PER MR. JUSTICE RAM SURAT RAM (MAURYA), MEMBER 

1.      Heard Mr. Ashish Varma, Advocate, for the complainant and Mr. Pradeep Bhardwaj, Advocate, for opposite party.

2.      The aforementioned complaint has been filed for (a) directing the opposite party to refund Rs.5740935 along with interest @18% per annum from the date of deposit till the date of payment; (b) to pay Rs.4000000/-, as compensation for mental agony and harassment; (c) to pay Rs.500000/- towards litigation cost and (d) any other relief which is deemed fit and proper in the facts and circumstances of the case.

3.      The complainant stated that M/s. Ansal Properties and Infrastructure Ltd. (opposite party) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. In the year 2012, the opposite party launched a project in the name of “Golf Gateway Towers”, Sushant Gold City, Hi-Tech Township, Lucknow. The total consideration of the apartment is Rs.17064095/-. On coming to know about the aforesaid project, the complainant booked an Apartment on 14.02.2013 and deposited booking amount of Rs.879569/-. Thereafter, the opposite party vide allotment letter dated 19.09.2012 allotted Flat No.T-1/1-B super area 1690 sq.ft. The opposite party executed an Agreement dated 14.02.2013 in favour of the complainant in which total sale consideration of the aforesaid flat was shown as Rs.9685850/-.The complainants opted for “Construction Linked Payment Plan” and as per demand of the opposite party the complainants deposited time to time total Rs.7799537/- upto 01.02.2018 including the amount paid in the head of TDS upto 17.06.2019.  Under Clause 8.1 of the Agreement, the possession has to be given within 36 months with grace period of 90 days from the date of execution of the Agreement, that period expired on 17.12.2016. The construction was not completed nor there was any hope of its completion in near future, then the complainants, vide letter dated 16.08.2019, demanded for return of their money as both the complainants are senior citizens and cancer was detected on them. The opposite party sent a construction update vide e-mail dated 21.08.2019. The complainants, however, were in urgent need of money, therefore, vide letter dated 02.09.2019 again requested for return of the money. When the request was not accepted, then this complaint was filed on 19.09.2019.

4.      Looking to the urgent need of the complainant for money due to their serious illness, this Commission vide interim order dated 06.12.2019 directed to refund the principal amount of Rs.7799537 within three weeks. It is admitted to the parties that principal amount was returned from 30.03.2021 to 30.08.2021. Now, only dispute between the parties remains in respect of interest.

5.      Counsel for the complainants relying upon various judgments of this Commission including the judgment in CC No.1229 of 2015, Poonam Vasisht Vs. Parsvnath Developers Limited, decided on 11.04.2022 prayed for grant of interest @ 18% per annum and also compensation for mental agony and harassment.

6.      We have considered the arguments of the counsel for the parties and examined the record. Supreme Court in Bangalore Development Authority Vs. Syndicate Bank, (2007) 6 SCC S442, held that in the matter of contractual obligation, there is no scope for compensation for mental agony and harassment. In DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda, II (2019) CPJ 117, held that when interest is awarded in case of refund as compensation, then awarding other compensation was not justified. 

7.      Under Section 73 of the Indian Contract Act, 1872, in the matter of breach of contract the aggrieved party has to be compensated of the real loss on the date of such breach and not to the speculative loss. The explanation added in this Section provides that in estimating of loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by the non-performance of the contract must be taken into account. Now a days, taking notice of the current bank rate of interest, Supreme Court in Pioneer Urban Land & Infrasture Ltd. Vs. Govind Raghavan, (2019) 5 SCC 725, Lanco Hills Technology Park Pvt. Ltd. Vs. Manisha Balkrishna Kulkarni & anr. (2020) II SCC 699, R.V. Prasannakumar Vs. Mantri Castles Pvt. Ltd. (2020) 14 SCC 769, Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes, Pvt. Ltd., (2020) 16 SCC 512, IREO Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241 and Civil Appeal No.6044 of 2019, Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, decided on April 07, 2022 directed for payment of interest @9% per annum. The judgment of Supreme Court is binding under Article 141 of the Constitution of India. The various judgments cited by the complainants of this Commission are per in-curium inasmuch as it has not taken any notice of the judgments of the Supreme Court, as such are not good law.

ORDER

          The complaint is partly allowed. The order dated 06.12.2019 shall be part of this judgment. The opposite party is directed to pay interest @ 9% per annum from the date of each deposit till the date of actual payment, within a period of two months.  While calculating the amount of interest, the amount refunded towards principal should be adjusted on the date of refund and remaining amount shall carry interest at the same rate of interest.