JUSTICE DEEPA SHARMA, PRESIDING MEMBER

1.     The present appeal has been filed by the appellant/opposite party against the Order dated 14.03.2019 of the State Commission whereby the complaint no. 10 of 2018 was allowed.

2.     Brief facts of the case are that the complainant / respondent booked a flat in the project of appellant Company in “The DLF Valley” situated in Sector-3, Kalka Pinjore Urban Complex, Panchkula on 28.02.2010.   The complainant was allotted unit no. E-3/18, second floor of 1751 sq. ft vide allotment letter dt.10.03.2010. The Independent Floor buyer’s agreement was also executed on 14.01.2011 in his favour. The total sale consideration of unit was Rs. 32,27,100/-. As per clause 11 (a) of the agreement, the appellant promised to deliver possession within 24 months from the date of execution of the agreement. The respondent was, however, offered possession of the said unit on 14.01.2016. The appellant vide possession letter dated 14.01.2016 asked the respondent to deposit Rs. 12,42,831/- which the complainant deposited and took possession of the unit. The sale deed was also executed on 11.07.2016. Thereafter, complainant wrote an email to the appellant followed by a letter for delay compensation but all in vain. Respondent being aggrieved by the said act of the appellant filed a complaint before state commission seeking direction to appellant to pay interest at 15% p.a for delay in handing over of possession till the date of delivery of possession and compensation of Rs. 2,00,000/- for mental agony and Rs. 35,000/- as cost of litigation.

3.     The opposite party had filed its objections in its written statement before the State Commission wherein it is stated that offer of possession was offered to complainant on 14.01.2016 after receiving Occupancy certificate on 10.07.2015.   It is also contended that immediately on payment of dues, sale deed was executed on 11.07.2016.   It is further contended that respondent has filed complaint in total disregard to the independent floor buyer agreement.   It was further contended that the project was escalation free and complainant was getting benefit of said escalation on account of construction material/ labour cost and price appreciation. It is also contended that delay was caused due to stay on construction ordered by the Punjab and Haryana High Court and thereafter by Hon’ble Supreme Court in the year 2010 and 2012. Therefore, complainant vide letter dt. 01.02.2013 was offered an exit option.  By said exit option, respondent was given an opportunity to seek refund along with 9 % interest but respondent refused to avail the said option and thus opted to continue with the project along with extension of time for further period of 12 months. Therefore, having already known of the fact about delay, respondent cannot claim compensation on account of delay by the appellant.

4.  State commission after considering the contentions of the parties vide order dt. 14.03.2019 passed the following order:

“57. For the reasons recorded above, all the complaints bearing Nos.805 of 2017, 806 of 2017, 807 of 2017, 10 of 2018 and 25 of 2018 are partly accepted, with costs, in the following manner:-

The Opposite Parties, in each of these cases, are jointly and severally, held liable and directed as under:-

(i)      To pay compensation, by way of simple interest @9% p.a., on the deposited amount(s), to the complainant(s), with effect from:-

07.01.2014 to 14.01.2016 (in CC/805/2017), 25.01.2014 to 03.02.2016 (in CC/806/2017), 10.01.2014 to 03.02.2016 (in CC/807/2017),14.01.2014 to 14.01.2016 (in CC/10/2018) &19.11.2013 to 05.10.2016 (in CC/25/2018), within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amount(s) shall carry penal interest @10% p.a. (simple), instead of 9% p.a. (simple), from the date of default i.e. w.e.f expiry of period of 45 days, till realization.

(Since in CC/805/2017 , the opposite parties have paid an amount of Rs.4,00,002.37 on account of delay compensation, this amount shall be reduced/deducted from the compensation amount arrived at by way of interest @9% p.a. on the deposited amount for the delay period).

(ii) Pay compensation in the sum of Rs.75,000/-, in each case, on account of mental agony, physical harassment and deficiency in service and Rs.22,000/-, in each case, as litigation costs, to the complainant, within 45 days from the date of receipt of a certified copy of the order, failing which, the said amount shall carry interest @ 9% p.a. (simple), from the date of filing the complaint till realization.”

5.       This order is impugned before us. In the present appeal, the appellant has alleged that the impugned order is illegal. The appellant contends that the Ld. State commission erred in not considering the fact that the possession has been handed over to the complainant and sale deed is also executed. It failed to consider that once the deed is executed the respondent ceases to become a consumer. It is also argued that the delay in the completion of the project was beyond control of the appellant and grant of compensation at 9 % on delayed possession was unjust.  It is further submitted that no loss or harassment or prejudice is caused to the respondent and impugned order is illegal and is liable to be set aside.

6.       In this case, none for the respondent / complainant has attended the proceedings despite service of the process.  The Court proceeded with the matter in the absence of the complainant and also in view of the fact that learned counsel for the Appellant submits that it is a covered case covered by the order of the Hon’ble Supreme Court in DLF Homes Panchkula Pvt. Ltd.  Vs. D.S.Dhanda Etc. Etc. Civil Appeal Nos. 4910-4941 / 2019 & DLF Homes Panchkula Pvt. Ltd. & Anr. Vs. Sudesh Goyal Etc, Civil Appeal Nos. 4942-4945/2019 decided on 10.05.2019 and that a similar order can be passed in this matter.  

7.       We have heard arguments of the learned counsel and perused the file.  We have also perused the judgment in the case of D.S.Dhanda ( supra) and Sudesh Goyal (supra).  We are satisfied that these matters decided by the Hon’ble Supreme Court also relate to the same project i.e. “DLF Valley” and the same issues which have been raised in the complaint by the complainant have been dealt with and decided by the Hon’ble Supreme Court.  Relating to the project “DLF Valley”, the Hon’ble Supreme Court in the case of D.S. Dhanda (supra) has dealt with all the issues relating to project in question and it has been held as under:

“18. xxxxxxxxxx Thus, keeping in view the said principle laid down in the aforesaid judgment, the amount of the interest is the compensation to the beneficiary deprived of the use of the investment made by the complainant. Therefore, such interest will take into its ambit, the consequences of delay in not handing over his possession. In fact, we find that the learned SCDRC as well as NCDRC has awarded compensation under different heads on account of singular default of not handing over possession. Such award under various heads in respect of the same default is not sustainable.

19. Thus, we find that the complainant is entitled to interest from the Appellant for not handing over possession as projected as is offered by it but it is not a case to award special punitive damages as the one of the causes for late delivery of possession was beyond the control of the Appellant. Therefore, in view of the settlement proposal submitted by the Appellant in earlier two set of appeals in respect of same project, and to settle any further controversy, the Appellant is directed as follows:

i) To send a copy of the occupation certificate to the Complainants along with offer of possession. The Appellant shall also direct the Jones Lang LaSalle - the real estate maintenance agency, engaged by the Appellant to undertake such maintenance works as is necessary on account of damage due to non-occupation of the flats after construction etc.

ii) It shall be open to the Complainants to seek the assistance of the maintenance agency to attend to the maintenance work which may arise on account of non-occupation or on account of natural vagaries.

 iii) Such maintenance work shall be completed by the Appellant within two months of the offer of possession but the payment of interest at the rate of 9 per cent per annum will be for a period of two months from the date of offer of possession in all situations.

v) Since the Complainants have been forced to invoke jurisdiction of the consumer forums, they shall be entitled to consolidated amount of Rs. 50,000/- in each complaint on all accounts such as mental agony and litigation expenses etc. The complainant shall not be entitled to any other amount over and above the amount mentioned above.

vi) In case, the original allottee has transferred the flat, the transferee shall be entitled to interest at the rate of 9 per cent per annum from the date of expiry of three years from the agreement or from the date of transfer, whichever is later.”

8.       The State  Commission while granting compensation by way of simple interest @ 9% p.a. had awarded it for a period from 14.01.2014 to 14.01.2016 i.e. two years which is illegal on the part of the State Commission and needs to be corrected. 

9.       Following the order of the Hon’ble Supreme court in D.S.Dhanda, we issue the following directions:

The Appellant who are jointly and severally liable are directed as under:

i.        To pay compensation by way of simple interest @ 9 % p.a. on the deposited amount for a period of two months from the date of offer of possession.

ii.       Appellant is also directed to pay sum of Rs.50,000/- towards mental agony and litigation expenses.

10.     With these directions, the present Appeal stands disposed of.