Case: M/s. Fortune Infrastructure (Now Known As M/s. Hicon Infrastructure) &amp; Another Vs. Trevor D'lima &amp; Others

2. A few facts which are necessary for the disposal of this matter are that the appellants, in the year 2011, launched a residential housing project by name `Hicons Onyx, renamed as Fortune Residency, which was aof Mohammadi House. The respondents booked a flat bearing no. 202, 2nd Floor in `A wing, admeasuring 828.40 Sq. Ft. with one unit ofThe total consideration for the flat was Rs.In 2015, aggrieved by the fact that appellants were not willing to deliver the flat to them, the respondents approached NCDRC through a consumer complaint, being CC No. 636 of 2015, with followingTo hold and declare the Opposite Parties to be guilty of deficiency in service and unfair trade practices as per the provisions of the Consumer Protection Act,To direct the Opposite Parties 1 to 4 to comply with their statutory obligations and to execute and register the Agreement for Sale with the complainants in respect of flat No. 202 on the 2nd floor admeasuring 828.40 Sq. Ft. with one car parking in the building known as Hicon Onyx and sincerenamed as Fortune residency situated at plot no.Village Bandra, St. Martins Road Bandra (West), Mumbai 400 050 (Maharashtra).To direct the Opposite Parties no. 1 to 4 to complete the construction of the building known as `Hicons Onyx since renamed as `Fortune residency and to hand over to the complainants vacant and peaceful possession of the Flat No. 202 on the 2nd floor admeasuring 828.40 Sq. Ft. with one car parking in the building known as Hicons Onyx and sincerenamed as Fortune residency situated at plot no.Village Bandra, St. Martins road Bandra (West), Mumbai 400 050 (Maharashtra) on receiving the balance consideration amount of Rs.In the event of the Opposite Parties no. 1 to 4 having created third party interests in favour of the Opposite Party no. 5, to direct the Opposite parties no. 1 to 4 to hand over to the complainants any other flat of the same size quality and specifications with one car parking in the same building `Hicons Onyx sincerenamed as `FortuneResidency or any flat of the same size, quality and specifications with one car parking in the same locality of the present building Hicons Onyx or Fortunex x xx x xTo direct the Opposite Parties No. 1 to 4 jointly and severally pay to the complainants Rs. 5,00,000/(Rupees Five lakhs only) towards compensation for the inconvenience and mental agony suffered by the complainants due to the enormous delay in construction of the building, negligence and deficiency in service of the Opposite Parties No. 1 to 4.To direct the opposite Parties No. 1 to 4 jointly and severally to pay to the complainants the sum of Rs. 1,00,000/(Rupees One Lakh only) being the Legal and other incidental expenses incurred by the complainants.For such other and further relief as this Honble Commission may deem fit and proper in the nature and circumstances of the above numbered complaint.The NCDRC has allowed the complaint and directed the appellants: 1. To refund the amount of Rs. 1,87,00,000/which they have received from the complainants, within six weeks from the day of the impugned judgment; 2. The appellants were further directed to pay a sum of Rs. 3,65,46,000/as compensation and Rs. 10,000/as cost of litigation to the complainants within six weeks from the day of the impugned judgment; 3. The aforesaid amount was ordered to be paid at 10% per annum from the date of the order till the actual date of payment. It may be noted that even the review against the aforesaid order was dismissed by the NCDRC vide order dated 03.11.2016.Having dissatisfied with the impugned orders passed by the NCDRC, appellants approached this Court through these civil appeals.

Reasoning:
14. In the present case, the appellants did not give any valid reasons as to why they transferred the property to a third party, despite their contractual obligation to the respondents (complainants). The obligation was on the appellants to show that he was unable to transfer the property to the respondent.Moreover, a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of the amount paid by them, along with compensation. Although we are aware of the fact that when there was no delivery period stipulated in the agreement, a reasonable time has to be taken into consideration. In the facts and circumstances of this case, a time period of 3 years would have been reasonable for completion of the contract i.e., the possession was required to be given by last quarter of 2014. Further there is no dispute as to the fact that until now there is no redevelopment of the property. Hence, in view of the above discussion, which draw us to an irresistible conclusion that there is deficiency of service on the part of the appellants and accordingly the issue is answered.Before we come to the aspect of quantum of compensation, it would be appropriate to look at the settled legal position concerning the same. At the outset, we may note that even under the Consumer Protection Act, 1986, the damages for commercial contracts need to be determined as per the Indian Contract Act.It would be pertinent to note that in common law, claim for damages is the rule and specific performance is an exception, while in civil law front, specific performance has traditionally been a prime remedy for the breach of contract.It must be noted that the law is well settled in this regard. Whenever the builder has refused to perform the contract without valid justification, the buyer is entitled for compensation as he has been deprived of price escalation of the flat. Every breach of contract gives rise to an action for damages. Such amount of damages must be proved with reasonable certainty.We have already noted that the appellants were to perform the contract within a reasonable period of three years from the date of the agreement i.e., by the last quarter of 2014. Aggrieved by the delay in handing over the possession, the respondents (complainants) approached the NCDRC for conveyance and in alternative prayed for damages. It is now settled that where a party sustains loss by reason of a breach of contract, the damages are to be granted so as to place the suffering party in the same position as if the contract had been performed. In light of the above, the damages other than consequential loss have to be measured at the time of the breach. However, the aforesaid rule is flexible which needs to be assessed in facts and circumstances of individual case. In this case at hand the respondents tried to execute the agreement and sought for conveyance of the property through the NCDRC. In these circumstances we may note that, even in the first appeal, offers were being made on behalf of appellants to convey alternative properties, which were refused as being insufficient. Therefore, in facts and circumstances of this case, the damage need not be determined from the date of breach of contract.Even though the appellants raised a factual issue concerning then, we do not think it is necessary to go into this aspect, as the NCDRC has given a categorical finding that Rs. 1,87,00,000/has been paid by the respondents (complainants).Appellants have produced circle rates of properties in the vicinity of the disputed flats. These rates vary from Rs. 18,655 per Sq. Ft. to Rs. 25,787/per Sq. Ft. Whereas the respondents have produced executed sale deeds in the nearby vicinity, which was Rs. 65,000 per Sq. ft., Rs. 69,342/per Sq. ft., Rs. 75,000/per Sq. Ft. and Rs. 88,050/per Sq. Ft. NCDRC has taken the minimum available market price as the reference point for awarding compensation at the rate of Rs. 65,000/per Sq. Ft. We are of the opinion that excessive reliance on the aforesaid sale deed may not be appropriate as the present property is a redevelopment of an earlier property. Our attention has been drawn to the fact that usually the real estate rates forproperties are on the lower side instead of. In light of the above, we consider that the claim of the respondents (complainants) as granted by the NCDRC seems to surpass thebased damages and enter the domain ofremedy. Although we do not recognize any a priopri limitations on such claim, but we do not think that it would be appropriate to grant such damages in the case at hand. There is no dispute about the fact that damages for the contractual breach is generally compensatory arising out of the breach. Therefore, the damages awarded should not be excessive and a court/tribunal needs to take a balanced approach so as to ensure right compensation.Taking into consideration of factual aspects involved in the matter and on consideration of the submissions of the counsels on either side, we deem it appropriate, just and reasonable that the market rate be fixed at Rs. 50,000/per Sq. Ft. (Rupees Fifty Thousand per square feet) as the reference rate for determination of market price prevailing in the vicinity of the disputedwe do not see any reason to interfere in respect of the compensation granted for the parking space.