1. These four Appeals, bearing Nos. FA/216/2022, FA/217/2022, FA/219/2022 & FA/221/2022 were filed by Neetu Singh, Subhash Chandra Vohara, Pushpa Joshi & Renu Maheshwari (hereinafter referred to as the “Appellant”/ “Complainant”) against Arihant Shivank Infra Projects Ltd. & Anr. (hereinafter referred to as the “Respondents”/ “Opposite Parties”) respectively. These Appeals challenge the Orders dated 21.01.2022 in CC/23/2017, CC/22/2017, CC/21/2017 & CC/20/2017 respectively, passed by the Rajasthan State Consumer Dispute Redressal Commission, Jaipur (hereinafter referred to as the “State Commission”). The State Commission allowed all the Complaints. The State Commission also dismissed, vide order dated 23.02.2022, the Review Applications No.04/2022, 06/2022, 05/2022 & 07/2022 in CC/23/2017, CC/22/2017, CC/21/2017 & CC/20/2017 respectively. 2. As per report of the Registry, there is a 2 days delay in filing the Appeals No.216 and 217 of 2022 and 3 days in filing the Appeals No.219 & 221 of 2022. In view of the facts and circumstances of the case, the delay is condoned. 3. Since the facts and questions of law involved in all the Appeals are substantially similar, except for minor variations in dates, events and unit numbers, these Appeals are being disposed of by this common Order. For ease of reference, First Appeal No.216 of 2022 is being considered as the lead case, and the facts stated below are derived from Consumer Complaint No.23/2017. 4. Brief relevant facts of the case as per the Complainant are that on 12.07.2012, the appellant entered into an agreement with the respondent to purchase Flat No. 226 (2nd floor), with super built-up area/ saleable area of 930 Sq Ft, for Rs.15,44,400/- plus Service Tax. An initial booking amount of Rs.1,66,583 was paid, with the remaining Rs.13,82,590 and Service Tax to be paid as per the agreement. The appellant later discovered that Arihant Shivank Infra Project Ltd had transferred the project to Arihant Group of Builders, without informing the appellant. The appellant paid the demanded amounts as per the respondent's schedule, with the respondent assuring timely project completion as per Clause 9 of the agreement, which stipulated the completion date as 30.04.2015. After the completion period, he requested possession of the flat. The respondent assured him that the possession would be given within a 12-month grace period. After the grace period ended, he again requested for possession. The respondent assured the appellant of imminent possession, citing an ongoing inquiry as the cause of delay. He visited the construction site and was shocked to find that no construction was occurring and the materials used were of very poor quality. With possession still not provided and having paid the entire amount based on false assurances, the appellant felt cheated. He filed Consumer Complaint No. 23/2017 before the State Commission on 14.02.2017, alleging unfair trade practices by the respondents. 5. In Reply filed before the State Commission, the OPs asserted that they were always ready and willing to deliver possession of the booked flat to the complainant. The complainant has filed the present complaint with the intention to harass them, rather than addressing any legitimate grievances. The respondents referred to Clause 9 of the agreement, which stipulates that if possession is not given within the prescribed period, a compensation of Rs. 5 per Sq Ft per month will be paid. The respondents argued that the complainant did not properly understand or follow the terms and conditions of the agreement before filing the complaint. They sought the complaint to be dismissed with costs, arguing that the complaint lacks merit and was filed to harass the respondents rather than to seek genuine redressal of grievances. 6. The learned State Commission vide order dated 21.01.2022 allowed the Complaint and passed the following orders:- “ORDER Opponents shall ensure delivery of possession of Flat No. 226 to the complainant within a period of two months from order dated today. Opponents shall ensure payment of a lumpsum amount of Rs.2,00,000/- to the complainant as compensation on account of delay in delivery of possession. Opponents shall ensure payment of Rs.2,00,000/- to the complainant on account of mental pain and Rs.50,000/- on account of complaint expenses. Opponents shall ensure compliance of this order within a period of two months from today and in default of compliance of order within a period of two months the opponents shall be liable for payment of an interest of 9 percent per annum on the total amount imposed of Rs.4,50,000/- till the date of final realization. In the default of delivery of possession of flat within a period of two months opponents shall also ensure payment of Rs. 10,000/- per month. Opponents too may also adjust any amount due from the complainant from the above awarded amount but shall not be entitled for charging any interest/penalty on the amount due.” 7. Aggrieved by the Order of the State Commission, the Appellant/ Complainant filed the present Appeal seeking: “a) To call for the relevant records of the State Consumer Dispute Redressal Commission, Rajasthan, Jaipur in Complaint No. 23/2017 titled as Neetu Singh Vs Arihant Shivank Infra Projects Ltd. And Anr. b) To quash and set aside the impugned orders dated 23.02.2022 passed by Hon'ble State Consumer Dispute Redressal Commission in Review Application No 04/2022 and dated 21.01.2022 passed by Hon'ble State Consumer Dispute Redressal Commission in Consumer Complaint No 23/2017 and order the refund of entire sale consideration alongwith the interest. c) Pass such other or further order/orders or direction/ directions as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.” 8. The Appellant in the Appeal mainly raised following grounds: A. The State Commission erroneously refused to order refund of the consideration paid, as requested under other reliefs sought, by restricting its view for not specifically praying, while this was allowed as per law laid down by NCDRC and Apex Court B. The State Commission failed to appreciate the intention to seek refund, given that the possession of the flat was to be delivered in 2015, which the respondents failed to do. C. Due to the OPs failure to deliver possession, she could not benefits from her investment to secure her and family’s future. D. The appellant and her family have endured mental agony due to the respondents' failure to fulfil their obligation. Mere possession cannot compensate loss. E. While the State Commission concluded that he OP is liable for deficiency in service, it ordered for handing over possession of the flat instead of refund of the consideration along with interest. F. The State Commission failed to consider the settled law that a buyer cannot be made to wait indefinitely. When the builder fails to complete the construction within the stipulated time, the buyer is entitled to a refund with interest and the established precedents. 9. In his arguments, learned Counsel for the Appellant reiterated the facts stated in the Complaint filed before the State Commission as also grounds taken in the Memo of Appeal. He argued that the Respondents could not fulfil the obligation of giving the possession of the flat and there is a huge delay in offering the possession of the flat in question. The date of agreement executed between the parties was on 12.07.2012 and the possession of the flat was to be handed over on 30.04.2015. The 12 months grace period for completion of the flat expired on 30.04.2016. However, the possession was not given to the Appellant. He further argued that on visiting the site, it was noticed that the construction of the flat is poor quality. He therefore requested for refunding the deposited money with suitable compensation in order to deficiency in service. He sought to allow the present Appeal and grant refund of the deposited amount along with interest and set aside the impugned orders passed by the State Commission. He has relied upon the following judgments: A. Experion Developers Pvt. Ltd. vs. Sushma Ashok Shiroor, 2022 SCC OnLine SC 416; B. United India Insurance Co. Ltd. vs. Mohan Lal & Sons, 1992 SCC OnLine NCDRC 35; C. Vikram Jain & Anr. Vs. M/s AAA Estate Pvt. Ltd., C.C. No.1394 of 2015 decided on 07.11.2017 by the NCDRC; D. Wing Commander Arifur Rahman Khan & Aleya Sultana & Anr. Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512; E. Pioneer Urban Land and Infrastructure Ltd. Vs. Govindan Raghavan, (2019) 5 SCC 725; F. Lucknow Development Authority Vs. M.K. Gupta, (1994) 1 SCC 243; G. Ghaziabad Development Authority Vs. Balbir Singh, (2004) 5 SCC 65; H. Gopalakrishna Pillai and Others. Vs. Meenakshi Ayal and Ors., AIR 1967 SC 155; I. Neety Gupta Vs. Usha Gupta & Ors., 2019 SCC OnLine Del 10038. 10. Per contra, learned Counsel for the Respondents admitted the booking of the flats in question of the Appellants and reiterated the objections taken in the Reply filed before the State Commission. He contended that the approvals from various departments for the construction of the said scheme were received after an inordinate delay of 11 months in the year 2013. The construction of the scheme was completed on 04.04.2017 and there is no requirement for occupancy/completion certificate for handing over possession to the buyer. He submitted that there is 118 buyers have got flats registered and are living in the scheme from 2016 to 2022. The Appellants have not paid the entire amount of sale consideration and the demand for refund by the Appellant not prayed in the original complaint before the State Commission. He argued in favour of the impugned orders passed by the State Commission. He sought to dismiss the Appeals. He has relied upon the following judgments: A. Akella Lalitha vs. Konda Hanumantha Rao and Anr., 2022 SCC OnLine SC 928; B. M/s. Rajasthan Art Emporium Heritage House Vs. Kuwait Airways & Anr., 2012 SCC OnLine NCDRC 674; C. Bharat Amratlal Kothari and Anr. Vs. Dosukhan Samadkhan Sindhi and Ors., 2009 SCC OnLine SC 1764; D. Rajasthan Art Emporium Vs. Kuwait Airways and Anr., 2023 SCC OnLine SC 1461; E. United India Insurance Co. Ltd. Vs. Mohan Lal & Sons and cross appeal, 1992 SCC OnLine NCDRC 35; F. Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, 2022 SCC OnLine SC 416. 11. I have examined the pleadings and associated documents placed on record and thoughtfully heard the arguments advanced by the learned Counsel for the Respondents. 12. It is an admitted fact that the Appellant and the Respondents entered into the Agreement for Sale a Flat on 12.07.2012 for total consideration of Rs.15,44,400/- plus service tax. The due date for handing over possession was on 30th April 2015 with a grace period of 12 months. The Flat was, however, not delivered till date. It is the contention of the Respondents/OPs that the delay in handing over the possession was not intentional and was contingent to unforeseen circumstances. 13. Without doubt, there was delay in completion of construction and handing over of possession of the Flat in question as per agreement executed between the parties. The Complainant had invested heavy amount with the intention to get the possession of the flat in time. There are catena of judgements wherein the Hon’ble Supreme Court and this Commission have decided favourably on the right of the buyers to get a refund of their money in case of delay by the Developer in giving possession in terms of the Buyer’s Agreement. 14. In the case of Emmar MGF Land Ltd. & Ors. Vs. Amit Puri- {(II 2015 CPJ 568 (NC)}, Decided on 30.03.2015, this Commission has held as under: “After the promised date of delivery, it is the discretion of the Complainant whether to accept the offer of possession, if any, or to seek refund of the amounts paid by him with some reasonable compensation and it is well within his right to seek for refund of the principal amount with interest and compensation.” 15. Reliance is placed on the judgement of the Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghvan, ll (2019) CPJ 34 (SC), decided on 02.04.2019 as under: “We see no illegality in the Impugned Order dated 23.10.2018 passed by the National Commission. The Appellant – Builder failed to fulfil his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent – Purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter. The Respondent – Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired. During this period, the Respondent – Flat Purchaser had to service a loan that he had obtained for purchasing the flat, by paying Interest @10% to the Bank. In the meanwhile, the Respondent – Flat Purchaser also located an alternate property in Gurugram. In these circumstances, the 22 Respondent – Flat Purchaser was entitled to be granted the relief prayed for i.e. refund of the entire amount deposited by him with Interest”. Further, para 6.7 of the Order reads as : “A term of a contract will not be final and binding if it is shown that the flat purchasers had no option to sign on the dotted line, on a contract framed by the builder. The contractual terms of the Agreement of 08.05.2012 are ex-facie one sided, unfair and unreasonable. The incorporation of such one-sided clauses in an Agreement constitutes an unfair trade practice as per Section 2(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling flats by the Builder. Further, para 7 of the Order reads as under : “In view of above discussion, we have no hesitation in holding that the terms of the Apartment Buyer’s Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent-Flat Purchaser. The Appellant-Builder cannot seek to bind the Respondent with such one-sided contractual terms.” 16. It is an established fact that there has been an unreasonable delay in the development of the project in dispute. The non-availability of the Occupancy/Completion Certificate points to the deficiency on the part of the Appellant. 17. In this regard the Hon’ble Supreme Court, in Samruddhi Co-Operative Housing Society Ltd. Vs. Mumbai Mahalaxmi Construction Pvt. Ltd. in Civil Appeal 4000 of 2019, decided on 11th of January 2022, has held that: “In the present case, the respondent was responsible for transferring the title to the flats to the society along with the occupancy certificate. The failure of the respondent to obtain the occupation certificate is a deficiency in service for which the respondent is liable. Thus, the members of the appellant society are well within their rights as ‘consumers’ to pray for compensation as a recompense for the consequent liability (such as payment of higher taxes and water charges by the owners) arising from the lack of an occupancy certificate”. 18. The above view is consistent with the ratio of the decision of the Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, II (2019) CPJ 29 SC, decided on 25.03.2021 has held that: “.....It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years is beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund. In the circumstances, we are of the view that the orders passed by SCDRC and by the NCDRC for refund of moneys were justified…..” 19. The Respondents contention that the delay was not intentional and it was due to shortage of sand due to ban on mining by the authorities/State Government etc., a situation falling under “Force Majeure” clause is untenable. This Commission in CC 379 of 2013 Sivarama Sarma Jonnalagadda & Anr vs. M/s Maruthi Corporation Limited & Anr. decided on 21.09.2021 has held that: “We are of the view that that the Complainant cannot be made to wait indefinitely for the delivery of possession and the act of the Opposite Party in relying on force majeure clause while retaining the amounts deposited by the Complainant, is not on only an act of deficiency of service but also amounts to unfair trade practice.” 20. In view of the foregoing discussion, the Respondents is held deficient in handing over the possession of the Flat in question as per agreement to sale executed between the Parties and the all Appellants/Complainants are entitled to refund the deposited amount from the Respondents. 21. The next crucial question at his stage is determining compensation to be awarded to the Complainants for the deficiency in service. 22. As regards compensation, in the recent Order of the Hon’ble Supreme Court in the case of Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, in Civil Appeal No.6044 of 2019 decided on 7.4.2022, has held as under:- “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.” 23. Furthermore, the Hon’ble Supreme Court in the case of DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda, in CA Nos. 4910-4941 of 2019 decided on 10.05.2019 has held that multiple compensations for singular deficiency is not justifiable. 24. In view of the foregoing and the established precedents by the Hon’ble Supreme Court, the impugned Orders dated 21.01.2022 passed by the learned State Commission in C.C. Nos.23, 22, 21 & 20 of 2017 are modified with the following directions: ORDER I. The Respondents/Opposite Parties are directed to refund the amount deposited by Appellants/Complainants in all the complaints respectively along with simple interest @ 9% per annum from the date of deposit till payment. This shall be done within one month from the date of this order. In the event of default, the simple interest applicable shall be @ 12% per annum for such period beyond one month till realization of the entire amount. II. The Appellant is also directed to pay Rs.25000/- as litigation expenses to each the Complainants/ Respondents. 25. With the above Orders, the Appeals Nos. FA/216/2022, FA/217/2022, FA/219/2022 & FA/221/2022 stand disposed of. 26. All the pending Applications, if any, are disposed of accordingly. | 
