For the Appellants        :       Mr. K. L. Janjani, Advocate

For the Respondents    :       Mr. Rishabh Singhle, Advocate                                                       Ms. Shabana Khatun, Advocate

ORDER

This Appeal under Section 19 of the Consumer Protection Act, 1986 (in short “the Act”) challenges the order dated 05.02.2019 of the State Consumer Disputes Redressal Commission, Rajasthan (for short “the State Commission”) in Complaint No.134 of 2016 allowing the complaint and directing the Appellant herein to hand over possession of the flat to the Respondent within one month from the date of deposit of the due amount including the stamp duty fee along with interest @ 18% p.a. on the amount deposited from the date of deposit till the date of handing over of position and ₹2,00,000/- for mental torture and ₹50,000/- as litigation costs along with interest @ 9% p.a. from the date of complaint within two months of this order.

2.     I have heard learned counsel for both the parties and perused the record.

3.     The Appellant contended that the delay in filing of the present Appeal was on account of administrative reasons within the Appellant Housing Board which required internal approvals including of the Pre-Litigation Committee and, therefore, the delay of 33 days in filing of the Appeal be condoned.  For the reasons stated, the delay is condoned.

4.     The brief facts of the case are that the Appellant promoted a self-financing scheme of 360 flats in the Middle Income Group B (S+9) in the year 2013.  Respondent was allotted flat No.8/MB/B-1/804/81 through lottery vide letter dated 10.10.2014.  The estimated cost of the house with service tax was ₹29,60,000/- and the construction was proposed to be completed in 30 months.  According to the Appellant, the cost and the time for construction was tentative and that for various reasons including delays in payments by allottees, the self-financing project was delayed and possession was offered on 22.03.2017 along with additional cost as per actuals.  Vide letter dated 08.09.2017/14.10.2017, Respondent was authorised to take possession.  On 11.09.2017, the Respondent took offer of possession.  However, on 21.12.2016, Complaint No.134 of 2016 was filed before the State Commission by the REspondent which came to be disposed of vide the order dated 05.02.2019 which is impugned before this Commission.

5.     The Appellant contends that the Appellant Board works on a non-profit basis and the house under a Self Financing Scheme was allotted to the Respondent tentatively estimated at ₹29,60,000/- subject to finalization of costs of completion.  The Respondent had taken over possession of the flat.  However, the impugned order had awarded an excessive rate of interest at 18% for delay which was contrary to the directions of the Hon’ble Supreme Court work and this Commission in similar matters.

6.     Per contra, learned Counsel for the Respondent submits that he had made all the payments in time and had also paid the additional amount of ₹7,57,338/-.  It was contended that on account of delay, he had incurred expenditure on rented accommodation and additional liability on account of interest on loan from the Bank towards the payment of the cost of the flat in question.  It was argued that since the penal rate charged by the Appellant for delay in payment was 18%, he should be compensated at the same rate of interest for the delay in handing over of possession.  It was, therefore, argued that the order of the State Commission was fair and just and should be upheld.

7.     The issue falls for consideration is whether the Appellant was liable to compensate the Respondent for delay in handing over possession and whether the Appellant was justified in claiming that the rate of interest awarded by the State Commission was excessive. 

8.     Admittedly, there has been a delay on part of the Appellant in handing over possession of the subject flat.  It is not disputed that the Respondent paid all the installments in time.  The contention of the Appellant is that the timeline communicated and the price was only tentative.  In view of the fact that the Appellant is Statutory Body of the State Government and works on non-profit basis, the contention that the price of the flat was tentative can be considered since it was contingent upon payments by the prospective allottees and there were likely delays in payments of the instalments.  The Respondent/Complainant’s case before the State Commission was that the Appellant delayed in handing over possession despite timely payments being made by him.  The State Commission has ordered as below:

ORDER

Thus the dispute of the complainant is admitted and order is passed that opposite party shall hand over possession of the flat within one month after the complainant deposits the due amount and stamp duty fee etc. opposite party shall issue noticed and complainant shall deposit due amount within 15 days from the date of receipt of the notice and opposite party shall hand over possession of the said fiat to the complainant within one month from the date of deposit of due amount and the registry be executed in favour of complainant.

Opposite party shall pay 18 percent interest to complainant on the amount deposited by complainant from time to time from the date of deposit till the date of giving possession to complainant. This amount shall be adjusted against the excess amount out standing in the name of complainant. If amount is in excess with the opposite party, then the said amount shall be paid to the complainant with a notice. If the said amount is less than the opposite party has to issue notice in aforesaid manner, and the complainant shall be made to deposit that amount

Opposite party has to pay the compensation amount Rs.2,00,000/- (in words Two Lakh Rupees) against mental torture to the complainant and Rs.50,000/- (in words fifty thousand rupees) against cost of dispute with 09 percent interest yearly from the date of institution of the dispute 21.12.2016 which shall be paid within two months from the date of order.

9.     In cases where deficiency in handing over possession is established, the Hon’ble Supreme Court and this Commission have in a catena of judgments, notably in Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, Civil Appeal No. 6044 of 2019 decided on 07.04.2022 and Wg Cdr Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd. & Ors., (2020) 16 SCC 512 have held that the compensation should be fair and just for the delay in handing over of possession till the date of offer of possession.  Although the Respondent has claimed compensation in the form of interest @ 18% p.a., the Appellant has not charged this rate of interest in view of the fact that the payments by the Respondent were made in a timely fashion and therefore, the claim of reciprocity cannot be considered.  

10.    In the instant case, it has not been established by the Respondent whether there was delay by the Appellant in handing over of the flat in question through a promised date of possession.  Admittedly, the scheme was one of the Self Financing flats being constructed under a Self Financing Scheme by the Appellant in which the cost was kept as tentative.  Upon being intimated the final cost, the Respondent was required to make the final payment and take possession.  The final instalment was sought by the Appellant on 22.03.2017. This amount was deposited by the Respondent and there some further delay in handing over of the possession.  By way of the impugned order, the parties were directed to conclude the process of payment of the balance amount, if any, followed by the necessary registration and conveyance on formalities within a defined frame of time which has now been done and possession handed over. 

11.    In DLF Homes Panchkula Limited vs. D. S. Dhanda etc., Civil Appeal No.4910-4941 of 2019, decided on 10.05.2019, the Hon’ble Supreme Court has held that awarding of multiple compensation for a single act of deficiency is not justifiable.  This proposition of law has been reiterated in a catena of judgments of the Hon’ble Supreme Court and this Commission and is well settled.  In view of the fact that in cases where possession is handed over, the Hon’ble Supreme Court has been awarding compensation @ 6% p.a. as held in Wg Cdr Arifur Rahman Khan (supra), this Appeal is found to have merits and is disposed of with the following directions:

(i)     The Appellant shall pay compensation for delay to the Respondent in the form of interest @ 6% p.a. from the dates of deposit till the date of offer of possession.

(ii)    The Appellant shall pay costs of ₹50,000/-.

(iii)    Directions regarding payment of compensation of ₹2 Lakhs towards mental torture and ₹50,000/- towards costs with interest @ 9% p.a. are set aside.

12.     Pending applications, if any, also stand disposed of.