HON’BLE JUSTICE ISHAN CHANDRA DAS, PRESIDENT
This is to consider an application under section 17 of the Consumer Protection Act, 1986 where the complainant prayed for a direction upon the OP to hand over the flat, register the flat and car parking space in favour of the complainant through Appropriate Authority, to pay interest @ 18% per annum for causing harassment of the complainant since 2010 and directing the OP to pay compensation to the tune of Rs. 30,00,000/- (Rupees thirty lakh) for causing physical and mental harassment including the escalation of price of registration fees etc.
The back ground of the complaint case was that the complainant having personal need of residential accommodation and on being interested to purchase a flat and car parking space contacted with the OP and on being satisfied about the terms and conditions of both the parties, came to an agreement for purchase of a self contained flat measuring 2249 sq. ft. for a consideration of Rs. 65,69,690/- (Rupees sixty five lakh sixty nine thousand six hundred ninety) in Apartment No. 1701 on 16th floor, Tower- 06 at the project “Uniworld City Cascades” at Action Area-III, New Town, Kolkata and the said ‘Agreement for Sale’ was executed on 13-11-2006. The complainant in pursuant to the agreement paid a sum of Rs. 6,18,475/- (Rupees six lakh eighteen thousand four hundred four hundred seventy five) for the flat, Rs. 2,25,000/- (Rupees two lakh twenty five thousand) for the covered car parking space and as per the terms of the said agreement, the possession was to be given on 31-03-2010. The complainant made almost full payment i.e. Rs. 63,10,446/- (Rupees sixty three lakh ten thousand four hundred forty six) having only a sum of Rs. 2,59,244/- (Rupees two lakh fifty nine two hundred forty four) was to be paid at the time of registration. Even after such payments being made the OP did not show any interest to deliver possession of the booked flat to the complainant even after the expiry of 31-03-2010 for which the complainant was entitled to receive interest @ 18% per annum on the amount already paid to the OP w.e.f. 01-04-2010 till the date of delivery of the flat. The complainant paid almost entire amount of consideration as per agreement dated 13-11-2006 with expectation of delivery of possession of the flat on 31-03-2010 but the OP failed and neglected to deliver such possession causing ‘deficiency in service’ and ‘unfair trade practice’. The complainant had telephonic conversation with the OP but no steps was taken by the OP, save and except assurance that the flat will be delivered within a short time. The OP also made an offer to pay compensation @ Rs. 5/- (Rupees five) per sq. ft. per month for the period of delay which was very low amount in comparison with the rate of interest of the Bank. The complainant being aggrieved by and dissatisfied with the arbitrary inaction to deliver possession of the flat, filed the instant complaint case upon service of Advocate’s notice dated 02-01-2014 and prayed for reliefs as noted earlier.
A written version was filed on behalf of the OP who admitted that there was an agreement between the parties with regard to agreement for sale of the flat and the amount of consideration etc. but denied other allegations like neglect or refusal to give possession of the flat in due time. Denying deficiency of service and unfair trade practice, the OP claimed that the petition of complaint was hit by law of limitation and bad for misjoinder of parties. In the said written version the OP stated that the delay of construction of ‘Cascades’ was caused because of obtaining statutory infrastructural provisions pertaining to road, electricity, water, sewerage, sanctioned etc. which were beyond the control of the said OP. Admitting the terms of agreement with regard to payment of Rs. 5/- (Rupees five) per sq. ft. per month for the period of delay in offering the delivery of possession, the OP stated that the same would be adjusted at the time of issuance of final notice of possession to the purchaser. Denying the failure and neglect to deliver the flat to the complainant, the OP denied that the complainant would be entitled to consequential reliefs as prayed for and ultimately it prayed for dismissal of the complaint case, the same being malafide and harassing one.
The agreement for sale dated 13-11-2006 between the complainant and the OP/Bengal Unitec Universal Infrastructure Pvt. Ltd. clearly revealed that the complainant of the said agreement wanted to purchase the Apartment No. 1701 on 16th floor, Tower No. 06, having super area of approx. 2249 sq.ft. in the complex “Cascades” in Uniworld City, Kolkata for a consideration of Rs. 65,69,690/- (Rupees sixty five lakh sixty nine thousand six hundred ninety), paid earnest money of Rs. 6,18,475/- (Rupees six lakh eighteen thousand four hundred seventy five). As per said agreement dated 13-11-2006 the developer undertook to make its best endeavour to deliver possession of the apartment to the purchaser by 31-03-2010 subject to certain unavoidable circumstances which would be beyond his control with allowable and reasonable extension of time in giving possession of the said apartment to the purchaser/complainant. It was further undertaken by the developer/OP that he would pay to the purchaser compensation @ Rs. 5/- (Rupees five) per sq. ft. per month for the period of delay in offering the delivery of the said apartment save and except for reasons beyond control of the developer. The factual aspect of the matter is not disputed by the parties seriously rather it was admitted by the OP that as per agreement dated 13-11-2006 (which is at page 36 of the file) the deed was to be executed by and between the parties concerned.
In course of hearing Ld. Counsel for the complainant drew our attention to the receipt showing ‘payment schedule’ of Rs. 66,69,690/- (Rupees sixty six lakh sixty nine thousand six hundred ninety) where the basic price was Rs. 61,84,750/- (Rupees sixty one lakh eighty four thousand seven hundred fifty) was the price of the terrace, and the other balance amount was for club membership, car parking price, maintenance etc. Since the OP categorically accepted the terms of agreement and admitted payment by the complainant as per payment schedule the OP/developer should not be absolved from his liability to hand over the flat and to get a deed to be executed and registered in favour of the complainant and a completion certificate of the flat be given to him for getting his name mutated before the Appropriate Authority.
So far as the quantum of interest @ 18% per annum is concerned as prayed for by the complainant in his petition of complaint, Ld. Counsel for the complainant herein prayed for a direction upon the OP to deliver possession of the flat registration of the same by way of execution and registration of the deed of conveyance and to pay compensation @ 18% per annum from the schedule date of delivery of possession till it is actually made.
It was pointed out by Ld. Counsel for the complainant the allotment letter dated 02-11-2006 (which is at page 18 of the file) and such allotment letter clearly indicated that the total consideration of the flat was Rs. 65,69,690/- (Rupees sixty five lakh sixty nine thousand six hundred ninety) under payment planned time linked plan, adopted by the complainant since the claim of the complainant that he paid a major part of the consideration and only a sum of Rs. 2,59,244/- (Rupees two lakh fifty nine thousand two hundred forty four) was to be paid at the time of registration, the OP/developer is under legal obligation and duty bound to execute and register the deed of conveyance in his favour and to deliver possession of the same without delay.
So far as the claim of the complainant with regard to interest @ 18% per annum is concerned, it can be said that there is no hard and fast rule regarding the payment of interest at a uniform rate of 18% per annum. In Gaziabad Development Authority Vs. Balbir Singh, reported in (2004) 5 SCC 65, the Hon’ble Supreme Court observed and held that “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 ………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”.
Hence, taking into consideration the facts and circumstances of the case in the light of the observation of the Hon’ble Apex Court as quoted above, we firmly conclude that the complainant who was deprived of getting possession of the flat for long should not be given interest of the amount he paid since he is getting more valuable property by way of purchase for which he entitled to the agreement by way of less payment but so far as the harassment of the complainant is concerned we direct that a sum of Rs. 5,00,000/- (Rupees five lakh) shall be paid to the complainant towards compensation which again be adjusted with the balance consideration of Rs. 2,59,244/- (Rupees two lakh fifty nine thousand two hundred forty four). Hence on consideration of the materials on record, we come to the definite conclusion that the complainant deserves principal reliefs in terms of his prayer of the petition of complaint of CC/33/2014 and therefore we allow his prayer and direct the OP to execute and register the deed of conveyance in favour of the complainant in respect of the flat in question and the car parking space within 60 days from the date of the order on acceptance of the balance consideration of Rs. 2,59,244/- (Rupees two lakh fifty nine thousand two hundred forty four) which is subject to adjustment with the compensation of Rs. 5,00,000/- (Rupees five lakh) as indicated above. However, we make it clear that the cost of registration shall be borne by the purchaser and the entire process shall be completed within 60 days from the date of the order, in default the complainant is at liberty to take steps as per provisions of the law.
