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Judgment
Sudip Ahluwalia, Member
This Revision Petition has been filed against the impugned Order dated 16.11.2016 passed by the Ld. State Consumer Disputes Redressal Commission, Chhattisgarh in FA/2016/705, vide which the Appeal filed by the Petitioners was dismissed, and the Order of the Ld. District Forum was set-aside.
The factual background, in brief, is that the Complainant booked Plot Nos. S(143), S(363), and S(364) and paid regular instalments amounting to Rs. 18,70,800/-. After three months, the Complainant requested for information regarding transfer and diversion papers, but the Opposite Party No. 1 provided only excuses. The Complainant submitted an application to the Opposite Party No. 1, highlighting that the promises made at the time of booking were not being fulfilled. During this time, the Complainant discovered that the booked plots did not belong to Opposite Party No. 1 but to 'Silver Developers.' Additionally, the information provided by Opposite Party No. 1 about a 60-foot road connecting to the main road was false, as the land belonged to the Government and could not be acquired by them. Despite promises to refund the amount, the Opposite Party No. 1 never refunded her money. On 02.06.2015, the Complainant personally submitted an application at the office of Opposite Party No. 2 in Nagpur, demanding a refund. Although she was assured that the amount would be refunded, yet multiple correspondences yielded no results. A Legal Notice dated 31.07.2015 was then sent through the Complainant's Advocate, but there was no reply. Aggrieved by the deficiency in service and unfair trade practices of the Opposite Parties, the Complainant therefore filed her complaint before the Learned District Forum, Raipur.
The District Forum vide its Order dated 18.09.2015 allowed the Complaint and directed the Petitioners to refund to the Complainant the amount of Rs. 18,70,800/- with interest @ 15% p.a. from 18.09.2015, along with Rs. 20,000/- towards mental agony and Rs. 3,000/- towards litigation cost. The Petitioners then filed their Appeal before the Ld. State Commission, which dismissed the same, and affirmed the Order of the District Forum. The relevant extracts of the impugned Order are set out as below -
“11. The complainant in her complaint has mentioned that she has booked plots with the opponent No-1. That, the plots booked were plot Nos. (S) 143, (S) 363, and (S) 364, and paid the amount in installments to the opponent regularly and paid a total amount of Rs. 18,70,800/- (Eighteen lakh Seventy Thousand Eight Hundred only). The said land did not belong to the opponent No-1 but is in the name of Silver Developers. The opponents have in their written statement para No-5 accepted the fact that the complainant has booked plot Nos. (S) 143, (S) 363, and (S) 364 and have deposited an amount of Rs. 18,70,800/- (Eighteen lakh Seventy Thousand Eight Hundred only). In the same para, the opponent has promised that the company is ready to refund an amount of Rs. 18,70,800/- (Eighteen lakh Seventy Thousand Eight Hundred only) to the complainant. And in para 10, have accepted the fact that the company is ready to refund an amount of Rs. 18,70,800/- (Eighteen lakh Seventy Thousand Eight Hundred only) to the complainant but the complainant did not come to collect the money. Hence, as the appellant/opponent has in their written statement accepted that they are ready to refund the amount, in such condition the appellant/opponent is bound by its promises to refund the amount to the complainant. In this circumstance, the issues raised regarding the jurisdiction and arbitration are irrelevant and the appellants/opponents are not entitled to any benefits.
The District Forum has passed the order that the amount of Rs. 18,70,800/- (Eighteen lakh Seventy Thousand Eight Hundred only) should be refunded with interest @ 15% p.a. from the date of filing, i.e., 18.09.2015. In the agreement produced before the forum by the complainant, clause No-4 reads that in case the company cancels the project, then the full deposited amount shall be refunded with further interest @ 15% p.a.
In Bhupender Singh Vs. Unitech Ltd. 2016(3) CLT 343, the Hon'ble National Commission has passed the following order:-
"The house was not constructed, and possession of the house was not delivered. The amount is to be refunded to the complainant. The OP would return the entire amount received by it along with interest @ 18% simple interest from the dates of deposit till its realization."
In Arvinder Singh Vs. Unitech Hi-Tech Developers Limited & Anr. 2016 (3) CLT 339, the Hon'ble National Commission has ordered as follows:-
"Possession of flat was not delivered to the complainant for five years. The builder has been directed to refund the amount along with interest @ 18% per annum from the respective dates of payment of these amounts till their realization."
In Ganesh Krishnaji Apte & Anr. Vs. Goldsmith Constructions Co., II (2016) CPJ 358 (NC), the Hon'ble National Commission has passed the following order:-
"Consumer Protection Act, 1986- Section 2(l)(g), 21(b)-Housing -booking of flat- Consideration of Possession- Deficiency in service-Refund of deposited amount sought. Before the sale of the flat to a third party, OP vide order sheet dated 26.4.2006 refused to transfer the flat in favor of the complainant. It shows the arrogance, high-handedness, and arbitrariness on the part of OP. OP should have agreed to put complainant's possession of the flat on 26.4.2006 before it was sold to a third party. Customers are exasperated by the senseless delay made by the builder. OP is directed to pay to the complainant Rs. 16,75,000 with interest @ 18% p.a."
In Sou. Shobha Vasantrao Timase & Anr. Vs. Dinbandhu Bhoomvikas Sanstha, 2016 (2) CPR 888 (NC), the Hon'ble National Commission has ordered as follows.
"16. For all the aforementioned reasons, and also the judgments of the Hon'ble Apex Court in Ghaziabad Development Authorities Vs. Balbir Singh, (2004) 5 SCC 65: [2004] 5 Supreme 51, wherein the Hon'ble Apex Court held that the grant of interest @ 18% was justifiable as the party suffered loss in as much 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 the escalation of the price of that flat/plot. Therefore, the compensation in such cases would necessarily have to be higher.
Recently, the Hon'ble Supreme Court in K.A. Nagamani Vs. Karnataka Housing Board, Civil Appeal Nos. 6730-31 of 2012, decided on 19.09.2012, held that refund of the amount to the complainants along with compensation in the form of simple interest @ 18% p.a. from the date of deposit till the date of payment is justifiable for the mental agony and harassment undergone by the Complainants in cases where delivery of possession of plots has not been given."
In view of the above judgments, the District Forum has ordered the refund of the amount deposited by the complainant with interest @ 15% p.a. on the said amount from the date of filing of the complaint is absolutely fair, and it does not call for any interference.
The District Forum has ordered to pay Rs. 20,000/- (Twenty Thousand only) for mental harassment. As the complainant has deposited the amount and it was clearly told by the complainant that the land of plots which were booked was not in the name of the appellants/opponents. Hence in such circumstances, the mental agony occurred to the complainant is but natural. Looking at the above fact, the District Forum has ordered to pay Rs. 20,000/- (Twenty Thousand only) for mental harassment is absolutely fair.
The order passed by the District Forum is absolutely as per law. There are no irregularities and unlawful acts in it. Hence, it needs no interference.
Hence, the appeal of the appellants/opponents being baseless is dismissed. The order passed by the District Forum dated 06.10.2016 is hereby confirmed. The appellants/opponents shall pay the cost of this dispute Rs. 5000/- (Five Thousand only) to the complainant.”
Ld. Counsel for Petitioners/Opposite Parties has argued that both the lower Fora failed to appreciate that the Petitioners have not committed any deficiency in their services and that the allegations made in the complaint are false, baseless, and without merit; That the lower Fora did not consider that the Complainant booked three plots, indicating that the bookings were not for personal use but as an investment with the intention to sell the plots at higher prices, given Raipur's exponential growth in the real estate sector; That the present dispute concerns an open plot, and according to the judgment by the Hon'ble Apex Court in “Ganeshlal v. Shyam, 2014 (14) SCC 774” the complaint is not maintainable as the District Forum lacks jurisdiction over disputes involving the sale of open plots, which do not fall within the definitions of housing activity or deficiency. Hence, the impugned Order should be quashed and set aside; That the lower Fora also failed to acknowledge that the Petitioners did not dispute the amount received from the Complainant and had issued valid receipts. The Petitioners were ready to refund the amount as per the agreement's terms and conditions, but the lower Fora misinterpreted Clause 4 of the Agreement, leading to incorrect findings; That the Petitioners could not register the sale deed or refund the amount due to a pending dispute before the Hon'ble High Court of Chhattisgarh, as evidenced by the Arbitration Application No. 53/2015 (“Vatsalya Builders and Developers v. Silver Developers & other”). The cheque was ready, but the Complainant did not provide the original documents or accept the cheque; That the complaint filed by the Complainant before the District Forum was done with malafide intentions and ulterior motives, indicating no deficiency in service by the Petitioners, thus warranting the quashing and setting aside of the impugned order; That the Hon'ble High Court of Chhattisgarh, in its Order dated 27.04.2017 in Arbitration Application No. 53/2015, had appointed an Arbitrator for the land dispute, thereby divesting the Consumer Fora of its jurisdiction and necessitating the quashing and setting aside of the impugned Order.
Ld. Counsel for Respondent/Complainant has argued that the State Commission, in Paragraphs 11 and 12 of the impugned Order, has provided observations regarding the order of the District Forum and the entire case dispute. The State Commission noted in Paragraph 11 that the Petitioners, in Paragraphs 5 and 10 of their Written Statement, expressed their readiness to refund the amount of Rs. 18,70,800/-, yet they failed to actually refund this amount to the Complainant. This clearly demonstrates that the Petitioners have committed a deficiency of service and engaged in unfair trade practices, making the orders of the State Commission and the District Forum justified and not warranting interference; That the State Commission in Paragraphs 13-17 has cited judgments from the Hon’ble Apex Court and this Commission, relying on these judgments to pass a legal and well-founded order that does not require any interference; That after thoroughly reviewing the entire facts and evidence of the case, the State Commission has issued a legal order that stands firmly on its merit and does not call for any interference.
This Commission has heard both the Ld. Counsel for Petitioners and Respondent, and perused the material available on record.
It is the own case of the Petitioner that it was willing to refund the amount of Rs. 18,70,800/- paid by the Complainant. This in itself is an admission that there was deficiency in service on the part of the Petitioners in not being able to provide the promised plot to the Complainant/Respondent alongwith the other amenities and developmental works as originally promised. According to the Deed of Conveyance executed in favour of the Complainant on 28.8.2012, the development work was to be executed within 24 months. But the Petitioners failed to do so, and were admittedly in no position to do the needful even at any reasonably foreseeable time in future, on account of the dispute regarding title of the land pertaining to the Project in question.
There is nothing on record to show how and in what manner the Petitioners had approached and offered the Complainant the amount which was to be refunded.
Consequently, this Commission finds no impropriety in the decisions of both the Ld. Fora below directing the Petitioners to refund the amount of Rs. 18,70,800/- to the Respondent/ Complainant. The rate of interest awarded by way of compensation @ 18% p.a. however does appear to be excessive in view of the decision of the Hon’ble Supreme Court in “Experion Developers (P) Ltd. v. Sushma Ashok Shiroor, (2022) 15 SCC 286”, in which it had been held that in such a situation, compensation by way of interest @ 9% p.a. would sub-serve the ends of justice.
The Revision Petition is, therefore, allowed after partially modifying the impugned Orders of both the Ld. Fora below to the extent that instead of the rate of interest awarded @ 18% p.a., the Petitioners shall refund amount of Rs. 18,70,000/- to the Complainants alongwith interest @ 9% p.a. from the date of each respective deposit within 03 months from the date of this Order. Other reliefs granted by the Ld. State Commission are affirmed, and in addition, the Respondent is awarded further litigation costs of Rs. 20,000/-.
In the event of failure to make the payment(s) within the time granted, any outstanding amount shall attract interest @ 12%, p.a. till the date of its final realisation.
Pending application(s), if any, also stand disposed off as having been rendered infructuous.