PER MR SUBHASH CHANDRA, MEMBER

                The present Appeal, under Section 19 of the Consumer Protection Act, 1986 (for short, ‘the Act’) has been filed by the Appellant against the order dated 16.11.2017 of the State Consumer Disputes Redressal Commission, UT Chandigarh (for short, ‘the State Commission’) in Consumer Complaint no. 377 of 2017, wherein the complaint filed by the Respondent was allowed.

2.     The brief facts of the case are that the Appellant launched a residential plotted colony project ‘The Valley’ at Sector 3, Pinjore-Kalka Urban Complex. The Respondent approached the Appellant for provisional allotment of an independent floor in the project viz., DLF Valley, Panchkula. Accordingly, the Respondent was allotted an independent floor bearing no. DVF – D2/6 FF vide allotment letter dated 03.04.2010 and subsequently, an independent Floor Buyer’s Agreement dated 10.02.2011 was executed between the Appellant and Respondent. As per Clause 11 (a) of the said agreement, the Appellant had endeavoured to complete the construction of the said project within 24 months plus one year extended period. The Appellant received the Occupancy Certificate on 02.05.2016 and subsequently, on 15.11.2016 offered possession of the independent floor to the Respondent and requested the Respondent to remit outstanding dues and furnish documents in order to facilitate the conveyance of the independent floor. On 02.05.2017 the Complainant, alleging deficiency of service on the ground that the Appellant/ Opposite Party failed to fulfil the obligation of completing construction and delivering possession in timely manner, filed a Consumer Complaint before the State Commission with the following prayer:-

1. To direct the Opposite Parties to deliver the habitable, devoid free, possession of floor along with all integral, essential and vital amenities and facilities promised with the said unit;

2. To direct the Opposite Parties to pay delayed interest calculated @ 18% per annum on deposited amount from the date of first deposit till its actual realisation;

3. To pay Rs.5.00 lakh as mental agony on account of deficiency in service;

4. To pay Rs.55,000/- as litigation cost.

3.     The stand of the Appellant/ OP was that construction could not be completed on account of stay granted on construction activities by the Hon’ble Supreme Court which operated from 19.04.2012 to 12.12.2012. Thereafter, the Appellant sought consent from the Complainant to extend the period of handing over possession by one year vide letter dated 20.05.2013. In the alternative, an option was given to get back the money deposited by the Complainant along with simple interest at the rate of 9% per annum. It is also pointed out that occupation certificate has since been received for the units for which construction was complete.

4.     The State Commission having heard the Counsels for the parties and also considering the evidence and material placed on record, held as under:

“The Opposite Parties shall remove the snags/ deficiencies in the unit (s) in question, within 30 days from the date of receipt of certified copy of the order.

The Opposite parties, in these cases, are further jointly and severally held liable and directed as under:-

1. Execute and get registered the sale deed in respect of the unit, in question, within two months from the date of receipt of certified copy of the order. The stamp duty, registration charges and incidental expenses, if any, shall be borne by the complainant(s).

2. To pay compensation, by way of interest @12% per annum on the deposited amount (s), to the complainant (s) with effect from 10.02.2014 and 07.01.2014 till 14.01.2017 and 04.12.2016 respectively 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% per annum instead of 12% per annum from the date of default, till realisation.

Further for failure of Opposite Party to deliver possession within 30 days from the date of making payment/ submission of documents by the complainant (s), for such delay, beyond 30 days, compensation by way of interest @12% per annum on the deposited amount, till the date of possession was delivered, shall be payable within 45 days from the date of receipt of certified copy of this order and failure shall entail penal interest @ 15% per annum instead of 12% per annum till payment is made.

3. Pay compensation in the sum of Rs.1,50,000/- in each case on account of mental agony, physical harassment and deficiency in service and Rs.35,000/- in each case, as litigation costs, to the complainant (s) within 45 days from the date of receipt of a certified copy of this order, failing which, the said amount shall carry interest @ 12% per annum, from the date of filing the complaint till the date of realisation”.

5.     Aggrieved by the order of the State Commission, Appellant/ Opposite Party have preferred the instant First Appeal before this Commission.

6.     We have heard the learned Counsels for the parties and carefully perused the record. During the course of arguments the learned Counsels for both the parties submitted that the present case is squarely covered by the judgment of the Hon’ble Supreme Court in DLF Homes Panchkula Limited vs D S Dhanda etc., in Civil Appeal no. 4910-4941 of 2019 decided on 10.05.2019 and prayed that similar directions be issued in this matter. It was further submitted that possession has been taken by the complainant.

7.     In DLF Homes Panchkula Limits vs D S Dhanda the Complainant booked a built up flat for purchase on 30.03.2010 in the same project as in this case. The Buyer’s Agreement was executed on 11.02.2011. The possession of the unit was contemplated to be delivered within 24 months from the date of execution of the agreement, i.e., by 10.02.2013 failing which the Appellant was liable to pay Rs.10/- per sq ft per month for the period of delay. Complaints were filed before the State Commission alleging delay in delivery of possession of the escalation free flats and compensation on account of delay in handing over possession including mental agony and litigation expenses etc. Appeals were filed before this Commission which was pleased to dispose of the same by partially modifying the order of the State Commission. Thereafter, an Appeal was directed against the decision of this Commission.

8.     The Hon’ble Supreme Court in the aforementioned matter was pleased to pass the following directions:

“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 one of the causes for later 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:

1. To send a copy of the occupation certificate to the Complainants along with offer of possession. The Appellant shall also direct Jones Lang La Salle – 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.,;
2. 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;
3. Such maintenance work shall be completed by the Appellant within two months of the offer of possession by 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;
4. 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;
5. 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.”

9.     We have perused the records and given our thoughtful consideration to the averments of both parties. We are of the view that since possession has been taken by the Complainant as submitted by the learned Counsels during hearing on 22.07.2021 though it is much after the promised date of handing over as per Clause 11 (a) of the Agreement dated 10.02.2011 which promised possession after 24 months, payment of interest from dates of deposits is not justified. The agreement does not provide compensation per square feet for such a delay. Therefore, in view of the admitted delay in handing over the possession of the said flat to the Complainant it would meet the ends of justice if the OP is directed to compensate the Complainant for the period of delay from the promised date of completion to the actual date of handing over possession as follows:

1. Compensation @ 9% simple interest per annum on the deposited amount for the period 11.02.2013 to the date of handing over possession of the flat to be paid by the OP to the Complainant;
2. Order be complied within three months of receipt of this order failing which simple interest @ 12% per annum till the payment is made; and
3. No costs.