State Consumer Disputes Redressal Commission
Urmila Kumari Anand vs G D A on 12 April, 2022
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 First Appeal No. A/2006/2819 ( Date of Filing : 04 May 2006 ) (Arisen out of Order Dated in Case No. of District State Commission) 1. Urmila Kumari Anand A ...........Appellant(s) Versus 1. G D A A ...........Respondent(s) BEFORE: HON'BLE MR. Rajendra Singh PRESIDING MEMBER HON'BLE MR. SUSHIL KUMAR JUDICIAL MEMBER PRESENT: Dated : 12 Apr 2022 Final Order / Judgement Reserved State Consumer Disputes Redressal Commission UP, Lucknow. Appeal N0 2819 of 2006 Urmila Kumari Anand widow of Adarsh Anand, R/o Flat No.83A, Pocket-B, 1/A, Janakpuri, Delhi. ...Appellant Versus Ghaziabad Development Authority through its Vice-Chairman. ...Respondent Present:- 1- Hon'ble Sri Rajendra Singh, Member. 2- Hon'ble Sri Sushil Kumar, Member. Sri Sushil Kumar Sharma, Advocate for the appellant. Sri S.P. Pandey, Advocate for Respondent. Date : 19.5.2022 JUDGEMENT
This appeal has been filed under section 15 of Consumer Protection Act, 1986 against the judgment and order dated 15.09.2006 passed by the Learned District Forum, Ghaziabad in complaint case no.380 of 2003, Urmila Kumari Anand Vs. Ghaziabad Development Authority.
The brief facts of the appeal are that, that the impugned judgment is illegal and against the facts of the case. Learned District Forum has overlooked all the relevant documents and has acted against the interest of consumers. The Appellant/ complainant has accepted that she booked a plot in Hastinapur Scheme which was cancelled due to some reasons but her amount has not been adjusted to any other scheme. She was allotted a plot in Hastinapur Scheme measuring 40 m² vide letter dated 10th August 1992 and she deposited the amount of the said plot with the respondent in time. The Appellant/respondent wrote many letters dated 20.09.96, (2) 19.06.97, 19.08.99, 10.08.2002, 01.10.2002 and 20.12.2002 and requested the respondent to let her know about the status of her plot but no reply has been given by the respondent. The respondent/GDA did not give any reason for non-development of the scheme but unfairly started the sale of the said plot in the same land of Hastinapur scheme by changing the name as 'Indraprastha'. The respondent has avoided to provide the possession of the plot to the complainant/Appellant deliberately to earn huge profits by selling the plot illegally and arbitrary. The Appellant has not been given any plot in this scheme. The respondent was duty bound to provide a plot of 40 m² in alternate in any colony at the old price upon which the plot was originally allotted to the appellant and the appellant being an old lady paid the entire cost of the plot but the officers of the respondent were delinquent in handing over the possession of the said plot.
This plot was under Economical Weaker Section (EWS) scheme. The respondent did not provide the plot to weaker section and sold the plot of the poor persons to others at higher price and put the money in their pocket by adopting unfair trade practice, deceptive practice and as such committed serious deficiency and gross negligence by not giving the plots to the weaker sections. when the plot has not been given to her, she filed a complaint case before the learned District Forum . The learned Forum did not perused the case laws filed by the Appellant and passed the impugned order. So it is humbly requested that this Hon'ble State Commission be pleased to allow the present appeal and dismiss the impugned judgment.
(3)We have heard the learned counsel for the appellant Mr. Sushil Kumar Sharma and counsel for the respondent Mr. S. P. Pandey, the junior advocate of Mr. S. N. Tewari. We have perused the pleadings, evidence and documents on record.
The respondent/opposite party has stated that vide letter dated 02.01.2003 he informed the appellant/complainant that the said scheme has been terminated/cancelled and after depositing the documents in the office of the Authority, she may get her deposited amount back. The learned District Forum has said that the complainant demanded either possession of the said plot or in alternate any other plot be made available to her. The learned Forum has said that this plea of the appellant/complainant was not acceptable because the scheme under which she had deposited the amount has been terminated and when the scheme has been ended, no plot in that scheme could be allotted to anyone. The opposite party has stated that the complainant can get her money back. The complainant has submitted that she did not file any certificate/documents for getting her money back.
The opposite party has stated in his statement that the complainant has deposited ₹29,922/- for the plot. In this respect and advertisement/statement has been given by the opposite party that all the allottees who have deposited the amount from 20.02.95 to 06.03.95 may get their money back after submitting the relevant documents. The Appellant/ complainant has deposited ₹ 29,922/- for the plot till March 1995. The complainant, in his complaint has sought the relief that the opposite party be directed to hand over the possession of the plot to the complainant or give the possession of any other plot of same area or refund the money according to the (4) present market value of the plot of the same area with interest at a rate of 21% and also pay ₹ 1500 per month as rent from the date of allotment till the date of actual payment.
As per conditions of the allotment letter, the possession of the said plot was to be given within two years and it was the duty of the respondent/opposite party to hand over the possession of the said plot within the stipulated time as has been mentioned in the allotment letter. The allotment letter is of 10 August 1992 meaning thereby the possession of the said plot was to be given by 10 August 1994. It is really surprising that the respondent/opposite party has informed the complainant about cancellation of the allotment vide his letter dated 2 January 2003. It means that the information of cancellation of the allotment was given after 8-9 years from the date on which the possession was to be delivered as per allotment letter. It was also informed that complainant may take her money back. This clearly shows unfair trade practice and deficiency of service on the part of the opposite party. Why did the learned Forum not take cognizance of this fact that the said plot was to be delivered by 10 August 1994 and information of cancellation of the scheme was given after 8-9 years from this date which was the date on which possession of the plot was to be given. The learned District Forum has in a very routine manner said that the complainant was informed on 2 January 2003 that the plot could not be delivered and she can get her money back. This judgement of the learned Forum is not according to law and according to the various judgements of the Hon'ble Supreme Court and Hon'ble NCDRC.
(5)Whether by cancelling any scheme after so many years, a builder or and authority exonerate itself from all the liabilities which were mentioned in the allotment letter?
However the Hon'ble Supreme Court in Civil Appeal no (s). 3533-3534 of 2017 M/S. Fortune infrastructure (now known as M/S. Hicon infrastructure)&Anr. VS TrevorD'Lima&Ors. ( Judgement March 12 , 2018 ) has held:
"15. 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 development 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 ?"
In the above-mentioned case Hon'ble Supreme Court also held regarding payment of compensation or quantum of compensation as follows:
(6)"18. This Court in Ghaziabad Development Authority v. Balbir Singh, (2004) 5 SCC 65, has observed that there is no fixed formula for fixing damages in the following manner:
'8. However, the power 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. As seen above, what is being awarded is compensation i.e. a recompense for the loss or injury. It therefore necessarily has to be based on finding of loss or injury and has to correlate with the amount of loss or injury. Thus, the Forum or the Commission must determine that there has been deficiency in service and/or misfeasance in public office which has resulted in loss or injury. No hard-and-fast rule can be laid down, however, a few examples would be where an allotment is made, price is received/paid but possession is not given within the period set out in the brochure. The Commission/ Forum would then need to determine the loss. Loss could be determined on basis of loss of rent which could have been earned if possession was given and the premises let out or if the consumer has had to stay in rented premises then on basis of rent actually paid by him. Along with recompensing the loss the Commission/Forum may also compensate for harassment/injury, both mental and physical. Similarly, compensation can be given if after allotment is made there has been cancellation of scheme without any justifiable cause. That compensation cannot be uniform and can best be illustrated by considering cases where possession is being directed to be delivered and cases where only monies are directed to be returned. In cases where possession is being (7) directed to be delivered the compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting. But in cases where monies are being simply returned then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot. He is being deprived of that flat/plot. He has been deprived of the benefit of escalation of the price of that flat/plot. Therefore, the compensation in such cases would necessarily have to be higher. ... We clarify that the above are mere examples. They are not exhaustive. The above shows that compensation cannot be the same in all cases irrespective of the type of loss or injury suffered by the consumer." (emphasis supplied) 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.
This 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. The objectives of the consumer petition act may be summarised as -(8)
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.
What are the rights of consumers? Let us know more about the rights of consumer. 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.
So it is clear that the Consumer Protection Act has been passed to safeguard the interest of the consumers. Now we come to the facts of the present case. The allotment letter is of 10 August 1992 meaning thereby the possession of the said (9) plot was to be given by 10 August 1994. It is really surprising that the respondent/opposite party has informed the complainant about cancellation of the allotment vide his letter dated 2 January 2003. It means that the information of cancellation of the allotment was given after 8-9 years from the date on which the possession was to be delivered as per allotment letter. Is there any fault on the part of the complainant? That the fault is on the part of the respondent/ opposite party who failed to deliver the possession of the plot in time. The limit is that, that they informed the complainant after eight - nine years from the date on which delivery opposition was assured to be handed over. It is clear deficiency in service and also comes under unfair trade practice.
In the case of Faqir Chand Gulati Vs. Uppal Agencies Pvt. Ltd. &Anr., Civil appeal no.3302 of 2005, judgment dated 10.06.2008, Hon'ble Supreme Court has held that a prayer for completion certificate and C&D Forms cannot be brushed aside by stating that the builder has already applied for the completion certificate or C&D Forms. If it is not issued, the builder owes a duty to make necessary application and obtain it. If it is wrongly withheld, he may have to approach the appropriate court or other forum to secure it. If it is justifiably withheld or refused, necessarily the builder will have to do whatever is required to be done to bring the building in consonance with the sanctioned plan so that the municipal authorities can inspect and issue the completion certificate and also assess the property to tax. If the builder fails to do so, he will be liable to compensate the complainant for all loss/damage.(10)
Hon'ble Supreme Court in the case of Ireo Grace Realtech Private Limited Vs. Abhishek Khanna & Ors., civil appeal no.5785 of 2019, with other civil appeals, judgment 11.01.2021, has held where the development makes an alternate offer of allotment of apartment, the allottees are however not bound to accept the same because of inordinate delay in completing the construction of the towers or units were allotted to them and if the Occupation Certificate is not available even as on date, clearly amounts to deficiency of service.
Now it is clear that the reasonable period for handing over the possession of the flat/plot is three years from the date of allotment order and also if the occupancy certificate has not been obtained, offering delivery of possession is deficiency of service. Also the completion certificate is of utmost importance.
In R. V. Prasannakumaar v. Mantri Castles Pvt. Ltd., 2019 SCC on Line SC 224, under the terms of the ABA, possession of the flats was to be handed over to the buyers on 31 January 2014. However, the developer received an occupation certificate only on 10 February 2016 and it was thereafter from May 2016 that the developer started issuing letters offering possession. Based on this, the NCDRC awarded compensation in the form of interest at the rate of 6 per cent per annum. The developer had pleaded that since the agreement provided compensation at the rate of Rs.3 per square foot per month for delayed possession, the purchasers were not entitled to anything in addition. Dealing with the submission, this Court observed:(11)
"9. We are in agreement with the view of the NCDRC that the rate which has been stipulated by the developer, of compensation at the rate of Rs.3 per sq. ft. per month does not provide just or reasonable recompense to a flat buyer who has invested money and has not been handed over possession as on the stipulated date of 31 January 2014. To take a simple illustration, a flat buyer with an agreement of a flat measuring a 1000 sq. ft. would receive, under the agreement, not more than Rs. 3000/- per month. This in a city such as Bangalore does not provide just or adequate compensation. The jurisdiction of the NCDRC to award just compensation under the provisions of the Consumer Protection Act, 1986 cannot in the circumstances be constrained by the terms of the agreement. The agreement in its view is one sided and does not provide sufficient recompense to the flat purchasers."
The Court observed that there was a delay of two years and hence the award of interest at the rate of 6 per cent was reasonable and justified.
In Pioneer Urban Land and Infrastructure Limited v. Govindan Raghavan, (2019) 5 SCC 725, there was a delay of almost two years in obtaining an occupancy certificate after the date stipulated in the ABA. As a consequence, there was a failure to provide possession of the flat to the purchaser within a reasonable period. This Court dwelt on the terms of the ABA under which the builder was entitled to charge interest at 18 per cent per annum for the delay in payment of instalments by the purchaser. On the other hand, the failure to provide possession on the part of the developer was subject to a grace period of twelve months followed by a termination notice of ninety days and a further (12) period of ninety days to the developer to effect a refund. Adverting to these clauses, the court noted:
"6.4. A perusal of the apartment buyer's agreement dated 8-5- 2012 reveals stark incongruities between the remedies available to both the parties. For instance, Clause 6.4(ii) of the agreement entitles the appellant builder to charge interest @18% p.a. on account of any delay in payment of instalments from the respondent flat purchaser. Clause 6.4(iii) of the agreement entitles the appellant builder to cancel the allotment and terminate the agreement, if any instalment remains in arrears for more than 30 days. On the other hand, as per Clause 11.5 of the agreement, if the appellant builder fails to deliver possession of the apartment within the stipulated period, the respondent flat purchaser has to wait for a period of 12 months after the end of the grace period, before serving a termination notice of 90 days on the appellant builder, and even thereafter, the appellant builder gets 90 days to refund only the actual instalment paid by the respondent flat purchaser, after adjusting the taxes paid, interest and penalty on delayed payments. In case of any delay thereafter, the appellant builder is liable to pay interest @9% p.a. only. Another instance is Clause 23.4 of the agreement which entitles the appellant builder to serve a termination notice upon the respondent flat purchaser for breach of any contractual obligation. If the respondent flat purchaser fails to rectify the default within 30 days of the termination notice, then the agreement automatically stands cancelled, and the appellant builder has the right to forfeit the entire amount of earnest money towards liquidated damages. On the other hand, as per Clause 11.5(v) of the agreement, if (13) the respondent flat purchaser fails to exercise his right of termination within the time limit provided in Clause 11.5, then he shall not be entitled to terminate the agreement thereafter, and shall be bound by the provisions of the agreement."
Hon'ble Justice Indu Malhotra speaking for the Court noted:
"6.8. A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the agreement dated 8-5-2012 are ex facie one-sided, unfair and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2(1)(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the builder." The Court observed that in these circumstances, the flat purchasers could not be compelled to obtain possession which was offered almost two years after the grace period under the agreement had expired. Hence, the NCDRC was held to have correctly awarded interest at the rate of 10 percent per annum.
The decision of this Court in Dhanda Case, 2019 SCC On Line SC 689 has been relied upon by learned Senior Counsel appearing on behalf of the developer as elucidating the principle that where a flat buyers agreement stipulates a consequence for delayed possession, exceptional and strong reasons must be established before the forum constituted under the Act of 1986 awards compensation in addition to what has been contractually agreed. In Dhanda's case, the SCDRC issued a direction for handing over physical (14) possession of the residential unit to the complainant and for execution of a sale deed. In addition, compensation was awarded by way of interest at the rate of 12 per cent per annum with effect from twelve months after the stipulated date under the agreement. In an appeal by the developer, the NCDRC directed that the rate of interest for a house building loan for the corresponding period in a scheduled nationalised bank would be appropriate and if a floating rate of interest was prescribed, the higher rate of interest should be taken for the computation. A sum of Rs.1 lac per annum from the date for handing over possession to the actual date of possession was regarded as appropriate in the facts of the case. In that case under the terms of the buyer's agreements, possession was to be delivered within twenty-four months of the execution of the agreement i.e. 10 February 2013 - failing which the developer was liable to pay compensation at the rate of Rs.10 per square foot per month for the delay. The developer contended that construction activities were delayed as a result of an injunction granted by this Court over a period of eight months and consequently sought an extension of the period for handing over possession by one year. Alternatively, the developer offered to refund the money deposited with interest at 9 per cent per annum. Construction of 258 independent floors was completed while about 1,500 units were nearing completion. In two sets of Civil Appeals which came up before this Court earlier, agreed terms were arrived at providing for the award of interest at 9 per cent per annum from the date of deposit till refund. While considering the order of the NCDRC, this Court observed:(15)
"16. The District Forum under the Consumer Protection Act, 1986 is empowered inter-alia to order the opposite party to pay such amount as may be awarded as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party including to grant punitive damages. But the forums under the Act cannot award interest and/or compensation by applying rule of thumb. The order to grant interest at the maximum of rate of interest charged by nationalised bank for advancing home loan is arbitrary and no nexus with the default committed. The appellant has agreed to deliver constructed flats. For delay in handing over possession, the consumer is entitled to the consequences agreed at the time of executing buyer's agreement. There cannot be multiple heads to grant of damages and interest when the parties have agreed for payment of damages at the rate of Rs. 10/- per sq. ft. per month. Once the parties agreed for a particular consequence of delay in handing over of possession then, there has to be exceptional and strong reasons for the SCDRC/NCDRC to award compensation at more than the agreed rate."
Now the interest may be 6% to 10% in favour of the allottees if they have not been given possession of the flat/plot within promised or within a reasonable time. The complainant has deposited the entire agreed cost of the flat before June 2009. Now it is the duty and obligation of the opposite party to deliver the possession within stipulated time but they failed to do so.
In the case of PRIYANKA MITTAL & ANR. V. PARSVNATH DEVELOPERS LTD. & ANR. (NCDRC). These appeals arise out of single order of State Commission, (16) 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 (17) 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 (18) 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 (19) 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 (20) 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.(21)
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 Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra [Civil Appeal No. 3182 of 2019 @ SLP (C) No(S). 1795 of 2017] judgment delivered on 25.03.2019, the Hon'ble Supreme Court has held:-
"Interestingly, where the buyer is in default, the agreement stipulates that interest at the rate of 18 per cent from the date of default until the date of payment would be charged for a period of two months, failing which the allotment would be cancelled by deducting 5% of the entire value of the property. The agreement was evidently one sided. For a default on the part of the buyer, interest at the rate of 18% was liable to be charged. However, a default on the part of the developer in handing over possession would make him liable to pay interest only at the savings bank rate prescribed by the SBI. There is merit in the submission which has been urged by the buyer that the agreement was one sided.
In the Case of Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. Versus DLF Southern Homes Pvt. Ltd (now Known as BEGUR OMR Homes Pvt. Ltd.) and Ors. (Civil Appeal No. 6239 of 2019 With Civil Appeal No. 6303 of 2019); The Hon'ble Supreme Court has held:-(22)
"24. A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service. The expression "service" in Section 2 (1) (o) means a service of any description which is made available to potential users including the provision of facilities in connection with (among other things) housing construction. Under Section 14(1)(e), the jurisdiction of the consumer forum extends to directing the opposite party inter alia to remove the deficiency in the service in question. Intrinsic to the jurisdiction which has been conferred to direct the removal of a deficiency in service is the provision of compensation as a measure of restitution to a flat buyer for the delay which has been occasioned by the developer beyond the period within which possession was to be handed over to the purchaser. Flat purchasers suffer agony and harassment, as a result of the default of the developer. Flat purchasers make legitimate assessments in regard to the future course of their lives based on the flat which has been purchased being available for use and occupation. These legitimate expectations are belied when the developer as in the present case is guilty of a delay of years in the fulfillment of a contractual obligation. To uphold the contention of the developer that the flat buyer is constrained by the terms of the agreed rate irrespective of the nature or extent of delay would result in a miscarriage of justice."(23)
"Undoubtedly, as this court held in Dhanda, courts ordinarily would hold parties down to a contractual bargain. Equally the court cannot be oblivious to the one-sided nature of ABAs which are drafted by and to protect the interest of the developer. Parliament consciously designed remedies in the CP Act 1986 to protect consumers. Where, as in the present case, there has been a gross delay in the handing over of possession beyond the contractually stipulated debt, we are clearly of the view that the jurisdiction of the consumer forum to award just and reasonable compensation as an incident of its power to direct the removal of a deficiency in service is not constrained by the terms of a rate which is prescribed in an unfair bargain."
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 (24) 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.
So in the present case, we have seen all the facts and circumstances and in view of the various judgements of Hon'ble Supreme Court and Hon'ble NCDRC, it is clear that the respondent/opposite party is bound to compensate properly and genuinely the appellant/complainant who in the hope of getting a plot had deposited all the hard earned money but ditched by GDA. In this case for the purpose of calculation of compensation and interest, the cut of date is 10.08.1994 but for the sake of calculation we take the cut-off date 01.09.1994.
Now in view of all the facts and case laws discussed above we are of the view that the complainant is entitled for the following reliefs.
She is entitled to get the possession of the said plot within 30 days from the date of judgment of this appeal or in alternate she is entitled to get a plot of the same area in same locality and on the same price and no further amount shall be demanded from her in any category or for any cause.
She is entitled to get her money back from the respondent/opposite party with interest at a rate of 10% per annum from 01.09.1994 till the date of actual payment within 30 days from the date of judgment of this appeal otherwise she will be entitled to get interest at a rate of 15%from 01.09.1994 till the date of actual payment.
She is entitled to get Rs.1.5 Lacs as damages in the light of Hon'ble Supreme Court judgment.
She is entitled to get Rs.15,000/per month ,being the area of the said unit less than 175 m² and keeping in view the judgment of Hon'ble NCDRC in the case of Priyanka Mittal (supra) ,with interest at a rate of 10%from 01.09.1994 till the date of actual payment within 30 days from the judgment of this appeal otherwise she will be entitled interest at a rate of 15%.
For the prayer 'E' in the relief clause of the complaint, she is entitled to Rs.20 lakhs towards mental agony/harassment, depression with interest at a rate of 10% per annum from 01.09.1994 till the date of actual payment, within 30 days from the judgment of this appeal otherwise she will be entitled interest at a rate of 15%.
Therefore the appeal is liable to be allowed accordingly.
ORDER The appeal is allowed accordingly. The opposite party is directed :-
To deliver the possession of the said plot within 30 days from the date of judgment of this appeal or in alternate directed to allot a plot of same area in same locality and on the same price and no further amount shall be demanded from her in any category or for any cause.
is directed to pay the complainant her total deposited amount with interest at a rate of 10% per annum from 01.09.1994 till the date of actual payment within 30 days from the date of judgment of this appeal otherwise the opposite party will pay interest at a rate of 15% from 01.09.1994 till the date of actual payment.
To pay Rs.1.5 Lacs as damages in the light of Hon'ble Supreme Court judgment.
To pay Rs.15,000/-per month with interest at a rate of 10% from 01.09.1994 till the date of actual payment within 30 days from the judgment of this appeal otherwise the opposite party shall pay interest at a rate of 15%.
To pay Rs.20 lakhs towards mental agony/harassment, depression with interest at a rate of 10% per annum from 01.09.1994 till the date of actual payment, within 30 days from the judgment of this appeal otherwise she will be entitled interest at a rate of 15%.
The opposite party is directed to pay all the amount within 30 days from the date of judgment of this appeal otherwise the rate of interest shall be 15% per annum and the complainant will be entitled to file execution case before this court against the opposite party at the cost of opposite party.
The stenographer is requested to upload this order on the Website of this Commission today itself.(27)
Certified copy of this judgment be provided to the parties as per rules.
(Sushil Kumar) (Rajendra Singh) Member Presiding Member Judgment dated/typed signed by us and pronounced in the open court. Consign to the Record Room. (Sushil Kumar) (Rajendra Singh) Member Presiding Member Jafri, PA II C-2 [HON'BLE MR. Rajendra Singh] PRESIDING MEMBER [HON'BLE MR. SUSHIL KUMAR] JUDICIAL MEMBER