1.       This appeal under section 19 of The Consumer Protection Act, 1986 is in challenge to the Order dated 05.11.2018 of the State Commission in complaint no. 491 of 2017.  

2.       Mr. Arjun Jain, learned counsel appears for the appellant (the ‘builder co.’). Mr. Raktim Gogoi, learned counsel appears for the respondents no. 1 and no. 2 (the ‘complainants’). The respondent no. 1 (the ‘complainant no. 1’) present in person also makes his submissions.

The record including inter alia the State Commission’s impugned Order dated 05.11.2018 and memorandum of appeal has been perused.

3.       The matter pertains to a builder-buyer dispute. Briefly, the builder co. entered into an agreement with the complainants in respect of the subject flat on 14.09.2010. The total consideration of the unit was Rs. 56,36,404.06. The complainants paid an amount of Rs. 54,98,003/- plus some taxes to the builder co. in the period from 14.09.2010  to 26.11.2014. As per clause 14(a) of the agreement, the possession of the flat was to be handed over within 24 months from the date of start of construction with a grace period of 06 months. It is the builder co.’s assertion that the construction of the project was started on 21.08.2010. The complainants do not object to this date in the arguments today. Counting from the said date the 30 month commitment period inclusive of the grace period for handing over possession elapsed on 20.02.2013. Despite having received almost the entire consideration, possession of the flat was not handed over to the complainants in the assured period or even within a reasonable period beyond (reasonable period here would connote a period which appears reasonable per se and which a reasonable man of ordinary prudence would not normally agitate). The complainants went before the State Commission on 11.08.2017 i.e. 04 years 05 months 21 days after the expiry of the commitment period. During the pendency of the proceedings before the State Commission, possession was offered on 14.03.2018. According to the complainants the actual physical possession of the flat was made on 27.09.2018. The builder co. does not dispute the said date in the arguments today. Holding the abnormal unreasonable delay in handing over possession of the flat to be ‘deficiency in service’ on the part of the builder co. the State Commission has ordered for compensation by way of interest at the rate of 9% per annum on the amount deposited by the complainants for the period of delay (“- - - It is a case where the reasonable interest @ 09% could be allowed. Hence with these observations the complaint stands allowed and the interest @ 09% be allowed or calculated on the amount paid by the complainants in different phases. - - -”). It has also stipulated that the rate of interest shall stand enhanced to 12% if the payment is not made within two months (“- - - In case, there is a breach in making payment within the stipulated period of two months, in that eventuality, the complainants would further be entitled to get the interest @ 12% per annum, for the defaulting period - - - ”). It has awarded Rs. 21,000/- as cost of litigation.

4.       Learned counsel for the builder co. submits that the complainants obtained this flat for “speculative purpose” and “undue enrichment” and therefore they are not ‘consumer’ within the meaning of Section 2(1)(d)(ii) of the Act 1986.

Learned counsel for the complainants submits that the complainants no. 1 and no. 2 are father and son and they have no other own flat except the subject flat. After taking the belated possession, they are residing in the same.

The complainant no. 1 in person categorically submits that he has no other flat at all.

5.       We see that such allegation was made in para 4 of the written version. The State Commission in para 2 of its Order has recorded that “- - - The complainants have opted construction linked payment schedule. - - -.” There is not even an iota of evidence furnished by the builder co. to substantiate its assertion that the flat was purchased for “speculative purpose” and “undue enrichment”. Having made this allegation the onus was on the builder co. to substantiate that the flat was in fact for ‘commercial purpose’, which onus it has miserably failed to discharge.  Most obviously the objection has been taken only for the sake of objection with no merit or worth, and warrants to be dismissed out-and-out.

6.       Learned counsel for the builder co. further argues that the complaint was beyond the pecuniary jurisdiction of State Commission. In this regard he refers to para 5 of its written version, which is reproduced below for reference:

That the complainants have filed the present complaint raising various disputes against the opposite parties. That further the complainants has claimed possession of  the flat and the value of the flat as per Statement of Account is Rs. 62,33,610/- and the complainants has further claimed interest to the tune of Rs. 33,23,478 plus Rs.5,00,000/- compensation and litigation expenses as 1,00,000/- which exceeds the pecuniary jurisdiction of this Hon’ble Commission and the complaint is liable to be dismissed on account of lack of pecuniary jurisdiction in view of Ambrish Kumar Shukla Vs. Ferrous Infrastructure decided in CC/97/2016 decided on 7.10.2016 by a larger bench of Hon’ble National Commission. That the value of claim along with interest is certainly beyond the purview of the Pecuniary Jurisdiction of this Hon’ble Commission and is liable to be dismissed on this ground alone.

The submission is that the total value of the unit including interest, taxes, etc. was Rs. 62,33,610/-, the interest claimed by the complainants came to Rs. 33,23,478/-, lumpsum compensation claimed was Rs. 5,00,000/- and litigation expenses claimed were Rs. 1 lakh. This together exceeded Rs. 1 crore and was therefore not within the pecuniary jurisdiction of the State Commission but of this Commission.

Learned counsel for the complainants draws our attention to the tabulation given in the complaint, which is reproduced below for reference:

CALCULATION SHEET

He submits that when it was contended before the State Commission that the total value inclusive of interest, taxes, etc. was Rs. 62,33,610/-, which, if added to the lumpsum compensation and the litigation expenses and the interest claimed at the rate of 12% per annum, exceeded Rs. 1 crore, the complainants, not wanting any controversy on this count, voluntarily reduced and conceded to rate of interest of 10% so that whichever computation the builder co. may wish to adopt in all contingencies the total value of the services and the compensation claimed together did not exceed Rs. 1 crore.

In support of their respective arguments learned counsel for both sides draw attention to paras 15 and 16 of the State Commission’s Order wherein this issue has been discussed by the State Commission. The same are reproduced below for reference:

15. In the considered opinion of this Commission for the purpose of ascertaining the exact amount, which has been paid by the complainants including taxes etc. is Rs. 62,33,610/- Ex. C-11. For the purpose of determination of the pecuniary jurisdiction, whatever the amount of interest had been claimed is also to be excluded but it is the discretion of the Commission what rate of interest is to be allowed, inspite of the fact that complainants has restricted his claim qua the interest @10%.

16.       Now keeping in view the contentions raised on behalf of the O.Ps., it is suffice to say that when the total amount does not exceeds Rs. One crore which is within the jurisdiction of this Commission, neither a separate application was required for the purpose of amendment of the complaint or even if a subsequent statement has been made to restrict the claim qua the interest, it does not hamper the claim raised by the complainants, as such, even if the other clause i.e. 11(i) had been referred by the learned counsel for the O.P.s. it does not also render any assistance as the total cost excluding the taxes if any subject matter of the buyers agreement, those taxes are to be paid by the complainants and even if the amount has not been claimed by the complainants, it has been paid as taxes it does not any difference as far as the pecuniary jurisdiction is concerned. The ratio laid down in both the authorities reported by O.ps. does not squarely covered the facts and circumstances involved in the present complaint and render no assistance to the O.Ps.

7.       We note that when the complaint was entertained by the State Commission the computation of the total value of the services plus the compensation claimed in the complaint was for an amount of Rs. 95,61,882.06, which did not exceed Rs. 1 crore. As such it fell within the pecuniary jurisdiction of the State Commission.

In its written version the builder co. mentioned this objection in para 5. The total consideration was Rs. 56,36,404.06. The total value inclusive of interest, taxes, etc. was asserted to be Rs. 62,33,610/-. But the requisite calculation to arrive at this exact figure was not given in the written version. Interest claimed was shown as lumpsum amount of Rs. 33,23,478/-. But the way and basis of calculating this exactly was not given. The onus was on the builder co. to work out its calculations meticulously and to detail them in its written version in a manner that the sum total being shown was clear at a glance, to enable meaningful consideration of the same. But the requisite clarity was not there, to conclusively and readily show that the pecuniary jurisdiction was in fact being infringed.

The builder co. did not get this preliminary issue taken up by way of any interlocutory application or submission during the course of the entire proceedings before the State Commission so as to get it decided at the relevant time in the preliminary stage of the proceedings itself. But it rather participated in the entire proceedings including by way of filing evidence and then argued this preliminary issue purposely only at the stage of the final hearing. The complainants voluntarily conceded to curtail the rate of interest from 12% per annum to 10% per annum so that in all contingencies the pecuniary jurisdiction of the State Commission was not infringed.

The natural consequence of the preliminary objection regarding pecuniary jurisdiction being sustained would have been that the complaint would have been returned to complainants, to file it again before the appropriate forum having the jurisdiction therefor. As such the onus was on the builder co. to press this preliminary issue during the nascent phase of proceedings before the State Commission at the relevant time by way of an application or submission but it designedly omitted to do so. Conspicuously enough it argued this point purposely only at the stage of final hearing when the main focus and thrust of the arguments were essentially on the substance of the dispute i.e. whether there has been deficiency in service by way of unreasonable delay in handing over possession and if so what ought to be the just and equitable compensation therefor commensurate with the loss and injury suffered.

During the pendency of the case it also made offer of possession and delivery of possession.

Most obviously this does not appear to be a case where either the complainant has been accused of forum hunting or the forum below has been arraigned of malafides in bestowing jurisdiction on itself.

Pertinently the committed date of handing over possession was 20.02.2013. The possession was most belatedly made on 27.09.2018. The case was filed in the State Commission on 11.08.2017. It was decided on 05.11.2018. The present appeal was filed before this Commission on 24.06.2019. Today it is listed for final hearing. As such over 10 years have been taken in the litigation before the two fora i.e. the State Commission and this Commission.

Having regard to the totality of the situation, it might result in complete miscarriage of justice if a case of such a nature is, now, after over 10 years of litigation, allowed to abort on the preliminary issue of pecuniary jurisdiction and the whole proceedings are restarted afresh before this Commission in its original jurisdiction. As such we do not find the need to work out or rediscover with mathematical exactitude at this stage the total value of the services plus the compensation claimed from the stray data available on the record in order to ascertain whether or not in fact the pecuniary jurisdiction was marginally infringed. Nor do we wish to sit making an ultramicroscopic critique over the examination made by the State Commission in paras 15 and 16 of its Order which appears prima facie upto the mark. Suffice is to say that the onus to meticulously show before the State Commission at a ready glance that its pecuniary jurisdiction was being violated, as also to genuinely, purposefully and meaningfully press its preliminary issue in right earnest at the earliest, was not discharged by the builder co., there is no perceivable ingredient of malafide or forum hunting inherent in the case at all, and as such we find no good ground or reason to consider dismissing this case on maintainability at this stage.

8.       Learned counsel for the builder co. however insists that the case ought to be dismissed on the preliminary issue of pecuniary jurisdiction and the complaint ought to be returned to the complainants to file it again before the appropriate forum i.e. this Commission for decision afresh.

9.       Coming to the substance of the matter, it is admitted by both sides that the committed date of offering possession was 20.02.2013 but it was in fact made on 27.09.2018. The delay on the face of it itself is abnormally unreasonable. It bears emphasis that the commitment period which ended on 20.02.2013 was inclusive of a 06 month grace period. The grace provided for in the agreement, by its very nature, was in itself an extended period of delay. That is to say, it itself provided to take care of some reasonable delay as a grace. That being so, delay even beyond the grace, without any cogent or convincing reasons, is clearly unjustified and untenable and hard to overlook.

10.     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 committed 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 committed period.

11.     Most disconcertingly, even though the builder co. has absolutely no argument to make on its patent deficiency in respect of the abnormal unreasonable delay, vain attempts to argue on preliminary issues of maintainability have been made which too are meritless.

12.     Learned counsel for the builder co. lastly argues on the quantum of compensation. He submits that the compensation by way of interest on the deposited amount for the period of delay awarded at the rate of interest of 9% per annum by the State Commission is unreasonable and high. In the opinion of the learned counsel, rate of interest of 6% per annum or less will be just and equitable. He submits that the builder co. will not accept anything more than 6% per annum. He also submits that he does not have the instructions as to which the rate of interest the builder co. is ready to settle the matter with the complainants but if rate of interest lower than 6% per annum is being offered by the builder co. in settlement efforts the same ought to be adopted. He also submits that the value of the flat has gone up in the interregnum and this itself is enough compensation. Learned counsel further argues that the penal interest of 12% for delay in making payment is unduly harsh and ought to be dispensed with.

Learned counsel for the complainants submits that the complainants had asked for rate of interest of 12% per annum in their complaint. However, the issue of pecuniary jurisdiction was argued by the builder co. To avoid any controversy they had made concession that they will be satisfied with the rate of interest of 10% per annum only. The State Commission has ultimately awarded rate of interest of 9% per annum. In the opinion of the learned counsel the same is barely just and equitable, if not on the lower side.

The complainant no. 1 in person submits that he is a retired secretariat employee of the state government. This is the only flat which he possesses. Even though he had taken loan at a somewhat higher rate of interest, he will be satisfied with rate of interest of 9% per annum as awarded by the State Commission. He also voluntarily concedes that the penal interest of 12% per annum may not be awarded. He also submits that he is about 85 years old now and wants an end to his litigation so that he can spend the rest of his life in peace.

13.     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.

14.    We may note that the Act 1986 is for “better protection of the interests of consumers”, in a fight which is recognizedly amongst unequals often. In the case at hand, we have the builder co. on the one hand, with adequate and more wherewithal, and an ordinary normal consumer on the other side, without much wherewithal. The builder co. has absolutely no argument to make in respect of its patent deficiency of abnormal unreasonable delay in making possession. It admits its deficiency, gives no explanation for the same, no apology, no regret, but its main focus is to anyhow get the case dismissed on preliminary objections. The preliminary objections, that the acquisition was for “speculative purpose” and “undue enrichment” fails miserably for lack of even a shred of evidence being furnished. The other preliminary objection on pecuniary jurisdiction also fails miserably and is not to serve any purpose at this stage, it was not placed with the requisite clarity before the State Commission as to how its jurisdiction was being exceeded, the articulation made in the written version was scarce and nebulous and did not give the basis for the figures indicated therein, the preliminary issue was not raised first and foremost by way of application or submission at the relevant time in the nascent stage of the proceedings so that if the matter did not fall within the pecuniary jurisdiction of the forum concerned the complaint could be returned to the complainants for filing the same before the forum having the jurisdiction therefor without wasting time and resources, the attempt was to complete the evidence and prolong the proceedings before the State Commission and then at the stage of final hearing to get the case dismissed on a preliminary issue. It is crystal clear that this is not a case of any malafide intention or forum hunting etc. Even in the arguments today in appeal before this Commission the effort is to anyhow escape justice and get the complaint dismissed on maintainability for filing afresh before this Commission and for the proceedings to start all over again on an issue in which the delay is admitted, the deficiency is unexplained, and the only question being argued on substance is the quantum of compensation. Such approach merits some condign damages with stern reprimand.

15.     Sequel to the above discussion, the State Commission’s Order is modified to the extent that the builder co. shall pay the interest at the rate of 9% per annum for the period of delay from 20.02.2013 to 27.09.2018 on the complainants’ deposited amount from the respective dates of deposit till actual realisation along with cost of litigation of Rs. 21,000/-.

The penal interest at the rate of 12% awarded by the State Commission has been conceded to by the complainants in arguments today and as such is dispensed with. Though we may add that as a principle there was nothing wrong in the State Commission moulding in the penal interest provision in its Order because the self-evidently purpose was to ensure the timely compliance of its award. As such the dispensing of the penal interest in this particular case, which is on concession by the complainants, shall not be treated as a precedent.

We also impose a cost of Rs. 1 lakh on the builder co. with stern reprimand, to be deposited in the Consumer Legal Aid Account of the State Commission within six weeks from today.

The amount as any deposited by the builder co. with the State Commission in compliance of this Commission’s interlocutory Order dated 09.09.2019 along with interest if any accrued thereon shall be forthwith released by the State Commission to the complainants.

The residual amount of the award, as firmed-up herein, shall be made good by the builder co. within six weeks from today, failing which the State Commission shall undertake execution, for ‘enforcement’ and for ‘penalty’, as per the law.  

16.     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.