This appeal has been filed u/s 19 of the Consumer Protection Act, 1986 against the impugned order dated 01.04.2015, passed by the UT Chandigarh State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the State Commission’) vide which, the respondent builder M/s. Ansal Properties & Infrastructure Ltd. was directed to hand over the physical possession of the property in question to the complainants/appellants after receiving the payment of the balance amount from them. 

1. Brief facts of the case are that the appellants/complainants who are husband and wife, booked an apartment in the Project floated by the OP Builder, namely, Luxury Floors at Golf Link, Sector 114, Mohali, Punjab.The complainants were allotted independent floor No. 738, first floor, measuring 144.45 sq. mtr. with a total cost of ₹34,70,000/-.It has been alleged that according to clause 12 of the allotment letter dated 25.02.2010, the OPs were required to hand over the physical possession of the said property within a maximum period of 30 months from the date of commencement of construction work.However, despite the payment of ₹32,90,525/- by the complainants to the OPs, the possession was not offered to them.The consumer complaint, in question, was filed, seeking directions to the OPs to hand over the physical possession of the flat and to pay interest @18% p.a. for the period of delay and also to pay a compensation of ₹2 lakhs on account of mental harassment etc.

    

2. The complaint was resisted by the OPs by filing a written statement before the State Commission, in which they stated that the complainant did not fall under the definition of consumer, as they had invested in the said property for commercial purpose.Moreover, the possession had not been given because of non-payment of certain dues on the part of the complainant.The construction work on the project had already been completed and the OPs had made application for obtaining the completion certificate etc.

3. The State Commission, after considering the averments made by the parties, allowed the consumer complaint in question and made the following directions:-

   “i.      to hand over the actual legal physical possession of independent floor No.738-FF, measuring 144.45 square meter, consisting of three bedrooms, in their Project, namely “Luxury Floors”, at Golf Links, Sector 114, Kharar-Landran Road, Mohali, Punjab, complete in all respects to the complainants, within a period of 45 days, from the date of receipt of a certified copy of this order, on payment of  the  amount  of Rs.4,77,104/-, as indicated above, by them (complainants).

    

   ii.      To pay compensation, in the sum of Rs.1,00,000/- for mental agony and physical harassment, to the complainants, within 45 days, from the date of receipt of a certified copy of this order.

   iii.     To pay cost of litigation, to the tune of Rs.20,000/-, to the complainants.

    

   Iv.     In case, the amount of compensation as mentioned clause (ii) above, is not paid, within a period of 45 days, from the date of receipt of a certified copy of this order,  the same shall carry interest @12% P.A., from the date of filing the complaint, till realization, besides payment of costs and compliance of other directions given above.”

    

4. Being aggrieved against the above order of the State Commission, the appellants are before this Commission by way of the present first appeal, in which they have demanded payment of interest @18% p.a. on the amount deposited, for the delay in handing over the possession to them, and also a sum of ₹3 lakh as compensation for mental agony etc. and ₹50,000/- as litigation cost.

    

5. During hearing before me, the Ld. Counsel for the appellants stated that since the amount deposited by them had been lying with the OP Builder for a considerable time, they are entitled to get the payment of interest @18% p.a. for the period of delay.The Ld. Counsel for the appellant has drawn attention to the orders passed by this Commission in “Dr. Jitender Singh Phor Vs. TDI Greens Buildtech Pvt. Ltd.” [RP No. 1480/2013 decided on 08.07.2013], and “Manisha Balakrishna Kulkarni & Anr. Vs. M/s. Lanco Hills Technology Park Ltd. [CC No. 112 / 2014 decided on 09.10.2014]”.Further, the appellants were entitled for payment of higher compensation for mental harassment etc.

    

6. Ld. Counsel for the respondent, however, stated that at the time of execution of the order passed by the State Commission, the appellants did not raise any objection for higher compensation etc.The Ld. Counsel further stated that the appellants had failed to make payments to them in accordance with the payment schedule and hence, there had been no deficiency in service on their part.

    

7. I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.

    

8. In the impugned order passed by the State Commission, the issues regarding the maintainability of the consumer complaint like the territorial jurisdiction and the appellants being consumers or not, have been discussed in detail.The State Commission also concluded that there was delay on the part of the OP Builders in the delivery of possession to the appellants.In accordance with the allotment letter dated 25.02.2010, the possession was to be handed over within 24 – 30 months from the date of start of construction.According to the payment schedule, the date of start of construction was mentioned as 29.03.2010 and hence, the period of 30 months would have expired on 28.09.2012.A payment of ₹33,24,515/- had also been received by the OPs against the total sale consideration of ₹38,01,619/- which included interest towards delayed payment, the service tax and the amount towards increase in area.It was clear, therefore, that a major part of the sale consideration had already been received by the OPs and the complainants were liable to pay ₹4,77,104/- only, at the time of taking over the possession of the said unit.  The State Commission ordered the delivery of the physical possession to the complainants on payment of an amount of ₹4,77,104/- to the OP Builder. 

    

The main point for consideration at the present stage is whether the appellants are entitled for higher compensation for the failure of the builder to deliver the possession in time.  The issue has been discussed in a number of cases already decided by this Commission.  In the case, “Dr. Jitender Singh Phor Vs. TDI Greens Buildtech Pvt. Ltd.” [supra], it was held that the complainant was entitled to receive interest @9% p.a. as compensation on the amount deposited by him with the respondent.  In “Manisha Balakrishna Kulkarni & Anr. Vs. M/s. Lanco Hills Technology Park Ltd. [Supra]”, the OPs were directed to pay interest @18% p.a. for the period of delay on the entire amount received by the OP from the complainants.  The facts and circumstances of the present case indicate that the OP builders have failed to offer any reasonable explanation for causing delay in the delivery of possession to the appellants/complainants.  The main stand taken by the OP builder says that the possession was likely to be delivered within 24-30 months of the commencement of work and hence, there was no deficiency in service on their part.  This contention of the OP builder is wholly untenable because a consumer cannot wait indefinitely for obtaining possession, after making a major chunk of the payment to the builder.  Since the OP builders have used the money deposited by the complainant for the period of delay, they are liable to pay interest on the same to the appellant/complainant for the said delay.  It is, therefore, considered appropriate in the interest of justice that the OP builders are liable to pay interest @9% p.a. on the amount deposited by the complainants with them for the period from the promised delivery of possession, i.e., 28.09.2012, as stated in the order of the State Commission, to the date, such possession was physically delivered to the appellants/complainants.  This appeal is, therefore, allowed and it is ordered that OP builders shall pay interest as indicated above by way of compensation to the appellants, instead of the amount of ₹1 lakh allowed by the State Commission as compensation for mental agony and physical harassment.  The rest of the order passed by the State Commission stands confirmed.  There shall be no order as to costs.