2. The facts and question of law involved in these Petitions are similar except for minor variations in the dates, events and Flat numbers. Therefore these Petitions are being disposed of by this common Order. However, for the sake of convenience, Revision Petition No. 31 of 2023 is treated as the lead case and the facts enumerated hereinafter are taken from this Petition.

3. Brief facts of the case as per the Complaint are that the Complainant booked a three-bedroom Flat for himself in a housing scheme by Petitioners. He deposited registration amount of Rs. 75,000/- and he was allotted Flat No. A-3/202 via Allotment Letter dated 22.07.2011, wherein the total price of the Flat was mentioned as Rs. 37,65,000/-, out  of  which  the registration  amount  of  Rs. 75,000/- was reduced and the balance amount of Rs. 36,90,000/- was to be paid in 5 instalments. The Complainant then obtained a home loan from LIC Housing Finance Ltd. and paid the instalments in due time. It is the grievance of the Complainant that even after total payment of Rs. 41,01,962 by 23.10.2012, the Petitioners committed deficiency of service by not handing over the possession of the Flat in due time. It is pertinent to mention that the amount mentioned in the Allotment Letter was not to be increased by more than 5 percent of Rs. 37,65,000/-. The Petitioner should have completed the construction of the Flats within 16 months from the date of commencement of construction, but with an excuse of increase in the construction cost, the Petitioners charged the Complainant an additional amount of Rs. 1,88,250/-. That even after receiving the complete payment by 23.10.2012, there was a delay of two months in handing over the possession of the Flat. Further, the Flat that was given for possession had several defects because of inferior quality materials, and the Complainant raised these issues with the Petitioner at the time of taking possession, but to no avail. When even after 6 months of taking possession of the Flat, the Petitioners did not remove the defects that they were informed of, the Complainant along with other Flat owners held a meeting with the officers of the Petitioners on 13.04.2013 where 16 problems were discussed.  The Petitioners then partially fixed several construction defects but some defects continue even till this day. Another meeting was held on 12.10.2013 between the officials of the Petitioners, Complainant and other Flat owners but the officials of the Petitioners refused to rectify the remaining defects. It is the case of the Complainant that the Petitioners overcharged him an amount of Rs. 1,88,250/- and also delayed handing over the possession as per the Agreement. The Petitioners committed an act of deficiency of service and adopted unfair trade practices. Aggrieved by the act of the Petitioners, the Complainant filed Complaint before District Consumer Disputes Redressals Forum-II, Jaipur.

4. The District Forum vide its Order dated 31.07.2019 allowed the Complaint. The relevant extracts of the Order of the District Forum are set out as below –

“Hence, the complaint of the complainant is accepted against the opponent, and the following order is made –

(1) The complainant is entitled to receive from the opponent party, an amount of Rs. 1,50,000 as compensation, Rs. 50,000 as compensation for mental trouble, and Rs. 10,000 for legal expenses, in total an amount of Rupees Two Lakh Ten Thousand.

(2) The opponent party should pay the said amount within a period of one month. Otherwise, the complainant will be entitled to receive interest @9% p.a. on the said amount of Rs. 2,10,000 from today till the day of recovery.”

 

 

 

5. Aggrieved by the Order of the District Forum, both the Complainant and the Petitioners filed Appeals before the State Commission. The State Commission partly allowed the Appeal of the Complaint vide impugned Order dated 13.10.2020. The relevant extracts of the Order of the State Commission are set out as below - 

“In view of the principles laid down by the Hon’ble National Commission, the Complainant should be given 18 percent p.a. interest from 12.01.2015, the date of filing the complaint. In such a situation, by accepting the appeal of the Complainant in part, column no. 2 has mentioned the following: - In lieu of ‘shall be entitled to receive interest at the rate of 9% p.a. from today’s date till the date of recovery’, it should be replaced as ‘shall be entitled to receive interest at the rate of 18% p.a. from the date of filing of the complaint i.e. 12.01.2015 till the date of recovery’, the remaining order will remain unchanged.

Accordingly, both appeals are disposed of.”

 

6. Aggrieved by the Order of the State Commission, the Petitioners filed the present Revision Petition raising the following key issues - 

a. That the Order passed by the District Forum and State Commission are contrary to law and facts of the case established on record;

b. That the State Commission has wrongly and illegally dismissed the Appeal of the Petitioners and wrongly allowed the appeal filed by the Respondent enhancing the rate of interest;

c. That the District Forum and State Commission failed to appreciate that the Respondent did not make any complaint of any sort after all the problems and defects were resolved by the Petitioners and duly acknowledged by the representative of the owners vide letter dated 07.10.2013;

d. That the State Commission wrongly enhanced the rate of interest to 18% in spite of the fact that the Respondent had claimed only 12% in his complaint;

e. That the State Commission failed to appreciate that the amount of Rs. 50,000/- awarded by the District Forum was unwarranted as the Respondent has not suffered any mental agony as the flat was delivered in time;

f. That the State Commission failed to appreciate that the Respondent never came forward to surrender his flat and never sought refund as stipulated in the Brochure but rather took the possession of the Flat without any complaint of any sort;

g. The State Commission failed to appreciate that not dismissing the Complaint will set a wrong precedent and cause substantial loss to the Petitioners as in spite of the fact that there was no deficiency on the part of the Petitioners, it has been directed to shell out substantial amount to the Respondent at a very high interest rate which was not even prayed for in the Complaint.

7. The Ld. Counsel for Petitioners argued that the reliefs granted by the District Forum and upheld by the State Commission were without discussing the reliefs claimed by the Respondent in the Complaint and Appeal as the compensation has been awarded on the issues which were never in the prayer clause, as all other deficiencies alleged by the Respondent were duly resolved which is evident from the minutes of meeting filed on record. The reliefs claimed were limited to wash basin, angle valves, mixing taps and improper disposal of balcony water but the reliefs were granted on some deficiencies which were never claimed in the Complaint; That increase in the interest rate by the State Commission was not justified as there was no deficiency in service in respect of giving possession in time and such the impugned Order is liable to be set-aside; That even the brochure has no provision for a wash basin in the dining area as demanded and the same was mentioned in the Orders of the District Forum as well as State Commission; That regarding marble stones in the kitchen which was allowed by the lower Fora, this was not mentioned in the Complaint as the same was rectified as is evident from the minutes of meeting; That the lower Fora ignored the fact that all defects that were pointed out in the joint meetings were duly rectified; That even all the prayers made in the Complaint were superficial as is clear from the minutes of meeting placed on record.   

8. The Respondent appearing in-person argued that the State Commission had lawfully allowed the appeal of the Respondent and had enhanced the rate of interest referring to the precedence of two case laws of this Commission; That the Petitioners had also agreed that the wash basin in the dining area will be provided after referring the matter to their higher office as these were covered in the Brochure and wooden model displayed on the project site vide minutes of meeting dated 13.04.2013 but in the meeting dated 12.10.2013, the Petitioners finally showed their unwillingness and reluctance to carry out these works vide jointly signed minutes of meeting; That the Respondent is a gullible consumer and not a professional Advocate and had in his ignorance claimed interest @12% p.a., the Respondent never envisaged that the Petitioners will stretch the case to a length of more than 7 years causing immense harassment and financial loss to the Respondent. Nevertheless, in para no. 7 of the relief requested in Complaint and Appeal, the Respondent had prayed to grant any other compensation or relief as the courts may deem fit in favour of the Respondent, hence the State Commission rightly awarded 18% interest; That the Annexure-P11, annexed  with  the  Petition  by  the  Petitioners  is not  complete and the 

relevant second and third pages duly signed by the Petitioners which are vital evidences containing the defects & shortcomings accepted by the Petitioner’s Assistant Engineer are missing. These two pages seem to not have been attached deliberately by the Petitioners with the ill intention of escaping the attention of this Commission; That the Respondent was not at his liberty to surrender the Flat unilaterally on its own as its contended by the Petitioners. The Flat could be surrendered only after the Petitioners admitted the delay in completion of project beyond the specified time but the Petitioners never accepted any delay in the construction till date and are still maintaining that the Flat was delivered on time.

9. This Commission has heard the Ld. Counsel of Petitioner and Respondent appearing in-person; perused the material available on record.

10. The Ld. District Forum in Para 14 of its judgment had first of all come to the conclusion that delay in construction of the Flat(s) had occurred due to justified reasons on account which the Complainants were not found entitled to receive any interest on the amount deposited by them.

11. However, certain defects were noted in the construction of the Flat(s) in question in Para 15 & 16 of the same Order which is set out as below-

             “15. As far as the issue has been raised by the complainant in point number-2, regarding the deficiencies or shortcomings in the                      construction of the said flat.  The marble stones, installed in the balcony and the kitchen, are not properly installed and needs to be                      replaced.  The doors that are installed in the flat are not easy to operate, and the bolts that installed are also not working properly, and                      the doors that are installed in the balcony are also not good, these need to be replaced.  The doors installed in the ventilator and the        windows are also not good, and the tiles in the bathroom are broken and damaged and their joints are not properly cemented.  TV and telephone wires have also not been installed and LIC has been requested to address the said deficiencies.  These issues were raised by the Complainant took possession of the said flat, it had the said deficiencies.  After this, on 13.4.2013, the officials of the opponent party and the complainants and other flat owners had a meeting in which a lot of issues were raised, the total number of issues being 16, which is mentioned in document Exhibit-13 page 39, which has signatures of both the sides; the major issues are as follows:

Pipes are not properly installed outside the Balcony for dirty water.  The compound wall is not complete.  The dining area does not have a washbasin.  There is leakage in plumbing work and pipe fittings.  There is no telephone and TV cable.  The green stone on the stairs is broken. The marble is not properly installed in the flats.  Simple taps are installed instead of mixer taps.  Doors and windows are fitted with low quality doors which have a defect. Switches etc. are also not good.  Individual grievances are also mentioned in it and the parties agreed to resolve the above problems.  After that, on 12.10.2013, both sides met again, some of the issues raised in the previous meeting were resolved but all issues could not be resolved. The main problem was that of installing a washbasin in the dining hall and no proper arrangement for disposal of the dirty water of the flat that mixes with the water harvesting system. Therefore, it is  clear from all these facts that there were some deficiencies in the construction of the said flats, which did not go well with the satisfaction of the complainant.  The complainant also stated his own personal problems, but they were not completely resolved. 

 

16. Therefore, it is clear from the above documents that the flats constructed by the opponent was not fully satisfactory and there have been defects which have been mentioned  above and in the meetings held between the parties, the said defects has been described, which did not resolve completely.  Therefore, it is clear from this that the said flat constructed by the opponent and given to the complainant had the said defects. Therefore, for this reason, the complainant definitely suffered mental trouble and would have to spend money to correct those defects.  Therefore, for this reason, the complainant will have to spend for fixing the said defects in the said flat, for which the complainant is entitled to receive compensation.”

 

12. The grievance of the Petitioner is two-fold.  Firstly, that the compensation so awarded is not only inadmissible, but also exorbitant. To support this contention, it has been stressed by the Ld. Counsel for the Petitioner that the Brochure depicting the floor plan of the Flats does not indicate the existence of any washbasin in the dining area of the Apartments, and so there was no deficiency in service for not providing the same. 

 

13. This Commission has checked the said floor plan in the original Brochure which was tendered for perusal during the course of hearing.   Admittedly, no existence of any washbasin has been depicted in the dining area in the Brochure.

14. However, it transpires that a model of the inner scheme of the Flat(s) was also shown to the purchasers on behalf of the Petitioner.  Coloured photograph of the said model which was taken from vertically above, is available on pages 152 and 153 of the District Forum’s original record and perusal of the same clearly goes to show the specific existence of washbasin in the right side corner space of the dining-cum-living area, as on a table top type platform.  If the existence of such washbasin had not been depicted in the model of the Flat in question, which was photographed on behalf of the Complainant and placed on record, it could have been argued that there was no deficiency in not providing such washbasin.  But the fact that it was actually so depicted would certainly have the effect of giving rise to a presumption that the Complainant(s) were actually enamoured about the possibility of existence of such a facility in their dining-cum-living areas as represented on behalf of the Petitioner who stood  towards them in the capacity of a service provider.

15. Now in Item 3 as noted in the Minutes of the Meeting held between the Complainants and Engineers representing the Petitioner’s side, it was noted in relation to dispute regarding “Provision of Washbasin in dining area” that “Allottes requested once again to provide the wash basin in the dining area as was shown in the model and in the brochure.  LIC officers expressed that Wash Basin is not shown in Dining Area as per Brochure and expressed inability to send the proposal to higher offices.  Allottees are not satisfied with the LIC’s view”.

16. As already seen, existence of a washbasin in the dining area had clearly been shown in the model of the Flat physically shown to the intending purchasers/Complainants, and failure to provide the same certainly amounted to a deficiency in service.

17. To that extent, both the Ld. Fora below were justified in coming to the conclusion that the Complainant needs to be compensated.  The Ld. District Forum therefore allowed Rs. 1,50,000/- as compensation ostensibly towards the cost of rectifying the construction faults, i.e. washbasin , angle valves, mixing taps, and improper disposal of balcony water; Rs. 50,000/- as compensation for mental trouble and Rs. 10,000/- for legal expenses as against the amount of Rs. 2,30,000/- as claimed by the Complainants on these three counts respectively.

18. Considering that in the peculiar nature of construction of the Flat in question, the Complainants  have no reasonable chance of having their washbasin alongwith rest of the plumbing paraphernalia installed in the relevant dining areas without causing extreme dislocation to the building in question, which virtually deprives them of such expected facility for all times, this Commission is of the view that the compensation(s) so awarded by the Ld. District Forum would not appear to be altogether exorbitant.

19. However, the interest component which was enhanced to 18% by the Ld. State Commission is clearly without any justification and has been directed on the basis of the previous decisions of this Commission in two cases - “IV(2016) CPJ 292 (NC)- Dr. Naren P. Sheth & Anr.  Vs. Lodha Group & Ors.” and “II (2016) CPJ 344 (NC)- Modi Builders & Ors. Vs. Levaku Usha Reddy & Ors.”   The facts and matter in issue in those matters were totally at a variance with the nature of controversy involved in the present cases.

20. To that extent, the direction of both the Ld. Fora below regarding the quantum of interest payable by the Petitioners is liable to be set aside.

21. For the aforesaid  reasons, these Revision Petitions are allowed by partially modifying the Orders passed by the Ld. Fora below to the extent that while the compensation amounts awarded by the Ld. District Forum is held to be correct, the interest payable upon the same from the date of Order of the Ld. District Forum shall be at 6% p.a. till the date of recovery which the Petitioners shall now pay to the Complainant, within two months from the date of this Order, after which any outstanding payments shall attract interest @ 8% p.a. till the date of final realisation.                                                                                    

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