JUSTICE V.K. JAIN PRESIDING MEMBER (ORAL)

          The complainants booked a residential flat with the opposite party namely Supertech Limited in a project namely “ORB Homes” which the opposite party was to develop in Sector 74 of Noida.  Vide allotment letter dated 15.5.2013, flat No. R029OPU1405 on 14^th floor of the aforesaid project was allotted to them for a total consideration of Rs.1,38,63,636/-.  The following was the payment plan stipulated in the allotment letter:-

2.      As per clause 1 of the aforesaid letter, the possession was to be delivered by July, 2015 though, the aforesaid period could be extended due to unforeseen circumstances for a further grace period of six months.  The possession clause was subject to timely payment by the allottee.  The possession therefore, ought to have been delivered latest by January, 2016.  The grievance of the complainants is that the possession was not offered to them, despite they having already paid a sum of Rs.53,47,130/- to the opposite party.  The complainant are therefore, before this Commission seeking refund of the amount paid by them to the opposite party along with compensation etc.

3.      The complaint has been resisted by the opposite party, which has admitted the allotment made to the complainants as well as the payment made by them.  Vide email dated 05.12.2016, the opposite party had intimated the complainant that the expected date of possession would be December, 2017 and they would  be compensated for the delay in terms of the allotment letter.  It is also alleged in the written version filed by the opposite party that the complainants are defaulter in making payment, they having paid only Rs.53,47,139/- as against the total cost of Rs.1,38,63,636/-.  It is also alleged that the delay in possession was caused on account of stay order passed by the NGT regarding ground water extraction for construction purposes. 

4.      The first plea advanced by the learned counsel for the opposite party is that this Commission lacks pecuniary jurisdiction to entertain this complaint.  In support of her contention she relies upon the decision of a Coordinate Bench of this Commission in CC/1195/2017 Narendra Shah & Anr. Vs. Supertech Ltd. decided on 24.5.2017.  The aforesaid decision, in my view, is contrary to the decision of a Three-Members Bench of this Commission in Ambrish Kumar Shukla Vs. Ferrous Infrastructure Pvt. Ltd. CC No. 97 of 2016, decided on 07.10.2016 and therefore, does not constitute a binding legal precedent.  In terms of Section 21 of the Consumer Protection Act, this Commission possesses the requisite pecuniary jurisdiction to entertain a consumer complaint where the value of the goods or services, as the case may be, and the compensation, if any, claimed, in the consumer complaint exceeds Rupees one crore.  It was held by the Three-Members Bench of this Commission in Ambrish Kumar Shukla (supra) that the value of the service in such cases would mean the sale consideration agreed to be paid by the flat buyer to the builder.  The amount actually paid by the flat buyer to the builder would have absolutely no relevance in such a case, the only relevant factors being the value of the service i.e. the sale price agreed to be paid by the flat buyer to the builder and the compensation claimed in the consumer complaint.  For instance, if a flat buyer agrees to purchase a residential house for a consideration of more than Rupees one crore, but pays only Rs.10.00 lacs to the builder and is aggrieved on account of the builder having failed to honour his contractual commitment, the appropriate Forum, if he wants to file a consumer complaint, would be this Commission, since the value of the service i.e. the price which he had agreed to pay to the builder for the flat was more than Rupees one crore.  In the present case, admittedly, the sale price of the flat was agreed at more than Rs.1,38,00,000/-.  Therefore, it is only and only this Commission which would have pecuniary jurisdiction to entertain a consumer complaint.

5.      The next plea taken by the learned counsel for the  opposite party is that there were defaults on the part of the complainants in making payment of the installments as stipulated in the payment plan agreed by him.  She has drawn my attention to the demand letter dated 3.11.2016, issued to the complainants asking for a balance payment of Rs.99,999/-.  A perusal of the aforesaid letter would show that the amount of Rs.99,999/- was the balance payment out of the installments payable till start of 15^th floor.  As noted earlier, in terms of the allotment letter dated 15.5.2013, the possession of the flat was to be delivered by January, 2016, inclusive of a grace period of six months.  The aforesaid period having already expired by the time the demand letter dated 03.11.2016 was issued, the complainant as not under a contractual obligation to pay the said amount.

          The learned counsel for the opposite party submits that there were defaults in payment of earlier installments also, since they were not paid in time.  Even if there were delays in payment of the previous installments, the opposite party having accepted the delayed payment and having not cancelled the allotment, on account of the delay in payment, it is deemed to have condoned the said delay and therefore, is now estopped from taking the plea of delayed payment of those previous installments. 

6.      The learned counsel for the opposite party also submits that there was a novation of the contract as far as the time for delivery of possession of the flat is concerned, since they sent a letter informing the complainant that the possession would be delivered by December, 2017 and the complainant did not object to the same.  Again I find no merit in the contention.  The terms of the contract could not have been unilaterally changed by the opposite party without consent and concurrence of the complainants.  Therefore, I find no merit in the plea of novation of the contract.

7.      As far as delay on account of the NGT orders is concerned, the plea was considered by this Commission in CC/40/2017 Sanjay Kumar Chowdhary Vs. Supertech Limited decided on 01.3.2018 and the following view was taken:

          “6.      The learned counsel for the opposite party submits that the NGT had prohibited construction activities within a radius of 10 Kms. from Okhla Birds Sanctuary vide its letter dated August 14, 2013 passed in OA No. 158 of 2013.  I have perused the said order.  The aforesaid aspect came to be considered by this Commission in Shri Pradeep Narula & Anr. Vs. Granite Gate Properties Pvt. Ltd. Anr. in CC 315 of 2014 decided on 23.8.2016 and following view was taken:

          “8.      The opposite party has filed, alongwith its affidavit by way of evidence, a copy of an order dated 28.10.2013 passed by the National Green Tribunal in M.A. No. 890 of 2013 and connected matters. The said order contains reference to an earlier order dated 14.08.2013, whereby NOIDA was directed to stop the construction work going on within a radius of 10 kms from Okhla Bird Sanctuary, without prior environmental clearance or in contravention of the same. The order dated 28.10.2013 shows that the aforesaid order applied to 49 projects out of which, 15 had already been completed and 7 had not begun. The Tribunal made it clear that its intention on 17.09.2013 was to extend the interim order dated 14.09.2013 to the persons or builders carrying on construction activity without environmental clearance or against the provisions of the environmental clearance. This is not the case of the opposite party that no environmental clearance was required or that it had not obtained such a clearance before it started the construction in this project. In such a case, the order passed by the National Green Tribunal would not apply to this project since the scope of the said order was limited to the construction activity being carried out without requisite environmental clearance or in contravention of the environmental clearance. If the opposite party had commenced construction of the project in question without obtaining the requisite environmental clearance or the said construction was in contravention of the environmental clearance, it has only itself to blame for the said construction being stopped by the National Green Tribunal.

9.      Vide above referred order dated 28.10.2013, National Green Tribunal directed that all the projects within an area of 10 kms radius of the Okhla Bird Sanctuary be examined by National Board for Wild Life. The Ministry of Environment & Forests was directed to refer all the aforesaid projects to National Board for Wild Life, within four weeks. The Government of U.P. was directed to send the particulars relating to the environmental clearance given to the aforesaid projects to the Ministry of Environment & Forests within four weeks from the order. Within four weeks thereafter, Ministry of Environment & Forests was to refer the same to the standing Committee of National Board for Wild Life, which was to verify the correctness of the statement made by the project proponent. The order passed by the aforesaid Board was to indicate whether the project should be permitted or not. It was made clear that the building construction within 10 kms radius of Okhla Bird Sanctuary or within distance of Eco-Sensitive Zone to be prescribed by Ministry of Environment & Forests shall be subject to decision of National Board for Wild Life and till clearance from the said Board, the Authority shall not issue completion certificate to the project. Thus, in the aforesaid order dated 28.10.2013, the National Green Tribunal did not stay further construction of the projects where requisite environmental clearance had been obtained, and only completion certificate was withheld till clearance from the National Board for Wild Life.

          The order of the Tribunal to the extent the issue of completion certificate was withheld till the clearance from NBWL could not have contributed to the delay in offering possession to the complainants since the construction not being complete, the stage to obtain the requisite completion certificate had not reached, by the time the aforesaid order dated 28.10.2013 came to be passed by the National Green Tribunal. In fact, even in the cases where the construction was complete and the completion certificate had been applied, the builder could obtain the completion certificate on the project being cleared by NBWL. If there was a delay on the part of the Government of U.P. in sending the particulars relating to the environmental clearance given to the project, to the Ministry of Environment & Forests, there was delay on the part of Ministry of Environment & Forests in forwarding the matter to National Board for Wild Life or there was delay on the part of the National Board for Wild Life in completing its enquiry in terms of the order of the National Green Tribunal, the builder could always approach the said Tribunal for giving appropriate directions to the Government of U.P. or Ministry of Environment & Forests or National Board for Wild Life as the case might be.”

7.      The learned counsel for the opposite party refers to the order of the NGT dated August 14, 2013.  The aforesaid order clearly applied to the construction work which was going on within 10 km. radius of Okhla Birds Sanctuary without proper environmental clearance or in contravention of the same.  If the OP had obtained the requisite environmental clearance before starting work on the project, the project was clearly outside the purview of the aforesaid order of the NGT.  The learned counsel also draws my attention to the order dated 17.9.2013 passed by NGT and submits that this was one of the 49 projects referred in the order of the NGT where the environment clearance had already been obtained.  I find no averment in the written version or even in the additional affidavit that the opposite party had obtained the requisite environmental clearance before starting the work on this project.  If the opposite party chose to start the work without obtaining the environmental clearance, it is only itself to blame for the situation which got to be created on account of the construction having been started without such clearance.  In any case, NGT itself had clarified vide order dated 28.10.2013 that its order dated 17.9.2013 was applicable only to construction activities which were going on without environmental clearance or against the provisions of the environmental clearance.  Therefore, vide order dated 28.10.2013, NGT issued several directions but did not stop construction in the projects which had  been started after obtaining the requisite environment clearance and in which there was no violation of the conditions, subject to which the  said clearance had been granted. If the opposite party had started the construction, without obtaining the requisite environmental clearance or in contravention of the terms of the said clearance, it is only itself to blame for being stopped from raising further construction in terms of the order of the NGT dated 17.9.2013.  Therefore, I am unable to accept the contention that the construction was delayed partly on account of the above referred orders passed by the NGT.”

8.      The learned counsel for the opposite party also submits that the environmental clearance had been suspended by the NGT vide its order dated 28.10.2013.  I however, find that the NGT had not stayed the construction work in respect of the project where the environmental clearance had been obtained.  As noted earlier, by this Commission in Sanjay Kumar Chowdhary (supra) the NGT itself had clarified vide order dated 28.10.2013, that its order dated 17.9.2013 was applicable only to construction activities, which were going on without environmental clearance or against the provisions of the said environmental clearance.  In any case, even if the delay attributed to NGT orders is taken into account, there is no convincing explanation for the remaining part of the delay.

9.      Though in the affidavit filed by way of evidence, the opposite party has also attributed the delay to some Writ Petitions filed in Allahabad High Court and the protest and agitation of farmers, no such plea has been taken in the written version.  More importantly, there is no evidence of the construction at this particular site having been stayed by the Allahabad High Court or the agitation by the farmers having actually halted the work at the site of the construction. 

10.    For the reasons stated hereinabove, I hold that there is no justification for the delay on the part of the opposite party in offering possession to the complainants.

11.    Since there was no justification for the delay in offering possession to the complainant, he is entitled to seek refund of the amount paid by him, along with compensation.  As far as quantum of compensation is concerned, the learned counsel for the opposite party referring to Section 3 of the Interest Act, 1978, submits that the Commission cannot award compensation at a rate higher that the current market rate of interest, which is defined in Section 2 (b) of the said Act to mean the highest of the maximum rates at which interest may be paid on different class of deposits by different classes of scheduled Banks.  In support of her contention that the aforesaid provisions of the Interest Act would also apply to a consumer complaint, the learned counsel for the opposite party relies upon the decision of the Hon’ble Supreme Court in HUDA Vs. Raj Singh Rana (2009) 17 SCC 199.  In the above referred case, the issue before the Hon’ble Supreme Court was with respect to the payment of interest for delayed payment by the allottee of a residential flat to HUDA, and not the payment of interest by way of compensation by HUDA to the allottee.  After discussing the provisions of the Interest Act, the Hon’ble Supreme Court quashed the additional demanded raised by HUDA and directed that it would be entitled to impose simple interest on the prevalent current market rates of interest for the purpose indicated in para-6 of the consumer complaint.

          The aforesaid decision, in my view does not apply to a case where a consumer seeks compensation on account of defect or deficiency on the part of the service provider in rendering services to him.  In fact, the Hon’ble Supreme Court itself had awarded interest @ 18% per annum in the case of Ghaziabad Development Authority V. Balbir Singh, which is extracted in para-21 of the decision in Raj Singh Rana (supra), though the Hon’ble Supreme Court did not approve the practice of awarding compensation at a uniform rate of interest @ 18% per annum in every case and inter-alia held that the compensation must commensurate with the loss suffered by the consumer.

12.    The learned counsel for the complainants states on instructions that the complainants are restricting their claim to the refund of the principal amount paid by them along with all-inclusive compensation in the form of simple interest @ 10% per annum and the cost of litigation. Considering the rates of interest prevalent at the relevant time, the aforesaid claim for payment of all inclusive compensation, including compensation for the harassment and mental agony caused to the complainants, in the form of simple interest @ 10% per annum would be fully justified.  If I award compensation for financial loss in the form of interest at the rate of 9% per annum, and a consolidated compensation of Rs.5,00,000/- for the mental agony and harassment, the aggregate compensation may be higher.

13.    For the reasons stated hereinabove, the complaint is disposed of with the following directions:

(i)      The opposite party shall refund the entire principal amount of Rs.53,47,130/- to the complainant along with an all-inclusive compensation in the form of simple interest @ 10% per annum from the date of each payment till the date of refund.

(ii)      The opposite party shall pay a sum of Rs.25,000/- as the cost of litigation to the complainants.

(iii)     The payment in terms of this order shall be made within three months from today.