M/S. Swapnil Builders And Developers vs Iila Banerjee

V.K.Jain, Presiding Member

The complainant/respondent booked a residential flat with the petitioner in a project namely 'Rajmahal Green Town', which the petitioner was to develop in Bhilai. Initially, the complainants had booked a two BHK residential apartment with the petitioner on 06.04.2013 and the possession was agreed to be delivered within two years. Thereafter, the parties executed another agreement whereby a three BHK flat was agreed to be delivered to the complainants within two years of the subsequent agreement dated 06.04.2015, for a consideration of Rs.16,50,000/-. The possession of the flat having not been given to them, the complainants approached the concerned District Forum by way of a Consumer Complaint instituted on 21.03.2016 seeking refund of the amount which they had paid to the petitioner alongwith interest, compensation etc.

The complaint was resisted by the petitioner which inter-alia stated in its written version that the construction work was in progress and the complainant had not made payment as per the agreement between the parties. It was also stated in the written version that the petitioner was ready to give the flat on receiving the balance payment.

The District Forum, vide its order dated 19.06.2017, directed refund of the amount which the complainant had paid to the petitioner alongwith interest @ 12% per annum, Rs.44,000/- as rent and Rs.10,000/- as compensation and Rs.5,000/- as the cost of litigation.

Being aggrieved from the order passed by the District Forum, the petitioner approached the concerned State Commission by way of an appeal. Vide impugned order dated 16.01.2018, the State Commission, while maintaining the order for refund of the principal amount with interest, reduced the compensation from Rs.10,000/- to Rs.5,000/-. The State Commission also set aside the direction of the District Forum for payment of Rs.44,000/- to the complainants towards rent. Being still dissatisfied, the petitioner is before this Commission by way of this Revision Petition.

It is submitted by the learned counsel for the petitioner that the Consumer Complaint as premature on the date it was instituted, since the possession could have been delivered to the complainants on or before April 2017 whereas the Consumer Complaint was instituted in March 2016. I asked the learned counsel for the petitioner as to whether the petitioner is in a position to deliver possession of the allotted flat to the complainants and whether it has obtained the requisite Occupancy Certificate in respect of the said flat. The learned counsel having taken instructions, submits that though the construction of the flat is complete, they have not been able to obtain the Occupancy Certificate of the flat since this is a large project and construction is still going on in the project.

It would thus be seen that even as on today, the petitioner is not in a position to give legal possession of the allotted flat to the complainants, it having not obtained the requisite Occupancy Certificate. Neither the petitioner is competent to deliver possession nor the complainant is entitled to occupy the house without issuance of the requisite Occupancy Certificate. As a result, the complainant cannot take possession of the allotted flat even if it is offered to them by the petitioner. Therefore, the order directing refund of the principal amount with interest would be justified considering that there has already been delay of more than two years and 9 months from the last date stipulated for the delivery of the possession.

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.

The State Commission has awarded interest @ 12% per annum to the complainant. No evidence was led by the complainant before the concerned District Forum to prove the actual loss suffered by her. The compensation by way of interest has to commensurate with the loss suffered by the complainant. In the absence of any specific evidence to prove the loss suffered by the complainant on account of failure of the petitioner to deliver possession of the flat, the loss of the complainant would be only by way of interest on the amount which she paid to the petitioner. She would also be entitled to some compensation for the mental agony and harassment which she must have undergone on account of the failure of the petitioner to honour its contractual obligations.

Considering the prevailing interest rates and other attending facts and circumstances of the case, an all-inclusive compensation in the form of simple interest @ 10% per annum from the date of each payment till the date of refund and cost of litigation quantified at Rs.25,000/- would be adequate compensation to the complainant. The impugned order is therefore, modified to the extent that the complainant shall be entitled to refund of the principal amount of Rs.9,91,000/- alongwith compensation in the form of simple interest @ 10% per annum from the date of each payment till the date of refund and the cost of litigation quantified at Rs.25,000/-. The payment in terms of this order shall be made within two months from today.

The Revision Petition stands disposed of.