1.       This appeal has been filed under section 51(1) of the Act 2019 in challenge to the Order dated 04.05.2021 of the State Commission in complaint no. 618 of 2019.

2.       We have heard the learned counsel for the appellant (the ‘builder co.’) and for the respondent (the ‘complainant’). We have also perused the material on record including inter alia the State Commission’s impugned Order dated 04.05.2021 and the memorandum of appeal.

3.       The matter pertains to a builder-buyer dispute. Briefly, the builder co. executed an agreement with the complainant on 28.02.2013 in respect of an apartment. The complainant paid an amount of Rs.39,64,684/- to the builder co. in the period from 28.06.2012  to 09.10.2018. The assured and committed date for delivery of possession of the subject apartment was 30 months from the date of execution of the agreement. Counting from the said date, 30 month period for completion of the project and delivery of possession of the apartment elapsed on 27.08.2015. The project was not completed and delivery of possession of the apartment was not made within the assured period, or even within a reasonable period beyond that (reasonable period here would connote a period which appears reasonable per se and which a reasonable man of ordinary prudence would not normally agitate). The complainant went before the State Commission on 12.04.2021 i.e. 05 years 07 months 16 days after the expiry of the committed period. Inter alia considering the abnormal unreasonable delay in completing the project and making delivery of possession, the State Commission ordered the builder co. to refund the amount of Rs. 39,64,684/- deposited by the complainant with interest at the rate of 6% per annum from the respective dates of deposit till 04.05.2021 (being the date of its Order) within 02 months i.e. on or before 03.07.2021 failing which the said amount of Rs.39,64,684/- shall carry interest at the rate of 9% per annum from respective dates of deposit till actual realization. It also awarded lumpsum compensation of Rs.2,00,000/- for causing mental agony and harassment and for the deficiency in service and Rs.50,000/- towards cost of litigation.

The award made by the State Commission as contained in paras 21 and 22 of its Order is reproduced below for reference:

21. Keeping in view the facts of the present case and the extensive law as discussed  above, we direct the Opposite party to refund the entire amount paid by the complainant i.e. Rs. 39,64,684/- along with interest as per the following arrangement:

A.  An interest @ 6% p.a. calculated from the date on which each installment / payment was received by the Opposite Party till 04.05.2021 (being the date of the present judgment);

B.  The rate of interest payable as per the aforesaid clause (A) is subject to the condition that the Opposite Party pays the entire amount on or before 03.07.2021;

C.  Being guided by the principles as discussed above, in case the Opposite Party fails to refund the amount as per the aforesaid clause (A) on or before 03.07.2021, the entire amount is to be refunded along with an interest @ 9% p.a. calculated from the date on which each installment / payment was received by the Opposite Party till the actual realization of the amount.

22. In addition to the aforesaid and taking into consideration the facts of the      present case, the Opposite Party is directed to pay a sum of

A.  Rs. 2,00,000/- as cost for mental agony and harassment to the complainants; and

B.    The litigation cost to the extent of Rs. 50,000/-.

4.       A perusal of the State Commission’s Order of 04.05.2021 shows that it is a well-appraised and reasoned order that has aptly dealt with the issues germane to the dispute.

5.       We may observe, to place the whole matter in perspective, that prior to, or, at the least, simultaneous to, getting the buyer-consumer to enter into its agreement and accepting the first payment towards the total cost of the subject apartment, the builder co. was required and expected to have the due pragmatic and realistic assessment and preparation of the project planning. It was the prime responsibility of the builder co. to ensure that it was in a position to deliver the possession of the apartment to the buyer-consumer within the assured and committed period. Planning, execution and completion were the builder co.’s responsibility, and not of the consumer; (normal) impediments or problems that may arise in planning, execution and completion were again its own responsibility, and not of the consumer. Specifically, availability of land, as well as all approvals from the concerned government, development and municipal authorities, as and when due, being fundamental basic requirements of a residential housing project, were decidedly to be taken care of and dealt with by the builder co. Time and cost overruns were essentially within the domain of its own duty and obligation. Non-fulfilment of its overall responsibilities of project planning, execution and completion can not be and are not grounds for condoning or overlooking delay in completion and failure to offer possession within the assured and committed period. All-encompassing blanket plea of force majeure, unforeseeable circumstances, irrespective of its various ‘liberal’ or ‘strict’ interpretations, and irrespective of its various interpretations in different sets of facts, cannot be nebulously and irrationally articulated in the agreement, or be successfully contended and argued as omnibus defence for anything and everything related to the builder co.’s failure to fulfil its responsibilities for completion of the project without occasioning time or cost overruns.

6.     In the present case, the assured and committed period for completion of the project and for offering possession of the subject apartment was 30 months from the date of the agreement. The said period expired on 27.08.2015. The complaint was filed much afterwards on 12.04.2021. The State Commission decided the case on 04.05.2021. On the face of it itself, abnormal unreasonable delay on the part of the builder co. in delivery possession is patently manifest.

7.     It is a well settled position that in case of unreasonable delay beyond the assured and committed period, two parallel rights accrue to the consumer:

one : possession of the subject apartment as and when the project is completed along with just and equitable compensation under the Act 2019 for the unreasonable delay and consequent loss and injury.

or

two : refund of the amount deposited along with just and equitable compensation.

8.       In the instant case the complainant has asked for refund of his deposited amount. The delay as well brought out by the State Commission in its Order is unreasonable and unjustifiable.

It goes without saying that the builder co. would be the owner of the subject apartment and would be free to dispose it as it wishes to. Hence no palpable prejudice is being caused to it.

9.       Learned counsel for the builder co. does not make any arguments regarding the manifest deficiency which has been determined by the State Commission against it. Her only argument is in respect of the rate of interest. In the opinion of the learned counsel rate of interest of 6% will be fair and reasonable, and nothing beyond it is feasible.

10.     Learned counsel for the complainant submits that the builder co. did not make timely payment at the lesser rate of interest of 6% per annum. Accordingly rate of interest of 9% per annum has now become admissible under the State Commission’s Order. He submits that the present rate of 9% per annum is entirely just and equitable. He makes submissions regarding the hard earned money of the complainant being blocked with the builder co. for a protracted period without any return in cash or kind, regarding the troubles and travails faced by the complainant. He submits that interest at 9% per annum which was to act as a deterrent against not making timely payment is quite reasonable per se as the things obtain on date. Submission is that the award in its entirety has been logically and rationally moulded by the State Commission and requires no interference. Further submission is that anything below 9% per annum after such sufferings as have been faced by the complainant will be adversely prejudicial to him and will be something less than justice.

11.     It is to be noted that the complainant had deposited total Rs.39,64,684/- with the builder co. from June 2012 onwards. The assured and committed period of delivery of possession of the subject apartment elapsed in August 2015. The builder co. did not deliver possession of the apartment within the committed period, or even within a reasonable period thereafter. Abnormally unreasonable and inordinate delay is self-evident. The afore contextual backdrop encapsulates the jeopardy to which the complainant has been put to, the uncertainty and difficulty he has faced, the mental agony and physical harassment he has suffered, the pecuniary loss to which he has been subjected to, and the cumulative injury which he has endured as a result of all this. Pertinently, in the arguments on its behalf today, the ‘deficiency in service’ per se, as have been conclusively determined by the State Commission, is not even being contested and the arguments are solely aimed at getting the rate of the compensatory interest reduced.

12.     In the particular facts and circumstances of the present case it is felt that rate of interest of 9% per annum on the deposited amount from the respective dates of deposit, as is now admissible under the award made by the State Commission, is in every way just and equitable, commensurate with the loss and injury suffered by the complainant. Providing for interest at the rate of 9% per annum in case of non-compliance of the Order in a time-bound manner appears reasonable and has self-evidently factored-in the expedient need to ensure timely compliance. The objective it aims to subserve is obviously to at least now put an end to the long drawn troubles and travails of the complainant, to put a period to his sufferings. A bonafide builder co. could as well have refunded atleast the principal amount deposited by the complainant while retaining its right to agitate its issues and contentions regarding compensatory interest in a higher forum, or it could as well have made payment with interest at the rate of 6% per annum to which it is today agreeable to and not have challenged the Order at all, especially when it has nothing at all to argue on its deficiency per se. But it rather further delayed the matter and continued to unduly, unjustly and inequitably retain the complainant’s money. We agree with the learned counsel for the appellant that as the things obtain on date, in the specific facts and circumstances of the case, rate of interest of 9% per annum is fair and reasonable, commensurate with the loss and injury suffered by the complainant. As such, we do not find any good reason to take a different view on the compensation than what has been taken by the State Commission.

13.     The appeal, being bereft of worth, is dismissed.

The award made by the State Commission is confirmed.

The award shall be made good by the builder co. within six weeks from today, failing which the State Commission shall undertake execution, for ‘enforcement’ and for ‘penalty’, as per the law.

14.     The Registry is requested to send a copy each of this Order to the parties in the appeal and to their learned counsel as well as to the State Commission immediately. The stenographer is requested to upload this Order on the website of this Commission immediately.