Reserved
State Consumer Disputes Redressal Commission
U.P. Lucknow.
Complaint No 14 of 2020
Rakesh Singh aged about 47 years
S/o Awadhesh Singh, R/o Balrampur Chini
Mill Limited, Unit PO Babhnan, Gonda. ....Complainant.
Versus
1- Lucknow Development Authority, Lucknow,
Situated at Pradhikaran Bhawan, Vipin Khand,
Gomti Nagar, Lucknow through its Chairman.
2- Lucknow Development Authority, Lucknow,
Situated at Pradhikaran Bhawan, Vipin Khand,
Gomti Nagar, Lucknow through its Vice Chairman.
…..Opposite parties.
Present:-
1- Hon’ble Sri Ashok Kumar, President.
2- Hon’ble Sri Rajendra Singh, Member
3- Hon’ble Sri Govardhan Yadav, Member.
Sri Sarvesh Kumar Sharma, Advocate for complainant.
Sri Anshuman Sharma, Advocate for the opposite parties.
Date 9.03.2021
JUDGMENT
Sri Rajendra Singh, Member- The complainant Sri Rakesh Singh has filed this complaint case against the Lucknow Development Authority through its Chairman and Lucknow Development Authority through its Vice Chairman for directing them to provide the possession of fully finished Unit no.SG/D/105 situated in Sargam Apartment, Jankipuram (extension) Lucknow having area 112 sq. meters on the cost of Rs.24,40,000.00 without claiming any further amount and to refund the additional cost of Rs.6,47,500.00 alongwith interest, for directing them to pay interest @ 15% on the amount of Rs.30,87,500.00 deposited by him w.e.f. respective dates of deposits till the date of final physical possession, to
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pay rent to the complainant @ Rs.20,000.00 per month w.e.f. August, 2014 till the date of physical possession of the allotted unit, to pay the loss of GST charges, to pay appropriate amount towards damages and compensation, punitive damages, on account of unfair trade practice, Rs.1 lakh towards cost of the case.
In short, the complainant’s case is that the opposite parties launched their project titled as Sargam Apartments situated at Sector-J, (extension) Jankipuram, Kursi Road, Lucknow. The possession was to be given within a period of 2 years from the date of allotment. The complainant vide application dated 24.5.2011 applied for allotment of residential property and deposited Rs.1,25,000.00. The opposite parties vide letter dated 20.8.2011 allotted unit no.SG/D/105(2 BHK + study) in the aforementioned project on the cost of Rs.24,40,000.00 with an area of 112 sq. meters. The complainant was communicated that if he deposits the entire cost in one time then he will get some benefits. On this, the complainant took financial assistance from his relatives and also took loan from his PF Account and deposited the entire amount of Rs.23,15,000.00 vide receipt dated 26.9.2011. It was assured that the possession will be delivered by 20.8.2013 (within 24 months). The complainant after depositing the entire amount of Rs.24,40,000.00 till 26.9.2011 repeatedly approached the opposite parties for getting the status. It was not completed within stipulated time and no information was provided to him. The opposite parties never issued any intimation about the progress of construction work. The complainant in the end of 2013 visited the
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construction site and it was revealed that the work is stopped and he was informed that there was no possibility of the construction work to be completed in coming years. The opposite parties asked the allottees of the project to deposit additional amount against the allotted unit as such, the complainant deposited Rs.6,47,500.00 vide receipt dated 9.8.2018. The complainant, thus, deposited the entire cost of Rs.30,87,500.00 against the allotted unit and no amount is due against him. The opposite parties did not complete the construction of the unit till 29.8.2013. Thus, the opposite parties are required to pay interest on this amount. The opposite parties committed serious deficiency in service, unfair trade practice with the consumer. They submitted affidavit before the RERA authority that the project work shall be completed till 31.12.2018. No possession was offered to the complainant on 31.12.2018.
The opposite parties issued letter on 1.1.2020 to the complainant calling him to deposit the stamp charges of Rs.1,98,000.00 in order to execute the sale-deed. The complainant is ready and willing to deposit the same stamp charges. However, the opposite parties did not mention any status regarding possession of the fully finished unit in the letter dated 1.1.2020. The complainant never made any default in the payment of the cost.
It is pertinent to mention that the opposite parties used to prepare the standard form of agreement which is common for all the allottees/consumers and no alteration and modification can be made by the opposite parties. The opposite parties did not complete construction within 24
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months nor they offered the possession in the year 2018 as per affidavit of undertaking dated 6.7.2018 provided by them before the RERA authority. There is deficiency in service on the part of the opposite parties. The opposite parties are accountable for unfair trade practice since they have enjoyed and utilized the hard earned money of the complainant. The opposite parties made false statement and assurance regarding handing over of possession. The complainant in order to make payment of the cost of the apartment took financial assistance from the relatives which is to be repaid on exorbitant rate of interest and also took loan from his PF Account. However, the complainant is deprived of his legitimate right of possession in view of the same the complainant is to encounter acute mental and physical discomfort for which the opposite parties are responsible. The opposite parties are required to produce before this Commission the project specification report as well as the report of the engineer regarding the quality of the material used in the construction/unit. The opposite parties in a most illegal and arbitrary manner charged additional cost of Rs.6,47,500.00 from the complainant without communicating the complainant about this increase is area. No information about corresponding increase in the carpet and built up area of the apartment is provided.
The complainant has prayed for the reliefs mentioned before.
The opposite party in its written statement submitted that on the construction spot due to farmers’ agitation the work delayed. No deficiency of service has been shown by the opposite party. There has been delay in the construction
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totally due to farmers’ agitation. At the time of allotment the price of the flat is not final but is tentative but after complete construction last value has been communicated. The allotment was done in favour of the complainant Rakesh Singh on 10.8.2011 through lottery. The complainant applied for registration and he was intimated the cost of Rs.24,40,000.00 and Rs.1,25,000.00 was deposited for registration. It is worth to note that the delay was due to farmers’ agitation. The final amount has been deposited by the complainant and on 2.3.2020 registry has been done. Hence, there is no deficiency in service by the opposite parties and complaint case is liable to be dismissed.
We have heard both the parties’ counsel and perused the pleadings and argument.
The complainant in his affidavit has reiterated the facts of the complaint case and stated that the opposite parties in a most illegal and arbitrary manner charged additional cost of Rs.6,47,500.00 from him. No information about corresponding increase in the carpet and build up area of the apartment is provided. The complainant has stated that on 5.2.2020 the sale-deed is executed by the opposite parties.
In this case following case laws have been filed by the complainant.
- Lucknow Development Authority vs. M.K. Gupta, III(1993) CPJ 7 (SC).
The Hon’ble Supreme Court while deciding many appeals in a bunch has stated that “a government or semi-government body or a local authority is as much amenable to the Act as any other private body rendering similar service.
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Truly speaking it would be a service to the society if such bodies instead of claiming exclusion subject themselves to the Act and let their acts and omissions be scrutinised as public accountability is necessary for healthy growth of society.”
Discussing section 2(1)(O) and 2(1)(R) of the Consumer Protection Act, 1986, Hon’ble supreme Court held that:
“the entire purpose of widening the definition is to include in it not only day to day buying and selling activity undertaken by a common man but even such activities which are otherwise not commercial in nature yet they partake of a character in which some benefit is conferred on the consumer. Construction of a house or flat is for the benefit of person for whom it is constructed. He may do it himself or hire services of a builder or contractor. The latter being for consideration is service as defined in the Act. Similarly when a statutory authority develops land or allots a site or constructs a house for the benefit of common man it is as much service as by a builder or contractor. The one is contractual service and other statutory service. If the service is defective or it is not what was represented then it would be unfair trade practice as defined in the Act. Any defect in construction activity would be denial of comfort and service to a consumer. When possession of property is not delivered within stipulated period the delay so caused is denial of service. Such disputes or claims are not in respect of immoveable property as argued but deficiency in rendering of service of particular standard, quality or grade. Such deficiencies or omissions are defined in sub-clause (ii) of clause (r) of Section 2 as unfair trade practice. If a builder of a house uses substandard material in construction of a building or makes false or misleading representation about the condition of the house then it is denial of the facility or benefit of which a consumer is entitled to claim value under the Act. When the contractor or builder undertakes to erect a house or flat then it is inherent in it that he shall perform his obligation as agreed to. A flat with a leaking roof, or cracking wall or substandard floor is denial of service. Similarly
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when a statutory authority undertakes to develop land and frame housing scheme, it, while performing statutory duty renders service to the society in general and individual in particular. The entire approach of the learned counsel for the development authority in emphasising that power exercised under a statute could not be stretched to mean service proceeded on misconception. It is incorrect understanding of the statutory functions under a social legislation. A development authority while developing the land or framing a scheme for housing discharges statutory duty the purpose and objective of which is service to the citizens. As pointed out earlier the entire purpose of widening the definitions is to include in it not only day to day buying of goods by a common man but even such activities which are otherwise not commercial but professional or service-oriented in nature. The provisions in the Acts, namely, Lucknow Development Act, Delhi Development Act or Bangalore Development Act clearly provide for preparing plan, development of land, and framing of scheme etc. Therefore if such authority undertakes to construct building or allot houses or building sites to citizens of the State either as amenity or as benefit then it amounts to rendering of service and will be covered in the expression 'service made available to potential users'. A person who applies for allotment of a building site or for a flat constructed by the development authority or enters into an agreement with a builder or a contractor is a potential user and nature of transaction is covered in the expression 'service of any description'. It further indicates that the definition is not exhaustive. The inclusive clause succeeded in widening its scope but not exhausting the services which could be covered in earlier part. So any service except when it is free of charge or under a constraint of personal service is included in it. Since housing activity is a service it was covered in the clause as it stood before 1993.”
It was therefore urged that the applicability of the Act having been confined to moveable goods only a complaint filed for any defect in relation to
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immoveable goods such as a house or building or allotment of site could not have been entertained by the Commission. The submission does not appear to be well founded. The respondents were aggrieved either by delay in delivery of possession of house or use of substandard material etc. and therefore they claimed deficiency in service rendered by the appellants. Whether they were justified in their complaint and if such act or omission could be held to be denial of service in the Act shall be examined presently but the jurisdiction of the Commission could not be ousted (sic merely) because even though it was service it related to immoveable property.
To begin with the preamble of the Act, which can afford useful assistance to ascertain the legislative intention, it was enacted, 'to provide for the protection of the interest of consumers'. Use of the word 'protection' furnishes key to the minds of makers of the Act. Various definitions and provisions which elaborately attempt to achieve this objective have to be construed in this light without departing from the settled view that a preamble cannot control otherwise plain meaning of a provision. In fact the law meets long felt necessity of protecting the common man from such wrongs for which the remedy under ordinary law for various reasons has become illusory. Various legislations and regulations permitting the State to intervene and protect interest of the consumers have become a haven for unscrupulous ones as the enforcement machinery either does not move or it moves ineffectively, inefficiently and for reasons which are not necessary to be stated. The importance of the Act lies in promoting welfare of the society by enabling the consumer to participate directly in the market economy. It attempts to remove the helplessness of a consumer which he faces against powerful business, described as, 'a network of rackets' or a society in which, 'producers have secured power' to 'rob the rest' and the might of public bodies which are degenerating into storehouses of inaction where
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papers do not move from one desk to another as a matter of duty and responsibility but for extraneous consideration leaving the common man helpless, bewildered and shocked. The malady is becoming so rampant, widespread and deep that the society instead of bothering, complaining and fighting against it, is accepting it as part of life. The enactment in these unbelievable yet harsh realities appears to be a silver lining, which may in course of time succeed in checking the rot.
The provisions of the Act thus have to be construed in favour of the consumer to achieve the purpose of enactment as it is a social benefit oriented legislation. The primary duty of the court while construing the provisions of such an Act is to adopt a constructive approach subject to that it should not do violence to the language of the provisions and is not contrary to the attempted objective of the enactment.”
2- In Ganesh Prasadh Singh vs. Lucknow Development Authority, 2011(29) LCD 2541, the Hon’ble High Court Allahabad held that “statutory provision, whether prospective or retrospective held: settled proposition of law that every statutory provision shall be prospective unless impliedly or by specific provision made retrospective.”
“Price of plot deposited by the petitioner as full and final payment in the year 1984, lying with L.D.A., and without delivery of possession of the plot to him. Held- he shall be entitled for compensation in the shape of interest at the rate of 8% per annum with effect from 1.1.1985.”
- In Ram Shanker Mishra vs. State of U.P., 2011(29) LCD 2598, the Hon’ble High Court held that “Government orders, effect of – Held, is always prospective in nature- Petitioner’s services were regularized on 1.3.1977. He
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became eligible to be considered for promotion after completion of five years as per G.O. dated 22.4.1982 and not as per G.O. 31.8.1982.”
4- In Kunj Bihari Mehta & anr. vs. Ansal Properties & Industries Ltd., II(2008) CPJ 351 (NC), the Hon’ble NCDRC has considered section 2(1)(g) of the Consumer Protection Act and held that “In our view, the ends of justice would be met if, for this unjustified delay, we direct the Opposite Party to pay interest @ 12% per annum from 1st November, 1998 till 1st December, 2007 on the amount deposited by the Complainant upto 1st November, 1997 i.e. in all on a sum of Rs.25,29,770/-.
Further, for the high-handed and rough behaviour of the Manager of the Opposite Party, the Opposite Party shall pay compensation of Rs.50,000/-. This amount shall be deposited with this Commission by way of bank draft drawn in the name of the Registrar of this Commission which shall be transferred to the Consumer Legal Aid Account maintained by this Commission.
In the result, the complaint is partly allowed. The Opposite Party is directed to pay interest @ 12% per annum from 1st November, 1998 till 1st December, 2007 on the amount deposited by the Complainant upto 1st November, 1997, i.e., in all on the sum of Rs.25,29,770/-. It would be open to the Complainants to withdraw the amount of Rs.5,58,000/- deposited with this Commission and the Opposite Party after adjustment of the said amount of deposit,
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shall pay the remaining amount on account of interest to the complainants within four weeks from today. There shall be no order as to costs.”
The opposite party has submitted the following case law.
In Bangalore Development Authority vs. Syndicate Bank, II(2007) CPJ 17 (SC), the Hon’ble Supreme Court held that “where amount finally paid by adjustment against the cost of the surrendered LIG Flat, possession of 11 flats delayed and commission allowed complaint. The appeal files by the opposite party. The brochure did not disclose any date of delivery of possession and question of delay arises only in May, 1991 taking 2 years after the date of last payment which May, 1989, as reasonable time for completion of construction. If allottee does not pay instalment, he can not obviously accept completion of construction. Delay caused due to contractor and reasonable steps taken by the opposite party to persuade the contractor to complete construction. Held- No negligence and deficiency in service. If delay is for justifiable reasons, allottees not entitled to interest or compensation as it has benefit of appreciation value. Allotment made at an agreed price despite increase in market value, allottee has already have benefit of increased value. Hence, not entitled for compensation.”
The opposite party also filed some copies of the judgment passed by this Commission.
We have seen. Order of a bench of the same State Commission cannot be binding on other bench of the same State Commission.
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There is no dispute that an offer was made to the complainant for the sale of a flat for Rs.24,40,000.00 dated 20.8.2011. There is schedule of paying the instalments in that letter. Later on, the complainant paid one time amount i.e. Rs.23,15,000.00 on 26.9.2011. It has also been admitted by the opposite parties. The proposed unit No.SG/D/105 (2 BHK +Study) area 112 sq. meters was offered to the complainant in the said price. Thereafter, an amount of Rs.6,47,500.00 was deposited on 9.8.2011 by the complainant. The complainant has said that there was no reason for depositing this amount of Rs.6,47,500.00. The allotment was made on 20.8.2011 and it was assured that the possession will be handed over by 20.8.2013. But, the possession has not been handed over as assured. The reason behind this is that there was farmers’ agitation which delayed the work of construction.
Now, the question arises that the LDA has informed the allottees about the reason of delay and also about the reason for asking to deposit Rs.6,47,500.00. There is no document filed with the written statement. The opposite parties in their written statement have stated that the possession of the said flat has been given to the complainant and it has been registered in the Registrar’s office on 2.3.2020.
Now, the matter is clear that the LDA failed to deliver the possession on or about 20.8.2013 as assured by them. With the evidence filed on affidavit, the LDA has filed a copy of application addressed to S.O., Thana Gudamba, Lucknow for the protection and for appointing force to protect their lives from the agitated farmers. Some copies of the newspaper have also been filed for showing that there was
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farmers’ unrest which delayed timely construction of the said flat . But the LDA was regularly earning interest on the deposited amount hence here one question arises as no explanation has been given by the LDA regarding Rs.6,47,500.00 which was deposited by the complainant on 9.8.2018. Another question arises that how much interest has been earned on the amount deposited by the complainant on 26.9.2011, and also whether any rebate has been given on the total deposit ?
There may be some delay to complete the construction but the LDA was earning interest on Rs.24,40,000.00 right from 26.9.2011 but nothing has been shown as to how much amount of interest was adjusted or returned to the complainant. In this regard, the following case laws of Hon’ble NCDRC and Hon’ble Supreme Court of India are worth mentioning.
In the Case of Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. vs. DLF Southern Homes Pvt. Ltd. (now Known as BEGUR OMR Homes Pvt. Ltd.) and Ors. (Civil Appeal No. 6239 of 2019 with Civil Appeal No. 6303 of 2019), the Hon’ble Supreme Court has held:
“24. A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service. The expression “service” in Section 2 (1) (o) means a service of any description which is made
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available to potential users including the provision of facilities in connection with (among other things) housing construction. Under Section 14(1)(e), the jurisdiction of the consumer forum extends to directing the opposite party inter alia to remove the deficiency in the service in question. Intrinsic to the jurisdiction which has been conferred to direct the removal of a deficiency in service is the provision of compensation as a measure of restitution to a flat buyer for the delay which has been occasioned by the developer beyond the period within which possession was to be handed over to the purchaser. Flat purchasers suffer agony and harassment, as a result of the default of the developer. Flat purchasers make legitimate assessments in regard to the future course of their lives based on the flat which has been purchased being available for use and occupation. These legitimate expectations are belied when the developer as in the present case is guilty of a delay of years in the fulfilment of a contractual obligation. To uphold the contention of the developer that the flat buyer is constrained by the terms of the agreed rate irrespective of the nature or extent of delay would result in a miscarriage of justice. Undoubtedly, as this court held in Dhanda, courts ordinarily would hold parties down to a contractual bargain. Equally the court cannot be oblivious to the one-sided nature of ABAs which are drafted by and to 24 protect the interest of the developer. Parliament consciously designed remedies in the CP Act 1986 to protect consumers. Where, as in the present case, there has been a gross delay in the handing over of possession beyond the contractually stipulated debt, we are clearly of the view that the jurisdiction
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of the consumer forum to award just and reasonable compensation as an incident of its power to direct the removal of a deficiency in service is not constrained by the terms of a rate which is prescribed in an unfair bargain.”
In the case of Priyanka Mittal & anr. vs. Parsvnath Developers Ltd. & anr. (NCDRC). These appeals arise out of single order of State Commission, hence, decided by common order. These appeals have been filed appellant against order dated 25.2.2015 in Complainant Nos.
18 of 2013- Nalin Bhargava & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 34 of 2013- Jasleen Viswanathan & Anr. Vs. Parsvnath Developers Ltd. & Anr; 58 of 2011- Janmejai Mani Tiwari Vs. Parsvnath Developers Ltd. & Anr; 68 of 2013- Indu Singh Vs. Parsvnath Developers Ltd. & Anr.; 69 of 2013- Poonam Sagar Vs. Parsvnath Developers Ltd. & Anr.; 86 of 2010- Priyanka Mittal & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 101 of 2011- Mohd. Aslam Khan & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 130 of 2012- Dr. Sunil Kr. Singh & Anr. Vs. Parsvnath Developers Ltd. & Anr; 49 of 2012- Neera Mittal & Anr. Vs. Parsvnath Developers Ltd. & Anr; , 74 of 2011- Deepak Bhalla Vs. Parsvnath Developers Ltd. & Anr. ; 87 of 2010- Syed Gufran Ali Alvi & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 96 of 2011- Uppasana Malik Vs. Parsvnath Developers Ltd. & Anr.; 175 of 20130- Umesh Chandra Dixit & Anr. Vs. Parsvnath Developers ; byLtd. & Anr.; 97 of 2011- Pravin Kumar Goel & Anr. Vs. Parsvnath Developers Ltd. & Anr which complaints were partly allowed.
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The Hon’ble NCDRC held:
“Brief facts of the cases are that opposite parties/respondents are engaged in the activity of housing construction and accordingly they have launched a project named as Parsvnath Planet situated in Gomti Nagar, Lucknow. The project was demonstrated to be very lucrative and made attractive to the vendees, in order to procure/collect money from the needy persons demonstrating themselves to be excellence in the field of construction activity as compared to other builders and assured the buyers/complainants that it has been duly approved by the Lucknow Development Authority and necessary permission has also been obtained from them. The emphasis was made by the opposite parties that the possession of the Unit shall be given within a scheduled period of 36+6=42 months stipulated in agreements executed in between the parties for the project launched in the year 2006. The complainants/appellants attracted by the promise and assurance of the opposite parties, somehow managed and arranged the money from their personal sources as well as on loan at attractive rate of interest and the hard earned money was paid by them to the opposite parties in a hope that the possession of the units shall be provided to them in the year 2009 and they can leave peacefully in their own houses, since the complainants are living in rented houses. The complainants visited the construction site of the opposite parties after depositing the entire amount, where it was revealed that the construction activities were on halt and the persons available on the site told the complainants that the apartments are likely to be
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completed till 2015. Even the partial construction done by the opposite parties was defective and did not match the specifications provided in the agreement. The complainants were shocked on hearing it and observing the site. The complainants immediately contacted the Area Manager, who told the complainants that there is some delay in the construction of the apartment and the apartments shall be ready till June, 2010. The complainants have to repay the amount taken on loan alongwith interest without getting the possession of the allotted units causing irreparable loss and injury to them. The complainants have come to know that the opposite parties have invested the funds earmarked for this project into their other projects in other city due to which they have -10- not been able to complete the project in time. Besides this, it has also come to the light that although the opposite parties had collected huge funds from the buyers but in spite of that the opposite parties have miserably failed to pay the dues of Lucknow Development Authority which forced the Lucknow Development Authority to issue coercive measures against the opposite parties for the recovery of their dues. Alleging deficiency on the part of opposite parties/respondents, complainants filed separate complaints before State Commission. Ad aggrieved by the order of Hon’ble State Commission , these appeals preferred befpre Hon’ble National Consumer Disputes Redressal Commission .
Hon’ble NCDRC discussed various case laws and after hearing the parties held :
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“Learned Counsel for appellants submitted that as complainants have been deprived of possession for a long period beyond agreed period, it amounts to restrictive trade practice under and complainants are entitled to get compensation. Section 2 (nnn) runs as under:- means a trade practice which tends to bring about restrictive trade practice manipulation of price or its conditions of delivery or to affect flow of supplies in the market relating to goods or services in such a manner as to impose on the consumers unjustified costs or restrictions and shall include- Delay beyond the period agreed to by a trader in supply of such goods or in providing the services which has led or is likely to lead to rise in the price; Any trade practice which requires a consumer to buy, hire or avail of any goods, or, as the case may be, services as condition precedent to buying, hiring or availing of other goods or services; Perusal of aforesaid provision reveals that when opposite party delays in delivery of goods which leads to rise in the price of goods meaning thereby, more price is charged from complainant, it amounts to restrictive trade practice. In the case in hand, opposite party on account of delayed delivery of possession is not charging higher rate than the agreed rate for delivery of possession of flat, so, it does not fall within the purview of restrictive trade practice under Admittedly, agreements were executed in 2006 and as per agreements, possession of flats was to be delivered within 42 months, meaning thereby, possession was to be given in the year 2009-2010 and possession has not been handed over
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so far though year 2016 has started. No doubt, complainants are entitled to get penalty amount for delayed delivery of possession as per clause 10 ( c) of the agreement but opposite party cannot be permitted to avail benefit of aforesaid clause for indefinite period. This penalty clause should be allowed for the benefit of parties for a limited period and in the cases in hand, I deem it appropriate to extend applicability of aforesaid clause for a period of one year beyond 42 months and after that, complainants are certainly entitled to compensation. Opposite party cannot be allowed to avail huge funds of complainants by paying merely Rs. 5/- per sq. ft. for example, complainants who have purchased flat measuring 164.901 sq. mtr., they have made payment of about Rs. 31.00 to 32 lakhs and in the garb of clause .
10 (c), opposite party is paying penalty @ approximately Rs. 9,000/- per month against enjoying funds more than Rs. 30.00 lakhs. As complainants have been deprived to shift to their flats for a long period which would not only have given them satisfaction of living in their own house but also have raised their social status and opposite party has enjoyed funds of complainants for a long period, I deem it appropriate to allow compensation @ Rs. 15,000/- p.m. to the complainants who have applied for flats upto 175 sq. mtr and Rs. 20,000/- per month to complainants who have applied for flats above 175 sq. after 54 months of execution of agreement till delivery of possession. Complainants- Nalin Bhargava in and complainants Complaint No. 18 of 2013 Ravindra Singh in , are entitled to
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get only difference of amount from Complaint No. 32 of 2012 -14- the amount already awarded by State Commission which has not been challenged by opposite party. Perusal of record reveals that in Complaint No. 987 of 2011, Pravin Kumar Goel Vs. , flat area of complainant has been increased and additional Rs. 7,99,997/-Parsvnath Developers has been demanded by opposite party from complainant but Learned State Commission has not allowed penalty as per clause 10 (c) for the increased area and complainants are entitled to get penalty as per aforesaid clause on the increased area also. Consequently, appeals filed by appellants are partly allowed and order dated 25.2.2015 passed by Learned State Commission in the aforesaid complaints is modified and opposite party is directed to pay @ Rs. 15,000/- p.m. and Rs. 20,000/- to the allottees of flats upto 175 sq. mt. and above 175 sq mtr respectively from beginning of 55 month from the date of execution of flatth buyer agreement till delivery of possession of flat to the complainants and complainants in and are entitled to receive only differenceComplaint No. 18 of 2013 Complainant No. 32 of 2012 of amount as stated above and opposite party is directed to pay penalty to complainant in on the increased area as per clause 10 (c ) of the agreement. Complaint No. 97 of 2011 Parties to bear their costs.”
As far as the cost is concerned, the Hon’ble Supreme Court has held in Nalin Bhargava vs Parsvnath Developers Ltd on 13 July, 2018 in CA 6662/2018 @ SLP(C) 7596/2016 etc. that without giving any extra interest etc. the cost of Rs.1,50,000.00 be paid to per allottee for delayed possession.
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So, we are of the view that the complainant is entitled to get a compensation of Rs.15,000 per month from 01 January 2014 till the delivery of possession. As per Hon’ble Supreme Court judgment the complainant is also entitled to receive cost of Rs.150,000 /- . There will be no interest on these two above-mentioned amounts but the complainant is entitled to get a Simple interest @ 8% per annum from 1.1.2014 till 28.2.2020 on the total amount deposited by him. He is also entitled to get back Rs.6,47,500.00. All the said amounts shall be paid to the complainant within 30 days from the date of the judgment otherwise the opposite party shall be liable to pay interest at the rate of 8% on this amount beginning after 30 days of this judgment till the payment. So, the present complaint is decided accordingly.
ORDER
The complaint is allowed partially. The opposite parties are directed to pay compensation of Rs.15,000 per month from 01 January 2014 till the delivery of possession. The opposite parties are directed to pay Rs.150,000.00 as cost to the complainant. The opposite parties are also directed to refund Rs.6,47,500.00. There shall be no interest on these amounts if paid within 30 days from the date of delivery of judgment otherwise the opposite parties shall pay simple interest @8% per annum on the amount of compensation and refund money, but not on the amount of cost ,till the date of payment.
Certified copy of this judgment be provided to the parties as per rules.
(Goverdhan Yadav) (Rajendra Singh) (Justice Ashok Kumar)
Member Member President
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Judgment dated/typed signed by us and pronounced in the open court.
Consign to record.
(Goverdhan Yadav) (Rajendra Singh) (Justice Ashok Kumar)
Member Member President
Jafri/Court 1
