Sunil Bhasin vs Suruchi Cooperative Group Housing Society Ltd

This complaint has been filed by Sunil Bhasin against the opposite party.

Brief facts of the case as alleged in the complaint are that the opposite party society allotted a 2 BHK flat no. 73 to the complainant after he was found qualified as per the rules of allotment. The complainant had paid Rs.7,29,369/- for flat. He further paid small amount as demanded by the society till the year 2008. The society did not give the possession to the complainant for a long time and finally the possession was given on 31.05.20016.

The following prayers have been made in the complaint:-

"(i) The respondent society be directed to pay the petitioner an interest of 18% per annum on deposits on yearly compounded basis for 16 years from 1st January, 2001 to 31st May, 2016 when the possession was given on Rs.7,29,369/- as full cost of flat, which comes to Rs.86,58,908/-. A statement showing the computation of interest payable on deposits is enclosed as Annexure-'ZF'.

(ii) The respondent society be also directed to pay the difference of net refundable amount of Rs.60,580/- to the petitioner (arising out of applying to a lower interest rate of 10% instead of 18%) in terms of the decision of this Commission held in the case of DDA Vs. Amarjeet Singh Kohli stating that the amount recovered beyond Rs.3.31 lac (interest having already paid is illegal, void and is liable to be reimbursed to the complainant with 18% per annum)

(iii) The respondent society be also directed to pay compensation of Rs.20,00,000/- for suffering of mental agony, harassment and physical torture in the circumstances of the case.

(iv) The opposite party be also directed to pay compensation of Rs.20,24,784/- to the petitioner for paying the rent of the house taken on lease from the lessor, Shri Kamal Bhasin under the lease agreements duly entered firstly with PFC, the employer of the petitioner for the relevant period from 1-1-2001 to 31-8-2008 and thereafter with the petitioner from 1-9-2008 to 31-5-2016. Copy of the Lease Agreements and rent receipts are enclosed as Annexure-'ZG'

(v) The respondent society be also directed to clear the arrears of the property taxes including penalty for the flat for the period from 1-1-2001 till the date of handing over the possession of flat to the petitioner on 31st May, 2016. It is submitted that the petitioner had paid the property tax of Rs.3,661/- for his flat for the year 2016-17 after taking the possession of his flat.

(vi) The opposite party be also directed to pay sum of Rs.2,00,000/- towards cost of litigation and other charges being incurred in connection with the case.

(vii) May also grant any such other relief as deem fit and proper by the Hon'ble Commission in the circumstances."

Heard the complainant in person at the admission stage. The complainant argued that this Commission has a jurisdiction to consider this complaint as the total relief claimed is more than rupees one crore. It was further mentioned that after getting the possession on 31.05.2016, the complaint has been filed on 14.05.2018 and therefore, the complaint is within limitation. Complaint has been filed for payment of interest on the paid amount from the date of payment till the date of possession @18% p.a. on compounded basis.

It was prayed that this Commission may deal with this complaint and finally adjudicate upon the same.

I have given a thoughtful consideration to the arguments advanced by the complainant and have examined the record.

The first prayer in the complaint is in respect of the payment of interest of 18% p.a. on the compounding basis on the amount of Rs.7,29,369/- paid by the complainant to the opposite party. When the complainant has received the possession of the unit, he is not entitled to 18% p.a. interest as observed by the Hon'ble Supreme Court in Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65, as under:-

"However, the power to and duty to award compensation does not mean that irrespective of facts of the case compensation can be awarded in all matters at a uniform rate of 18% per annum. 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. Thus the Forum or the Commission must determine that there has been deficiency in service and/or misfeasance in public office which has resulted in loss or injury. No hard and fast rule can be laid down, however a few examples would be where an allotment is made, price is received/paid but possession is not given within the period set out in the brochure.....

...Along with recompensing the loss the Commission/Forum may also compensate for harassment/injury both mental and physical. Similarly, compensation can be given if after allotment is made there has been cancellation of scheme without any justifiable cause.

That compensation cannot be uniform and can best of 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 cases would necessarily have to be higher."

From the above observations of Hon'ble Supreme Court, it is clear that a person, who is claiming interest as compensation on the delayed possession is not entitled to that much compensation as a person who has to seek refund due to non-allotment of the unit. This observation of the Apex Court had come in reference to the general practice of awarding 18% p.a. interest on the deposited amount in all cases. Even in earlier cases where refund with 18% p.a. interest was allowed, it was allowed as simple interest and not on compounding basis. The compensation @ 18% pa, simple interest on Rs.7,29,369/- for about 16 years would come to only Rs.21,00,582/-.

Then the major claim of Rs.20,00,000/-is for seeking compensation for mental agony and physical harassment. This Commission has taken a view that the interest is also in the form of compensation and when the interest is allowed at 18% pa., compensation for mental agony and harassment cannot be separately awarded on such a high scale. This view has been affirmed by this Commission recently in Gaurav Aneja & Anr. Vs. Supertech Limited, II (2018) CPJ 365 (NC) wherein the following has been held:-

In such cases, neither this Commission nor the Hon'ble Supreme Court has awarded compensation in the form of interest at a rate higher than 18% per annum. Therefore, a claim for a higher interest would be an exaggerated and inflated claim without any legal basis and cannot be taken into consideration for the purpose of determining the pecuniary jurisdiction in terms of Section 21 of the Consumer Protection Act. If compensation in the form of interest @ 18% per annum is awarded, it will cover the losses of all kind, including the financial loss and distress and mental agony caused to the flat buyer, since the financial loss would not be more than 10-11% per annum, considering the rates of interest prevailing during the relevant period."

Another amount Rs.20,24,784/- has been claimed as rent of the house taken on lease from the lessor. Prima facie this type of compensation cannot be added for valuation purpose. As the value of goods and services along with compensation is to be considered for deciding the pecuniary jurisdiction of a consumer forum and if one considers demanded compensation of Rs.20,00,000/- for mental agony and harassment, this compensation for rent cannot be added for deciding the valuation of the complaint for the purpose of pecuniary jurisdiction.

It is clear that the complainant has tried to inflate the demands of compensation, interest and other items just to avail the jurisdiction of this Commission. This cannot be allowed as this will be against the spirit of the sharing of responsibility at different level i.e. at the level of District Forum, State Commission and this Commission under the Consumer Protection Act, 1986. If this Commission takes up the complaint case involving refund of paid amount of Rs.7,29,369/-, this will be gross violation of the provisions of the Consumer Protection Act, 1986.

From the above, it is clear that even if the value of simple interest @18%p.a. for 16 years on the amount paid by the complainant i.e. Rs.7,29,369/- is taken into account and if the compensation of Rs.20,00,000/- as demanded is also taken into consideration, the value of goods and/or services along with compensation does not cross rupees one crore. Hence, this Commission lacks pecuniary jurisdiction to decide the present complaint.

Based on the above discussion, the consumer complaint No.1169 of 2018 is dismissed on account of this Commission not having pecuniary jurisdiction to decide the instant complaint. However, the liberty is granted to the complainant to file an appropriate complaint before the State Commission for redressal of his grievance. The time taken from the date of filing of the complaint till disposal in this Commission shall not be counted towards limitation if a fresh complaint is filed before the State Commission.