1. The present Execution Application has been filed by Anchal Walia and Gaurav Goyal, Complainants/Decree Holders against Ansal Housing Limited (formerly known as Ansal Housing & Construction Ltd) and Samyak Projects Pvt. Ltd., Opposite Parties/Judgment Debtors. 2. Brief facts of the case are that in the year 2011, the Complainants had booked an Apartment with the Opposite Party No.1 in its Project, known as “Ansal Height 86” being developed at Sector 86, Gurgaon. However, despite having received the huge amount of Rs.62,99,478/- from the Complainants, the Opposite Parties have failed to deliver physical possession of the Apartment to them in terms of Flat Buyer’s Agreement. Alleging deficiency in service and Unfair Trade Practice on the part of the Judgment Debtors, the Complainants filed a Consumer Complaint being CC No. 2595 of 2018 before this Commission. Vide Order dated 21.02.2020, this Commission partly allowed the Complaint in the following terms:- “ Accordingly, in support of his case, learned Counsel for the Complainants has placed reliance on the decision dated 01.10.2019 of this Commission in Consumer Case No. 514 of 2018 (Manoj Kumar Sharma Vs. M/s Ansal Housing & Construction Ltd.) and other connected cases. Heard the learned Counsel for the Parties and perused the material on record. I find that the defence taken by Opposite Party No.1 in its Written Version, filed rebutting the allegations levelled against it in the Complaint, is more or less similar to that taken in Manoj Kumar (supra), which relates to the same project, i.e. “Ansal Heights 86”. Further, as in the present case, in that case also the Complainant had not been handed over possession by the Opposite Party within the stipulated period, despite receiving a huge amount. Negating the pleas raised by the learned Counsel for the Opposite Party, by a detailed order, this Commission had partly allowed that Complaint, by directing the Opposite Party to refund the principal amount with interest @ 12% p.a. from the respective dates of deposit till the date of realization together with costs of Rs.25,000/-, within four weeks from the date of receipt of that order, failing which the amount was directed to carry interest @ 14% p.a. for the same period. Accordingly, following the decision in Manoj Kumar (supra), I partly allow the present Complaint and direct the Opposite Parties to refund the principal amount with interest @ 12% p.a. from the respective dates of deposit till the date of realisation together with costs of ₹25,000/-. This amount is directed to be paid within four weeks from the date of receipt of a copy of this order, failing which the amount shall attract interest @ 14% p.a. for the same period. 3. The Opposite Parties/Judgment Debtors have not complied with the directions given vide Order dated 21.02.2020. Feeling aggrieved the Complainants/Decree Holders have filed the present Execution Application with the following prayer:- “a) Kindly grant an ex-parte order for immediate attachment of OP Properties and its management’s personal properties under section 13(3)(3B), 25, 26 and 27 of the Act for non-compliance of Hon’ble NCDRC order. (List of property is attached from Annexure A-5 to A-10); b) Kindly issue warrant of arrest and sentenced him u/s 27 of the Consumer Protection Act since the offence done by JD u/s 27 is continuing and prime facie proved; c) Kindly pass any appropriate Order under the law to safeguard the miscarriage of Justice and to comply the satisfaction of consumer legal debt and Hon’ble NCDRC order dated 21.02.2020. 4. The Execution Application has been contested by the Opposite Party No.1 by filing its reply and submitting that; Complainants are not entitled to any relief on the basis of bogus and superfluous allegations in the application; due to demonetization and lockdown on account of pandemic Covid 19, the financial position of the Builder had been adversely affected and at present they are not able to comply with the order; owing to continuous loss for 4-5 years, the Judgement Debtor Company is unable to refund the amount along with huge interest and especially in the circumstances that the Unit allotted to the Complainants is almost ready for possession; the concept of time value of money is aptly applying in the present case and as such the Decree Holders ought not to press for immediate disbursal of the decree; compelling for refund with the huge interest to the Decree Holders would put the Project in further crunch of funds and adversely affect the development and maintenance of the Project and above all the interest of other Allottees; since the Project is almost complete and the Completion/Occupancy Certificate had already been applied, therefore, the Judgement Debtors may be offered an opportunity to offer possession of the Unit allotted to the Decree Holders; the copy of the order dated 21.02.2020 was received on 06.03.2020 and they were prevented to comply with the Directions to prefer an Appeal against the order dated 21.02.20 due to surge of Covid-19. 5. In terms of the Order, dated 24.02.2021 passed by this Commission, an affidavit of Mr. Kushagr Ansal, Whole Time Director and CEO of the Opposite Party No.1 was filed. The Relevant paragraphs 7,8,9 and 10 of the Affidavit are as under:- “ That to express its bona-fide, and to reassure this Hon’ble Commission about its sincere intent to comply with the Order of refund along with interest, the Deponent hereby deposits/submits a cheque bearing No. 621631 amounting to Rs.30,00,000/- (Rupees Thirty Lakh only) dated 15.03.2021 drawn at Canara Bank, Janpath, New Delhi, a copy of which is annexed herein as Exhibit-2. That although this Hon’ble Commission vide Order dated 24.02.2021, directed the JD(s) to tender the cheque of Rs.30,00,000/- (Rupees Thirty Lakhs only) to Shri Vishal Garg (Counsel of DH) on or before 01.03.2021, but the Counsel for DH expressed his inability to receive the same, as he is a Chandigarh based lawyer, and requested to the counsel for Deponent (Mr. Vikas Tiwari) over telephone conversation held on 25.02.21 (yesterday) to deposit the same in Original before this Hon’ble Commission, so that the AR of DH may collect the same from this Hon’ble Commission. That the JD undertakes to pay the balance amount of Rs.87,91,722/- (Rupees Eighty Seven lakh Ninety One Thousand Seven Hundred Twenty Two only) in monthly installments of Rs.15,00,000/- (Rupees Fifteen Lakh only) each commencing from 15.04.2021 till the entire amount is paid. It is respectfully submitted that , although the rate of interest awarded by this Hon’ble Commission was 12% p.a. in the Order/Judgement dated 21.02.2020 but it was ordered to be enhanced by additional 2% as penal interest, if the amounts were not paid within the stipulated time. The Deponent, with all humility at its command, humbly requests to this Hon’ble Commission and appeals the Decree Holder, not to press for additional 2% penal interest, as the financial condition of the JD is stressed and the JD is endeavouring to satisfy this decree by arranging commercial borrowings from financial institutions. 07. Along with affidavit, the Interest Calculation Sheet was also filed as Exhibit 1 which is reproduced below:- Interest Calculation of Gaurav Goyal against F-1103, Sector 086, Gurgaon | Sl. No. | Amount | Interest From | Interest Upto | Numbers Of Days | Interest Amount | Interest Amount | | | | | Days | 12% | 14% | | | | | | | | 1 | 500000.00 | 7-Dec-11 | 24-Feb-21 | 3368 | 553644 | 645918 | 2 | 273713.00 | 11-Dec-11 | 24-Feb-21 | 3346 | 301099 | 351283 | 3 | 515809.00 | 16 -Jan-12 | 24-Feb-21 | 3328 | 564366 | 658427 | 4 | 532000.00 | 7-Jun-12 | 24-Feb-21 | 3185 | 557070 | 649915 | 5 | 40000.00 | 1-Aug-12 | 24-Feb-21 | 3130 | 41162 | 48022 | 6 | 261497.00 | 21-Sep-13 | 24-Feb-21 | 2714 | 233327 | 272215 | 7 | 553045.00 | 21-Dec-13 | 24-Feb-21 | 2623 | 476922 | 556409 | 8 | 553050.00 | 6-Feb-14 | 24-Feb-21 | 2576 | 468380 | 546444 | 9 | 565082.00 | 1-Mar-14 | 24-Feb-21 | 2553 | 474297 | 553347 | 10 | 388348.00 | 23-Apr-14 | 24-Feb-21 | 2500 | 319190 | 372388 | 11 | 380200.00 | 9-Jun-14 | 24-Feb-21 | 2453 | 306618 | 357721 | 12 | 261520.00 | 22-Jul-14 | 24-Feb-21 | 2410 | 207210 | 241745 | 13 | 298446.00 | 30-Oct-14 | 24-Feb-21 | 2310 | 226655 | 264431 | 14 | 32155.00 | 10-Dec-14 | 24-Feb-21 | 2269 | 23987 | 27985 | 15 | 21009.00 | 29-Jun-15 | 24-Feb-21 | 2219 | 15327 | 17881 | 16 | 300180.00 | 9-Feb-15 | 24-Feb-21 | 2208 | 217906 | 254224 | 17 | 2627.00 | 26-Feb-15 | 24-Feb-21 | 2191 | 1892 | 2208 | 18 | 240547.00 | 2-Mar-15 | 24-Feb-21 | 2187 | 172957 | 201783 | 19 | 2328.00 | 14-Jul-15 | 24-Feb-21 | 2053 | 1571 | 1833 | 20 | 257594.00 | 29-Jul-15 | 24-Feb-21 | 2038 | 172595 | 201361 | 21 | 38572.00 | 4-Mar-17 | 24-Feb-21 | 1454 | 18438 | 21512 | 22 | 284084.00 | 2-Dec-17 | 24-Feb-21 | 1181 | 110302 | 128686 | | | | | | | | | 6301806.00 | | | Int. Amt | 5464916 | 6375735 |
08. On 05.10.2021, the Complainants have submitted the Calculation Sheet of Net Outstanding Decreed Amounts to be paid by the Judgement Debtors till 15.10.2021 under Orders dated 21.02.2020 and 24.02.2021. According to the Calculation Sheet, the Opposite Party No.1 had paid an amount of ₹1,17,91,722/- till 15.09.2021 and the total amount to be paid by them till 15.10.2021 was ₹1,32,47362/- including litigation expenses of ₹25,000/-. Hence, an amount of ₹14,55,640/- was still payable by the Opposite Party No.1 till 15.10.2021. The Calculation Sheet dated 05.10.2021 is reproduced below:- Outstanding Amount till 24 February 2021 under the order of Hon’ble National Commission dated 21 February 2020 is ₹63,01,806 (Pr.)+ ₹63,75,735 (Int. @14%) [The Figures are as per the Affidavit of JD dated 24 February, 21] | ₹1,26,77,541 | Net Interest on break up instalments of JD from 24 February 2021 to 15 October, 2021 under Further order of Hon’ble National Commission dated 24 February 2021 (Foot note (A)) | (+) ₹5,44,820 | Litigation Expenses | (+) ₹25,000 | Total Payable Decreed Amount up to 15 October 2021 [One Crore Thirty tow lakh forty seven thousand three hundred sixty two rupees only] | ₹1,32,47,362 | Total paid Amount on record till 15 Sept,2021 | (-) ₹1,17,91,722 | Net Outstanding Decreed Amount Due on 15 Oct, 2021 [Fourteen lakh fifty five thousand six hundred forty rupees] | ₹14,55,640 |
Foot note (A) Total Accrued Interest on Break Up Instalments From 24 February 2021 to 15 October 2021 under further order of Hon’ble National Commission dated 24 February 2021 | Date From | Date to | Days | Payment | Balance Amount (In Rs.) | Accrued Interest (In Rs.) | 25 Feb,21 | 14 Mar, 21 | 18 | Nil | 1,26,77,541 | 87,527 | 15 Mar, 21 | 14 April, 21 | 31 | 30,00,000 | 96,77,541 | 1,15,069 | 15 April,21 | 14 May, 21 | 30 | 15,00,000 | 81,77,541 | 94,097 | 15 May 21 | 14 July, 21 | 61 | 15,00,000 | 66,77,541 | 1,56,236 | 15 July 21 | 4 Aug, 21 | 21 | 15,00,000 | 51,77,541 | 41,704 | 5 Aug, 21 | 14 Aug, 21 | 10 | 15,00,000 | 36,77,541 | 14,105 | 15 Aug, 21 | 14 Sept, 21 | 31 | 15,00,000 | 21,77,541 | 25,891 | 15 Sep, 21 | 14 Oct,21 | 30 | 12,91,722 | 8,85,819 | 10,192 | Net Accrued Interest due on JD from 24 February 21 to 15 October, 2021 | 5,44,821 |
09. The Opposite Party No.1 has filed an affidavit of Mr. Kushagr Ansal, Whole Time Director of the Judgment Debtors on 13.10.2021 submitting that the Order dated 21.02.2020 was directed to be complied with by the Judgment Debtors within four weeks from the date of receipt of a copy of the Order. The Order dated 21.02.2020 has been received by them on 06.03.2020 and hence, the commencement point of four weeks to comply the Order dated 21.02.2020 expired on 03.04.2020. However, immediately after the delivery of the Order dated 21.02.2020, the surge of Covid 19 came at its peak and resultantly the lockdown was imposed in the entire Country. Consequently, the Hon’ble Supreme Court considering the difficulties being faced by the litigants in filing petitions/applications/suits/appeals/all other proceedings, vide Order dated 23.03.2020, in Sou Moto Writ Petition (C) No.03/2020, suspended limitation in all proceedings under any law in force w.e.f. 15.03.2020 till 02.10.2021. Therefore, the direction to refund the amount within four weeks got suspended from the period from 15.03.2020 till 02.10.2021 and as such the Judgment Debtors was only liable to pay interest @ 12%, if the amount paid on or before 02.10.2021 and the penal interest of 2% cannot be pressed into service because the entire decretal amount was paid within a period of four weeks coupled with the benefit extended by the Hon’ble Supreme Court. The Judgment Debtor has made all the payments including interest till 24.02.2021 by 15.09.20201. Further, since, the Hon’ble Commission was of the view that the interest @12% has to be paid till the date on which the last payment was made, the Judgment Debtor has paid the remaining interest calculated @ 12% from 24.02.2021 till 14.09.2021 amounting to ₹4,37,287/- to the Complainants. As such, the Order dated 21.02.2020 has been fully complied with by the Judgment Debtors. 10. On 15.12.2021, we have directed the parties to furnish the following details:- (i) Date of Deposits; (ii) Amount Deposited: (iii) Details of amount refunded indicating the date and specific amount; (iv) Interest to be paid as per the Orders of this Commission; (v) Total amount received and the date on which the amount is received and; (vi) Balance amount, payable; 11. Despite the aforesaid specific direction, the Complainants have not furnished any information in compliance with the Order dated 15.12.2021. However, the Judgment Debtor has submitted the details of Principal amount paid by Complainants, interest @12% paid by the Judgment Debtor, cheque numbers and amount thereof. According to the Judgment Debtor, they have a paid a sum of ₹1,22,29,009/- to the Complainants as under:- Sl. No. | | | -
| Amount deposited/Principal Amount (From 07.12.2021 till 02.12.2017) | - 63,01,806.00
| -
| Interest @12% p.a. on the amount deposited (Upto 24.02.2021) | - 54,64,916.00
| -
| Interest @ 12% p.a. (From 24.02.2021 till 14.09.2011) | - 4,37,287.00
| -
| Litigation Expenses | - 25,000
| | - total
| - 1,22,29,009
|
. From a conjoint reading of afore-extracted calculations, it is manifest that the Judgment Debtors have paid an amount of ₹1,22,29,009/- to the Complainants which includes the Principal Amount, Interest @ 12% p.a. from respective dates of deposit till 14.09.2021 and the litigation costs.
14. Now, the only question which falls for our consideration is as to whether the Complainants are entitled for penal/default interest @2% p.a. or not in the light of the Order dated 23.03.2020 passed by the Hon’ble Supreme Court in Sou Moto Writ Petition 03/2020 suspending the limitation in all proceedings under any law of force w.e.f. 15.03.2020 till 02.10.2021 in view of the surge of Covid 19.
15. Before dealing with the above framed question, we would like to produce here the Order dated 23.03.2020 passed by the Hon’ble Apex Court in Sou Moto Writ Petition (C) No.03/2020 which is as under:-
" This Court has taken Suo Motu cognizance of the situation arising out of the challenge faced by the country on account of Covid-19 Virus and resultant difficulties that may be faced by litigants across the country in filing their petitions/applications/suits/ appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under Special Laws (both Central and/or State). To obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/Tribunals across the country including this Court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings. We are exercising this power under Article 142 read with Article 141 of the Constitution of India and declare that this order is a binding order within the meaning of Article 141 on all Courts/Tribunals and authorities. This order may be brought to the notice of all High Courts for being communicated to all subordinate Courts/Tribunals within their respective jurisdiction. Issue notice to all the Registrars General of the High Courts, returnable in four weeks. 16. From a bare reading of the afore-extracted Order dated 23.03.2020 passed by the Hon’ble Supreme Court in the surge of Covid 19, it is crystal clear that the intention of the Hon’ble Supreme Court behind passing such an Order was to obviate the difficulties and problems being faced by the litigants/lawyers especially in physically filing of their Petitions/ applications/ suits/appeals/all other proceedings within the period of limitation before any Court/Tribunal across the Country. There was no specific direction in the said Order of the Hon’ble Supreme Court for extension of compliance of any Order passed by any Court/Tribunal meaning thereby the Judgment Debtors cannot take the advantage of this Order in relation to their obligation of refund of the amount in compliance of the Order dated 21.02.2020 whereby they were directed to refund the deposited amount with interest @ 12% p.a., within a period of four weeks from the date of receipt of the copy of the order failing which the amount shall attract interest @14% p.a. for the said period. In the present case, it has been admitted by the Judgment Debtors in their Affidavit dated 13.10.2021 that they have received a copy of the Order dated 20.02.2020 on 06.03.2020 as such they were liable to refund the deposited amount along with interest @ 12% p.a. within a period of four weeks from 06.03.2020 that means latest by 03.04.2020 and thereafter they were required to pay the amount along with interest @14% p.a. Since, the Judgment Debtors had paid the amount along with interest @12% p.a. to the Complainants through installments from 15.03.2021 to 11.10.2021 as per the Statement filed in terms of Order dated 15.12.201, they are liable to pay interest @14% instead of 12% on the payments made by them as above. 17. In the light of this background, we are of the considered view that the Judgment Debtors are liable to pay additional interest @ 2% p.a. to the Complainants from the respective dates of deposit till the actual date of payment.
18. The Execution Application No. 123 of 2020 stands disposed of in above terms. |
