National Consumer Disputes Redressal
M/S. Royal Build Square Pvt. Ltd & Anr. vs Gopal Memani on 24 June, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 300 OF 2018 (Against the Order dated 06/12/2017 in Complaint No. 16/2014 of the State Commission Rajasthan) 1. M/S. ROYAL BUILD SQUARE PVT. LTD & ANR. R/O. 8TH FLOOR, THE MILE STONE, GANDHI NAGAR MOR, TONK ROAD. JAIPUR. 2. M/S. ROYAL BUILD SQUARE PVT. LTD. R/O. K.P. TOWER, 2ND FLOOR, BOMBAY MOTOR CROSSING, CHOPASANI ROAD. JODHPUR. ...........Appellant(s) Versus 1. GOPAL MEMANI S/O. SH. KANHIYALAL
R/O. B-151, 1ST EXTENSION, KAMLA NEHRU NAGAR. JODHPUR. RAJASTHAN. ...........Respondent(s)
BEFORE: HON'BLE MRS. JUSTICE DEEPA SHARMA,PRESIDING MEMBER HON'BLE MR. SUBHASH CHANDRA,MEMBER
For the Appellant : Mr. Rakesh K. Rajwania, Advocate For the Respondent : Ms. Charu Mathur, Advocate
Dated : 24 Jun 2022 ORDER
ORDER (ORAL)
Final arguments heard on behalf of both the parties.
2. Vide this appeal, the appellants, who were the opposite parties before the State Commission, have challenged the order dated 06.12.2017 of the State Commission in C.C. No. 16 of 2014.
3. The brief admitted facts of the case are that the respondent, hereinafter be referred as complainant, had booked a flat in the project "Unique Green Acres" of the appellants in Jodhpur. On the basis of the map and documents of the project shown to the complainant, the complainant agreed to buy a flat on 12th Floor of the said project. The consideration amount of the flat was Rs.27,64,500/-. Out of this sum, on various dates, the complainant had paid a sum total of Rs.6,91,459/. Various receipts towards this payment had also been issued by the appellants. Flat No. A-1219 at the 12th Floor was allotted to the complainant. In the month of January, 2014, the complainant learnt that the appellant did not have approval to construct the 12th Floor of the project "Unique Green Acres" and that the appellants had mislead him into this project and thereby adopted unfair trade practices and had committed an act of cheating. Also there was no possibility of getting the approval to build the 12th floor of the said project. He had alleged that he was shown false and fabricated documents and false statement and promises were made to him. Thereafter the complaint was filed before the State Commission in which the complainant had prayed for the refund of the entire money. Besides that the complainant also claimed a sum of Rs.16,66,610/- on the basis of current market rate. He also claimed Rs.20 lakhs towards mental agony and pain and Rs.25,000/- towards litigation cost and claimed interest @ 24%. Notice to this complaint was when sent to the appellants, they filed their written version. In the written version they had denied all the contentions except the fact that the complainant was their allottee and complainant had paid a sum of Rs.6,91,459/- on various dates. Parties lead their evidence before the State Commission and the State Commission after hearing the arguments on behalf of the parties and perusing the entire evidence on record, passed the following order:
ORDER In this situation the complaint of the complainant is accepted and the direction given to the respondents to make payment of Rs.6,91,459/- to the complainant alongwith interest @9% p.a. from the dates of deposition of said amount which was given for flat.
The respondent is directed to disburse the flat difference amount of Rs.16,66,610/- along with interest @ 9% to the complainant from the date of filing the complaint i.e. 09 May 2014.
The false commitment is made to the senior citizen to give flat and due to which the complainant has suffered mental agony for which the compensation amount of Rs.5,00,000/- and litigation cost of Rs.25,000/- also be directed to pay, interest @ 9% per annum shall be given if the amount not given within two months.
4. This order is impugned by the appellants before us on several counts in the appeal. However during the course of arguments learned counsel for the appellants, on instructions, confined his arguments on the relief relating to the payment of Rs.16,66,610/- along with interest @ 9% p.a. to the complainant, which the complainant had claimed as a difference of amount of flat as per market rate, and also grant of compensation of Rs.5 lakhs towards mental agony.
5. We have heard the arguments of both the parties and have perused the record. In order to substantiate the arguments that the difference of the market rate value cannot be awarded by the Commission under Consumer Protection Act (C.P. Act) and therefore grant of Rs.16,66,610/- was an illegal order, the learned counsel for the appellants has relied on two orders of this Commission in the case of M/s Siraj Developers & Anr. Vs. Yasmin Razak Vanoo in F.A. No. 124 of 2015 decided on 15.11.2017 and M/s Lakadwala Developers (P) Ltd. & Ors Vs. Amarjeet Singh Baryam Singh in F.A. No. 276 of 2013 decided on 27.02.2020. In support of its arguments that whenever the refund has been made ordered along with interest, no compensation under any other heads can be awarded, learned counsel has relied on the findings of the Hon'ble Supreme Court in the case of DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda Etc. Etc. in Civil Appeal Nos. 4910-4941 / 2019 & DLF Homes Panchkula Pvt. Ltd. & Anr. Vs. Sudesh Goyal Etc, in Civil Appeal Nos. 4942-4945/2019 decided on 10.05.2019.
6. Learned counsel for the complainant has argued that the complainant is a senior citizen and he had been duped with his money which he would have invested at some other places and he could have got good returns and therefore the State Commission has rightly granted the compensation towards mental agony and difference of amount of the flat as per market rate.
7. The only issue for consideration before us is whether the State Commission has committed illegality by granting difference of the market rate of the flat or not. To put it differently, the issue is whether while ordering the refund along with interest, the value of the flat could have been calculated on the market rate prevalent in the year when the complaint was filed. The same issue had also come up before this Commission. This Commission in its two judgments in the case of M/s Siraj Developers & Anr. Vs. Yasmin Razak Vanoo (supra) and M/s Lakadwala Developers (P) Ltd. & Ors Vs. Amarjeet Singh Baryam Singh (Supra) has clearly held that the compensation payable to the complainant should not be calculated on the basis of the current ready reckoner price of the flat. In the case of M/s Siraj Developers & Anr. Vs. Yasmin Razak Vanoo (supra), this Commission has held as under:
11. The undisputed facts are that the respondent/complainant had booked a residential unit with the opposite party/appellant, but the possession has not been provided to the complainant. The State Commission has ordered the possession of the unit booked or any other similar unit in the same area or in the alternative refund an amount of Rs.71,85,815/- which is based on the ready reckoner of the Government of the State. As the appellant has stated that he is not in a position to provide the flat, so he will have to refund the amount, however, he has objected to the amount ordered by the State Commission. In this regard both the parties have given their arguments and drawn attention towards certain judgments. The only question to be decided is whether the refund on the basis of ready reckoner is justified or it should be on the basis of some interest being payable on the deposited amount. The learned counsel for the respondent has referred to the judgment of this Commission in Trivor D' Lama (supra) wherein refund has been ordered on the basis of present market price in the peculiar circumstances of the case. The learned counsel has also referred to another judgment in Kevit Ahuja (supra) wherein refund has been ordered with 18% p.a. interest on the deposited amount.
12. In most of the cases of refund, this Commission is awarding interest on the deposited amount. In my view, if flat is not built, there should be no question of offering the market price or on the basis of ready reckoner as the money deposited has not grown to the market value of the flat. Earlier in some cases, in respect of pecuniary jurisdiction, sometimes, the present market value was taken to be the value of goods and services, but a larger Bench of this Commission in Consumer Case No.97 of 2016, Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd., decided on 07.10.2016 (NC), has decided that the value of goods and services for deciding the pecuniary jurisdiction shall be the total consideration paid or promised to be paid at the time of purchase. Thus, the concept of market value for determining value of goods and services for deciding pecuniary jurisdiction has not been accepted by this Commission. In analogy, it seems reasonable to say that the concept of market value cannot be sustained in the cases for refund.
13. Based on the above considerations, I am of the view that the refund on the basis of ready reckoner is not justified in the present case, however, a reasonable rate of interest would be justified on the amount deposited. Looking at the long period for which the amount remained with the appellant and the current bank rates as well as the recent trend of orders of this Commission, I deem it appropriate to order for refund of the deposited amount alongwith interest @ 14% per annum from the date of deposit till actual refund.
8. In the case of M/s Lakadwala Developers (P) Ltd. & Ors Vs. Amarjeet Singh Baryam Singh (Supra), this Commission has held as under:
10. The State Commission directed the appellant to pay a sum of Rs.99,79,200/- to the complainant along with 9% interest, holding that the above referred figure reflected the market price of the flat as per the newspaper reports which were referred before it. However, the newspaper report in my opinion does not constitute legally admissible evidence to prove the market value of a flat. No sale deed was filed by the complainant before the State Commission to prove the prevailing market value of the similar flats in the locality in which the allotted flat is situated. Even the Ready Reckoner was not produced before the State Commission to prove the ready reckoner price of the flat on the date the consumer complaint came to be decided or even on the date on which the consumer complaint had been instituted. In my opinion, considering that the complainant did not produce any sale deed or other authentic document to prove the prevailing market price of a similarly situated flat of similar specifications in the same or a comparable locality, the appellant should pay, to the complainant, as compensation the difference between the current market value of the flat, calculated as per the Ready Reckoner price of today and the price which he had agreed to pay to the appellant for the flat booked by it. The Ready Reckoner reflects the minimum market price of a flat / plot on a particular date and is a document issued by the concerned Government / Municipal Authority. Therefore, I see no reason why the compensation payable to the complainant should not be calculated on the basis of the current ready reckoner price of the flat.
9. We are therefore satisfied that the State Commission has committed illegality on this count.
10. Another argument of learned counsel for the appellants is that grant of compensation towards mental agony i.e. under the different head is also an illegal order and has relied on the findings of the Hon'ble Supreme Court in the case of D.S. Dhanda (supra) stating that in the case of D.S. Dhanda (supra) the Hon'ble Supreme Court has clearly held that the compensation under different heads should not be awarded. The only argument of the learned counsel for the complainant is that the complainant is a senior citizen and he had been duped with his money which he would have invested at some other places and he could have got good returns.
11. Hon'ble Supreme Court in the case of D.S. Dhanda (supra) has also held as under:
"17. Though the 1986 Act empowers the authorities to award compensation for any loss or injury including building damages but the order of NCDRC or that of SCDRC of awarding compensation is without any foundation being laid down by the complainant on judicially recognized principles and is by rule of thumb. Therefore, we find that grant of compensation under various heads granted by the NCDRC cannot be sustained.
18. This Court in a judgment reported as Secretary, Irrigation Department, Government of Orissa & Others vs. G.C. Roy examined the question as to whether an arbitrator has the power to award interest pendent lite. It was held that a person deprived of use of money to which he is legitimately entitled has a right to be compensated for the deprivation which may be called interest, compensation or damaged. Thus, keeping in view the said principle laid down in the aforesaid judgment, the amount of the interest is the compensation to the beneficiary deprived of the use of the investment made by the complainant. Therefore, such interest will take into its ambit, the consequences of delay in not handing over his possession. In fact, we find that the learned SCDRC as well as NCDRC has awarded compensation under different heads on account of singular default of not handing over possession. Such award under various heads in respect of the same default is not sustainable.
12. The order of the State Commission sufferers with illegality and infirmity on this count as well.
13. While confirming the findings of the State Commission on merit, the relief granted is modified and following directions are issued:
(2) The complainant is also awarded litigation cost of Rs.25,000/.
The entire money shall be paid by the appellants within three months from the date of order, failing which a penalty @ 12% p.a. shall be paid on deposited amount from the date of each deposit till payment.
13. With these directions, the present Appeal stands disposed of.
......................J DEEPA SHARMA PRESIDING MEMBER ...................... SUBHASH CHANDRA MEMBER