Sunday, 28 July 2024

Supreme Court: Party Whose Right To File Written Statement Is Forfeited Cannot Introduce Its Case Indirectly Through Evidence

Thus, the position is that even if the

defendant/opposite party failed to file a written

statement and, in that matter, even if forfeiture of the

right to file written statement has occasioned it would not

disentitle that party from participating in the further

proceedings, without filing a written statement and in

such circumstances, the said party would also be having

the right to cross-examine the witness(es), if any, of the

plaintiff/complainant. {Para 15}



18. In the context of the aforesaid provisions under the

CPC, it is apt to refer to a decision of a Division Bench of

the Karnataka High Court in Nalini Sunder v. GV

Sunder AIR 2003 Kar 86 . It was held therein that a party could not make out a case on the basis of evidence for which he/she has

laid no foundation in the pleadings. It is fairly settled

that no amount of evidence can prove a case of a party

who had not set up the same in his/her pleadings, it was

further held therein. According to us, it is the correct

proposition of law. In the absence of any specific

provisions dealing with non-filing of written

statements/forfeiture of the right to file a written

statement, taking note of the general position as above,

it can only be held that it should bar the opposite party

in a proceeding before the Consumer Redressal Forums

to bring in pleadings, indirectly to introduce its/his case

and evidence to support such case. In the situations

mentioned above, the right of the opposite party is

confined to participate in the proceedings without filing

a written statement and to cross-examine witness(es), if

any, examined by the complainant(s). It be the position

of law, the first respondent who is bound by Annexure P18 order could not have been permitted to introduce its

case to defend the case of the complainants through

written submissions though it was rightly permitted to

participate in the proceedings. There is no case for the

first respondent that it sought permission to crossexamine Kaushik Narsinhbhai Patel who filed affidavit of

evidence and produced documentary evidence. At any

rate, no such case was put forth by the first respondent

and no grievance of denial of such opportunity was also

raised. In the circumstances expatiated above, in view

of Annexure P-18 order the reply and objection filed by

the first respondent herein in this proceeding also

cannot be looked to the extent it carries pleadings

relating its case, the reasons and objections which could

have been let in through a written statement. In short,

the first respondent could be permitted only to argue the

legal questions arising based on authorities and

provisions of law as also regarding lapses or laches and

the consequential non-admissibility or otherwise of

evidence, let in by the appellants.

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No. 8176 of 2022

Kaushik Narsinhbhai Patel & Ors. Vs M/s. S.J.R. Prime Corporation Private Limited & Ors.

Author: C.T. RAVIKUMAR, J.

Citation:2024 INSC 542.

1. The appellants, 46 in numbers, along with

respondent Nos.2 to 6 herein (proforma respondents)

filed Consumer Case No. 945 of 2019, against

Respondent No.1 herein, complaining of deficiency in

service raising various grounds, which culminated in the

impugned order dated 15.09.2022 of the National

Consumer Disputes Redressal Commission (NCDRC),

New Delhi. Allured by the representation of the first

respondent-builder, each of the appellants booked

separate flats in its declared project namely, ‘Fiesta

Homes by SJR Prime’. A Construction Agreement dated

Page 2 of 27

Civil Appeal No. 8176 of 2022

31.03.2012 was entered into between the complainant

and Respondent No.1 (Annexure P-2). Going by Clause

6.1 of the Construction Agreement, possession of flats

was liable to be handed over, after completion of the

construction, on or before March, 2014, with a grace

period of six months. However, considerable delay had

occurred in completing and handing over possession of

flats and as per the complainants, it was after about four

years down the timeline that possession was handed

over to them. Deficiency in construction aggravated the

situation and made the appellants and the proforma

respondents (hereinafter referred for brevity, ‘the

complainants’ unless otherwise specifically mentioned)

to approach the NCDRC by filing the aforesaid complaint

seeking the following reliefs: -

“i. Pay to each of the complainants & to each buyer

having same interest, compensatory interest @

18% p.a. for abnormal & inordinate delay in

handing over possession of flats to complainants,

computing the total period of delay as indicated in

Para 11.11 of the Consumer Complaint;

ii. Refund the illegally charged car parking fee to

complainants & to each buyer having same interest

with an interest @ 18% p.a. & to hold the OP guilty

Page 3 of 27

Civil Appeal No. 8176 of 2022

of committing unfair and restrictive trade practice

against the complainants & also against each

buyer having same interest;

iii. Refund to the complainants & to all buyers

having same interest, the excess and illegally

charged “legal fee” at the actual with an interest

@ 18% p.a. and also to declare the OP guilty of

committing unfair & restrictive trade practice

against the complainants and also against each

buyer having same interest;

iv. Refund to the complainants & to all buyers

having same interest, fee charged towards

BESCOM & BWSSB charges after deducting as per

actual with an interest @ 18% p.a. & also to

declare the OP guilty of committing unfair and

restrictive trade practice against the complainants

& also against each buyer having same interest;

and/or

v. Direct OPs to provide in time bound manner,

Green Jogging Track and Convenience Store as

promised in Brochure, else pay compensation of

Rupees Five Lakhs to each complainant and to

each buyer having same interest; and/or

Page 4 of 27

Civil Appeal No. 8176 of 2022

vi. Pass any other and/or further relief, which this

Hon’ble Commission thinks fit and proper, in the

facts and circumstances of the case, in favour of the

complainants and against the OP.”

2. The complaint was partially allowed by the NCDRC

as per the impugned order dated 15.09.2022. Before

considering the rival contentions raised before us, it is

worthwhile to refer to certain vital facts.

3. The complainants filed Consumer Complaint

No.945 of 2019 in May, 2019. Subsequent to its filing, the

first respondent-builder issued certain e-mails to

complainants between January, 2020 to June, 2020,

addressing them individually and requiring them to

contact its legal department in connection with the

grievance raised in C.C. No.945 of 2019. Though this was

done during the pendency of the Consumer Complaint,

and that too, in respect of the grievance raised in C.C.

No.945 of 2019, notice to the first respondent remained

unserved. Thereupon, the NCDRC passed an order on

27.01.2021 on the following lines: -

“Notice of the complaint still remains unserved.

Issue fresh notice of the Complaint along with all

pending applications to the Opposite Party under

Section 38 (3) (a) of the Consumer Protection Act,

Page 5 of 27

Civil Appeal No. 8176 of 2022

2019 making it clear that if the Opposite Party

wishes to contest the allegations in the Complaint,

it may file the Written Statement within thirty days

of the receipt of notice in the complaint, failing

which its right to file Written Statement may be

closed.”

4. The aforesaid order was challenged by the

appellants before this Court in Civil Appeal No.715 of

2021 which was allowed as per (Annexure P-18, referred

as such in the SLP) order dated 11.08.2021. Taking note

of certain indisputable and undisputed factual position,

this Court arrived at the conclusion that the first

respondent-builder was well aware of the pendency of

the C.C. No.945 of 2019 before the NCDRC and went on

to hold thus: -

“The conduct on the part of respondent-builder in

not filing written statement does not entitle him to

any further benefit. It must, therefore, be declared

that the respondent has forfeited his right to have

filed written statement and it is hereby declared

so.

The appeal, therefore, stands allowed. The

C.C.No.945 of 2019 shall now be proceeded

Page 6 of 27

Civil Appeal No. 8176 of 2022

further without the written statement of the

respondent-builder. It shall however, be open to

the respondent-builder to participate in the

proceedings.”

5. We will refer to the contentions raised based on

Annexure P-18 order and its tenability or otherwise, a

little later. Subsequent to Annexure P-18 order, NCDRC

considered C.C. No.945 of 2019, which culminated in the

order impugned in this appeal.

6. Heard, Mr. Ajit Kumar Sinha, Senior Counsel

appearing for the appellants and Mr. Balaji Srinivasan,

learned counsel for the first respondent.

7. A scanning of the impugned order would reveal

that the NCDRC has recorded a clear finding that there

occurred delay in handing over the flats to the

appellants. As a necessary sequel to such finding and

findings on the other allied grievance and claims, the

impugned order was passed on 15.09.2022. The

operative portion of the impugned order reads thus: -

“In view of the aforesaid discussions, the complaint

is partly allowed. The opposite party is directed to

pay delayed compensation in the shape of interest

@ 6 % per annum on the deposit of the

Page 7 of 27

Civil Appeal No. 8176 of 2022

complainants from due date of possession as

determined for each buyer in the manner as

provided in paragraph-8 of the judgment till the

date of offer of possession and construct Green

Jogging Track and Convenience Store, within a

period of two months from the date of this

judgement.”

8. It is to be noted that despite the nature of the

impugned order and creation of liability on the first

respondent, as above, the complainants alone have

chosen to prefer appeal and the first respondent No.1

has not chosen to challenge the same. In the said

circumstances, the findings of NCDRC on delayed

handing over of the flats to the complainants and on nonconstruction of Green Jogging Track and Convenience

Store can only be taken as having become final. Ergo,

the scope of this appeal is limited to a few questions,

which we will discuss and deal with later.

9. For a proper disposal of this appeal, it is apposite

to refer to paragraph 8 of the impugned order, which

reads as follows: -

“In the present case, due date of possession was

September, 2014, while “occupancy Certificate”

Page 8 of 27

Civil Appeal No. 8176 of 2022

was obtained 17.05.2017 and possession was

delivered thereafter. The complainants have not

given date-wise payment schedule. Schedule-E of

this agreement contained “Construction Linked

Payment Plan” under which, total sale

consideration was payable in 12 instalments on

different levels of the construction. As such for the

purposes of delayed compensation, we think it

appropriate that due date of possession will be

considered after expiry of six month from the

payment of 11th instalment by the home buyer.

The developer would be entitled for further six

months as grace period. The developer shall pay

delayed compensation in the shape of interest @

6% per annum on the deposit of the complainants

from the due date of possession as determined in

accordance of above formula till the date of actual

possession.”

10. One of the main contentions of the appellants is that

ignoring Annexure P-18 order of this Court, the NCDRC

virtually permitted the first respondent to introduce facts

to dispute their claims and complaints inasmuch as the

opportunity offered to the first respondent by NCDRC to

Page 9 of 27

Civil Appeal No. 8176 of 2022

file written submissions was utilised by the first

respondent to introduce new facts to resist their claims

and contentions. Such newly introduced facts and factors

by the first respondent through written submissions,

obviously, weighed with NCDRC in adopting the formula

followed in paragraph 8 of the impugned order, for the

purpose of computation of compensation payable to the

complainants, it is contended.

11. We will straight away verify the verity of the

aforesaid contentions with reference to Annexure P-18

order dated 11.08.2021, firstly, to see whether the same

was overreached and then, subject to its answer and

consequences of its defiance. A bare perusal of

Annexure P-21, which is the written submissions on

behalf of the first respondent herein (opposite party

therein) filed before the NCDRC and marked as such in

this proceeding, without any peradventure would go to

show that in and vide the said written submissions, the

first respondent had introduced some pleadings to resist

the claims and the contentions of the complainants in CC

No.945 of 2019 and eventually, to offer its explanation for

the delay in handing over possession of the flats. The

raison d’etre for our remarks would be unravelled by a

Page 10 of 27

Civil Appeal No. 8176 of 2022

mere perusal of Annexure P-21. Paragraph 3 thereof,

opens thus: -

“The complainants do not deserve any

compensation as,”

(underline supplied)

12. Thenceforth, under para 3 (i) to 3 (iii), the

respondents gave the reasons therefor. Through

paragraph 4 of Annexure P-21, the respondent

introduced further reasons to support its stand that the

complainants do not deserve compensatory interest for

the delay in handing over possession of flats. It is to be

noted that even after taking a stand at paragraph 5

thereof that there was no delay at all from its part, the first

respondent proceeded to explain the delay in

paragraph 6. The statements made in the further

paragraphs of Annexure P-21 also carry, either the case

of the first respondent or its explanations/reasons to

counter the claim of the complainants. To put it pithily,

the first respondent, on being given the opportunity to

file written submission, made use of it to make good its

failure to file a written statement despite the fact that its

right to file the same was declared as forfeited by this

Court.

Page 11 of 27

Civil Appeal No. 8176 of 2022

13. We are at a loss to understand as to how, such an

opportunity could have been utilised by the first

respondent in defiance to the specific directions of this

Court under Annexure P-18 order and to file a written

submission of such a nature. Under Annexure P-18

order, this Court declared that the first respondent had

forfeited its right to file a written statement and then

permitted, rather, directed to proceed further without

the written statement of the first respondent-builder.

True that even then its right to participate in the

proceedings was protected, presumably, taking into

account the position of law in that regard. We will deal

with the scope of such permitted participation as also the

consequence of the act of defiance of Annexure P-18

order depending on its degree of defiance and its

impact. In doing so, we will have to keep reminded of

the principle of law that what cannot be done directly,

cannot be done indirectly.

14. The discussion as above, would take us to the next

question as to what is the impact of forfeiture of

opportunity to file written statement? We are fully aware

of the fact that all the provisions in the Code of Civil

Procedure, 1908, (for short ‘the CPC’) are not proprio

vigore applicable to proceedings before Consumer

Page 12 of 27

Civil Appeal No. 8176 of 2022

Forums created under the Consumer Protection Act,

2019, except to the extent it is provided under Section 38

(9) of the Consumer Protection Act. Be that as it may, in

the absence of specific provisions dealing with the

consequence of forfeiture of the right to file a written

statement, it is only appropriate to refer to the provisions

and positions dealing with such situations in the CPC to

know the general law on this question. In this context, it

is worthy to refer to a decision of this Court in

Nanda Dulal Pradhan & Anr. v. Dibakar Pradhan &

Anr 2022 SCC OnLine SC 822 . It was held therein thus: -

“……as observed and held by this Court in the

case of Sangram Singh (supra) on setting aside the

ex parte decree and on restoration of the suit the

parties to the suit shall be put to the same position

as they were at the time when the ex parte

judgment and decree was passed and the

defendants may not be permitted to file the written

statement as no written statement was filed.

However, at the same time they can be permitted

to participate in the suit proceedings and cross

examine the witnesses. In that view of the matter

the impugned judgment and order passed by the


High Court is unsustainable. Still, on setting aside

the ex parte judgment and decree, though the

defendants who had not filed the written

statement, can be permitted to participate in the

suit and cross examine the witnesses. Therefore,

the High Court is not right in observing that as no

written statement was filed by the defendants, the

reopening of the suit by setting aside ex parte

judgment and decree will become futile. As

observed hereinabove the High Court has not at all

observed anything on the correctness of the order

passed by the First Appellate Court setting aside

the ex-parte judgment and decree on merits.

15. Thus, the position is that even if the

defendant/opposite party failed to file a written

statement and, in that matter, even if forfeiture of the

right to file written statement has occasioned it would not

disentitle that party from participating in the further

proceedings, without filing a written statement and in

such circumstances, the said party would also be having

the right to cross-examine the witness(es), if any, of the

plaintiff/complainant.


16. In the contextual situation, it is also appropriate to

refer to Rule 1 & 2, Order VI of the CPC which reads

thus:-

“Pleading. - “Pleading” shall mean the plaint or

written statement.”

Rule 2, Order VI, in so far as, reads thus: -

“(1) Every pleading shall contain, and contain

only, a statement in a concise form of the material

facts on which the party pleading relies for his

claim or defence, as the case may be, but not the

evidence by which they are to be proved.”

17. The rigour of the rule of pleadings is evident from

Rule 7 of Order VI, CPC, which mandates that ‘no

pleading shall, except by way of amendment, raise any

new ground of claim or contain any allegation of fact

inconsistent with the previous pleadings of the party

pleading the same’.

18. In the context of the aforesaid provisions under the

CPC, it is apt to refer to a decision of a Division Bench of

the Karnataka High Court in Nalini Sunder v. GV

Sunder AIR 2003 Kar 86 . It was held therein that a party could not make out a case on the basis of evidence for which he/she has

laid no foundation in the pleadings. It is fairly settled

that no amount of evidence can prove a case of a party

who had not set up the same in his/her pleadings, it was

further held therein. According to us, it is the correct

proposition of law. In the absence of any specific

provisions dealing with non-filing of written

statements/forfeiture of the right to file a written

statement, taking note of the general position as above,

it can only be held that it should bar the opposite party

in a proceeding before the Consumer Redressal Forums

to bring in pleadings, indirectly to introduce its/his case

and evidence to support such case. In the situations

mentioned above, the right of the opposite party is

confined to participate in the proceedings without filing

a written statement and to cross-examine witness(es), if

any, examined by the complainant(s). It be the position

of law, the first respondent who is bound by Annexure P18 order could not have been permitted to introduce its

case to defend the case of the complainants through

written submissions though it was rightly permitted to

participate in the proceedings. There is no case for the

first respondent that it sought permission to crossexamine Kaushik Narsinhbhai Patel who filed affidavit of

evidence and produced documentary evidence. At any

rate, no such case was put forth by the first respondent

and no grievance of denial of such opportunity was also

raised. In the circumstances expatiated above, in view

of Annexure P-18 order the reply and objection filed by

the first respondent herein in this proceeding also

cannot be looked to the extent it carries pleadings

relating its case, the reasons and objections which could

have been let in through a written statement. In short,

the first respondent could be permitted only to argue the

legal questions arising based on authorities and

provisions of law as also regarding lapses or laches and

the consequential non-admissibility or otherwise of

evidence, let in by the appellants.

19. Having held as above, the next question to be

looked into is whether NCDRC had given weight to any

such pleadings and contentions taken by the first

respondent in its written submissions and/or whether the

decision of NCDRC is based on any fact, factors or data

furnished by the first respondent beyond the extent

permissible on account of the legal trammel of forfeiture

of its opportunity to file a written statement. At this

juncture, we may hasten to add that even when the

defendant’s/opposite party’s right to file a written

statement is forfeited that by itself will not make it


obligatory on the part of the NCDRC to pass an order in

favour of a complainant in case the complainant

concerned failed to establish its case. This power is to

be read into the jurisdiction of a body with adjudicating

power. This is because there is distinct difference

between a situation of non-filing of a written statement

pursuant to a declaration that the opposite party had

forfeited the right to file a written statement and absence

of denial of specific pleadings of complainant in the

written statement filed by an opposite party. Certainly,

in the latter case, absence of denial of specific pleadings

on facts they can be taken as admitted. In the case on

hand, it is to be noted that actually as per order dated

27.01.2021, NCDRC had granted time to the first

respondent to file a written statement with a caution that

in case of failure to file the same within the stipulated

time, the right to file a written statement would be

closed. It is this order dated 27.01.2021 that was

challenged by the complainants that ultimately

culminated in Annexure P-18 order of declaration of

forfeiture.

20. A close scrutiny of the impugned order in

juxtaposition with the written submissions filed by the

first respondent would go to show that NCDRC had not

actually accepted the case of the first respondent raised

in defence in its written submissions or in that matter, no

reason or objection raised in the written statement was

also adverted to, for rendering its decision on the

complaint. In such circumstances, though the action on

the part of the first respondent who suffered Annexure P18 order, in bringing on record its case and contentions

to resist the case and contentions of the complainants,

cannot be appreciated, the contention of the appellants

based on the same became inconsequential. As stated

earlier, in view of Annexure P-18 order, we are also not

going to advert to any case, claims or contentions of the

first respondent raised in its reply and objection filed in

this proceeding, except to the legally permissible limit,

in case any such material is available on record. We

have already concurred with the decision of the

Karnataka High Court in Nalini Sunder’s case (supra)

that a party could not make out a case on the basis of

evidence for which he/she had laid no foundation in the

pleadings. In the absence of a written statement,

naturally, there can be no pleadings, in the case, for the

first respondent in the eyes of law. Though the first

respondent participated in the proceeding before the

NCDRC, it could not bring-forth anything admissible in

Page 19 of 27

Civil Appeal No. 8176 of 2022

view of the impact of forfeiture under Annexure P-18

order.

21. The discussion as above would lead to the last

question as to whether the impugned order invites

interference on any other ground. The core contention

of the appellants that while passing the impugned order,

NCDRC failed to consider the relevance and impact of

Clause 6.1 of the Construction Agreement. No doubt, it

is a matter that requires consideration. Clause 6 of the

said Construction Agreement reads thus: -

“6) COMPLETION & DELIVERY OF POSSESSION:

6.1) The possession of the Schedule ‘C’ apartment

in Schedule ‘A’ Property will be delivered by the

Second Party to the First Party after completion of

construction as far as possible on or before the

month of March year 2014 with Six months grace

period additionally.

6.2) ….

6.3) In case of delay in delivery of the apartment

for reasons other than what is stated above, the

Second Party is entitled to a grace period of Six

months and if the delay persists, the Second Party

shall pay the First Party damages at Rs. 2/- (Rupees

Two Only) per Sq. Ft. super built up area per

Page 20 of 27

Civil Appeal No. 8176 of 2022

month of delay of the Schedule ‘C’ Apartment till

delivery, provided the First Party has/ have paid

all the amounts payable as per this Agreement and

within the stipulated period and has not violated

any of the terms of this agreement and Agreement

to Sell….”

22. A perusal of Clause 6.1 of the Construction

Agreement would reveal that it specifically mentions the

promised date for handing over the possession viz., the

due date for handing over possession as ‘on or before

March, 2014’. True that in terms of Clause 6.1,

additionally, six months grace period is available to the

first respondent-builder. Thus, going by the terms of

Construction Agreement, the due date for handing over

possession of flats could have been, rather should have

been fixed only in terms of Clause 6.1 of the said

Agreement. However, the impugned order would reveal

that without considering Clause 6, the due date for

handing over of possession of flats was fixed by the

NCDRC by reckoning six months grace period from the

date of payment of instalment No.11 (eleven), by the

home buyer. Therefore, the question is which among the

two methods is legally permissible. While the appellants

Page 21 of 27

Civil Appeal No. 8176 of 2022

contend that the former is bound to be followed in the

matter of fixing the due date for handing over possession

of flats, the first respondent would contend that the

method adopted by the NCDRC is just and reasonable

and there is no warrant or justifiable reason for any kind

of interference. The decision in R.V. Prasannakumaar &

others. V. Mantri Castles Private Limited & Another.3,

referred to by the NCDRC, itself would answer this issue.

In R.V. Prasannakumaar’s case (supra), going by the

terms of the flat purchase agreement, possession of flats

was liable to be handed over to the buyers on

31.01.2014. In that case about two years delay had

occurred in the matter of handing over of possession.

Consequently, NCDRC took the due date for handing

over of possession with reference to the flat purchase

agreement and fixed it as 01.02.2014. The fixation of the

due date for possession as 01.02.2014 was upheld by this

Court in R.V. Prasannakumaar’s case (supra). If that be

so, in the absence of any exceptional circumstances,

NCDRC should have fixed the date for possession in the

same manner as has been done in R.V.

Prasannakumaar’s case (supra), viz., in terms of the

conditions in the Construction Agreement. True that in

3

(2020) 14 SCC 769

Page 22 of 27

Civil Appeal No. 8176 of 2022

view of the specific condition for grant of six months

grace period additionally to the buyer, the due date for

possession in terms of Clause 6.1 of the agreement ought

to have been fixed by reckoning six months from March,

2014, the promise date for handing over the flats

mentioned in the Construction Agreement. A scanning

of the impugned order would reveal no exceptional

circumstances for making deviation from the formula

followed in R.V. Prasannakumaar’s case (supra) for

fixing the due date for possession. NCDRC observed

that the complainants have failed to give date-wise

payment schedule. We are at a loss to understand as to

how that can be a reason for fixing the due date for

possession in total disregard to the method adopted in

R.V. Prasannakumaar’s case (supra). The discussion in

paragraph 8 would suggest that NCDRC after taking into

account the fact that Schedule-E of the agreement

contained ‘Construction Linked Payment Plan’

whereunder the sale consideration was to be paid in 12

instalments on different levels of construction, formed

the opinion that the fixation of due date for possession is

closely linked with payment of instalments as mentioned

in Schedule-E. We have no hesitation to hold that there

is no rationale for such a conclusion for the reason that as

Page 23 of 27

Civil Appeal No. 8176 of 2022

it was arrived at without considering the relevant

condition contained in Clause 6.1 of the Construction

Agreement which relates to fixation of due date for

possession. True that Schedule-E contained

‘Construction Linked Payment Plan’ and it provides for

payment in 12 instalments on different levels of

construction. Certainly, it was so incorporated to

obligate the buyer to pay the due instalment depending

upon the stage of construction. Hence, delay in effecting

construction cannot be a reason for denying

compensation, which was also contemplated under

Clause 6 of the Construction Agreement. The effect of

‘Construction Linked Payment Plan’ is that it obligates

the builder to complete construction up to a particular

required level at the given point of time and upon such

accomplishment, obligates the buyer to effect the due

instalment. According to us, the non-furnishing of a datewise payment schedule could not have been a reason for

deviating from the formula followed in the matter of

fixation of due date of possession in R.V.

Prasannakumaar’s case (supra). That apart, in the case

on hand, the fact is that the complainants have effected

the payment of sale consideration and were handed over

possession of flats. The compensation is claimed by the

Page 24 of 27

Civil Appeal No. 8176 of 2022

complainants for the considerable concutation in

construction and in handing over possession of flats. At

any rate, in the circumstances obtained in this case and

especially taking note of the fact that owing to the

forfeiture of the right to file a written statement, the first

respondent-builder did not make out any exceptional

circumstance, the NCDRC was not justified in not

following the formula followed in R.V.

Prasannakumaar’s case (supra) in the matter of fixing

the due date for possession for the purpose of computing

compensation for the delay. In this context, it is also to

be noted that in R.V. Prasannakumaar’s case (supra),

the NCDRC found that payment in the shape of interest at

the rate of 6% per annum on the deposit of home buyers

from the due date of possession till the offer of

possession is the adequate method to compensate the

buyers for the delay. This court only found the course of

action adopted by NCDRC as just and reasonable. In the

case on hand, NCDRC rightly followed the same method

adopted in R.V. Prasannakumaar’s case (supra) and the

claimants are entitled to compensation in the shape of

interest at 6% per annum from the due date of possession

till the date on which the respective complainant-buyers

are offered possession. In the said circumstances and in


view of the decision in R.V. Prasannakumaar’s case

(supra), on this issue, the only modification required is

with respect to the method adopted for fixing the due

date for possession, in the manner mentioned earlier.

Though the complainants contended that they are

entitled to be compensated in the manner provided

under clause 6 of the agreement, in view of the decision

in R.V. Prasannakumaar’s case (supra), we are of the

view that compensation in the shape of interest at the rate

of 6 % per annum for the period mentioned earlier would

be in tune with the formula followed in R.V.

Prasannakumaar’s case (supra). This is because such a

course was adopted in R.V. Prasannakumaar’s case

(supra) despite the stipulation for payment of

compensation at the rate of Rs.3/sq. ft. per month for

delayed handing over of possession. It is to be noted that

in the case on hand, the stipulation for payment of

compensation for delayed handing over of possession is

only at the rate of Rs.2/sq. ft. per month.

23. True that the complainants claimed for refund of

charge for car parking fee charged, with interest. The

same was declined by NCDRC by assigning the reason

that the said question was decided in favour of the

developer by NCDRC in CC/913/2016 viz., in RV

Prassana Kumars 47 Ors. vs. Mantri Castles Pvt. Ltd.

was confirmed by this Court in R.V. Prasannakumaar’s

case (supra). In that view of the matter, we decline to

interfere with the finding of NCDRC on the claim for

refund of car parking charge.

24. Paragraph 9 of the impugned order would reveal

that the prayer for refund of legal fee realised by the

developer for execution of conveyance deed was

declined by NCDRC on the ground that the complainants

had not adduced any evidence based on which legal fee

could be determined by it. We are not inclined to

interfere with the said finding of NCDRC, as well. The

same is the position with respect to the claim for refund

of legal fee charge for conveyance on the ground that it

was charged excessively. As relates the prayer to

provide Green Jogging Track and Convenience Store as

promised in the brochure, NCDRC has already issued

directions for constructing them within the time

stipulated thereunder.

25. In the circumstances, this appeal is allowed in part

by modifying the formula formulated under paragraph 8

of the impugned judgment by NCDRC in the matter of

payment of compensation for delay in handing over

possession of flats and it is ordered that the liability of the


developer to pay interest at the rate of 6% per annum

shall be from the due date for possession fixed as above

viz., from September, 2014 till the date on which the

respective complainant-buyers are offered possession.

26. Needless to say, that NCDRC in execution of

impugned order as modified by this judgment, shall

verify with reference to each flat purchaser the date on

which offer of possession has been made to him/her and

fix the liability on the builder in the manner mentioned

above.

27. Pending application(s), if any, stands disposed of.

……………………, J.

 (C.T. Ravikumar)

……………………, J.

 (Sanjay Kumar)

New Delhi;

July 22, 2024.

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