For the Appellants                        Mr Rishab Sancheti, Ms Pratiksha Sharma, Mr Ankit Acharya and Ms Ritua Chaudhary,  Advocates

For Respondent no.1                    Mr Kanak Bose, Advocate

For other Respondents 2 to 12       Deleted on 05.02.2021

ORDER

1.          This appeal under section 19 of the Consumer Protection Act, 1986 (in short, ‘the Act’) assails the order dated 29.01.2019 in Complaint no. 221 of 2016 of the West Bengal State Consumer Redressal Commission, Kolkata (in short, ‘the State Commission’) seeking enhancement in the compensation awarded by the State Commission to her. Appellant is seeking possession of the flat in question along with litigation cost in an existing building which was taken up for re-development by respondent no.1 (Developer) by way of an agreement dated 29.06.2001 with respondent nos.2 to 12 (Landowners, deleted on 05.02.2021). Appellant had filed Complaint no. 221 of 2016 with the following prayer to:

1. Order directing the opposite parties to complete the construction work of the building and to complete the flats with all modern facilities and amenities within three months or within such reasonable period as may be deemed fit and proper;
2. Order directing the opposite parties to execute and register necessary conveyance deed with respect to transfer of title of the two west/ road facing flats being flat no. D covering built up area of 775 sq ft and 172 sq ft of super built up area totaling 947 sq ft and another flat being flat no. E, covering built up area of 790 sq ft and 175 sq ft of super built up area totally 965 sq ft on the second floor along with two covered car parking space in the building to be constructed on premises no. 175 A ad 175B A J C Bose Road (formerly known as Lower Circular Road) Police Station Beniapukar, Kolkata 700 015 in favour of complainant;
3. Order directing the opposite party no.1 to pay a sum of Rs.20,000/- per month as liquidated damage and penalty calculated from the date of execution of supplementary agreement dated 02.04.2005 together interest at the rate 18% per month till the flat and car parking space is handed over to the complainant or such liquidated damages and penalty as may be deemed fit and proper;
4. Order directing the opposite parties to supply the sanctioned plan and the completion certificate of the building duly obtained from the concerned authority;
5. Order directing the opposite parties to pay compensation in favour of the complainants for a sum of Rs.15,00,000/- towards suffering of mental agony, harassment, suffering of humiliation, damages and loss;
6. Order directing the opposite party to pay litigation cost in favour of the complainants which is assessed @ Rs.50,000/- approx.,; and
7. And/ or pass such other or further order/ orders relief/ relieves as this Hon’ble Commission may deem fit and proper.

2.     On 11.07.2001 the appellant had agreed to surrender 200 sq ft in lieu of two flats with two car parking through an agreement for sale dated 11.07.2001 in respect of the building to be constructed at 175 A and 175 B, A J C Bose Road P S Beniapur, Kolkata 700014. Two flats, no. D & E covering building of 775 sq ft and 172 sq ft (947 sq ft super built) and 790 sq ft and 175 sq ft, total 965 sq ft on the second floor with two covered car parks were agreed upon and an amount of Rs.20 lakh was paid for the construction. The schedule of completion was for 36 month expiring on 11.07.2004. Another agreement for Rs.10 lakh for extra fittings, fixtures and furniture was also agreed between the parties on 11.07.2001. As the developer respondent no.1 was unable to develop the construction as per the Schedule indicated, on 02.04.2005 a Supplementary Agreement extending the delivery of the flat by 18 months, i.e., by October 2006 was signed with the provision for payment of Rs.20,000/- per month to the appellant in case of further delay in handing over the possession. However, despite follow up by the appellant, possession was not handed over. On 20.10.2009 the respondent no.1 developer issued a letter agreeing to pay Rs.42 lakh as liquidated damages in case the delivery was not handed over by December 2009 since this Supplementary Agreement was also not complied with. The appellant issued a Legal Notice on 18.01.2006 seeking compensation after completion of the construction work along with Rs.20,000/- per month towards liquidated damages. Thereafter on 13.05.2016 the above consumer complaint was filed.

3.     The State Commission decided the matter vide impugned order dated 29.01.2019 directing refund of the principal amount of Rs.20 lakh along with 9% simple interest from the date of the order till realization within 30 days with Rs.1.00 lakh compensation for mental agony and Rs.10,000/- as litigation cost. This order is impugned before us with the prayer to:

1. Allow the present appeal an set aside that part of the impugned order dated 29.01.209 passed by the State Commission, West Bengal in CC no. 221 of 2016 whereby the Learned Commission has directed refund of Rs.20,00,000/- with 9% simple interest within 30 days from the date of the order till its realization;
2. Direct the respondents builder to give possession of the fully constructed flats in terms of the agreements dated 29.06.2001 and 11.07.2001; agreement to sale dated 11.07.2001 and supplementary agreement dated 02.04.2005 entered into between the parties; and
3. Pass an order directing the respondents to execute and register necessary conveyance deed with respect to transfer of title of the two west/ road facing flats being flat no. D covering built up area of 775 sq ft and 172 sq ft of super built up area totaling 947 sq ft and another flat being flat no. E covering built up area of 790 sq ft and 175 sq ft of super built up area totaling 965 sq ft on the second floor along with two covered car parking space in the building to be constructed on premises no. 175 A and 175 B, AJC Bose Road (formerly known as Lower Circular Road) PS Beniapukar, Kolkata 700014 in favour of appellant;
4. Pass an order directing the respondents to supply the sanctioned plan and the completion certificate of the building duly obtained from the concerned authority;
5. Enhance the compensation in terms of the agreements dated 29.06.2001 and 11.07.2001, agreement to sale dated 11.07.2001 supplementary agreement dated 02.04.2005 entered into between the parties and admission made by the respondents in his letter dated 22.10.2009 along with interest in terms of the same;
6. Pass an order directing the respondents to pay litigation cost in favour of the complainants which his assessed @ Rs.75,000/- approx.; and
7. Pass any other or further orders/ directions which this Hon’ble Commission deems fit, proper and expedite in favour of the appellant and in the interest of justice.

4.     I have heard the learned counsel for both the parties and have carefully considered the material on record.

5.     The appellant’s case is that the she is entitled to compensation in terms of the agreement and that the State Commission has failed to appreciate that compensation for delay and harassment should be commensurate with the harassment suffered over a period of time which in the present case was over 15 years. Therefore, it was argued that the impugned order dated 29.01.2019 had failed to appreciate the contention of the appellant since the agreement was executed in 2001 and the complaint file before the State Commission 2016. According to the appellant she was entitled to compensation for deficiency in service by the respondent builder with effect from 11.07.2001 quantified at Rs.21,25,000/- and, as per the Supplementary Agreement dated 02.04.2005, for compensation @ Rs.20,000/- per month until the date of possession which had not been offered till date. In addition, simple interest @ 9% per annum was also claimed by her from 2001 to 2002 for Rs.21,25,000/-. The total amount including the liquidated damages of Rs.40,16,250/-. According to the appellant the amount was Rs.99,81,250/- inclusive of Rs.38,40,000/- as per the Supplementary Agreement dated 02.04.2005.

6.     Reliance was placed by the appellant on the following judgments:

(a)    Wg Cdr Arifur Rahman Khan and Aleya Sultana and Ors., vs DLF Southern Homes Pvt. Ltd., and Ors., (2020) 16 SCC 512 regarding failure to keep up the commitment of non-delivery of flats which is duly admitted.

 (b)   Fortune Infrastructure vs Trevor D Lima (2018) 5 SCC 442 that a person cannot be made to wait indefinitely for possession

Bangalore Development Authority vs Syndicate Bank – (207) 6 SCC 711

(c )   DLF Home Developers Ltd., vs Capital Green Flat Buyers Association (2021) 5 SCC 537 a builder cannot merely enter into an agreement and not fufill the terms

Laxmi Engineering Works vs PSG Industrial Institute (1995) 3 SCC 5835

Pioneer Urban Land and Infrastructure Ltd., vs Govindan Raghavan (2019) 5 SCC 725  

Ireo Grace Realtech Pvt Ltd., vs Abhishek Khanna and Anr. (2021) 3 SCC 241

(d )   Kolkata West International City Pvt., Ltd., vs Devasis Rudra (2020) 18 SCC 613 that amount of compensation granted should commensurate for delay and harassment

(e )   Meerut Development Authority vs Mukesh Kumar Gupta SLP (Civil) …./ 2012 CC 8481 of 2012

Shri Satish Kumar Pandey and Anr Vs M/s Unitech Ltd., - CC no.427 of 2014 that in view of delay, it was a continuous cause of action

        Admission is the best evidence

(f )    Narayan Bhagwantrao Gosavi Balajiwale vs Gopal Vinayak Gosavi and Ors., 1959 SCC Online SC 54 : (1960) 1 SCR 773; AIR 1960 SC 100 that admission is the best evidence

United India Insurance Co. Ltd., vs Samir Chandra Chaudhary (205) 5 SCC 784

Mehnga Singh Khera vs Unitech Ltd., through its MD – (2019) SCC Online 726

Experion Developers Pvt., Ltd., vs Sushma Ashok Shiroor (2022 SCC) Online SC 416

7.     Per contra, respondent no.1 in his reply has denied the averment made by the appellant in the appeal as the same was barred by limitation. Learned counsel for respondent no.1 submits that as per the agreement dated 11.07.2001, the flat was to be handed over by 10.07.2004; however, the period of delivery of the flat was extended by 18 months, i.e., till 02.10.2006 for possession of the flat to be delivered. Counsel for respondent no.1 submits that the complaint was filed in the year 2016, i.e., after 10 years after the alleged cause of action arose. Learned counsel for respondent no.1 submits that during the course of oral arguments and written submission, a contrary and malafide stand had been adopted by the appellant for the first time after three years of filing of the present appeal, whereby an exaggerated sum of almost Rs.1,20,00,000/- under various heads were claimed against a payment of Rs.10,00,000/- by the appellant.  Learned counsel for respondent no.1 submits that he was willing to pay Rs.10,00,000/- as compensation in addition to Rs.10,00,000/- as refund of the amount actually paid by the appellant without prejudice. Respondent no.1 has also not challenged the directions of the State Commission to make payment of Rs.20,00,000/- to the appellant. 

8.     Learned counsel for respondent no.1 submits that the appellant has paid only Rs.10,00,000/-on 11.07.2001 under the Agreement for Sale of the flat. Learned counsel for respondent no.1 submits that the Agreement wrongly recorded that Rs.10,00,000- was received by respondent in cash. Hence, the learned counsel for respondent no.1 prays that the present appeal be dismissed with cost. The respondent’s case is that the appeal is barred by limitation as it was not filed within two years and cannot be considered.

9.     It is evident that the agreement was executed between the parties on 11.07.2001 relating to purchase of flats and car park and another one for the furnishing and extra fitting and fixtures as stated by the appellant. It is also evident from the record that the delay in construction was admitted by the respondent vide letters dated 02.04.2005 and 20.10.2009 whereby supplementary agreement was entered into by undertaking to pay the extension period of 18 months till October 2006 and pay Rs.20,000/- per month in case of further delay and thereafter in October 2009 to pay Rs.42 lakh liquidated damages.

10.   It is manifest from the record that despite the agreement under which consideration had been agreed upon and received by the respondent apart vacation of 200 sq ft for the redevelopment of the project, despite passage of over two decades, the respondent has not handed over the possession as undertaken by it as per the agreement dated 20.07.2001, 02.04.2005 and again on 20.10.2009.. It is not denied that these agreements were entered into by the respondent. It is also not denied that despite the offer to pay compensation for the delay for the extended period including the liquidated damages no evidence of payment have been made to the appellant has been brought on record by the respondent. The appellant has a continuing cause of action since the respondent has failed to offer the possession within the stipulated period of time. Subsequently, as per the two agreement including development agreement on two subsequent occasion when Rs.20,000/- per month  and subsequently Rs.42 lakh on liquidated damages were offered by the respondent himself have also not been complied with. Therefore, the contention of the appellant that she had been compensated as per the agreement between the parties cannot be disputed.

11.   In its order dated 29.01.2019, the State Commission has noted that there were some proceedings going on and for these reasons, the respondent delayed the obtaining of the sanctioned plan from Kolkata Municipal Council and did not commence the work. It has also noted that the respondent intentionally suppressed the facts of these proceedings before the State Commission. The complainant had, therefore, noted that it was not possible for the respondents to proceed with the construction and deliver the flats to the complainant. The State Commission, therefore, came to the findings that it was also clear that after taking an amount of Rs.20 lakh from the complainant the opposite parties had failed to deliver the possession of the flat till date which was a clear case of deficiency in service and gross negligence on the part of the OPs.

13.   The State Commission had ordered as under:

Consequently, the instant complaint case is allowed against the OPs. Hence, the OPs are hereby directed to refund Rs.20 lakh with simple interest @ 9% per annum to the complainant within 30 days from the date of order till its realization. The OPs are further directed to pay Rs.1,00,000/- to the complainant  as compensation for mental agony and pain and also to pay Rs.10,000/- as litigation cost within the said stipulated period of time. In case of default in payment of the aforesaid amounts the complainants shall have the liberty to get the same realized as per law.

14.   As construction has not commenced and the respondents are also not in a position to complete the construction, the directions of the State Commission to the respondent to refund the money with interest cannot be faulted with. As laid down by the Hon’ble Supreme Court in a catena of judgments notably in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, (2020) 18 Supreme Court Cases 613, in Pioneer Urban Land and Infrastructure Ltd. Vs. Govindan Raghavan, in CA No. 12238 of 2018 decided 02.04.2019, (2019) 5 SCC 725 and Fortune Infrastructure & Anr. Vs. Trevor D’Lima & Ors., (2018) 5 SCC 442 an allottee/ homebuyer cannot be made to wait indefinitely for possession for reasons of delay by a builder and is within his right to seek refund or compensation for inordinate delay.  

14.   Deficiency in service by the respondent developer qua the appellant is manifest as it is also evident that the respondent has failed to execute and complete the project even after 5 years and four months which period is certainly inordinate. The appellant cannot also be expected to wait indefinitely for delivery of possession.

15.    The State Commission had ordered of refund of the amount deposited with 9% per annum from the date of order till realization. In the case of Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, C.A. No. 6044 of 2019 decided on 07.04.2022, the Hon’ble Supreme Court has held that compensation by way of interest should be both compensatory and restitutionary. The State Commission has considered 9% be adequate. We see no reasons to disturb this part of the award. However, directions of the State Commission to pay compensation from the date of order till realization cannot be sustained. Compensation from the date of deposit would be more equitable. The appellant has also claimed compensation @ Rs.20,000/- per month towards as part of the extension of the date of delivery and has claimed Rs.42 lakh as liquidated damages. In DLF Homes Panchkula Pvt. Ltd., vs D S Dhanda (2020) 16 SCC 318, the Hon’ble Supreme Court held that multiple compensation for a singular default is not justified. However, in case of Ghaziabad Development Authority vs Balbir Singh in Appeal (Civil) no.7173 of 2002 decided on 17.03.2004 the Hon’ble Apex Court has held that compensation has to be decided on a case to case basis.

16.   In view of the foregoing discussions and the facts of this case the appeal is allowed with the following directions:

1. The respondent shall pay Rs.20 lakh to the appellant with 12% interest with effect from 11.07.2001 within eight weeks, failing which it shall carry interest @ 15% till realization;
2. The respondent is also directed to pay Rs.5,00,000/- to the appellant for mental agony; and
3. The respondent shall also pay Rs.1,00,000/- as litigation cost to the appellant.
4. There shall be no deductions on any account on the payments as directed above.

17.   Pending IAs stand disposed with this order.