ORDER (ORAL)         

IA 9470 of 2019 (condonation of delay)

          This Application has been filed by the Appellant seeking condonation of delay of 104 days in filing of the Appeal.

          Learned Counsel for the Respondent/Complainant submits that he has no objection if the Application be allowed and the delay is condoned subject to costs.

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          In view of the no objection on behalf of the Respondent/Complainant, the Application is allowed and the delay in filing of the Appeal is condoned, subject to payment of costs of ₹10,000/-.  The costs shall be paid by the Appellant to the Respondent/Complainant by way of Demand Draft within four weeks.

          The Application stands disposed of.

Appeal No.996 of 2019

          Heard the arguments.

2.      The brief facts of the case are that the Appellant had started a project named as “Omaxe Chandigarh Extn.” at Mullanpur LPA inviting applications.  The Respondent (hereinafter referred as “the Complainant”) applied for allotment of a plot.  Accordingly, plot No.OCE/11/1039 measuring 301.38 sq. yards for a total consideration of ₹30,22,847.17ps. was allotted to it.  The Complainant was also required to pay EDC, PLC etc.  The delivery of the subject plot was to be done within 18 months + 6 months from the date of signing of the allotment letter dated 20.07.2012.  The Appellant, however, had failed to deliver the possession within the stipulated period.  Aggrieved by the said act of the Appellant, the Complainant filed the Complaint before the State Commission.

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3.      In the Complaint, the Complainant had taken up several contentions including the delay and claimed compensation for the deficiency in service on the part of the Appellant.    

4.      In the Written Statement, the Appellant had taken up several contentions on merits.  The main contention had been that as soon as the Completion Certificate was obtained, the possession was offered to the Complainant and therefore, there was no deficiency in service on their part.

5.      The State Commission heard the arguments of learned Counsel for the parties and perused the record.  The State Commission reached to the conclusion that undisputed facts on record clearly show that the possession was not offered within the stipulated period totalling 24 months from the date of execution of the agreement dated 20.07.2012 which amounted to deficiency in service on the part of the Appellant.  Hence, the State Commission made the Appellant liable to pay compensation to the Complainant.  Following directions were issued by the State Commission:

In CC No.518 of 2017, the opposite party is directed as under:-

1. To execute and get registered sale deed, in respect of the plot, in question, possession of which had already been taken over on 13.08.2018, in favour of the complainants, within two

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months, from the date of receipt of a certified copy of this order, on payment of registration and stamp duty charges, by them to the Registering Authorities and any other amount legally due, if any.

2. To pay compensation, by way of interest @12% p.a., on the entire deposited amount, to the complainant, from 19.06.2014 (committed date) till 08.10.2017 (15 days of offering possession vide letter dated 23.09.2017 Annexure OP-8), within two months, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount shall carry penal interest @15% p.a. instead of 12% p.a., till realization.
3. To pay compensation, in the sum of Rs.1,50,000/-, on account of mental agony, physical harassment, caused to the complainant, deficiency in providing service and adopting unfair trade practice, within two months from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @ 12% p.a., from the date of filing this complaint till realization.
4. To pay cost of litigation, to the tune of Rs.50,000/- to the complainant, within two months from the date of receipt of a certified copy of this order, failing which, the same shall also carry interest @12% p.a., from the date of filing this complaint till realization.
5. In this complaint, while taking over possession of the plot on 13.08.2018, the complainant has pointed out various short-comings at the site (already brought to the notice of the opposite parties on 21.05.2018), which have been brought to the notice of this Commission, by way of filing Miscellaneous Application bearing No.504 of 2018 on 12.09.2018. The opposite party is directed to provide water, electricity, sewerage treatment plan; gated security; street lights, before construction of house on the plot is started by the complainant, failing which, they shall further be liable to pay interest @9% p.a., on the deposited amount, from the date of filing this complaint, till realization i.e. till the aforementioned facilities are provided. As far as provision of Club house is concerned, the complainant can use the Club house already provided in the adjoining phase of the project, till the same is constructed in their area.”

6.      These directions have been impugned before this Commission by the Appellant.  It is contended that pursuant to the directions issued by the State Commission, the Sale Deed has been executed in favour of the Complainant.  It is contended that

the compensation by way of interest @ 12% p.a. is towards higher side.  It is also submitted that once compensation in the form of interest had been awarded, the grant of compensation in other heads like mental agony, physical harassment etc. is uncalled for and therefore, the impugned order suffers with infirmity and illegality and is liable to be set aside.

7.      It is submitted by the learned Counsel for the Complainant on instructions that the Complainant is agreeable to grant of interest @ 9% p.a. which has been pronounced by the Hon’ble Supreme Court in several cases relating to the Consumer Protection Act.

8.      I have perused the relevant record.

9.      The admitted facts of the case are that the possession of the plot was to be handed over within 24 months which included                      18 months + 6 months grace period subject to force majeure but the possession was not offered within that stipulated period.  The possession was handed over only during the pendency of the Complaint before the State Commission.  Hence, there is                     no illegality or infirmity in the impugned order whereby the State Commission has concluded that the Appellant is guilty of deficiency in service.  Since the Sale Deed has already been

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executed in favour of the Complainant and since the Hon’ble Supreme Court in “DLF Homes Panchkula Limited vs. D. S. Dhanda etc. (2020) 16 SCC 318” has held that simple interest                      @ 9% p.a. is a reasonable compensation and that the compensation under different heads should not be granted, I modify the impugned order to the following terms: 

1. The Appellant is directed to pay compensation by way of interest @ 9% p.a. on the entire deposited amount from 19.06.2014 (due date of delivery) till 08.10.2017 (15 days of offering possession vide letter dated 23.09.2017 Annexure OP-8) within eight weeks from this order, failing which the said amount shall carry penal interest @ 12% p.a. till realization;

(ii)      The Appellant is directed to pay costs of litigation to the tune of ₹50,000/- to the Complainant, as awarded by the State Commission.

10.    With these directions, the present Appeal stands disposed of.  Execution of the entire unpaid amount shall be filed before the State Commission.