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M/S. FORTUNE INFRASTRUCTURE

(NOW KNOWN AS M/S. HICON INFRASTRUCTURE) & ANR.

v.

TREVOR D’LIMA & ORS.

(Civil Appeal Nos. 3533-3534 of 2017)

MARCH 12, 2018

[N. V. RAMANA AND S. ABDUL NAZEER, JJ.]

Consumer Protection Act, 1986 :

Complaint against developer of housing project – By the

purchaser of a flat in the project – Alleging deficiency in service

and unfair trade practices for not having delivered the flat –

National Consumer Disputes Redressal Commission allowed the

complaint and directed the developers to refund the amount paid

by the complainants and also to pay compensation and cost of

litigation – On appeal, held: Contractual damages are usually

awarded to compensate an injured party to a breach of contract

for the loss of his bargain – This rule is more qualified when it

comes to real estate sector – Onus is on the seller to show his bona

fides and best efforts in discharging the obligation – Mere

unwillingness to carry out the duty could constitute bad faith

sufficient for purchaser to claim damages – In the facts of the present

case there is deficiency of service on part of the developer, which

entitles the complainant to damages/compensation – Generally

damages become due on the date when the breach of contract takes

place and assessed by the reference to the time of breach –

However, the rule is flexible which needs to be assessed in the facts

and circumstances of individual case – In the facts of the present

case the damage need not be determined from the date of breach of

contract – The compensation granted by the National Commission

has surpassed the actual-loss based damages and has entered the

domain of gain-based remedy – Since the damages for the

contractual breach is compensatory, damages awarded should not

be excessive – Court needs to take a balanced approach so as to

ensure right compensation – Therefore compensation of

Rs. 3,65,46,000/- granted by National Commission is reduced to

Rs. 2,27,20,000/- – Compensation.

[2018] 3 S.C.R. 273

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Damages for commercial contracts – Under the Act –

Determination of – Held: Under Consumer Protection Act damages

for commercial contracts, need to be determined as per Contract

Act – Contract Act, 1872 .

Partly allowing the appeals, the Court

HELD : 1. The contractual damages are usually awarded to

compensate an injured party to a breach of contract for the loss

of his bargain. This rule is more qualified when it comes to the

real estate sector. If the seller wants to limit their liability for

breach of contract under the aforesaid rule, they have to portray

that they have performed their obligation in a prudent manner.

The onus is on the seller to show his best efforts and bona fides

in discharging the obligation. Even in the absence of fraud, mere

unwillingness to carry out the duty could constitute bad faith

sufficient for the purchaser to claim damages. [Paras 11 and

12][280-F-H; 281-A]

2. 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. [Para 19] [283-D]

3. Even under the Consumer Protection Act, 1986, the

damages for commercial contracts need to be determined as per

the Contract Act. [Para 16] [282-A]

4. In the facts and circumstances of the present case, there

is deficiency of service on the part of the appellants, which

entitles the complainant to damages/compensation. 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 there

was no delivery period stipulated in the agreement, a reasonable

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time has to be taken into consideration. [Paras 14 and 15] [281-

D-F]

5. The damages become due on the date when the breach

of contract takes place, and are normally assessed by reference

to the time of breach. The aforesaid rule is based on the principle

that the injured party is presumed to be in knowledge of the breach

as soon as it is committed and at that time he can take appropriate

measures of mitigation to control the loss flowing from the breach.

The courts may deviate from the aforesaid rule and fix

appropriate date in facts and circumstance of a case if aforesaid

presumptions could not be established or it would not be

reasonable to follow the rule. [Para 21] [283-F-H; 284-A]

6. 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. [Para 22] [284-C-

D]

7. Where there is non-delivery of the flat/house, and the

developer has refused to provide alternative and equivalent

accommodation, and the buyer lacks means to purchase a

substitute from the market, then in such circumstances,

damages would not be reasonable to be assessed on the breach

date. [Para 21] [284-A]

8. In the present case, the complainants (respondents) tried

to execute the agreement and sought for conveyance of the

property through the NCDRC. In these circumstances, 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 the facts and circumstances of the

present case, the damage need not be determined from the date

of breach of contract. [Para 22] [284-E]

9. Appellants have produced circle rates of properties in

the vicinity of the disputed flats, which 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

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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.

Excessive reliance on the aforesaid sale deed may not be

appropriate as the present property is a redevelopment of an

earlier property. Usually the real estate rates for re-developed

properties are on the lower side instead of green-field projects.

[Para 24] [284-G-H; 285-A]

10. Thus, the claim of the respondents (complainants) as

granted by the NCDRC seems to surpass the actual-loss based

damages and enter the domain of gain-based remedy. It would

not be appropriate to grant such damages. 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. [Para 25] [285-B-C]

11. It would be 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 disputed property.

Hence, the estimated market price would be Rs.4,14,20,000/-

instead of Rs.5,38,46,000/- as granted by the NCDRC. However,

there is no reason to interfere in respect of the compensation

granted for the parking space. [Para 26] [285-D-E]

Ghaziabad Development Authority v. Balbir Singh

(2004) 5 SCC 65 : [2004] 3 SCR 68 – relied on.

Johnson and Anr. v. Agnew [1979] 1 All ER 883 –

referred to.

Case Law Reference

[1979] 1 All ER 883 referred to Para 11

[2004] 3 SCR 68 relied on Para 18

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CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 3533-

3534 of 2017.

From the Judgment and Order dated 08.09.2016 and final Order

dated 03.11.2016 of the National Consumer Disputes Redressal

Commission, New Delhi in Consumer Complaint No. 636 of 2015 and in

Review Application No.273 of 2016 in Consumer Complaint No.636 of

2015 respectively.

Raju Ramachandran, Sachin Dutta, Sr. Advs, Rishi Agrawala,

Ms. Swati Sinha, Ms. Manisha Ambwani (for E.C. Agrawala), Advs

for the Appellants.

Abir Phukan, Ms. Marilyn Khakha (for V. Shyamohan), Advs

for the Respondents.

The Judgment of the Court was delivered by

N. V. RAMANA, J. 1. These appeals are filed against the

impugned orders, dated 08.09.2016 and 03.11.2016, passed by the National

Consumer Disputes Redressal Commission [hereinafter ‘NCDRC’ for

brevity], in Consumer Complaint No. 636 of 2015 and Review Application

No. 273 of 2016 in the Consumer Complaint No. 636 of 2015.

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 a re-development of Mohammadi House. The respondents booked

a flat bearing no. 202, 2

nd

Floor in ‘A’ wing, admeasuring 828.40 Sq. Ft.

with one unit of parking-space. The total consideration for the flat was

Rs. 1,93,00,000/-. It is alleged by the appellants, that due to increase in

the cost beyond what was expected, they transferred the project to

another company being M/s. Zoy Shelcon Pvt. Ltd. It is to be noted that

the respondents have paid a sale consideration of Rs. 1,87,00,000/-.

3. 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 following prayers-

a. To 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, 1986

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D’LIMA & ORS.

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b. 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

2

nd

floor admeasuring 828.40 Sq. Ft. with one car parking in the

building known as Hicon Onyx and since re-named as Fortune

residency situated at plot no. F/1116-A, Village Bandra, St.

Martins Road Bandra (West), Mumbai 400 050 (Maharashtra).

c. 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 2

nd

floor admeasuring 828.40 Sq. Ft. with one car

parking in the building known as Hicons Onyx and since

renamed as Fortune residency situated at plot no. F/1116-A,

Village Bandra, St. Martins road Bandra (West), Mumbai 400

050 (Maharashtra) on receiving the balance consideration

amount of Rs. 6,00,000/-from the complainants

Alternatively

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’ since re-named as ‘Fortune Residency’ 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 Fortune

Residency.

x x x x x

x x x x x

f. To 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.

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g. 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.

h. For such other and further relief as this Hon’ble Commission

may deem fit and proper in the nature and circumstances of the

above numbered complaint.

4. 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.

5. Having dissatisfied with the impugned orders passed by the

NCDRC, appellants approached this Court through these civil appeals.

6. At the threshold it was brought to our notice that on 08.09.2016,

when the matter was argued, on most of the other dates the appellants

remained unrepresented before NCDRC. Further the counsels

representing the appellants stated that their counsel appointed for the

forum below did not file necessary pleadings except for a proforma

reply. Keeping in view of the above, they argued that this case should be

remanded back to the NCDRC for fresh consideration. However, on

careful consideration of facts of this case, we are of the opinion that a

remand may not be required at this stage. To put a quietus to the

litigation, the controversy can be adjudicated by this Court.

7. Learned counsel for the appellants, primarily submitted that

the present appellants have transferred the project to a different

company thereby they should be discharged from any liability for not

handing over the disputed property to the answering respondents

(Complainants). He further argued that, the present circle rate of the

disputed property is pegged at approximately half the price awarded by

the NCDRC. Lastly, he urged before this Court to consider the

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downward trends shown in the real estate market which mandates a

lesser compensation, compared to the one awarded by the NCDRC.

8.Per Contra, the learned counsel appearing on behalf of the

answering respondents (Complainants) fully supported the reasoning of

the NCDRC in coming to a conclusion that, the appellants herein

provided deficient service by delaying the handing over of the flat to the

complainants. In all fairness, learned counsel for answering respondents

have admitted that prices as contemplated under the impugned order of

NCDRC are not reflective of the true market rates for similar flats

available in the near vicinity of the disputed flats.

9. It would not be out of context to mention that during the

hearing of this case, many attempts were made by both parties to

amicably settle the issue concerning the quantum of compensation which

could not fructify. Further we requested Shri. Raju Ramachandran,

learned senior advocate, to use his good office to persuade parties to

settle the matter. Such an endeavour also could not impress upon the

parties and therefore this court was called upon to adjudicate the matter.

10. Having heard learned counsels on either side and perusing the

materials available on record, the issue that fall for consideration is

whether there is deficiency of service on the part of the appellants? If

so, what is just and reasonable compensation?

11. It is now well established that the contractual damages are

usually awarded to compensate an injured party to a breach of contract

for the loss of his bargain. In the case of Johnson and Anr. V. Agnew,

[1979] 1 All ER 883, the aforesaid case has clearly held as under-

The general principle for the assessment of damages is

compensatory, i.e. that the innocent party is to be placed, so far

as money can do so, in the same position as if the contract had

been performed.

12. The aforesaid proposition remains to hold the field and has

been applied consistently. This rule is more qualified when it comes to

the real estate sector. If the seller wants to limit their liability for breach

of contract under the aforesaid rule, they have to portray that they have

performed their obligation in a prudent manner. It may be noted that the

onus is on the seller to show his best efforts and bona fides in

discharging the obligation. It may be noted that even in the absence of

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fraud, mere unwillingness to carry out the duty could constitute bad faith

sufficient for the purchaser to claim damages.

13. To decide whether the respondent ought to be awarded

compensation because of deficiency of service, it is important to

consider the meaning of deficiency as provided under Section 2(1)(g) of

the Consumer Protection Act, 1986.

(g) “deficiency” means any fault, imperfection, shortcoming or

inadequacy in the quality, nature and manner of performance which is

required to be maintained by or under any law for the time being in force

or has been undertaken to be performed by a person in pursuance of a

contract or otherwise in relation to any service;

In light of the above definition, we have to examine whether there

is any deficiency in service, which entitles the complainant to damages/

compensation.

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.

15. 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. When once this Court comes to the conclusion that, there is

deficiency of services, then the question is what compensation the

respondents/complainants is entitled to ?

16. Before we come to the aspect of quantum of compensation,

it would be appropriate to look at the settled legal position concerning

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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.

17. 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.

1

18. This Court in Ghaziabad Development Authority v. Balbir

Singh, (2004) 5 SCC 65, has observed that there is no fixed formula for

fixing damages in the following manner-

8. However, the power 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. The Commission/Forum would then need to

determine the loss. Loss could be determined on basis of loss of

rent which could have been earned if possession was given and

the premises let out or if the consumer has had to stay in rented

premises then on basis of rent actually paid by him. 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.

9. That compensation cannot be uniform and can best be

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

1

Apparent from the study of French Civil Code (FCC) and German Civil Code

(BGB).

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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.…We

clarify that the above are mere examples. They are not

exhaustive. The above shows that compensation cannot be

the same in all cases irrespective of the type of loss or

injury suffered by the consumer.

(emphasis supplied)

19. 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.

20. Before we assess the damages, another important issue to be

delved upon is the reckoning date for the purpose of the assessing the

damages. Whether should it be from the date on which the breach took

place or should it be from the date of judgment?

21. Learned counsel for the appellants, with some vehemence,

argued that the rates of the property have considerably slumped due to

downfall in the real-estate market. Such submissions are to be tested as

per the established principles of law. As per the settled law, the damages

become due on the date when the breach of contract takes place, and

are normally assessed by the reference to the time of breach. The

aforesaid rule is based on the principle that the injured party is presumed

to be in knowledge of the breach as soon as it is committed and at that

time he can take appropriate measures of mitigation to control the loss

flowing from the breach. The courts may deviate from the aforesaid

rule and fix appropriate date in facts and circumstance of a case if

aforesaid presumptions could not be established or it would not be

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reasonable to follow the rule. It may be noted that where there is non-

delivery of the flat/house, and the developer has refused to provide

alternative and equivalent accommodation, and the buyer lacks means

to purchase a substitute from the market, then in such circumstances,

damages would not be reasonable to be assessed on the breach date.

22. 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.

23. Even though the appellants raised a factual issue concerning

the non-payment of part-consideration, 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).

24. 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. 65,000per 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

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the fact that usually the real estate rates for re-developed properties are

on the lower side instead of green-field projects.

25. In light of the above, we consider that the claim of the

respondents (complainants) as granted by the NCDRC seems to

surpass the actual-loss based damages and enter the domain of

gain-based remedy. 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.

26. 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 disputed property. Hence, the estimated market price would

be Rs.4,14,20,000/- instead of Rs.5,38,46,000/- as granted by the

NCDRC. However, we do not see any reason to interfere in respect of

the compensation granted for the parking space.

27. Therefore, the appellants are directed as under-

a. To refund the amount of Rs. 1,87,00,000/- which they have

received from the complainants.

b. To pay a sum of Rs. 2,27,20,000/- as compensation to the

complainants.

c. To pay a sum of Rs. 20,00,000/- as compensation for one unit of

parking lot.

d. The appellants shall also pay Rs. 10,000/- as the cost of

litigation to the complainants.

e. The aforesaid amount is required to be paid within six weeks

from the day of this order. If the payment in terms of this order

is not made within the time stipulated herein, it shall carry

interest of 9% per annum from the date of this order.

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D’LIMA & ORS. [N.V. RAMANA, J.]

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28. It is to be noted that this Court vide order dated 23.02.2017,

while issuing notice, directed the appellants to deposit Rs. 2,50,00,000/-

before NCDRC as a condition precedent for hearing this case. Later it

was represented to us that the appellants as on 31.05.2017, had

deposited the aforesaid amountbefore NCDRC. In view of the above,

we allow the respondents (complainants) to withdraw the aforesaid

amount with accrued interest, if any and the same be adjusted to the

appellants’ liability as indicated above.

29. In light of the above discussions, we allow the appeals in part

to the extent indicated above. There shall be no order as to the costs.

Kalpana K. Tripathy Appeals partly allowed.