Manorama Bhagat & Anr vs Unitech Ltd

This appeal is directed against the order of the State Commission, Delhi in CC/27/2017 dated 2.11.2017 directing the opposite party to refund the

amount deposited by the complainant i.e. Rs.35,12,960/- with 10% interest p.a. from the date of deposit till realization.

Briefly put, facts relevant for the disposal of the appeal are that the appellants filed a consumer complaint against the opposite party judgment

debtor alleging deficiency in service on the part of the opposite party in respect of the residential apartment booked by the appellants/complainants.

The State Commission on considering the pleadings and the evidence adduced by the parties came to the conclusion that the respondent/opposite

party was deficient in service inasmuch as failing to deliver possession of the subject apartment despite having received a substantial amount against

the agreed consideration. The State Commission, therefore, allowed the complaint and directed refund of the amount to the complainant alongwith

10% interest from the date of respective deposits till realization. The basis for award of 10% interest was clause 4 (e) of the builder buyer agreement

executed between the parties which is reproduced as under: -

“If for any reason the company is not in a position to offer the apartment altogether, the company shall offer the allottee(s) an alternative property

or refund the amount in full with simple interest @ 10% per annum without any further liability to pay damages or any other compensation on this

account.â€​

The appellants in this appeal are seeking enhancement of compensation. It is submitted by learned counsel for the appellants that 10% interest

awarded by the State Commission on the refund amount is inadequate. The State Commission has failed to appreciate that the value of the property

during the intervening period has substantially increased and if the appellants seek to purchase the similar apartment, they would have to pay a very

high amount. It is submitted that the Co-Ordinate Bench of this Commission in a bunch of cases including CC/347/2014 Swaran Talwar & Ors. vs.

Unitech Ltd. has awarded 18% interest to the respective complainants on account of the failure of the opposite party to fulfill its commitment under

the agreement in those cases.

I am not convinced with the submissions made. In the matter of Ghaziabad Development Authority vs. Balbir Singh (2004) 5 SCC 65, has observed

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.â€​

From the above, it would be seen that the compensation to be a warded to a complainant must commensurate to the actual damage caused and also

that the compensation in the form of interest can also be awarded in cases of refund. Learned counsel for the appellants has failed to show me any

evidence which could show as to how much damage he has suffered because of non-compliance of his obligation by the opposite party. So far as the

judgment of the Co-Ordinate Bench of this Commission, relied upon by the appellants, is concerned, it is of no avail to the appellants for the reason

that in the said judgment the Co-Ordinate Bench concluded about the damage caused to the appellants/complainants on the basis of circle rates

prevailing in Greater Noida in the year 2006. No evidence regarding circle rate has been furnished by the appellants. In absence of any evidence

regarding actual damage suffered by the appellants, I find no fault with the order of the State Commission awarding 10% interest on the basis of

clause 4 (e) of the contract between the parties.

For the reasons stated above, I find no merit in the appeal. It is accordingly dismissed.