AI Structured Summary
Not yet generated for this judgment
Judgment
V.K. Jain, Presiding Member
The complainants/respondents booked residential apartments with the appellants in a project namely "Mantri Celestia", which the appellants were to develop in Nanakramguda village of Ranga Reddy District (presently in Telangana). On allotment of residential flats in the above referred project to them, they executed two agreements each with the appellants, one being the agreement and other being for the agreement for construction. The possession of the allotted flats was to be delivered to the Complainants/Respondents by 01.07.2013 in F.A. No.1567/2019, by 31.05.2012 in F.A. No.1853/2019 and by 30.06.2013 in F.A. No.2136/2019. The possession of the allotted flats was not delivered to them by the date stipulated in this regard. The complainants therefore sought refund of the amount which they have paid to the appellant, with compensation etc. The said refund having not been made, they approached the concerned State Commission by way of separate Consumer Complaints seeking refund of the amount which they had paid to the appellants with interest, compensation etc.
The complaints were resisted by the appellants who admitted that the allotments made to the Complainants as well as the agreement executed with them. The payment received from them was also not disputed. It was however pleaded in the written version filed by the appellants that the construction of the residential complex was delayed on account of (i) civil commotion, strikes, agitations and public disturbances on account of the Telangana Agitation, (ii) flooding of the project site from the adjacent lake due to heavy rains, (iii) disruption in supply of cement, sand and other material on account of civil disturbances and (iv) migration of labour resulting in shortage of labour.
The State Commission vide impugned orders dated 28.06.2019, 07.08.2019 and 27.09.2019 directed refund of the amount which the Complainants had paid to the appellants alongwith interest @ 18% p.a. and the cost of litigation quantified at Rs.5,000/- in each case.
Being aggrieved from the order passed by the State Commission, the appellants are before this Commission by way of these separate appeals.
It is submitted by the learned Senior Counsel for the appellants that despite having noted the force majeure circumstances pleaded in the written version of the appellants, the State Commission didn't return a finding on the said plea taken by the appellants and for this reason alone the impugned order is liable to be set aside. It is also submitted by the learned Senior Counsel that the interest awarded by the State Commission is excessive and uncalled for, particularly when no evidence was led by the complainants to prove their actual loss except the interest which they had to pay on the loan taken by them. It is also submitted by the learned Senior Counsel for the appellants that they are ready to give possession of the allotted flats to the complainants since the construction had been completed and the appellants were in a position to deliver possession of the allotted flats even before the Consumer Complaints were instituted.
As far as the force majeure circumstances pleaded by the appellants are concerned, the said circumstances, in my opinion, didn't stand established. The possession of the allotted flats was required to be delivered in 01.07.2013 in F.A. No.1567/2019, by 31.05.2012 in F.A. No.1853/2019 and by 30.06.2013 in F.A. No.2136/2019. Admittedly, the appellants were not in a position to offer possession prior to November, 2016 when the requisite occupancy certificates were obtained. Therefore, there was delay for more than three years in completion of the project. Though it was vaguely pleaded that the construction was delayed on account of civil commotion, strikes, agitations, no evidence was led to prove that any civil commotion, strikes, agitations had actually resulted in stoppage of work at the site of this project. Moreover, the appellants have not even specified the particular period during which the construction of the project was allegedly delayed on account of civil commotion, strikes and agitations. Though it was alleged that flooding of the project site from the adjacent lake due to heavy rains had also resulted in delay, no evidence of the project site having been actually flooded due to heavy water from the adjacent lake was produced. Moreover, the appellants didn't even disclose for how much period the project site remained flooded and the work could not be carried on account of flooding of the project site. Though the appellants have pleaded disruption in supply of cement, sand and other material on account of civil disturbances, again no evidence was led to prove that cement, sand and other material was actually not available in the market and therefore the construction remained halted for want of said building material. Though migration of labour was pleaded, no evidence was led to prove that the work labour was not available in the market despite the efforts made by the Appellants in this regard. Therefore, the force majeure circumstances pleaded by the Appellants didn't stand substantiated.
In GDA Vs. Balbir Singh (2004) 5 SCC 65, the Hon'ble Supreme Court, inter alia, observed as under:
a) As seen above, what is being awarded is compensation i.e. a recompense for the loss or injury. It therefore necessarily has to be based on a finding of loss or injury and has to correlate with the amount of loss or injury.
b) Along with recompensing the loss the Commission/Forum may also compensate for harassment/injury, both mental and physical.
c) That compensation cannot be uniform and can best be 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 case would necessarily have to be higher.
In a recent decision, Fortune Infrastructure & Anr. vs. Trevor D'lima (2018) 5 SCC 442 the Hon'ble Supreme Court, referring to its decision in Balbir Singh (supra), inter alia, observed as under:
a) It is now settled that where a party sustains loss by reason of a breach of contract, damages are to be granted so as to place the suffering party in the same position as if the contract had been performed.
As far as the quantum of compensation by way of interest is concerned, no evidence was led by the Complainants to prove the actual loss suffered by them on account of the appellants having failed to deliver the allotted units to them. No evidence to prove the current market value of such residential flats was produced to prove that the actual loss suffered by the Complainants was more than the normal bank interest payable on the housing loan. Moreover, the Complainants are not willing even today to accept the possession of the allotted flats which the Appellants are ready to offer to them. The learned Counsel for the Complainants in F.A. No.1567/2019 submits that the offer for possession has been made for the first time today before this Commission. Even if this is so, the fact remains that even today, the Complainant are not willing to take possession of the allotted flats with a reasonable compensation.
It has come on record that the complainants had taken loans for the purpose of making payment to the Appellants. Therefore, in all fairness they must get atleast the actual interest they have paid to the bank from which the loan was taken by them. As far as the principal amount contributed by the Complainants from their own efforts is concerned, considering on the facts and circumstances including the prevailing rates of interest, the lack of evidence to prove the actual loss and the unwillingness the Complainants to take possession of the allotted flats, they should be paid compensation by way of simple interest @10% p.a. on the said amount.
For the reasons stated hereinabove, the appeals are disposed of with the following directions:
(i) In all the three matters, the complainants shall be entitled to refund of the principal amount paid by them to the appellants.
(ii) In addition to the principal amount, the Complainants shall be entitled to interest at the rate actually paid by them to their bank on the loan which they had taken from their respective banks for making payment to the Appellants. For this purpose, they will submit certificates from the bank, disclosing therein the principal amount of loan availed by them alongwith the interest they actually paid to the bank. The penal interest, if any, on account of any default on the part of the Complainants in making payment shall not be reimbursed.
(iii) On the balance principal amount which the Complainants contributed from their own funds for making payments, they shall be paid compensation in the form of simple interest @ 10% from the date of each payment till the date of refund.
(iv) The Complainants shall be entitled to Rs.25,000/- as the cost of litigation in each complaint.