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Judgment
Dr. Inder Jit Singh, Presiding Member
The present First Appeal (FA) has been filed by the Appellant against Respondent(s) as detailed above, under section 17 of Consumer Protection Act 1986, against the order dated 04.05.2017 of the State Consumer Disputes Redressal Commission, West Bengal, Kolkata, (hereinafter referred to as the ‘State Commission’), in Consumer Complaint (CC) no. 484/2015 inter alia praying to enhance the interest on the amount paid by the Complainant to OP-3 and to modify the order passed by the State Commission.
While the Appellant was the Complainant, the respondent(s) were OPs (OP-1, OP-2 & OP-3) in the said CC/484/2015 before the State Commission. Notice was issued to the Respondent(s). Parties filed Written Arguments/Synopsis on 26.09.2018 (Appellant/Complainant).
Brief facts of the case, as emerged from the FA, Order of the State Commission and other case records are that: -
On 16.08.2012, OP-1 & OP-2 entered into a development agreement with OP-3 for construction on their property in Mouza - Krishnapur, P.S. - Baguiati, District North 24-Parganas. Concurrently, OP-1 & OP-2 granted power of attorney to OP-3, authorizing construction as per the agreement. While the construction was underway, the complainant entered into a sale agreement with OP-3 to purchase a self-contained flat on the 4th floor of the building "Maa Sarada Apartment," measuring 830 sq. ft. Subsequently, through a deed of conveyance dated 27.01.2014, the complainant acquired the flat for a total consideration of Rs. 24,48,500/-. Allegedly, OP-3 failed to complete the construction, and despite the lapse of two years, has not handed over the flat despite receiving the entire consideration amount. Consequently, the complainant initiated a consumer complaint in the State Commission.
Vide Order dated 04.05.2017, the State Commission has allowed the complaint, dismissed against OP-1 & OP-2; directed OP-3 to make payment of compensation of Rs.1,00,000/- to the complainant.
Appellant has challenged the Order dated 04.05.2017 of the State Commission mainly on following grounds:
i. The State Commission erred in both factual analysis and the application of the law. It failed to adequately appreciate the facts of the case and did not employ a judicious approach in issuing the impugned order. Furthermore, there was an error in the calculation of compensation for harassment and mental agony. The State Commission overlooked the fact that the appellant had already paid the full consideration amount and registered the flat, despite experiencing a delay in possession. Additionally, the appellant, due to the delay in possession, incurred monthly rent expenses for a rented flat, which the Commission failed to duly consider.
ii. The State Commission failed to take into consideration that the appellant is entitled to cumulative interest at 18% per annum from the date of payment/registration of the flat until the final realization. Despite having made full payment, the flat has not been completed by the respondent. The appellant is undergoing continuous mental distress and agony due to the delay in possession, along with the necessity to live in a rented flat. Furthermore, the State Commission failed to consider the appellant's entitlement to interest at 18% (cumulative) on the entire amount paid to the respondent.
Earlier the Appellant’s authorized representative was heard and arguments were concluded in the case and orders were reserved on 09.10.2020 but orders were not pronounced. As both the members of Bench retired, the case was listed for hearing afresh on 18.07.2023, 27.10.2023 and 29.11.2023. But none of the parties appeared on these dates. Hence, it was decided to take up the matter on merits based on available records. On account of absence despite notice, respondents were proceeded ex-parte. Contentions/pleas of the parties, on various issues raised, based on their FA/Reply and Written Arguments, are summed up below.
(i) The Appellant/Complainant asserts that they are a bona fide purchaser falling under the purview of a consumer as defined in Section 2(d) of The Consumer Protection Act. The complainant have paid the full consideration amount of Rs. 24,48,500/- for a scheduled property, and this payment is acknowledged by OP-3. Despite the payment, OP-3 has failed to fulfill their commitment to complete the flat/building, leading to a deficiency in service. The property development project faces significant challenges marked by serious lapses in compliance and contractual obligations.
(ii) The Appellant/Complainant further asserts that there is a violation of approved building plans, evident in the unauthorized construction of additional floors without a revised sanction plan. This lack of adherence raises questions about transparency and commitment to contractual terms, especially concerning the inability to provide a definitive completion date as stipulated in the Development Agreement.
(iii) Compounding these issues, the absence of a completion certificate for a property sold in January 2014 raises legal and marketability concerns. Additionally, the extended non-functionality of the lift and the acknowledgment of the non-installation of a power backup/generator pose safety and contractual risks. Unauthorized construction on the ground floor, initially designated for parking, not only breaches zoning regulations but also aggravates the shortage of parking spaces, leading to heightened regulatory violations.
(iv) The Appellant/Complainant further asserts that the complainant face various problems due to these acts of OP-3, including having to pay rent, which has increased over time due to the delayed completion of the property. The complainant seeks redress in terms of the complaint petition along with exemplary costs.
The counsel for complainant relied on following judgements:-
a. Lucknow Development Authority vs. M.K. Gupta, (1994) 1 SCC 243, it was held that:-
“8. … Each hierarchy in the Act is empowered to entertain a complaint by the consumer for value of the goods or services and compensation. The word ‘compensation’ is again of very wide connotation. It has not been defined in the Act. According to dictionary it means, ‘compensating or being compensated; thing given as recompense;’. In legal sense it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss. Therefore, when the Commission has been vested with the jurisdiction to award value of goods or services and compensation it has to be construed widely enabling the Commission to determine compensation for any loss or damage suffered by a consumer which in law is otherwise included in wide meaning of compensation. The provision in our opinion enables a consumer to claim and empowers the Commission to redress any injustice done to him. Any other construction would defeat the very purpose of the Act. The Commission or the Forum in the Act is thus entitled to award not only value of the goods or services but also to compensate a consumer for injustice suffered by him.”
b. Ghaziabad Development Authority vs. Balbir Singh, (2004) 5 SCC 65, it was held that:-
“5. Irrespective of the type of case, irrespective of the amount of delay, the National Commission has been granting/confirming interest at the rate of 18% per annum without even going into the facts of the case. It must be mentioned that in some of the matters before us it has been pointed out that the District and the State Forums had granted interest at a lower rate. Appeals had been filed only by the authority. Yet the National Commission has, in the appeal filed by the authority, increased the rate of interest to 18% per annum.
The learned Attorney General submitted that the liability to pay interest only arises if there is any default or omission on the part of the body which caused damage or prejudice to the allottee of the flat/plot. This submission requires to be accepted……”
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“8. …..the Commission/Forum would then need to determine the loss. Loss could be determined on basis of loss of rent which could have been earned if possession was given and the premises let out or if the consumer has had to stay in rented premises then on basis of rent actually paid by him. Along with recompensing the loss the Commission/Forum may also compensate for harassment/injury, both mental and physical…..”
State Commission vide its order dated 04.05.2017 allowed the complaint on contest against OP-3/Respondent-3 and dismissed against OP-1 & OP-2/Respondent-1 & Respondent-2 (Landowners) and granted following reliefs:-
“The OP-3 is directed to hand over the possession of ‘B’ Schedule property as mentioned in the petition of complaint in favour of the complainant within 30 days from date otherwise the complainant may put the order in execution.
The OP-3 is also directed to make payment of compensation of Rs. 1,00,000/- and also litigation cost of Rs. 10,000/- aggregating Rs. 1,10,000/- within 30 days from date otherwise the amount shall carry interest @ 9% p.a. from this date till its total realisation.”
This order has not been challenged by OP-3/Respondent-3, hence it has become final against OP-3/Respondent-3. Appellant/Complainant has filed this appeal inter alia seeking enhanced rate of interest. We have carefully gone through the order of State Commission, it is a well-reasoned order, State Commission has awarded a very reasonable rate of Interest i.e. @ 9% p.a. along with compensation of Rs.1.00 lakh and litigation costs of Rs.10,000/-. No further interference in this order is called for. The Appellant is not entitled to any further relief than granted by the State Commission. No case has been made out for enhancement of rate of Interest. We find no Illegality or material irregularity in the order of the State Commission, hence the same is upheld. Accordingly the First Appeal is dismissed.
The pending IAs in the case, if any, also stand disposed off.