The complainants in Consumer Complaint No.308 of 2014, who are husband and wife, booked a residential apartment with the opposite party in a project namely Unitech Horizon, which the said party was developing on plot No.6 in Sector Pi-2, Alistonia Estate, Greater Noida, Gautam Budh Nagar. On 07.6.2006, Apartment No.1001 in Tower No.23 of the said project was allotted to the complainants for a total consideration of Rs.48,57,505/-. The possession of the said flat was to be delivered to them by 15.11.2008. The complainants made a total payment of Rs.46,44,806/- but the possession was not offered to them. The complainants are before this Commission, seeking refund of the aforesaid amount, along with compound interest @ 18% per annum. They are also seeking payment of Rs.25,000/- per month towards rent from 15.11.2008 till the date of possession and Rs.15.00 lacs towards compensation for the mental agony and harassment suffered by them. 2. The complainants in Consumer Complaint No. 309 of 2014 also booked a similar flat in the aforesaid project of the opposite party and made payment of Rs.46,44,914/- as against the agreed sale consideration of Rs.48,57,505/-. In their case also the possession was to be delivered by the same date i.e. November 15, 2008. Since the possession was not offered to them, they are also before this Commission with identical prayers. 3. The complaints have been resisted by the opposite party on identical grounds. It is stated in the reply filed by the opposite party that they are delivering possession of the flats in a phased manner, commencing the year 2009 and a number of families are already living in the said complex. It is further stated that the structure is complete, plaster work is going on and the possession is expected to be delivered by middle of 2015. The opposite party however, has not disputed the payment received from the complainants nor has it disputed the terms of the agreement agreed between the parties. 4. In Swarn Talwar & Ors. vs. Unitech Ltd., C.C. No.347 of 2014 and connected matters decided on 14.08.2015, the complainants had booked residential apartment in project known as Unitech Habitat, which the opposite party was to develop on plot no.9, Sector PI-II (Alistonia Estate) in Greater Noida. The opposite party however failed to deliver possession of the flats to the complainants within the time agreed between the parties and consequently the complainant sought refund along with interest @ 18% p.a. besides damages and cost of litigation. Rejecting all the grounds taken by the opposite party and inter alia relying upon the decision of the Hon’ble Supreme Court in K.A. Nagmani Vs. Housing Commissioner, Karnataka Housing Board, C.A. No.6730-6731, decided on 19.09.2012 and considering the extent of appreciation in the land value and increase in the cost of construction since 2006, this Commission directed the opposite party to refund the amount paid to it by the complainants, along with compensation in the form of simple interest on that amount @ 18% per annum from the date of deposit till the date the said amount was paid to the flat buyers. The payment was directed to be made within six weeks. Being aggrieved from the order passed by this Commission, the opposite party preferred an appeal before the Hon’ble Supreme Court being Civil Appeal (Diary No. 35562 of 2015). Vide signed order dated 11.12.2015, the Hon’ble Supreme Court dismissed the said appeal. The order passed by the Hon’ble Supreme Court reads as under:- “We have heard learned counsel for the appellant and perused the record. We do not see any cogent reason to entertain the appeal. The judgment does not warrant any interference. The Civil Appeal is dismissed.” 5. When this matter came up for hearing on 15.10.2015, the learned Senior counsel for the opposite party stated on instruction that they have one ready built up flat on the 20th floor in Tower -20 of the same project and they were offering the same, on the same price on which the booking was made. On the said statement being made, the learned counsel for the complainants was asked to take instructions as to whether either of them was ready to accept the aforesaid flat, along with interest @ 12% per annum form the committed date of delivery of possession till the date of possession is offered. On the next dated i.e. 18.11.2015, the learned counsel stated, on instructions, that the said offer made by the opposite party was not acceptable to them. However, today in the course of hearing, the learned counsel for the complainants stated that since the complainants are in need of money and want to avoid further litigation in the matter, they are restricting their claim to refund along with compensation in the form of interest at the rate of 12% per annum. 6. It is an admitted position that the opposite party was required to deliver possession of the flats to the complainants y 15.11.2008. Since the opposite party miserably failed to perform its contractual obligation, the complainants are not bound to accept possession when offered after more than seven years from the committed date of possession. On account of the aforesaid default on the part of the opposite party, the complainants are entitled to get refund of the amount which they had paid to the opposite party along with appropriate compensation. 7. In my view, considering the cost of borrowing in the market alone, compensation in the form of simple interest @ 12% per annum can in no case be said to be exaggerated or inflated. The cost of borrowing in the market from the banks/financial institutions during the relevant period was about 12% per annum. Even if no compensation is awarded to the complainant for the mental agony and harassment suffered by the complainant on account of the failure of the opposite party to deliver on its promise, the compensation in the form of simple interest @ 12% per annum would be eminently justified. 8. During the course of arguments, it was contended by the learned counsel for the opposite party that since the cost of the flats was less than Rs. One crore each, this Commission lacks pecuniary jurisdiction to entertain the complaint. I however find no merit in the contention. A similar plea was rejected by this Commission in Swarn Talwar (supra) and the said order, to the extent it is relevant in this regard reads as under: “5. The first question which arises for our consideration in these cases is as to whether this Commission possesses the requisite pecuniary jurisdiction to entertain these complaints. Section 11(1) of the Consumer Protection Act read with Section 21 of the Consumer Protection Act to the extent it is relevant provides that this Commission shall have jurisdiction to entertain complaints where the value of the goods or services and compensation if any claimed exceeds Rs.1,00,00,000/-. The contention of the learned counsel for the opposite party is that interest claimed by the complainants cannot be termed as compensation and if the interest component is excluded, the pecuniary value of the complaint does not exceed Rs.1,00,00,000/- except in one case. The learned counsel for the complainants on the other hand contended that the interest which they have claimed along with refund of the principal sum even if not so described specifically, is by way of compensation only, since the opposite party has been deficient in rendering services to the complainants by not delivering possession of the flats on or before the time agreed in this regard. 6. In our view, the interest claimed by the flat buyers in such a case does not represent only the interest on the capital borrowed or contributed by them but also includes compensation on account of appreciation in the land value and increase in the cost of construction in the meanwhile. As noted by us in CC No.232 of 2014, Puneet Malhotra Vs. Parsvnath Developers Ltd. decided on 29-01-2015, there has been steep appreciation in the market value of the land and cost of construction of the residential flats in Greater Noida in last about 7-10 years and consequently the complainants cannot hope to get a comparable flat at the same price which the opposite party had agreed to charge from them. In fact it would be difficult to get a similar accommodation, even at the agreed price plus simple interest thereon at the rate of 18% per annum. Therefore, the payment of interest to the flat buyers in such a case is not only on account of loss of income by way of interest but also on account of loss of the opportunity which the complainants had to acquire a residential flat at a particular price. 7. In Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65, the Hon’ble Supreme Court inter alia observed and held as under: “However, the power to 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... …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. That compensation cannot be uniform and can best of 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 cases would necessarily have to be higher. It would, thus, be seen that the Hon’ble Supreme Court recognized that the interest to the flat buyers in such cases is paid by way of compensation. Therefore, there is no reason why the interest claimed by the complainants or at least part of it should not be taken into consideration for the purpose of deciding the pecuniary jurisdiction of this Commission. If this is done, the aggregate amount claimed in each of the complaints exceeds Rs.1,00,00,000/- and, therefore, this Commission does possess the requisite pecuniary jurisdiction. In the cases where the complainant does not want refund and is seeking possession, alongwith compensation for the delayed possession, this Commission would have jurisdiction to entertain the complaint, if the aggregate of the value of the flat, on the date of filing of the complaint and the compensation claimed for the delay in delivering possession, exceeds Rs. 1 Crore. In terms of Section 21(a) of the Consumer Protection Act, this Commission can entertain complaints where the value of the goods or services and compensation exceeds Rs. 1 Crore. Since the buyer is seeking possession of the flat booked by him, the value of the service, in such a case in our opinion, in terms of Section 21(a) of the Consumer Protection Act means the value of the flat as on the date of filing of the complaint and not the value on the date the flats were booked”. In the present case, the total amount claimed by the complainant is more than Rs.1 crore. Therefore, considering the extent of the claim made in the complaint, this Commission does possess the requisite pecuniary jurisdiction to entertain and decide this complaint. 9. The learned counsel for the opposite party relied upon the judgments in Consumer Complaint No.353 of 2015 Charu Chhabra and Ors. Vs. Jai Maa Infrastructure Pv.t Ltd. decided on 26.5.2015, Consumer Complaint No. 153 of 2009 Seven Islands Shipping Ltd. Vs. Reliance General Insurance Co. Ltd. & Ors. Decided on 06.11.2015 and First Appeal No. 417 of 2002 Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. & Ors. Decided on 02.4.2003, the decisions in Seven Islands Shipping Ltd. (supra) and Shahbad Cooperative Sugar Mills Ltd. (supra) are not relevant to the issue involved herein, whereas in Charu Chhabra & Ors. (supra), this Commission had found that even if the interest was calculated @ 18% per annum, this Commission would not have pecuniary jurisdiction to entertain the complaint. On the other hand in the present complaints, the complainants have claimed interest @ 18% per annum and computed accordingly, the principal amount when added to the amount of compensation comes to more than Rupees one crore each in both the cases, even if the amount claimed by way of rent is excluded from purchases. 10. For the reasons stated hereinabove, I direct the opposite party to refund the entire amount paid to it by the complainants alongwith compensation computed @ 12% per annum on the principal payment from the date of each payment till the date on which the entire payment including compensation in terms of this order is made. The payment shall be made within six weeks from today. The complaints stand disposed of. | 
