National Consumer Disputes Redressal
Dr. Punam Dahiya vs M/S. Parker Estate Developers Pvt. Ltd. on 10 May, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 1377 OF 2016 (Against the Order dated 29/07/2016 in Complaint No. 305/2011 of the State Commission Delhi) 1. DR. PUNAM DAHIYA ...........Appellant(s) Versus 1. M/S. PARKER ESTATE DEVELOPERS PVT. LTD. ...........Respondent(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Appellant : Mr. Vikas Deep, Advocate For the Respondent :
Dated : 10 May 2018 ORDER
This appeal has been filed by the appellant Dr. Punam Dahiya against the order dated 29.07.2016 of the State Consumer Disputes Redressal Commission, Delhi (in short 'the State Commission') passed in Complaint No.305 of 2011.
2. Brief facts of the case are that complainant (subsequent purchaser) got a flat transferred in her name and entered into an agreement dated 12.03.2007 for the purchase of the dwelling unit. The total cost of the flat was Rs.33,99,750/- (inclusive of the external development charges, PLC etc.). Complainant paid Rs.33,85,259/-. As the possession was not delivered in time, the complainant filed a consumer complaint before the State Commission. The complaint was resisted by the respondent/opposite party on the ground that the offer of possession was made in February, 2011 and occupancy certificate was also obtained on 25.01.2012. The complainant did not come forward to take possession and therefore, no deficiency can be attributed to the opposite party/respondent.
3. However, learned State Commission vide its order dated 29.07.2016 allowed the complaint and directed the opposite party to refund Rs.33,85,239/- with interest @ 12% p.a. from 12.03.2007 the date of agreement between complainant and opposite party till date of payment.
4. Aggrieved with the order of the State Commission, the present appeal has been filed by the complainant.
5. Heard the learned counsel for the appellant at the admission stage. Learned counsel stated that State Commission has awarded only 12% p.a. interest on the deposited amount which is to be refunded by the opposite party. It was argued that in Civil Appeal Nos.6730-6731 of 2012, K.A.Nagamani Vs. Housing Commissioner Karnataka Housing Board, decided on 19.09.2012 (SC), Hon'ble Supreme Court ordered refund of deposited amount along with 18% p.a. interest. Hon'ble Supreme Court has clearly noted that if a person does not get a house, he has suffered double loss as his money was locked for many years and he has not got the appreciation associated with the property and therefore, such person is entitled to get higher rate of interest. It was further argued that similarly, this Commission in consumer case No.282 of 2012, Dewan Ashwani & 7 Ors. Vs. Unitech Reliable Projects Pvt. Ltd. has also allowed 18% p.a. interest on the amount of refund to the complainants. Based on the above two judgements, the learned counsel prayed that 18% p.a. interest should also be allowed on the amount of refund instead of 12% p.a. as awarded by the State Commission. It was further argued by the learned counsel that the State Commission has not awarded any compensation for mental agony and harassment faced by the complainant, whereas in the case Civil Appeal Nos.6730-6731 of 2012, K.A.Nagamani Vs. Housing Commissioner Karnataka Housing Board (supra), Hon'ble Supreme Court, apart from 18% pa. interest on the refunded amount, has also awarded a compensation of Rs.50,000/- to be paid to the complainant. This Commission has also granted a compensation of Rs.1,00,000/- to each complainant in the matter of Dewan Ashwani & 7 Ors. Vs. unitech Reliable Projects Pvt. Ltd. (supra). Accordingly, it was prayed that a reasonable compensation be also allowed to the complainant/appellant.
6. I have carefully considered the arguments advanced by the learned counsel for the appellant and have examined the record. It is seen that the judgment of the Hon'ble Supreme Court referred to by the complainant in Civil Appeal Nos.6730-6731 of 2012, K.A.Nagamani Vs. Housing Commissioner Karnataka Housing Board, (supra)has different facts. In that case, builder/developer changed the allotment of the complainant for which higher price was demanded and the complainant was not in a position to give that price and therefore, the refund was asked. However, in the present case, even fit out possession was offered of the allotted flat in February, 2011 as completion certificate was already received. The occupancy certificate was also received on 25.1.2012 and therefore, there should have been no reason for the complainant for not taking the possession if the complainant was really in need of the house. Similarly in the other case referred to by the learned counsel for the complainant in consumer case No.282 of 2012 (supra), it is seen that in this case the opposite party/builder has clearly stated that it was not possible for the builder to hand over the possession and therefore, the refund was ordered along with 18% p.a. interest and compensation. As stated above, in the present case, the possession was offered, but the same was not taken by the complainant as she wanted refund due to delay in possession. Thus, both the judgments cited by the learned counsel are not applicable in the present case and no parity can be drawn among the complainants in these cases. The rate of interest awarded by the State Commission seems to be sufficient and reasonable keeping in view the present market scenario of interest and the bank rates. Obviously, the whole process of getting first a flat booked and then on minor delay in handing over possession, asking for refund with 18% p.a. interest and compensation to enrich oneself cannot be allowed to happen as this would be against the spirit of the Consumer Protection Act, 1986.
7. Coming to the compensation demanded by the petitioner the State Commission observed the following:-
"16. Regarding compensation for mental agony, harassment it may be mentioned that grant of interest @12% takes care of harassment and mental agony also. That is inclusive of all i.e. compensation, agony and loss of earnings by way of interest by the complainant."
8. I agree with the above observation of the State Commission as the interest has also been seen as part of compensation as observed by the Hon'ble Supreme Court in Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65. Moreover, in the light of finding arrived at in the previous paragraph, I do not find any ground for awarding separate compensation to the petitioner in the facts and circumstances of the present case.
9. Based on the above discussion, I do not find any merit in the first appeal No.1377 of 2016 and the same is dismissed at the admission stage.
...................... PREM NARAIN PRESIDING MEMBER