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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Ajit Bharihoke, Presiding Member and Anup K Thakur, Member
DLF Homes Panchkula Pvt. Ltd.
and Anr. —Appellants
versus
Himanshu Arora and Anr. —Respondents
First Appeal Nos.123 to 134, 156 to 167, 286 to 289, 291 to 297, 312, 315, 318, 319, 321, 644 and 1491 of 2017
Decided on 11.12.2017
For the Appellants:Mr. Krishnan Venugopal, Sr. Advocate Assisted by Mr. Akarshan Sahay, Mr. Uday Rathore and Ms. Seema Sundd, Advocates
For the Respondent in FA/123/2017 to 128/2017, FA No.156/2017 to 161/2017, FA No.163/2017 to 166/2017, FA/293/2017, FA/312/2017, FA No.318/2017 and 319/2017:Mr. Narender Yadav, Mr. Anand Prakash and Mr. Anand Prakash, Advocates
For the Respondent in FA No.129/2017:Mr. Parveen Gupta, Advocate
For the Respondent in FA No.130 to 133 of 2017, FA No.167/2017, FA No.294 of 2017 and FA/1491/2017:Mr. Naveen Sheokand, Advocate
For the Respondent in FA No.134/2017, FA No.286 to 288/2017 and FA No.291/2017:Mr. Sudhir Kathpalia, Advocate
For the Respondent in FA No.162/2017:Mr. Sukaam Gupta, Advocate
For the Respondent in FA No.289/2017:Mr. Sukaam Gupta, Advocate, Proxy Counsel for Mr. Mukund Gupta, Advocate
For the Respondent in FA No.297/2017, FA No.296/2017 and 295/2017:Mr. Naveen Sheokand, Advocate, Proxy Counsel for Mr. Surender Deswal, Advocate
For the Respondent in FA No.321 and 644/2017:Mr. Sandeep Chhabra, Advocate
For the Remaining Respondents: Nemo
IMPORTANT POINT
The amount of compensation must commensurate to the actual damage suffered by the claimant which is also to be established by the evidence.
Headnote:Consumer Protection Act, 1986—Real Estate—OP had taken on the task of developing a housing project at Kalka—Pinjore Urban Complex—Complainants had invested in the area through advance bookings, and OP was required to develop project within twenty four months—Nothwithstanding the formal commitments, OPs did not deliver on time—OP did not provide facilities that were guaranteed under the agreement such as swimming pool, covered parking, library etc—Construction quality is aso abysmal—Demand for immediate delivery and compenstaion for deficiencies sought—OP argues that Complainants would not quailfy as ‘consumers’—Complainants would be compensated at the rate of nine percent, and not twelve percent as previously directed by the State Commission—Appeal partly allowed.
Held: It is well settled principle of law that incase of violation of contract, the amount of compensation must commensurate to the actual damage suffered by the claimant which is also to be established by the evidence. In the instant case, the respondents/complainants have not led any evidence to show the extent of damage suffered due to the failure of the opposite party/appellant to perform its part of contract. Be that as it may, the fact remains that the complainants have paid substantial amount against the agreed consideration amount to the appellants from time to time and the appellants have realized that money. Had the appellants borrowed said money from financial institution they would have paid substantial amount of interest on the same. Similarly, the complainants also, if they had deposited that money in bank in a fixed deposit amount, would have earned interest on the same. At the relevant time when the complainants entered into contracts and paid installments against the consideration amount, the going bank rate for fixed deposit was around 9% p.a. Therefore, in our view, awarding 9% interest on the refund amount would have met the ends of justice. It is pertinent to note that even in clause 15 of the floor buyer agreement between the parties the parties had agreed that in case of abandonment, refund of money shall be there alongwith interest on the specific payments. State Commission has failed to consider the aforesaid aspect while awarding compensation. Therefore, we are inclined to reduce the interest payable on the refund amount to 9%.
In view of the discussion above, we partially allow the appeals and while confirming the order of the State Commission we modify the same only to the extent that the interest payable on the refund amount to the respective respondents/complainants shall be 9% instead of 12% or more as awarded by the State Commission.
It is clarified that in the cases of refund 9% interest shall be payable on the refund amount calculated from the dates of respective payments of installments till the date of refund. And in the cases in which possession has been delivered with delay the 9% interest shall be payable on the respective amounts paid in installments from the dates of said payments till the date of delivery of possession.
Appeals are disposed of accordingly. (Paras 28 to 31)
Result: Appeal partly allowed.
Ajit Bharihoke, Presiding Member—By this order, we propose to dispose of the above noted appeals preferred by the opposite party developer against three common orders of the State Commission, UT Chandigarh dated 5.12.2016, 3.1.2017 and 9.1.2017 involving similar question of fact
2. Briefly stated, the facts relevant for the disposal of the appeals are that appellant opposite parties undertook to develop a residential group housing project “The Valley” situated in Sector 3, Kalka-Pinjore Urban Complex. The respondents complainants booked flats in the aforesaid project on various dates and paid certain amounts against the consideration agreed between the parties. The appellant opposite party executed independent Floor Buyers Agreement in favour of the respondents complainants allotting independent floors / flats to the complainants alongwith parking.
3. As per the agreement, the appellant opposite party subject to Force Majeure clause was required to deliver possession of the unit booked by the respective complainants within 24 months from the date of execution of the respective agreements. The agreement further provided that in case of any delay beyond 24 months, the opposite parties were to pay compensation @ Rs.10/- per sq. feet per month of the saleable area to the Allottees.
4. It is the case of the complainants that despite of the commitments made in the agreement, the opposite party failed to deliver possession of the respective flats within the stipulated period. The opposite party published an advertisement on 13.01.2014 wherein they promised to hand over possession of the flats to the respondents complainants in 2014. Despite the said promise, the opposite party failed to deliver possession even by the extended date till the filing of the consumer complaints.
5. It is further the case of the complainants that opposite party have not provided community hall, covered stilt parking, yoga centre, proper swimming pool, library, card / carom room, pool/billiards room and a club house with modern facilities as promised under the Builder Buyer Agreement. Even the quality of construction done by the opposite party is very poor. Claiming failure of the opposite party to fulfil his part of obligation under the agreement as deficiency in service as also unfair trade practice, the respondents complainants filed respective complaints in the State Commission seeking direction to the opposite party to hand over physical and legal possession of the unit in question, complete in all respects after obtaining all permission and requisite certificates including completion certificates besides interest calculated @ 12% p.a. or more in some cases on the deposited amount from the date of respective payments till the dates of delivery of possession to the respective complainants. The complainants have also claimed compensation @ Rs.10/- per sq. ft. of the saleable area per month for the period of delay alongwith 24% interest p.a. from 07.01.2011 besides Rs.5.00 lakhs as compensation on account of agony, harassment and mental disturbance and also litigation expenses.
6. The opposite parties on being served with the notice of the respective complaints filed written statements resisting the complaints. In their respective written statements the opposite parties took the preliminary objection that respective complainants/respondents in these appeals are not the consumers as they had booked the floors in the subject project for the purpose of earning profit by resale at a higher price. The opposite parties also took the plea that in view of clause 55 of the builder-buyer agreement the subject dispute should be referred to arbitration. A separate application under Section 8 of the Arbitration & Conciliation Act, 1996 was also moved in this regard.
7. So far as the merits of the case are concerned, the opposite parties in the respective wri
