AVM J. RAJENDRA, AVSM, VSM (RETD.), MEMBER 1. The present First Appeal has been filed under Section 19 of the Consumer Protection Act, 1986 (hereinafter referred to as “the Act”) against the Order dated 10.09.2019 passed by the learned State Consumer Disputes Redressal Commission, U.T. Chandigarh (hereinafter referred as “the State Commission”), in Consumer Complaint No.62 of 2019 with the following prayers: (a) allow the present Appeal; and (b) set aside the final judgment and Order dated 10.09.2019 passed by the Hon'ble State Consumer Disputes Redressal Commission, UT, Chandigarh in Consumer Complaint No. 62 of 2019 limited to the extent of awarding of quantum interest and compensation; and (c) pass such other and further order or orders as this Hon'ble Commission may deem fit and proper in the facts and circumstances of the case.” 2. Brief facts of the case are that the Complainants were allotted plot No. OCE/II/4/790A, Plot No.790, admeasuring 199.13 square yards/166.50 Sq Meters in the project named 'Omaxe Chandigarh Extension', New Chandigarh, District SAS Nagar, Punjab. The total price of the said plot was fixed at Rs.56,27,778.70. It is specific case of the complainants that, despite making payment of Rs.48,62,807/- against the total sale consideration of Rs.56,27,778.70, the Opposite Parties failed to offer and deliver possession of the plot on or before 12.10.2017 i.e. within a total period of 30 months (24 + 6 months grace period), as envisaged under Clause 35(a) of the Allotment Letter/ Agreement. Visits to the project site revealed that the OPs will not be able to deliver possession of the plot, even in the next two to three years, for want of development works. Number of requests were made to the OPs to complete development work at the project site and deliver the possession of the plot in dispute. However, no positive steps were taken. Emails forwarded to the OPs from 21.07.2014 to 07.07.2018 also did not yield any result. On account of the acts and conduct of the OPs in not completing the development works at the project site, the complainants could not commence the construction on the plot in question. As a result, they were charged penal interest by the State Bank of India from where they obtained loan for making part payment, under Tripartite Agreement dated 13.04.2015. As the aforesaid acts of the OPs amounted to deficiency in providing service and unfair trade practices, the present complaint has been filed by the complainants seeking the following reliefs: a) To refund the deposited amount of Rs.48,62,807.00 along with interest @ 12% pa from the date of deposit till realization. b) To pay a sum Rs.3,00,000/- (Rupees Three Lakh) towards' compensation for harassment, mental agony trauma and torture, suffered by the Complainant. c) To pay a sum of Rs.1,00,000/- (Rupees One Lakh only) towards legal and other miscellaneous expenses incurred by the Complainants. d) To pay a sum of Rs.97,212.80 which the complainants had deposited the amount with SBI towards their loan. This amount is the difference of interest rate as increased by the SBI in lieu of, non-construction of the plot by the complainants, the reason for non-construction of the plot is respondents had failed to handover possession within stipulated period as per buyer agreement. e) Pass any other or such further order(s) or direction(s) which this Hon'ble Commission may deem fit and proper under the circumstances of the case.” 3. In the reply filed by the opposite parties, many preliminary objections were raised. It was averred that the complainants did not fall within the definition of "consumer" as defined under Section 2(1)(d) of the Act. They already are owners of a house at Sector 16 Panchkula. As such, the purchase of the plot in dispute was for commercial purpose i.e. for selling the same, as and when there is escalation in the prices of real estate and to make profits. In addition, the territorial and pecuniary jurisdiction of the State Commission was also challenged. 4. It was stated that the development works in the area where the plot in question is located were completed. The Partial Completion Certificate was also applied for with the Competent Authorities vide letter dated 24.04.2019. Since the period to offer possession of the plot was to be computed by excluding Saturdays, Sundays and Bank Holidays, no definite period was committed to hand over possession of the plot. Further, the plot in question falls under the category of immovable property. As such, the time was not to be considered as essence of the contract. However, in the same breath, it was pleaded that the complaint filed is time barred. It was stated that the complainants defaulted in making payments towards consideration of the said plot. Appropriate reminders were sent to them by the OPs. Obtaining loan from the State Bank of India, for making payment towards price of the said plot was the prerogative of the complainants. The OPs cannot be held liable if the said bank has levied penal interest upon them (complainants). It was pleaded that if the complainants still want a refund of the amount paid, the forfeiture clause would be applicable. The remaining averments were denied being wrong. Prayer was made to dismiss the complaint with costs. 5. The State Commission vide impugned Order dated 10.09.2019, partly accepted the Complaint filed by the Complainants/ Respondents with costs and directed the Appellants/ Opposite Parties, jointly and severally as under:- “i) To refund the amount Rs.48,62,807/- to the complainants, alongwith interest @12% p.a., from the respective dates of deposit onwards, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount of Rs.48,62,807/- shall further carry 3% penal interest i.e. total 15% p.a. (12% p.a. plus (+) 3% p.a.) from the date of passing of this order till realization. ii) To pay compensation, in the sum of Rs.2,00,000/- for causing mental agony and physical harassment, and also deficiency in providing service and adoption of unfair trade practice and also cost of litigation, to the tune of Rs.35,000/- to the complainants, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.2,00,000/- and Rs.35,000/- shall carry interest @12% p.a. from the date of passing of this order till realization.” 6. The learned Counsel for the Appellant relied upon the judgment of the Hon’ble Supreme Court in “DLF Homes Panchkula Limited vs. D. S. Dhanda etc. (2020) 16 SCC 318”. He submitted that since interest has been awarded on the amount due, the direction regarding grant of compensation may be quashed. 7. The learned Counsel for the Appellants submitted that the principal amount stands deposited with this Commission and that even though he had made the submission that the development of the plot was complete and partial Completion Certificate has been obtained, he was limiting his case only to the extent of compensation awarded by the State Commission. 8. On behalf of the Respondents, the learned counsel argued that although before the State Commission the prayer was for refund, in view of the partial Completion Certificate which has now been filed, they are willing to take possession of the plot and does not insist on the refund of the money. The learned counsel for the Appellant clarified that the Appellant is unwilling to consider handing over of the plot at this stage and the same is also beyond the pleadings in the matter. 9. We have examined the entire material on record and heard the learned counsels for both the parties. As regards the rate of interest applicable and the scope for payment of compensation in such matters, the Hon’ble Supreme Court in Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, in Civil Appeal No.6044 of 2019 decided on 7.4.2022 has held that:- “We are of the opinion that for the interest payable on the amount deposited to be restitutionary and also compensatory, interest has to be paid from the date of the deposit of the amounts.The Commission in the Order impugned has granted interest from the date of last deposit.We find that this does not amount to restitution. Following the decision in DLF Homes Panchkula Pvt. Ltd. Vs. DS Dhanda and in modification of the direction issued by the Commission, we direct that the interest on the refund shall be payable from the dates of deposit. Therefore, the Appeal filed by purchaser deserves to be partly allowed. The interest shall be payable from the dates of such deposits. At the same time, we are of the opinion that the interest of 9% granted by the Commission is fair and just.” 10. In view of the submissions of the learned counsels for both the parties and the established precedents by the Hon’ble Supreme Court in the matter, the impugned Order dated 10.09.2019 passed by the learned State Commission, UT Chandigarh is modified with the following directions: - ORDER - The Appellants shall refund the amount of Rs.48,62,807/- to the Complainants/Respondents, along with simple interest @ 9% per annum from the respective dates of deposit till the date of payment, within a period of one month from the date of this order. In the event of default, the amount payable shall carry interest @ 12% per annum from the date of expiry of one month till the realization of the entire amount.
- The Appellant shall pay cost of litigation quantified as Rs.35,000/- to the Complainants/ Respondents, within one month from the date of this order.
11. Consequently, the instant First Appeal No. FA/2007/2019 stands disposed of. All the pending Applications, if any, also stand disposed of. The statutory amount deposited by the Appellant, if any, be refunded after due compliance of the order. |
