JUSTICE V.K. JAIN (ORAL)

The complainants, who are husband and wife, booked a residential flat with the OP in a project namely, ‘ORB Towers’ which the OP is developing in Sector 74 of Noida. The  sale consideration for the aforesaid flat was agreed at Rs.1,35,07,089/- and as per clause 1 of the allotment letter, the possession of the flat was to be given to them by July 15, which could, due to unforeseen circumstances, be extended by six months, meaning thereby that the possession in any case had to be delivered by January 2016. The payment plan agreed between the parties reads as under:-

2.      The complainants have already made payment of Rs.55,92,636/- to the OP but the possession has not been offered to them. They are, therefore, before this Commission seeking the following reliefs:-

“(1)      To cancel the allotment of the unit bearing No.R029OPU1702 allotted in favour of the complainants;

(2)       To refund the amount of Rs.55,92,636/- paid by the complainants along with interest at the same rate as the respondents charge for delayed payment as per the agreement from the date of filing of the present matter till realization of the said amount by the complainant;

(3)       To pay a sum to the tune of Rs.20 lacs as compensation to the complainants for the harassment, mental torture and agony faced by the complainants, due to the deficiencies in the services of the respondents.

(4)       That the respondents be directed to pay an amount of Rs.1 lac towards litigations charges incurred by the complainants.”

3.      The complaint has been resisted by the OP which has admitted the booking made by the complainants. It has, however, been alleged that only a sum of Rs.45,92,636/- has been paid by the complainants. It is also pleaded in the written version filed by the OP that in case of delay, the complainants are entitled only to agreed compensation of Rs.5 per sq.ft. per month of the super area in terms of clause 3 of the allotment letter.

4.      The first question which arises for consideration is as to how much the total payment made by the complainants to the OP. Though initially the plea taken in the written version is that only a sum of Rs.45,92,636/- was paid. It is admitted by the learned counsel for the OP that in fact a total sum of Rs.55,92,636/- has been paid. In fact, there is a typographical error in the table in given para 5 of the complaint where the amount at Sl.No.9 has been written as Rs.3,30,000/- whereas the correct amount is Rs.1330000/-. A perusal of the Receipt No.16834 dated 28.4.2014 issued by the OP shows that in fact the payment made was Rs.13,30,000/-. Therefore, I have no hesitation in holding that a total sum of Rs.55,92,636/- stands paid to the OP.

5.      As per the payment plan, which was a construction linked plan, the complainants had to pay Rs.1350709/- by 28.11.2012 and 27.12.2012. The aforesaid payment have been duly made to the OP. As far as 3^rd installment is concerned, it amounted to Rs.2701418/- and was payable on start of the 4^th floor, though the date of the instalment  was given as 22.7.2013 in the payment plan. There is no evidence or even averment of the aforesaid instalment having been demanded on or before 27.7.2013. There is no averment or evidence of the 4^th floor having started on or before 22.7.2013. The learned counsel for the complainant has drawn my attention to the letter dated 2.4.2014 whereby, a gross amount of Rs.5590635.68 was shown due from the complainants and after adjustment of Rs.3337231/- received till 3.4.2014, a demand of Rs.2253405/- was raised. The aforesaid amount was duly paid in the month of April 2014 itself as is evident from the receipts referred in para 5 of the complaint. Therefore, it cannot be said that there was a default in making payment in terms of the aforesaid letter dated 2.4.2014. At best the OP could, in case it was  to offer possession, have demanded contractual interests on the aforesaid amount of Rs.2253405/- from the date the aforesaid letter was delivered to the complainants till the date on which the payment was made.

6.      Admittedly, the 4^th and 5^th instalments have not even been demanded and there is no averment that the 20^th and 40^th floor construction has even started. Therefore, there is no default on the part of the complainant in making payment to the OP.

7.      It is an admitted positon that the construction of the flat allotted to the complainants is not complete. The learned counsel  for the complainants states that the complainants are ready to wait for three more months for possession of the flat booked by them. The learned counsel for the OP states that they are ready to provide an alternative ready to move in flat in the vicinity of this very project, the flat booked by the complainants cannot be provided to them as the construction is not complete. The aforesaid offer, however, is not acceptable to the complainants who want either possession of the flat booked by them or refund of the amount paid by them to the OP along with appropriate compensation. Considering the failure of the OP to perform its contractual obligation by offering possession  of the flat booked by the complainants, the complainants cannot be compelled to wait for an uncertain period till the OP is able to complete construction of the flat which it had booked by them. The complainants are, therefore, entitled to refund of the entire amount paid by them to the OP along with appropriate compensation.

8.      The next question would be as to what  should be the compensation to be awarded to the complainants. The learned counsel for the OP submits that in view of clause 3 of the allotment letter, only agreed compensation of Rs.5/- per sq.ft. per month of the super area should be awarded. I find myself unable to accept the said contention for two reasons. Firstly, as already held by this Commission in a number of decisions, the aforesaid clause would apply to the cases where the buyer takes possession of the allotted flat and not to the cases where the buyer seeks refund of the amount paid by him on account of the failure of the builder to deliver possession as per the agreement between the parties. Secondly, the aforesaid  clause has been held to be an unfair trade practice since this gives undue advantage to the builder over the buyer as the builder charges interest @ 24% p.a.,  in case of delay on the part of the flat buyer in making payment to it.

9.      The learned counsel for the complainants fairly concedes that the complaint does not contain an averment as regards the actual loss to the complainants on account of failure of the OP to deliver possession of the allotted flats. The complaint contains no averment as regards the prevailing market value of similar flats in a comparable locality. Therefore, it is not possible to ascertain the actual loss if any to the complainants in terms of the value of the flats booked by them. The complainants, in these circumstances, would be entitled only to the financial loss to be computed from the basis on the rates of interest prevailing at the relevant time. Considering all the facts and circumstances, including the rates of interest on the fixed deposits at the relevant time, the complainants, in my view, are entitled to compensation in the form of interest @ 10% p.a. from the date of each payment till the date on which the entire amount paid by them to the opposite party is refunded. The complaint is, therefore, disposed of with the following directions:-

1. The OP shall refund the entire amount of Rs.55,92,636/- to  the complainants alongwith compensation in the form of simple interest @ 10% per annum from the date of each payment till the date on which the entire amount in terms of this order including compensation in the form of interest is actually paid.

2. The OP shall pay a sum of Rs.10,000/- as cost of litigation to the complainants.

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