PER SUBHASH CHANDRA

        This common order shall dispose of both the above mentioned Appeals since they are filed against the same impugned order dated 07.05.2018 in Complaint No.31 of 2018 of the State Consumer Disputes Redressal Commission, Punjab (for short “the State Commission”).  First Appeal No.1431 of 2018 has been filed by the Opposite Party (hereinafter referred to as “the Developer”) seeking setting aside of the impugned order whereas First Appeal No.1826 of 2019 has been filed by the Complainant seeking enhancement of rate of interest and compensation.  For convenience, the facts are taken from FA No.1431 of 2018.

2.     The State Commission allowed the Complaint with the following directions to the Opposite Party/Appellant herein:

i)        to deliver vacant physical possession of the plot in question, complete in all respects, after obtaining completion certificate within a period of three months to the complainants, from the date of receipt of certified copy of this order;

ii)       to execute the sale/conveyance deed and get the same registered in the name of the complainants after handing over the actual physical possession of the plot in question as per direction (i) above within a period of three months thereafter and the expenses for the same shall be borne by the complainants;

iii)      to pay interest on the deposited amount of ₹28,81,960/- at the rate of 12% per annum with effect from 12.4.2014 Consumer Complaint No.31 of 2018 19 till the date of actual delivery of possession of the plot in question;

iv)      to pay ₹1,00,000/-, as compensation for mental tension and harassment suffered by the complainants including litigation costs.

3.     Against this order, both the Complainants and the Developer have filed the present Appeals.

4.     The Builder has filed the Appeal seeking setting aside of the impugned order on the ground that the State Commission has awarded multiple reliefs for a singular default.  It is also submitted that the rate of interest awarded is also exorbitant.  The Complainant has filed the Appeal seeking enhancement of rate of interest and the compensation.

5.     We have heard the learned Counsel for the parties and perused the material on record carefully.

6.     The admitted facts are that the Complainant had booked a flat with the Developer in his project ‘Omaxe Chandigarh Extn. Punjab on 22.12.2010 on payment of ₹12,15,000/-.  A letter of Allotment dated 12.12.2011 was issued allotting Plot No.821 admeasuring 308.12 sq. yd. for a sale consideration of ₹29,91,652.40ps. as per the Buyer’s Agreement dated 09.01.2012.  On 26.08.2014, The Developer re-allotted plot no.758G1 admeasuring 305.07 sq.yd. at an additional cost of ₹50,000/-

 and maintenance security of ₹30,000/-.  Possession was promised within 18 months from the date of booking with 6 months grace.  However, possession was offered only on 18.06.2017 i.e. after 2½ years after the promised date subject to additional payment of ₹6,07,909.13ps.  In view of the delay and additional costs for a plot of a lesser dimension, Complainant approached the State Commission which ordered in his favour allowing the Complaint. 

7.     The Developer contended that Completion Certificate had been received by it on 10.07.2015 and offer of possession made on 18.06.2017.  Complainant was alleged to have delayed taking over possession and was claiming relief which was contrary to the Hon’ble Supreme Court’s judgment in Supertech Ltd. Vs. Rajni Goyal, Civil Appeal Nos. 6649-50 of 2018 decided on 23.10.2018, 2018 SCC OnLine SC 2114 that one cannot benefit from his own delay.  He also contended that as held by the Hon’ble Supreme Court in DLF Home Developers Ltd. & Anr. Vs. Capital Greens Flat Buyers Association & Ors. (2021) 5 SCC 537, compensation for delay in handing over possession of a flat @ 6% p.a. is adequate recompense and the State Commission’s order of 12% p.a. is excessive.  On the basis of DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda & Ors., (2020) 16 SCC 138, it was further argued that award of multiple compensation by the State Commission for a single deficiency in service was not justified.  It was also argued that as an offer of possession had been made, compensation beyond this date was not warranted.

8.     It was stated by learned Counsel for the Complainants that the possession of the plot had been delayed and therefore, he was entitled to refund with compensation at the rate which the Developer had charged for default in payments as per the Buyer’s Agreement.  It was argued that the compensation awarded by the State Commission was fair and just in light of the fact that various additional amounts had been charged by the Developer from the Complainant at the time of offer of possession by the Developer.

9.     From the foregoing it is evident that the Developer delayed the offer of possession as per the Buyer’s Agreement dated 09.01.2012.  No justification for the reallotment of a plot of a smaller area for a higher sale consideration has been brought on record.  The Developer is, therefore, liable for both deficiency in service under Section 2 (1) (g) of the Act and unfair trade practice under Section 2 (1) (r) of the Act.     

10.    The impugned order directs the taking over of possession by the Complainant on payment of the required dues and the Developer to execute the sale/conveyance deed along with compensation for the delay.  In view of the admitted delay in the offer of possession by the Developer as held by the Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs Govindan Raghavan, (2019) 5 SCC 725, the Complainant is within his rights to refuse to accept possession since the Developer failed to honour its contractual obligations.  The Developer cannot, therefore, compel the Complainant to take over possession.  The

Complainant has, in any case, prayed for refund of his money with compensation.  The order of the State Commission, therefore, warrants interference.

11.    The Hon’ble Supreme court in Wg Cdr Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd. & Ors., (2020) 16 SCC 512 has held that interest @ 6% p.a. is fair and just compensation for the delay in handing over of possession which possession is accepted considering that the Complainant is also being granted possession of a plot which has its own appreciated value.  In the present case, however, possession is not sought.  In cases of refund occasioned due to delay in offer of possession, the Hon’ble Supreme Court has held in Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, C.A. No. 6044 of 2019 decided on 07.04.2022 that ‘interest payable on the amount deposited (has) to be restitutionary and also compensatory (and) interest has to be paid from the date of deposit of these amounts’.  It was also held that interest @ 9% was fair and just. 

13.    The Hon’ble Supreme Court has also held in DLF Homes Panchkula Limited vs. D. S. Dhanda etc., Civil Appeal No.4910-4941 of 2019, decided on 10.05.2019 that awarding multiple compensation for a single deficiency in service is not justified.  Therefore, the award of ₹1 Lakh inclusive of litigation costs along with delay compensation @ 12% p.a. is considered to be unjustified in the facts and circumstances of the case.

14.    For the foregoing reasons, Appeal No.1431 of 2018 is allowed partly and the impugned order of the State Commission is set aside with the following directions:

(i) The Developer shall refund the amount of ₹28,81,960/- to the Complainants with compensation in the form of interest @ 9% p.a. from the respective dates of deposit till the date of offer of possession (18.06.2017) within 8 weeks of this order, failing which the amount shall carry interest @ 12% p.a.;

(ii) The Developer shall also pay litigation costs of ₹50,000/- to the Complainants;

15.    Appeal No.1826 of 2018 filed by the Complainants stands dismissed in view of the order in FA 1431 of 2018.  Pending applications, if any, also stand disposed of.