National Consumer Disputes Redressal
Sushma Buildtech Ltd. vs Jagsukhbir Kaur & 3 Ors. on 6 October, 2020
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 468 OF 2020 (Against the Order dated 05/03/2020 in Complaint No. 177/2019 of the State Commission Chandigarh) 1. SUSHMA BUILDTECH LTD. WRONGLY IMPLEADED AS M/S. SUSHMA BUILDTECH LTD., THROUGH ITS AUTHORISED REPRESENTATIVE, UNIT NO. B-107, BUSINESS COMPLEX, AT ELANTE MALL, 1ST FLOOR, INDUSTRIAL AREA PHASE-1, CHANDIGARH, U.T. 160002 ...........Appellant(s) Versus 1. JAGSUKHBIR KAUR & 3 ORS. W/O. CMDE DEVINDER SINGH, R/O. H NO. A-904, SUSHMA CRESCENT, GAZIPUR ROAD, DHAKAULI, ZIRAKPUR, DISTT-MOHALI, 2. MR. BINDER PAL MITTAL (CHAIRMAN) (M/S. SUSHMA BUILDTECH LIMITED) UNIT NO. B-107, BUSINESS COMPLEX, AT ELANTE MALL, 1ST FLOOR, INDUSTRIAL AREA PHASE-1, CHANDIGARH-U.T.-160002 3. MR. BHARAT MITTAL, DIRECTOR, (M/S. SUSHMA BUILDTECH LIMITED), UNIT NO. B-107, BUSINESS COMPLEX, AT ELANTE MALL, 1ST FLOOR, INDUTRIAL AREA PHASE-1, CHANDIGARH-U.T.-160002 4. MR. PRATEEK MITTAL (EXECUTIVE DIRECTOR) M/S. SUSHMMA BUILDTECH LIMITED,) UNIT NO. B-107, BUSINESS COMPLEX, AT ELANTE MALL, 1ST FLOOR, INDUSTRIAL AREA PHASE-1, CHANDIGARH ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER
For the Appellant : Mr. Arjun Jain, Advocate For the Respondent : Mr. Amarjeet Singh, Advocate
Dated : 06 Oct 2020 ORDER
HON'BLE MR. JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL)
The complainant/respondent was allotted a residential flat in a project namely 'Sushma Crescent' which the appellant was to develop in Gazipur, Zirakpur. The allotment was made vide letter dated 05.11.2011. The allotment was followed by execution of an agreement between the parties on 23.12.2011. As per clause 15 of the agreement executed between the parties, the possession of the allotted flat was to be delivered to the complainant within 36 months of the execution of the agreement meaning thereby that the possession ought to have been delivered by 23.12.2014. A grace period of six months was also available to the appellant for delivering possession and therefore, the appellant could have delivered possession of the allotted flat by 23.06.2015. The possession however, was offered to the complainant on 18.06.2018 and was eventually taken on 17.08.2018. The agreement between the parties envisaged payment of compensation @ Rs.5/- per sq. ft. per month, for the period the possession was delayed and the said compensation was paid to the complainant before the delivery of possession. After taking possession of the allotted flat, the complainant approached the concerned State Commission by way of a Consumer Complaint seeking compensation for the period the possession was delayed.
2. The complaint was resisted by the appellant on several grounds which may not be relevant for the purpose of deciding this appeal, only a limited notice restricted to the quantum of compensation having been issued to the respondent/complainant. The State Commission, vide impugned order dated 05.03.2020, directed as under:
To pay compensation, by way of interest @ 9% p.a., on the deposited amount (Rs.61,88,000/-), to the complainant, from the due date i.e. 22.06.2015 till possession was actually delivered to the complainant i.e.17.08.2018, after adjusting the amount of Rs.4,18,803/- already paid as compensation by the Opposite Parties to the complainant, within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @ 12% p.a. instead of 9% p.a., from the date of default, till realization.
The Opposite Parties are directed to pay compensation, in the sum of Rs.1,00,000/- on account of mental agony and physical harassment, caused to the complainant, within 45 days from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @ 12% p.a. from the date of filing the complaint till realization.
The Opposite Parties are directed to pay cost of litigation, to the tune of Rs.45,000/- (as prayed for) to the complainant, within 45 days from the date of receipt of a certified copy of this order, failing which, the same shall also carry interest @ 12% p.a. from the date of filing the complaint till realization.
3. Being aggrieved from the order passed by the State Commission, the appellant approached this Commission by way of this appeal. Vide its order dated 31.07.2010, this Commission issued notice limited to the quantum of compensation to the complainant/respondent. Therefore, I have heard the learned counsel for the parties on quantum of compensation.
4. The learned counsel for the appellant has drawn my attention to the following endorsement made by the complainant while receiving possession of the flat on 04.09.2018 and has submitted that the complainant, by way of the said endorsement, had restricted his claim only to the interest on the compensation paid to him by the appellant for the period the possession had been delayed and therefore, the additional compensation if any, to the complainant cannot exceed the interest component on the contractual compensation already paid to him by the appellant.
"This set of cheques does not represent the full amount of delayed possession payments, which should be till the date mentioned on "Certificate of Possession" and not "Offer of Possession". Also the payments for "delayed possession" have been paid very late and no interest thereon is also considered due."
5. In my opinion, the above referred endorsement did not take away the right of the complainant to approach a Consumer Forum for seeking an appropriate compensation for the period the possession was delayed by the appellant. Though the complainant sought interest on the contractual compensation which the appellant had already paid to him, he did not relinquish or gave up his right to avail a statutory remedy for claiming an appropriate compensation for the defect or deficiency in the services rendered to him by the appellant company. Therefore, I have no hesitation in holding that even despite the above referred endorsement, the complainant was entitled to an appropriate compensation.
6. The issue related to grant of compensation for the period the possession is delayed by a builder/developer, recently came up for the consideration of the Hon'ble Supreme Court in Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. vs. DLF Southern Homes Pvt Ltd (now Known as BEGUR OMR Homes Pvt. Ltd.) and Ors. in Civil Appeal No. 6239 of 2019 decided on 24.08.2020. There was a delay on the part of the developer in offering possession. Besides the delay in offering possession, it had also failed to provide several amenities which it had promised while selling the flats to the buyers. The Hon'ble Supreme Court held that not providing those amenities including a shopping center and health-care facilities constituted deficiency in service and the flat buyers were entitled to compensation on account of the failure of the developer to provide those amenities. It was noted that in such a situation it may be difficult for the court to quantify the exact nature of the compensation that should be provided to the flat buyer but generally appreciation in land value results in an increase in the value of the investment made by the buyers. It was further held that difficulties in determining the measure of compensation cannot dilute the liability to pay and a developer who has breached a clear representation made to the buyer should be held accountable to the process of law. The Hon'ble Supreme Court held that in factoring in the compensation which should be provided to the flat buyers, this has to be borne in mind. Thus, the Hon'ble Supreme Court granted compensation not only on account of the delay in offering possession of the flats but also on account of the failure of the developer to provide several amenities which it had promised to the flat buyers. The Hon'ble Supreme Court, awarded the compensation in the form of simple interest @ 6% p.a from the expiry of 36 months from the execution of the agreement until the date of offer of possession besides permitting the allottees to retain the compensation which had been paid or credited by the developer at the rate specified in the agreements between the parties. However, in the present case, the complainants shall be entitled to compensation only for the delay in offer of possession since this is not a case also of not providing the agreed amenities. Therefore, it would be fair and reasonable to award compensation in the form of simple interest @ 6% p.a. w.e.f. the committed date for delivery of possession till the date on which the possession actually offered in terms of this order.
7. For the reasons stated hereinabove, the appeal is disposed of with the following directions:
(i) The appellant shall pay compensation in the form of simple interest @ 6% per annum with effect from 23.06.2015 to 17.08.2018, on the entire principal amount which the complainant had paid to the appellant on or before 23.06.2015.
(ii) The contractual compensation already paid by the appellant to the complainant, shall be set off while paying compensation in terms of direction (i) above.
(iii) The complainant shall also be entitled to the cost of litigation as awarded by the State Commission.
(iv) The payment in terms of this order shall be made within two months from today.
(v) The appellant had made some deposit with this Commission in terms of the interim order passed by this Commission. The said amount shall be released to the appellant alongwith interest if any, which may have accrued on that amount after the appellant has complied with this order in all respects.
......................J V.K. JAIN PRESIDING MEMBER