For the Appellants : Mr. Aditya Narain, Advocate Mr. Mishra Raj Shekhar, Advocate For the Respondents : Mr. Ajay Pal Singh, Advocate ORDER This Appeal has been filed by the Appellant challenging the order dated 01.05.2017 of the State Consumer Disputes Redressal Commission, UT Chandigarh (for short, “the State Commission”) allowing the Complaint No.771 of 2016 filed by the Respondents/Complainants. 2. In brief, the facts of the case are that on 28.12.2010 the Complainants booked a flat in the project of the Appellant by paying ₹7 Lakhs and a Flat Buyer’s Agreement (in short, the ‘Agreement’) was executed between the parties on 05.02.2011. The Complainants opted for the Down Payment Plan, as per which they were given 2% discount. The Complainants obtained loan of ₹30 Lakhs from Housing Development Finance Corporation Limited (HDFC Bank), out of which ₹27,51,743/- was paid to the Appellant and 5% amount was retained by the Bank to be paid at the time of possession. As per the Agreement, the Complainants were allotted flat/unit No.TVM K2-F02-203 in the project of the Appellant, viz., ‘The Views’ at Mohali Hills for a total cost of ₹45,44,472.92. The Complainants were asked to pay an amount of ₹42,90,447/- which they paid through cheque/RTGS and demand draft. As per Clause 2.1 of the Agreement, possession of the unit was to be delivered within 36 months. During several visits to the Appellant’s office, the Complainants were assured that development at the site was in full swing and possession will be handed over within the stipulated time. It was alleged by the Complainants that despite repeated representations through e-mails and letters through courier, the Appellant has not offered possession of the unit to the Complainants despite receipt of the entire sale consideration. Alleging deficiency in service on the part of the Appellant in rendering service and unfair trade practice, the Complainants approached the State Commission. 3. The Appellant filed their written version admitting that the Complainants had approached them for purchase of a flat located in Tower K in the residential complex “The Views”, Sector 105, Mohali Hills, Punjab and that a Unit Buyer’s Agreement was executed on 05.02.2011 between them. However, it was alleged that the Complainants had an outstanding balance amount of ₹37,916/- towards delay/late payment charges. It was further contended that the sales office of the Appellant was located in Sector 105 Mohali Hills, Mohali and even the subject property was located in Mohali, Punjab and therefore, the Complaint had not been instituted properly since the State Commission, U.T. Chandigarh did not have territorial jurisdiction to adjudicate it. It was further stated that the Appellant had already offered possession of two towers in the project and the tower where the subject property was situated, was expected to be handed over by May, 2017. It was denied that there was any deficiency in rendering service or unfair trade practice on their part. 4. After hearing the learned Counsel for the parties and perusing the evidence and the record of the case, the State Commission had ordered as under: “For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Parties are jointly and severally held liable and directed as under:- - Complainants are directed to make the payment of ₹37,918/-, to the Opposite Parties for delayed payment charges, as reflected in the statement of account (at page No.19 of the Opposite Parties documents), within a period of one month from the date of receipt of a certified copy of the order.
- Opposite Parties shall jointly and severally hand over physical possession of the unit, complete in all respects, to the complainants, within a period of four months, from the date of receipt of a certified copy of this order, on payment of the amount, legally due against them.
- Opposite Parties shall jointly and severally execute the sale/conveyance deed and get it registered in the name of the complainants after handing over the actual physical possession of unit, in question, within a period of one month thereafter. The stamp duty, registration charges and all other incidental and legal expenses for execution and registration of sale deed shall be borne by the complainants.
- The Opposite Parties are directed to pay compensation, by way of interest @12% p.a., on the deposited amount (₹42,90,447/-), to the complainants, from the deemed date of possession i.e. 08.02.2014 till the actual date of delivery of possession of the unit, in question, to the complainants, 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, till realization.
- The Opposite Parties are directed to pay compensation, in the sum of ₹1,00,000/- on account of mental agony and physical harassment, caused to the complainants, within 45 days from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing the complaint till realization.
- The Opposite Parties are directed to pay cost of litigation, to the tune of ₹50,000/- to the complainants, within 45 days from the date of receipt of a certified copy of this order, failing which, the same shall also carry interest @12% p.a., from the date of filing the complaint till realization.
17. However, it is made clear that, if the complainants have availed loan facility from any banking or financial institution, for making payment of installments towards the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by them (complainants).” 5. Aggrieved by the impugned order, the Appellants have filed the Appeal. 6. I have heard learned Counsel for the parties and perused the record including the short synopsis of arguments filed by the parties. 7. Learned Counsel for the Appellants submitted that as per Clause 21 of the Buyers Agreement dated 05.02.2011, possession of the subject unit was to be handed over within a period of 36 months from the date of allotment with a grace period of 3 months subject to the Respondents complying with the terms and conditions of the Agreement and making timely payments. It was submitted that possession of the unit was to be delivered by 09.05.2014. However, possession was offered on 06.09.2017 which was accepted by the Respondents on 05.10.2017 and Sale Deed executed on 16.10.2017. It was argued that the Respondents had not only taken possession of the unit but had also executed the Sale Deed with no protest whatsoever. It was contended that there was no deficiency in service on their part causing loss or injury to the Respondents. 8. Per contra, learned Counsel for the Respondents argued that possession of the unit was delivered on 06.10.2017, i.e., after 128 days of the impugned order and therefore, they are entitled to interest @ 15 p.a. instead of 12% p.a. from the date of default till realization. It was further argued that the Appellant themselves charge interest @ 15% p.a. compounded quarterly from the Respondents for delay in payments whereas the State Commission had awarded interest @ 12% p.a. It was, therefore, prayed that the Appeal be dismissed with exemplary costs. 9. From the records and facts of the present case, possession of the unit was to be delivered by 09.05.2014 as per the Agreement. However, possession was admittedly offered only on 06.09.2017 and the possession was taken by the Respondents on 16.10.2017. Delay on the part of the Appellants in delivering possession of the subject unit to the Respondents cannot, therefore, be denied. However, In cases where deficiency in handing over possession is established, the Hon’ble Supreme Court and this Commission have, in a catena of judgments, notably in Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, Civil Appeal No. 6044 of 2019 decided on 07.04.2022 and Wg Cdr Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd. & Ors., (2020) 16 SCC 512 held that the compensation should be fair and just for the delay in handing over of possession till the date of offer of possession. It has also been held that 6% of interest as compensation for the delay in handing over possession is equitable as the allottee also benefits from the appreciation of the land/flat value. 10. In DLF Homes Panchkula Limited vs. D. S. Dhanda etc., Civil Appeal No.4910-4941 of 2019, decided on 10.05.2019, the Hon’ble Supreme Court also laid down that awarding of multiple compensation for a single act of deficiency is not justifiable. This proposition of law has been reiterated in a catena of judgments of the Hon’ble Supreme Court and this Commission and is well settled. In the present case, the possession has been handed over. 10. In view of the foregoing discussion and the facts and circumstances of the case, this Appeal is partly allowed with the following directions: (i) The Appellants shall pay compensation, by way of interest @6% p.a., on the deposited amount of ₹42,90,447/-, to the Respondents, from the promised date of possession i.e. 09.05.2014 till the actual date of delivery of possession of the unit in question, i.e. 06.09.2017, within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @ 9% p.a., from the date of default, till realization. . (ii) The Appellants shall pay to the Respondents litigation costs of ₹50,000/-. (iii) Direction regarding payment of compensation of ₹1 Lakh towards mental torture is set aside. 12. Pending applications, if any, also stand disposed of. |
