1.   This appeal has been filed under section 19 of The Consumer Protection Act, 1986 in challenge to the Order dated 04.10.2018 of the State Commission in complaint no. 109 of 2018.

2.   Heard the learned counsel for the appellants (the ‘builder co.’) and the learned counsel for the respondent (the ‘complainant’).

Perused the record, including inter alia the State Commission’s impugned Order dated 04.10.2018 and the memorandum of appeal.

3.   The matter pertains to a builder-buyer dispute.

To recapitulate, proved facts of the case are that delivery of possession of the subject plot to the complainant was not made by the builder co. within the assured period, or even within the extended grace period, or even still within a reasonable period thence.

Vide paras 18 and 19 of its impugned Order the State Commission had made the following award:

18. In view of our above discussion this complaint is allowed and the following directions are issued to the opposite parties:-

1(i) to deliver vacant physical possession of the plot in question, complete in all respects to the complainant along with all the promised facilities and completion and occupation certificate within a period of three months, from the date of receipt of certified copy of this order;

1(ii) to execute the sale/conveyance deed and get the same registered in the name of the complainant after handing over the actual physical possession of the plot in question as per direction(i) above within a period of three months thereafter and the expenses for the same shall be borne by the complainant;

1(iii) to pay interest on the deposited amount of Rs. 48,75,672.89P at the rate of 12% per annum with effect from 1.9.2014 till the date of actual delivery of possession of the plot in question; and

1(iv) to pay Rs. 60,000/- as compensation, for mental tension and harassment suffered by the complainant including litigation costs.

        In case the opposite parties fail to deliver the possession within three months, as ordered above then in the alternative

2(i) to refund the amount of Rs. 48,75,672.89P along with interest at the rate of 12% per annum from the different dates of deposits of different amounts till the date of actual payment; and

2(ii) to pay Rs. 60,000/-, as compensation, on account of mental tension and harassment suffered by the complainant and towards the litigation expenses.

19. The opposite parties shall comply with directions at 2(i) and 2(ii) within a period of one month after the lapse of the period of three months for delivery of possession as per direction 1(i) above, failing which it shall be liable to pay interest at the rate of 12% per annum on the amount of Rs. 60,000/- from the date of this Order till the date of compliance.

The builder co. had preferred appeal before this Commission.

On 15.06.2022 a co-ordinate bench of this Commission had passed the following Order:

During the course of arguments, learned counsel for the Appellants seeks time and permission to place on record certain notifications and PAPRA Act. Allowed.

During the course of arguments, it is also submitted by the Appellants that if the respondent desires, the Appellants are still ready to hand over the possession of the subject property to the respondent, subject to payment of the balance amount, stamp duty and miscellaneous charges without prejudice to their rights and contentions in the present Appeal.

Learned counsel for the respondent on instructions of the respondent / complainant who is present in the Court submits that respondent / complainant is ready to pay the balance amount and also the stamp duty and miscellaneous charges within two weeks and ready to take the possession without prejudice to his rights and contentions in the present Appeal.

In view of the submission of the parties, respondent / complainant is directed to pay the balance sum of Rs.5,21,623.75P alongwith stamp duty and other miscellaneous charges to the Appellants within four weeks. On receipt of this money, stamp duty charges and other miscellaneous charges, Appellants shall hand over the possession and execute the Conveyance Deed within four weeks thereafter. These directions are without prejudice to their rights and contentions in this Appeal.

Matter is now listed for arguments on remaining issues. Order of this Commission dated 29.04.2019 stands modified in these terms and stay shall continue remaining the other directions.

Matter be again listed for final arguments.

Registry will list the matter for final arguments with due intimation to the parties.

4.   Learned counsel for both sides submit that further to the above-quoted Order dated 15.06.2022 of this Commission delivery of possession of the subject plot has been made by the builder co. to the complainant on 01.08.2022 and the sale-deed has also been executed and registered on 01.08.2022 itself. The learned counsel submit that as such the only question which survives in this appeal is apropos the quantum of compensation for the delay in making delivery of possession of the subject plot.

5.   The State Commission has awarded compensation by way of interest at the rate of 12% per annum on the deposited amount w.e.f. 01.09.2014 (i.e. the date on which the extended grace period of six months for offering possession had expired) till the date of actual delivery of possession along with Rs. 60,000/- as lumpsum for the mental tension and harassment inclusive of the cost of litigation.

6.   Learned counsel for the builder co. submits that the rate of interest of 12% per annum on the deposited amount is on the higher side and in his opinion a rate of 6% per annum would be reasonable and fair.

Learned counsel also submits that the period for which the compensation has been awarded ought to be curtailed till 26.07.2017 i.e. the date on which the builder co. had earlier made an offer of possession to the complainant and which the complainant had not availed of. Learned counsel submits that a partial completion certificate had been obtained on 28.04.2017 from the Greater Mohali Area Development Authority (GMADA) and the offer of possession had been made subsequent thereto.

7.   In rebuttal learned counsel for the complainant submits that the rate of interest of 12% per annum is not at all on the higher side and is by all means reasonable and fair.

Learned counsel also submits that when the offer of possession was made by the builder co. on 26.07.2017 no infrastructural facilities like sewerage, electricity, water and roads were available on the ground and all the requisite amenities and conveniences were not in place. In this regard a letter dated 08.08.2017 had been sent by the complainant to the builder co. after he had received the offer of 26.07.2017. Learned counsel submits that the certificate dated 28.04.2017 was only of partial completion and it had a number of conditions attached therewith. The onus was on the builder co. to show that the conditions, no. (i) to no. (xxiv), as mentioned in the partial completion certificate had been duly and satisfactorily fulfilled. However the builder co. has not discharged its said onus. It has not produced any worthwhile convincing evidence before the State Commission, or even before this Commission, to show that the conditions and specifically the conditions which related to infrastructural facilities had been duly and satisfactorily fulfilled.

8.   It is seen that the State Commission in its impugned Order has inter alia observed that:

The offer of possession was made only on 26.7.2017, vide letter Ex. C-7 and along with that Statement of Account (annexure-A) was also sent demanding a sum of Rs. 5,21,623.75P upto that date. This offer has also been issued after the delay of more than three years frorm the committed date of delivery of developed plot to the complainant. It certainly amounts to deficiency in service and adoption of unfair trade practice on the part of the opposite parties. Therefore, it is held that the complainant is entitled to the delivery of possession of the fully developed plot along with completion and occupation certificate as per Section 14 of the Punjab Apartment and Property Act, 1995 (in short, ‘PAPRA’).

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There is not an iota of evidence led by the opposite parties to rebut the averments made in the complaint by way of authenticated documentary evidence. The complainant has booked the plot with the opposite parties with the hope to get the possession of the same in a reasonable time. The circumstances clearly show that the opposite parties made false statement of facts about the goods and services i.e. allotment of land and development thereof in a stipulated period and ultimate delivery of possession. The act and conduct of the opposite parties is a clear case of misrepresentation and deception, which resulted in the injury and loss of opportunity to the complainant. Had the complainant not invested his money with the opposite parties, he would have invested the same elsewhere. There is escalation in the price of construction also. The complainant has suffered loss, as discussed above. From the facts and evidence brought on the record of the complaint, it is clearly made out that the opposite parties i.e. builder knew from the very beginning that they had not complied with the provisions of the PAPRA and the Rules framed thereunder and would not be able to develop the plot / project in question and deliver the possession within the stipulated period, thus by misrepresenting induced the complainant to purchase the plot, due to which the complainant has suffered mental agony and harassment. It is the settled principle of law that compensation should be commensurate with the loss suffered and it should be just, fair and reasonable and not arbitrary. The amount paid by the complainant is a deposit held by the opposite parties in trust of complainant and it should be used for the purpose of developing the project, as mentioned in Section 9 of PAPRA. The builder is bound to compensate for the loss and injury suffered by the complainant for failure to deliver the possession, so has been held in catena of judgments by the Hon’ble Supreme Court and the Hon’ble National Commission. To get the relief, the complainant has to wage a long drawn and tedious legal battle. As such, the complainant was at loss of opportunities. In such circumstances, ever increasing cost of construction and the damages for loss of opportunities caused which resulted in injury to the complainant, are also required to be taken into consideration for awarding compensation.

9.   In so far as the rate of interest on the deposited amount is concerned, in the overall facts and circumstances of the case, considering the patent deficiency in service and manifest unfair trade practice on the part of the builder co. as has been determined by the State Commission, considering the troubles and travails the complainant has been put to, the rate of 12% per annum awarded by the State Commission appears to be just and equitable, commensurate with the loss and injury suffered by the complainant.

It may be added that what is to be seen in such matters is as to what should meet the scales of equity and how to delineate the peremeters of conscionable justice. Such questions are principally within the realm of judicial or quasi-judicial discretion of the concerned forum which moulds the cast of the award in the exercise of its original jurisdiction, though no doubt it must exercise its discretion judiciously and reasonably. There can be no straight-jacketed formula that may go towards universal application in this regard. It is always possible in many such matters that the appellate or the revisional forum may tend to have a slightly deviating view about the rate of interest but this in itself alone would not constitute to be a good ground to interfere in the judicious discretion exercised by the lower forum. In such matters unnecessary interference in the discretion already exercised by the lower forum by substituting one’s own discretion in its stead should be avoided unless it is found evident that the exercise of discretion by the forum below has not been judiciously undertaken or where elements of capricious or whimsical exercise or of patent arbitrariness or unreasonableness are perceptible or where a visible lack of application of mind is apparent, and in such situations unarguably there should be no hesitation to interfere and to pass the corrective orders as required. Similarly where elements of absurdity are discernible in the award there has to be no hesitation to set the same right. But just because a different view is also possible, this alone is not by itself a persuasive ground to substitute the award passed by the lower forum by an alternative opinion. But in the case at hand here no such anomaly or infirmity as may go to vitiate the award or as may necessitate interference is perceptible.

In so far as the period for which the interest ought to be given is concerned, the State Commission appears to have correctly and fairly decided that the same shall be upto the date of actual delivery of possession of the subject plot. Regarding the partial completion certificate on which the learned counsel for the builder co. is banking his arguments, it is nowhere on record that the conditions imposed therein, specifically the conditions relating to system of rain water harvesting, internal services, roads, parks, disposal of sewerage and storm water, provision for drinking water supply, disposal of sewage & solid waste management, etc., had been duly and satisfactorily fulfilled by the builder co. There is not an iota of evidence that the basic infrastructural facilities were actually in place when the offer of allotment was made, nor is there any shred of evidence to show that all the requisite amenities and conveniences were fully in place. In such facts and circumstances banking its case on the sole factum that a conditional partial completion certificate had been obtained appears to be a ruse, not having any real worth. Drawing a surmise that all, repeat all, infrastructural facilities and amenities and conveniences were in place duly and satisfactorily just because the conditional partial certificate had been obtained would be erroneous and fallaciously presumptuous. The builder co. did not furnish convincing evidence in this regard before the State Commission at all, or even before this Commission. Based on the material on record it is not at all possible to agree that the subject plot was fully developed when the offer of possession was made on 26.07.2017.

Admittedly the final completion certificate had not been obtained. A desultory treatise on the respective and relative objectives and significances of a ‘conditional partial completion certificate’ and a ‘completion certificate’ is neither called for nor is being made here as it is not necessary in the present context and circumstances. Suffice is to say that in the light of the facts and evidence on record the contention made on behalf of the builder co. that just because the conditional partial completion certificate had been obtained all infrastructural facilities and amenities and conveniences ought to be blindly deemed to be in place is erroneous and misconceived and ambitiously presumptuous and rates to be dismissed outright.

10.     As such there appears to be no good reason to interfere with the compensation awarded by the State Commission.

11.     The appeal being bereft of substance stands dismissed.

The amount if any deposited by the builder co. with the State Commission in compliance of this Commission’s Order dated 29.04.2019 along with interest if any accrued thereon shall be forthwith released by the State Commission to the complainant as per the due procedure. The balance awarded amount shall be made good by the builder co. within four weeks from today, failing which the State Commission shall undertake execution, for ‘enforcement’ and for ‘penalty’, as per the law.

12.     The Registry is requested to send a copy each of this Order to the parties in the appeal and to their learned counsel as well as to the State Commission immediately. The stenographer is also requested to upload this Order on the website of this Commission immediately.