JUSTICE SUDIP AHLUWALIA, MEMBER

This Appeal has been filed by the Complainant against the impugned Order dated 14.03.2018 passed by the State Consumer Disputes Redressal Commission, Delhi directing the Respondents to refund the principal amount to the Complainant along with interest.

2.      The factual background, in brief, is that in the year 1997, the Complainant was looking to purchase a residential property in and around Delhi when he was approached by the Opposite Parties/Respondents who offered their services. The Complainant was solicited to purchase Plot No. B-C067 at Golf Links, Greater Noida, initially registered in the name of one Ms. Rajni Bhatia, which was later transferred to Mrs. Geeta Singhal, and subsequently transferred to the Complainant. The changes in the allotment were approved by the Opposite Party No. 1 vide letter dated 09.05.1997. This was followed by an allotment letter dated 04.05.1998, allotting Plot No. 75 in Block B to the Complainant for a total consideration of Rs. 6,46,217.95. The Complainant changed his residential address within New York, United States of America, and informed the Opposite Parties via telephone and a letter dated 26.06.2000. However, the Complainant was not given possession of the plot in Golf Links, Greater Noida, and the allotment was cancelled despite having made payments totalling Rs. 5,95,350.83. Aggrieved by the deficiency in service and unfair trade practices on the part of the Opposite Parties, the Complainant filed his Complaint before the Ld. State Commission, Delhi.
3.      The Ld. State Commission vide the impugned Order dated 14.03.2018 partially allowed the Complaint and directed the Opposite Party to refund the principal amount deposited to the Complainant with interest @ 12% p.a. The relevant extracts of the impugned Order are set out as below –

“…….17. In that view of the matter the inescapable and inevitable conclusion is that there was a gross deficiency as defined in Section (2(1) (g) of the Consumer Protection Act 1986, on the part of OP in cancelling the booking of the plot in terms of agreement to sell.

18. The OPs having cancelled the booking of the unit, forfeited the amount relying on the judgement of the Hon'ble NCDRC in the matter of M/s. Ansal Housing & Construction Ltd. Vs. Indian Machinery Co. [RP-1931/2013 decided on 23.02.2017]. The facts of that case however, are not apposite to this case. In that case letter raising the demand was served and the complainant did not make the payment but in the given case the demand letter was not served and thus reliance of the ratio of that judgement for dealing with this case would be misplaced.

19. In the meanwhile, the unit after its cancellation has been sold to one Smt. Sushma and the sale deed to this effect has been executed. Having regard to this restoration of the plot is out of question.

20. Having bestowed our anxious consideration to the fact at hand, we are of the opinion, that the complaint deserves to be accepted. Having arrived at the said conclusion, the core question for consideration is as to how the complainants are to be compensated for the monetary loss, mental and physical harassment they have suffered at the hands of OP on account of non-delivery of the allotted flat……..

24. We have given our careful consideration to the subject matter, as also the law laid down by their Lordship. The complainant has prayed for the refund. Physical possession of the plot at this stage having already been sold is out of question.

25. Accordingly we direct the OP to refund the principal amount with simple interest @ 12% per annum. This refund and the interest be paid to the complainant by the OP within a period of three months from the date of receipt of this order.

26. We order accordingly.” 

4.      Ld. Counsel for the Appellant/Complainant has argued that the State Commission ought to have appreciated that the Complainant was entitled to the possession of the subject plot, which ought to have been so directed. The aspect of compensation was secondary and dependent upon the delivery of possession of the plot. The State Commission, without application of mind, accepted the contention of the plot having been already sold and provided compensation without there being any substantiation and without filing a copy of the Sale-Deed on record; That if the subject plot had been sold, the Respondents were obligated to allot an alternate plot to the Complainant. The State Commission ought to have proceeded to grant monetary compensation only if the allotment of an alternate plot was unfeasible; That the direction by the State Commission to refund the principal amount with interest at 12% per annum is too meagre and inadequate, disproportionate to the loss suffered, and also in violation of the principles laid down in “Ghaziabad Development Authority v. Balbir Singh, (2004) 5 SCC 65”; That the State Commission failed to consider the ‘opportunity loss’ and ‘inflation factor’ while determining the compensation.

5.      Ld. Counsel for Respondents has argued that the plot in question, i.e. Plot No. BC075 at Gold Links-I, has been sold to a third party, which is already known to the Complainant. Therefore, the State Commission rightly issued the directions in the impugned Order; That a Consumer Commission under the Consumer Protection Act, 1986, does not possess the power to cancel a registered Conveyance Deed and only a Civil Court is empowered to do so under Section 31 of the Specific Relief Act, 1963. This view was affirmed by the State Commission, West Bengal in “Smt. Sunita Chanda v. Arindam Mondal, FA No. A/872/2016”;

6.      This Commission has heard the Ld. Counsel for both the Appellant and the Respondents, and perused the material available on record.

7.      The Appellant had filed his Synopsis-Cum-Written Arguments on 1.6.2023 in which three purported errors in the impugned Judgment were raised from his side.  His relevant contentions in this regard are covered in Item 6 of the aforesaid Written Synopsis are re-produced verbatim here, for the purpose of ready reference and consideration on merits subsequently in the judgment –

“6.       Error in the Impugned Judgment:

6.1       The error in the Impugned Judgment is to deciphered from within the confines of the appeal (ref. para 2).

6.2       1^st ERROR - On the factual findings (para 4.4) State Commission ought first to have appreciated that appellant/complainant was entitled to the possession of the subject plot, which ought to have been so directed; relief of compensation, as was considered- in para 20, was secondary aspect that depended upon delivery of possession of the subject plot or alternate to the appellant/complainant.

Indeed, the State Commission has recorded in para 19 that upon cancelation the OPs have sold the subject-plot and registered the sale-deed, and without determining the veracity of the alleged sale and/or applying mind to the alleged sale, the  State Commission accepted it as gospel truth and proceed to consider the compensation aspect in para 20.

Fallacy of alleged sale - OPs in its pleadings had never pleaded having sold the subject plot. However, in its affidavit of evidence (in para 16 @pg. 220) the OPs deposed having sold the plot and executed .sale deed, but without any substantiation and without filing copy of the sale-deed on record and/or without disclosing the sale-consideration of the said sale. [sale deed was important and relevant document to ascertain the sale-price, which was necessary to award alternate relief of compensation].

6.3       2^nd ERROR - In view of the factual findings (ref. para 4.4); even if the subject plot had been sold, the respondents/OPs had obligation to allot an alternate plot to the appellant/complainant. Only in case allotment of alternate plot was unfeasible, and inability of OPs to allot alternate plot was on account of proved un-availability of an alternate plot the State Commission ought to have proceeded to grant monetary compensation in lieu of the allotment of plot.

State Commission failed to appreciate that OPs had nowhere pleaded and proved its inability to provide alternate allotment or that alternate allotment was unfeasibility. Therefore, State Commission ought to have directed allotment of alternate plot to the appellant/complainant, and only if OPs were unable to provide alternate plot, monetary compensation proportionate to the loss caused from denial of possession of plot ought to have been granted based on the sale-price of the plot at the relevant time.

State Commission failed to appreciate that impugned directions rather than being punitive gives financial advantage to OPs despite being deficient.

6.4       3^rd  ERROR - Awarded compensation of refund the principal amount with simple interest@ 12% per annum is too meager and inadequate and grossly disproportionate to the loss suffered, and the award apparently violates the principles laid down in Ghaziabad Development Authority versus Balbir Singh, (2004) 5 SCC 65.

6.5       The State Commission failed to considered the 'opportunity loss' and 'inflation factor', both of which were relevant for accessing a meaningful compensation in the circumstances of the case. 'Opportunity loss' was a direct loss as even after payment of consideration for the plot and after long waiting period appellant/complainant was wrongly deprived of the allotment of plot.

'Inflation Factor' had to be accounted for two reasons, - (i) escalation of cost of plot over the years, and (ii) deterioration of value of the money over the period of time. In fact, the compensation as granted, indirectly gives the benefit of the said two factors to respondent despite proved default and deficiency on its part, which tantamount to giving premium to his wrongful actions. The judgments applied by State Commission to work out the compensation had to be appreciated along with the said two factions, namely 'opportunity loss' and 'inflation factor' while applying Balbir Singh Case.

6.6       'Compensation in lieu of allotment' - As the compensation awarded was in lieu of allotment of the subject-plot or alternate plot, such compensation should have been severe, punitive and proportionate to the cost of plot at the relevant time, which had also to be considered from the sale-price at which the subject plot was sold. The State Commission had the opportunity of accessing the sale-price of the subject plot from the Sale-Deed, wherefore, the OPs ought to have been compelled to provide a copy of the sale-deed. Sale-price could have· been a factor to ascertain the monetary compensation.

6.7       'Award of Interest' -Award of interest at !2% simple Interest was too meagre and grossly disproportionate and violates the principles laid down in Ghaziabad Development Authority versus Balbir Singh, (2004) 5 SCC 65. In the given circumstances and for the loss of allotment of plot to the appellant and for factual findings (ref para 4.4), interest of 18% ought to have been awarded from the date of filing the complaint till the date of actual payment.

6.8       'Monetary relief - damages for harassment, agony etc' - State Commission did not appreciate that monetary compensation was in lieu of allotment of plot, and it was not in the nature of damages for harassment etc. For reason of factual findings (ref. para 4.4) damages/monetary compensation for harassment, agony etc. ought also to have been granted in terms of prayer clause (III) /ref. para 3(V)].

6.9 'Litigation cost' - Litigation costs ought also to have been allowed and granted to the appellant in terms of prayer clause (IV) /ref. para 3(V)].”

8.      The first contention that the Ld. State Commission had accepted the Respondents’ story of the plot having been allegedly sold to a Third Party without any substantiation, now stands rested with the additional Affidavit filed on behalf of the Respondent on 1.4.2024, from which it transpires that the plot in question had actually been allotted and then transferred in favour of one Smt. Sushma.  Copies of the Allotment Letter dated 27.1.2005, and the Sale Deed subsequently executed in her favour of 12.6.2006 are Annexures R-1 & 2 respectively to the said Affidavit.  Now, the contention made in the last sentence of Para 6.2 of the Appellant’s arguments, that the Sale Deed was important to ascertain the sale price, which was necessary to award the alternate relief of compensation, thus becomes significant, and it will be dealt with at an appropriate stage later on, after considering the other two alleged errors in the impugned Judgment raised by the Appellant.

9.      As seen in Para 6.4 of the Appellant’s arguments, the second error on the part of the Ld. State Commission was its failure to appreciate that in the event of the subject plot having been sold, the Petitioners/Respondents would have become liable to allot an alternate plot to him, and only in a situation of any non-availability of an alternate plot, the State Commission ought to have proceeded to grant any monetary compensation to the Complainant, is taken up for consideration.

10.    It is, however, verified from the record that at no stage the Appellant/Complainant had sought the relief for allotment of an alternative plot in his Complaint.  A true typed copy of the said Complaint is on record as Annexure- A3 from Pages 45 to 59 of the Paper Book. It is noteworthy that the Complaint was drafted and prepared by the Complainant in a rather unique way by assigning 10 distinct headings at various points in the Complaint.  These 10 separate headings as seen on various pages of Annexure- A3 are as follows –

          1.      INTRODUCTION

2.     TRANSACTION

3.     DEFECT / DEFICIENCY

4.     RECTIFICATION

4.     OTHER PROVISIONS

5.     EVIDENCE

2.     JURISDICTION

3.     LIMITATION

4.     RELIEF  CLAIMED

10.  Prayer Clause

11.    Clearly, there is manifest error in assigning the serial numbers for the aforesaid headings from Serial No. 4 onwards, which would appear to be a somewhat inexplicable clerical omission on part of whoever has certified all the above mentioned pages as “TRUE COPY”, without having checked up the relevant serial numbers from the original Complaint.  Nevertheless, at this juncture what is important to consider is the relief that was actually sought/prayed FOR on behalf of the Appellant in the original Complaint, which is re-produced as follows –

“4. (?9)           RELIEF CLAIMED:

1. The complainant therefore seek relief in the nature of direction to the opposite parties to hand over possession of “plot in question”, namely plot no. B-C075 at Golf Links-I, Greater Noida to the complainant.  Incase, opposite parties have unscrupulously/ clandestinely allotted the said plot in question to some third person, opposite parties be then directed to cancel that allotment and handover the possession of the plot to complainant.
2. The complainant also seeks the relief of damages for causing unnecessary harassment, agony and trouble deliberately caused to the complainant by the negligent, deliberate act of the opposite parties in cancelling the plot in question.

10.       Prayer Clause

It is therefore most respectfully prayed that this Hon’ble Commission may be pleased to :

1. Allow the complaint and consequently direct the opposite parties to hand over possession of “plot in question”, namely plot no. B-C075 at Golf Links-I, Greater Noida to the complainant;
2. Incase, opposite parties have unscrupulously/ clandestinely allotted the said plot in question to some third person, opposite parties be then directed to cancel that allotment and handover the possession of the plot to complainant;

(Emphasis added)

3. Direct the opposite parties to pay a consolidated sum of Rs. 25,00,000/- as damages for causing unnecessary harassment, agony and trouble deliberately caused to the complainant by the negligent, deliberate act of the opposite parties in cancelling the plot in question;
4. Direct opposite parties to pay cost of entire litigation to the complainant;
5. Pass any other and/ or further order that is deemed fit, reasonable and expedient.”

12.    As already noted, there were serious errors in assigning the relevant serial numbers to the various headings incorporated of the original Complaint, in the typed copy of the same filed alongwith the Memo of Appeal. However, the entire text of the relief claimed/prayers made by the Appellant/ Complainant before the Ld. State Commission would go to show that even inspite of being aware about the assertion regarding allotment of the disputed plot to some third party, he had only prayed for a direction on the Opposite Parties/ Respondents to cancel such allotment and hand over possession of the plot to him but there was never any prayer for providing him with an alternative plot in the original Complaint.

13.    Thereafter, the Respondents/ Opposite Parties from their side filed their Reply to the original Complaint and perusal of the relevant extracts of the same would go to show that they had again reasserted that the  relief in terms of Para 9(i) could not be granted as after cancellation of allotment, the plot in question had been re-allotted to someone else.  The relevant extracts from the Reply of the Opposite Parties before the State Commission to the relief claimed and prayers made in the original Complaint are set out as below –

“REPLY TO THE RELIEF CLAIMED [PARA 9 OF THE COMPLAINT (incorrectly typed as Para 4)]:

            9(i) & (ii)        The contents of paras 9 (i) & (ii) of the Complaint are incorrect, misconceived, misleading, baseless and untanable, hence denied.  The contents of above paras of the instant Reply are repeated and reiterated for the purpose.  The Complainant being failed to establish any deficiency in service or unfair trade practice on the part of the Respondents is not entitled for the Reliefs alleged in the sub-paras of the para under Reply.  Moreover Relief in terms of the para 9(i) cannot be granted as after cancellation of the allotment of the said Plot No. B-C075 in the name of the Complainant, the same is not available, as the same has been re-allotted to someone else.  The Respondents crave liberty to bring on record regarding said re-allotment of the said Plot No. B-C075 in name of other person.

REPLY TO THE PRAYER CLAUSE [PARA 10 OF THE COMPLAINT (incorrectly typed as Para 10)]:

10(1) to(iii)The contents of paras 10 (i) to (iii) of the Complaint are misconceived, baseless, unsustainable and untenable, hence denied.The contents of above paras of the instant Reply are repeated and reiterated for the purpose.”

14.    Thereafter in his Rejoinder, the Complainant/ Appellant again contended that the alleged cancellation of the plot as claimed by the Opposite Parties was “just an eye-wash”.  In all fairness, in his Rejoinder, he did mention about the liability of the Respondents to provide him with an alternate plot of similar value in market assuming that his plot had been re-allotted, but he stood by only his original prayers in the Complaint and did not seek to incorporate any such prayer of providing him with such alternate plot, as can be seen from the relelvant extracts of his Rejoinder which are set out as below –

 “Rejoinder to relief claimed

9(i) & (ii)      The contents of para 9(i) and (ii) of reply to the evidence is wrong and denied and corresponding contents of para 9(i) and (ii) [sic. 4(i) and (ii)] of the complaint are correct and reaffirmed.

                     The alleged cancellation of plot by letter dated 10.05.2002 is just an eye wash.  No such letter has been sent to the complainant and relief claimed in para 9(i) [sic. 4(i)] of the complaint is rightly claimed.  It is wrong that the plot has been reallotted to someone else. Such false averment has been made merely to deprive the rightful entitlement of the complainant. Without prejudice to the fact that the said plot has not been reallotted as yet, the complainant submits that even if the plot is reallotted the respondents are liable to provide and alternate plot of a similar value and/or market rate as on the date of the filing of the complaint with interest to the complainant.

Rejoinder to prayer clause

10(i) to (iii)  The contents of  para 10(i) to 10 (iii) of reply to the prayer clause is wrong and denied and corresponding contents of para 10(i) to 10(iii) of the complaint are correct and reaffirmed. The prayers made in the complaint may be read as part of rejoinder and the prayers may kindly be granted in favour of the complainant.”

(Emphasis added)

15.    Thereafter,          in his Affidavit of Evidence filed before the State Commission, in Para 21 he again insisted that he was “entitled to the prayers as claimed and made in the Complaint”, and never stated even in his evidence that he wanted any alternate plot from the Respondents, in lieu of the original plot, in case their claim of having already allotted/transferred it to a third party, were to be true.  His relevant statements which are contained in Para 21 of his Affidavit in Evidence are set out as below –

 “21.      I say that my complaint is correct.  The respondents have taken a dishonest plea in their reply to the complaint. They have deliberately sent communication to the deponent after 26.06.2000 at wrong address, which act on their part is deceitful and mala fide.  The deponent has filed its rejoinder to the complaint, which contains correct narration of facts and correct legal averments.  The complainant is entitled to the prayers as claimed and made in the complaint.”

16.    In such circumstances, this Commission is of the view that there was no illegality or impropriety on the part of the Ld. State Commission, in not having directed the Opposite Parties/ Respondents to allot an alternative plot to the Complainant, since no such specific prayer from his side had been made either in the original Complaint, or in the Rejoinder or even in his own Affidavit in Evidence filed subsequently. It has been held by the Hon’ble Supreme Court in a recent judgment passed by it in “Civil Appeal No. 9106 of 2012, M/s. Rajasthan Art Emporium Vs. Kuwait Airways & Anr., decided on 9.11.2023, in which the Appeal filed by the original Complainant for enhancement of compensation awarded to it by this Commission where such enhancement would have exceeded the sum of Rs. 20.00 lakhs claimed by the Complainant in the original Complaint, was dismissed by the Hon’ble Apex Court with the observations –

“……It is a trite law that a party is not entitled to seek relief which he has not prayed for.   For  this proposition we may profitably refer to this Court’s judgments in Merrs. Trojan & Co.  Vs. RM N.N. Nagappa Chettiar, Krishna Priya Ganguly etc.etc.  Vs. University of Lucknow & Ors., Om Prakash & Ors  Vs. Ram Kumar & Ors., Bharat Amratlal Kothari Vs.Dosukhan Samadkhan Sindhi & Ors., Manohar Lal (Dead) by Lrs. Vs. Ugrasen (Dead) by Lrs. & Ors.”

17.    Similarly in the present case, where there was no specific prayer by the Complainant to direct the Opposite Parties to provide him with an alternative plot if the claim of his plot having already allotted to a third party namely Smt. Sushma was true, there was no scope for the Ld. State Commission to pass any such Order which would have been beyond the actual relief prayed for by the Complainant.  It, therefore, rightly passed the direction on the Opposite Parties to refund the principal amount alongwith compensation in the form of interest to the Complainant, since it had correctly come to the conclusion in Para 19 of the impugned Order that –

“19.     In the meanwhile, the unit after its cancellation has been sold to one Smt. Sushma and the sale deed to this effect has been executed.  Having regard to this restoration of the plot is out of question.”

Consequently, this Commission finds no substantive merit in the Appellant’s contention regarding the alleged second error in the impugned Order by way of the State Commission having failed to direct the Opposite Parties to provide an alternate plot to the Complainant.

18.    As already noted in Para 8 earlier, copies of the allotment letter dated 27.1.2005 and of the Sale Deed dated 12.6.2006 subsequently executed in favour of the Transferee-Smt. Sushma, which was well before filing of the Complaint in the year 2007, produced before this Commission has the effect of rendering the Appellant’s contention regarding the first error in the impugned Order of the “Fallacy of alleged Sale” becomes untenable.  However, the significance of the actual Sale Deed on the basis of which the Appellant now seeks enhancement of the compensation payable to him does become relevant at this stage, since it is seen from copy of the Sale Deed executed in favour of the subsequent allottee- Smt. Sushma on 12.6.2006 that the plot in question was sold to her at a price of Rs.23,90,443.50.  The Appellant/Complainant therefore claims that he should be granted an amount equivalent to such actual sale price as compensation.

19.    This Commission is, however, not in agreement with such contention for more than one reasons.  The first reason is that granting such relief which again has not been specifically prayed for by him in the original Complaint in which he had specifically wanted only a direction upon the Opposite Parties to cancel the allotment of the plot to the third party, and had also prayed for compensation in the form of a consolidated sum of Rs. 25.00 lakhs as “damages for causing unnecessary harassment, agony, trouble deliberately caused to the Complainant……” , would amount to passing an order in the nature of providing ‘unjust enrichment’ to what would appear to be a speculative litigant who had filed his complaint much after the Sale Deed in favour of the third party had already been executed.  Secondly, a glance over the overall conduct of the Complainant would certainly go to indicate some amount of casualness on his part as well, although the culpability of the Opposite Parties in not having communicated on the changed address of the Complainant in the United States of America cannot be ignored. But it is to noted that according to the Complainant, he had communicated the change of his address on 26.6.2000 to the Opposite Parties.  The last written communication from his side while in the USA was on 28.2.2002.  There is nothing on record to show that at any stage after that the Complainant/ Appellant had made any correspondence with the Opposite Parties till before filing of the Complaint in the year 2007. In the meantime, the Opposite Parties ostensibly on account of their negligence sent a written communication to him at his old address on 10.5.2002, which was thereafter returned back to them but after the last written communication from the Complainant’s side on 28.2.2002, he claims to have come to know about the alleged cancellation and re-allotment of the plot to him only on his visit to India much later in the year 2007.   In this view of the matter, this Commission is of the opinion that the element of some casualness on the part of the Complainant himself cannot be altogether disregarded, as merely the fact that he was living abroad for several years, and sought his appropriate remedy at a rather late stage only after coming to India, after communication to him had been sent wrongly at his old address, did also create an avoidable complication leading to an escalation of price in the interregnum.  Even otherwise, the settled law is that where there is deficiency in providing any service by the Opposite Parties, appropriate reasonable compensation is to be provided, and but not in the nature of a financial bonanza to the claimant/Complainant.

20.    However, in Paras 22 & 23 of the impugned Order, the Ld. State commission had itself taken note of the earlier decisions of this Commission in “Swarn Talwar and two Ors.  Vs. Unitech Ltd., CC No. 347 of 2014, decided on 14.8.2015; and “Ouneet Malhotra Vs. Parasvnath Developers Ltd., CC No. 232 of 2014, decided on 29.1.2015; in which in similar circumstances refund of the amounts paid by the Complainants had been ordered with compensation in the form of interest @ 18% p.a.  The Ld. State Commission, however, recorded no reason from its side to explain how the facts of the present case were distinguishable from the ratio of aforesaid two decisions, on account of which the compensation granted to the Appellant/Complainant was fixed at a substantially lesser rate of 12% p.a. in the form of simple interest, instead of at 18% p.a.

21.    For the aforesaid reasons, this Commission is of the opinion that the Appeal is liable to be allowed in part to the limited extent that the compensation to which the Appellant/Complainant is entitled, is liable to be enhanced from simple interest @ 12% p.a. to 18% p.a. in view of the two earlier decisions of this Commission already referred to in the previous paragraph, and also in view of the decision of the Hon’ble Supreme Court in “Ghaziabad Development Authority Vs. Balbir Singh, (2004) 5 SCC 65”.  In addition, the Complainant is also found entitled to litigation costs assessed at Rs. 1.00 lakhs till date.

22.    The Appeal is, therefore, partially allowed by modifying the impugned Order to the extent that instead of interest @ 12% p.a. on the amount refundable to the Appellant, the Respondents/Opposite Parties are held liable to pay to him such compensation by way of interest @ 18% p.a.  In addition, they are also liable to pay consolidated litigation costs of Rs. 1.00 lakh to him.  No further orders as to costs.

23.    Pending application(s), if any, also stand disposed off as having been rendered infructuous.