1.       This appeal under section 19 of The Consumer Protection Act, 1986 is in challenge to the Order dated 25.10.2018 of the State Commission in complaint no. 223 of 2017.

2.   We have heard the learned counsel for the appellant (the ‘builder co.’) and for the respondents (the ‘complainants’). We have also perused the material on record including inter alia the State Commission’s impugned Order dated 25.10.2018 and the memorandum of appeal.

3.   The appeal has been filed with self-admitted delay of 121 days.

In the interest of justice, inter alia considering the reasons given in the application for condonation of delay, to provide fair opportunity to the builder co., to decide the matter on merit rather than to dismiss it on the threshold of limitation, the delay in filing the appeal is condoned. Learned counsel for the complainants does not object.

4.   The matter relates to a builder-buyer dispute. Briefly, the complainants made an application with the builder co. for allotment of a plot on 31.12.2011. In all they paid an amount of Rs.44,24,488.20p. to the builder co. in 2012. Letter of allotment was made on 15.10.2012. The project was not completed and offer of possession of the plot was not made within the assured and committed period, or even within the grace period, or even still within a reasonable period thence (reasonable period here would connote a period which appears reasonable per se and which a reasonable man of ordinary prudence would not normally agitate). Holding the abnormal unreasonable delay in completing the project and offering possession of the plot to be ‘deficiency in service’ on the part of the builder co. the State Commission ordered it to refund the deposited amount with interest at the rate of 12% per annum from the date of respective deposits till realization within 03 months of its Order. It also provided that if there is any breach in making the payment within the stipulated period of 03 months the complainants will be entitled to get interest at the rate of 18% per annum for the defaulting period. It also awarded lumpsum compensation of Rs. 2,00,000/- for mental agony and physical harassment and Rs. 21,000/- as cost of litigation.   

5.       A perusal of the State Commission’s Order of 25.10.2018 shows that it is a well-appraised and reasoned order that has aptly dealt with the issues germane to the dispute.

6.       We may observe, to place the whole matter in perspective, that prior to, or, at the least, simultaneous to, getting the buyer-consumer to enter into its agreement and accepting the first payment towards the total cost of the subject plot, the builder co. was required and expected to have the due pragmatic and realistic assessment and preparation of the project planning. It was the prime responsibility of the builder co. to ensure that it was in a position to deliver the possession of the subject plot to the buyer-consumer within the agreed and assured period. Planning, execution and completion were the builder co.’s responsibility, and not of the consumer; (normal) impediments or problems that may arise in planning, execution and completion were again its own responsibility, and not of the consumer. Specifically, availability of land, as well as all approvals from the concerned government, development and municipal authorities, as and when due, being fundamental basic requirements of a residential housing project, were decidedly to be taken care of and dealt with by the builder co. Time and cost overruns were essentially within the domain of its own duty and obligation. Non-fulfilment of its overall responsibilities of project planning, execution and completion can not be and are not grounds for condoning or overlooking delay in completion and failure to offer possession within the agreed and assured period. All-encompassing blanket plea of force majeure, unforeseeable circumstances, irrespective of its various ‘liberal’ or ‘strict’ interpretations, and irrespective of its various interpretations in different sets of facts, cannot be nebulously and irrationally articulated in the agreement, or be successfully contended and argued as omnibus defence for anything and everything related to the builder co.’s failure to fulfil its responsibilities for completion of the project without occasioning time or cost overruns.

The grace period provided for in the agreement, by its very nature, is in itself an extended period of delay. That is to say, it itself provide to take care of some reasonable delay as a grace. That being so, delay even beyond the grace period, without any cogent or convincing reasons, is clearly unjustified and untenable and hard to overlook.

Offer of possession becomes meaningful only when the project has been duly completed, the site development has been done in all its aspects and all the amenities and conveniences have been put in place. As such the consumer cannot be faulted if he legitimately objects to an offer which is made without even the completion certificate having been obtained from the concerned authorities.

7.       In the present case we find that the State Commission has not failed to notice that the builder co. has failed to discharge its overall responsibilities. It has also not failed to notice that an offer of possession made belatedly after the expiry of the assured and committed period and even the grace period was not genuine since the development has not been completed.

8.     It is a well settled position that in case of unreasonable delay beyond the assured and committed period, two parallel rights accrue to the consumer:

one : possession of the subject plot as and when the project is completed along with just and equitable compensation under the Act 1986 for the unreasonable delay and consequent loss and injury.

or

two : refund of the amount deposited along with just and equitable compensation.

9.       In the instant case the complainants have asked for refund of their deposited amount. The delay as well brought out by the State Commission in its Order is unreasonable and unjustifiable.

It goes without saying that the builder co. would be the owner of the subject plot and would be free to dispose it as it wishes to. Hence no palpable prejudice is being caused to it.

10.     Learned counsel for the builder co. argues that the rate of interest of 12% per annum on the deposited amount as awarded by the State Commission is on the higher side. In the opinion of the learned counsel rate of 7.5% per annum will be fair and reasonable. During further arguments learned counsel however submits that the builder co. will consider rate upto maximum 9% per annum in the present case as an exception, but nothing beyond. He also submits that the penal interest of 18% per annum as awarded by the State Commission in case of default in compliance within 03 months is arbitrarily excessive and should be waived off. 

11.     Learned counsel for the complainants submits that the rate of 12% per annum awarded by the State Commission is just and equitable. He makes submissions regarding the hard earned money of the complainants being blocked with the builder co. for a protracted period without any return in cash or kind, regarding the troubles and travails faced by the complainants. During the course of the arguments learned counsel however submits that in order to end the sufferings of the complainants and to put a period to the lis the complainants will concede to a rate of 10.5% per annum. Submission is that anything below 10.5% per annum will be something less than justice. Learned counsel does not press for penal interest of 18% per annum.

11.     Regarding the compensation, we may first observe that in various situations where the consumer is not given a fair deal and where he is made to suffer by the service provider by being deficient in service or by resorting to some unfair trade practice, the eventuality of such plight has been adequately taken care of by the legislation and in order to redress his grievance statutory provisions have been enacted. Sections 14 of the Act 1986 contemplates to provide compensation for the loss or injury that may be suffered by such consumer and grant even punitive damages in appropriate cases where it is deemed fit. The legislature in its wisdom has not laid down any specific method fixed in nature or any specific manner in which the loss or injury suffered by a given consumer may be quantified. It also does not provide any rigid or fixed methodology by resorting to which the grievance of a consumer and damages therefor may be quantified and compensated. It is not even otherwise feasible to find or provide any cut-and-dried formula of universal application or to lay down any straight-jacket guidelines with absolute objectivity in order to estimate the loss or injury suffered by a consumer or the amount of compensation which may be mathematically equal to the loss or injury suffered with objective exactitude. The facts of each case vary and so shall vary the myriad factual and legal nuances of each transaction that may take place between consumer and the service provider. There may be cases where the circumstances of a consumer, the extent of his travails, the degree of his predicament or the enormity of his loss or injury may be such that the same may persuade the concerned authority, judicial or quasi-judicial as it may be, to stringently discountenance the deficiency or unfairness & deceptiveness of the service provider and put him to strict terms and lean ungrudgingly towards the suffering consumer in order to provide him compensatory anodyne of justice. Similarly, on the other hand, there may be cases where the service provider may successfully demonstrate the circumstances which may go to mitigate its guilt or to extenuate the degree of its liability. It may in such cases successfully display its bonafides, its diligence, its sincerity in providing service and the fairness of its trade practice. The service provider may in such cases show circumstances and prove that the loss suffered by the consumer is not the consequence of its doing or that the degree or the extent of its liability is not so enormous as may call for escalated degree of damages or compensation. As the facts of each case may naturally vary infinitely, it is eventually for the concerned judicial or quasi-judicial forum to make a dispassionate assessment of the whole situation and to approach each case with a non-partisan attitude without prejudice or prediction so that it may strike the chord of balance and may do conscionable justice within the peremeters of law. At times, lumpsum amount of compensation for the loss or injury suffered by the consumer is provided and a specific quantified amount is ordered to be paid. But quite often instead of specifying lumpsum quantified amount, the compensation is provided by way of directing to pay interest at a particular rate on the amount which in a given case might have been unduly, inequitably or illegitimately retained by the service provider. It is for the reason of variance of circumstances of each case that the amount of compensation to be fixed by the forums may keep varying from case to case. It is the same reason how and why different forums may provide for compensatory interest at different rates as a method to adequately or befittingly quantify the amount of commensurate compensation. No rule-of-thumb is possible to be adopted for all times or for all cases. The different forums while discharging their judicial or quasi-judicial functions can neither afford to be oversensitive while assessing the grievance of the consumer nor can they be found reluctant in providing just and appropriate compensation commensurate with the loss or injury suffered or in awarding condign damages wherever called for. They cannot allow themselves to either become instruments of converting the solemn provisions of the Act into means of exploitation of service providers in the name of consumer justice or to ever disregard the plight of the aggrieved consumer with apathy or indifference. The forums have to be unfailingly judicious, and try to meet the scales of equity in each case having regard to its particular facts & circumstances and specificities.

13.     Reverting to the case at hand, its specific facts clearly show patent deficiency on the part of the builder co. The completion certificate was not obtained within the assured and committed period, or even in the grace period, or even still within a reasonable period thence, meaning thereby that the warranted site development and amenities and conveniences had not been put in place. In the overall facts and circumstances of the case, inter alia taking into account the manifest deficiency on the part of the builder co. by way of the abnormal unreasonable delay and the continuing protracted uncertainty and difficulty faced  by the complainants, rate of interest of 10.5% per annum as is being conceded to by the learned counsel for the complainants appears to be quite reasonable and justified, commensurate with the loss and injury suffered by the complainants.

Penal interest for delay in making payment is not pressed by the learned counsel for the complainants.

14.        Sequel to the above discussion, the appeal is disposed of with the directions that the award made by the State Commission is modified to the extent that the builder co. shall refund the deposited amount of Rs. 44,24,488.20p. to the complainants with compensatory interest at the rate of 10.5% per annum from the respective dates of deposit till actual realisation for unduly, unjustly and inequitably retaining the deposited amount along with Rs. 2,00,000/- as lumpsum compensation for mental agony and physical harassment and Rs. 21,000/- as cost of litigation. The entire payment shall be made good within 06 weeks from today, failing which the State Commission shall undertake execution, for ‘enforcement’ and for ‘penalty’, as per the law.

This Order has been made on concession by the complainants. As such, the decision in this case shall not be treated as a precedent.

15.     The Registry is requested to send a copy each of this Order to the parties in the appeal and to their learned counsel as well as to the State Commission immediately. The stenographer is requested to upload this Order on the website of this Commission immediately.