National Consumer Disputes Redressal
Shri Yogesh Sharma & Anr., vs M/S Unitech Limited, on 26 November, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 267 OF 2014 1. Shri YOGESH SHARMA & ANR., S/o Shri R. K. Sharma, E-229, Astha Kunj, Sector-18, Rohini, DELHI - 110089. ...........Complainant(s) Versus 1. M/s UNITECH LIMITED, Through its Chairman/Director, 6, Community Centre, Saket, NEW DELHI - 110017. ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER
For the Complainant : Ms. Ritu Gupta, Advocate
Mr. Ajay Kumar, Advocate
Mr. Yatinder Garg, Advocate For the Opp.Party : Mr. Sunil Goel, Advocate
Mr. Jatin Kumar, Advocate
Dated : 26 Nov 2015 ORDER
JUDGMENT
The complainants, who are husband and wife, booked a residential flat with the opposite party in a project named 'CAPELLA', which it was seeking to develop on Plot No.GH-01, Sector-MU, Greater NOIDA, Distt. Gautam Budh Nagar, U.P. The price of the flat was agreed at ₹57,96,116/- and the complainants paid a total sum ₹55,49,812/- to the opposite party. It was agreed that the possession of the flat will be handed over to the complainants within 40 months of the Agreement. The opposite party however failed to deliver the possession of the flat by the stipulated date. Being aggrieved, the complainants are before us by way of this complaint seeking refund of the aforesaid amount of ₹55,49,812/- along with ₹64,93,279/- as interest on that amount @ 18% per annum computed w.e.f. 03.12.2007 and compensation for mental pain, harassment etc. quantified at ₹50,00,000/-.
2. The complaint has been resisted by the opposite party inter-alia on the ground that it is barred by limitation and has not been filed by a competent person. On merits, allotment of Apartment No.404 in Tower 9, measuring 1870 sq. ft. to the complainants has been admitted. It is however alleged that though the land measuring 100 acres was allotted to the opposite party by Greater Noida Industrial Development Authority in Sector MU of Greater Noida on 15.09.2006 and Lease Deed in its favour was also executed on 22.01.2007, followed by possession certificate dated 29.01.2007, actual physical possession could not be handed over to the opposite party due to agitation by local farmers. It is further alleged that due to global meltdown and local market dynamics in real estate industry, the investment value in this project underwent a sea-change and the project therefore got belated due to circumstances beyond the control of the opposite party. It is also claimed by the opposite party that since the amount paid by the complainants was less than ₹1 Crore this Commission does not have pecuniary jurisdiction to entertain this complaint.
3. The first question which arises for consideration in this case is as to whether the complaint is barred by limitation prescribed in Section 24-A of the Consumer Protection Act. The contention of the learned counsel for the opposite party in this regard is that since last payment was made on 17.01.2008, the complaint could have been filed latest by 17.01.2010. He also contended during the course of hearing that even if the period of limitation is computed from the date by which the possession was promised to the complainants, it is barred by limitation.
4. Section 24-A of the Consumer Protection Act, to the extent it is relevant, provides that the complaint shall not be admitted unless it is filed within two years from the date on which the cause of action has arisen. The term 'cause of action' has not been defined in the Act but it is generally understood to mean the whole set of facts which the party will have to prove, in order to succeed in his claim. It was held by Hon'ble Supreme Court in Dr. V.N. Srikhande vs. Mrs. Anita Sena Fernades JT 2010 (11) SC 524 that the term cause of action used in the aforesaid section has to be interpreted keeping in view the context in which it has been used and the object of the legislation.
5. The complainants having booked the residential flat which the opposite party promised to deliver within 40 months from the date of the agreement between the parties which in this case was 10th January 2008, they had no cause of action to file this complaint before 10th May 2011 when the aforesaid period of 40 months expired. Computed from that date the complaint could have been filed by 10th May, 2013. However, before that date, the opposite party offered allotment of an alternative flat to the complainants. Vide email dated August 19, 2011 sent to the complainant, the opposite party offered to provide a unit in Habitat and Verve in Greater Noida and he was requested to come to their office for selection of unit and pricing. Vide email dated 14.05.2013, the opposite party again informed the complainant that they had units in Unihomes Phase 3 in Sec-113 Noida and in Unihomes Phase 2, Sec-117. He was asked to go through the website and provide his preference. He was told that he would be provided the unit in the project selected by him. The aforesaid emails constitute an acknowledgement of liability, within the meaning of Section 18 of Limitation Act and therefore a fresh period of limitation starts from the date on which the aforesaid acknowledgments were made. The acknowledgment of liability is implicit in offering alternative accommodation to the complainants since in the absence of such a liability there could no question of the opposite party offering an alternative accommodation to the complainants. It was held by the Hon'ble Supreme Court in Food Corporation of India Vs. Assam State Cooperative Marketing & Consumer Feberation Ltd. & ors., Civil Appeal No.2259 of 1999 decided on 26.10.2004 that to amount to an acknowledgement of liability within the meaning of Section 18 of Limitation Act, it need not be accompanied by a promise to pay either expressly or even by implication. It was observed that the exact nature or the specific character of the said liability may not be indicated in words which only could indicate the existence of jural relationship between the parties as that of debtor or creditor. It was further observed that such intention can be inferred, by implication, from the nature of statement and need not be expressed in words. It was also observed that the Courts generally lean in favour of the liberal construction of such statement though an acknowledgement shall not be inferred where there is no admission, so as to fasten liability on the maker of the statement by an involved or farfetched process of reasoning.
6. The first acknowledgement having been made on 19.08.2011 a fresh period of limitation commencing from that date would have ended on August 2013. Before expiry of the aforesaid period, a new offer was made by the opposite party vide email dated 14.05.2013. If the period of limitation is computed from the date of the second acknowledgment dated 14.05.2013, the complaint is well within the period of limitation prescribed in Section 24-A of the Consumer Protection Act. There was no necessity of opposite party expressly admitting its liability to refund the amount received from the complainants. A jural relationship between the parties is admitted by the offer of alternative accommodation to the complainants.
7. As regards the plea that the complaint has not been instituted by competent person, I find no merit in the plea taken by the opposite party. The complaint has been instituted by Shri Naresh Kumar as Special Attorney of the complainants Shri Yogesh Sharma and Smt. Kusum Sharma, who are permanent residents of USA. The aforesaid power of attorney has been authenticated by Public Notary namely Rebecca Joy Melin of USA on 01.03.2014. She certified that Yogesh Sharma and Kusum Sharma subscribed to the instrument and acknowledged to her that they had executed the same. Thus, the Power of Attorney by Shri Yogesh Sharma and Smt. Kusum Sharma in favour of Shri Naresh Kumar, who appears to be the brother of Shri Yogesh Sharma and brother in law of Smt Kusum Sharma has been duly authenticated by a Public Notary.
8. There is a statutory presumption under Section 85 of Evidence Act that the Power of Attorney was executed by the person by whom it purports to have been executed and the person who executed the power of attorney was fully competent in this regard. In Jugraj Singh and Anr. Vs. Jaswant Singh and Ors., AIR 1971 SC 761, the Power of Attorney attested by a Public Notary was disputed on the ground that it did not show on its face that the Notary had satisfied himself about the identity of the executant. Supreme Court held that there was a presumption of regularity of official acts and that the Notary must have satisfied himself in the discharge of his duties that the person who was executing it was the proper person. In Rajesh Wadhwa vs. Sushma Govil, AIR 1989, Delhi 144, it was contended before the Court that till it is proved that the person who signed the said power of attorney was duly appointed attorney, the court cannot draw a presumption under Section 57 and 85 of the Evidence Act. Repelling the contention, it was held by Delhi High Court that the very purpose of drawing presumption under Sections 57 and 85 of the Evidence Act would be nullified if proof is to be had from the foreign country, whether a particular person who had attested the document as a Notary Public of that country is in fact a duly appointed Notary or not. When a seal of the Notary is put on the document, Section 57 of the Evidence Act comes into play and a presumption can be raised regarding the genuineness of the seal of the said Notary, meaning thereby that the said document is presumed to have been attested by a competent Notary of that country. In Punjab National Bank vs. Khajan Singh, AIR 2004 Punjab and Haryana 282, the Power of Attorney in favour of a bank, which had been duly attested, was rejected by the learned District Judge on the ground that the presumption under Section 85 of Evidence Act was available to a particular class of Power of Attorneys described in the section, which was confined to its execution and authenticity alone. The High Court, however, rejected the view taken by the learned District Judge holding that absence of proof of resolution authorizing the executant to execute the Power of Attorney could not be sustained and a presumption in favour of the attorney would arise under Section 85 Act.
9. It was contended by the learned counsel for the opposite party the statutory presumption under Section 85 of Evidence At can be drawn only in respect of Power of Attorney authenticated by Public Notary in India and the said presumption is not available in respect of an instrument purports to have been authenticated by a Notary Public of USA or some other country. We however find no merit in the said contention. This issue came up for consideration of the Hon'ble Supreme Court in Jugraj Singh and Anr. Vs. Jaswant Singh & Ors., 1970 (2) SCC 386. In the case before the Hon'ble Supreme the second Power of Attorney was executed before a Notary Public who complied with the law of California and authenticated the document as required by that law. Rejecting the challenge to the said authentication, it was held that the Power of Attorney was duly authenticated in accordance with law.
10. This issue came up for consideration before Delhi High Court in National And Grindlays Bank Ltd. vs. World Science News and Ors., AIR 1976 Delhi 263. In that case, the Power of Attorney was executed before and authenticated by a Notary Public of London. It was contended before the High Court that Notary Public in Section 85 of Evidence Act means Notary appointed under the Notaries Act, 1952. The contention however was rejected noticing that Notaries Act, 1952 was not even enacted when Evidence Act came in force in the year 1872. It was also held that in the present day of international commerce, there is no reason to limit the word Notary Public to the Notaries appointed in India. Reliance was placed by Delhi High Court upon the decision of the Hon'ble Supreme Court in Jugraj Singh (Supra). It was also observed that if interpretation of Notary Public is limited to those appointed in this country only, it will become impossible to carry on commerce with foreign countries. In view of the above referred judicial pronouncements, there is no merit in the contention that the complaint has not been instituted by a competent person.
11. Coming to the merits of the case, we find no substance in the plea that the construction of the project was delayed on account of agitation by the famers. It is the opposite party itself has placed on record a copy of the possession certificate dated 29.01.2007 whereby the possession of a plot of land measuring 404172.36 sq. mtrs. bearing no.GH-01 in Sec-MU was taken over by it on 29.01.2007. In view of the aforesaid document, it would be difficult for us to accept the contention that actual possession on the site was not taken over by the opposite party. Had that been the position, the possession letter would not have been executed by the opposite party.
12. The opposite party has placed on record the copy of a letter dated 02.09.2008 purporting to have been written by it to GNIDA stating therein that physical possession was not possible due to incomplete infrastructural jobs like sector roads, sewer, drainage etc. If GNIDA was required to provide sector roads, sewer, drainage etc before physical delivery of the plot the opposite party ought not to have sold flats in the project in question to the perspective byers. We are unable to appreciate how the opposite party could possibly to have accepted money from the buyers and executed agreement with them without having physical possession on the site. It is stated in the aforesaid letter dated 02.09.2008 that the opposite party had applied for approval of the building plans, which were pending before the Authority "SINCE LAYOUT WAS YET TO BE FINALISED BY IT". Again we are unable to appreciate how the opposite party could accept money from the flat buyers and enter into agreement with them without getting the building plans approved. As regards the delay in approval of the building plans, we have no information as to when the said building plans were approved by GNIDA, but in our opinion, the opposite party ought not to have accepted money and entered into agreement with the buyers without approval of the building plans by GNIDA. If the opposite party chose to accept money from the flat buyers and enter into agreements, undertaking to give possession within a particular time frame, without having possession of the land and without approval of the building plans, it is only itself to blame for a situation in which the construction got delayed on account of the delay in approval of building plans and physical delivery of the land to it on the spot. As far as the flat buyers is concerned, considering the commitment made to them by the builder, they were justified in believing that the possession of flat would be delivered to them on or before the last date stipulated in the agreement in this regard.
13. As regards the other grounds taken in the reply for the delay in execution of the project, this Commission has already rejected those grounds in number of complaints. In Swarn Talwar & Ors. vs. Unitech Ltd., C.C. No.347 of 2014 decided on 14.08.2015 wherein the opposite party had failed to construct flats in a project known as Unitech Habitat in Greater Noida, this Commission while directing the opposite party to refund of the amount deposited by the flat buyers along with interest on that amount @ 18% per annum inter-alia held as under:-
"8. As regards the plea that in terms of Clause (c) of the allotment letter the opposite party is required to pay only the holding charges calculated at the rate of Rs.5/- per sq.ft. per month of the super area for the period the possession is delayed, such a contention was expressly rejected by us in Puneet Malhotra (supra) holding that such clause applies only in a case where construction of the flat is delayed but despite delay the buyer accepts the possession of the flat from the seller and consequently the accounts have to be settled between the parties. We observed in this regard that the buyer would have to pay the agreed holding charges to the seller and the seller to pay the agreed compensation on account of delaying the construction of the flat. The said clause, however, does not apply to a case where the buyer on account of delay on the part of the seller in constructing the flat is left with no option but to seek refund of the amount which he had paid to the seller. We further held that such a clause where the seller in case of default on the part of the buyer seeks to recover interest from him at the rate of 24% per annum will amount to an unfair trade practice since it gives an unfair advantage to the seller over the buyer. We also noted in this regard that enumeration of the unfair trade practices in Section 2(r) of the Act is inclusive and not exhaustive.
This plea was also negatived by us in a batch of complaints CC No.427 of 2014, Satish Kumar Pandey & Anr. Vs. Unitech Ltd. and connected matter, decided on 08-06-2015. All those complaints were filed against none other than the opposite party in these matters, namely, Unitech Ltd.
9. Coming to the pleas that there was recession in the economy and a disruption due to agitation by farmers and acute shortage of labour, etc., the following view taken by us In Satish Kumar Pandey (Supra) is relevant.
"Neither any new legislation was enacted nor an existing rule, regulation or order was amended stopping suspending or delaying the construction of the complex in which apartments were agreed to be sold to the complainants. There is no allegation of any lock-out or strike by the labour at the site of the project. There is no allegation of any slow-down having been resorted to by the labourers of the opposite party or the contractors engaged by it at the site of the project. There was no civil commotion, war, enemy action, terrorist action, earthquake or any act of God which could have delayed the completion of the project within the time stipulated in the Buyers Agreement. It was contended by the counsel for the OP that the expression 'slow down' would include economic slow-down or recession in the Real Estate sector. I, however, find no merit in this contention. The word 'slow down' having been used alongwith the words lock-out and strike, I has to be read ejusdem generis with the words lock-out and strike and therefore, can mean only a slow down if resorted by the labourers engaged in construction of the project.
As regards, alleged shortage of labour, I find that no material has been placed on record by the OP that despite trying, it could not be get labourers to complete the construction of the project within the time stipulated in the Buyers Agreement. It was submitted by the learned counsel for the complainants that ordinarily big builders such as the OP in these cases, are contracting/sub-contracting the construction work to the contractors engaged by them, instead of employing their own labourers on a regular basis, the purpose being to ensure that they are not saddled with the wage bill of those regular labourers, in case the opposite party does not have adequate work for them. There is no evidence of the OP having been invited tenders for appointment of contractors / sub-contractors for executing the work at the site of those projects and no contractor/ sub-contractor having come forward to execute the project on the ground that adequate labour was not available in the market. Therefore, it cannot be accepted that the opposite party could not have arranged adequate labour, either directly or through contractors/sub-contractors, for timely completion of the project. As regards the alleged shortage of water, bricks and sand in the market, I find that there is no evidence filed by the OP, to prove that it was unable to procure water, sand and brick in adequate quantity. This is also their case that the notification of the Government, being relied upon by the opposite party, is an old notification, which was in force even at the time the opposite party promised possession in 36 months. There is no evidence of the opposite party having invited tenders for supply of bricks and water and there being no response to such tenders. In fact, if the work is to be executed through contractors/sub-contractors, the material such as bricks, sand and even water will be arranged by the contractor/sub-contractor and not by the opposite party. As noted earlier, there is no evidence of the opposite party having invited tenders after awarding the work of project in question to the contractors/sub-contractors and there being no response to such tenders. Therefore, I find no merit in the plea that the completion of the project was delayed due to non-availability of water, sand and bricks in adequate quantity.
It is an undisputed proposition of law that ordinarily the parties are bound by the terms and conditions of the contract voluntarily agreed by them and it is not for a Consumer Forum or even a Court to revise the said terms.
However, a term of a contract, in my view will not be final and binding if it is shown that the consent to the said term was not really voluntary but was given under a sort of compulsion on account of the person giving consent being left with no other choice or if the said term amounts to an unfair trade practice. It was submitted by the learned counsel for the complainants that the term providing for payment of a nominal compensation such as Rs.5/- per square foot of the super area having become the order of the day in the contracts designed by big builders, a person seeking to buy an apartment is left with no option but to sign on the dotted lines since the rejection of such term by him would mean cancellation of the allotment. He further submitted that a person seeking to acquire a built up flat instead of purchasing a plot and then raising construction on it, therefore, is not in a position to protest resist the inclusion of such a term in the Buyer's Agreement, and has to rely upon the reputation of the builder, particularly if he is a big builder such as Unitech Ltd. He also submitted that the format of the Buyer's Agreement is never shown to the purchasers at the time of booking the apartment and if he refuses to sign the Buyer's Agreement on the format provided by the builder, not only will he lose the booking, even the booking amount/earnest money paid by him will be forfeited by the builder. I find merit in the above referred submissions of the learned counsel. A person who, for one reason or the other, either cannot or does not want to buy a plot and raise construction of his own, has to necessarily go in for purchase of the built up flat. It is only natural and logical for him to look for an apartment in a project being developed by a big builder such as the opposite party in these complaints. Since the contracts of all the big builders contain a term for payment of a specified sum as compensation in the event of default on the part of the builder in handing over possession of the flat to the buyer and the flat compensation offered by all big builders is almost a nominal compensation being less than .25% of the estimated cost of construction per month, the flat buyer is left with no option but to sign the Buyer's Agreement in the format provided by the builder. No sensible person will volunteer to accept compensation constituting about 2-3% of his investment in case of delay on the part of the contractor, when he is made to pay 18% compound interest if there is delay on his part in making payment.
It can hardly be disputed that a term of this nature is wholly one sided, unfair and unreasonable. The builder charges compound interest @ 18% per annum in the event of the delay on the part of the buyer in making payment to him but seeks to pay less than 3% per annum of the capital investment, in case he does not honour his part of the contract by defaulting in giving timely possession of the flat to the buyer. Such a term in the Buyer's Agreement also encourages the builder to divert the funds collected by him for one project, to another project being undertaken by him. He thus, is able to finance a new project at the cost of the buyers of the existing project and that too at a very low cost of finance. If the builder is to take loan from Banks or Financial Institutions, it will have to pay the interest which the Banks and Financial Institutions charge on term loan or cash credit facilities etc. The interest being charged by the Banks and Financial Institutions for financing projects of the builders is many times more than the nominal compensation which the builder would pay to the flat buyers in the form of flat compensation. In fact, the opposite party has not even claimed that the entire amount recovered by it from the flat buyers was spent on this very project. This gives credence to the allegation of the complainants that their money has been used elsewhere. Such a practice, in my view, constitutes unfair trade practice within the meaning of Section 2(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practice for the purpose of selling the product of the builder. Though, such a practice does not specifically fall under any of the Clauses of Section 2(r) (1) of the Act that would be immaterial considering that the unfair trades, methods and practices enumerated in Section 2(r) (1) of the Act are inclusive and not exhaustive, as would be evident from the use of word "including" before the words "any of the following practices".
It would also be pertinent to note here that as pointed out by the complainants the agitation of the farmers was on account of acquisition of land in Noida Extension and not on account of acquisition of land on which the project in which the flats were to be constructed for the complainants. As regards the alleged delay in obtaining environmental clearances there is no material on record to show when the opposite party applied for such clearances, where they submitted all the requisite documents etc. while applying for such clearances and how much was the time taken by the concerned authorities in granting the said clearances. In the absence of such particulars, it would be difficult for us to accept that development of the project was delayed on account of any notification imposing restrictions on new projects. In any case, the opposite party has failed to produce before us any notification imposing restriction or prohibition on development of the project in which the flats were to be constructed for the complainants.
10. In K.A. Nagmani Vs. Housing Commissioner, Karnataka Housing Board, CA No.6730-6731 of 2012 decided on 19-09-2012, the complainant who was awarded interest by this Commission at the rate of 12% per annum on the refund amount, felt aggrieved and approached the Hon'ble Supreme Court for grant of a higher interest. Despite the respondent in the above referred matter being a statutory body unlike the opposite party which is a private builder, the Hon'ble Supreme Court, relying upon its earlier decision in Ghaziabad Development Authority Vs. Balbir Singh (supra) and noticing that the complainant was suffering a loss inasmuch as she had deposited the money in the hope of getting a flat but was being deprived to get the flat and thereby deprived of the benefit of escalation of the price of the flat held, that the compensation would necessarily be higher. The Hon'ble Supreme Court, therefore, granted interest to the complainant at the rate of 18% per annum from the date of deposit till the date of realization along with further compensation quantified at Rs.15,000/- for deficiency in service and Rs.20,000/- towards the cost of litigation.
14. It is a matter of common knowledge that, there has been substantial appreciation in the land value in Greater Noida, since 2006. This can be verified even from a comparison of the Circle rates of land in Greater Noida in the year 2006, with the circle rates of land in 2015, which is an information available in public domain. It can also not be disputed that there has been steep increase in the cost of construction in last about nine years. Therefore, if the complainants have to purchase today the built up flats of the same size and specifications and in the same locality, the cost may not be less than the price agreed to be paid by the complainants to the opposite party, and interest thereon at the rate of 18% per annum. Moreover, the complainants are also entitled to suitable compensation for the mental agony and harassment undergone by them in last about nine years, awaiting a roof over their head, and making numerous calls and visits to the office of the opposite party. Therefore, refund with simple interest at the rate of 18% per annum as a comprehensive all-inclusive compensation is fully justified in these cases. In any case, if we award lesser interest, an unscrupulous builder may, instead of completing the project for which money has been collected from the flat-buyers, divert the funds to other projects / activities, since cost of borrowing for him may be higher than what he is made to pay to the flat-buyer as interest. Therefore, we must necessarily take a view, which will discourage any such misuse/ diversion of funds by the builder."
14. As regards pecuniary jurisdiction of this Commission to entertain complaints whereby the amount paid by the flat buyers was less than ₹1 Crore, this Commission in Swarn Talwar (Supra) observed and held as under:-
"5. The first question which arises for our consideration in these cases is as to whether this Commission possesses the requisite pecuniary jurisdiction to entertain these complaints. Section 11(1) of the Consumer Protection Act read with Section 21 of the Consumer Protection Act to the extent it is relevant provides that this Commission shall have jurisdiction to entertain complaints where the value of the goods or services and compensation if any claimed exceeds Rs.1,00,00,000/-. The contention of the learned counsel for the opposite party is that interest claimed by the complainants cannot be termed as compensation and if the interest component is excluded, the pecuniary value of the complaint does not exceed Rs.1,00,00,000/- except in one case. The learned counsel for the complainants on the other hand contended that the interest which they have claimed along with refund of the principal sum even if not so described specifically, is by way of compensation only, since the opposite party has been deficient in rendering services to the complainants by not delivering possession of the flats on or before the time agreed in this regard.
6. In our view, the interest claimed by the flat buyers in such a case does not represent only the interest on the capital borrowed or contributed by them but also includes compensation on account of appreciation in the land value and increase in the cost of construction in the meanwhile. As noted by us in CC No.232 of 2014, Puneet Malhotra Vs. Parsvnath Developers Ltd. decided on 29-01-2015, there has been steep appreciation in the market value of the land and cost of construction of the residential flats in Greater Noida in last about 7-10 years and consequently the complainants cannot hope to get a comparable flat at the same price which the opposite party had agreed to charge from them. In fact it would be difficult to get a similar accommodation, even at the agreed price plus simple interest thereon at the rate of 18% per annum. Therefore, the payment of interest to the flat buyers in such a case is not only on account of loss of income by way of interest but also on account of loss of the opportunity which the complainants had to acquire a residential flat at a particular price.
7. In Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65, the Hon'ble Supreme Court inter alia observed and held 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.
It would, thus, be seen that the Hon'ble Supreme Court recognized that the interest to the flat buyers in such cases is paid by way of compensation. Therefore, there is no reason why the interest claimed by the complainants or at least part of it should not be taken into consideration for the purpose of deciding the pecuniary jurisdiction of this Commission. If this is done, the aggregate amount claimed in each of the complaints exceeds Rs.1,00,00,000/- and, therefore, this Commission does possess the requisite pecuniary jurisdiction."
15. In the present case, aggregate of the amount paid by the complainants and compensation in the form of simple interest @ 18% per annum on that amount comes to more than ₹1 Crore. Therefore this Commission does possess the requisite pecuniary jurisdiction.
16. For the reasons stated hereinabove, the opposite party is directed to refund the amount paid to it by the complainants, along with compensation in the form of simple interest on that amount, at the rate of 18% per annum from the date of deposit till the date of payment. The payment shall be made within six weeks from today. In the facts and circumstances of the case there shall be no order as to cost. The complaint stands disposed of.
......................J V.K. JAIN PRESIDING MEMBER