Rimlu Gyani vs Emaar Mgf Land Ltd

The present Appeal has been filed challenging the order of the State Consumer Disputes Redressal Commission, Delhi (for short “the State Commission”) dated 06.09.2018 in Complaint No.190 of 2016 whereby the Complaint of the Appellant was allowed and she was granted simple interest @ 9% p.a. on the amount, which had been deposited by her with the Respondent, for the period during which that amount remained with the Respondent.

The brief admitted facts of the case are that the Appellant/Complainant had booked a Unit No.TVM B3-F05-501 in the project of Respondent called “The Views” Sector-105, Mohali Hills, Mohali on 20.02.2007 and the total consideration amount of the said unit was ₹55,80,250.  A Builder Buyer Agreement was also executed between the parties on 04.02.2008.  The due date of possession, as per the agreement, was 36 months from the date of allotment with grace period of 90 days, i.e. on or before 3rd May 2011.  Since the possession of the subject flat was not delivered by the Respondent within the stipulated period even after 5½ years and on learning that the Respondent was not going to construct Tower B in which her flat was located, she asked for the refund of her money.  Despite her demands for refund of her money, the money was not refunded till 12.12.2015.  However, the deposited amount of ₹15,71,325/- was paid by the Respondent to the Complainant by way of cheque which was encashed on 14.12.2015.  The Complainant aggrieved by the act of Respondent for not paying any compensation for the delay and for the mental harassment etc. caused to the Complainant, filed the Complaint claiming compensation before the State Commission.  She also took the plea that the payment made by the Respondent had been adjusted by her against the interest which the Respondent was bound to pay to her.

Although in their written statement, various objections had been raised by the Respondent, however, their main contention had been that they were not entitled to pay anything to the Complainant as they had already refunded the deposited amount to her.

Parties led their evidences before the State Commission.  After hearing learned Counsel for the parties, the State Commission passed the impugned order.

This order has been challenged by the Complainant on the ground that the State Commission has failed to grant compensation for the mental agony and harassment and has also failed to grant costs to her.  It is further submitted that the State Commission has also failed to take into account the fact that the deposited amount had not been returned to her and it was the part payment which had been received by the Complainant.

It is argued by the learned Counsel for the Respondent that the learned Counsel for the Complainant who had attended the proceedings before the State Commission had admitted before the Commission that the Complainant had received the deposited amount and prayed only for the damages and interest and that this fact is recorded in para (8) of the impugned order.

Learned Counsel for the Complainant states that the Complainant had never consented her having received the deposited amount but had only mentioned that she had received the amount which was equivalent to the deposited amount.

I have given thoughtful consideration to the arguments and perused the file.

Admittedly, a sum of ₹1571,325/- had been received by the Complainant by way of cheque which was encashed on 14.12.2015.  The Complainant states that this is not the deposited amount which she had received and she had adjusted this amount towards interest, compensation and costs to which she was entitled to.

Learned Counsel for the Appellant/Complainant has failed to point out in the agreement between the parties any clause which entitled her to claim costs.  She has brought to my notice clause 23.1 which entitles her to claim compensation for delay @ ₹5/- per sq.ft. per month of the total area and when enquired from her whether she wants that received money to be adjusted against the amount which she is entitled to under that clause, learned Counsel for the Appellant/Complainants states that under this clause, the compensation to which the Complainant is entitled to is very less and because there is disparity in the amount of compensation, the allottee and the builder were entitled under this agreement, she does not want that amount of compensation.  Since the Complainant does not want the compensation for delay as per clause 23.1, the money received by her from the Respondent be adjusted against the deposited amount.

The State Commission has clearly recorded that there was a delay of more than 5 years in handing over the possession and hence there was deficiency in service on the part of the Respondent and mere refund of deposited money does not absolve it from its liability to compensate the Complainant for such deficiency and awarded interest as compensation.  The State Commission has granted interest @ 9% p.a. from the date of deposits till the date of payment and I am satisfied that this is adequate compensation given to the Complainant under the circumstances of this case.  The Complainant has also claimed cost and interest @ 15% p.a.  Interest @ 15% p.a. cannot be granted to the Complainant.  The Complainant has failed to point out any case laws of the Hon’ble Supreme Court under which the Apex Court has granted compensation @ 15% p.a. in the facts and circumstances akin to this case.  Complainant has also claimed a separate compensation for mental agony and harassment.  This relief also cannot be granted to the Complainant in view of the fact that she has already been granted compensation in the form of interest.  Hon’ble Supreme Court in “DLF Homes Panchkula Limited vs. D. S. Dhanda etc. (2020) 16 SCC 318” has clearly held that where the compensation has been awarded by way of interest, no other compensation under different heads should not be awarded.  The Complainant in this Appeal has also claimed costs stating that the State Commission while disposing of the Complaint ought to have granted costs.  Grant of litigation cost is a discretionary matter with the court and the litigant has         no substantive right to claim cost of litigation.  Not exercising this discretion in favour of the Complainant does not make the order of the State Commission illegal or perverse.  I found no illegality or infirmity in the impugned order.  The Appeal has no merit and the same is dismissed with no order as to costs.