State Consumer Disputes Redressal Commission
Ashish Kumar Singh vs M/S Ansal Properties And ... on 9 January, 2024
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 Complaint Case No. CC/115/2020 ( Date of Filing : 06 Jul 2020 ) 1. Ashish Kumar Singh S/O Late Sri Ganesh Prasad Singh R/O J.S.Q.C. 4, ACC Colony Gauriganj Amethi ...........Complainant(s) Versus 1. M/S Ansal Properties and Infrastructure Ltd Through its Chairman /M.D. Regd. Office of th Oppositye Parties is Situated at 115 Ansal Bhawan 16 Kassturba Gandhi marg New Delhi 110001 Branch Office Opposite Parties is Situated 1st Floor Y.M.C.A. Building 13 Rana Pratap Marg Lucknow ............Opp.Party(s) BEFORE: HON'ABLE MR. JUSTICE PRESIDENT PRESIDENT HON'BLE MR. Rajendra Singh JUDICIAL MEMBER HON'BLE MR. Vikas Saxena JUDICIAL MEMBER PRESENT: Dated : 09 Jan 2024 Final Order / Judgement Reserved State Consumer Disputes Redressal Commission U.P. Lucknow. Complaint Case No.115 of 2020 1- Ashish Kumar Singh, aged 49 years, S/o Late Sri Ganesh Prasad Singh. 2- Mrs. Bhawna Bharti Singh, aged about 39 years W/o Sri Ashish Kumar Singh, Both complainants are R/o J.S.Q.C., 4, AC.C. Colony, Gauriganj, Amethi. ...Complainants. Versus 1- M/s Ansal Properties and Infrastructure Ltd., through its Chairman. 2- Chairman/Managing Director, M/s Ansal Properties and Infrastructure Ltd., 3- Arin Ghosh, Authorized Signatory, M/s Ansal Properties and Infrastructure Ltd., Registered office of the opposite parties is situated at 115, Ansal Bhawan, 16- Kasturba Gandhi Marg, New Delhi-110001. Branch Office of the opposite parties is situated at 1st Floor, YMCA Building, 13-Rana Pratap Marg, Lucknow-226001. ...Opposite parties. Present:- 1- Hon'ble Mr. Justice Ashok Kumar, President. 2- Hon'ble Mr. Rajendra Singh, Member. Sri IPS Chaddha, Advocate for the complainant. Smt. Surangama Sharma, Advocate for the opposite parties. Date: 20.12.2023 JUDGMENT
Per Sri Rajendra Singh, Member- This complaint has been filed by the complainants for following reliefs:
a) Direct the opposite parties to refund the amount of Rs.17,25,363.00 deposited by the complainants towards the cost of the said flat alongwith 18% interest per annum, calculable from the date of respective deposit till the date of its actual return by the opposite parties.
b) Direct the opposite parties to pay a cost of Rs.10,00,000.00 to the complainants on account of substantial and un-explained delay of more than 6 years in handling over the possession of the flat in question to the complainants despite receipt of a substantial portion of consideration amount.
c) Direct the opposite parties to pay Rs.5,00,000.00 to the complainants towards harassment and mental agony.
d) Direct the opposite parties to pay a cost of Rs.5,00,000.00 to the complainants on account of deficiency in service and unfair trade practice.
e) Direct the opposite parties to pay Rs.50,000.00 as cost of legal notice and the present litigation.
f) Grant any relief, as deemed fit by this Hon'ble Commission, in the facts and circumstances of the present case, otherwise the complainants shall suffer irreparably.
In brief the complainants' case is that, that the opposite parties were indulged in multi-housing scheme in the name of Pinewood Villas in their Sushant Golf City Project situated at Sultanpur Road, Lucknow. The Opposite parties approached the general public, as also the complainants, by way of advertisement of the said project and approached the complainants and furnished pictures and brochures of the said proposed project and assured the public at large and the complainants of a lavish lifestyle in best location and posh society and assured that the proposed villas in the said project shall be readied and delivered very soon. The opposite parties led the complainants into false beliefs by their false promises and assurance, and as such, on 2.2.2014, the complainants were made to deposit an amount of Rs.3,25,000.000, whereafter on 5.2.2014, the opposite parties allotted a unit no.3807-0-N/01/0156, Pinewood villas (DA-V) in the Sushant Golf City Project of the opposite parties, situated at Sultanpur Road, Lucknow.
The total cost of the said unit was Rs.55,72,577.00 and the payment mode was "interest free instalment Plan" (Construction Linked Plan). The said unit was to be built on plot no.0156 having plot area of 124 square metres (162 square yards) and the built up area of the unit was to be 1315 square feet. Pursuant to deposit of Rs.3,25,000.00, an agreement dated 6.3.2014 was executed between the parties, whereunder, preferential location charges at the rate of Rs.424.6 per square metre was made applicable to the complainants and was included in the total payable amount. Thus, the agreed basic price of the unit was Rs.55,03,780.00 and the preferential location charges payable were Rs.68,797.25. Hence, the total cost price payable for the said unit was Rs.55,72,577.00. The amount paid by the complainant towards the cost price of the said unit is Rs.17,02,163.00 and Rs.23,199.00 towards preferential location charges. Thus, admittedly, the total amount paid by the complainants is Rs.17,25,362.17 and the balance amount of Rs.38,47,215.00 is to be paid upon achievement of construction milestone by the respondents as it is "construction linked plan".
It is pertinent to mention here that although the allotment of the aforesaid unit was done on 5.2.2014 but it was revealed by the opposite parties at a much later stage that the construction was to be completed within 2 years after receipt of sanction of building plans by the development authority.
It is submitted that the complainants have been making continuous request to the opposite parties that they are in utter urgent need of the said flat for their own residential purposes, however, their requests have been falling on deaf ears and no heed has been paid to it by the opposite parties at all, even after lapse of a substantial time of more than 6 years. The complainants met the officials of the opposite parties several times and even were forced to send a legal notice to all the opposite parties, but the said notice has neither been replied nor complied with by any of the opposite parties till date.
It is submitted that the aforesaid conduct of the opposite parties is a glaring example of deficiency in service and unfair trade practice, whereby they have maliciously and in a planned manner, siphoned off and misappropriated the huge amount of Rs.17,25,362.00 paid by the complainants as cost of the said flat while the construction of the said flat is far from commencement. It is pointed out here that clause 10 of the agreement expressly stipulated that the developer may condone the delay in deposition of instalments by charging an interest @ 18% per annum on the said outstanding amount.
The complainants are entitled to adequate compensation for the mental shock and agony that has been caused by deliberate and calculated actions of the opposite parties and the immeasurable hardship and harassing that the complainants have been subjected to by the opposite parties through their deficient services and unfair business conduct.
In this case after perusal of the order sheets, it is clear that the counsel for the opposite parties filed Vakalatnama in February, 2022. After perusal of the records we find that written statement has been submitted on 24.7.2023. We know that as per the provisions of the Consumer Protection Act, time limit for filing the written statement is 30 days and it can be extended for 15 days if so prayed by the opposite parties but in total the written statement should have been filed within 45 days from the service of notice to the opposite parties. The opposite parties have filed Vakalatnama in February, 2021 and the written statement has been filed on 24.7.2023. In this respect, we have to see following judgment of the Hon'ble Supreme Court.
A Constitutional Bench ( 5 JJ ) of the Hon'ble Supreme Court In the Case of New India Assurance Company Vs. Hilli Multipurpose Cold Storage Private Limited, Civil Appeal no.10941-10942 of 2013 along with other many related Civil Appeals (judgment 04.03.2020) held ;
"The reference made to this Constitution Bench relates to the grant of time for filing response to a complaint under the provisions of the Consumer Protection Act 1986 (for short the Act').
The first question referred is as to whether Section 13(2) (a) of the Consumer Protection Act, which provides for the respondent/opposite party filing its response to the complainant within 30 days or such extended period, not exceeding 15 days should be read as mandatory or directory; i.e., whether the District Forum has power to extend the time for filing the response beyond the period of 15 days, in addition to 30 days.
The second question which is referred is as to what would be the commencing point of limitation of 30 days stipulated stipulated under the aforesaid Section.
The first question was referred by a two Judges bench of this Court vide an order dated 11.02.2016 passed in Civil Appeal No(s) 1083-1084 of 2016, M/S Bhasin Infotech and Infrastructure Pvt Ltd Vs M/S Grand Venezia Buyers Association ( Reg), the relevant portion of which is as under :
"there is an apparent conflict between the decision of this Court in Topline Shoes Limited vs Corporation Bank [(2002)6 SCC 33], Kailash vs. Nankhu [(2005)4 SCC 480] , Salem advocate Bar Association VS Union of India [(2005) 6 SCC 344] on the one hand and J J Merchan & Ors. vs Shrinath Chaturvedi [(2002) 6 SCC 635)] and NIA Vs Hilli Multipurpose Cold Storage [ 2014 AIOL 4615] on the other in so far as the power of the courts to extend time for filing of Written Statement/reply to a complaint is concerned. The earlier mentioned line of decision take the view that the relevant provisions including those of Order 8 Rule 1 of the Civil Procedure Code 1908 are directory in nature and the Courts concerned have the power to extend time for filing the written statement. The second line of decisions which are also of coordinate Benches however takes a contrary view and hold that when it comes to power of the Consumer Fora to extend the time for filing a reply there is no such power. Since the question that falls for determination here often arises before the Consumer Fora and Commissions all over the country it will be more appropriate if the conflict is resolved by an authoritative judgment. Further since the conflict is between Benches comprising three Judges we deem it fit to refer these appeals to a five - Judge Bench to resolve the conflict once and for all. While we do so we are mindful of the fact that in the ordinary course a two - Judge Bench ought to make a reference to a three - Judge Bench in the first place but in the facts and circumstances of the case and keeping in view the fact that the conflict is between coordinate benches That comprising three Judges a reference to 3 Judges may not suffice".
The Hon'ble Supreme Court in para 41 of the judgment has held "To conclude, we hold that our answer to the first question is that The District Forum has no power to extend the time for filing the response to the complainant beyond the period of 15 days in addition to 30 days as envisaged under section 13 of the Consumer Protection Act ; and the answer to the second question is that the commencing point of limitation of 30 days under Section 13 of the Consumer Protection Act would be from the date of receipt of the notice accompanied with the complainant by the opposite party and not mere receipt of the notice of the complainant."
The Hon'ble Supreme Court in para 40 of the judgment has held ".............. we may, however, clarified that the objection of not having received a copy of the complaint along with the notice should be raised on the first date itself and not thereafter, otherwise permitted to be raised at any point later on defeat the very purpose of the Act, which is to provide simple and speedy Redressal of consumer disputes."
[Section 38 of the Consumer Protection Act 2019 has also the same time limit to file written statement. It is quoted hereinbelow;
38. Procedure on admission of complaint -(1) the District Commission shall , on admission of a complaint, or in respect of cases referred for mediation on failure of the agreement by mediation proceed with such complaint.
(2) were the complainant relates to any goods, the discussion That shall -
(a) referral copy of the admitted complaint, within 21 days from the date of its admission to the opposite party mentioned in the complaint directing him to give his version of the case within a period of 30 days or such extended period not exceeding 15 days as may be granted by it ; ] According to section 49 of The Consumer Protection Act 2019, the provisions relating to complainants under section 35, 36, 37, 38 and 39 shall, with such modifications as may be necessary, be applicable to the disposal of complaint by the State Commission.
So in this case the written statement has been filed beyond the prescribed period as mentioned in section 49 of the Consumer Protection Act 2019. As per the Act and as per the judgment of the Hon'ble Supreme Court (Constitutional Bench) this written statement is not liable to be taken on record so it will be not the part of the record.
If a party did not submit his written statement within the prescribed period then he can only argue the case at the time of argument and no evidence etc. can be filed in the absence of written statement as held by the Hon'ble Supreme Court in the following judgment.
In the case of ARN Infrastructure India Ltd. Vs. Hara Prasad Ghosh, Civil Appeal Nos. /2023, (@ Civil Appeal Diary No(s). 31182/2023); (Judgment September 4, 2023), Hon'ble Supreme Court has held:
"On perusal of the impugned order, we note that a proxy counsel appeared for the counsel for the appellant/Opposite party herein before the NCDRC, seeking an adjournment of the case. Although the opposite party had not filed its version and may not have participated in the proceedings before the NCDRC, nevertheless, had the right to address final arguments before the NCDRC. In order to do so a short adjournment was sought by the appellant/opposite party before the NCDRC. However, the NCDRC refused to grant the adjournment for the reasons that no written version had been filed by the appellant/opposite party before the NCDRC. In fact learned counsel for the respondent brings to our notice that even Vakalatnama was not filed on behalf of the appellant/opposite party before the NCDRC. However, the fact remains that the counsel was engaged to seek an adjournment in order to address arguments on merits. The opposite party had the right to do so even in the absence of filing its written version against the complaint. Since the request for adjournment was refused and only the complainant was heard on merits, we find that there has been a violation of the principles of natural justice. On that short ground alone the impugned orders are set aside. The matter is remanded to the NCDRC in order to grant a reasonable opportunity to both sides to address arguments on merits in the said complaint."
So in this case the opposite party has a right to argue only.
We have heard Sri IPS Chaddha, ld. counsel for the complainants and Smt. Surangama Sharma, ld. counsel for the opposite parties. We have perused the pleadings, evidences and documents are present on record.
First we see the main objectives of Consumer Protection Act 1986.
What are the main objectives of Consumer Protection Act?
The Consumer Protection Act, came into existence and implemented in 1986, provides Consumer Rights to prevent consumers from fraud or specified unfair practices. It safeguards and encourages and gives an opportunity to consumers to speak against insufficiency and flaws in goods and services. If traders, manufacturers and distributors follow any foul trade, this act protects their rights as a consumer.
On which products are these right applicable?
This Consumer Protection Act covers entire goods and services of all sectors that are public, private, or cooperative sectors, except those exempted by the central government. The act provides a floor for a consumer where one can file their complaint against the product and the forum takes an action against the concerned supplier and compensation is granted to the consumer for the inconvenience he/she has encountered.
Objectives of consumer protection act To Provide better and all round protection to consumer.
To Provide machinery for the speedy redressal of the grievances.
To Create framework for consumers to seek redressal.
To Provide rights to consumers.
To Safeguarde rights of Consumers.
Let us know more about the rights and responsiblities of consumer Consumer Rights Listed below are the Rights of the Consumer Right to Safety- Before buying, a consumer can examine on the quality and guarantee of the goods and opt for ISI or AGMARK products.
Right to Choose- Consumer must have the right to choose from a variety and number of goods and in a competitive price Right to be informed- The buyers must be provided with complete information with all the necessary and adequate details of the product, make her/him act wise, and change the buying decision.
Right to Consumer Education- The consumer must be aware of his/her rights and avoid exploitation.
Right to be heard- The consumer will get due attention to express their grievances at a suitable platform.
Right to seek compensation- The consumer has the right to seek or ask for redressal against unfair and inhumane practices or exploitation of the consumer.
Consumer Responsibilities Responsibility to be aware - A consumer has to be careful of the safety and quality of products and services before purchasing.
Responsibility to think independently- Consumer should be well bothered about what they want and need and hence make independent choices.
Responsibility to speak out- The buyer should be fearless to speak out their problems and tell to traders what they exactly want Responsibility to complain- It becomes the consumer's responsibility to express and file a complaint about their dissatisfaction with goods or services in a sincere and fair manner.
Responsibility to be an Ethical Consumer- Consumer must be fair and not engage themselves with any deceptive practice.
The Consumer Protection Act 1986 was enacted to provide for better protection of the interests of consumers and for that purpose to make provision for the establishment of Consumers Councils and other authorities for the settlement of consumers' disputes and for matters connected therewith (Preamble).
The Act Inter alia, seeks to promote and protect the rights of consumers such as --
(1) right to be protected against marketing of goods which are hazardous to life and property;
(2) right to be informed about the quality, quantity, potency, purity, standard and price of goods to protect the consumer against unfair trade practices;
(3) right to be assured, wherever possible, access to variety of goods at competitive prices;
(4) right to be heard and to assured that customers' interests will receive due consideration at appropriate forums.
(5) Right to seek redressal against unfair practices or unscrupulous exploitation of consumers; and (6) Right to consumer education The objects are sought to be promoted and protected by the Consumer Protection Councils to be established at the Central and State levels.
The Act applies to all goods and services, except if otherwise provided by the Central Government by Notification. To provide speedy and simple redressal of consumer disputes, a quasi judicial machinery is set up at the District, State and Central levels. The three tier system of quasi judicial bodies will observe the principle of natural justice and are empowered to give relief of a specific nature and to award, wherever appropriate, compensation to consumers. Penalties for non-compliance of the orders given by the quasi judicial bodies have also been provided.
Thus the Consumer Protection Act is to serve the interests of the consumers. Consumer education and redressal of consumers' grievances are the two aspects of the Act. It makes good the loss a consumer suffers and increases the feeling of responsibility of the manufacturer, trader, supplier or businessman.
The provisions of the Act have to be construed in favor of the consumer to achieve the purpose of enactment as it is social benefit oriented legislation. The primary duty of the Court while construing the provisions of such an Act is to adopt a constructive approach subject to that it should not do violence to the language of the provisions and not contrary to attempted objective of the enactment.
Extent of Consumer Protection:
While other legislations may be either punitive or preventive, the Consumer Protection Act compensates the consumer. The provisions of the Act are in addition to and not in derogation of the provisions of any law at the time being in force (Sec 3). In Maine Container Services South Pvt. Ltd. v. Go Go Garments 1998 (3) SCC 247 it has been held that the Contract Act applies to all litigants before the Commissioner under the Consumers Protection Act. Passengers traveling in train suffering injuries and loss of Jewelry as a result of assault by unruly crowd are eligible for filing of complaint before State Commission is maintainable notwithstanding the provisions of sections 100 and 103 of Railways Act, 1889. The Consumer Protection Act therefore gives the consumer an additional remedy besides those which may be available under other existing laws. Existence of an arbitration clause in the agreement is no bar to the entertainment of complaint by the Redressal Agency as the remedy under the Act is in addition to the provisions of any other law. However, the Consumer Forums under the Act have not taken over the jurisdiction of civil Courts. If the dispute between the parties is pending in Civil Court no Consumer Forum will adjudicate the dispute. Similarly if evidence be laid by the parties to the dispute is voluminous or complicated the parties will be referred to the appropriate Civil Court.
Consumers Protection Act, thus enshrines the rights of a consumer to be informed about the quality, quantity, potency, price etc., of the goods to be protected against unfair trade practices, to seek inexpensive and expeditious redressal of grievances before the Consumer Forums. Consumer Protection Act is a benevolent piece of legislation to protect a large body of consumers from exploitation.
With the passage of time, the populace of the country is on hike and so are their opinions. Their opinion forms the basis for their interpretation, it may be a good or a bad interpretation. What would happen in the situation where people starting interpreting the laws? We might be flooded with several interpretations. The interpretations will be in such huge number that the laws will become unclear. This is the reason why lawmakers, while making the law, formulate itin accordance with the aim, set out by them, before penning down the legislations. The aim of any legislation defines the basis of the act. It becomes the ground norm of the act, based upon which the judiciary interprets the disputed texts.
The aim of any act forms the indispensable element, because it acts as the cord that delivers the real intention of the legislators behind the act. Whenever there is clash between two legislations, it is the aim of the legislation which makes the judges to derive at the endpoint in deciding which law has the superseding effect. It is through the doctrine of pith and substance that judges are able to derive at the major inclination towards one act over another act. This inclination is decided on the basis of the aim/goal of the act and the facts of that particular case.
The beneficial legislation of Consumer Protection Act aims at reducing the grievances of the all classes of customers by providing them the preferential treatment. According to the Consumer Protection Act, the consumer dispute is the entity where the consumer/ customers have been given the convenient safeguards against ample exploitation like bad customer service, faulty goods or any unfair trade practices. The interest of the customers is protected by setting up, the three tier quasi-judicial consumer Redressal machinery which are at national, state and district levels as per section 9 of Consumer Protection Act. The Consumer Protection Act, 1986 (CPA) has been enacted in light of certain concerns related to public policy and the benefit of consumer.So it is clear that this act to is in favour of the consumers and it has overriding effect on the arbitration act because this act is not in derogation of any act but in addition of another act.
In the present case, the complainant has deposited ₹ 325,000/- and thereafter an agreement dated the 06.03.2014 has been executed between the parties. Admittedly the complainant have deposited ₹ 1,725,362.17 the allotment of the aforesaid unit was done on 05.02.2014 but it was revealed by the opposite parties that the construction was to be completed within two years after receipt of sanction of building plans by the Development Authorities. The Complainants requested many times to the opposite parties that they are in the act are in need of a residential unit so the possession be delivered at the earliest but nothing has happened. We have seen the following judgement of the Hon'ble Supreme Court regarding delivery of possession.
Hon'ble Supreme Court in civil appeal number (S) 3533-3534 of 2017 , M/S Fortune infrastructure (NOW known as M/S Hicon Infrastructure) & Anr. Vs. Trevor D'Lima & Ors., Judgment 12.03.2018 has held:
"Moreover, a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of the amount paid by them, along with compensation. Although we are aware of the fact that when there was no delivery period stipulated in the agreement, a reasonable time has to be taken into consideration. In the facts and circumstances of this case, a time period of 3 years would have been reasonable for completion of the contract i.e., the possession was required to be given by last quarter of 2014. Further there is no dispute as to the fact that until now there is no redevelopment of the property. Hence, in view of the above discussion, which draw us to an irresistible conclusion that there is deficiency of service on the part of the appellants and accordingly the issue is answered. When once this Court comes to the conclusion that, there is deficiency of services, then the question is what compensation the respondents/complainants is entitled to ?"
So the agreement has been executed on 06.03.2014 and in view of the Hon'ble Supreme Court judgement (supra) the possession should have been delivered by 05.03.2017 but till today the possession has not been delivered so it is a clear case of deficiency of service and also unfair trade practice. So the opposite parties are liable to pay the compensation, rent, et cetera to the complainants. The complainant has prayed for the refund of their money for which he is entitled to get his all the money from the opposite parties without any deduction.
Now we have to see in the light of the following judgment of the Hon'ble Supreme Court and Hon'ble NCDRC.
Hon'ble Supreme Court has held in Ghaziabad Development Authority Vs. Balbir Singh (2004) 4 SCC 65-"The Supreme Court, at the outset, reiterated the position taken in the case of Lucknow Development Authority v. M.K. Gupta, and held that "the Consumer Protection Act has a wide reach and the Commission has jurisdiction even in cases of service rendered by statutory and public authorities". It further held that the power of the NCDRC extends to awarding compensation to consumers for misfeasance in the public office i.e. an act which is oppressive or capricious or arbitrary or negligent provided loss or injury is suffered by a citizen. Therefore, it upheld the appeals filed before it to the extent that it confirmed the jurisdiction of the NCDRC to award compensation in cases of service rendered by statutory & public authorities (the land development authorities in the present case).
As to the issue of whether the grant of interest at the rate of 18% per annum by the NCDRC in all cases is justifiable, the Supreme Court held in the negative. It stated that "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." It held it to be unsustainable. The Court further stated that the "Award of compensation must be under different separate heads and must vary from case to case depending on the facts of each case." The purpose of awarding compensation is to recompense for a loss or injury suffered and such compensation would therefore be proportional to the amount of loss and injury.
While considering the compensation to be awarded to the consumers in cases of deficiency of service by Development Authorities, the Court laid down a range of principles for the determination of the amount of compensation, summarised below:
To award compensation, the Forum or the Commission must determine that service has been deficient and/or misfeasance in public office which has resulted in loss or injury. While no hard and fast rule can be laid down, the Court gave a few instances where the award of compensation would be justifiable, including where possession is not handed over within the intimated period even though allotment is made and the price is paid. In such cases, the loss could be determined based on loss of rent which could have been earned if possession was given. Compensation could also be the scheme has been canceled without any justifiable cause, after the allotment.
Compensation cannot be uniform and to illustrate this, the Court lays down the principle to be followed for the determination of compensation in two cases- (a) where the delivery of possession is being directed, and (b) where only the monies are directed to be returned or refunded by the Court. In case (a), the compensation for harassment will necessarily have to be less since in a way the aggrieved party is being compensated by an increase in the value of the property he is getting. In case (b) however, the party is suffering a greater loss since he has been deprived of the flat/plot, and his expectation of delivery of possession. He would also be denied the benefit of an increase in the value of land and the compensation thereof. Therefore, the compensation to be awarded in such cases would have to be higher than in case (a).
The Court held that "such compensation has to be worked out after looking into the facts of each case and after determining what is the amount of harassment/loss which has been caused to the consumer."
Compensation would include compensation for physical, mental, or even emotional suffering, insult, or injury or loss."
"The consumer protection laws have a wide reach and the consumers are entitled to receive compensation for deficiency in services rendered by statutory and public authorities. The Consumer Commissions have been vested with the jurisdiction to award the value of goods or services and compensation. On being satisfied that a complainant is entitled to compensation for loss or injury or harassment or mental agony or oppression, it must direct the authority to pay compensation. A wide discretion has been given to determine the quantum of compensation for any loss or damage suffered by a consumer, to redress any injustice. However, it is a well-established principle that the computation of compensation has to be fair, reasonable, and must reconcile with the loss or injury suffered. The Consumer Forum is cast with the duty to take into account all relevant factors for arriving at the compensation to be paid.
This landmark decision has set a precedent on the matter of compensation to be awarded in matters relating to allotment of land by development authorities and has been relied upon in many subsequent cases of the Supreme Court. In the case of H. P. Housing Board v. Varinder Kumar Garg[(2005) 9 SCC 430] and Haryana Urban Development Authority vs. Darsh Kumar[(2005) 9 SCC 449], the Supreme Court directed the Commission to follow the principles laid down in the case of Ghaziabad Development Authority vs. Balbir Singh in future cases."
Hon'ble Supreme Court in the case of Haryana Urban Development ..... vs. Darsh Kumar, Etc., Civil Appeal no 5796 of 2002 decided on 28 July, 2004 has held ;
"This Court has, in the case of Ghaziabad Development Authority vs. Balbir Singh reported in (2004) 5 SCC 65, deprecated this practice. This Court has held that interest at the rate of 18% cannot be granted in all cases irrespective of the facts of the case. This Court has held that the Consumer Forums could grant damages/compensation for mental agony/ harassment where it finds misfeasance in public office. This Court has held that such compensation is a recompense for the loss or injury and it necessarily has to be based on a finding of loss or injury and must co-relate with the amount of loss or injury. This Court has held that the Forum or the Commission thus had to determine that there was deficiency in service and/or misfeasance in public office and that it has resulted in loss or injury. This Court has also laid down certain other guidelines which the Forum or the Commission has to follow in future cases.
We are informed that in spite of there being no stay, to payment of interest beyond 12% and in spite of clarification given by this Court's order (reported in (2004) 5 SCC 65), the amounts have still not been paid. We feel that for the lapse Appellants must pay interest at the rate of 15% from 17th March, 2004 till payment. Appellants shall also pay costs fixed at Rs.500/- in each case to the Legal Aid Society of the Supreme Court. The appellants must recover the amount paid towards costs personally from the officer/s, who were responsible for not paying even after clarification by this Court. We clarify that this Order shall not be taken as a precedent in any other matter as the order has been passed taking special features of the case into account. The Forum/Commission will follow the principles laid down by this Court in the case of Ghaziabad Development Authority vs. Balbir Singh (supra) in future cases. The Appeals are disposed off in above terms. There will be no order as to costs."
So it is clear that the compensation and rate of interest shall depend on the facts and circumstances of each case and no hard and fast rule can be framed. In this connection some of the judgment of the Supreme Court and Hon'ble NCDRC should be taken into account.
In the case of PRIYANKA MITTAL & ANR. V. PARSVNATH DEVELOPERS LTD. & ANR. (NCDRC).These appeals arise out of single order of State Commission, hence, decided by common order. These appeals have been filed against the order dated 25.2.2015 in Complaint Nos.18 of 2013- Nalin Bhargava & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 34 of 2013- Jasleen Viswanathan & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 58 of 2011- Janmejai Mani Tiwari Vs. Parsvnath Developers Ltd. & Anr.; 68 of 2013- Indu Singh Vs. Parsvnath Developers Ltd. & Anr.; 69 of 2013- Poonam Sagar Vs. Parsvnath Developers Ltd. & Anr.; 86 of 2010- Priyanka Mittal & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 101 of 2011- Mohd. Aslam Khan &Anr. Vs. Parsvnath Developers Ltd. & Anr.; 130 of 2012- Dr. Sunil Kr. Singh & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 49 of 2012- Neera Mittal & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 74 of 2011- Deepak Bhalla Vs. Parsvnath Developers Ltd. & Anr.; 87 of 2010- Syed Gufran Ali Alvi & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 96 of 2011- Uppasana Malik Vs. Parsvnath Developers Ltd. & Anr.; 175 of 20130- Umesh Chandra Dixit & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 97 of 2011- Pravin Kumar Goel & Anr. Vs. Parsvnath Developers Ltd. & Anr. which complaints were partly allowed.
The Hon'ble NCDRC held that:
"Brief facts of the cases are that opposite parties/respondents are engaged in the activity of housing construction and accordingly they have launched a project named as Parsvnath Planet situated in Gomti Nagar, Lucknow. The project was demonstrated to be very lucrative and made attractive to the vendees, in order to procure/collect money from the needy persons demonstrating themselves to be excellence in the field of construction activity as compared to other builders and assured the buyers/complainants that it has been duly approved by the Lucknow Development Authority and necessary permission has also been obtained from them. The emphasis was made by the opposite parties that the possession of the Unit shall be given within a scheduled period of 36+6=42 months stipulated in agreements executed in between the parties for the project launched in the year 2006. The complainants/appellants attracted by the promise and assurance of the opposite parties, somehow managed and arranged the money from their personal sources as well as on loan at attractive rate of interest and the hard earned money was paid by them to the opposite parties in a hope that the possession of the units shall be provided to them in the year 2009 and they can leave peacefully in their own houses, since the complainants are living in rented houses.
The complainants visited the construction site of the opposite parties after depositing the entire amount, where it was revealed that the construction activities were on halt and the persons available on the site told the complainants that the apartments are likely to be completed till 2015. Even the partial construction done by the opposite parties was defective and did not match the specifications provided in the agreement. The complainants were shocked on hearing it and observing the site. The complainants immediately contacted the Area Manager, who told the complainants that there is some delay in the construction of the apartment and the apartments shall be ready till June, 2010. The complainants have to repay the amount taken on loan alongwith interest without getting the possession of the allotted units causing irreparable loss and injury to them. The complainants have come to know that the opposite parties have invested the funds earmarked for this project into their other projects in other city due to which they have not been able to complete the project in time. Besides this, it has also come to the light that although the opposite parties had collected huge funds from the buyers but in spite of that the opposite parties have miserably failed to pay the dues of Lucknow Development Authority which forced the Lucknow Development Authority to issue coercive measures against the opposite parties for the recovery of their dues. Alleging deficiency on the part of opposite parties/ respondents, complainants filed separate complaints before State Commission. Aggrieved by the order of Hon'ble State Commission, these appeals preferred before Hon'ble National Consumer Disputes Redressal Commission.
Hon'ble NCDRC discussed various case laws and after hearing the parties held, "Learned Counsel for appellants submitted that as complainants have been deprived of possession for a long period beyond agreed period, it amounts to restrictive trade practice under Section 2 (nnn) of Consumer Protection Act and complainants are entitled to get compensation. Section 2 (nnn) runs as under:- means a trade practice which tends to bring about restrictive trade practice manipulation of price or its conditions of delivery or to affect flow of supplies in the market relating to goods or services in such a manner as to impose on the consumers unjustified costs or restrictions and shall include- Delay beyond the period agreed to by a trader in supply of such goods or in providing the services which has led or is likely to lead to rise in the price; Any trade practice which requires a consumer to buy, hire or avail of any goods, or, as the case may be, services as condition precedent to buying, hiring or availing of other goods or services; Perusal of aforesaid provision reveals that when opposite party delays in delivery of goods which leads to rise in the price of goods meaning thereby, more price is charged from complainant, it amounts to restrictive trade practice. In the case in hand, opposite party on account of delayed delivery of possession is not charging higher rate than the agreed rate for delivery of possession of flat, so, it does not fall within the purview of restrictive trade practice under Section 2(nnn) of Consumer Protection Act."
"Admittedly, agreements were executed in 2006 and as per agreements, possession of flats was to be delivered within 42 months, meaning thereby, possession was to be given in the year 2009-2010 and possession has not been handed over so far though year 2016 has started. No doubt, complainants are entitled to get penalty amount for delayed delivery of possession as per clause 10(c) of the agreement but opposite party cannot be permitted to avail benefit of aforesaid clause for indefinite period. This penalty clause should be allowed for the benefit of parties for a limited period and in the cases in hand, I deem it appropriate to extend applicability of aforesaid clause for a period of one year beyond 42 months and after that, complainants are certainly entitled to compensation. Opposite party cannot be allowed to avail huge funds of complainants by paying merely Rs. 5/- per sq. ft. for example, complainants who have purchased flat measuring 164.901 sq. mtr., they have made payment of about Rs. 31.00 to 32 lakhs and in the garb of clause 10 (c), opposite party is paying penalty @ approximately Rs. 9,000/- per month against enjoying funds more than Rs. 30.00 lakhs. As complainants have been deprived to shift to their flats for a long period which would not only have given them satisfaction of living in their own house but also have raised their social status and opposite party has enjoyed funds of complainants for a long period, I deem it appropriate to allow compensation @ Rs. 15,000/- p.m. to the complainants who have applied for flats upto 175 sq. mtr and Rs. 20,000/- per month to complainants who have applied for flats above 175 sq. after 54 months of execution of agreement till delivery of possession."
Against this judgment, parties went to Hon'ble Supreme Court. The judgment of Hon'ble Supreme Court is:-
In Nalin Bhargava vs. Parsvnath Developers Ltd. CA 6662/2018 @ SLP(C) 7596/2016 etc and other related civil appeals on 13 July, 2018, Hon'ble Supreme Court held:-
"Leave granted in all the special leave petitions.CA 6662/2018 @ SLP(C) 7596/2016 etc. It is submitted by Mr. M.L. Lahoty, learned counsel appearing for the appellants in all the appeals that the possession has been handed over and the deficiencies have been removed and, therefore, he has no grievance. However, Mr. Lahoty would insist that there should be imposition of costs as compensation.
Mr. Sachin Datta, learned senior counsel appearing for the developer has raised objections with regard to imposition of costs.
Having heard learned counsel for the parties, we are of the considered opinion that the cause of justice would be best subserved if each of the appellants in the present appeals are given Rs.1,50,000/- (Rupees one lakh fifty thousand only) per flat, towards costs. When we say "cost", we mean costs alone and nothing else."
In the case of Meerut Development Authority Vs. Suresh Chandra Garg, Special Leave to Appeal (C) No(s). 24059/2022, Judgment dated 05.01.2023 Hon'ble Supreme Court has held, "consequently, the present petition is disposed of with a direction, to sum up of the litigation which is pending for a long time. Let the order of the District Consumer Commission 06.09.2019 shall be complied with and the respondent be refunded the entire deposited amount with simple interest at the rate of 12% per annum within a further period of 60 days from today failing which it shall carry interest at the rate of 15% per annum until actual payment."
Therefore it is clear that the amount shall be refunded with simple interest at the rate of 12% within 60 days from the date of judgment otherwise the rate of interest shall be 15% simple interest per annum till the date of actual payment. In this case we take the cut-off date as 01.04.2017, and the interest shall be computed from 01.04.2017 till the date of actual payment.
These builders are just earning money from the consumers to whom they issued allotment letters and got a huge amount. They keep this amount for a long time and earn interest on it. Property dealing is that part of business where they never pay a penny to the consumers on their amounts deposited for a long-term or if they pay, they pay a meagre interest of about 5% or so but they charge 18 to 24% or more if the consumers default in depositing any instalment. It reminds us the story of "The Merchant of Venice" The Merchant of Venice is the story of a Jewish money lender Shylock who demands that an antisemitic Christian offer "a pound of flesh" as collateral against a loan. These acts of builders also remind us the age of Sahukari during ancient India and also during British Raj. Whether these builders have power to frame their own law? They put their terms and conditions in such a way that the sufferer will always be the consumer. The Consumer Protection Act 1986 has been enacted for the benefits of consumers, so the courts dealing with Consumer Protection Act 1986 should come forward for their rescue. The courts are not governed by the builders but they are governed by the law, Custom and Usages. Now in the background of all the facts and also the facts of the present case, we will also discuss something more. We should also see the objects of the Consumer Protection Act 1986.
The provisions of the Act have to be construed in favor of the consumer to achieve the purpose of enactment as it is social benefit oriented legislation. We have seen the various orders passed in this case in which the opposite parties be directed to refund the amount deposited by the complainant but they did not return it in its fight of getting so much time and opportunity showing their attitude towards not defending the money of the complainant. It may be one case but there may be Hundreds of cases where the opposite parties did not return the money to the allottees and they earned heavy interest on it.
In the light of the present circumstances we have perused all the facts and evidences and documents of the case and ultimately come to the final conclusion as follows ;
(a) The complainants are entitled to get a refund of ₹ 1,725,363/- from the opposite parties deposited by the complainant with opposite parties, with interest at a rate of 12% per annum from the respective dates of deposit within 60 days from the date of judgement of this complaint case otherwise the rate of interest shall be 15% per annum from the date of respective deposits till the date of actual payment.
(b) The complainants are entitled to get ₹ 05 lakhs from the opposite parties on account of substantial and unexplained delay for more than 10 years with interest at a rate of 12% per annum from 01.04.2017 if paid within 60 days from the date of judgment of this complaint case otherwise the rate of interest shall be 15% per annum from 01.04.2017 till the date of actual payment.
(c) The complainants are entitled to get ₹ 05 lakhs from the opposite parties on account of mental agony and harassment with interest at a rate of 12% per annum from 01.04.2017 if paid within 60 days from the date of judgment of this complaint case otherwise the rate of interest shall be 15% per annum from 01.04.2017 till the date of actual payment.
(d) The complainants are entitled to get ₹ 05 lakhs from the opposite parties on account of deficiency of service and unfair trade practice with interest at a rate of 12% per annum from 01.04.2017 if paid within 60 days from the date of judgment of this complaint case otherwise the rate of interest shall be 15% per annum from 01.04.2017 till the date of actual payment.
(e) The complainants are entitled to get ₹ 50,000/- from the opposite parties towards cost of the case, to be paid within 60 days from the date of judgment of this complaint case, otherwise the complainants will be entitled for interest @12% after 60 days from the date of judgment of this complaint case till the date of actual payment.
The complaint case is decided accordingly.
1- The opposite parties are directed jointly and severally to pay to the complainants ₹ 1,725,363/- (deposited by the complainant with opposite parties), with interest at a rate of 12% per annum from the respective dates of deposit within 60 days from the date of judgement of this complaint case otherwise the rate of interest shall be 15% per annum from the date of respective deposits till the date of actual payment.
2- The opposite parties are directed jointly and severally to pay to the complainants ₹ 05 lakhs on account of substantial and unexplained delay for more than 10 years with interest at a rate of 12% per annum from 01.04.2017 if paid within 60 days from the date of judgment of this complaint case otherwise the rate of interest shall be 15% per annum from 01.04.2017 till the date of actual payment.
3- The opposite parties are directed jointly and severally to pay to the complainants ₹ 05 lakhs on account of mental agony and harassment with interest at a rate of 12% per annum from 01.04.2017 if paid within 60 days from the date of judgment of this complaint case otherwise the rate of interest shall be 15% per annum from 01.04.2017 till the date of actual payment.
4- The opposite parties are directed jointly and severally to pay to the complainants ₹ 05 lakhs on account of deficiency of service and unfair trade practice with interest at a rate of 12% per annum from 01.04.2017 if paid within 60 days from the date of judgment of this complaint case otherwise the rate of interest shall be 15% per annum from 01.04.2017 till the date of actual payment.
5- The opposite parties are directed jointly and severally to pay to the complainants ₹ 50,000/- towards cost of the case, to be paid within 60 days from the date of judgment of this complaint case, otherwise the complainants will be entitled for interest @12% after 60 days from the date of judgment of this complaint case till the date of actual payment.
6- If the opposite parties fail to comply the judgment of this complaint case within 60 days, the complainants may file execution case in this court at the cost of the opposite parties. The stenographer is requested to upload this order on the Website of this Commission today itself.
Certified copy of this judgment be provided to the parties as per rules.
(Justice Ashok Kumar) (Rajendra Singh)
President Member
Judgment dated/typed signed by us and pronounced in the open court.
Consign to the Record-room.
(Justice Ashok Kumar) (Rajendra Singh)
President Member
Dated : 20.12.2023
JafRi, PA I
C-1
Complaint Case No.115 of 2020
Ashish Kumar Singh & anr. vs. M/s Ansal Properties and Infrastructure Ltd. & ors.
20.12.2023 The instant complaint has been heard by the division bench (Hon'ble President Mr. Justice Ashok Kumar and Hon'ble Member Sri Rajendra Singh) on 20.12.2023 and the judgment has been reserved. While reserving the judgment, the bench was with the agreement that the instant complaint has force and therefore, is liable to be allowed. The judgment was prepared by Sri Rajendra Singh, ld. Senior Member and the same has been placed for my perusal.
I have perused the judgment dictated by Sri Rajendra Singh, ld. Senior Member and I am fully affirming the facts mentioned in the judgment and the findings as well as the material placed by the ld. Senior Member.
So far as the conclusion of the said judgment is concerned, I considered the prayer clause of the complainant which reads as follows:
a) Direct the opposite parties to refund the amount of Rs.17,25,363.00 deposited by the complainants towards the cost of the said flat alongwith 18% interest per annum, calculable from the date of respective deposit till the date of its actual return by the opposite parties.
b) Direct the opposite parties to pay a cost of Rs.10,00,000.00 to the complainants on account of substantial and un-explained delay of more than 6 years in handling over the possession of the flat in question to the complainants despite receipt of a substantial portion of consideration amount.
c) Direct the opposite parties to pay Rs.5,00,000.00 to the complainants towards harassment and mental agony.
d) Direct the opposite parties to pay a cost of Rs.5,00,000.00 to the complainants on account of deficiency in service and unfair trade practice.
e) Direct the opposite parties to pay Rs.50,000.00 as cost of legal notice and the present litigation.
f) Grant any relief, as deemed fit by this Hon'ble Commission, in the facts and circumstances of the present case, otherwise the complainants shall suffer irreparably.
The complainant has prayed for refund of the amount deposited by him with the opposite parties to the tune of Rs.17,25,363.00 with prayer to allow the interest @18% p.a. calculated from the date of respective dates of deposits till the date of actual payment. The ld. Senior Member has considered the same and has allowed the prayer by directing for refund of the aforesaid deposited amount within a period of 60 days with interest @12% p.a. from the respective dates of deposits till the date of actual payment.
So far as the judgments which are relied and referred by the ld. Senior Member with regard to refund of the amount and the interest, various judgments of the Hon'ble Apex Court as well as the Hon'ble National Commission are considered. However, I noticed that the recent judgment of the Hon'ble Apex Court of larger bench (3 Judges bench) in the case of Experion Developers Pvt. Ltd. vs. Sushma Ashok Shiroor, 2022 LiveLaw (SC) 252, has not been taken into consideration in which the Hon'ble Supreme Court has been pleased to dismiss the appeal filed by the developers and has directed the appellant developer to pay interest to the purchaser @9% p.a., as has been allowed by the Commission. For the consideration following paragraphs of the judgment of Experion Developers Pvt. Ltd. (supra) 22.1 and 22.2 are quoted herein below:
"22.1 We are of the opinion that for the interest payable on the amount deposited to be restitutionary and also compensatory, interest has to be paid from the date of the deposit of the amounts. The Commission in the order impugned has granted interest from the date of last deposit. We find that this does not amount to restitution. Following the decision in DLF Homes Panchkula Pvt. Ltd. v. DS Dhanda 16 and in modification of the direction issued by the Commission, we direct that the interest on the refund shall be payable from the dates of deposit. Therefore, the appeal filed by purchaser deserves to be partly allowed. The interests shall be payable from the dates of such deposits.
22.2 At the same time, we are of the opinion that the interest of 9 per cent granted by the Commission is fair and just and we find no reason to interfere in the appeal filed by the Consumer for enhancement of interest."
Accordingly, in my opinion the judgment of the larger bench of the Hon'ble Supreme Court in the instant case is applicable. Therefore, the following order is passed:
(a) The complainants are entitled to get a refund of ₹ 1,725,363/- from the opposite parties deposited by the complainant with opposite parties, with interest at a rate of 9% per annum from the respective dates of deposits within 60 days from the date of judgment of this complaint case otherwise the rate of interest shall be 12% per annum from the date of respective deposits till the date of actual payment.
The judgment/order passed by the ld. Senior Member in respect of the prayer (b), quoted hereinabove, similar analogy will be applicable in the light of the judgment of Hon'ble Apex Court in the case of Experion Developers Pvt. Ltd. (supra) and the rate of interest is accordingly fixed @9% p.a. and in case if the amount is not paid within the stipulated time of 60 days, the rate of interest shall be 12% p.a. from 1.4.2017 till the date of actual payment.
The judgment/order passed by the ld. Senior Member in respect of the prayer (c), quoted hereinabove, similar analogy will be applicable in the light of the judgment of Hon'ble Apex Court in the case of Experion Developers Pvt. Ltd. (supra) accordingly the rate of interest is fixed/directed to be paid @9% p.a. and in case if the amount is not paid within the stipulated time of 60 days, the rate of interest shall be 12% p.a. from 1.4.2017 till the date of actual payment.
The judgment/order passed by the ld. Senior Member in respect of the prayer (d), quoted hereinabove, similar analogy will be applicable in the light of the judgment of Hon'ble Apex Court in the case of Experion Developers Pvt. Ltd. (supra) and the rate of interest is fixed/directed to be paid @9% p.a. and in case if the amount is not paid within the stipulated time of 60 days, the rate of interest shall be 12% p.a. from 1.4.2017 till the date of actual payment.
The judgment/order passed by the ld. Senior Member in respect of the prayer (e) Rs.50,000.00 towards cost of the case to be paid within 60 days from the date of judgment.
Accordingly, the complaint is allowed as ordered hereinabove.
1- The opposite parties are directed jointly and severally to pay to the complainants ₹ 1,725,363/- (deposited by the complainant with opposite parties), with interest at a rate of 9% per annum from the respective dates of deposits within 60 days from the date of judgment of this complaint case otherwise the rate of interest shall be 12% per annum from the date of respective deposits till the date of actual payment.
2- The opposite parties are directed jointly and severally to pay to the complainants ₹ 05 lakhs on account of substantial and unexplained delay for more than 10 years with interest at a rate of 9% per annum from 01.04.2017 if paid within 60 days from the date of judgment of this complaint case otherwise the rate of interest shall be 12% per annum from 01.04.2017 till the date of actual payment.
3- The opposite parties are directed jointly and severally to pay to the complainants ₹ 05 lakhs on account of mental agony and harassment with interest at a rate of 9% per annum from 01.04.2017 if paid within 60 days from the date of judgment of this complaint case otherwise the rate of interest shall be 12% per annum from 01.04.2017 till the date of actual payment.
4- The opposite parties are directed jointly and severally to pay to the complainants ₹ 05 lakhs on account of deficiency of service and unfair trade practice with interest at a rate of 9% per annum from 01.04.2017 if paid within 60 days from the date of judgment of this complaint case otherwise the rate of interest shall be 12% per annum from 01.04.2017 till the date of actual payment.
5- The opposite parties are directed jointly and severally to pay to the complainants ₹ 50,000/- towards cost of the case, within 60 days from the date of judgment of this complaint case.
(Justice Ashok Kumar) President Jafri, PA 1 C-1 राज्य उपभोक्ता विवाद प्रतितोष आयोग उ 0 प्र 0 , लखनऊ (सुरक्षित) परिवाद सं0- 115 /20 20 आशीष कुमार सिंह व अन्य बनाम मे0 अंसल प्रापर्टीज एण्ड इंफ्रास्ट्रक्चर लि0 व अन्य दिनांक:- 16.01.2024 मा0 श्री विकास सक्सेना , सदस्य द्वारा उद्घोषित निर्णय परिवादीगण की ओर से विद्वान अधिवक्ता श्री आई0पी0एस0 चड्ढा उपस्थित हैं। विपक्षीगण की ओर से विद्वान अधिवक्ता सुश्री सुरंगमा शर्मा उपस्थित हैं।
मैंने उभयपक्ष के विद्वान अधिवक्तागण को सुना तथा पत्रावली का अवलोकन किया।
यह पत्रावली मुझ एकल पीठ के समक्ष पत्रावली में पारित निर्णय व आदेश दिनांकित 20.12.2023 पर आदेश में निहित प्रश्न पर मतभेद होने के कारण इस एकल पीठ को निर्दिष्ट किया गया है, जिससे बहुमत राय के अनुसार राज्य उपभोक्ता आयोग की पीठ का आदेश निर्धारित किया जा सके। इस सम्बन्ध में वर्तमान परिवाद पर लागू उपभोक्ता संरक्षण अधिनियम, 1986 की धारा 16 उपधारा (1B)(iii) लागू होगी जिसके अनुसार यदि राज्य उपभोक्ता आयोग के किसी पीठ के सदस्यों द्वारा किसी आदेश में निहित किसी बिन्दु पर बराबर रूप से मतभेद होने पर यह प्रश्न पृथक राय हेतु एक सदस्य को सौंप दिया जायेगा तथा उक्त सदस्य की राय के अनुसार पीठ की बहुमत की राय निर्धारित की जायेगी। प्रस्तुत मामले में मा0 न्यायमूर्ति, अध्यक्ष महोदय द्वारा निर्णय पारित किया गया है जिसमें परिवाद संयुक्त एवं पृथक-पृथक रूप से स्वीकार करते हुये विपक्षीगण को आदेशित किया गया है कि वे परिवादी को रू0 17,25,363/-रू0 सम्पत्ति के मूल्य के सम्बन्ध में अदा करें। इसके अतिरिक्त विपक्षीगण इसी प्रकार देरी के कारण रू0 5,00,000/- तथा मानसिक कष्ट एवं पीड़ा के लिये रू0 5,00,000/- और 5,00,000/-रू0 सेवा में कमी के लिये परिवादी को अदा करें तथा साथ ही उक्त धनराशियों पर दि0 01.04.2017 से 60 दिन के अन्दर 09 प्रतिशत साधारण वार्षिक ब्याज भी अदा करें, अन्यथा ब्याज दर 09 प्रतिशत साधारण वार्षिक के स्थान पर 12 प्रतिशत साधारण वार्षिक ब्याज देय होगी और वाद व्यय के रूप में 50,000/-रू0 भी 60 दिन के अन्दर अदा करने हेतु आदेशित किया गया है।
पीठ के मा0 श्री राजेन्द्र सिंह, सदस्य द्वारा भी परिवाद संयुक्त एवं पृथक-पृथक रूप से स्वीकार करते हुये विपक्षीगण को आदेशित किया गया है कि वे परिवादी को रू0 17,25,363/-रू0 मय 12 प्रतिशत साधारण वार्षिक ब्याज सम्पत्ति के मूल्य के सम्बन्ध में अदा करें, अन्यथा 60 दिन के उपरांत 12 प्रतिशत के स्थान पर 15 प्रतिशत साधारण वार्षिक ब्याज देय होगी। इसके अतिरिक्त इसी प्रकार देरी के कारण रू0 5,00,000/- के अनुतोष पर 12 प्रतिशत साधारण वार्षिक ब्याज, अन्यथा 60 दिन के उपरांत दि0 01.04.2017 से 15 प्रतिशत साधारण वार्षिक ब्याज वास्तविक अदायगी तक तथा मानसिक कष्ट एवं पीड़ा के लिये रू0 5,00,000/- एवं इस धनराशि पर 60 दिन तक 12 प्रतिशत वार्षिक ब्याज, अन्यथा 60 दिन के उपरांत दि0 01.04.2017 से 15 प्रतिशत वार्षिक ब्याज वास्तविक अदायगी तक और 5,00,000/-रू0 मय 12 प्रतिशत वार्षिक ब्याज सेवा में कमी के लिये, अन्यथा 60 दिन के उपरांत दि0 01.04.2017 से 15 प्रतिशत वार्षिक ब्याज वास्तविक अदायगी तक तथा वाद व्यय के रूप में 50,000/-रू0 मय 12 प्रतिशत वार्षिक ब्याज के रूप में भी परिवादी को अदा किया जाये।
उपरोक्त निर्णयों के अवलोकन से स्पष्ट होता है कि मा0 श्री राजेन्द्र सिंह, सदस्य द्वारा पारित निर्णय के गुण-दोष पर मा0 न्यायमूर्ति, अध्यक्ष महोदय द्वारा तथ्यों पर निष्कर्ष पर पूर्ण मतैक्य प्रस्तुत किया गया है। मुख्य रूप से दिये गये अनुतोषों के सम्बन्ध में निर्णय में मतभेद है जिसमें प्रथम अनुतोष रू0 17,25,363/-रू0 जो प्रश्नगत सम्पत्ति के मूल्य के सम्बन्ध में वापस दिलवाये जाने का अनुतोष है उस पर मा0 श्री राजेन्द्र सिंह, सदस्य द्वारा 15 प्रतिशत साधारण वार्षिक ब्याज दिलवाया गया है। इसके अतिरिक्त इसी प्रकार देरी के कारण रू0 5,00,000/- के अनुतोष पर 12 प्रतिशत साधारण वार्षिक ब्याज तथा 60 दिन के उपरांत 15 प्रतिशत वार्षिक ब्याज वास्तविक अदायगी तक तथा मानसिक कष्ट एवं पीड़ा के लिये रू0 5,00,000/- और इस पर 60 दिन तक 12 प्रतिशत वार्षिक ब्याज दिलवाये जाने हेतु आदेश पारित किया गया है। इस प्रकार अन्य अनुतोषों पर भी दि0 01.04.2017 से 12 प्रतिशत साधारण वार्षिक ब्याज 60 दिन के भीतर तथा इसके उपरांत 60 दिन में अदायगी न होने पर 15 प्रतिशत साधारण वार्षिक ब्याज दि0 01.04.2017 से वास्तविक अदायगी तक दिलवाये जाने के निर्देश दिये गये हैं।
मा0 न्यायमूर्ति, अध्यक्ष महोदय द्वारा इन सभी अनुतोषों पर 60 दिन के भीतर अदायगी हो जाने पर 09 प्रतिशत साधारण वार्षिक ब्याज तथा 60 दिन के भीतर अदायगी न होने पर 09 प्रतिशत के स्थान पर सभी अनुतोषों पर 12 प्रतिशत साधारण वार्षिक ब्याज दि0 01.04.2017 से वास्तविक अदायगी तक दिलवाये जाने का अनुतोष प्रदान किया गया है। इस प्रकार मूल निर्णय पारित करने वाले मा0 सदस्य, श्री राजेन्द्र सिंह एवं मा0 न्यायमूर्ति, अध्यक्ष महोदय द्वारा पारित निर्णय में दिये गये अनुतोषों के सम्बन्ध में ही मतभेद है जिसमें केवल अनुतोषों पर दिये गये ब्याज पर मतभेद है।
इन सभी अनुतोषों पर 60 दिन के भीतर श्री राजेन्द्र सिंह, सदस्य द्वारा दि0 01.04.2017 से 12 प्रतिशत तथा अदायगी न होने पर 15 प्रतिशत साधारण वार्षिक ब्याज दिया गया है जब कि मा0 न्यायमूर्ति, अध्यक्ष महोदय द्वारा दि0 01.04.2017 से 60 दिन के भीतर अदायगी होने पर 09 प्रतिशत तथा 60 दिन के भीतर अदायगी न होने पर दि0 01.04.2017 से 12 प्रतिशत साधारण वार्षिक ब्याज दिया गया है। मा0 न्यायमूर्ति, अध्यक्ष महोदय द्वारा मा0 सर्वोच्च न्यायालय के निर्णय एक्सपीरिऑन डेवलपर्स प्रा0लि0 बनाम सुषमा अशोक सिरूर प्रकाशित 2022 लाइव लॉ (एस0सी0) पृष्ठ 252 पर आधारित करते हुये उपरोक्त ब्याज की दर निर्धारित की गई है। वर्तमान मामले की परिस्थितियों के सम्बन्ध में विपक्षी की विद्वान अधिवक्ता सुश्री सुरंगमा शर्मा द्वारा तर्क प्रस्तुत किया गया कि विपक्षी कम्पनी की आर्थिक स्थिति अच्छी नहीं है एवं वर्तमान में वह इंसाल्वेंसी की प्रक्रिया से गुजरी है। अत: अधिक ब्याज की दर कम्पनी देने में असमर्थ हो जायेगी अथवा कम्पनी को अधिक समय कमजोर आर्थिक स्थिति के कारण लग सकता है। अतएव वर्तमान परिस्थितियों में मा0 न्यायमूर्ति, अध्यक्ष महोदय द्वारा दिये गये ब्याज की दर उचित है।
इस सम्बन्ध में मा0 सर्वोच्च न्यायालय द्वारा दिये गये निर्णय गाजियाबाद डेवलपमेंट अथारिटी बनाम बलवीर सिंह II(2004)C.P.J. पृष्ठ 12 (S.C.) इस सम्बन्ध में प्रासंगिक है। निर्णय के प्रस्तर 10 तथा 11 में मा0 सर्वोच्च न्यायालय द्वारा यह निष्कर्ष दिया गया है कि सम्पत्ति के क्रय-विक्रय सम्बन्धी मामलों में क्षतिपूर्ति पर दिये जाने वाले ब्याज की दर प्रत्येक मामले के तथ्य एवं परिस्थितियों पर निर्भर करती है और ब्याज निर्धारित करते समय प्रत्येक मामले के तथ्यों पर विचार करना चाहिये। मा0 सर्वोच्च न्यायालय के उपरोक्त निर्णय को दृष्टिगत करते हुये प्रस्तुत मामले में मा0 न्यायमूर्ति, अध्यक्ष महोदय द्वारा दी गई ब्याज की दर विपक्षी की ओर से दिये गये तर्क के आधार पर उचित प्रतीत होती है। अत: एकल पीठ के रूप में मैं मा0 न्यायमूर्ति, अध्यक्ष महोदय के निर्णय से सहमत हूँ।
आशुलिपिक से अपेक्षा की जाती है कि वह इस आदेश को आयोग की वेबसाइट पर नियमानुसार यथाशीघ्र अपलोड कर दें।
(विकास सक्सेना) सदस्य शेर सिंह, आशु0, कोर्ट नं0- 1 [HON'ABLE MR. JUSTICE PRESIDENT] PRESIDENT [HON'BLE MR. Rajendra Singh] JUDICIAL MEMBER [HON'BLE MR. Vikas Saxena] JUDICIAL MEMBER