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    F.A. Nos. 119-120 of 1994
    Decided On, 19 October 1995
    At, National Consumer Disputes Redressal Commission NCDRC

Judgment Text
Mr. Justice B.S. Yadav, Member

Mr. Akhilesh Kumar Verma who was the complainant before the State Consumer Disputes Redressal Commission, New Delhi has filed this appeal challenging the orders dated 13th October, 1993 and 19th January, 1994 passed by the State Commission. Briefly the facts are that the complainant had filed a complaint before the State Commission against M/s. Skipper Builders Pvt. Ltd. and Sardar Tejwant Singh, Director of the 1st opposite party. He averred that the opposite parties had advertised extensively regarding sale of apartments in their complex named Symphony Apartments in the Times of India dated May 30,1989. It was especially mentioned in the advertisement that the apartments would be ready for possession by end of 1991 and there would be no escalation in the cost of the flats. The complainant obtained the brochure and applied for one apartment on 9.6.89 and depositing Rs. 25,000/- as earnest money on 10th June, 1989. Later on he further deposited a further amount of Rs. 1,57,125.00 as detailed below:

Vide Receipt No. 1229 dated 4.7.89 Rs. 29,625.00

Vide Receipt No. 1230 dated 4.7.89 Rs. 41,000.00

Vide Receipt No . 1527 dated 1.9.89 Rs. 38,250.00

Vide Receipt No . 2238 dated 27.5.91Rs. 38,250.00

Total Rs. 1,57,125.00

2. It was further pleaded that besides the assurance given in the advertisement, brochure and pamphlets about handing over the possession of the apartment by end of 1991, the apartments have not been even completed so far. The" complainant has been suffering mental agony for the last more than one-an-half years as his total savings and borrowed money had been locked up with the opposite parties. It is also averred that the complainant approached the Housing Development Financial Corporation (H.D.F.C.) for the balance amount and paid Rs. 3,600/- to them as administrative expenses for sanctioning the loan, which has gone all in vain. In such circumstances, the complainant prayed that the opposite parties may be directed to refund a sum of Rs. 1,72,125/- with interest. He has also claimed Rs. 30,000/- as damages on account of mental torture and Rs. 2,500/- p.m. on account of loss of rent.

3. The State Commission issued notices to the respondents for 5th February, 1993 but on that date nobody appeared on their behalf and they were proceeded against ex-parte and the case was adjourned to 11.3.93. On that date an application for setting aside the ex-parte proceedings was filed by the respondents. The State Commission, after hearing the parties, set aside the ex-parte order subject to payment of Rs. 350/- as costs, vide order of even date. The Respondents were directed to file the written statement and affidavits etc. of their witnesses within one month. The Complainant was also directed to file rejoinder and affidavit within the next two months. The parties were directed to exchange the copies and the date for arguments was fixed as 29.7.93. On that date nobody appeared on behalf of the respondents. Even the order dated 11th March, 1993 was not complied with. The case was adjourned to 2nd September, 1993 on which date Counsel for the respondents wanted to file the written statement to which the complainant objected. The State Commission, after hearing the parties did not allow the opposite parties to file the counter and their defence was struck off.

4. To support his case the complainant produced the advertisement dated 30th May, 1989, brochure issued by the opposite parties, receipts regarding payment, letters written by him to the opposite parties. The State Commission held that from the documents produced by the complainant, his allegations stood proved. Accordingly, the State Commission ordered the respondent to refund the sum of Rs. 1,72,125/-with interest at the rate of 18% per annum from 1st November, 1991 till the date of payment within a period of three months. (It may be mentioned here that in the operative part, the figure mentioned by the State Commission is Rs. 1,82,125/-. In the original order the date of advertisement was mentioned as 13th May, 1989 and while narrating the plea of the Complainant the State Commission had mentioned that the Complainant had paid to the opposite parties directly a sum of Rs. 1,82,125/-. The complainant filed an application for rectification of the errors. According to him the date of advertisement was May 30,1989, while the total deposits made by him amounted to Rs.. l,72,125/-.He prayed that interest may be allowed from the dates of deposits. Vide order dated 19th January, 1994, the State Commission rectified the mistakes in regard to the date of advertisement and the total amount deposited by the complainant. However, it refused to order that the interest should be payable from the dates on which the amounts were deposited since it has no power of review. The application was disposed of accordingly. As noticed above, the complainant has filed this appeal challenging both the orders.

5. We have heard Counsel for the appellant and gone through the records of the case. The first grievance of the complainant is that the State Commission had arbitrarily fixed the date of 1st November, 1991 from which interest is to run instead of from the dates on which the deposits were made. As noticed above, the first deposit of Rs. 25,000/- was made on 10th June, 1989. The dates of the further four deposits have also been given above. In all the complainant had paid Rs. 1,72,125/- i.e. upto 27th May, 1991. From the order of the State Commission, it is not clear how it has fixed the date of 1st November, 1991 from which date interest has been ordered to run on the amount deposited by the complainant. We are of opinion that the complainant is justified in urging that while ordering the refund of the amount interest should be awarded from the respective dates of deposits.

6. The complainant has also claimed a sum of Rs. 30,000/- on account of mental torture. The State Commission has disallowed that amount on the ground that the high rate of interest allowed to the complainant would amply compensate him regarding damages. The view so taken by the State Commission is not unreasonable.

7. Another prayer of the complainant in the complaint was that interest should be compounded at the rate of 18 per cent on monthly basis. This request does not appear reasonable as this Commission has been allowing only simple interest in similar cases.

8. In the complaint the complainant also prayed for Rs. 32,500/- towards the loss of rent to the complainant at the rate of Rs. 2,500/- per month from January, 1992 to December, 1992 plus Rs. 2,500/- per month till the date of order of the State Commission. A prayer was also made that suitable compensation be also allowed to him considering the fact that he had lost almost four precious years for arranging a house for himself. We are of the opinion that these prayers require consideration. Letter dated 16th February, 1989 was written by opposite party No. 1 to the complainant asking him to deposit further amount of Rs. 70,625 / - to complete 25 per cent of the cost of the flat by 4th April, 1989. He had deposited Rs. 25,000/- at the time of booking of the apartment. Thus 25% comes to Rs. 95,625/-. The total cost of the flat thus comes to Rs. 3,82,500/-.

9. The complainant had deposited Rs. 1,72,125/-, as noticed above, with the opposite parties with the fond hope that he would get the possession of the apartment by the 31st December, 1991. However, upto this time there is no hope of that apartment coming into existence. The hard earned money of the complainant has been lying with the opposite parties which they might have been using for their other projects. It is common knowlege that the prices of real estate are rising day by day. The complainant expected to get the flat with a covered area of 850 sq. ft. on 1st floor in the proposed complex at Vaishali at the rate of Rs. 450/- per sq. ft. (The allotment letter is at page 49 of the paper book). The complainant cannot now get a flat measuring 850 sq, ft. at the above cost. A consumer cannot be allowed to be swindled by an unscrupulous builder. Considering all the facts and circumstances of the case we feel that the complainant would be amply compensated if we allow him Rs. 50,000/- in all as da

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mages/compensation. 10. In the light of the above discussions, we partly accept the present appeal and modify the order of the State Commission dated 13th October, 1993 to the extent that the refund of Rs. 1,72,125/- will bear simple interest at the rate of 18 per cent per annum from the respective dates of deposits till actual payment. The complainant is also awarded Rs. 50,000/- as damages for the loss sustained by him. This amount of Rs. 50,000/- will also bear interest at the rate of 18 per cent per annum from the date of this order till payment. If the order of the State Commission has, not so far been complied with by the opposite parties, we direct that the opposite party shall within one month from the date of the receipt of this order comply with the orders of State Commission as modified by this Commission. The complainant will also be entitled to the costs of the present appeal which we assess at Rs. 2,000/-.