JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)

          The complainant who is appellant in FA/265/2013 and respondent in FA/313/2013 booked a residential villa with the opposite party in November, 2005.  The sale consideration for the said villa was agreed to Rs.32.50 lacs.  The payment stipulated in the application form envisaged payment of Rs.6.00 lacs at the time of application, Rs. 3.50 lacs on allotment, and Rs.3.50 lacs on sanction of plans / start of the construction work.  The balance was payable as under:

Further payment plan

          The complainant has made a total payment of Rs.14,28,500/- to the opposite party, in respect of the villa allotted to him, the number of the said Villa being L 612A, as was confirmed by the developer vide email dated 06.5.2008.  Despite the complainant having made the aforesaid payment of Rs.14,28,500/-, the possession of the villa was not offered to him.  He therefore approached the concerned State Commission by way of a consumer complaint seeking possession of the allotted villa with compensation etc.

2.      The complaint was resisted by the developer which is appellant in FA/313/2013 and respondent in FA/265/2013.  The allotment made to the complainant was admitted in the written version filed by the developer.  It was however, pointed out that a cheque of Rs.3,50,000/- which the complainant had issued on 12.8.2006 had never hit the account of the developer.  It was also stated in the reply that when a sum of Rs.7,00,000/- was demanded from the complainant, he did not make the said payment within the stipulated time period, the payment by him being late.  It was however, not disputed in the written version filed by the developer that the possession of the villa had not been offered to the complainant.

3.      The State Commission vide order dated 11.2.2013 directed the developer to refund the amount of Rs.11,78,500/- to the complainant, along with interest @ 18% per annum form the date of deposit till realization.  Being aggrieved from the said order, both the parties are before this Commission by way of these two separate appeals.

4.      As noted earlier, the prayer made in the consumer complaint was for delivery of possession of the allotted villa to the complainant.  The same is the prayer made in the appeal filed by the complainant against the order of the State Commission.  Therefore, it is evident that the complainant wanted possession of the allotted villa and not refund of the amount paid by him to the developer even with interest.  It is an admitted position that the villa allotted to the complainant has not been constructed by the developer.  It is also not in dispute that no alternative villa was ever allotted to the complainant, despite the developer having not undertaken construction of the villa that had been allotted to the complainant.  It is also not in dispute that in its written version filed before the State Commission, the developer did not offer any alternative villa to the complainant.  Even in the appeal preferred before this Commission, the developer has not offered an alternative villa to the complainant.

5.      When this matter came up on the last date of hearing, the learned counsel for the developer wanted to offer an alternative villa to the complainant.  Two villas, occupancy certificate of which is stated to have already been obtained by the developer were offered to the complainant.  The said alternative villas however, are not acceptable to the complainant, whose counsel states that the alternative villas are located in different sector which has not at all been developed.  The crux of the matter is that the alternative villas offered by the developer are not acceptable to the complainant. 

6.      In these circumstances, when the villa allotted to the complainant has not been constructed at all and the alternative villas which the developer offered to the complainant are not acceptable to him, the only alternative left is to direct refund of the amount, which the complainant had paid to the developer, along with appropriate compensation.

7.      Though, the State Commission awarded interest @ 18% per annum, no evidence admittedly was led by the complainant before the State Commission to prove the actual loss suffered by him on account of the developer having failed to give possession of the allotted villa to him.  The compensation to which the complainant is entitled must necessarily commensurate with the loss shown to have been suffered by him.  In the absence of evidence to prove the actual loss, which he suffered on account of the possession of the allotted villa having not been offered to him, the complainant, in my view, was entitled to compensation for the financial loss suffered by him on account of Rs.14,28,500/- having been utilized by the developer.  Of course, he is also entitled to some compensation for the mental agony and harassment suffered by him on the hands of the developer.  Moreover, the Commission cannot be oblivious to the facts that the two alternative villas were actually offered to the complainant though the same are not acceptable to him.  Considering all the facts and circumstances of the case, including the interest rates prevailing at the relevant time when the payment was made by the complainant to the developer, I am of the considered view that all-inclusive compensation in the form of simple interest @ 12% per annum from the date of each payment till the date of refund would serve the interest of justice in the facts and circumstances as discussed hereinabove.

8.      The appeals are disposed of with the following directions:

(i)      The appellant in FA/313/2013, which is also the respondent in FA/265/2013 shall refund a sum of Rs.14,28,500/- to the complainant along with an all-inclusive compensation in the form of simple interest @ 12% per annum from the date of each payment till the date of refund.

(ii)      The appellant in FA/313/2013 shall also pay a sum of Rs.25,000/- as the cost of litigation to the complainant.

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