JUSTICE DEEPA SHARMA, PRESIDING MEMBER

1.     The present appeal has been filed by the appellant/opposite party against the Order dated 23.04.2018 of the State Commission whereby the complaint no. 595 of 2017 was allowed.

2.     Brief facts of the case are that the complainants / respondents booked a flat in the project of appellant Company in “The DLF Valley” situated  in Sector-3, Kalka Pinjore Urban Complex, Panchkula on 30.03.2010.  The complainants were allotted unit no. DVF-E7/29, second floor of 1450 sq. ft. vide allotment letter dated. 03.04.2010 and subsequently on 24.02.2011, Independent Floor buyer’s agreement was also executed in their favour. The respondents/complainants had paid Rs. 31,91,915/- to the appellant against the total sale consideration of Rs. 32,18,999/-. As per clause 11 (a) of the agreement, the appellant promised to deliver possession within 24 months from the date of execution of the agreement i.e. by 23.02.2013. The respondents were, however, offered possession of the said unit on 15.11.2016, after a delay of more than 30 months. The appellant vide possession letter dated 15.11.2016 increased area by 157 sq.ft. and charged Rs. 2,50,000/- for the said increase. It is also stated by the respondents that on paying visit at the site it was found that the unit in question and other amenities/ facilities as promised were not even ready for the possession and work is still to be done by the opposite party.  The act of the appellant of making an offer of possession of the unit which is not complete in all respect has caused undue harassment and mental agony to the respondents. Respondents being aggrieved by the said act of the appellant filed a complaint before state commission for handing over of physical and legal possession of the unit complete in all respect as promised along with  all promised facilities and amenities and to obtain all due permissions and certificates including completion certificate and to pay interest at 24% p.a for delay in handing over of possession  and Rs. 5,00,000/- as compensation for mental agony and harassment and Rs. 75,000/- as litigation cost.

3.    The opposite party had filed its objections in its written statement before the State Commission wherein it contended that the complaint has become infructuous as offer of possession was offered to complainants on 15.11.2016 after receiving Occupancy certificate on 19.07.2016 but neither the possession was taken nor the due amount as raised was paid by the complainants. It was further contended that the project was escalation free and complainants were getting benefit of said escalation on account of construction material/ labour cost and price appreciation. It is also contended that delay was caused due to stay on construction ordered by the High Court and thereafter by Hon’ble Supreme Court due to third party litigation involving acquisition proceedings of land of the litigants in the year 2010 and 2012. Therefore, complainants were offered exit option vide letter dt. 05-06-2013. Having an exit option which they failed to avail and having consented for the extension of time, they had voluntarily waived their rights to raise any grievance.

4.     State Commission vide impugned order allowed the complaint and issued following directions :

 “(i) To hand over physical possession of the unit(s), allotted in favour of the complainant(s), complete in all respects, to the complainant(s), after removing the snags, if any, within a period of 30 days , from the date balance payment, wherever due, is made and documents, are submitted.

(ii) Execute and get registered the sale deed(s) in respect of the unit(s), in question, within one month from the date of handing over of possession to the complainant(s). The stamp duty, registration charges and incidental expenses, if any, shall be borne by the complainant(s).

(iii) To pay compensation, by way of interest @12% p.a., on the deposited amount, to the complainant(s), with effect from 24.02.2014, 17.02.2014, 14.02.2014, 31.01.2014 & 13.12.2013 respectively up-till two months from the date of offer of possession i.e. up-to 14.01.2017, 02.04.2016, 14.01.2017, 13.03.2016 & 14.12.2016 respectively, [w.e.f. due date(s) of possession in respect of deposits made up-to the said due date and from respective dates of deposits in respect of amount(s) paid after the said due date] ,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% p.a., instead of 12% p.a., from the date of default i.e. after expiry of 45 days period, till realization.

(Since the Opposite Parties have given a credit of Rs.8,20,269/- & Rs.6,07,202/- in CC Nos.804 of 2017 & 11 of 2018 respectively, on account of delay compensation, this amount shall be reduced/deducted from the compensation amount arrived at by way of interest @12% on the deposited amount for the delay period).

Further for failure of Opposite Parties 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% p.a. on the deposited amount for each month, till possession is delivered, shall be payable by 10^th   of the following month and failure shall entail penal interest @15% p.a., instead of 12% p.a., from the date of default till payment is made.

(iv) 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 litigation costs of Rs.35,000/-, in each case, to the complainant(s), within 45 days from the date of receipt of a certified copy of the order, failing which, the said amount shall carry interest @12% p.a., from the date of filing the complaint(s) till realization.”

 5.      In this case, none for the respondents / complainants has attended the proceedings despite service of the process.  The Court proceeded with the matter in the absence of the complainants and also in view of the fact that learned counsel for the Appellant submits that it is a covered case covered by the order of the Hon’ble Supreme Court in DLF Homes Panchkula Pvt. Ltd.  Vs. D.S.Dhanda Etc. Etc. Civil Appeal Nos. 4910-4941 / 2019 & DLF Homes Panchkula Pvt. Ltd. & Anr. Vs. Sudesh Goyal Etc, Civil Appeal Nos. 4942-4945/2019 decided on 10.05.2019 and that a similar order can be passed in this matter as Hon’ble Supreme Court in the case of D.S.Dhanda (supra) in respect of same project while passing the order has granted compensation by way of interest @ 9% p.a. on the deposited amount.   

6.       It is submitted that State Commission has committed an illegality by awarding 12% interest p.a.  It is submitted that it will create disparity among similarly placed persons since complainants covered by the above orders of the Hon’ble Supreme Court will be getting compensation @ 9% p.a. and the complainants would be getting compensation @ 12% p.a.  It is further submitted that this illegality needs to be removed.

7.     We have heard arguments of the learned counsel and perused the file.  We have also perused the judgment in the case of D.S.Dhanda ( supra) and Sudesh Goyal (supra).  We are satisfied that these matters decided by the Hon’ble Supreme Court also relate to the same project i.e. “DLF Valley” and the same issues which have been raised in the complaint by the complainants have been dealt with and decided by the Hon’ble Supreme Court.  Relating to the project “DLF Valley”, the Hon’ble Supreme Court in the case of D.S. Dhanda (supra) has dealt with all the issues relating to project in question and it has been held as under:

“18. xxxxxxxxxx Thus, keeping in view the said principle laid down in the aforesaid judgment, the amount of the interest is the compensation to the beneficiary deprived of the use of the investment made by the complainant. Therefore, such interest will take into its ambit, the consequences of delay in not handing over his possession. In fact, we find that the learned SCDRC as well as NCDRC has awarded compensation under different heads on account of singular default of not handing over possession. Such award under various heads in respect of the same default is not sustainable.

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 the one of the causes for late 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:

i) To send a copy of the occupation certificate to the Complainants along with offer of possession. The Appellant shall also direct the Jones Lang LaSalle - 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.

ii) 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.

 iii) Such maintenance work shall be completed by the Appellant within two months of the offer of possession but 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.

v) 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.

vi) 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.”

8.       The Hon’ble Supreme Court in the said case granted compensation by way of interest @ 9% p.a.  The facts in the case of D.S Dhanda (supra) and the facts before this Commission in the present Appeal are similar and identical and relates to same project “DLF Valley”.   We are satisfied that State Commission has committed an illegality while awarding compensation by way of interest @ 12% p.a.  The order of the State Commission stands modified to the effect that complainants would be entitled to the compensation by way of interest @ 9% p.a. The Hon’ble Supreme Court has awarded compensation only for a period of two months from the date of offer of possession.  While modifying the order of the State Commission, we issue the following directions which are in consonance with the directions issued by the Hon’ble Supreme Court in D.S Dhanda’s case. 

i)         To send a copy of the occupation certificate to the complainants along with offer of possession.   In case the copy of the occupation certificate is not provided to the respondents / complainants, the Appellant is directed to send copy of the occupation certificate to the complainants along with fresh offer of possession.

 ii)      The Appellant is also directed to undertake such maintenance works as is necessary on account of damage due to non occupation of the flats after construction etc.

iii)      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. 

iv)      The complainants shall be entitled for payment of interest at the rate of 9 per cent per annum for a period of two months from the date of offer of possession.

v)       The Appellant shall also pay sum of Rs.50,000/- to the complainants towards mental agony and litigation expenses etc.

vi)      Complainants shall  not be entitled to any other amount over and above the above mentioned amount. 

vii)     The complainants / respondents are also directed to make the payment of the balance sum and other miscellaneous charges for example stamp duty and other incidental charges for getting the registration done within four weeks to the Appellant after receiving certified copy of this order and respondents / complainants shall, thereafter, execute sale deed within four weeks thereafter.

9.       With these directions, the present Appeal stands disposed of.