1.      This first appeal has been filed by the appellant Barnala Builders & Property Consultants, against the order dated 18.12.2014 of the State Consumer Disputes Redressal Commission, Punjab, (in short ‘the State Commission’) passed in Consumer Complaint No.2 of 2014.

2.      Brief facts of the case are that the complainant has filed a complaint No.2 of 2014 against the opposite party on the allegations that the complainant got booked an apartment/flat No.804 Block-O in Maya Garden Phase II, Zirakpur on 23.8.2010 and paid to the opposite party a sum of Rs.4,80,000/- as earnest money vide receipt No.502 dated 25.8.2010.  Later on it was revealed that OP did not have approval of the Punjab Government for this project, and the OPs have taken a sum of Rs.4,80,000/- by way of mis-representation.  Therefore, the complainant decided to cancel the booking. However, the OPs instead of refunding the amount offered a Flat No.303, Block-F in Phase -3 and assured that this project is being built by them and complainant agreed to purchase the said flat and amount of Rs.4.80 lacs paid for Phase-II was adjusted for the booking of this flat in Phase-III.  The OPs assured the complainant that the project will be completed shortly and the possession will be handed over on or before 31.12.2012.  The cost of the new flat was Rs.40 lacs besides Rs.1 lac for parking space.  The complainant got his flat financed from LIC Housing, who paid a sum of Rs.30,75,000/- on 5.5.2012.  The complainant further paid a sum of Rs.1 lac on 30.6.2012. Thereafter, he deposited a sum of Rs.1,26,630/- on 21.8.2013.  The LIC Finance Company also paid Rs.2,50,000/- in the first week of September, 2013 to the OPs.  The complainant wrote various emails/letters to the opposite party to deliver the possession.  It was also submitted that the flat was lacking basic amenities.  Vide letter dated 2.2.2013, 5.2.2013, 15.2.2013 and 9.3.2013, OPs were requested to provide the basic amenities.  However, the opposite party vide letter dated 15.6.2013 admitted receipt of Rs.36,52,000/- and further demanded a sum of Rs.4,48,000/- from the complainant without any reason.  However, the possession was not delivered.  He was supposed to pay only 90% of the cost before delivery of the possession, which was paid.  In another letter dated 26.6.2013, the OPs again demanded a sum of Rs.4,48,000/- and further demanded Rs.60,000/- and Rs.1,08,549/- towards interest and Rs.1 lac towards maintenance; in all Rs.6,56,609/- was demanded. OP issued a legal notice to the complainant on 2.9.2013 vide which a sum of Rs.6.53,059/- was asked to be deposited within a period of 15 days. Inspite of several reminders and requests the possession was not delivered by the opposite party to the complainant and therefore, the complainant filed a consumer complaint No.2 of 2014 before the State Commission, with the request that the opposite party be directed to cancel the extra demand raised and to hand over the possession.  Apart from this, it was also prayed that opposite party be directed to pay penal charges for delayed possession@ 5/- per sq. ft. per month.

3.      Opposite party resisted the complaint by stating that the complainant has been a defaulter as he has not paid the full amount.  Moreover, as per the builder- buyers agreement, the complainant was supposed to pay 90% of the total amount, which was Rs.36,00,000/- within 410 days.  However, the complainant had not paid this amount before that date.  Hence, the demand for interest along with the remaining amount was raised before handing over the possession.

4.      The State Commission after considering the submissions of both the parties allowed the complaint vide its order dated 18.12.2014 as under:-

“Accordingly, the complaint filed by the complainant is accepted with a direction to the OPs as under:-

(i)       deliver the possession of the flat within two months; complete in all respects;

(ii)      the OPs will pay the penalty charges @ Rs.5/- per sq. fit. per month w.e.f. 1.1.2013 till the date of possession;

(iii)     a sum of Rs.39,62,000/- has already been paid, the balance amount will be adjusted from the penalty clause.In case the amount is excess what is due from the OPs then the balance amount will be paid by the OPs to the complainant.In case the penalty amount is in short then the agreed price of Rs.41 lacs then the same will be paid by the complainant before delivery of the possession.

(iv)   The OPs will pay Rs.50,000/- as compensation due to harassment to the complainant not to deliver the possession within the time and compelling the complainant to file the complaint;

(v)   Pay Rs.11,000/- as litigation expenses.”

5.      Hence the present appeal by the appellant/opposite party.

6.      Heard the learned counsel for the parties and perused record.

7.      Learned counsel for the appellant argued that the State Commission has wrongly ordered quashing of the demand  raised by the petitioner and ordered payment of outstanding amount by the complainant without any interest. It was alleged that the payments have not been made by the complainant as per the construction linked payment plan.  90% of the total amount, which was Rs.36,00,000/- should have been paid within 410 days from the booking, whereas, the complainant had not paid this amount before the stipulated days.  Hence, complainant was liable to pay interest on the remaining amount. Accordingly the demand was raised.  The State Commission has not only set aside the interest levied, it has ordered payment of penal charges for delayed possession as per concerned clause of builder-buyers agreement.  In fact, as the complainant did not make the full payment even on the due date of possession, he was not entitled to get the possession and he was obliged to pay the interest on the remaining amount.  Thus, the order of the State Commission is against the provisions of the builder-buyers agreement and cannot be sustained.

8.      On the other hand, learned counsel for the respondent/complainant stated that there was no question of any interest on the remaining amount to be paid as the construction itself was delayed and it was not possible for opposite party to hand over the possession on the date prescribed in the agreement.  The State Commission has rightly allowed the possession to be handed over and adjustment of remaining payment against the penal charges payable by the OP. As per the agreement, the payment was to be made as per the construction linked plant and when the construction itself was delayed, how can the payment be made as per the schedule.Therefore, the complainant was not required to pay 90% within 410 days from the date of booking.  The learned counsel prayed that the appeal has no force and should be dismissed.

9.      I have carefully considered the arguments advanced by the learned counsel for both the sides and have examined the record.  The basic contention of the appellant is that the complainant had not paid the amount of 90% within a period of 410 days from the date of booking as per the agreement and therefore the complainant was liable to pay interest on the amounts paid by the complainant after the due dates as per the agreement.  Another point raised in the appeal by the appellant is that the State Commission has wrongly ordered payment of penal charges for delayed possession because the opposite party was ready to hand over the possession provided the complainant had paid all the dues.  From the order of the State Commission, it is clear that as against the total cost of Rs.41,00,000/- the complainant had paid Rs.39,62,000/-. Thus, a sum of Rs.1,38,000/- still remains dues against the complainant.  The State Commission has further ordered that the penal charges of Rs.5/- per sq.ft. per month would be payable from 01.01.2013 till actual date of possession.  From this, it is clear that the complainant was liable to pay Rs.1,38,000/- before 01.01.2013.  Hence, the complainant is liable to pay interest @ 9% p.a. on the amount of Rs.1,38,000/- w.e.f. 01.01.2013 till date of possession.

10.    Coming to the question of compensation of Rs.50,000/-, I find that as the State Commission has not passed any order directing the opposite party to pay interest on the total amount deposited by the complainant for the period of delayed possession, I do not see any justification for reducing the compensation of Rs.50,000/- ordered by the State Commission.   Obviously, the opposite party is bound to give penal charges for delayed payment as per the agreement for the period beyond the agreed rate of possession till actual possession.

11.    Based on the above discussion, impugned order dated 18.12.2014 of the State Commission stands modified only to the extent that the complainant/respondent would be liable to pay interest on the amount of Rs.1,38,000/- from 1.1.2013 till actual date of possession and this amount would also be adjusted against the penal charges @ Rs.5/- per sq. ft. per month payable as per the order of the State Commission.  Apart from this addition, the order of the State Commission remains unchanged.  The first appeal No.63 of 2015 is accordingly disposed of.