Chandigarh

StateCommission

A/19/2023

GURSANGAT SINGH - Complainant(s)

Versus

MANOHAR INFRASTRUCTURE AND CONSTRUCTIONS PVT LTD - Opp.Party(s)

SANJEEV GUPTA & RIPUDAMAN SINGH

01 Dec 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Appeal No.	:	19 of 2023
Date of Institution	:	24.11.2022
Date of Decision	:	01.12.2023

 

Gursangat Singh son of Sh.Amarjeet Singh r/o Village Jhaloor, VPO Jhaloor, District & Tehsil Barnala, Punjab.

……Appellant/complainant

V e r s u s

1. M/s Manohar Infrastructure & Constructions Private Limited, having its registered Office at SCO No.139-141, Sector 17-C, First Floor, Chandigarh through its Managing Director/Authorised signatory.
2. Tarninder Singh, Managing Director/ Director, M/s Manohar Infrastructure & Constructions Private Limited, having its registered Office at SCO No.139-141, Sector 17-C, First Floor, Chandigarh
3. Narinderbir Singh, Director, M/s Manohar Infrastructure & Constructions Private Limited, having its registered Office at SCO No.139-141, Sector 17-C, First Floor, Chandigarh 

…..Respondents/opposite parties

Present:- Sh.Sanjeev Gupta, Advocate for the appellant.

                Sh.Simranjit Singh Sidhu, Advocate for the respondents.

                            

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Appeal No.	:	26 of 2023
Date of Institution	:	13.02.2023
Date of Decision	:	01.12.2023

1. Manohar Infrastructure & Constructions Private Limited, Corporate Office SCO No.139-141, Sector 17-C, Chandigarh-160017 through its Director/Manager.
2. Tarninder Singh, Managing Director, M/s Manohar Infrastructure & Constructions Private Limited, Registered Office SCO No.139-141, Sector 17-C, First Floor, Chandigarh
3. Narinderbir Singh, Director, M/s Manohar Infrastructure & Constructions Private Limited, Registered Office SCO No.139-141, Sector 17-C, Chandigarh 

……Appellants/opposite parties

V e r s u s

Gursangat Singh son of Sh.Amarjeet Singh r/o Village Jhaloor, VPO Jhaloor, District & Tehsil Barnala, Punjab.

…..Respondent/complainant

 

Present:-  Sh. Simranjit Singh Sidhu, Advocate for the appellants.

                Sh. Sanjeev Gupta, Advocate for the respondent.

 

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BEFORE:              JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                             MR.RAJESH K. ARYA, MEMBER

 

PER JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                    Since common questions of facts and law are involved in these cross appeals, as such, we are going to dispose of the same, by passing a consolidated order. 

2.           These cross appeals have been filed by the respective appellants assailing the common order dated 24.11.2022 passed by the District Consumer Disputes Redressal Commission-II, U.T., Chandigarh (in short the District Commission), whereby consumer complaint bearing no.121 of 2021 titled as Gursangat Singh Vs M/s Manohar Infrastructure & Constructions Private Limited and ors. was allowed as under:-

 “……10]    In the light of above observations, we are of the considered view that the Opposite Parties No.1 to 3 are found deficient in rendering proper service to the complainant and having indulged in unfair trade practice. Hence, the present complaint deserves to succeed against the Opposite Parties No.1 to 3.  Accordingly, the present complaint is allowed with direction to   opposite parties No.1 to 3 to refund an amount of Rs.16,38,000/- along with interest @12% p.a. from the respective date(s) of deposit till its payment. The   opposite parties No.1 to 3 are also directed to pay an amount of Rs.One lakh to the complainant towards compensation for causing them immense mental agony and harassment, along with litigation cost of Rs.15,000/-.

The above said order shall be complied with by the Opposite Parties No.1 to 3 jointly & severally within a period of 45 days from the date of receipt of its copy, failing which they shall be liable to pay additional cost of Rs.25,000/- in each case, apart from the above awarded amount..…”

3.           Appeal bearing no.19 of 2023 titled as Gursangat Singh Vs M/s Manohar Infrastructure & Constructions Private Limited and ors. has been filed by the complainant-Gursangat Singh for modification of the order impugned by ordering delivery of possession of the plot in question alongwith compensation for mental agony harassment; compensation by way of interest for delay in delivery of possession of the plot etc. as prayed for in the main consumer complaint, instead of refund of the amount paid alongwith interest and compensation, as ordered by the District Commission.
4.           On the other hand, appeal bearing no.26 of 2023  titled as  Manohar Infrastructure & Constructions Private Limited and ors. Versus Gursangat Singh   has been filed by opposite parties/builder for setting aside the impugned order dated 24.11.2022 passed by the District Commission.

Factual scenario of the case:-         

5. Before the District Commission, it was the case of complainant that being allured by the false promises and assurance of  the opposite parties, he  booked a residential plot measuring 300 sq. yards @ Rs.18200/- in the project ‘Palm Garden”, Mullanpur, New Chandigarh, District Mohali vide application dated 21.10.2011 (Annexure C-1) for his personal use. However, despite the fact that an amount of Rs.16.38 lakhs i.e. 30% of the sale consideration stood paid by him alongwith the said application, yet, neither allotment letter in respect of the plot was issued by the opposite parties nor agreement was sent for signatures nor possession thereof was offered and delivered for want of approvals, CLU etc. and development activities at the project site. The complainant had also purchased another plot measuring 300 sq. yards @ Rs.18300/- per sq. yards in the same project vide application dated 21.10.2011 for the personal use and occupation of his sister, residing in Canada by paying Rs.16,38,000/- i.e. 30% of the consideration of the plot, which had been sold by him under compelling circumstances  in March, 2014. However, in the year 2018-19, the   opposite parties started demanding IDC which was not payable by the complainant and also sent legal notice (Annexure C-6) vide which they cancelled the expression of interest and asked the complainant to make fresh offer for allotment as per the new payment plan and rate. The complainant vide e-mail dated 28.01.2021 (Annexure C-7) again requested the opposite parties to issue the allotment letter and execute the agreement and deliver the possession of the plot but to no effect.  Hence consumer complaint was filed before the District Commission.
6.           After service of the notice upon the opposite parties, they appeared and filed their written version stating therein that expression of interest was initially submitted in the year 2011 by the complainant and thereafter he never approached in the matter. The project of the opposite parties has been granted exemption under Section 44(2) of the PAPR Act.  The complainant was duly informed regarding the status of the project at the time of expression of interest. The competent authority has granted completion period of the project till 13.6.2018 which was thereafter extended upto 31.12.2022.  It was for the complainant to come forward to execute the Plot Buyer’s Agreement and comply with terms & conditions.  No prejudice was caused to the complainant if at the initial stage; the company was not having permissions from the competent authority, since a valid title can be transferred in the name of complainant after allotment of plot. The complainant was well aware of the fact that it was only expression of interest shown in the upcoming project and that approvals were awaited, which were delayed by Govt. The complainant had invested a very nominal amount in the project of the opposite parties just to block the plot as he had invested the same for the purpose of sale and purchase in order to earn profits. It was the duty of the complainant to pay the remaining amount as per the schedule and further to complete the pending formalities but he did not do so. The development at the project site was going on and now the development is in full swing and almost complete in that area and many of the families are already residing there.  Any charges mentioned in the EOI are not final rather the same are tentative which is subject to change as per the requirements. It was never assured that any allotment letter will be issued to the complainant. 
7.           The complainant filed replication to the written version of the opposite parties controverting his stand and reiterated the averments made in the complaint.
8.           The District Commission after hearing the contesting parties and on going through the material available on record allowed consumer complaint, in the manner stated above, out of which these cross appeals have arisen.  
9.           We have heard the contesting parties and have scanned the material available on the record, including written arguments.

 

Submissions of the appellant/complainant:-

10.            Counsel for the appellant/complainant in Appeal bearing no.19 of 2023 titled as Gursangat Singh Vs M/s Manohar Infrastructure & Constructions Private Limited and ors. while reiterating the contentions raised in the main consumer complaint submitted that despite the fact that the District Commission held the respondents deficient in providing service and guilty of adoption of unfair trade practice by not issuing the allotment letter and execution of buyer’s agreement, in respect of the plot purchased by him, yet, at the same time, the District Commission fell into a grave error in ordering refund of the amount paid with interest, which relief was never sought by the complainant. He further submitted that on the other hand, the complainant in his complaint had sought delivery of possession of the plot in question alongwith compensation for mental agony harassment; compensation by way of interest for delay in delivery of possession of the plot etc. He further submitted that under these circumstances, the order impugned needs to be modified and the relief of possession of the plot alongwith compensation for delay in delivery of possession; mental agony and harassment and other relief sought for in the main consumer complaint be awarded to the complainant. 

 

 

Submissions of the respondents/builder:-

11.           On the other hand, counsel for the respondent/builder while reiterating the contentions raised in written reply filed before the District Commission submitted that since it was the complainant who failed to make payment of remaining amount in respect of a plot in the said project and also he did not come forward for receiving the allotment letter and also for signing the buyer’s agreement, therefore, the expression of interest was rightly cancelled by the respondents/builder. He further submitted that if the complainant wants a plot in the said project, he needs to book the same afresh on the rates now applicable in the market. He further took various objections qua maintainability of complaint; that complaint is barred by limitation; that complainant is not a consumer, as neither any allotment was made nor agreement was executed in respect of any plot and only expression of interest was filled by him; that the complainant did not make the remaining payment as per the payment plan and has paid only 30% of the sale consideration; that because no time period was stipulated for delivery of possession therefore time was not essence of contract; that no prejudice has been caused to the complainant if at initial stage the company was not having permissions from the competent authorities in respect of the project in question; that period of development has been extended by the competent authorities till 31.12.2022; Exemption granted to the company under PAPR Act on 25.01.2017 will have retrospective effect; and that  when the expected date of delivery of plot is near, the District Commission has wrongly ordered refund of the amount paid without any reason.

Findings of this Commission:-

Limitation:-

12.           First coming to the objection raised by the respondents/ builder that the complaint filed was barred by limitation it may be stated here that since admittedly in the present case neither possession of the plot stood offered and delivered to the complainant nor the amount paid was refunded to the complainant and on the other hand, the plot stood cancelled vide letter dated  23.12.2020, Annexure C-6, as such, the period of two years if taken from 23.12.2020, the consumer complaint having been filed on 19.02.2021 is well within limitation.  As such, objection taken in this regard is rejected.

 

Complainant is a consumer:-

13.           Now coming to the objection raised by the respondents/builder that the complainant is not a consumer, as neither any allotment was made nor agreement was executed in respect of any plot and only expression of interest dated 21.10.2011, Annexure C-1 was filled by him, it may be stated here that we have perused the contents of document, Annexure C-1 and found that though in the subject, this document has been termed as expression of interest for a property in Palm Garden, yet, it has been termed as “application” in its body. At the same time, alongwith this document, Annexure C-1, payment plan has also been attached wherein the schedule of payment including IFMS, PLC etc. are also mentioned, wherein also it has been clearly mentioned as “With the Application: 30% of BSP”. Even the size, rate i.e. 300 square yards @18200/ per square yards i.e. totaling Rs.54,60,000/- of the plot has also been mentioned in the document, Annexure C-1. It is also an admitted fact that an amount of Rs.16,38,000/- as 30% of the BSP stood received by the respondents/ builder from the complainant. Even in the cancellation letter dated 23.12.2020, Annexure C-6, it has been stated by the respondents/builder that it was a provisional allotment as it has been written as “In any case,  the provisional allotment too, was subject to pay further installments of sale price and all other monies/dues stipulated in the payment plan”. . It has been further stated in the said legal notice that "As per the official record, maintained by my client, except the aforementioned payment towards the BSP (which was only 30% of the BSP) no other payment has been received by my Client”. It is significant to mention here that in case it was only an expression of interest then for what purpose, the respondents/builder required further amount from the complainant, has not been clarified by them.  Under these circumstances, once it has been proved on record that plot size, rate, payment plan etc. was provided to the complainant and at the same time, an amount of Rs.16,38,000/- as 30% of the BSP also stood received by the respondents/builder from the complainant, which was utilized by them for more than 8 years, without providing anything to him, as such, now they cannot wriggle out of the situation by stating that it was only expression of interest or that no allotment of plot or agreement was executed as such the complainant is not a consumer. If the respondents/ builder did not take any steps in the matter after receiving such a huge amount of Rs.16,38,000/- from the complainant for more than 8 years, they cannot take any benefit out of such deficiency in service on their part.

 

Complainant cannot be termed as defaulter:-

14.           Counsel for the complainant contended with vehemence that further payments were not made to the respondents/builder as the complainant came to know that they were competent to advertise and launch the project in question in possession for want of requisite licences, approvals and permissions and at the same time, no development work was also carried out at the project site. He further contended with vehemence that the provisions of PAPR Act and other Rules and Regulations applicable to the State of Punjab have also been violated by the respondents/builder and that neither plot no. has been allocated to the complainant nor agreement has been executed  despite the fact that the complainant visited their office number of times. On the other hand, Counsel for the respondents/builder refuted the said allegations of the complainant, yet, without support of any documentary evidence.
15.           It may be stated here that when we peruse the following documents placed on record by the respondents/builder alongwith appeal no.26 of 2023  having been issued by the competent Authorities i.e. Punjab Urban Planning and Development Authority (PUDA) and Greater Mohali Area Development Authority (GMADA), which are the controlling authorities of the respondents/builder,  it reveals as under:-
    1. Letter of Intent (LOI)  for  the project in question was issued by the Punjab Urban Planning and Development Authority on 03.05.2013, wherefrom it is coming out that application for setting up the residential project was moved by the respondents/builder before the competent Authority, for the first time on 16.09.2011. Thereafter, proposal of the project was considered by the screening committee on 21.02.2013 and the project was approved by the Government, for the first time only on 22.03.2013.
    2. Furthermore, in condition no.3 (iii) v) of the Letter of Intent (LOI) dated 03.05.2013 it has been in a very candid manner stated that the project shall not be advertised/launched and money could not be collected from general public for allotment of land, plot etc. without the approval of layout and zoning plans and also exemption under section 44 of PAPR Act is issued by the State Govt. Relevant part of the said condition of LOI is reproduced hereunder:

“v.….The project shall not be advertised/launched and no money will be collected from general Public for allotment of land/plot/flat/any space till such time the layout plans/Zoning plans are approved by the Competent Authority and exemption u/s 44 of PAPR Act 1995 is issued by the State Govt….”

         

3. Furthermore, in condition no.6 of the said LOI it was clearly  mentioned that it does not confer any right to the Promoter/Developer to sell/transfer the property or execute any transactions with anyone without obtaining valid approvals & requisite notification/order under Section 44 of PAPR Act, 1995, to be issued by the Department of Housing & Urban Development. Relevant part of condition no.6 of the said LOI is reproduced hereunder:-

‘..This LOI is only a letter of intent issued by Punjab Urban Planning & Development Authority in its capacity as Nodal Agency and does not confer any right to the Promoter/Developer to sell/transfer the property or execute any transactions with anyone without obtaining valid approvals & requisite notification/order under Section 44 of PAPR Act, 1995, to be issued by the Department of Housing & Urban Development…’

 

4. Similar condition is found mentioned in the agreement dated 14.06.2013, having been executed between the State Govt. of Punjab (The Governor of Punjab, through The Chief Administrator PUDA) and the respondents/builder, wherein, in condition no. (6) ix, it has been mentioned as under:-

‘….The project shall not be advertised /launched and no money will be collected from General Public for allotment of land/plot /flat/any space till such time the layout plans/Zoning plans are cleared by the Competent Authority and exemption u/s 44 of PAPRA is issued by the Govt…’.

 

5. Change of Land Use (CLU) was approved by the Department of Town and Country Planning, Punjab, for the first time on 31.03.2014 only.

 

16.           Thus, from perusal of the aforesaid documents, it is  clearly established tha the respondents/builder  was not competent to advertise/launch the project and collect money from general public for allotment of land, plot etc.  in the year 2011,  or even by 2017 i.e.  before exemption under section 44 of PAPR Act is issued by the State Govt. (which in the present case has been issued only on 25.01.2017), i.e. not even a single permission had been obtained by the respondents/builder in the year 2011, when the project in question was launched. Even the Certificate of Registration as Promoter, which qualified the respondents/builder for obtaining licence under PAPR Act was obtained by them on 27.06.2014 only i.e. after more than 2 ½ years from the date of selling plot to the complainant. Collecting money from the perspective buyers and selling the project, without obtaining the required permissions and sanctions is an unfair trade practice on the part of the project proponent. It was so said by the Hon’ble National Commission, in a case titled as M/s Ittina Properties Pvt. Ltd. & 3 Ors. Vs. Vidya Raghupathi & Anr., III (2018) CPJ 12 (NC). Relevant part of the said order reads as under:-

“…………….This Commission in Brig. (Retd.) Kamal Sood Vs. M/s. DLF Universal Ltd., (2007) SCC Online NCDRC 28, has observed that it is unfair trade practice on the part of the Builder to collect money from the perspective buyers without obtaining the required permission and that it is duty of the Builder to first obtain the requisite permissions and sanctions and only thereafter collect the consideration money from the purchasers.

It is an admitted fact that the sale deeds were executed in the year 2006 and by 2009 the completion certificate was not issued. The Occupancy Certificate was issued only on 25.09.2017 during the pendency of these Appeals before this Commission. Allotting Plots or Apartments before procuring the relevant sanctions and approvals is per se deficiency…………”

 

Surprisingly, the Government of Punjab, Department of Housing and Urban Development (Housing II Branch) i.e. the competent Authority was well aware of the fact that the project has been launched and plots/units have been sold to the general public starting from the year 2011 itself, without necessary approvals/permissions and huge money has been collected and usurped by the respondents/builder from the innocent buyers, yet, it did not hear the aggrieved consumers before granting exemption to the project on 25.01.2017 from the provisions of PAPR Act. It cannot be assumed that the said project was launched by the respondents/builder and the competent authorities were not aware of illegal activities, happening in their territory. As such, the said act of the competent authorities is against the principles of natural justice; fair play and not binding on the complainant and other prospective buyers. If the competent Authorities failed to take any action under relevant Rules and Regulations against the company, no benefit can be taken out there-from by the respondents/builder against deficiency in providing service, negligence and adoption of unfair trade practice on their part. 

Cancellation of plot by the respondents/builder not justified:-

17.           The next question that falls for consideration is, as to whether, the respondents/builder  was justified in cancelling the provisional allotment of the plot in question or not. It may be stated here that though the respondents/builder  has stated that since  complainant defaulted in making  further payment, as such, cancellation letter dated 23.12.2020, Annexure C-6, was rightly issued to him, yet, on the other hand, it has been vehemently contended by the counsel for the complainant that further payments were not made because neither final allotment letter in respect of plot was issued nor agreement was got signed nor there was any development at the project site. First coming to the final allotment letter and agreement, it may be stated here that not even a single cogent and convincing evidence has been placed on record by the respondents/builder to prove that they even sent final allotment letter or agreement to the complainant for signatures or that the complainant was ever called to their office for the same. Under these circumstances, bald contentions raised by the respondents/builder that the complainant failed to  sign the agreement  despite asking him, cannot be taken into consideration.  Furthermore, the respondents/builder has failed to place on record any cogent evidence to prove that the project in question was ready by the year 2020, when cancellation letter was issued by them to the complainant. It is settled law that onus to prove the stage and status of construction and development work at the project site and that all the permissions/approvals including completion certificates have been obtained in respect thereof, is on the builder/developer. It was so said by the Hon’ble National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. In the present case, as stated above, the respondents/builder has failed to place on record even an iota of convincing evidence to prove that by the year 2020 or even by the date of filing the consumer complaint before the District Commission, the project was complete in all respects. Had the development/construction activities  been completed or about to complete, then it was for the respondents/builder, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development/ construction activities are completed or not, but they miserably failed to do so. Mere placing on record some photographs of the project site showing that some flats have been constructed or that some development work is being carried out now, are of no use to the respondents/builder. Under these circumstances, if the complainant did not make payment of the remaining   amount, he cannot be termed as defaulter, in view of law laid down by the Hon’ble Supreme Court of India in Haryana Urban Development Authority Vs. Mrs. Raj Mehta, Appeal (Civil) 5882 of 2002, decided on 24.09.2004, wherein it was held that if the builder is at fault in not delivering possession of the units/plots by the stipulated date or reasonable period, it cannot expect the allottee(s) to go on paying installments to it. Similar view had also been taken by the Hon’ble National Commission, in Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), wherein it was held that when development and construction work was not carried out at the site, the payment of further installments was rightly stopped by the purchaser. 
18.           Under these circumstances, the District Commission was right in holding that the act of the respondents/builder  to collect the money before getting all the necessary approvals for the project and not issuing allotment letter or executing buyer’s agreement, certainly proves deficiency in service and their indulgence in unfair trade practice, yet, we are surprised to note that though the complainant had sought relief of possession of the plot in question alongwith compensation etc. but the District Commission fell into an error and travelled beyond the said relief and ordered refund of the amount paid alongwith interest and compensation which was never prayed by the complainant. As such, the order passed by the District Commission needs modification and  it is held that the complainant is entitled to get delivery of possession of the plot in question in the project of the respondents/builder. Thus, by issuing cancellation letter dated 23.12.2020, Annexure C-6, the respondents/builder indulged into unfair trade practice and as such the same stands quashed.

 

Compensation for delay in offer and delivery of possession of plot:-

19.           Now the question which arises for consideration is, as to what amount of compensation, the appellant/complainant is entitled to get, for the period of delay in delivery of possession of the plot. It may be stated here that it a matter of common parlance that for purchasing the unit/plot, the purchasers take loans from their family members, relatives and friends or financial institutions. In some cases, the purchasers live on rent in the absence of timely delivery of possession. Admittedly, in the present case, agreement has not been executed by the respondents/builder till date, despite the fact that huge amount of Rs.16,38,000/- had been received from the complainant in the year 2011. It is well settled law that to ascertain the period/date by which possession should be handed over to the allottee in the absence of execution of agreement, should be maximum three years from the date of booking. It was so said by the Hon’ble Supreme Court of India in Fortune Infrastructure Versus Trevor D’ Lima & Ors. (2018) 5 SCC 442 and by the Hon’ble National Commission in Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No.1814 of 2017 decided on 05.07.2018. Thus, on account of delay in actual delivery of possession within a reasonable period of three years i.e. latest by 20.10.2014 from the date of application dated 21.10.2011 (as in the present case, agreement has not been executed between the parties) the complainant suffered mental agony, hardships and financial loss. In DLF Homes Panchkula Pvt. Ltd. Versus Himanshu Arora, Civil Appeal No. 11097 of 2018, decided on 19 November, 2018 under similar circumstances, the Hon’ble Supreme Court of India has upheld the order of the Hon’ble National Commission awarding interest @9% p.a. for the period of delay in delivery of possession. Relevant part of the said order is reproduced hereunder:-

“……8. Having regard to the above submission, we indicated to the learned Counsel appearing on behalf of the flat purchasers that it would be appropriate if the interest as ordered by NCDRC at 9% per annum is made payable over the period which was determined by the Order of the SCDRC. There is no objection by the flat purchasers to the aforesaid modification being made. Even otherwise, we are of the view that such a modification would be required in the interests of justice since it was the appellants who had questioned the Order of the SCDRC before the NCDRC.

9. In the above facts and circumstances, we confirm the direction of the NCDRC that the appellants shall pay interest @ 9 per cent per annum. However, the period over which interest shall be payable will be in conformity with the Order passed by the SCDRC….”

Thereafter also, similar rate of interest i.e. 9% p.a. was granted by the Hon’ble Supreme Court in DLF Homes Panchkula (P) Ltd. Versus Sushila Devi, Civil Appeal Nos.2285-2330 of 2019, decided on 26 February, 2019,  by making reference to the earlier order passed by it in Himanshu Arora’s case (supra).

                   In Nagesh Maruti Utekar Vs. Sunstone Developers Joint Venture, Consumer Case No. 12 of 2017, decided on 04 May 2022 also, the Hon’ble National Commission awarded interest @9% p.a. from the committed date of delivery till possession is delivered. Relevant part of the said order is reproduced hereunder:-

“……Consequently, the Opposite Party Developer is directed to pay interest @9% w.e.f. 31.03.2014, i.e., the expected date of delivery of the possession, on the amount deposited by the respective Complainant till 02.09.2017, i.e., the date on which the possession of the Flat was offered by the Opposite Party Developer, within two months from today.  The Opposite Party Developer shall also pay cost of ₹25,000/- to the Complainants in each case.   Since we have awarded delay compensation till the date of offer of possession instead of actual physical possession of the Flat, the Opposite Party Developer shall not be entitled for any delay interest from the date of offer of possession till the date of payment made by the Complainant for taking physical possession of the Flat.…..”

In Shreya Kumar & 11 Ors. Vs. M/s. Ansal Housing & Construction Ltd. & 3 Ors., Consumer Case No. 1021 of 2017, decided on 05 May 2022, the Larger Bench of the Hon’ble National Commission has awarded interest @9% p.a. from the committed date of delivery till possession is delivered.  As such, in the present cases also, the appellant/complainant deserves just and fair compensation for the period of delay in delivery of possession to him by the respondents/builder. In our considered opinion, if we grant interest @9% p.a. to the appellant/complainant on the entire amount deposited by him, after expiry of reasonable period of three years from the date of booking of the plot till delivery of possession thereof, that will meet the ends of justice.

Decision of this Commission:-

20.           For the reasons recorded above, appeal bearing no.19 of 2023 titled as Gursangat Singh Vs M/s Manohar Infrastructure & Constructions Private Limited and ors. stands partly allowed. The order dated 24.11.2022 passed by the District Commission is modified and the respondents-Manohar Infrastructure & Constructions Private Limited/opposite parties no.1 to 3 jointly and severally are directed as under:-

1. To hand over physical possession of the plot measuring 300 square yards in the project in question i.e. “Palm Garden”, @Rs.18,200/- per square yard, complete in all respects, after obtaining completion certificate, on receipt of balance sale consideration from the appellant/complainant, within a period of 2 months from the date of receipt of a certified copy of this order. However, it is made clear that they shall not charge any penalty/delayed interest on the said balance sale consideration for the previous period.
2. To pay compensation by way of interest @9% p.a. on the entire amount deposited by the appellant/complainant, for the period of delay i.e. after the expiry of period of three years from 21.10.2011  i.e. from 20.10.2014 till 31.12.2023 in one go, within a period of 30 days from the date of receipt of a certified copy of this order, failing which, thereafter it shall be liable to pay penal interest @ 12% p.a. on the entire accumulated amount of compensation (20.10.2014 to 31.12.2023), from the date of default till this entire accumulated amount of compensation is paid to the appellant/complainant.
3. To pay compensation by way of interest @9% p.a. on the entire amount deposited by the appellant/complainant, w.e.f. 01.01.2024, onwards (per month), by the 10^th of the following month to the appellant/complainant till possession of the plot question is actually delivered, as ordered above.
4. To pay compensation of Rs.1 lac for causing mental agony and physical harassment to the appellant/complainant on account of  deficiency in providing service and adoption of unfair trade practice by cancelling the allotment of plot wrongly and arbitrarily and also cost of  litigation to the tune of Rs.50,000/- within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, these amounts shall carry interest @9% p.a. from the date of default till realization.

21.            Resultantly, Appeal bearing no.26 of 2023  titled as  Manohar Infrastructure & Constructions Private Limited and ors. Versus Gursangat Singh stands dismissed with no order as to cost.
22.           Pending applications, if any, in both these cases, stand disposed of, accordingly.
23.           Certified copies of this order be sent to the parties, free of charge, forthwith and one copy thereof be placed in the cross appeal file.
24.           The appeal files be consigned to Record Room, after completion and record of the District Commission be sent back, forthwith.

Pronounced

01.12.2023

 

Sd/-

 [JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

Sd/-

 (RAJESH K. ARYA)

MEMBER

Rg