National Consumer Disputes Redressal
Mathew P. Jacob vs M/S. Shwas Homes (P) Ltd. & Anr. on 19 May, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2112 OF 2019 (Against the Order dated 21/01/2019 in Appeal No. 508/2016 of the State Commission Kerala) 1. MATHEW P. JACOB S/O. P.M. JACOB, R/O. POST BOX NO. 119, PARTS DEPARTMENT TOYOTA MANAMA, KINGDOM OF BAHRAIN ...........Petitioner(s) Versus 1. M/S. SHWAS HOMES (P) LTD. & ANR. REPRESENENTED BY ITS DIRECTOR, SREENI PARAMESWARAN, S/O. M.G. PARAMESWARAN, NAIR, VILLA NO. 1, MYSTIC BELLS, KANIYAMPUZHA ROAD, EROOR, ERNAKULAM DISTRICT KERALA-682306 2. M/S. OLIVE BEACH PARTNERSHIP FIRM, NO. 20, ERRABALUCHETTY STREET, CHENNAI-690001 TAMIL NADU ...........Respondent(s)
BEFORE: HON'BLE MR. DINESH SINGH,PRESIDING MEMBER
For the Petitioner : Mr. Prasanth P., Advocate with
Mr. Ashish Sarkar, Advocate For the Respondent : For M/s Shwas Homes (P) Ltd. : Ms. Usha Nandini, Advocate
For M/s Olive Beach : Name deleted (vide Order dated 15.01.2020)
Dated : 19 May 2022 ORDER
1. These two (02) revision petitions have been filed under Section 21(b) of the Act 1986 in challenge to the Order dated 21.01.2019 of the State Commission in appeal no. 508 of 2016 arising out of the Order dated 30.01.2016 of the District Commission in complaint no. 736 of 2012.
2. Heard arguments from learned counsel for the complainant (the petitioner in revision petition no. 2112 of 2019 and the respondent in revision petition no. 1474 of 2019) and learned counsel for the builder (the petitioners in revision petition no. 1474 of 2019 and the respondents in revision petition no. 2112 of 2019) and perused the record including inter alia the Order dated 30.01.2016 of the District Commission, the impugned Order dated 21.01.2019 of the State Commission and the petitions.
3. This matter relate to a builder-buyer dispute.
The District Commission vide its Order dated 30.01.2016 allowed the complaint on contest. The operative portion of the District Commission's Order is reproduced below:
Having found the issue no. (i) and (ii) in favour of the complainant we find that the complainant is entitled to get the following relief:
i) The 1st Opposite Party is directed to make a payment of Rs. 1182500/- with interest @18% p.a. from 16.04.2012 the date on which the building ought to have been completed and delivered to the complainant till the date of realization.
ii) The complainant is found entitled to get compensation of Rupees Five Lakhs towards unfair trade practice committed against the complainant.
iii) The complainant is also allowed to recover Rs. 30,000/- towards costs of the proceedings from the 1st Opposite Party.
iv) An amount of Rs. 1 lakh is additional granted to the complainant towards exemplary costs for having raised frivolous grounds to deny the right of the complainant and for preventing the complainant to occupy the premises inspite of making the entire payment as agreed upon between the parties.
The builder appealed before the State Commission.
The State Commission vide its Order dated 21.01.2019 partly allowed the appeal. It affirmed the Order of the District Commission directing refund of a sum of Rs. 11,82,500/- with interest at the rate of 18% per annum from 16.04.2012 till realisation alongwith cost of Rs. 30,000/- but reduced the award of compensation towards unfair trade practice from Rs. 5,00,000/- to Rs. 50,000/- and set aside the exemplary cost of Rs. 1,00,000/-. The operative paragraph of the State Commission's Order is reproduced below:
13. The district forum directed the first opposite party to make payment of Rs 11,82,500/- with interest at the rate of 18% per annum from 16.04.2012, the date of which the building ought to have been completed and delivered to the complainant till the date of realization. The district forum has awarded interest at the rate of 18% on the amount of Rs 11,82,500/- towards deficiency of service. No interference or modification of the interest awarded is called for. The district forum allowed compensation of Rs 5,00,000/- towards unfair practice committed by the first opposite party against the complainant. The said sum was awarded towards unfair trade practice and interest was awarded for the sum of Rs 11,82,500/-, the amount collected from the complainant for the construction of the flat, towards its deficiency of service. When compensation is awarded under two different counts, it does not amount to double compensation. But so far as compensation of Rs 5,00,000/- awarded towards unfair practice committed by the first opposite party, we find that the sum award is excessive and it is reduced to Rs 50,000/-. Cost of Rs 30,000/- awarded by the Forum is just and reasonable and is approved. However sum of Rs 1,00,000/- awarded as exemplary costs for the reason that frivolous grounds were raised by the first opposite party to deny the right of the complaint is not correct and is liable to be interfered with. In the version filed by the first opposite party they had raised many contentions in support of the demand for amounts and for rescinding the contract with the complainant. However at the time of hearing the counsel for the first opposite party raised challenges over the maintainability of the complaint based on terms of Exts.A10 & A11 agreements which were not raised in the version filed. Even assuming that the challenges raised over the maintainability were without finding in the version, it does not follow that frivolous grounds / contentions were raised before the forum to oppose the claim. Exemplary cost of Rs 1,00,000/- imposed by the district forum on the first opposite party, over and above awarding Rs 30,000/- as cost to the complainant on the ground that frivolous grounds were raised to oppose the claim is not sustainable and it is set aside.
In the result, the appeal is partly allowed. Affirming the order of the lower forum awarding refund of the sum of Rs 11,82,500/- with interest at the rate of 18% per annum from 16.04.2012 till realization and also the cost of Rs 30,000/- awarded. Order granting compensation of Rs 5,00,000/- towards unfair trade practice is modified and reduced to Rs 50,000/-. The sum of Rs 1,00,000/- awarded as exemplary cost is set aside. The first opposite party is directed to pay the sums as modified, in the appeal.
4. Both sides i.e. the builder and the complainant filed respective revision petitions before this Commission, the builder for setting aside the Order of the State Commission and dismissing the complaint and the complainant for setting aside the modified award made by the State Commission and upholding the award made by the District Commission.
5. The two petitions, no. 1474 of 2019 and no. 2112 of 2019, have been filed with reported delay of 04 and 156 days respectively.
In the interest of justice, to provide fair opportunity to both sides, to settle the matter on merit, the delay in the each of the petitions is condoned.
6. A coordinate bench of this Commission passed the following Order on 05.07.2019 at the stage of admission of revision petition no. 1474 of 2019 filed by the builder:
Issue notice on the question of rate of interest only, returnable for 14th November 2019.
Office has reported a delay of 4 days in filing the Revision Petitions. No application seeking condonation of delay has been filed along with the Revision Petition. Petitioner shall file such application within two weeks. If the said application is filed, the office shall issue notice on the said Application as well.
The petitioner shall remit directly to Respondents No. 1 in each Revision Petition, a sum of Rs. 10,000/- towards travel and allied expenses, within two weeks.
Operation of the impugned order shall remain stayed initially for a period of four weeks in order to enable the Petitioner to deposit the entire principal amount along with interest @ 12% instead of 18% per annum as directed by the State Commission, with this Commission within four weeks. If the amount is deposited within the aforesaid period, the interim order shall continue to remain in operation till further orders. However, if the amount is not deposited within the aforesaid period, the interim order shall automatically stand discharged.
It is thus noted that notice was issued only on the question of rate of interest. The said Order has not been put to review or challenge. As such in so far as the builder is concerned the only question for consideration is the rate of interest which the amount of Rs.11,82,500/- ordered to be refunded shall carry.
7. Learned counsel for the complainant submits that the condition attached with the grant of stay has not been complied with and that execution proceedings are being impeded by taking the plea that these revision petitions are pending before this Commission, and as such he requests that the petitions may be decided without further delay.
Learned counsel for the builder fairly agrees that the condition of depositing the entire principal amount with interest at the rate of 12% per annum for grant of stay has not been complied with, and also requests that the matter may be decided finally.
It is deemed appropriate that the principal point involved i.e. the rate of interest which the amount to be refunded shall carry may be decided and the lis finally disposed of today itself.
8. Restricting and confining its instant revision petition only to the question of rate of interest on the amount ordered to be refunded by the State Commission, learned counsel for the builder submits that the rate of interest of 18% per annum awarded by the State Commission is on the higher side and is unreasonable and may be reduced to 6% per annum.
In rebuttal learned counsel for the complainants submits in his arguments that the rate of interest of 18% per annum awarded by the State Commission is just and equitable. He submits that in determining the reasonableness of the rate of interest it may also be kept in mind that the State Commission has already reduced the lumpsum compensation towards unfair trade practice from Rs. 5,00,000/- to Rs. 50,000/- and has set aside the exemplary cost of Rs. 1,00,000/-. He further argues that the complainant will not press for restoring the compensation of Rs. 5,00,000/- and the grant of exemplary cost of Rs. 1,00,000/- as awarded by the District Commission but the rate of interest of 18% per annum confirmed by the State Commission may be retained as such.
9. Considered the rival contentions raised at the bar.
10. Even though in matters like this absolute objectivity is hard to achieve, what is to be seen is as to what shall be the scales of equity and how to decide the paremeters of conscionable justice. Obviously there cannot be any cut and dried recipe of universal application which may be brought into application in such matters. It is a kind of discursive exercise which touches upon myriad aspects which are relevant to the issue in question. The genuineness of the cause, the triviality of loss inflicted or the enormity of the grievance suffered, the justifiability or the plausibility of a possible explanation for the other side who is facing the insinuation or who is being indicted to have caused such grievance, a dispassionate evaluation of the harassment said to have been caused and the reasonableness of the compensatory imposition in financial terms that may go to redress the anguish of the sufferer, are all such facets which are to be factored in and be reckoned before arriving at a decision with regard to the determination of the compensatory terms of which the rate of interest is often an integral part. The prevalent trend discernible from precedents that may be available relating to the matters which have a touch of semblance of circumstances may also have a beakening effect to guide, modulate and give shape to such determinative exercise and be made use of. One also has to keep a watchful eye in order to guard that the solemn procedure of these fora may not become an instrumentality to be misutilized for consumer prospecting rather than being used to achieve the ends of consumer justice. No doubt however that the just needs must be met with and the loss must be levelled up without fail. Eventually the overall assessment of all possible relevant aspects of the matter, aggravating or mitigating as they may be, has to be made and a judicious view is to be formulated in response to the call of conscionable justice which may strike a balancing chord between the twin sides, the alleged oppressor and the oppressed, between the wrong doer and the one who has been wronged. When we proceed to undertake such exercise in the present matter, it may be usefully noticed that on 05.07.2019 a coordinate bench of this Commission had at one stage already directed that on depositing the entire principal amount along with interest at the rate of 12% per annum the operation of the impugned Order may be stayed. Keeping the afore in view and also keeping in view the particular facts and specificities of this case as also the prevalent trend discernible from precedents having similar facts and circumstances it appears that a rate of interest of 12% per annum on the amount deposited by the complainant i.e. the amount which has been ordered to be refunded would be just and reasonable and adequately meet the scales of equity. A rate of interest of 6% per annum as suggested by learned counsel for the builder appears to be unreasonable low just as a rate of interest of 18% per annum as awarded by State Commission and as sought by the learned counsel for the complainant appears to be disproportionately ambitious.
11. Sequel to the above, the revision petitions no. 1474 of 2019 and no. 2112 of 2019 are disposed of with the direction that the amount of Rs. 11,82,500/- ordered to be refunded by the State Commission shall carry interest at the rate of 12% per annum instead of 18% per annum awarded by the State Commission. The rest of the award made by the State Commission shall remain undisturbed.
The modified award as firmed-up herein shall be complied with forthwith, failing which the District Commission shall undertake execution, for 'enforcement' and for 'penalty', as per the law.
12. The Registry is requested to send a copy each of this Order to the parties in the appeals and to their learned counsel as well as to the District Commission immediately. The stenographer is also requested to upload this Order on the website of this Commission immediately.
...................... DINESH SINGH PRESIDING MEMBER