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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