JUSTICE A.P. SAHI, PRESIDENT

IA/3582/2017

1. This application has been moved praying for condoning the delay of 30 days in the filing of the appeal. The cause shown is sufficient. The delay is condoned and the appeal shall be treated to be within time.

Appeal

2. The complainant/ respondent had booked a flat in the project Courtyard developed by the appellant. The builder-buyer agreement was entered into on 16.06.2011 and the accepted delivery period was 24 months which extended to 15.06.2013. These facts are not disputed.
3. The project was delayed and alleging deficiency, the respondent/ complainant, who was a resident of Australia through a power of attorney holder, filed Consumer Complaint No. 221 of 2015 that was allowed by the State Consumer Disputes Redressal Commission, UT Chandigarh on 29.01.2016. The State Commission came to the conclusion that the appellant is liable to receive only a sum of Rs.5,79,256/- out of the payment raised to the tune of Rs.7,05,799/- and further found that the complainant was  entitled to possession and also entitled to a penalty @ Rs.7,000/- per month in accordance with the provisions of clause 9 of the agreement with effect from 15.06.2013 till 31.01.2016.
4. The delay compensation for delivering possession was additionally awarded @ Rs.7,000/- after 01.02.2016 by the 10^th of succeeding month till actual handing over of physical possession.
5. In addition thereto a sum of Rs.1,50,000/- for mental agony was granted  and the cost of litigation of Rs.50,000/-.
6. Mr. Ray, learned counsel for the appellant- builder has at the outset stated that he is contesting  only three heads in this appeal, namely, the award of compensation @ Rs.7,000/- per month beyond 01.02.2016, which is relief no. (v), award of Rs.1,50,000/- as compensation, relief no. (vi) and the award of Rs.50,000/- towards costs, which is relief no. (vii).
7. The issue of any delay beyond 01.02.2016 has been contested urging that it was the respondent who defaulted by not making payments and for which default notices were regularly sent to the respondent. For this he has invited the attention of the Bench to the payment notice dated 12.06.2015, which is Annexure -11 on record. He submits that subsequently, the Default Reminder-1 was sent on 18.08.2015, which is Annexure-12 to the appeal. He has then submitted that the complainant on 01.09.2015 sent an email stating that he was willing to make payment but he wanted his account to be reconciled explaining the outstanding amounts which needed to be ascertained. It is the case of the learned counsel for the appellant that the respondent very well knew of the outstanding payments that were to be made by him but he failed to respond.
8. Learned counsel for the respondent on the other hand urged that the order of the State Commission was passed on 29.01.2016. The appellant instead of complying with the order  and handing over possession, filed this appeal and an interim order was passed on 26.04.2016, which is extracted herein under:

“Heard Learned Counsel for appellant.

Issue notice of Memo of Appeal alongwith application for condonation of delay to respondent.

Learned Counsel for respondent accepts notice and submitted that he would be filing his vakalatnama shortly with the Registry.

Operation of impugned order except direction No. (ii) in para 24 of impugned order is stayed till further orders.

Adjourned to 9.12.2016 for final hearing at admission stage.

Put up alongwith FA No. 318 of 2016”
 

9. It is urged that because of the passing of the interim order the appellant resisted the execution of the order even though relief no. (ii) for handing over possession had not been stayed. The possession was not handed over to the complainant and therefore the complainant had to file execution application no. 151 of 2017 along with which the obligation of the complainant to make payment was discharged by depositing the amount as directed by the State Commission to the tune of Rs.5,79,256/- as contained in paragraph 19 of the said order. The possession was delivered on 24.05.2017 only after the execution was filed and therefore there was no delay of any payment by the complainant/ respondent. The possession was facilitated only after intervention at the execution stage. In this background the complainant is entitled to the payment of delay compensation up to 24.05.2017 and consequently the relief granted in paragraph 24 (v) is beyond challenge.
10. It may be pointed out that the respondent has not questioned the correctness of the impugned order and has defended the same.
11.  We have considered the submissions raised and also perused the default notices dispatched by the appellant. From the facts on record it is evident that the delivery of possession as directed by the State Commission order dated 29.01.2016 had not been stayed by this Commission. There is also nothing on record to indicate that the respondent/ complainant immediately tendered the amount of Rs.5,79,256/- to the appellant. The interim order had not prevented the making of the payment nor had it prevented the handing over of possession by the appellant. Admittedly, the amount of Rs.5,79,256/- that was to be paid by the complainant was tendered along with the execution application and not before that. The possession was handed over only with the intervention of the executing court but the fact remains that the amount of Rs.5,79,256/- was deposited only on 24.05.2017. Both the acts were performed almost simultaneously.
12. The contention of the learned counsel for the respondent-complainant is that it is till this date that the relief granted under paragraph 24 (v) deserves to be implemented and may not be interfered with as the respondent was ever willing to pay the amount as directed by the State Commission vide order dated 29.01.2016.
13. Learned counsel also submits that the compensation of Rs.1,50,000/- for mental agony and harassment also does not deserve any interference nor does the cost of litigation require any reduction.
14. We may point out that so far as the mental agony physical harassment in a case pertaining to delay in possession is concerned, the same may not be justified keeping in view the law laid down by the Apex Court in the case of DLF Homes Panchkula Pvt. Ltd. vs. D. S. Dhanda, (2020) 16 SCC 318. The said decision has found approval in the decision of Suneja Towers Private Limited & Anr. Vs. Anita Mechant, (2023) 9 SCC 194, Paragraph 34. Thus, to that extent learned counsel for the appellant, Mr. Ray is right in his submission that the same cannot be sustained and the same is accordingly set aside.
15. Coming to the issue relating to delay compensation, the compensation has to be paid from 15.06.2013 to 31.01.2016 about which there is hardly any contest and therefore the order of the State Commission contained in paragraph 24 (iv) is hereby confirmed.
16. Coming to the payment directed by the State commission with effect from 01.02.2016 onwards is concerned the same is being claimed by the respondent up to 24.05.2017, which is the date on which the actual physical possession was delivered.
17. In our considered opinion to balance the equities, the complainant also had not paid the amount of Rs.5,79,256/- during this period and it was only upon the filing of the execution application that this amount was tendered. The amount was retained by the respondent-complainant and was in all probability withheld till possession was actually given during execution proceedings. It could have been tendered before the executing forum to be retained till possession was given to bonafidely comply with the order dated 29.01.2016. It may be that since an appeal was filed by the appellant, he was also awaiting a final outcome but there was no stay on the direction for handing over possession. To understand the manner of compliance, the order contained in Para 24 (ii) of the State Commission dated 29.01.2016 impugned herein has to be read with the stay order dated 26.04.2016 quoted hereinabove. It is trite to remember that a stay of an impugned order is only putting it in abeyance pending final decision. Needless to mention that all interim orders merge with the passing of the final order subject to the terms of the final order. While passing final orders the adjudicating authority is also obliged to reflect on any advantage or otherwise any relief to be adjusted if granted at the interim stage while disposing of the matter as may be necessary. Consequently, the direction of the State Commission needs an exact reproduction, which is extracted herein under:

“47 (ii) The Opposite Parties shall jointly and severally hand over the legal physical possession of the unit, in question, within a period of two months, to the complainant, from the date of receipt of a certified copy of this order after receiving an amount of Rs.5,79,256/- from the complainant as set out in para No. 19 above.”

Since the order refers to Para 19 thereof the same is also reproduced herein under:

“19.    Now the question arises, as to what amount is required to be paid by the complainant, to the Opposite Parties. It is an admitted fact that out of the total product cost of Rs.38,01,699/-, a per Annexure R-2, the complainant had paid an amount of Rs.30,95,900/-. According to the Opposite Parties, the complainant is required to pay an amount of Rs.7,05,799/-. After going through Annexure R-2, we are of the view that the complainant is required to pay the following amounts :-

Thus, as per the calculations made in the table above, the Opposite Parties, are legally entitled to only Rs.5,79,256/-, out of the demanded amount of Rs.7,05,799/- raised by them from the complainant vide Annexure R-2, under various heads, as discussed hereinbefore.

18. The above details therefore indicate the payments on various heads that was found payable by the complainant. This includes substantial payments that were due against the complainant and remained unpaid till 24.05.2017. This was to be paid and as per the direction under Para 24 (ii), possession  was to be handed over “after receipt of payment.” In the instant case the event of payment took place simultaneously  at the time when possession was facilitated through the intervention of execution on 24.05.2017. In these peculiar circumstances, the satisfaction of payment and possession came together at the same time. Had the amount been actually deposited immediately before the State Commission on the passing of the order on 29.01.2016, the complainant would have certainly been justified in claiming the delay compensation between 01.02.2016 to 24.05.2017, but in the given facts the amount payable had not actually been parted with by the complainant till 24.05.2017. Needless, to mention that the demands had been raised by the appellant through letters in 2015 itself that was to the extent calculated was found payable by the State Commission. 
19. We therefore do not find any justification for allowing the delay compensation w.e.f. 01.02.2016 onwards. Consequently, to that extent the directions contained in paragraph 24 (v) of the impugned order of the State Commission is set aside.
20. We find no justification to interfere with the costs awarded to the respondent to the tune of Rs.50,000/-, which is hereby confirmed.
21. The appeal is therefore partly allowed to the aforesaid extent.