JUSTICE V.K.JAIN (ORAL)

1.      The Complainant who is Appellant in First Appeal No.2153/2018 booked a resident apartment with M/s. Omex Chandigarh Extension Developers Pvt. Ltd. which is Respondent in First Appeal No.2153/2018, and Appellant in First Appeal No.2221/2018.  The booking was made on 02.12.2011 by making an initial payment of Rs. Eight lakh.  An allotment letter was then issued to the Complainant on 23.11.2012.  One of terms of the allotment was minimum payment of 30 % of the basis sale price.  The basic sale price of the apartment about Rs.38 lakh.  The Complainant paid a sum of Rs.4,53,820/- on 11.11.2014.  Thus, 30 % of the basic sale price came to be paid only on that date. As per the terms of the allotment letter issued to the Complainant on 12.11.2014, the possession was to be delivered within a period of 15 months from its execution which could be extended by another six months.  Thus, the possession could be delivered by 12.08.2016.  The possession of the allotted flat was offered to the Complainant vide letter dated 09.03.2017.  The possession was offered in respect of the apartment on the upper ground floor of the building though the allotment made to the Complainant was for an apartment on the ground floor of the building. The Complainant then approached the concerned State Commission by way of Consumer Complaint seeking possession of the flat complete in all respect with compensation.

2.      The complaint was resisted by the builder, which admitted the allotment made to the Complainant as well as the payment received from her.  It was, inter alia, stated in the written version filed by the builder that the Complainant had been in defaulter in making payment but the possession was offered to her despite the default committed by her.  It was submitted that the Complainant had failed to come forward to take possession by making payment of the balance amount due from her.

3.      The possession of the flat was delivered to the Complainant during pendency of the Consumer Complaint. The State Commission vide impugned order dated 17.10.2018 directed as under:

20. For the reasons recorded above, all the three consumer complaints are partly accepted, with costs, in the following manner:-

Consumer Complaint no.787 of 2017. The opposite parties, jointly and severally are directed as under:-

1. To execute and get registered the sale deed, in respect of the unit, in question, in favour of the complainant, possession of which had already been delivered on 31.05.2018 during pendency of this complaint, within two months, from the date of receipt of a certified copy of this order, on receipt of amount, legally, due to be paid by her, after deducting/adjusting an amount of Rs.5 lacs, already paid by her, during pendency of the complaint, as referred to above.
2. To pay compensation, by way of interest @12% p.a., on the entire deposited amount, to the complainant, from 11.08.2016 till 08.04.2017 (one month after the date of offer of possession i.e. 09.03.2017) within two months, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount shall carry penal interest @15% p.a. instead of 12% p.a. from the date of default, till realization.
3. To pay compensation to the tune of Rs.1,00,000/- for delay in execution of the agreement for about three years, within two months from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing this complaint till realization.
4. To pay compensation, in the sum of Rs.1,50,000/-, on account of mental agony, physical harassment, caused to the complainant, deficiency in providing service and adopting unfair trade practice, within two months from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing this complaint till realization.
5. To pay cost of litigation, to the tune of Rs.35,000/-  to the complainant, within two months from the date of receipt of a certified copy of this order, failing which, the same shall also carry interest @12% p.a., from the date of filing this complaint till realization.

4.      Being aggrieved from the order passed by the State Commission both the parties are before this Commission by way of two cross appeals.

5.      The first submission of the Ld. Counsel for the Complainant is that the Complainant had booked an apartment on the ground floor of the proposed building but he was delivered possession of an apartment on the upper ground floor of the said building.  It has come in the written version of the builder that as per the rules of the Government stilt parking was required to be provided for residents of the building.  It is not in dispute that the floor on which an apartment has been delivered to the Complainant is the very first floor above the stilt parking. The floor immediately above the stilt parking is termed as upper ground floor whereas, the basement if any which is constructed below the stilt parking is termed as lower ground floor. If there is no stilt parking in the building, the building starts with the ground floor. Thus, the lowest habitable floor of the building is called ground floor if there is no stilt parking provided whereas, it is called upper ground floor if stilt parking is provided in the building.  Since the stilt parking was provided by the builders for the benefit of residents and inconformity with the requirement of the building rules, the builder could have delivered the possession only of the upper ground floor to the Complainant. That was duly done during pendency of the Consumer Complaint and the possession was accepted by the Complainant without any protest on the ground that the flat in question was an upper ground floor and not a ground floor flat.  Hence, I found no deficiency on the part of the builder in giving the possession of an upper ground floor instead of giving possession of a ground floor flat to the Complainant.

6.      Coming to the quantum of compensation, admittedly no evidence was led by the Complainant to prove the actual loss suffered by him on account of the delay in delivery of possession of the allotted flat to him. The possession having been delivered to him during pendency of the complaint the Complainant got the benefit of appreciation if any in the value of the property.

7.      In GDA Vs. Balbir Singh (2004) 5 SCC 65, the Hon'ble Supreme Court, inter alia, observed as under:

a)  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.

b)      Along with recompensing the loss the Commission/Forum may also compensate for harassment/injury, both mental and physical.

c)      That compensation cannot be uniform and can best be illustrated by considering cases where possession is being directed to be delivered and cases where only monies are directed to be returned. In cases where possession is being directed to be delivered the compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting.  But in cases where monies are being simply returned then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot.  He is being deprived of that flat/plot.  He has been deprived of the benefit of escalation of the price of that flat/plot.  Therefore, the compensation in such case would necessarily have to be higher.

In a recent decision, Fortune Infrastructure & Anr. vs. Trevor D'lima (2018) 5 SCC 442 the Hon'ble Supreme Court, referring to its decision in Balbir Singh (supra), inter alia, observed as under:

a)  It is now settled that where a party sustains loss by reason of a breach of contract, damages are to be granted so as to place the suffering party in the same position as if the contract had been performed.

8.      It is admitted before me that though PAPRA, 1995 (Punjab Apartment and Property Regulations Act, 1995) does apply to the subject property no interest rate for payment of compensation in case  of delayed possession is prescribed under the said Act or rules framed there under.

9.      Considering all the facts and circumstance of the case, the builder in my opinion should pay compensation in the form of simple interest @ 8% p.a. to the Complainant w.e.f. 12.08.2016 to 08.04.2017 on the entire payment which the Complainant had paid on or before 12.08.2016.

10.    It transpired during the course of arguments that though the Complainant had made payment of Rs.8 lakh to the builder on 02.12.2011, the allotment letter came to be issued to him on 12.11.2014. It is submitted by the Ld. Counsel for the builder that the issuance of allotment letter -cum- agreement was delayed because the Complainant did not pay 30 % of the basic sale price of the apartment immediately after the allotment letter dated 23.11.2012 was issued to him.  However, the fact remain that there is a delay of about one year, even in issuance of the allotment letter dated 23.11.2012, the initial payment having been received by the builder on 02.12.2011.

11.    Considering all the facts and circumstance of the case I am of the view that in addition to the compensation for the delay in offering possession the builder should also pay a sum of rupees one lakh as compensation to the Complainant for the delay in issuance of the former allotment letter dated 02.12.2011.

12.    For the reasons stated above, the appeals are disposed of with the following directions:

1. The builder shall pay compensation in the form of simple interest @ 8% p.a. to the Complainant for the 12.08.2016 to 09.03.2017 on the entire amount which the Complainant had paid on or before 12.08.2016.

2. The builder shall pay a sum of rupees one lakh as compensation to the Complainant for delay in issuance of the allotment letter of 02.11.2011.

3. The builder shall pay sum of Rs.25,000/- as the cost of litigation charges.

4. The Complainant shall be entitlement to adjustment of Rs.5 lakh which she had paid during pendency of the complaint.

5. The sale deed in favour of the Complainant shall be executed within three month from today.

13.    The payment deposited by the builder with this Commission shall be refunded along with interest which may have accrued on that amount, after the builder complies with this order.