18 May 2020


Judgments

National Consumer Disputes Redressal Commission

Thangavel Palanivel & Anr. v. M/s Dlf Southern Homes Private Ltd.

MANU/CF/0409/2016

29.08.2016

Consumer

Interest claimed is taken into consideration for purpose of deciding pecuniary jurisdiction of Commission

Flat Buyers Agreement executed and booking made by Complainants. Possession of flat was not offered to complainant within 27 months from execution of Buyers Agreement. As per Clause 11(a) of Buyers Agreement, opposite party was to endeavor to complete construction of apartment within a period of 27 months from date of said agreement, unless there was delay or failure due to force majeure conditions or due to failure of allottee to pay in time. Further, stipulation that in event of builder being unable to give possession within stipulated period, it would pay compensation @ Rs.5/- per sq.ft. of super area of Apartment for each month of such delay. Complainants have already paid sum to opposite party towards cost of flat which according to them ought to have been delivered by June, 2011. Complainants are therefore before this Commission, seeking refund of entire amount paid by them, along with interest @ 18% per annum.

Section 21(a)(i) of Consumer Protection Act confers jurisdiction upon this Commission to entertain complaint where the value of the goods or services and the compensation, if any, claimed exceeds Rs.1.00 crores. Commission in Swarn Talwar & Ors. Vs. Unitech Ltd. and connected matters, on issue of pecuniary jurisdiction of this Commission observed that, interest claimed by flat buyers in such a case does not represent only interest on capital borrowed or contributed by them but also includes compensation on account of appreciation in land value and increase in cost of construction in the meanwhile. In Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65, Hon’ble Supreme Court observed and held what is being awarded is compensation i.e. a recompense for 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, Forum or Commission must determine that there has been deficiency in service and/or misfeasance in public office which has resulted in loss or injury. Supreme Court recognized that, interest to flat buyers in such cases is paid by way of compensation. Therefore, there is no reason why the interest claimed by complainants or at least part of it should not be taken into consideration for purpose of deciding pecuniary jurisdiction of this Commission. If compensation claimed by complainant is added to sale consideration of flat booked by Complainant, aggregate amount comes to more than Rupees one crore. This Commission therefore, possesses requisite pecuniary jurisdiction.

Complainants were planning for a residence after retirement of complainant No.1. Intention to let out the flat for a temporary period till their retirement, does not justify inference that, flat was purchased by them for a commercial purpose. Plea that, complainants are not consumers of opposite party as defined in Consumer Protection Act not is acceptable. Since, opposite party committed default in performing its contractual obligation, by failing to offer possession of flat to complainants on or before date committed in Buyers Agreement, complainants cannot be compelled to accept possession of said flat at this belated stage. In facts and circumstances of case, including fact that neither possession as offered by committed date nor did opposite party provide an independent entrance to servant room, despite having promised to do so, complainants are entitled to insist upon refund of amount paid by them to opposite party, along with appropriate compensation in form of interest on that amount. Compensation which builder has to pay to buyers in such cases cannot be restricted to compensation stipulated in wholly one side Buyers Agreement and has to be based upon loss suffered by consumer on account of deficiency in services rendered to him.

Relevant

Swarn Talwar & Ors. Vs. Unitech Ltd., Puneet Malhotra Vs. Parsvnath Developers Ltd., Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65

Tags : Service Deficiency Compensation Pecuniary Jurisdiction

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