Per Justice Sham Sunder , President This appeal is directed against the order dated 18.3.2011, rendered by the District Consumer Disputes Redressal Forum-I, U.T. Chandigarh (hereinafter to be referred as the District Forum only), vide which it accepted the complaint and directed the OP as under ; “The OP is directed to refund to the complainants Rs.16,50,000/- alongwith interest @10% p.a. from the respective dates of its deposit. The OP shall also pay to the complainants Rs.30,000/- as compensation towards mental agony and harassment, alongwith litigation costs of Rs.5,000/- The order shall be complied with by the OP within 30 days from the date of receipt of copy of this order, failing which, the OP would be liable to pay the aforesaid amount of Rs.16,50,000/- alongwith penal interest @24% p.a. from the respective dates of its deposit, besides payment of compensation and litigation costs.” 2. The complainants were allotted flat No.A-42, Block-I, 1st Floor, measuring 1749 sq. ft. by the OP, in Green Estate Complex, Barwala Road, Dera Bassi, Patiala. The complainant paid Rs.16.50 lacs, by way of instalments, towards the part price of the flat in question. The possession of the flat was to be handed over on 20.1.2007, at the time of payment of 6th instalment. It was stated that the complainants were not handed over possession of the flat, within the stipulated period. The complainants wrote various letters to the OP regarding the progress of construction, but no reply was received. Even the complainant visited the spot, and requested the OP, to deliver possession, but to no avail. It was further stated that the complainants had taken loan, from the financier, to pay the price of the said flat. It was further stated that the complainants had been paying interest, on that amount. It was further stated that the complainants, for want of handing over of possession of the flat to them, by the OPs, had been living in a rented accommodation. It was further stated that the aforesaid acts of the OP, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986(hereinafter to be called as the Act only) was filed by them, for issuing directions to the OPs to handover possession of the flat, within a short period; to pay compensation to the tune of Rs.8 lacs, for mental agony and physical harassment, caused to them; to pay interest @ 18% p.a. on the amount already paid by them and costs of litigation of Rs.22,000/-. 3. The OP was duly served, but no authorized representative/agent on its behalf, entered appearance, as a result whereof, it was proceeded against ex-parte. 4. The complainants led evidence, in support their case. 5. After hearing the Counsel for the complainants, and, on going through the evidence and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order. 6. Feeling aggrieved, the instant appeal, was filed by the appellant/complainants. 7. We have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully. 8. The Counsel for the appellants/complainants, submitted that the complainants never sought the relief of refund of amount, deposited by them. He further submitted that the relief, sought by the complainants, was that the OP be directed to handover possession of the flat within a short period; pay interest on the amount deposited, as also compensation and costs. He further submitted that the District Forum, could not grant the relief, which was not sought, by the complainants. He further submitted that the order of the District Forum, being illegal, is liable to be modified. 9. On the other hand, the Counsel for the respondent/OP, submitted that the complainants were allotted a flat, by the OP,vide allotment letter C3 dated 21.1.2006. He further submitted that a sum of Rs.16.50 lacs was deposited by the complainants, towards the part price of flat. He further submitted that the last instalment of Rs.2.50 lacs was to be paid, by the complainants, in January,2007, at the time of delivery of possession. He further submitted that the Haryana Government wrongly launched criminal proceedings, against the OP, for the development of Shalimar Estates and those were challenged by it, before the Punjab & Haryana High Court, by filing a Writ Petition and a stay was granted therein. He further submitted that the stay was vacated in the year 2008. He further submitted that, on account of this reason, construction could not be undertaken in time. He further submitted that now the construction activity was in full swing, and the possession of the flat shall be delivered within a short period. 10. After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, and, on going through the evidence and record of the case, we are of the considered opinion, that the appeal is liable to be partly accepted, for the reasons, to be recorded hereinafter. Undisputedly, the complainants applied for allotment of a flat, to the OP. It is evident from C2 that flat no. A-42, Block I, Ist floor, measuring 1749 sq. feet, was allotted to the complainants. It is further evident from A3, another letter of the OP, that the price of the flat was Rs.19 lacs. The payment schedule, is also mentioned in C3. It is further evident from C4 that a sum of Rs.16.50 Lacs, towards the part payment of price of flat, was paid by the complainants. The possession of the flat was to be delivered to the complainants, on 2.1.2007, at the time of payment of last and the 6th instalment of Rs.2.50 lacs. Admittedly, so far, possession of the flat has not been delivered to the complainants. The OP, thus, failed to adhere to the commitment, made by it, regarding the date of delivery of the possession of flat. The perusal of the complaint shows that the complainants, sought the relief of possession, compensation, interest on the amount, deposited, and the costs. No relief, regarding the refund of the amount, was sought by the complainants. Under these circumstances, there was no reason, on the part of the District Forum, to grant a completely different relief, than the one, sought by the complainants. There is nothing, on record, to reveal, that the construction could not be completed, on account of the circumstances, beyond the control of the OP. In Asha Gupta Vs Shalimar Estate, Complaint case No.831 of 2009 decided on 29.12.2009 and Suraj Rathi Vs Shalimar Estate, Complaint case No.777 of 2009 decided on 18.1.2010, the facts whereof were similar and identical to the instant case, the District Forum granted the relief of execution of sale deed, in favour of the complainants, delivery of possession and compensation. Not only this, in Yashpal Guleria Vs M/s Shalimar Estate Pvt. Ltd., Appeal No.340 of 2010, decided on 18.7.2011, a case based on the similar and identical facts, and claiming the same relief, as in the instant case, this Commission, set aside the order of the District Forum, vide which, it granted refund of amount to the complainant, deposited towards the price of plot and granted the relief of possession. The District Forum was, thus, wrong in granting the relief of refund of amount, which was not sought by the complainants. The OP was deficient, in rendering service, and indulged into unfair trade practice, by not handing over the possession of the flat, in question, to the complainants. The complainants, are, thus, entitled to possession of the flat, in question. The order of the District Forum, granting refund of amount with interest, is liable to be set aside. 11. The next question that arises for consideration, is, as to whether, the appellants/complainants were entitled to compensation, if so, to what extent. The possession of the flat, in this case, was to be delivered to the complainants in January,2007, but till date the same has not been delivered. The Complainants always hoped that they shall be given possession of the flat, on the stipulated date, so as to enable them to reside therein. The OPs, thus, made a false promise, to the complainants to deliver possession by a stipulated date, but failed to fulfill the same. Thus, the complainants, underwent a lot of mental agony and physical harassment, on account of non-delivery of possession of the flat to them within the stipulated time. The appellants/complainants, therefore, are entitled to grant of compensation . The District Forum granted compensation to the tune of Rs.30,000/-. In our considered opinion, compensation to the tune of Rs.30,000/-, granted by the District Forum, is on the lower side. The compensation must be reasonable and fair. It must commensurate with the loss and injury caused to the complainants. The compensation, deserves to be enhanced to Rs.50,000/-. 12. For the reasons recorded above, the appeal is partly accepted, with costs. The order of the District Forum is modified as under; (i) The OP shall handover possession of the flat to the complainant, which was allotted to him, within a period of 4 months, on payment of the balance price thereof, by him, (complainant), from the date of receipt of a certified copy of the order ; (ii) The OP shall pay compensation in the sum of Rs.50,000/-, instead of Rs.30,000/- awarded by the District Forum ; (iii) The OP shall pay costs of litigation to the tune of Rs.10,000/-, besides costs, awarded by the District Forum. (iv) The order of the District Forum granting the relief of refund of amount with interest is set aside. The aforesaid payable amount of compensation, shall be paid within a period of 30 days, from the date of receipt of a certified copy of the order, failing which, the OP shall be liable to pay interest @ 12% p.a. from the date of filing the complaint, besides costs, awarded by this Commission and the District Forum. 13. Certified Copies of this order be sent to the parties, free of charge. 14. The file be consigned to the Record Room.
| | HON'BLE MR. JAGROOP SINGH MAHAL, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
