JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)

          The complainant booked an Apartment with the opposite party in a project namely “Capella” in the Uniworld City, which the opposite party was to develop in Greater Noida.  Vide letter dated 09.6.2007, Apartment No. 2203 in Tower 18 of the aforesaid project was allotted to the complainant, on the terms and conditions annexed to the allotment letter, for a total consideration of Rs.57,85,989/-.  As per Clause 4(a) of the terms and conditions of allotment, the possession of the apartment was to be delivered to the complainant within forty months thereof, meaning thereby that the possession ought to have been delivered by 09.10.2010.  Clause 4(e) of the terms and conditions of allotment provided that if for any reason the developer was not in a position to offer the apartment it shall offer an alternative property or refund the amount in full with simple interest @ 10% per annum without any further liability to pay the damages or any compensation on this account.  The grievance of the complainant is that the possession of the apartment has not been offered to her, despite she having already paid a sum of Rs.55,82,253/- to the opposite party.  The complainant is therefore, before this Commission by way of this consumer complaint, seeking refund of the aforesaid amount along with compensation etc.

2.      The opposite party has filed its written version contesting the complaint and admitting the allotment made to the complainant.  It was also alleged in the written version filed by the opposite party that the construction has been delayed on account of the several reasons beyond the control of the opposite party.  However, no affidavit by way of evidence has been filed by the opposite party, despite the order of this Commission dated 18.4.2017, directing it to file the said affidavit in the course of the day.

3.      The learned counsel for the complainant states that the grounds on which the complaint is being resisted have already been rejected by this Commission vide its order dated 26.11.2015 in CC/267/2014, Yogesh Sharma Vs. M/s. Unitech Limited.  The decision of this Commission in Yogesh Sharma (supra), to the extent it is relevant reads as under:

“2.      The complaint has been resisted by the opposite party inter-alia on the ground that it is barred by limitation and has not been filed by a competent person.  On merits, allotment of Apartment No.404 in Tower 9, measuring 1870 sq. ft. to the complainants has been admitted.  It is however alleged that though the land measuring 100 acres was allotted to the opposite party by Greater Noida Industrial Development Authority in Sector MU of Greater Noida on 15.09.2006 and Lease Deed in its favour was also executed on 22.01.2007, followed by possession certificate dated 29.01.2007, actual physical possession could not be handed over to the opposite party due to agitation by local farmers.  It is further alleged that due to global meltdown and local market dynamics in real estate industry, the investment value in this project underwent a sea-change and the project therefore got belated due to circumstances beyond the control of the opposite party.  It is also claimed by the opposite party that since the amount paid by the complainants was less than ₹1 Crore this Commission does not have pecuniary jurisdiction to entertain this complaint.

11.    Coming to the merits of the case, we find no substance in the plea that the construction of the project was delayed on account of agitation by the famers.  It is the opposite party itself has placed on record a copy of the possession certificate dated 29.01.2007 whereby the possession of a plot of land measuring 404172.36 sq. mtrs. bearing no.GH-01 in Sec-MU was taken over by it on 29.01.2007.  In view of the aforesaid document, it would be difficult for us to accept the contention that actual possession on the site was not taken over by the opposite party.  Had that been the position, the possession letter would not have been executed by the opposite party.

12.    The opposite party has placed on record the copy of a letter dated 02.09.2008 purporting to have been written by it to GNIDA stating therein that physical possession was not possible due to incomplete infrastructural jobs like sector roads, sewer, drainage etc.  If GNIDA was required to provide sector roads, sewer, drainage etc before physical delivery of the plot the opposite party ought not to have sold flats in the project in question to the perspective byers.  We are unable to appreciate how the opposite party could possibly to have accepted money from the buyers and executed agreement with them without having physical possession on the site.  It is stated in the aforesaid letter dated 02.09.2008 that the opposite party had applied for approval of the building plans, which were pending before the Authority “SINCE LAYOUT WAS YET TO BE FINALISED BY IT”.  Again we are unable to appreciate how the opposite party could accept money from the flat buyers and enter into agreement with them without getting the building plans approved.  As regards the delay in approval of the building plans, we have no information as to when the said building plans were approved by GNIDA, but in our opinion, the opposite party ought not to have accepted money and entered into agreement with the buyers without approval of the building plans by GNIDA.  If the opposite party chose to accept money from the flat buyers and enter into agreements, undertaking to give possession within a particular time frame, without having possession of the land and without approval of the building plans, it is only itself to blame for a situation in which the construction got delayed on account of the delay in approval of building plans and physical delivery of the land to it on the spot.  As far as the flat buyers is concerned, considering the commitment made to them by the builder, they were justified in believing that the possession of flat would be delivered to them on or before the last date stipulated in the agreement in this regard.

13.     As regards the other grounds taken in the reply for the delay in execution of the project, this Commission has already rejected those grounds in number of complaints.  In Swarn Talwar & Ors. vs. Unitech Ltd., C.C. No.347 of 2014 decided on 14.08.2015 wherein the opposite party had failed to construct flats in a project known as Unitech Habitat in Greater Noida…….

14.    As regards pecuniary jurisdiction of this Commission to entertain complaints whereby the amount paid by the flat buyers was less than ₹1 Crore, this Commission in Swarn Talwar  (Supra) observed and held 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.”

15.    In the present case, aggregate of the amount paid by the complainants and compensation in the form of simple interest @ 18% per annum on that amount comes to more than ₹1 Crore.  Therefore this Commission does possess the requisite pecuniary jurisdiction.”

4.      The learned counsel for the complainant states on instructions from the complainant, who is present in the Court, that considering the downward trend in rates of interest, erosion in the market value of the Real Estate and in order to avoid any further litigation in the matter, the complainant is restricting her claim to the refund of the principal amount paid by her, along with compensation in the form of simple interest @ 10% per annum with effect from the date of payment in terms of Clause 4(e) of the terms and conditions of the allotment.

5.      The complaint is therefore disposed of with the following directions:

1.      The opposite party shall refund the entire principal amount of Rs.55,82,253/- to the complainant, along with compensation in the form of simple interest @ 10% per annum from the date of payment till the date of refund.

2.      The opposite party shall pay a sum of Rs.25,000/- as cost to the complainant.

3.      The payment in terms of this order shall be made within three months from today.