Bookmark
PDF
Share
CaseIQ

Sipra Thomes v. Bengal Unitech Universal Infrastructure Pvt. Ltd.

National Consumer Disputes Redressal Commission

May 19, 2016

Judgment

CaseIQ

Smart Summary (Beta)

Factual and Procedural Background

This opinion concerns three consumer complaints filed before the National Consumer Disputes Redressal Commission (NCDRC) against Bengal Unitech Universal Infrastructure Pvt. Ltd. (the opposite party) arising from delayed delivery of possession of residential flats.

- CC No. 398 of 2015 (Complainant: Sipra Thomes): Booked a flat on 15.09.2008 with a Buyers Agreement dated 22.10.2008. Super area allotted: 2,249 sq. ft.; total consideration: Rs. 73,14,272/-. Possession was expected by 30.09.2011 (subject to force majeure). The complainant paid Rs. 70,18,377/- and sought refund with interest (claimed @ 18% p.a. compounded quarterly, totalling Rs. 1,70,52,551/-) and Rs. 5,00,000/- for mental harassment.

- CC No. 414 of 2015 (Complainant: Atul Ojha): Booked on 22.02.2007 with Buyers Agreement dated 24.02.2007. Super area allotted: 1,462 sq. ft.; total consideration: Rs. 43,15,347/-. Possession was expected by 31.03.2010. The complainant paid Rs. 40,74,183/- and sought refund with compound interest (@ 18% p.a., totalling Rs. 1,41,22,591/-) and Rs. 10,00,000/- for mental agony.

- CC No. 1188 of 2015 (Complainants: Debraj Chatterjee and Sushmita Chatterjee): Booked on 31.01.2007 with Buyers Agreement dated 06.02.2007. Super area allotted: 2,128 sq. ft.; total consideration: Rs. 57,69,504/-. Possession was expected by 31.03.2010. The complainants paid Rs. 55,42,279/- and sought refund with interest @ 18% p.a. compounded quarterly (amounting to more than Rs. 1 Crore).

The opposite party admits bookings and Buyers Agreements but resists the complaints, attributing delay to late statutory approvals for infrastructure and relying on contractual clauses and limitation. The matter was heard and decided by a bench comprising Hon'ble Mr. Justice V.K. Jain (Presiding Member) and Hon'ble Mr. Anup K Thakur (Member) with the order dated 19 May 2016.

Legal Issues Presented

Whether the opposite party has justified the delay in delivering possession of the flats as attributable to reasons beyond its control (notably delay in statutory approvals for infrastructure).
Whether the complaints are barred by limitation under Section 24A of the Consumer Protection Act.
Whether this Commission possesses the requisite pecuniary jurisdiction (i.e., whether the aggregate claimed amount, including interest/compensation, exceeds Rs. 1 crore) to entertain these complaints.
Whether the clause in the Buyers Agreement/ allotment letter (requiring payment of holding charges at Rs. 5 per sq. ft. per month) limits the complainants to that compensation, or whether complainants are entitled to refund and higher compensation for delayed possession.

Arguments of the Parties

Complainants' Arguments

Each complainant booked a residential flat and entered into a Buyers Agreement that specified a possession date (March 2010 / September 2011) which has not been met even after 5–6 years.
They paid substantial sums to the opposite party (amounts specified for each complainant) and seek refund of the amounts paid along with interest at 18% per annum compounded quarterly (specific aggregate figures were claimed), plus damages for mental harassment (claims ranged from Rs. 5 lakhs to Rs. 10 lakhs in different matters).
During proceedings counsel for the complainants narrowed the claim: to avoid further litigation he restricted compensation to simple interest at 12% per annum and separate compensation for mental agony/harassment (arguing 12% is justified given borrowing costs).

Opposite Party's Arguments

The delay was caused by late grant of statutory approvals and permissions for infrastructure (road, electricity, water, sewerage) and thus was beyond the opposite party's control.
That even if delay occurred, the Buyers Agreement limits compensation to holding charges of Rs. 5 per sq. ft. per month (i.e., complainants are entitled only to the agreed amount).
The complaints are barred by limitation under Section 24A of the Consumer Protection Act because the agreed date for delivery of possession expired more than two years before filing the complaints.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Swarn Talwar & Ors. Vs. Unitech Ltd., C.C. No.347 of 2014 (order dated 14.08.2015)	That interest claimed by flat buyers (for delayed possession) can be treated as compensation for purposes of establishing the Commission's pecuniary jurisdiction; and rejection of the contention that the Commission lacks jurisdiction where apartment price is less than Rs.1 crore if compensation/interest take aggregate over Rs.1 crore. Also, rejection of relying on clause limiting compensation to Rs.5/sq.ft/month where buyer seeks refund.	The Court relied on this decision to conclude that the aggregate amount claimed in these complaints exceeds Rs.1 crore (after accounting for compensation/interest) and therefore NCDRC has pecuniary jurisdiction. The Court also used its reasoning to reject the opposite party's reliance on the Rs.5/sq.ft/month clause where refund is sought.
Puneet Malhotra Vs. Parsvnath Developers Ltd., CC No.232 of 2014 (decided 29-01-2015)	Held that the clause for holding charges at Rs.5/sq.ft/month applies where the buyer accepts possession despite delay and accounts are to be settled between parties; it does not apply where the buyer seeks refund because of seller's failure to deliver possession.	The NCDRC cited this view to reject the opposite party's contention that complainants are limited to the agreed Rs.5 per sq.ft. per month as compensation where they seek refund due to prolonged non-delivery of possession.
Ghaziabad Development Authority Vs. Balbir Singh, (2004) 5 SCC 65	The Supreme Court's observations that (i) the power to award compensation must be based on a finding of loss or injury and correlate with the amount of loss or injury, and (ii) interest awarded to flat buyers can operate as compensation (not necessarily uniform at 18% p.a.), and that compensation may also account for harassment and deprivation of opportunity to acquire similar property at agreed price.	The Court relied on these observations to treat interest claimed by flat buyers as compensatory in nature and therefore to consider the interest component when assessing pecuniary jurisdiction; and to justify awarding compensation for loss, harassment and deprivation arising from delayed possession.
Satish Kumar Pandey & Anr. Vs. Unitech Ltd. and connected matters (decided 08-06-2015)	Rejection of the plea that contractual clause limiting compensation to holding charges applies to bar higher compensation where refund is sought; precedent for negating such plea against Unitech Ltd.	The Court noted that this Commission had earlier negatived the same plea in that batch and relied on that reasoning in the present matters to reject the opposite party's contention on the Rs.5/sq.ft. per month clause.
Supreme Court order dismissing appeal against Swarn Talwar decision (order dated 11.12.2015)	Affirmation (by dismissal of appeal) that the Swarn Talwar decision did not warrant interference.	The Commission relied on the fact that the Supreme Court dismissed the appeal against the Swarn Talwar decision to reinforce that the reasoning in Swarn Talwar about pecuniary jurisdiction and treatment of interest as compensation stands unaltered by that appeal.

Court's Reasoning and Analysis

The Court's analysis proceeded in a stepwise manner addressing the principal defenses raised by the opposite party:

On justification for delay: The opposite party alleged delay due to late grant of statutory approvals for infrastructure (roads, electricity, water, sewerage). The Court held that the opposite party failed to produce evidence to demonstrate that delays were attributable solely to statutory authorities. The Court explained that to justify such a defense the opposite party needed to disclose dates of application and grant of permissions and place on record correspondence with the statutory authorities to show the delay was caused by the authority and not by any omission on the opposite party's part.
On the extent of delay: The Court observed the delay was extensive (around five to six years beyond the committed possession dates), and noted that even if there had been short delays by statutory authorities, that could not justify delays of five to six years.
On limitation (Section 24A): The opposite party argued the complaints were time-barred because the stipulated dates expired more than two years before filing. The Court rejected that contention, reasoning that the buyer's cause of action is recurrent until the seller either delivers possession, refuses to deliver possession, or expresses an inability to construct the flat. If the buyer requests a refund and then waits more than two years to approach the Consumer Forum, limitation may apply; but where the builder never refused to deliver possession and the buyer continues to wait, it is difficult to hold the complaint barred by limitation. Thus, the Court found the complaints were not clearly barred by limitation.
On pecuniary jurisdiction: The Court addressed the opposite party's contention that because the apartments were purchased for less than Rs.1 crore the Commission lacked jurisdiction. The Court relied on its earlier decision in Swarn Talwar (and supporting reasoning in Puneet Malhotra and the Supreme Court's observations in Ghaziabad Development Authority v. Balbir Singh) to hold that interest claimed by flat buyers can constitute compensation. Since interest/compensation is compensatory in nature (including loss of opportunity and escalation in land/construction costs), the interest component can be taken into account for determining pecuniary jurisdiction. Given the aggregate claims in these complaints exceeded Rs.1 crore, the Commission held it had pecuniary jurisdiction.
On the applicability of the Rs.5 per sq. ft. per month clause: The Court applied the reasoning in Puneet Malhotra and related decisions to conclude that the clause for holding charges at Rs.5/sq.ft/month applies only where the buyer accepts possession despite delay and the accounts between the parties need settling. That clause does not apply where the buyer is compelled to seek refund because the seller failed to deliver possession. The Court also considered that provisions imposing disproportionate obligations (such as a clause penalising buyers while protecting sellers) may amount to an unfair trade practice.
Conclusion of analysis: Because the opposite party failed to justify the prolonged delay, limitation did not clearly bar the complaints, the Commission had pecuniary jurisdiction, and the contractual holding-charge clause did not preclude refund claims, the complainants were entitled to refund and appropriate compensation.

Holding and Implications

COMPLAINTS DISPOSED OF

The Court issued the following dispositive directions (as its final order):

The opposite party shall refund the entire amount received from each complainant along with compensation in the form of simple interest at the rate of 12% per annum from the date of each payment until the date on which the entire amount along with compensation is paid.
The opposite party shall pay Rs. 2,00,000 (Rs. 2 lacs) to each complainant as compensation for mental agony and harassment.
The opposite party shall pay Rs. 10,000 as the cost of litigation in each complaint.
All payments under the order shall be made within three months from the date of the order (19 May 2016, as per the order sheet).

Direct consequences: The opposite party (Bengal Unitech Universal Infrastructure Pvt. Ltd.) is directed to refund the amounts paid by the respective complainants with simple interest at 12% p.a., pay specified compensation for mental harassment and litigation costs, and make such payments within three months.

The opinion applies and follows earlier Commission and Supreme Court reasoning on (a) treating interest claimed by flat buyers as compensatory for purposes of pecuniary jurisdiction and (b) rejecting contractual clauses limiting compensation to nominal holding charges where buyers seek refund for non-delivery. The order does not state that it establishes a new precedent beyond applying and following those earlier authorities.

Show all summary ...

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

CONSUMER CASE NO. 398 OF 2015

WITH

IA/4365/2016,IA/6523/2015

1. SIPRA THOMES

Through Ms. Sriya Coomer, R/o. N-6, 2nd Floor, Jangpura Extn.

New Delhi ...........Complainant(s)

Versus

1. BENGAL UNITECH UNIVERSAL INFRASTRUCTURE

PVT. LTD.

6, Community Center, Saket, New Delhi ...........Opp.Party(s)

CONSUMER CASE NO. 414 OF 2015

WITH

IA/4365/2016,IA/6523/2015

1. ATUL OJHA

S/o. Shri Amar Nath Ojha, Through Shri Amar Nath Ojha, Resident at MM 287, Sector D Aliganj

Lucknow 24

U.P. ...........Complainant(s)

Versus

1. BENGAL UNITECH UNIVERSAL INFRASTRUCTURE

PVT. LTD.

6, Community Center, Saket, New Delhi ...........Opp.Party(s)

BEFORE:

HON'BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER HON'BLE MR. ANUP K THAKUR, MEMBER

For the Complainant : Mr. Sushil Kaushik, Advocate Ms. Himanshi Singh, Advocate

For the Opp.Party : Ms. Mamta Tiwari, Advocate Mr. Aranya Moulick, Advocate

Dated : 19 May 2016

ORDER

JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL)

1. The complainant in CC No. 398 of 2015 namely Sipra Thomes booked a residential flat with the opposite party namely Bengal Unitech Universal Infrastructure Pvt. Ltd. on

15.09.2008. The parties entered into a Buyers Agreement dated 22.10.2008 whereby a flat having super area of 2249 sq. feet was allotted to the complainant for a total consideration of Rs. 73,14,272/-. As per the said Buyers Agreement, the possession was expected to be delivered to the complainant by 30.09.2011, subject of course to force majeure circumstances. The aforesaid complainant has paid a sum of Rs. 70,18,377/- to the opposite party but the construction of the said flat is nowhere near completion. Being aggrieved, she is before this Commissioner seeking refund of the amount paid by her alongwith interest @ 18% per annum compounded quarterly, thereby making a total sum of Rs. 1,70,52,551/-. She has also claimed Rs. 5 lacs towards damages for mental harassment and mental agony caused to her by the opposite party.

2. The complainant in CC No. 414 of 2015 namely Atul Ojha also booked a residential flat in the same project with the opposite party on 22.02.2007 and a Buyers Agreement dated 24.02.2007 was executed between the parties, whereunder a flat having super area of 1462 sq. feet was allotted to the complainant for a total consideration of Rs. 43,15,347/-. The aforesaid complainant has already paid Rs. 40,74,183/- to the opposite party. In his case, the possession was expected to be delivered to him by 31.03.2010, subject of course to force majeure circumstances. Since there is default in fulfilment of the said commitment, he is also seeking refund of the entire amount paid by him alongwith compound interest @ 18% per annum, thereby making a total sum of Rs. 1,41,22,591/-. He has also claimed a sum of Rs. 10 lacs towards damages for mental agony.

3. The complainant in CC No. 1188 of 2015 namely Debraj Chatterjee and his wife Sushmita Chatterjee booked a residential flat in the same project on 31.01.2007 and entered into a Buyers Agreement dated 06.02.2007 whereunder a residential flat with a super area of 2128 sq. feet was allotted to them for a total consideration of Rs. 57,69,504/-. The possession in their case was expected to be delivered to him by 31.03.2010. Since the opposite party has defaulted on the aforesaid commitment, the aforesaid complainants are also seeking refund of Rs. 55,42,279/- paid by them alongwith interest @ 18% per annum compounded quarterly, which comes to more than Rs. 1 Crore.

4. The complaints have been resisted by the opposite party on identical ground. Though the booking made by the complainants as well as the Buyers Agreement with them has been admitted, it is alleged that there was delay in grant of statutory approvals and permissions related to infrastructural work such as road, electricity, water and sewerage which were beyond the control of the opposite party. It is further stated in the written version filed by the opposite party that in the event of delay, the complainants are entitled only to the compensation agreed in the Buyers Agreement which is Rs. 5/- per sq. feet of the super area per month. Another plea taken by the opposite party is that the complainant is barred by limitation prescribed under section 24A of the Consumer Protection Act.

5. The first question which arises for consideration in these cases is as to whether the opposite party has been able to justify the delay in construction of the flats which it had agreed to sell to the complainants. Though it is alleged that there was delay in obtaining the approvals and permissions required for infrastructural works such as road, electricity, water and sewerage, there is no evidence to prove that the alleged delay occurred on account of reasons not attributable to or beyond the control of the opposite party. In order to justify the delay on the aforesaid ground, the opposite party was required to disclose the dates on which it applied

for the requisite permission and the date on which the said permission was granted. It was also required to place on record the entire correspondence between it and the concerned statutory authority in order to demonstrate that the said delay was attributable solely to the concerned statutory authority and not to any deficiency or defect on its part in seeking such a permission from the concerned statutory authority. Moreover, the opposite party was also required to specify how much was the delay attributable to the time taken by the statutory authorities in granting approvals for infrastructural services. Only then, it could have justified the delay to the extent it was attributable solely to the concerned statutory authority. In this regard, it has to be kept in mind that the delay in these cases is not of just a few months. Here, they were required to deliver the possession by March 2010/September 2011 and about 5/6 years from the possession deadline have already expired. Therefore, even if it is presumed for the sake of arguments that there was delay of a few months on the part of the concerned statutory authorities in granting approvals for infrastructural services, that cannot justify the delay of five - six years.

6. It is next contended by the learned counsel for the opposite party that the booking having been made way back in the year 2007/2008 and the date stipulated in the Buyers Agreement for delivering possession also having expired more than two years before these complaints were filed, the said complaints are clearly barred by limitation. We however, are unable to accept the contention. It has to be kept in mind that a person books a residential flat for the purpose of having a roof over his head and not for the purpose of claiming refund with compensation at a later date. Therefore, the attempt of the buyer would be to get possession of the residential flat booked by him even if there is some delay in obtaining the said possession. Therefore, he would like to wait for the buyer to deliver till the time either the seller refuses to deliver the possession or till he loses all hopes of getting possession and therefore does not want to wait any more for the seller to deliver the possession of the flat. In such a case, the buyer, in our opinion, has a recurrent cause of action till the time either the seller delivers the possession or refuses to deliver possession, or expresses his inability to construct the flat sold by him. The cause of action may also arise earlier if the buyer asks the builder to refund the amount paid by him. In that case, if he does not approach the Consumer Forum within two years of demanding the refund, the claim may become barred by the limitation prescribed in Section 24A of the Consumer Protection Act. However, as far as these cases are concerned, considering that the opposite party never refused to deliver possession to the complainant, it would be difficult for us to say that the complaints are barred by limitation.

7. The contention that since the apartment in question was purchased for less than Rs. 1 crore and therefore, this Commission lacks jurisdiction to entertain this matter has already been rejected by this Commission in Swarn Talwar & Ors. Vs. Unitech Ltd., C.C. No.347 of 2014 and connected matters decided on 14.08.2015. The said order, to the extent, it is relevant reads as under:

The learned counsel for the opposite party submits that since the apartment in question was purchased for less than Rs.1 Crore, this Commission lacks pecuniary jurisdiction to entertain this complaint and the complainants should be relegated to the concerned State Commission for the redressal of their grievance. We however find no merit in this contention. This issue was raised by the opposite party in Swarn Talwar (Supra) and was rejected. The aforesaid decision to the extent relevant to this plea reads as under:-

"5. The first question which arises for our consideration in these cases is as to whether this Commission possesses the requisite pecuniary jurisdiction to entertain these complaints. Section 11(1) of the Consumer Protection Act read with Section 21 of the Consumer Protection Act to the extent it is relevant provides that this Commission shall have jurisdiction to entertain complaints where the value of the goods or services and compensation if any claimed exceeds Rs.1,00,00,000/-. The contention of the learned counsel for the opposite party is that interest claimed by the complainants cannot be termed as compensation and if the interest component is excluded, the pecuniary value of the complaint does not exceed Rs.1,00,00,000/- except in one case. The learned counsel for the complainants on the other hand contended that the interest which they have claimed along with refund of the principal sum even if not so described specifically, is by way of compensation only, since the opposite party has been deficient in rendering services to the complainants by not delivering possession of the flats on or before the time agreed in this regard.

6. In our view, the interest claimed by the flat buyers in such a case does not represent only the interest on the capital borrowed or contributed by them but also includes compensation on account of appreciation in the land value and increase in the cost of construction in the meanwhile. As noted by us in CC No.232 of 2014, Puneet Malhotra Vs. Parsvnath Developers Ltd. decided on 29-01-2015, there has been steep appreciation in the market value of the land and cost of construction of the residential flats in Greater Noida in last about 7-10 years and consequently the complainants cannot hope to get a comparable flat at the same price which the opposite party had agreed to charge from them. In fact it would be difficult to get a similar accommodation, even at the agreed price plus simple interest thereon at the rate of 18% per annum. Therefore, the payment of interest to the flat buyers in such a case is not only on account of loss of income by way of interest but also on account of loss of the opportunity which the complainants had to acquire a residential flat at a particular price.

7. In Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65, the Hon'ble Supreme Court inter alia observed and held as under:

"However, the power to and duty to award compensation does not mean that irrespective of facts of the case compensation can be awarded in all matters at a uniform rate of 18% per annum. As seen above what is being awarded is compensation i.e. a recompense for the loss or injury. It therefore necessarily has to be based on a finding of loss or injury and has to correlate with the amount of loss or injury. Thus the Forum or the Commission must determine that there has been deficiency in service and/or misfeasance in public office which has resulted in loss or injury. No hard and fast rule can be laid down, however a few examples would be where an allotment is

made, price is received/paid but possession is not given within the period set out in the brochure...

…Along with recompensing the loss the Commission/Forum may also compensate for harassment/injury both mental and physical. Similarly, compensation can be given if after allotment is made there has been cancellation of scheme without any justifiable cause.

That compensation cannot be uniform and can best of illustrated by considering cases where possession is being directed to be delivered and cases where only monies are directed to be returned. In cases where possession is being directed to be delivered the compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting. But in cases where monies are being simply returned then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot. He is being deprived of that flat/plot. He has been deprived of the benefit of escalation of the price of that flat/plot. Therefore the compensation in such cases would necessarily have to be higher.

It would, thus, be seen that the Hon'ble Supreme Court recognized that the interest to the flat buyers in such cases is paid by way of compensation. Therefore, there is no reason why the interest claimed by the complainants or at least part of it should not be taken into consideration for the purpose of deciding the pecuniary jurisdiction of this Commission. If this is done, the aggregate amount claimed in each of the complaints exceeds Rs.1,00,00,000/- and, therefore, this Commission does possess the requisite pecuniary jurisdiction.

In the cases where the complainant does not want refund and is seeking possession, alongwith compensation for the delayed possession, this Commission would have jurisdiction to entertain the complaint, if the aggregate of the value of the flat, on the date of filing of the complaint and the compensation claimed for the delay in delivering possession, exceeds Rs. 1 Crore. In terms of Section 21(a) of the Consumer Protection Act, this Commission can entertain complaints where the value of the goods or services and compensation exceeds Rs. 1 Crore. Since the buyer is seeking possession of the flat booked by him, the value of the service, in such a case in our opinion, in terms of Section 21(a) of the Consumer Protection Act means the value of the flat as on the date of filing of the complaint and not the value on the date the flats were booked. An appeal preferred by the opposite party against the above referred decision of this

Commission was dismissed by the Hon'ble Supreme Court vide order dated 11.12.2015, which, to the extent it is relevant, reads as under:

"We have heard learned counsel for the appellant and perused the record. We do not see any cogent reason to entertain the appeal. The judgment impugned does not warrant any interference.

The Civil Appeal is dismissed."

8. In the present case, the total amount claimed by the complainant is more than Rs. 1 crore. Therefore, considering the extent of the claim made in the complaint, this Commission does possess the requisite pecuniary jurisdiction to entertain and decide this complaint.

9. As regards payment of compensation only at the agreed rate of Rs. 5 per sq. feet per month of the super area, as per the Buyers Agreement, such contentions have repeatedly been rejected by this Commission. The following view taken by this Commission in Swarn Talwar (supra) is relevant in this regard:

8. As regards the plea that in terms of Clause (c) of the allotment letter the opposite party is required to pay only the holding charges calculated at the rate of Rs.5/- per sq.ft. per month of the super area for the period the possession is delayed, such a contention was expressly rejected by us in Puneet Malhotra (supra) holding that such clause applies only in a case where construction of the flat is delayed but despite delay the buyer accepts the possession of the flat from the seller and consequently the accounts have to be settled between the parties. We observed in this regard that the buyer would have to pay the agreed holding charges to the seller and the seller to pay the agreed compensation on account of delaying the construction of the flat. The said clause, however, does not apply to a case where the buyer on account of delay on the part of the seller in constructing the flat is left with no option but to seek refund of the amount which he had paid to the seller. We further held that such a clause where the seller in case of default on the part of the buyer seeks to recover interest from him at the rate of 24% per annum will amount to an unfair trade practice since it gives an unfair advantage to the seller over the buyer. We also noted in this regard that enumeration of the unfair trade practices in Section 2(r) of the Act is inclusive and not exhaustive. This plea was also negatived by us in a batch of complaints CC No.427 of 2014, Satish Kumar Pandey & Anr. Vs. Unitech Ltd. and connected matter, decided on 08-06-2015. All those complaints were filed against none other than the opposite party in these matters, namely, Unitech Ltd.

10. Since the opposite party has failed to offer possession of the flat agreed to be sold to the complainants by the date stipulated in the Buyers Agreement in this regard and 5/6 years have already expired from the said committed date for delivery of possession. The complainants cannot be compelled to wait any more for the builder to deliver and they are entitled to seek refund of the money paid by them alongwith appropriate compensation.

11. The learned counsel for the complainants, states on instructions that though this Commission has in some cases awarded interest @ 18% per annum, he, in order to avoid further litigation by the builder, is restricting his claim to compensation in the form of simple interest @ 12% per annum, alongwith separate compensation for the mental agony and harassment which the complainants have suffered on account of the acts of omissions and commission committed by the opposite party. Considering the cost of borrowing from the Banks/Financial Institutions, the claim for compensation at the aforesaid is eminently justified.

12. Considering all the facts and circumstances of the case, the complaints are disposed of with the following directions:

(a) The opposite party shall refund the entire amount received from the complainants alongwith compensation in the form of simple interest @ 12% per annum from the date of each payment till the date on which the entire amount alonwith compensation in terms of this order is paid.

(b) The opposite party shall also pay Rs. 2 lacs each as compensation in each complainant for the mental agony and harassment suffered by the complainants at its hand.

(d) The payment in terms of this order shall be made within three months from today.

......................J

V.K. JAIN

PRESIDING MEMBER