chander Mahajan Vs. Parsvnath Developers Ltd. wherein the consumer grievance pertains to the same Project and the refund of amount paid was directed to be returned along with interest @ 18% p.a. She contended that denial of judicial parity is an outright assault on the Principles of Natural Justice and sought for interest @ 18% p.a. I find force in the contention of the Complainant that it is necessary to consider facts and award damage/compensation under various heads and also because she had to pay higher rentals, I am of the considered view that the rate of interest which the State Commission has awarded @ 8% p.a. is meagre. Having regard to the fact that Banks have lowered the interest rate and the Hon'ble Supreme Court has been awarding interest keeping in view the current market situation and considering the recent decline in the cost of borrowing and return on the investments made with the Banks, we are of the considered view that simple interest @ 12% p.a. would meet the ends of justice. Taking into consideration all these factors the rate of interest is enhanced to 12% p.a. on the deposits made by the Complainant to the Developer from the respective date of deposits till the dates of realization. I also find it a fit case to award compensation of Rs. 2,00,000/- for the mental agony suffered by the Complainant since there was inordinate delay of 8 years and also because the Complainant was deprived of owning a home and was made to run from pillar to post as the Developer did not give her a committed date for completion of construction. The Complainant was also deprived of the benefit of escalation of the price of that flat and, therefore, I find it a fit case to award a reasonable compensation of Rs. 2,00,000/-.

For all the afore-noted reasons the present Appeal is allowed and the order of the State Commission is modified to the extent of enhancing the rate of interest from 8% to 12% p.a. and the compensation from Rs. 50,000/- to Rs. 2,00,000/-. Costs of Rs. 25,000/- is also awarded to the Complainant. Time for compliance four weeks from the date of receipt of a copy of this Order, failing which, the amount shall attract interest @ 14% p.a. for the same period.