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Judgment
Sudip Ahluwalia, Member
The present Revision Petition has been filed by Petitioners against the impugned Order dated 30.08.2016 passed by the State Consumer Disputes Redressal Commission, Maharashtra, Mumbai in Appeal No. A/15/161, vide which the Appeal filed by the Petitioners was dismissed.
Brief facts of the case are that Petitioner No.1/Builder is a Private Limited Company dealing in construction whereas Petitioner Nos. 2 to 4 are partners in Petitioner No.1 Company. In the year 2004, the Petitioners undertook a construction Project near Mangatram Petrol Pump, L.B.S. Road, Bhandup (West), Mumbai. The Complainant/Respondent had booked a 2 BHK Flat on 6th floor in 'C’ wing of the said Project and paid a booking amount of Rs. 1,30,000/-. The Petitioners agreed to accept the remaining amount of the Flat as per progress of the construction. However, the Builder failed to start construction of the said building. The Complainant requested the Petitioners several times to start the construction of building by sending various letters. He stated in his letters that that he is required to stay in rental house and is therefore facing a number of difficulties. The Petitioners did not respond the any of the correspondences. Consequently, the Complainant had to accommodate himself in a rented house and he spent an amount of Rs.2,83,000/- towards rent. Ultimately, the Complainant sent a Notice on 26.08.2009 to the Petitioners and called upon them to take necessary steps. In spite of receipt of Notice, the Petitioners failed to do anything. In the meantime, the Complainant came to know that the Builders have started taking fresh bookings for their new Project instead of starting the original Project. It is the case of the Complainant that these acts of the Petitioners amount to deficiency of service as well as unfair trade practice. Therefore, the Complainant filed his Complaint before District Forum, Mumbai Suburban District.
The District Forum vide its Order dated 10.09.2014 partly allowed the Complaint. The relevant extracts of the Order of the District Forum are set out as below –
“16) From the respective submissions and perusal of record it is seen that, though the proposed construction of suit building is delayed, and it is not deliberate on the part of opponent and because of litigation pending between them and corporation as well as between Akruti City Limited and opponents the opponents were helpless. However, at the same time there is no explanation forthcoming from the opponent for not replying the letter correspondence with complainant dated 20/09/2005, 20/10/2005, 29/12/2005, 26/08/2009. The opponents did not reply correspondence but have put a remark on those envelopes stating that contents of enveloper are I not received, in natural course of way after receiving such correspondence; the opponents ought to have been entered into correspondence with the complainant for sending such enveloper without contents. However, silence on the part of opponents inclined us to conclude that, the opponents have put such remark on the envelope to create false evidence for non-receipt of letter. Secondly there is no explanation forthcoming from the opponent for not reporting their development with corporation and their inability to start with the construction work. On the contrary in the year 2007 the opponents have started collecting booking for their new project which is oh the same location or near to the said location. In fact in order to show bonafide the opponents ought to have informed the complainant about their new booking and ought to have given opportunity to the complainant to book his flat in the said project. Moreover opponents did not make any efforts to refund Rs.1,30,000/v to the complainant, for which also no explanation is forthcoming. However, this has also not-been done. Therefore the very act of the opponent is definitely objectionable much less deficiency of service and unfair practice. Therefore, though the opponents have made grounds -J with them for not commencing the construction work even then inordinate delay for repayment of booking amount as well as silence on their part shows deficiency of service on their part. Therefore by answering issue No.1 in affirmative we hold that complainant is entitled to get compensation, refund of amount and the amount he has spent for rent. Thought he is not entitled to get possession of his flat.
17) Now Rs. 1,30,000/- were paid by the complainant in 2004. Now the prices of residential flat in market have been considerably increase and it is ^ not possible for the complainant to purchase the flat in Rs. 13.00,000/- taking into consideration we pass following order.
ORDER
1) Complaint is partly allowed.
2) It is hereby declared that opponent have indulged in deficiency of service and unfair trade practice by .not refunding the booking amount of the fiat booked by the complainant in time and not disclosing their inability to start the construction work of the flat to the complainant.
3) The opponents have, directed to refund Rs.1,30,000 to the complainant with 10% simple interest on said amount from 18/03/2004 till recovery of amount.
4) Opponents are further directed to pay compensation of Rs. 10,00,000/- for delay on their part to refund the booking amount complainant and for mental agony and further directed to pay Rs.2,83,000/- to the complainant towards rent he has to pay for want of accommodation.
5) Opponents are further directed to pay Rs. 10,000/- towards the cost of complaint to the complainant.
6) Opponents are directed to comply said order within one month from the receipt of this order.
7) Opponents are directed to file their compliance / non-compliance affidavit on or before 27/10/2014.”
Aggrieved by the Order of the District Forum, the Petitioners filed Appeal before the State Commission. The Ld. State Commission dismissed the Appeal vide the impugned Order dated 30.08.2016. The relevant extracts of the impugned Order are set out as below –
“15. The opponents/appellants ought to have considered the legal hazards while accepting booking amount from the complainant/respondent. Appellants were ready to refund the booking amount of Rs.1,30,000/- to respondent with interest. Nothing is on record to prove that the appellants narrated their difficulties to the respondent/complainant. They did not express their willingness to refund the amount by sending letter to the respondent/complainant. On the contrary, letter correspondence of the respondent was never replied or responded by the appellants/opponents. The appellants should have replied the correspondence made by the respondent/complainant and express their willingness to refund the booking amount with interest. Appellants never showed their willingness to refund the amount to the respondent. On the contrary, in the year 2007 appellants started collecting booking for their new project which is on the same location or near the said location.
Appellants never informed the complainant/respondent about new project. If the appellants/opponents were having several hazards and difficulties to start the earlier project, they had option to offer flat to the complainant from new project. At least appellants should have given opportunity to the respondent to book a new flat from new project. Certainly, by doing such type of exercise, appellants/opponents should have proved their bonafide. Appellants never tried to refund the booking amount. They never offered any alternate flat to the respondent/complainant. Learned District Forum rightly observed that all these acts on the part of the opponents/appellants amounts to deficiency in service and unfair trade practice.
Evidence on record shows that the respondent is staying in rented house and he had paid amount of Rs.2,83,000/- towards rent. It is to be appreciated that now it is not possible for the complainant/respondent to get the flat/residential unit in the Bhandup (West) area for consideration of Rs.13 Lakhs. Now a day, there is increase in costs of construction and ultimately, costs of the building and flat. Because of deficiency in service, complainant/respondent did not get a flat/dream house. He has suffered loss, mental pain and agony. Learned District Forum rightly directed the opponents/appellants to refund the amount of Rs.1,30,000/- to the complainant/respondent with interest and to pay compensation of Rs.10 Lakhs towards mental pain and agony, amount of Rs.2,83,000/- towards rent. The order passed by Learned District Forum is just, legal, correct and it requires no interference. As a result, appeal deserves to be dismissed. With this view, we pass the following order;-
-: ORDER :-
Appeal stands dismissed.
Parties to bear their own costs.
One set of the appeal compilation be retained and rest of the sets be returned to the appellants.
Copies of the order be furnished to the parties.”
Aggrieved by the Order of the State Commission, the Petitioner filed the present Revision Petition raising the following issues –
a. That the State Commission has erred in passing the impugned Order by not considering that the District Forum has erred in awarding a huge amount of Rs. 10,00,000/- towards compensation which is 5 times more than the amount claimed in the complaint by the Complainant;
b. That the State Commission has erred in passing the impugned Order by not considering that the Petitioners were ready and willing to refund the entire amount of booking along with reasonable interest to the Complainant and the same was actually offered to the Complainant;
c. That the State Commission ought to have considered the fact that apart from initial payment of Rs. 1,30,000/-, nothing further was ever paid or offered by the Complainant towards the agreed consideration for the flat;
d. That the District Forum ought to have appreciated that there is no evidence to indicate that the failure to complete the Project was either wilful or deliberate. District Forum accepted the inability of the Petitioners but contrary to the said finding, an amount of Rs. 10,00,000/- has been awarded to the Respondent towards compensation.
Ld. Counsel for the Petitioners has argued that the State Commission has wrongly upheld the Order of the District Forum which awarded a compensation of Rs. 10,00,000/- whereas the actual claim made by the Complainant in the complaint was limited to Rs. 2,00,000/-; That the amount that has been given by the District Forum and upheld by the State Commission is erroneous and deserves to the interfered in view of the fact that the Complainant had never paid any amount other than the amount of Rs. 1,30,000/- towards the booking of the flat which the Petitioners were always willing and ready to refund; The huge amount of Rs. 10,00,000/- towards compensation is 5 times more than the amount claimed in in the complaint by the Complainant and therefore both the State Commission and District Forum have erred by not taking into consideration the amount claimed in the complaint.
This Commission has heard both the Ld. Counsel of the Petitioners and Respondent; and perused the material available on record.
Having considered the entire material on record, this Commission finds that the conduct of the Petitioner towards the Complainant had all alongwith been less than honest or transparent. As already noted by the Ld. District Forum, the Petitioners/Opposite Parties had put up an altogether rather outrageous kind of defence by contending that the letters allegedly received by them from the Complainant/Respondent actually contained no documents therein and were mere dummy envelopes, which contentions was rightly rejected by both the Ld. Fora below. In their defence, the Petitioners sought to make out a case of Force Maejure/supervening impossibility in the matter of completing their Project or providing the promised Apartment to the Complainant, which itself is not very convincing but even leaving that aside, the fact that for six years they did not respond to the Complainant’s repeated communications and representations and chose to maintain complete silence, flies in the face of their contention that they were all along ready to refund the amount deposited by the Complainant, as specifically claimed in Ground ‘E’ of the Revision Petition.
So the Ld. Fora below correctly determined that the Complainant was entitled to refund of the amount delivered by him to the Opposite Parties/Petitioners alongwith appropriate compensation. However, the quantum actually awarded would appear to be highly disproportionate and uncalled for. It is to be noted that in prayer (h) of the original complaint, the Complainant had himself prayed for a compensation of Rs. 5.00 lakhs (which is seen to have been penned through in the photocopy of the Complaint/Petition on record), but reduced to Rs. 2.00 lakhs only before filing the complaint. Both the Ld. Fora below however awarded a compensation to the tune of Rs. 10.00 lakhs to him, which was five times more than what he himself had claimed. To that extent the Ld. Fora below had certainly acted with material irregularity. Furthermore, the award of Rs. 2,83,000/- to the Complainant towards disbursement of the rent claimed to have been paid by him for the intervening period of delay was also not proper, since it is well settled that when an interest upon any refundable amounts is awarded in consumer matters, that itself is to be considered as the compensation on account of the misconduct on the part of the Opposite Party. The rate of interest @ 10% p.a. awarded to the Complainant is nevertheless considered fair and adequate in the facts and circumstances of the present case.
Consequently, the Revision Petition is allowed by modifying the concurrent Orders passed by the Ld. Fora below to the extent that the compensation awarded to the Complainant apart from the Order for refund of the original amount to him, is reduced to Rs. 2.00 lakhs from Rs. 10.00 lakhs as awarded, while the direction to pay the amount of Rs. 2,83,000/- to the Complainant towards his rent disbursal is set aside. However, the litigation costs awarded to the Complainant are enhanced from Rs. 10,000/- to Rs. 50,000/-.
The Petitioners are now directed to comply this Order within a month from this date, failing which the interest chargeable upon any outstanding dues would be @ 12% p.a.
Pending application(s), if any, also stand disposed off as having been rendered infructuous.