Dated : 4^th April 2019

ORDER (ORAL)

(JUSTICE DEEPA SHARMA, PRESIDING MEMBER)

1. The present appeal has been filed against the order of the State Commission dated 26.02.2018 in Consumer Complaint No. 717 of 2017.

2. The admitted facts of the case are that the Appellant had developed a Residential Group Housing Project called “The Valley” situated in Sector-3, Kalka-Pinjore Urban Complex and a flat in that project was booked by the Respondents and they paid the booking amounts as well. An Independent Floor Buyers Agreement was also entered into between the parties and allotment was done in favour of the Respondents. Admittedly, the flat could not be handed over within the stipulated period by the Appellant.The Respondents filedthecomplaint.TheStateCommissionafter recording the evidences reached to the conclusion that there was deficiency in rendering the service on the part of the Appellant and issued the following directions:-

“Para 49.(i)      To hand over physical possession of  the unit(s), allotted in favour of the complainant(s), complete in all respects, to the complainant(s), after removing the snags, if any, within a period of 30 days, from the date balance payment, wherever due, is made and documents, are submitted.

            Execute and get registered the sale deed(s) in respect of the unit(s), in question, within one month from the date of handing over of possession to the complainant(s). The stamp duty, registration charges and incidental expenses, if any, shall be borne by the complainant(s).

1. To pay compensation, by way of interest @12% p.a., on the deposited amount, to the complainant(s), with effect from 24.02.2014, 17.02.2014, 14.02.2014, 31.01.2014 & 13.12.2013respectively up-till two months from the date of offer of possession i.e. up-to 14.01.2017, 02.04.2016, 14.01.2017, 13.03.2016 & 14.12.2016 respectively, [w.e.f. due date(s) of possession in respect of deposits made up-to the said due date and from respective dates of deposits in respect of amount(s) paid after the said due date],within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% p.a., instead of 12% p.a., from the date of default i.e. after expiry of 45 days period, till realization.

(Since the Opposite Parties have given a credit of Rs.8,20,269/- & Rs.6,07,202/- in CC Nos.804  of 2017 & 11 of 2018 respectively, on account of delay compensation, this amount shall be reduced/deducted from the compensation amount arrived at by way of interest @12% on the deposited amount for the delay period).

          Further for failure of Opposite Parties to deliver possession within 30 days from the date of making payment/ submission of documents by the complainant(s), for such delay, beyond 30 days, compensation by way of interest @12% p.a. on the deposited amount for each month, till possession is delivered, shall be payable by 10th of the following month and failure shall entail penal interest @15% p.a., instead of 12% p.a., from the date of default till payment is made.

1. Pay compensation in the sum of Rs.1,50,000/-, in each, case, on account of mental agony, physical harassment and deficiency in service and litigation costsof Rs.35,000/-, in each case, to the complainant(s), within 45 days from the date of receipt of a certified copy of the order, failing which, the said amount shall carry interest @12% p.a., from the date of filing the complaint(s) till realization.”

2. The impugned order is challenged on various grounds including that the Respondent was given exit option to take the deposited amount with interest @ 9% p.a. but they continued claiming possession of the flat with the intention to extract more money.

    

3. It is also contended that as per the clause of the agreement, which binds the Appellant, the Appellant is required to pay compensation @ Rs.10/- per sq.ft. per month starting from the date of default committed by them, hence, the grant of higher rate of interest by the State Commission is illegal. It is, further, contended that agreement between the parties clearly shows that the project was escalation free and for any escalation in the cost, the allottee was not to be charged but the same was to be borne by the Appellant. It is, further, contended that the Respondents have failed to prove on record any actual loss occurred by them on account of the delay in completion of project.It is, further, contended that the work could not be completed in time because of the labour problem who had migrated and no labour was available for completion of the project and the other reasons which were beyond the control of Appellant.

    

4. It is also argued on behalf of the Appellant that in the case of “DLF Homes Panchkula (P) Ltd vs. Sushila Devi & Anr. etc.” [Civil Appeal no. 2285-23303 of 2019 decided on 26.02.2019], the Hon’ble Supreme Court has not granted any compensation except the interest @9% for two months from the date of offer of possession and therefore, the direction of payment of compensation to the tune of Rs.1,50,000/- on account of mental agony in the impugned order should be set aside.It is further submitted that the Respondents have advantage of appreciation of the property.

    

5. Learned Counsel for Respondents submits that all the contentions of the Appellant have been dealt with by the Hon’ble Supreme Court in the case of “DLF Homes Panchkula Pvt. Ltd. & Anr. Etc.  Vs. Himanshu Arora & Anr., Civil Appeal No. 11097 of 2018 With Civil Appeal No. 11098-11138 of 2018, decided on 19.11.2018, which relates to the same project.  It is argued that this case is squarely covered by Himanshu Arora’s case (supra) and it is prayed that appeal be disposed of in those terms.  It is further contended on behalf of the Respondents that the direction of the Hon’ble Supreme Court in “DLF Homes Panchkula (P) Ltd vs. Sushila Devi & Anr. etc.” (supra), are not applicable to the present case because those directions were given on the basis of mutual agreement between the parties before the Hon’ble Supreme Court in the said case, while this case is squarely covered by the findings of Hon’ble Supreme Court in Himanshu Arora’s case (supra).

6. We have given thoughtful consideration to the rival contentions and have perused the record.

7. As far as the directions of Hon’ble Supreme Court in the case of “DLF Homes Panchkula (P) Ltd vs. Sushila Devi & Anr. etc.” (supra), on which Learned Counsel for the Appellant has relied upon for setting aside the order of compensation of Rs.1,50,000/-, granted by the State Commission is concerned, Learned Counsel has failed to point out that the Hon’ble Supreme Court in the case of “DLF Homes Panchkula (P) Ltd vs. Sushila Devi & Anr. etc.” (supra) has issued any direction to the effect that where an offer of possession is made by the Appellants, the complainants are not entitled for any compensation for mental agony, they had gone through due to deficiency in service by the Appellant.It is apparent from the observations of the Hon’ble Supreme Court in Para 10 of Sushila Devi case (supra), that said order was passed in terms of agreement between the parties. The relevant Para 10 is reproduced as under:

   “The matter was, therefore, adjourned so that the parties could check and reconcile all the concerned amounts and present a mutually acceptable statement of figures.  Accordingly, the chart has been presented which is appended to this Judgment as Annexure-A.”

   (Emphasis supplied)

8. The Learned Counsel for the Appellant has specifically relied upon para 17 of the order in Sushila Devi case (supra).  It reads as under:

   “Since the matters are being disposed of on an agreed understanding and since no order of compensation was passed in Himanshu Arora, no compensation other than what has been dealt with earlier, need be paid to the Complainants.”

   (Emphasis Supplied)

9. From a bare reading of the said paragraph, it is clear that the said case had been disposed of by the Hon’ble Supreme Court in terms of the mutual agreement between the parties before it.That order, therefore, has no bearing in this case as the findings/directions relate to that case alone.

10. What is applicable to the facts of this case is direction of Hon’ble Supreme Court in Himanshu Arora case, which relates to similarly placed complainants.The order of the State Commission is hereby confirmed with modification that the interest on the amount payable by the Appellant, shall be simple interest @ 9% p.a.

11. Rest of the directions in impugned order shall remain the same.The Appellant shall make the payments to the Respondents within 10 weeks from today. The Appeal stands disposed of in these terms.