JUSTICE DEEPA SHARMA, PRESIDING MEMBER The present Appeal has been filed against the order dated 14.11.2017 in Complaint no. 196 of 2017 of the State Commission whereby State Commission has ordered refund of the deposited amount of Rs. 29,42,276.32/- along with interest @ 12% p.a. from the respective dates of deposit till realization as per rule 17 of The Punjab Apartment and Property Regulation Act, 1995 ( in short ‘PAPRA’) and to pay Rs.50,000/- on account of mental tension and harassment suffered by the complainant and towards litigation expenses. 2. The admitted facts are that complainant had booked a commercial shop bearing no. 801-A on 8th Floor in the commercial tower in the project “India Trade Towers Chandigarh Extension” situated at Mullanpur SAS Nagar, District Mohali, Punjab being developed by the Appellants / opposite parties. The total consideration of the said shop was Rs.34,32,845.04/-. Agreement was executed between the parties on 26.10.2010 vide which the complainant had chosen combo payment plan entitling them 12% assured return till offer of possession. . An addendum was also executed between the parties on 10.12.2010 whereby it was agreed that appellant shall pay 12% interest till the offer of possession or upto 30 months, whichever was later. The appellant continued to pay the interest @ 12% p.a. to the complainant from November 2010 to December 2017 on the deposited amount. Complainant had so far deposited a sum of Rs.29,42,276/- on various dates. However, the appellant could not complete the construction within the promised period and, therefore, the complainant had filed the complaint claiming refund of the deposited amount along with interest and compensation and cost of litigation Various contentions had been raised by the complainant in her complaint. 3. In the written statement, the appellant had raised several objections. 4. Parties led their evidences before the State Commission. After hearing the learned counsel for the parties and perusing the relevant record, the State Commission has held as under : “15. A perusal of clause 26(a) of the said allotment letter/agreement (Ex.C-2) clearly stated that the company shall complete the construction of the unit within 30 months from the date of start of construction of the said tower or within an extended period of six months subject to “force majeure” conditions. In the present case, the project seems to be far from completion and there is no evidence on record to show that the delay was due to any “force majeure” condition. 16. On merits also it is an admitted fact that the complainant had booked a shop/office space and an agreement dated 26.10.2010 was executed for a total sale price of Rs.34,32,845.04 ps and the construction was to be completed within 30 months of the booking period. The possession was to be delivered upto 25.04.2013 but the same has not been offered till date by the OPs which has resulted in a long and unfruitful wait for the complainant causing harassment due to this delay. 17. The opposite parties also failed to lead any evidence to show that they are having the requisite approvals/permissions/sanctions from the competent authorities for developing the said project. Keeping in view of the above circumstances, we hold that the opposite parties have failed to comply with the provisions of the PAPRA. As per section 3 (General Liabilities of Promoter) of the PAPRA, the opposite parties were required to make full and true disclosure of the nature of his title to the land, on which such project is developed or such building is constructed or is to be constructed, make full and true disclosure of all encumbrances on such land, including any right, title, interest or claim of any party in or over such land. They were also required to give inspection on seven days, notice or demand of the layout of the colony and plan of development works to be executed in a project, as approved by the prescribed authority in the case of a project. However, the opposite parties failed to comply with section 3 of the PAPRA. 18. As per Section 5 (Development of land into Colony) of PAPRA, the opposite parties were liable to obtain permission from the competent authority for developing the project, but they failed to produce on record any such permission. So, they also violated Section 5 of PAPRA. 19. As per Section 9 of PAPRA, every builder is required to maintain a separate account in a scheduled Bank, for depositing the amount deposited by the buyers, who intend to purchase the plots/flats, but no evidence has been led on the record by the opposite parties to prove that any account has been maintained by them in this respect. As such, the opposite parties also violated Section 9 of the PAPRA. 20. Further, as per Section 12 of the PAPRA, if the builder fails to deliver possession of the plot/apartment by the specified date, then the builder is liable to refund the amount deposited by the buyer with interest.” 5. The State Commission for aforesaid reasons, reached to the conclusion that Appellants had been deficient in service and, therefore, ordered for the refund of amount with interest @ 12% p.a. from the date of respective deposits till realization. 6. Counsel for the Appellant during the course of arguments had challenged grant of interest @ 12% p.a. from the respective date of deposits alleging that as per the terms of agreement and the addendum, the appellant had been regularly paying the simple interest @ 12% p.a. to the respondent / complainant from November 2010 till December 2017 and that even if the appellant is made liable to pay interest on the refund, that shall be from the January 2018 till the date of deposit. It is also argued that grant of 12% interest as per Section 17 of PAPRA by the State Commission is beyond the jurisdiction and illegal because Section 17 of PAPRA deals with a situation where the allotment is cancelled by the builder under section 6 (2). It is prayed that direction, therefore, needs to be modified. It is not disputed that till the date of filing of the petition, construction was not complete and no offer of possession had been made. 7. Learned counsel present with the complainant had admitted that under the terms and conditions of the agreement and the addendum, the appellant had been regularly paying simple interest @ 12% p.a. on the deposited amount from November 2010 and that they had received the said interest from the Appellant till December 2017. It is further argued that since the Appellant had failed to make offer of possession within the stipulated period and even beyond that, while refunding the money, they are entitled for the interest. It is argued that since Appellant had agreed by way of addendum and in terms of agreement to pay interest on the deposited amount @ 12% p.a., they should be directed to pay interest on the same rate till the date of payment. 8. We have given our thoughtful consideration to the arguments of learned counsel for the parties. 9. Admittedly, no offer of possession had so far been made by the Appellant to the complainant till the date of filing of complaint and, therefore, the findings of the State Commission qua deficiency in service cannot be said to be illegal or unjustified or not based on evidences. We confirm the findings of the State Commission qua the deficiency of service on the part of the Appellant. 10. Since the Appellant had failed to complete the construction and hand over the possession to the complainant, the complainant is entitled for the refund of the deposited amount. The question is as to how much compensation should be awarded to the respondent for the deficiency committed by the Appellant. The State Commission had awarded compensation @ 12% p.a. from the respective dates of deposit till realization. The State Commission has failed to consider the fact that the Appellant had been paying the interest @ 12% p.a. to the complainant on her deposited amount from November 2010 and had continued to pay the said interest till December 2017. Complainant, therefore, had been compensated for this period. If we award additional interest @ 12% p.a to the complainant for this period as well, it would amount to be giving interest on the deposited amount @ 24% p.a. which certainly is unjust and, therefore, this direction of the State Commission suffers with illegality and infirmity. 11. The State Commission had also granted rate of interest of 12% under Rule 17 of PAPRA. The said rule reads as under : “17. Rate of interest on refund of advance money upon cancellation of agreement. [Sections 6 (2) and 45 (2) (j)] The promoter shall refund full amount collected from the prospective buyers under sub-section (1) of section 6 together with interest thereon at the rate of twelve per cent per annum payable from the date of receipt of amount so collected till the date of re-payment.” 12. From reading of this section, it is apparent that this Section has to be read in conjunction with Sections 6 (2) and 45 (2) (j) of PAPRA. Rule 6 (2) reads as under: “6. Contents of agreement of sale : (2) The promoter shall not cancel unilaterally the agreement of sale entered into under sub-section (1) and if he has sufficient cause to cancel it, he shall give due notice to the other parties to the agreement and tender a refund of the full amount collected together with interest at the rate as may be prescribed.” 13. Conjoint reading of these two rules clearly show that the promoter is liable to pay interest @ 12% p.a. under Rule 17 when the promoter unilaterally cancel the agreement of sale and violates rule 6 ( 2) of the Act. 14. The complainant / respondent is entitled for compensation under Rule 12, which makes her entitled for the refund of the amount where the promoter fails to give the possession in terms of the agreement. This provision imposes a duty on the competent authority to determine the interest which allottee is liable to get in the case where refund is ordered on account of failure of the promoter to hand over the possession as per the terms of the agreement. Therefore, while ordering the refund of the amount of Rs.29,42,276/-, we, under Rule 12 (2) of PAPRA, grant interest @ 12% p.a. w.e.f. January 2018 till the date of payment. We have maintained this rate of interest because it is agreed rate of interest between the parties in terms of the agreement and also the addendum and the Appellant had been paying interest at this rate 15. The Appeal is partly allowed. Following directions are issued : i. Amount of Rs.29,42,276.32/- be refunded to the complainant along with interest @ 12% p.a. from January 2018 till its realization. ii. To pay litigation expenses of Rs.50,000/-. 16. It is submitted by learned counsel for the Appellant that pursuant to order dated 30.05.2018, they had deposited 50% of the awarded amount along with interest and it is submitted that beyond that date of deposit of 50% of the awarded amount, they shall not be liable to pay interest for further period. It is, therefore, made clear that Appellant is liable to pay interest @ 12% p.a. on the total amount till 30.05.2018 and if 50% of the amount of Rs.29,42,276/- had been deposited along with interest @ 12% p.a. with the State Commission, the Appellant is not liable to pay interest on this deposited amount from the date of deposit i.e. 30.05.2018 and is liable to pay interest on balance 50% of Rs.29,42,276/- @ 12% p.a. till payment. The amount which is lying deposited with the State Commission shall be released to the complainant along with interest accrued thereon immediately on an application of the complainant. The appellant is directed to make payment of the balance 50% of the amount of Rs.29,42,276/- along with interest @ 12% from January 2018 till the date of realization within eight weeks from the date of this order failing which the amount shall carry interest @ 18% p.a. 17. With these directions, the Appeal stands disposed of. | 
