1. This appeal has been filed under section 19 of the Act 1986 in challenge to the Order dated 19.12.2019 of the State Commission in complaint no. 818 of 2017 which had been filed under section 17(1)(a)(i) of the Act 1986.
The appeal was filed on 25.01.2021 when the Act 1986 (the old Act) already stood repealed and the Act 2019 (the new Act) was in force. To be fair to the appellants the mistake in the section and the Act is being overlooked and the appeal is being entertained under section 51(1) of the Act 2019.
2. Learned counsel for the appellants (the ‘builder co.’) is not present. It is seen that on the last preceding two occasions i.e. on 14.06.2022 and on 19.05.2022 also no one had appeared for the builder co. Mr. Ravi Agrawal, learned counsel is present for the respondent no. 1 (the ‘complainant’). (Respondent no. 2 is a proforma party.)
3. Learned counsel for the complainant submits that the State Commission vide its impugned Order has ordered for refund of the amount deposited by the complainant with the builder co. along with reasonable interest. The complainant has a favourable Order from the State Commission but the builder co. is continuously not appearing before this Commission and is unjustifiably and intentionally delaying its appeal in order to make the State Commission’s award more or less a throwaway. The submission is that any more delay in deciding the appeal would cause further prejudice to the complainant.
4. The case is listed for ‘final hearing’. The ideal normative period to dispose of an appeal is 90 days of its admission (section 52 of the Act 2019). This is the third occasion on which no one has appeared for the builder co.
It is therefore deemed just and appropriate to decide the case on the basis of record.
5. Perused the record, including inter alia the State Commission’s impugned Order dated 19.12.2019, the application for condonation of delay and the memorandum of appeal.
6. The appeal has been filed with self-admitted delay of 306 days.
Learned counsel for the complainant submits that even though the delay is abnormally huge but still in order to put a period to the lis he has no objection to delay being condoned and the matter being decided on its substance on merits.
Having regard to the above submissions, as also considering the reasons mentioned in the application for condonation of delay, as well as in the interest of justice, and to decide the case on merits rather than to summarily dismiss it on the threshold on limitation, the delay in filing the appeal is condoned.
7. The matter relates to a builder-buyer dispute. In brief, the complainant paid a total amount of Rs. 24,99,329/- to the builder co. for a residential unit. The assured date for delivery of possession of the subject unit was 21 months from the date of start of construction. Delivery of possession was not made within the assured period, or even within a reasonable period thence (reasonable period here would connote a period which may appear reasonable per se and which a reasonable man of ordinary prudence would not normally agitate or object to). The complainant went before the State Commission after more than 4 years of the expiry of the assured period of 21 months. The State Commission ordered the builder co. to refund the deposited amount with compensation in the form of simple interest at the rate of 9% per annum on the deposited amount from the respective date(s) of deposit till actual realisation within three months, failing which the rate of interest shall stand enhanced to 12% per annum for the period of default beyond the stipulated period of three months. It also awarded lumpsum Rs. 1,00,000/- as compensation for the physical and mental agony and Rs. 21,000/- as the cost of litigation.
8. A perusal of the State Commission’s impugned Order shows that it has comprehensively dealt with the substance of the dispute. It has passed a well-appraised and reasoned order, aptly dealing with the issues germane.
It may be observed, to place the whole matter in perspective, that prior to, or, at the least, simultaneous to, getting the buyer-consumer to enter into its agreement and accepting the first payment towards the total cost of the subject unit, the builder co. was required and expected to have the due pragmatic and realistic assessment and preparation of the project planning. It was the prime responsibility of the builder co. to ensure that it was in a position to deliver possession of the subject unit to the buyer-consumer within the assured period. Planning, execution and completion were the builder co.’s responsibility, and not of the consumer; to deal and take care of the (normal) impediments or problems that may arise in planning, execution and completion were again its own responsibility, and not of the consumer. Specifically, availability of land, as well as all approvals from the concerned government, development and municipal authorities, as and when due, being fundamental basic requirements of a residential housing project, were decidedly to be taken care of and dealt with by the builder co. Time and cost overruns were essentially within the domain of its own duty and obligation. Non-fulfilment of its overall responsibilities of project planning, execution and completion can not be, and are not, grounds for condoning or overlooking delay in completion and failure to deliver possession within the assured period.
9. Abnormal unreasonable delay beyond the assured period of delivery of possession is writ large in the present case.
It is a well settled position that in case of unreasonable delay beyond the assured period, two parallel rights accrue to the consumer:
one : to wait for possession of the subject unit to be offered, if and when the project is completed and the offer of possession is made by the builder co., and to seek just and equitable compensation under the Act 1986 / 2019 for the unreasonable delay.
two : to claim refund of the amount deposited with just and equitable interest / compensation.
In the instant case the complainant has opted for refund of his deposited amount with compensation. The delay as already seen is unreasonable and unjustifiable. There can be no two opinions that the builder co. is dutybound to refund the amount deposited by the complainant. Regarding the rate of interest adopted for computing compensation, in the overall facts and circumstances of the case, and taking into account the patent deficiency on the part of the builder co. by way of the abnormal unreasonable delay, and considering the continuing protracted uncertainty and difficulty faced by the complainant, the rate of 9% per annum if the payment is made within a reasonable period of three months and the rate of 12% per annum for the period of default beyond the stipulated three-month period appears to be quite reasonable and justified and there is no good reason forthcoming to disturb it, the compensation granted appears to be commensurate with the loss and injury suffered by the complainant.
It may be observed that what is to be seen in such matters is as to what should meet the scales of equity and how to delineate the peremeters of conscionable justice. Such questions are principally within the realm of judicial or quasi-judicial discretion of the concerned forum which moulds the cast of the award in the exercise of its original jurisdiction, though no doubt it must exercise its discretion judiciously and reasonably. There can be no straight-jacketed formula that may go towards universal application in this regard. It is always possible in many such matters that the appellate or the revisional forum may tend to have a slightly deviating view about the rate of interest but this in itself alone would not constitute to be a good ground to interfere in the judicious discretion exercised by the lower forum. In such matters unnecessary interference in the discretion already exercised by the lower forum by substituting one’s own discretion in its stead should be avoided unless it is found evident that the exercise of discretion by the forum below has not been judiciously undertaken or where elements of capricious or whimsical exercise or of patent arbitrariness or unreasonableness are perceptible or where a visible lack of application of mind is apparent. In such situations unarguably there should be no hesitation to interfere and to pass the corrective orders as required. Similarly where elements of absurdity or of disproportion are discernible in the award there has to be no hesitation to set the same right. However just because a different view is also possible, this alone is not b
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y itself a persuasive ground to substitute the award passed by the lower forum by an alternative opinion. But in the case at hand here no such anomaly or infirmity as may go to vitiate the award or as may necessitate interference is perceptible. 10. The appeal, being bereft of worth, is dismissed. The award made by the State Commission is confirmed. The same shall be made good by the builder co. within four weeks from today, failing which the State Commission shall forthwith undertake execution, for ‘enforcement’ and for ‘penalty’, as per the law. 11. The Registry is requested to send a copy each of this Order to the parties in the appeal and to their learned counsel as well as to the State Commission immediately. The stenographer is also requested to upload this Order on the website of this Commission immediately. Later on Mr. Puneet Parihar, learned counsel appeared on behalf of the appellants and he was apprised of the Order.