Bharatkumar Pandya, Member
The present Appeal has been filed by the appellant-OP builder against the impugned order dated 09.04.2021 passed by the State Consumer Disputes Redressal Commission, UT Chandigarh, in Complaint Case No. 268 of 2019. The brief facts of the case, as per the appellant builder, are that appellant developed a mega project "The Palms" in the year 2011 and respondent applied for a 300 sq. yard plot in the same project on 23.01.2012. The basic sale consideration of the plot was Rs.57 lakhs and respondent opted for construction linked plan. However, respondent did not come forward for making any payment and after much demands, payment of Rs.11,40,000/- was made by the respondent on 19.04.2013. Again when notices were issued to the respondent on 28.04.2014 and 27.06.2014 that the payment of Rs.6 lakhs was made by the respondent on 05.02.2016 and another payment of Rs 8 lakhs was made on 20.12.2016 with the delay of several years. Since the respondent was a defaulter, the appellants could not offer her the possession of the plot on time. On 16.06.2016 appellant-builder entered into a supplementary agreement with the government for the additional area of 36.77 acres and another supplementary agreement for 94.60 acres and competent authority had granted completion period for the entire project up to 13.06.2018 to the appellant. Since this extension was further granted till December, 2022, there was no delay in completion and development of the project. The information about the same was given to the respondent on time to time basis. Appellant company also received registration under the RERA Act on 15.09.2017. The delay, if any, was due to the bureaucratic procedures and delays and laches on the part of the authorities. Respondent herself came forward and made an application for allotment on 06.02.2017 and she chose the plot of her choice. Thereafter, she was allotted Plot No. 1324 measuring 254 sq. yards for a basic sale price of Rs.48,26,000/-. As the said plot was allotted to the respondent on 06.02.2017, possession was not due till 06.08.2020 (36 months plus six months grace period) but before the expiry of grace period, respondent filed the complaint before the State Commission on 29.12.2019. Appellant had offered the possession of the plot to the respondent way back on 21.10.2019 but instead of taking the possession of the plot she filed the complaint before the State Commission. The State Commission, without fully appreciating the facts of the case, partly allowed the complaint and directed the Appellant to deliver immediate possession of the plot to the Complainant along with compensation for delay not only as per the agreement, but also with additional delay compensation at 6% p.a. The relevant portion of the order passed by the State Consumer Disputes Redressal Commission, UT Chandigarh on 09.04.2021, is reproduced below:
"18. Now the question arises, as to what compensation shall be granted to the complainant, for delay in delivery of possession of the plot to her and for what period?. No doubt, the complainant has sought consolidated compensation to the tune of Rs. 5 lacs, over and above the compensation amount as mentioned in Clause 35 of the agreement, alongwith other reliefs, yet, we are of the considered opinion that she is entitled to get compensation, similar to what is being granted to the similar located consumers. The Consumer Protection Act has been made to safeguard consumer rights. This Act is regarded as the 'Magna carta' (everyone is subject to the law, even the king, and guarantees the rights of individuals, the right to justice and the right to a fair trial) in the field of consumer protection for checking unfair trade practices, 'defects in goods' and 'deficiencies in services' and it works and protects consumers even in situations where they do not know their rights. At the same time, it is relevant to mention here that, in the absence of a specific prayer, it is still open to the Courts/Foras/Tribunals to grant a relief which is appropriate, justified and warranted in the facts and circumstances of the case. Our this view is supported by the findings given by the Hon'ble National Commission in BPTP Ltd, Vs. Pradeep Sharma, First Appeal No. 1516 of 2019 decided on 23 Dec 2019. Relevant part of the said order is reproduced hereunder:-
"...With regard to the objection of the Developer that the Complainants are not entitled for the relief other than prayed for in the Complaint, the Hon'ble Supreme Court as well Commission in catena of judgments has laid down the principal that in the absence of a specific prayer, it is still open to the Courts to grant a relief which is appropriate, justified and warranted in the facts and circumstances of the case...".
19. As per Clause 35 of the agreement dated 06.02.2017, the opposite parties committed to offer possession within a period of 36 months with grace period of 6 months i.e. total 42 months from the date of allotment of the said plot, failing which, they were liable to pay compensation @Rs.4O/- per square meter per month of area of the said plot, for delay in delivery of possession. At the same time, record reveals that the application form in respect of the plot in question was got signed from the complainant on 23.01.2012 on receipt of amount of Rs. 17,10,000/- towards booking amount, which was equal to 30% of the total sale consideration. Though, as stated above, the opposite parties were legally bound to execute agreement within a period of two to three months from the date of receipt of booking amount aforesaid, yet, they failed to do so and for the said act they cannot take any advantage out of it. It is evident that after obtaining booking amount of Rs.17,10,000/- aforesaid towards booking amount, the next amount of Rs. 11,40,000/- was straightway received by the opposite parties vide receipt dated 19.04.2013 (at page 19 of the paper book), on account of residential plot in the said project, meaning thereby that the plot had been allotted to the complainant on 19.04.2013. Thereafter also, the opposite parties kept on collecting money towards the said plot and by 06.02.2017 had received Rs.47,32,600/- against total sale consideration. Even in clause 28 of the agreement also, it has been very candidly admitted by the opposite parties that they have received Rs.31,26,900/- being part payment towards the total sale price of the plot in question till the date of execution thereof. It is therefore held that the allotment date, in the absence of allotment letter on record, has to be reckoned as 19.04.2013 i.e. when the complainant started paying the remaining amount towards the basic sale price of the plot in question i.e. the first payment made subsequent to the payment of booking amount. As such, as per clause 35 of the agreement, the opposite parties were liable to deliver actual physical possession of the plot in question latest by 18.10.2016 i.e. 42 months (36 months plus 6 months grace period) from 19.04.2013.
20. Now the next question that falls for consideration is, as to what amount of compensation should be granted to the complainant, for the period of delay in delivery of possession, starting from 18.10.2016. it may be stated here that failure of the opposite parties to provide complete/effective possession of the plot within the stipulated period amounts to deficiency in service. It is also matter of common parlance that for purchasing the plot, the purchasers take loans from their family members, relatives and friends or financial institutions. In some cases, the purchasers live on rent in the absence of timely delivery of possession. On account of delay in actual delivery of possession within the stipulated period (in the present case by 18.10.2016), they suffer mental agony, hardship and financial loss at the hands of the developers/builders. In the case titled as Lucknow Development Authority v. MK Gupta (1994) 1 SCC 243, the Hon'ble Supreme Court discussed about the extent of the jurisdiction of the Consumer Fora to award just and reasonable compensation for the harassment and agony suffered by a consumer. Recently in Civil Appeal No. 6239 of 2019 (Wq, Cdr. Arifur Rahman Khan and Aleva Sultana and Ors. v. DLF Southern Homes Pvt. Ltd, (now Known as BEGUR OMR Homes Pvt. Ltd, and Ors.) decided on 24.08,2020. while discussing the above authorities and discarding the one- sided terms of the Buyer's Agreements, the Hon'ble Supreme Court awarded simple interest @ 6% per annum on the amount deposited by the complainant therein, in addition to the penalty amount, as prescribed in the agreement for delay in delivery of possession till delivery of actual and physical possession of the unit. In view of the observations of the Hon'ble Supreme Court in the above noted case, we are of the view that the provision of penalty @Rs.40/- per square meter meter per month of area of the said plot as per Clause 35 of the agreement, which comes around between 2% to 2.5% p.a. only, is not sufficient to compensate the complainant for the delay in delivery of possession and the mental agony, harassment and financial loss suffered by her on account of this reason. Therefore, in addition to aforesaid penalty @Rs.40/- per square meter per month of area of the said plot, after the expiry of stipulated date of delivery of possession i.e. 18.10.2016 till the date of actual, physical and legal delivery of possession, the complainant is also entitled to simple interest on the entire amount deposited by her @ 6% per annum from 18.10.2016 till delivery of possession of the plot in the manner, as discussed above.
21. As far as payment of EDC and IDC is concerned, it may be stated here that since the complainant vide application dated 23.01.2012, Annexure C- 2, has agreed to pay the said charges, as such, now she cannot wriggle out of the same and is liable to pay the same to the opposite parties.
At the same time, it is also held that since basic sale price of the plot in question was kept intact by the opposite parties @Rs. 19000/- per square yards and over and above that amount, if they have charged PLC in accordance with terms and conditions of the application form as well as agreement, she cannot wriggle out of the same. It is not the case of the complainant that she has been charged over and above the basic sale price, as committed at the time of booking of the plot. As such, plea taken by the complainant in this regard stand rejected.
22. For the reasons recorded above, this complaint is partly accepted with cost and the opposite parties, jointly and severally, are directed as under:-
(i). To deliver actual physical possession of the plot in question, complete in all respects i.e. after providing all the basic amenities referred to above, to the complainant, within a period of 3 months from the date of receipt of a certified copy of this order, on making remaining payment, if any, by her
(ii). To pay compensation @Rs.40/~ per square meter per month of area of the said plot, as per clause 35 of the agreement and also interest @6% p.a. on the entire deposited amount, starting 18.10.2016 till 30.04.2021, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount shall carry penal interest @12% p.a. from the date of default till this payment is made.
(iii). To pay compensation @Rs.40/- per square meter per month of area of the said plot aforesaid and also interest @6% p.a. on the entire deposited amount w.e.f. 01.05.2021, onwards (per month), by the 10th of the following month to the complainant till actual delivery of physical possession of the plot, complete in all respects.
(iv). To pay compensation to the tune of Rs.1 lac, for causing mental agony and harassment to the complainant and also deficiency in providing service and adoption of unfair trade practice and cost of litigation to the tune of Rs. 35,000/-, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amounts shall carry interest @9% p.a. from the date of passing of this order till realization."
2. Being aggrieved by the order of the State Commission, appellants preferred the present first appeal. During the course of hearing, Mr. Ray on behalf of the appellant-developer has restricted his contentions primarily to the propriety of quantum of compensation, particularly under multiple such heads as granted by the State Commission, and stated that the State Commission has grossly erred in overlooking the broad principles governing the award of compensation including the delay compensation as laid down by the Supreme Court in DLF Homes Panchkula (P) Ltd. v. D.S. Dhanda, (2020) 16 SCC 319 and has drawn our attention to para 16-18 therefrom and also the following from the written arguments:
"16. 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 recognised principles and is by rule of thumb. Therefore, we find that grant of compensation under various heads granted by Ncdrc cannot be sustained.
17. This Court in a judgment reported as Irrigation Department, State of Orissa v. G.C. Roy [Irrigation Department, State of Orissa v. G.C. Roy, (1992) 1 SCC 508] examined the question as to whether an arbitrator has the power to award interest pendente 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 damages. 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.
18. Thus, we find that the complainant is entitled to interest from the appellant for not handing over possession as projected as is offered by it but it is not a case to award special punitive damages as one of the causes for late delivery of possession was beyond the control of the appellant. Therefore, in view of the settlement proposal submitted by the appellant in earlier two set of appeals in respect of same project, and to settle any further controversy, the appellant is directed as follows:."
2.1 The extract from written arguments:
The present appeal has been filed against the impugned judgment dated 19.04.2021 and 17.12.2021 passed by the Ld. State Consumer Commission, U.T., Chandigarh in CC/268/2019 whereby the State Commission allowed the relief of possession of plot along with compensation @6% p.a. if paid within 30 days or @12% p.a. after 30 days. The Ld. State Commission in addition to the above also directed to pay compensation @Rs.40/- per sq. mtr per month of area of the plot to the Respondent.
It is imperative to state herein that the issue of exorbitant compensation for delay involved in this matter has already been dealt with and settled by this Hon'ble Commission in Manohar Infrastructure & Constructions Pvt. Ltd. & Anr Vs Neelam Bhardwaj IFA/195/2021 decided on 17.05.20231.
Following the ratio of judgment of the Hon'ble Supreme Court in DLF Home Developers Limited vs Capital Green Home Buyers Association (2021) 5 SCC 537 wherein delay compensation in the form of interest @6% p.a. was held to be just and fair. Further this Hon'ble Commission in M/s Manohar Infrastructure and Constructions Private Limited & Ors Vs Harjinder Singh [FA/916/2018 dated 19.12.2022] and various other cases, this Hon'ble Commission categorically held that it is a settled proposition of law as held by Hon'ble Supreme Court in Dhanda's case that where compensation in terms of interest is awarded, no compensation under any other head should be granted.
It may not be out of context to state herein that the judgment passed by this Hon'ble Commission in Neelam Bhardwaj & Harjinder Singh (supra) relates to the same project as in the present Appeal.
2.2 It is also the contention of the appellant that the Commission generally in the cases of delay in handing over the possession, grants no more than 6% interest on the amounts deposited from the respective dates of deposits till the date of payment and no such compensation additionally in the form of lump sum or other amounts under any other head including mental agony or harassment is granted or grantable in view of D.S. Dhanda (supra). On the other hand, Mr. Rajat Gautam on behalf of the respondent-complainant has relied on and reiterated from the order of the State Commission. It is stated that the recent trend in the Supreme Court decisions is to grant delay compensations to the tune of 12-18%, and further, that the State Commission, after due application of mind to the over all facts, has exercised its discretion in awarding compensation, and no case has been made out for any interference by this Commission.
3. We have carefully considered the facts and the contentions. We have already taken a view while dealing with similar facts and similar appeal arising from the same project. No specific case has been made by the respondent-complainant for us to deviate therefrom. We may quote from the following two decisions of this Commission:
(1) M/s Manohar Infrastructure & Constructions Pvt. Ltd. Vs. Neelam Bhardwaj in FA No. 195 of 2021 decided on 17.05.2023
4. During arguments, the counsel for the appellant confined grievance of the appellant in respect of the delay compensation awarded by State Commission, and agrees for delayed compensation in the form of interest @ 6% per annum on the deposit of the respondent, for the delayed period. The respondent appears in person along with his advocate, states that delay compensation as awarded by State Commission is proper. Both the parties agree that due date of possession expired on 04.07.2019 as per terms of the agreement. A three Judges Bench of Supreme Court in DLF Home Developers Ltd. Vs. Capital Green Home Buyers Association, (2021) 5 SCC 537, has held that delayed compensation in the form of interest @ 6% per annum on the deposit of the home buyer for the delayed period was just and fair compensation. The argument that delay compensation as provided in the agreement be given in addition to the interest @ 6% per annum, has not been accepted by Supreme Court.
5. In light of the judgment of Supreme Court as well as agreement on due date of possession, the appeal is partly allowed. The order of the State Commission is modified to the extent that the appellant shall pay delayed compensation in the form of interest @ 6% per annum on the deposit of the complainant from 05.07.2019 till the date of delivery of possession. The appellant shall deliver possession subject to compliance of the terms and conditions of the agreement, duly adjusting delay compensation, within three months from today."
(2) M/s Manohar Infrastructure & Constructions Pvt. Ltd. & Ors. Vs. Harjinder Singh in FA No. 916 of 2018 decided on 19.12.2022
10. It is apparent that it is a covered case, covered by the case of Ankit Jain (supra). This Commission in that case while ordering the refund of the deposited amount had granted interest @ 9% p.a. and penal interest @ 12% p.a..
11. I, therefore, partly allow the present Appeal and issue the following directions:
1. The Appellant is directed to refund deposited amount of Rs. 43,81,720/- to the respondent / complainant along with interest @ 9% p.a. from the respective dates of deposit till the date of payment.
2. To pay cost of litigation to the tune of Rs. 33,000/- as awarded by the State Commission.
3. While disposing of the present Appeal, I also award a litigation cost of Rs. 50,000/- to the complainant.
4. The entire payment shall be made within four months from the date of this order, failing which it will attract penal interest at the rate of 12% per annum.
12. The Appeal is partly allowed. "
3.1 Otherwise also, unless an extraordinary and specific case of actual loss, damage or injury is made out, in the cases of builder-buyer disputes involving the delayed possession so accepted by the allottee, this Commission, generally awards compensation at the rate of 6% irrespective of the pre-agreed rate stipulated in the Buyer's agreement for such delay. In cases of refunds, the compensatory rate generally adopted is 9%. We are of the considered opinion that the "delay compensation at 6% on the amounts deposited for the period of the due date of possession till the date of actual possession" duly takes care of both the financial loss and the mental agony as suffered by the allottee in cases of delayed possession. There does not appear any justification for awarding the delay compensation for the same delay in two different ways, first as stipulated in the agreement and second, in addition thereto by way of compensation at 6% on deposited amounts. However, we, at the same time, are also of the considered view that though an appeal is a statutory right available to the developers, the developers also have to take note of, and cannot be oblivious to, the law laid down by the Supreme Court that the stipulation in the Buyer's agreement for delay compensation at asymmetrical Rs. 5-10 per square foot per month (or, Rs. 40 per square meter) while at the same time charging to the allottees far more than such rate for delay in payments of instalments, is one-sided and that compensatory rate of 6% is reasonable. We are therefore also of the considered view that such obvious right and entitlement of the allottees for such delay compensation, which crystallised and got quantified upon the order of the State Commission, cannot or should not get compromised or diluted due to passage of time or merely on account of taking up of further litigation by the Developer. Therefore, we uphold the direction of the State Commission for entitlement of the complainant to further interest on such crystallised compensation, along with additional compensation, if any, payable on account of further delay in handing over of the actual possession, but do not approve the balance or other lump sum compensation. Similarly we have also modulated downward the Thus we uphold the directions of the State Commission as modified as under:
(i). To deliver actual physical possession of the plot in question, complete in all respects i.e. after providing all the basic amenities referred to above, to the complainant, on making remaining payment, if any, by the respondent-complainant. Further, Compensation @7% p.a. simple rate on the entire deposited amount for the period 01.08.2021 till the date of actual delivery of physical possession of the plot, complete in all respects, shall also be payable by the developer to compensate the allottee for any delay beyond 01.08.2021 in such actual handing over of the possession beyond 01.08.2021 as per State Commission's order.
(ii). To pay delay compensation @6% p.a. on the entire deposited amount for the period 18.10.2016 till 30.04.2021, with 7% interest on such amount of delay compensation remaining unpaid on 30.07.2021 till the actual date of payment.
(iii). To pay cost of litigation to the tune of Rs. 35000/-, within a period of 60 days from the date of this order, failing which the said amount shall carry interest at the rate of 6% p.a. from the date of passing of this order till realization.
(iv). Compliance to be made by the appellant-developer within 60 days of this order, failing which, each rate mentioned in the order shall stand enhanced by 1 more percent from 11.08.2026 onwards correspondingly for the period beyond 11.08.2026.
3.2 Appeal is thus partly allowed.
