The present First Appeal under Section 19 of the Consumer Protection Act, 1986 (for short “the Act”) has been preferred by Sh. Amarpreet Singh Arora (hereinafter referred to as “the Complainant”) seeking enhancement of compensation granted to him by the Delhi State Consumer Disputes Redressal Commission at Delhi (for short “the State Commission”) vide its majority order dated 08.11.2016 in CC No. 301 of 2011. 

2.       Briefly put the facts of the case are,

That the Complainant booked a Villa with M/s Parsvnath Developers Pvt. Ltd. (hereinafter referred to as “the Respondent”) in one of their projects titled ‘Parsvnath City’, Sonepat, Harayana; the Respondent vide its letter dated 30.12.2006 allotted villa bearing No. A-640, measuring 162.20 sq. mtrs. to him for a total consideration of ₹27,31,668/-;   Villa Buyer Agreement was executed on 21.08.2007; subsequently, vide its letter dated 07.03.2008, the Respondent intimated the Complainant that due to certain modifications in the lay out plan the number of the villa allotted to him was changed to A-643; as per Clause No. 5 of the said Villa Buyer Agreement the Complainant made all payments as and when the Respondent raised demand for the same without any default on his part;  that there was a specific clause that interest @ 24% p.a. would be charged in case of delay in payments; that by 30.10.2008 the Complainant had paid a total sum of ₹24,81,668/-  and only 5% of the total sale consideration remained to be paid which was to be paid at the time of handing over of possession of the subject villa; as per the Agreement, the Respondent was required to complete the construction within a period of 18 months from the commencement of the construction; the Respondent had started the construction in August, 2007 and thus possession was to be delivered by January, 2009;  as per Clause 8(c) of the Agreement, in the event of delay in the construction of villa beyond the period as specified in Clause 8(a) of the Agreement, the Respondent would have to pay to the Complainant compensation @ ₹53.82/- per sq. mtr., or ₹5/- per sq. ft. of the super area of the villa, per month for the period of delay and therefore, in terms of the said Clause 8(c) the Respondent was liable to pay to the Complainant a compensation of ₹8729.60/- p.m. for the period of 31 months i.e. from February, 2009 to August, 2011 amounting to ₹2,70,617/- along with interest on the said amount. The Complainant raised the demand for the said compensation to the Respondent twice vide his demand letters dated 08.12.2010 and 07.06.2011.  However, despite the receipt of the said letters, the Respondent neither replied nor made any payment to the Complainant.  The Complainant did not receive any communication from the Respondent with regard to the status of the construction of the villa and the Respondent also did not inform him as to when the possession of the same would be handed over to him.   It was stated that when there was no positive response from the Respondent, the Complainant sent a Legal Notice dated 11.07.2011 through his advocate vide registered AD and Courier to the Respondent calling upon them to settle the dispute by paying the requisite compensation and refund the deposited amount of ₹24,81,668/- but despite the receipt of the said Legal Notice, the Respondent neither replied nor settled the dispute with the Complainant. 

3.       The Respondent filed their Written Statement stating therein that due to global recession the pace of construction slowed down and for that reason they had failed to complete the construction.  It was further stated that by virtue of clause 8(c) of the Villa Buyer’s Agreement, the interest of the Complainant stood protected as vide the said Clause the Respondent was bound to pay compensation @ ₹53.82/- per sq. mtr. or at the rate of ₹5/- per sq. ft. of the super area per month to the Complainant for the period of delay and hence the apprehensions in the mind of the Complainant were baseless and unfounded.  It was stated that the liability of the Respondent with regard to the delay in handing over of possession is limited to Clause 8(c) of the Agreement and he cannot overreach the agreed stipulations of Clause 8(c). 

4.       One Member of the Bench of State Commission (Sh. N.P. Kaushik) vide its order dated 01.03.2016 allowed the Complaint and granted the following relief:-

          “a. to refund the amount of ₹24,81,668/- along with interest @ 18% p.a. from the date of deposit till the date of its realization.

b. to pay compensation to the tune of ₹7,00,000/- for harassment, inconvenience, frustration, anguish and mental agony caused to the Complainant.

c. to pay to the Complainant litigation charges of ₹1,00,000/-.”

5.       However, the other Member of the Bench (Sh. S.C. Jain) dissented with him over the point of relief and granted the following relief:-

“a. to refund the amount of ₹24,81,668/- along with interest @ 10% p.a. from the date of deposit till the date of its realization.  This will meet the ends of justice.

b.  to pay to the Complainant litigation charges of ₹25,000/-.

6.       As the Members of the Bench disagreed on the issue of relief, the matter was referred to a third Member (Sh. O.P. Gupta), who endorsed the opinion of Sh. S.C. Jain, Member.  Thus, the State Commission vide its impugned order dated 08.11.2016 granted relief to the Complainant as granted by Sh. S.C. Jain, Member.

7.       We have heard the Counsel for both the parties and perused the record.

8.       Ld. Counsel appearing for the Appellant/Complainant submitted that the promised date of delivery of the subject flat was January, 2009 and despite repeated reminders and personal visits and also the Legal Notice issued on 11.07.2011, the Respondent neither replied nor communicated the date regarding the date of delivery of possession.  Hence the Complainant filed the Complaint in the month of September, 2011. Ld. Counsel for the Appellant vehemently contended that the order passed by Mr. N.P. Kaushik, wherein interest @ 18% p.a. was awarded has to be upheld and relied on the following Orders of this Commission:- Order dated 07.07.2015 passed in FA No. 401/2015 titled  Parsvnath Developers Ltd. Vs. Sudhanshu Kumar Jain & Anr.; Order dated 26.04.2016 passed in CC No. 457/2014 Rajesh Kumar Agrawal Vs. Parsvnath Developers Ltd.; Order dated 09.04.2018 passed in FA No. 1378/2016 Rakesh Anand & Ors. Vs. M/s Royal Empires; Order dated 29.01.2015  passed in CC No. 232/2014 Puneet Malhotra Vs. M/s Parsvnath Developers Ltd.; Order dated 28.03.2016 passed in FA No. 559/2015 Parsvnath Developers Ltd. Vs. Suinita Reheja & Anr.; Order dated 11.05.2016 passed in CC No. 263/2015 Aditya Laroia Vs. Parsvnath Developers Ltd. and Order dated 14.08.2015 passed in CC No. 347-350/2014 Swaran Talwar & Ors. Vs. Unitech Ltd.  He further contended that the Hon’ble Apex Court in Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65 has observed as under:-

          “That compensation cannot be uniform and can best be illustrated by considering cases where possession is being directed to be delivered and cases where only monies are directed to be returned.  In cases where possession is being directed to be delivered the compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting.  But in cases where monies are being simply returned then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot.  He is being deprived of that flat/plot.  He has been deprived of the benefit of escalation of the price of that flat/plot.  Therefore the compensation in such cases would necessarily have to be higher.  Further if the construction is not of good quality or not complete, the compensation would be the cost of putting it in good shape or completing it along with some compensation for harassment.   Similarly, if at the time of giving possession a higher price or other amounts are collected unjustifiably and without there being any provision for the same the direction would be to refund it with a reasonable rate of interest.  If possession is refused or not given because the consumer has refused to pay the amount, then on the finding that the demand was unjustified the consumer can be compensated for harassment and a direction to deliver possession can be given.  If a party who has paid the amount is told by the authority that they are not in a position to ascertain whether he has paid the amount and that party is made to run from pillar to post in order to show that he has paid the amount, there would be deficiency of service for which compensation for harassment must be awarded depending on the extent of harassment.  Similarly, if after delivery of possession, the sale deeds or title deeds are not executed without any justifiable reasons, the compensation would depend on the amount of harassment suffered. We clarify that the above are mere examples.  They are not exhaustive.  The above shows that compensation cannot be the same in all cases irrespective of the type of loss or injury suffered by the consumer.”

 9.           No doubt, there is merit in the argument of the Ld. Counsel appearing for the Appellant/Complainant that when the Respondent was charging penal interest @ 24% p.a. from the Appellant whenever there were delayed payments, the Appellant is entitled to a higher rate of interest. It is observed from the record that Respondent did not prefer any Appeal challenging the impugned order and therefore, the question of deficiency of service against the Respondent has attained finality.  Be that as it may, the point for consideration in the instant case is only whether the Complainant is entitled to a higher rate of interest.  We place reliance on the principle of restitutio in integrum.  The Hon’ble Apex Court in V. Krishnakumar vs. State of Tamil Nadu & Ors. (2015) 9 SCC 388, while quantifying the compensation has sagely relied on restitutio in integrum.  Indisputably, grant of compensation is based on the Principle of restitutio in integrum.  The said principle provides that a person entitled to damages should, as nearly as possible, get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong.  An application of this Principle is that the aggrieved person should get the sum of money, which would put him in the same position if he had not sustained the wrong.  It must necessarily result in compensating the aggrieved person for the financial loss suffered due to the event, the pain and suffering undergone and the liability that he/she would have to incur due to the loss and harassment caused by the event. 

10.    We are of the considered view that keeping in view the market situation and the lower bank interest rates, awarding interest @ 12% from the respective dates of deposits would meet the ends of justice.  For all the afore-noted reasons this Appeal is allowed in part directing the Respondent to refund the entire principle amount deposited by the Complainant along with interest @ 12% p.a. from the respective dates of deposits till the date of realization within four weeks from the date of Order, failing which, the amount shall attract interest @ 14% p.a.  We also award costs of ₹25,000/- to be paid to the Complainant.