ORDER

(Per: Ms. Kumkum Rani, Judicial Member II):

This appeal under Section 15 of the Consumer Protection Act, 1986 has been directed against the judgment and order dated 20.11.2015 passed by the learned District Consumer Disputes Redressal Forum, Dehradun (hereinafter to be referred as the District Commission) in consumer complaint No. 288 of 2011 styled as Sh. Smt. Madhu Arora  Vs. M/s Ganpati Builders and Anr., wherein and whereby the complaint case was allowed directing the opposite parties to pay an amount of Rs. 4,60,000/- with interest @ 10% per annum from the date of payment till its actual recovery alongwith damages of Rs. 1,00,000/- and costs of litigation Rs. 5,000/- with penalty Rs. 5,000/- per month from 27.09.2011 till its actual payment within 30 days from the date of judgment.

2.       The facts giving rise to the present appeal, in brief, are as such that the respondent No. 1 – complainant has filed a complaint against the opposite parties with the allegations that the respondent No. 1 – complainant had paid an amount of Rs. 4,60,000/- for the booking of a flat in the project of the opposite parties and the construction was to be completed by July, 2011, but the opposite parties had failed to complete the same and had agreed on 23.11.2009 to pay an amount of Rs. 6,500/- per month w.e.f . 29.07.2011. But the construction was not completed, but the opposite parties had not refunded the above amount despite demands and legal notice.  Hence, the above complaint was filed.

3.       The complaint was strongly contested by the appellants – opposite parties by filing their written statement wherein they denied the allegations of the respondent No. 1 – complainant stating that the disputes in question were liable to be referred to the sole arbitration of Sh. R.S. Kela, Advocate as per the arbitration clause contained in the documents executed between the parties.  It is further averred that in the written statement that the appellants had already constructed the basement, stilt, ground, first and second floor in the project after getting the plans approved from Masooriee Dehradun Development Authority (MDDA) and the construction was in full swing.  It is further stated that however on account of a garbage place, adjacent to the suit land, the same was given a bad and filthy smell, which garbage place was not removed by the concerned authorities despite requests.  It was stated that there had been heavy rains in Dehradun resulting in shortage of building material etc. whereby on account of the above acts of God, the construction work delayed bit.  It is also pleaded that the respondent No. 1 – complainant herself was guilty of not comply with the condition of the allotment letters and the buyers agreements etc.  The respondent No. 1 – complainant one hand was claiming interest on the payment amount and on the other hand was also claiming a penalty of         Rs. 6,500/- per month on account of delay, which both could not be allowed to her by any canons of law. Hence, the complaint is liable to be dismissed. 

4.       The District commission after perusing the material evidence available on record passed the judgment dated 20.11.2015 wherein it was held as under:-

“उपरोक्तानुसार, परिवादी द्वारा योजित यह परिवाद विपक्षीगण के विरूद्ध (संयुक्ततः एवं पृथकतः) स्वीकार किया
जाता है। विपक्षीगण को आदेशित किया जाता है कि वे परिवादिनी से अभिप्राप्त धनराशि अंकन 4 लाख 60 हजार
रू0, 10ः वार्षिक ब्याज सहिज (धन अदा करने की तिथि से वसूली तक) अदा करेें। साथ ही क्षतिपूर्ति अंकन एक
लाख रूपये, वाद व्यय पाँच हजार रूपये तथा पैनल्टी धन (दिनांक 27.09.2011 से भुगतान तक) पाँच हजार रू0
मासिक दर से भुगतान करें। धनराशि का भुगतान 30 दिन के अन्दर किया जाना सुनिश्चित किया जाए”

5.       On having been aggrieved by the aforesaid judgment of the District Commission, the present appeal has been preferred by the appellants – opposite party No. 1 alleging that the learned Trial Court has gravely erred in awarding interest from the date of payment till recovery @ 10% per annum and further also awarding a penalty of Rs. 5,000/- per month from 27.09.2011 till date, which both the amounts could not be awarded by the learned District Commission.  It is further averred that the District Commission has gravely erred in awarding an amount of Rs. 1,00,000/- on account of damages and further an amount of Rs. 5,000/- on account of litigation expenses which both are not only exorbitant and illegal,  but have been awarded in an arbitrarily manner in contravention of the provisions of law.  The District Commission has also erred in not appreciating that the appellants had already got the plan sanctioned for construction of the project from the Dehradun Authority and had already made the construction of the basement, stilt, ground, first and second floor and were in the process of further construction in the same project, hence, the impugned judgment passed by the District Commission have acted upon with illegality and infirmity; the learned District Commission has not exercised its jurisdiction which was vested in it by law.  Hence, the impugned judgment is against the law, facts and merits of the case, in contravention of the mandate provisions of law and is liable to be set aside.

6.       We have heard both the sides and perused the material available on record.

7.       We have also perused the impugned judgment.  The main contention of the appellants is that the District Commission has gravely erred in awarding the interest from the date of payment till recovery @ 10% per annum and further awarding a penalty of Rs. 5,000/- per month from 27.09.2011, which both the amounts could not be awarded by the learned District Commission.  We are fully convinced with the above contention made by the appellants, because the interest and compensation, both the amount cannot be awarded together.  The District Commission should awarded either interest or penalty. Hence, we are of the opinion that the award of the District Commission to pay penalty Rs. 5,000/- from 27.09.2011 till its actual realization is not justified, therefore, it calls for interference. Therefore, we are of the opinion that the order of awarding penalty is liable to be set aside.

8.       The learned counsel for the appellants has further averred that the District Commission has also erred in awarding the amount of Rs. 1,00,000/- on account of compensation and damages as well as interest amount; both are not only exorbitant and illegal and could not be awarded.

9.       We have perused that the District Commission has awarded the damages as well as interest @ 10% per annum from the date of payment till its actual realization.  In our view, if the District Commission has awarded the interest, then the compensation should not be awarded to the respondent No. 1 – complainant.  We are of the view that the District Commission has awarded the simple interest @ 10% per annum from the date of payment till its actual realization, hence the order of awarding of compensation of                        Rs. 1,00,000/- is liable to be set aside. No other issue has been raised during the course of arguments in appeal, hence we are of the opinion that the impugned judgment should be modified to the above extent.  Accordingly, we are of the view that the appeal is liable to be partly allowed and the impugned judgment is to be modified to the above extent.

10.     Accordingly, the appeal is partly allowed.  Impugned judgment passed by the District Commission, Dehradun is hereby modified to such extent.  It is hereby ordered that the appellants shall pay Rs. 4,60,000/- (Rupees Four Lakh Sixty Thousand only) to the respondent No. 1 – complainant alongwith simple interest @ 10% per annum from the date of filing of complaint, i.e. 25.11.2011 till its actual realization.   Respondent     No. 1 – complainant is also entitled to get Rs. 5,000/- as litigation charges.  In other respect, the impugned judgment of the District Commission shall stand as set aside.

11.     A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 /2019.  The Order be uploaded forthwith on the website of the Commission for the perusal of the parties.  The record of the District Commission be returned to the concerned District Commission alongwith copy of this judgment for record and necessary information.

12.     File be consigned to record room along with a copy of this Order.