AVM J. RAJENDRA, AVSM, VSM (RETD.), MEMBER

1.      The present First Appeal has been filed under Section 19 of the Consumer Protection Act, 1986 (hereinafter referred to as “the Act”) against the Order dated 14.12.2018 passed by the learned State Consumer Disputes Redressal Commission, Haryana, Panchkula (hereinafter referred as “the State Commission”), in Consumer Complaint No.405 of 2018 wherein the State Commission accepted the Complaint filed by the Respondent/ Complainant and directed the Appellants/Opposite Parties to refund of the amount of Rs.61,63,268/- along with interest @ 12% per annum from the date of respective deposits and till realization. In case, there is a breach in making payment within the stipulated period of two months, the complainant would further be entitled for interest @ 18% per annum, for the defaulting period. The State Commission has also awarded compensation of Rs.2 Lakh on account of mental agony and physical harassment along with Rs.21,000/- as litigation charges.

2.      Along with the present First Appeal, an IA/7508/2019 was filed seeking condonation of delay of 110 days. For the reasons stated in the Application and the facts and circumstances of the case, the delay is condoned and the said IA is disposed of.

3.      Briefly stated, the facts narrated in the complaint are that, based on a notification by the Opposite Parties, the Complainant applied for shop on free hold basis for earning his livelihood in Four Storied Agro Mall with Two tier basement, parking in Sector-20, Panchkula. He deposited Rs.30,81,620/- as 25% of total price of the shop i.e. Rs.1,23,26,563/- along with the application. He was allotted shop No.87 vide letter No.702 dated 22.06.2009. As per the terms of contract, 75% of the tentative amount was to be paid in six half yearly installments along with interest @ 15%. He had already deposited Rs.61,63,268/-.

4.      Over six years have passed but physical possession was not delivered. The Appellant filed CWP No.13306 of 2011 before the High Court of Punjab and Haryana, which was disposed of vide order dated 07.08.2012. The order revealed that the construction work had been allotted to M/s SG Constructions on 29.03.2012. The complainant again requested for possession of the shop. However, the physical possession was not delivered. Thus, there was deficiency in service on the part of the Opposite Parties. Accordingly, the Complainant filed a consumer complaint before the State Commission with the following prayers:-

“A) refund the amount of Rs.61,63,268/- already deposited with the respondents along with the interest @ 18% per annum from the date of allotment till actual refund.

B) Compensate the Complainant by paying him an amount of Rs.1 Lac on account of mental agony, harassment.

C) Pay an amount of Rs.25,000/- on account of litigation expenses.

D) Any other relief which this Hon’ble court may deems fit may also be granted.”

5.      The Haryana State Agricultural Marketing Board and Anr (OPs) resisted the complaint by filing a written version and stated that as per Clause No.7 of the allotment letter, the possession of the shop was to be offered after construction of Agro Mall. No specific time was laid down to handover the possession. The construction agreement with M/s Single Construction Co. was terminated and M/s Inner Value Chandigarh was engaged and the work was allotted to M/s SG Constructions on 29.03.2012. The complainant applied for the shop for doing business for commercial purpose and to earn profit. As the complainant failed to deposit the balance four installments in terms of Clauses No. 5 & 14 of the allotment letter, the allotment can be cancelled and an 10% of the total cost of shop can be forfeited along with interest and other dues. Thus, there was no deficiency in service on their part. Preliminary objections about the maintainability of complaint, territorial jurisdiction, commercial etc were also raised and Respondents sought dismissal of the complaint.

6.      The learned State Commission accepted the Complaint filed by the Complainant and directed the Appellants/OPs to

Refund the amount of Rs.61,63,268/- along with interest @ 12% per annum from the date of respective deposits and till realization. In case, there is a breach in making payment within the stipulated period of two months, the complainant would further be entitled for interest @ 18% per annum, for the defaulting period. The Complainant is also entitled for compensation of Rs.2 Lakh on account of mental agony and physical harassment. In addition, the Complainant is also entitled for Rs.21,000/- as litigation charges.

7.      Being aggrieved by the impugned order dated 14.12.2018 passed by the learned State Commission, the Appellants/ OPs filed the present Appeal with the following prayers:-

“a) Allow the present First Appeal and set aside the impugned order dated 14.12.2018 passed by the Ld. State Commission, Panchkula, Haryana in C.C. No.405 of 2018.

b. Dismiss the complaint filed by the respondent.

c. Pass such other order(s) as this Hon’ble Commission may deem fit in the facts and circumstances of the case.”

8.      The Respondent/Complainant filed written submissions in the matter and substantially relied on the contentions in the Complaint filed before the State Commission. 

9.      The learned Counsel for the Appellants in his arguments submitted that since interest has been awarded on the amount due, the direction granting compensation may be quashed. Further, the interest granted @ 12% per annum is high.

10.    The learned Counsel for the Respondent has argued that the Order dated 14.12.2018 passed by the State Commission is completely in order and requested the same be accepted and the Appeal be dismissed.

11.    We have examined the entire pleadings and material placed on record and heard the learned counsels for both the parties in detail.

12.    The Hon’ble Supreme Court in the case of M/s. Fortune Infrastructure (Now Known As M/s. Hicon Infrastructure) & Anr. Vs. Trevor D’lima & Ors., Civil Appeal No(s).3533-3534 of 2017, decided on 12.03.2018 wherein it has been held in para 15 that

“15. Moreover, a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of the amount paid by them, along with compensation. Although we are aware of the fact that when there 10 was no delivery period stipulated in the agreement, a reasonable time has to be taken into consideration. In the facts and circumstances of this case, a time period of 3 years would have been reasonable for completion of the contract i.e., the possession was required to be given by last quarter of 2014. Further there is no dispute as to the fact that until now there is no redevelopment of the property. Hence, in view of the above discussion, which draw us to an irresistible conclusion that there is deficiency of service on the part of the appellants and accordingly the issue is answered. When once this Court comes to the conclusion that, there is deficiency of services, then the question is what compensation the respondents/complainants is entitled to ?”

13.    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 07.04.2022 with respect to the scope for grant of compensation and held that:-

“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.”

14.    In due consideration of the pleadings placed on record, submissions made by the learned counsels for both the parties as well as the established judicial precedents in the matter, the impugned Order in the case passed by the learned State Commission dated 14.12.2018 is modified with the following directions: -

ORDER

1. The Appellants shall refund the amount of Rs.61,63,268/- to the Complainant/Respondent along with simple interest @ 9% per annum from the respective dates of deposit onwards, within a period of one month, from the date of this order. In the event of default, the amount payable shall carry interest @ 12% per annum from the date of expiry of one month till the realization of the entire amount.

2. The Appellant shall pay cost of litigation quantified as Rs.21,000/- to the Complainants/ Respondents, within one month from the date of this order.

15.    Consequently, the instant First Appeal No. FA/829/2019 stands disposed of. All the pending Applications, if any, also stand disposed of. The statutory amount, if any, deposited by the Appellants be refunded on due compliance of this order.