Delhi

StateCommission

FA/768/2013

DEVENDER KUMAR GOEL & ANR. - Complainant(s)

Versus

PARSVNATH DEV. LTD. - Opp.Party(s)

29 Sep 2016

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

Date of Decision: 29.09.2016

 

First Appeal- 768/2013

 

(Arising out of the order dated 02.05.2013 passed in Complainant Case No. 849/11 by the District Consumer Disputes Redressal Forum (East), Saini Enclaves, Delhi)

1. Devendra Kumar Goel

S/o Shri Suresh Kumar Goel

 

2. Smt. Manisha Goel

W/o Shri Devendra Kumar Goel

 

Both R/o H.No.78, Skynet Enclave.

Lohgarh, Patiala Road,

1.  
2.  

 

Also at:

 

KC-102/2, Old Kavi Nagar,

1.  

….Appellants

Versus

1.   M/s. Parsvnath Development Ltd.,

Parsvnath Metro Tower,

1^st Floor, Near Shahdara Metro Station,

Shahdara, Delhi-110032.

 

2.   Shri Pradeep Jain,

Chairman & Managing Director,

Parsvnath Developers Ltd.,

Parsvnath Metro Tower,

1^st Floor, Near Shahdara Metro Station,

Shahdara, Delhi-110032.

 

 

3.   Basundhara Properties Pvt. Ltd.,

Parsvnath Metro Tower,

1^st Floor, Near Shahdara Metro Station,

Shahdara, Delhi-110032.

 

       

      ….Respondents

CORAM

Justice Veena Birbal, President

Salma Noor, Member

 

1.     Whether reporters of local newspaper be allowed to see the judgment?

2.      To be referred to the reporter or not?

 

 

Justice Veena Birbal, President

 

1. Present appeal is filed under Section 15 of the Consumer Protection Act, 1986 (in short, “the Act”) against order dated 2.5.13 passed by the Consumer Disputes Redressal Forum (East), Saini Enclave, Delhi (in short, “the District Forum”) in CC No.849/11 whereby the aforesaid complaint has been allowed and the respondents/OPs have been directed as under:

“The OP is directed to refund to the complainant the entire amount deposited by the complainant with the OP together with @ 12% interest thereon from the date of deposit of that amount and till it is finally paid.  We further award a compensation of Rs.50,000/- to the complainant on account of mental pain, agony and harassment suffered by the complainant’s.  This amount shall also include the cost of litigation.”

 

2. The only grievance of the appellants/complainants is that the grant of 12% p.a. interest on refund amount is on lower side and the Ld. District Forum ought to have awarded higher rate of interest on the amount deposited by the appellants/complainants.
3. A complaint case was filed by the appellants herein i.e. complainants before the District Forum alleging therein that on 13.7.06, they had purchased a plot No.33 in the King City Rajpura, Punjab measuring 356 sq. yards on the basis of price list dated 10.10.06 and Rs.4,00,500/- was paid to the respondents/OPs.  It was alleged that from 9.10.06 to 18.11.06, the appellants/complainants wrote letters to the respondent/OP for providing an agreement to sell/allotment letter to them.  Finally the allotment letter was given and the demands were raised which were complied by the appellants/complainants.  In all the appellants/complainants had paid Rs.9,29,160/- to respondent/OP.  The possession was due on 31.3.08 but the same was not handed over.  On 29.4.08, further amount was deposited with respondents/OPs.  On 18.4.07, a plot Buyer Agreement was executed on the basis of price list dated 10.10.06.  Despite that the possession was not delivered.  Ultimately the appellants/complainants had filed a complaint with the Chandigarh Forum which was rejected on the ground of jurisdiction.  Thereafter the complaint was filed before the Ld. District Forum at Delhi.  The complainant had made a prayer for the award of compensation of Rs. 5 lacs for causing mental harassment and agony.  Rs.30,000/- for grant of litigation expenses and direction not to press for demand of Rs.50,000/- by the respondent/OP in the name of club charges and for not delaying the possession.  Alternative prayer was made for the refund of amount with interest.
4. The respondent/OP had contested the aforesaid complaint by filing written version wherein execution of Buyer Agreement with the appellants/complainants was admitted.  The amount deposited by appellants/complainants with respondent/OP was also admitted.  It was alleged that the offer letter was sent to the appellants/complainants on 31.3.08 subject to clearance of all outstanding dues relating to the possession.  It was alleged that the appellants/complainants failed to make the payment, as such there was no deficiency on its part.  It was further alleged that the amount claimed from the appellants/complainants was as per the Plot Buyer Agreement.  A rebate of 7% was also allowed to the appellants/complainants.  It was also alleged that the club charges were to be paid additionally apart from the sale price.
5. The appellant/complainant did not file rejoinder to the written statement of respondent/OP.  The appellants/complainants did not file evidence before the Ld. District Forum, as such opportunity was closed.  The respondent/OP had filed evidence in the form of affidavit of Shri Ajay Kashyap, AGM(Commercial).  After hearing both the parties, the Ld. District Forum held that the respondents/OPs had offered the possession without developing facilities like commercial complex, schools and club,  as such there was deficiency in service on the part of respondents/OPs.  It was also held that even the demand of club

charges was illegal.  Accordingly the Ld. District Forum held deficiency in service and unfair trade practice on the part of the respondent/OP and allowed the complaint and directed the respondent/OP to refund the entire amount with interest and also granted compensation as has been stated above.

6. As noted above, the present appeal is filed challenging the rate of interest awarded by the Ld. District Forum on the refund amount.
7. The appellant No.1 and 2 are husband and wife.  Appellant No.1 has argued in person for himself as well as for appellant No.2. It is contended that appellants/complainants had booked the plot in the year 2006.  It is submitted that they are living in a rented accommodation and paying the rent.  The plot was booked with a hope to have their own house but all their hopes had fallen flat and with the groom in the property price, appellants/complainants are not in a position to purchase the property.  In these circumstances, Ld. District Forum ought to have granted interest @ 18% p.a. on the refund amount.  In support of the contention, the appellants have relied upon the judgement of Hon’ble Supreme Court in Ghaziabad Development Authority vs Balbir Singh, III (2004) SLT 161=II (2004) CPJ 12 (SC)=(2004) 5 SCC 65.  Further reliance is made upon the judgement of National Commission in Subhash Chander Mahajan vs Parsvnath Developers Ltd. in CC/144/2011 decided on 5.5.14. 
8. Ld. Counsel for the respondents/OPs has contended that the judgements relied upon by the appellants/complainants are not applicable to the facts and circumstances of the present case.  It is contended that the respondents/OPs had offered the possession of the plot but the same was denied.  It is further contended that nothing is stated in the complaint about the alleged injury or loss to the appellants/complainants.  It is further contended that appropriate rate of interest is awarded by the Ld. District Forum and the appeal is liable to be dismissed.     
9. We have heard the parties and perused the material on record. 
10. The finding of the Ld. District Forum that there was deficiency in service on the part of appellants/complainant has become final as the same is not challenged by respondents/OPs.  Ld. Counsel   has also stated that order of Ld. District Forum has also been complied with by respondents/OPs.
11. In Ghaziabad Development Authority vs Balbir Singh, III (2004) SLT 161=II (2004) CPJ 12 (SC)=(2004) 5 SCC 65, the question for consideration before the Hon’ble Supreme Court was whether grant of interest @ 18% by the Consumer Fora in all cases under consideration was justifiable or not.  While dealing with the same, the Supreme Court has held as under:

“8. However, the power and duty to award compensation does not mean that irrespective of facts of the case compensation can be awarded in all matters at a uniform rate of 18% per annum.  As seen above, what is being awarded is compensation i.e. a recompense for the loss or injury.  It therefore necessarily has to be based on a finding of loss or injury and has to correlate with the amount of loss or injury.  Thus the Forum or the Commission must determine that there has been deficiency in service and/or misfeasance in public office which has resulted in loss or injury.  No hard-and-fast rule can be laid down, however, a few examples would be where an allotment is made, price is received/paid but possession is not given within the period set out in the brochure.  The Commission/Forum would then need to determine the loss.  Loss could be determined on basis of loss of rent which could have been earned if possession was given and the premises let out or if the consumer has had to stay in rented premises then on basis of rent actually paid by him.  Along with recompensing the loss the Commission/Forum may also compensate for harassment/injury, both mental and physical.  Similarly, compensation can be given if after allotment is made there has been cancellation of scheme without any justifiable cause.”

 

12. Reading the aforesaid judgement, it cannot be said that irrespective of facts of each case, the Forum must grant interest at a uniform rate of 18% per annum where the refund of deposit is ordered.  The grant of compensation is based on a finding of loss or injury and has to correlate with the amount of loss or injury. Nothing has been alleged about loss or injury suffered by appellants/complainants in the complaint filed before Ld. District Forum.  For the first time, the appellants/complainants have alleged in the appeal that they are living in a rented accommodation.  In the complaint case, no such allegations are there.  Only in the prayer clause, prayer is made for the refund of rent paid without stating anything in this regard in the complaint case.  The address of alleged rental property was also not given.  The same is also not stated in the appeal.  No evidence by way of affidavit was also filed by appellants/complainants before the Ld. District Forum.  The judgement of Subhash Chander Mahajan (supra) relied upon by appellants/complainants is also not applicable to the facts of the present case.  The Ld. District Forum has considered the totality of facts and circumstances of the case and thereafter has ordered for refund of entire amount deposited by the appellants/complainants with the respondents/OPs with interest @ 12% from the date of deposit till it is finally paid. A compensation of Rs.50,000/- is also awarded to appellants/complainants on account of harassment suffered by them. The rate of interest awarded is just and reasonable.
13. In view of above discussion, we find no reason for awarding higher rate of interest as is contended by appellants/complainants. There is no merit in the appeal.  Accordingly the same stands dismissed.
14. A copy of this order as per the statutory requirement be forwarded to the parties free of charge and also to the concerned District Forum.  The record of the District Forum be also sent back forthwith.  Thereafter, the file be consigned to Record Room.

 (Justice Veena Birbal)

President

 

 

(Salma Noor)

Member