1. This complaint under Section 17 of the Consumer Protection Act 1986, the Act, has been filed before this Commission by Ms. Shalani Chowdhury and Sh. Sanjay Chowdhury, resident of New Delhi, for short complainants, against the Granite Gate Properties Pvt. Limited and anr, hereinafter referred to as OPs, alleging deficiency of service on the part of the OPs they having not handed over the possession of the flat booked by them within the time as agreed to despite more than 95% of the amount having been paid and praying for the relief as under:-
In the light of the facts and circumstance of the present case, it is most humbly prayed that this Hon€™ble Commission may very kindly be pleased to:-
a. Direct the OP to, jointly and severally, refund the amount of INR 48,70,341.26 i.e. the total amount of money already paid by the complainants to the OPs with respect to the apartment bearing no. 803, 8th floor, tower 1 in the project known as €˜Lotus Panache€™, Sector-110, Noida, U.P.; and
b. Direct the OPs to, jointly and severally, pay interest at the rate of 15% per annum on the amounts received from the date of receipt of each payment till the date of actual refund to the complainant; and
c. Direct the OPs to, jointly and severally, pay a sum of INR 25,00,000/- as escalation costs of the property and loss of opportunity; and
d. Direct the OPs to jointly and severally, pay a sum of INR 10,00,000/- to the complainants as compensation for harassment, mental agony and inconvenience caused to the complainants.
e. Direct the OPs to, jointly and severally, pay the litigation expenses to the complainant for the present case to the tune of INR 2,00,000/- and
Pass any such other and further orders, as this Commission may deem fit and proper in the facts and circumstances of the present case.
2. Facts of the case necessary for the adjudication of the complaint are these.
3. On the basis of representations and advertisements made by the OPs, an application for allotment in respect of an apartment in their upcoming project known as €˜Lotus Boulevard€™ being developed by the OP no. 1 in Sector-100, Noida, U.P. was made by the complainants on 04.02.2010, paying a sum of INR 4,20,000/- as the booking amount. The OP-1 allotted an apartment no. 803, 8th Floor, in tower-1 in the project known as €˜Lotus Panache€™ admeasuring 1415 sq. ft. Sector-10, NOIDA to the complainants on 24.03.2010 for a total sale consideration of INR 49,87,425/- and also intimated that construction in the project is in full swing and options should be exercised for interior work which gave an impression that construction was about to be completed and it was safe to enter into an agreement to sell for the said apartment. Later apartment buyer€™s agreement was executed into between the complainants and the OP-1 through its Authorised signatory on 22.05.2010 for an apartment bearing no. 803, 8th floor, in Tower-1 in the project known as €˜Lotus Panache€™ admeasuring 1415 sq. ft. at Sector 110, Noida, District Gautam Budh Nagar, U.P. for a total sale consideration of INR 49,87,425/- inclusive of additional charges and as per the agreement, clause 5.1 the possession of the said apartment was to be handed over by 21.12.2012. The complainants made a total payment of INR 48,70,341.26 to the OP-1 in view of the demands raised by them. The payments made by the complainants till date amounts to approximately 97.6% of the total payable consideration amount in terms of the Buyers Agreement dated 22.05.2010.
4. Possession not having been handed over within the time as agreed to despite the payment having been made, the complainants have filed this complainant for the redressal of their grievances. OPs were noticed and they having not filed the reply within the time as allowed were ordered to be proceeded ex-parte as per the proceedings recorded on 07.05.2019. The two orders passed by this Commission on 07.05.2019 and on 04.09.2019, relevant for the purpose are reproduced below:-
1. No:- C-28/2019
Present:- Sh. Anirudh Chaddha, Counsel for the complainant
None for the OP
None appeared on behalf of the OP even on the second call despite of delivery of notice. Now this is 12:30PM. Accordingly OP are proceeded ex-parte. The complainant are directed to file evidence by way of affidavit within a period of 04 weeks. List on 04.09.2019.
1. No:- C-28/2019
Present:- Sh.Arjun Nanda, Counsel for the complainant
Complainant has filed the evidence.
OPs are already ex-parte vide order dated 07.05.2019. However, Sh. Chinmay Jain Proxy counsel for the OP is present in the court. He has been informed that the OPs are already ex-parte vide order dated 07.05.2019. in these circumstances the reply filed by them on 20.05.2019 i.e. after the date of ex-parte orders passed against them be not taken on record. List the matter for 29.11.2019.
5. As per records no steps were taken by the OPs for modification or otherwise of the two orders referred to above. In the meanwhile the complainants have filed their ex-parte evidence.
6. This matter was listed before this Commission for final hearing on 29.01.2021 when the counsel for the complainant appeared and advanced his arguments in support of their pleadings, praying for the refund, delivery for the flat not having completed within the agreed period. None appeared for the OPs. Infact they are ex-parte.
7. Short question for adjudication in this complaint is whether the complainant is entitled for the relief sought for. I have perused the records of the case and given a careful consideration to the subject matter.
8. It is a statement of fact that the complainant had applied for a flat. 95% of the sale consideration was paid, the fact which remained indisputed, written statement not having been filed. In these circumstances I am of the considered view that the complaint deserved to be accepted and it is ordered accordingly.
9. Having arrived at the said conclusion, the point for consideration is as to how the Complainants are to be compensated for the monetary loss, mental and physical harassment he has suffered at the hands of OPs on account of non-delivery of the allotted flat.
10. The provisions of the Act enable a consumer to claim and empower the Commission/Forum to redress any injustice done to a consumer. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The word compensation is of very wide connotation. It may constitute actual loss or expected loss and may extend the compensation for physical, mental or even emotional suffering, insult or injury or loss. Therefore, for the purpose of determining the amount of compensation, the Commission/Forum must determine the extent of sufferance by the consumer due to action or inaction on the part of the Opposite Party. In Ghaziabad Development Authority Vs. Balbir Singh - (2004) 5 SCC 65, while observing that the power and duty to award compensation does not mean that irrespective of facts of the case, compensation can be awarded in all matters on a uniform basis, the Hon'ble Supreme Court gave certain instances and indicated the factors, which could be kept in view while determining adequate compensation. One of the illustrations given in the said decision was between the cases, where possession of a booked/allotted property was directed to be delivered and the cases where only monies paid as sale consideration, are directed to be refunded. The Hon'ble Court observed, in this behalf, that in cases where possession is directed to be delivered to the Complainant, 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 refunded, then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot. He is not only deprived of the flat/plot, he has been deprived of the benefit of escalation of the price of the flat/plot. Additionally, in my view, in such a situation, he also suffers substantial monetary loss on account of payment of interest on the loans raised; depreciation in the money value and escalation in the cost of construction etc.
11. From the above it is apparent that this Commission can pass orders regarding the refund of the amount deposited to the company by the complainants, notwithstanding the proceedings pending in any other forum.
12. Besides, their Lordships in Apex Court in the matter of Fortune Infrastructure and Anr versus Trevor D€™lima and ors as reported in II CPJ 1 (SC) are pleased to hold as under:
Person cannot be made to wait indefinitely for possession of flats allotted to them. They are entitled to seek refund of amount paid by them, alongwith compensation.
13. The Hon€™ble NCDRC in the matter of Parasvnath Buildwell Pvt. Ltd. and Anr versus Varun Dev, as reported in II CPJ 212 (NC) is pleased to direct as under:-
€œFlat booked was never constructed. Allottee cannot be made to wait indefinitely for possession. They are entitled for refund. Refund allowed with 12% interest.
The Hon€™ble NCDRC has taken similar view in the following matters also, namely,
a. Emaar MGF Land Ltd. and Anr versus Amit Puri-II CPJ 568 (NC)
Parasvnath Exotica Residents Association versus Parasavnath Developers Ltd. and ors-IV CPJ 328 (NC).
14. The Hon€™ble NCDRC in the matter of Anil Raj and ors versus Unitech Ltd. and ors in CC-346/2013 decided on 02.05.2016
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as reported in MANU/CF/0105/2016 is pleased to observe as under:- €œThe word compensation is of very wide connotation. It may constitute actual loss or expected loss and may extend the compensation for physical mental or even emotional suffering, insult or injury or loss. Therefore for the purpose of determining the amount of compensation, the commission/forum must determine the extent of sufferance by the consumer due to action or inaction on the part of the OPs€. 15. Having regard to the discussion done and the legal position having been explained I am of the view that the ends of justice would be met if a direction is issued to the OPs to refund the deposited amount with simple interest at the rate of 7% from the date of deposit of the amount till its realisation. This payment be made by the OPs to the complainant within a period of two months from the date of receipt of this order. 16. Ordered accordingly. 17. A copy of this order be forwarded to the parties to the case free of cost as is statutorily required. File be consigned to records.