1.            The present Appeal has been filed against the Order dated against the Order dated 11.03.2015, passed by the Delhi State Consumer Disputes Redressal Commission at New Delhi (hereinafter to be referred to as the State Commission) in Complaint Case No. 174 of 2012, whereby the Complaint, filed by Mrs. Sunita Raheja (hereinafter to be referred to as the Complainant/Respondent) was allowed and the Opposite Party/Appellant herein i.e. Parsvnath Developers Limited (hereinafter referredto as the Appellant Company) was directed to refund the amount of ₹11,50,000/- along with interest @18% p.a. from the date of deposit alongwith a sum of ₹5,00,000/- towards Compensation and ₹1,00,000/-towards the cost of litigation.

2.            Brief facts of the case as narrated in the Complaint are that complaint the Complainants/Respondents entered into an Agreement dated 15.02.2005 with the Opposite Party/Appellant Company for allotment of a residential plot of 400 square yards in Appellant Company's project in Sonipat, and paid a sum of ₹5,75,000/- towards part consideration vide Cheque No. 652757, dated 15.02.2005 against a receipt, i.e., Receipt No. PH001367 dated 22.02.2005 issued by the Appellant Company. The Plot was to be allotted within 6 months of the Agreement i.e. by 15.08.2005. Complainants made additional payments of ₹1,78,000 vide cheque No. 503404 and ₹3,97,000 vide cheque No.722798 as demanded by the Appellant Company vide letter dated 04.01.2006 for allotment of the plot. It is the case of the Complainants that they kept calling the Opposite Party/ Appellant Company and followed up with their officers for allotment of the Plot in terms of the Agreement dated 15.02.2005. Despite various reminders and visits, the Opposite Party/ Appellant Company failed to allot the Plot. Complainants served legal notice, dated 29.03.2011, calling upon the Appellant Company to either allot a Plot or refund ₹11,50,000/- with 24% interest per annum along with ₹10,00,000/- as damages/compensation for mental harassment and ₹10,000/- as cost incurred on legal expenses within 15 days of receipt of Legal Notice, but to no avail.  Alleging deficiency in service on the part of the Appellant Company, the Respondents/Complainants filed a Consumer Complaint before the State Commission. 

3.            The Appellant Company contested the Complaint before the State Commission by submitting Complainant was not "Consumer" as the plot was purchased for commercial purposes. It was further submitted that the matter involved complex questions of law and hence required detailed evidence to be proved in order to ascertain the claims, hence the same should be taken up by a Civil Court. It was urged that no interest @24% was due and payable to the Complainants as per the Agreement between the parties. It was submitted that as per clause (d) of the agreement, in case the Appellant Company failed to allot a plot within a period of one year, from the date of making the payment, then the Complainants had the option of withdrawing the money by giving one month notice, however, they themselves opted to go forward with the registration instead.  It was prayed that the Consumer Complaint be dismissed.

4.            After hearing both the parties and perusal of material on record, the State Commission partly allowed the Complaint in above terms by observing as under:-

“OP contended that as per the agreement he was required to handover the possession of the plot within a period of six months. Agreement further provides that in case of the failure of the OP to allot the plot within a period of nine months, the amount deposited was liable to be refunded along with interest @ 10%p.a.

OP has not placed any material in support of his contention that there was global recession that hit the Indian Economy leading to his failure in the aforesaid allotment. The contention thus raised does not help the OP. Coming to the contention of the refund of the amount deposited along with interest; OP in its communication to the complainants never expressed his desire to refund the said amount to the complainant. Even the latest letter dated. 19.01.2011 written by the OP to the complainants assures the complainants of the allotment of the plot.

The complainants admittedly had deposited the amount of Rs.11,50,000/- with the OP uptil 19.01.2006. Even after span of ten years, no allotment of plot has been made by the OP. There is no dispute with the proposition that the price of the real estate have been gone high. Costs of the construction too have gone high. Dream of the complainants of having their own home is shattered. We are, therefore, direct the OP to pay to the complainants as under:-

a.            to refund an amount of Rs.11,50,000/- along with interest @ 18% from the date of deposit till date of its realization.

b.            to pay to the complainants compensation to the tune of Rs.5 Lacs for harassment, mental agony, inconvenience, trauma, anger frustration and anguish.

c.             to pay to the complainants litigation charges to the tune of Rs.1 Lac.

The abovesaid payment shall be made to the complainants within a period of sixty days from the receipt of these orders failing which the OP shall be liable to pay interest @ 24% p.a. on the amount accruing after the expiry of period of sixty days.”

5.            Feeling aggrieved by the Order dated 11.03.2015 passed by the State Commission, the Appellant Company has filed the present Appeal before this Commission.

6.            During the course of proceedings, vide consented Order dated 28.03.2016, the matter was disposed off with a direction that if the Appellant fails to make the payment in terms of the Impugned Order with interest @18% p.a. on or before 30.04.2016, it will be open to the Respondents to have this Appeal revived for appropriate orders.

7.            Since the Appellant failed to comply with the final consent order dated 28.03.2016, the Appeal was revived vide Order dated 23.02.2018.

8.            The Appellant Company moved IA No. 21041 / 2018 seeking permission to file additional documents on record.  It was submitted that in compliance of consented Order dated 28.03.2016, they have refunded the principal amount of ₹11,50,000/- vide Cheque Nos. 301487, 301488, 301489 dated 23.03.2016.  Although they were duty bound to pay the awarded amount on or before 30.04.2016 but due to financial crisis they could not comply with the directions.

9.            We have heard Mr. Prabhakar Tiwari, learned Counsel for the Appellant, Mr. Bharat Arora, learned Counsel appearing for the Respondents/Complainants, perused the material available on record and have given a thoughtful consideration to the various pleas raised by the counsel for the Parties.  

10.          Admittedly, despite having received a substantial sum of ₹11,50,000/- till 19.01.2016 from the Respondents/Complainants, even after lapse of 10 years, the Appellant Company failed to allot a plot to the Respondents/Complainants. Seeing banking / financial institution interest rate scenario, rise in cost of construction and hike in real estate market, the Complainants / Respondents lost an opportunity to have their own house at the rate prevalent in the year 2006, we are of the considered view that the State Commission has rightly directed the Appellant Company to refund the principal amount deposited by the Respondents/Complainants alongwith interest @18% p.a. from the date of deposit till realisation.  However, the Compensation awarded by the State Commission, i.e., ₹5,00,000/- is on the higher side, which is reduced to ₹2,00,000/- alongwith cost of litigation of ₹1 lakh.  The impugned Order passed by the State Commission is modified accordingly.

11.          As per statement provided by the Appellant Company, undisputedly, the following payments are made to the Respondents/Complainants:-

Date      Amount

25.03.2016           ₹11,50,000/-

12.05.2016           ₹10,00,000/-

09.08.2016           ₹10,00,000/-

01.09.2016           ₹5,82,180/-

12.          The Hon’ble Supreme Court in “V. Kala Bharathi v. Oriental Insurance Co. Ltd., (2014) 5 SCC 577” has followed the principle laid down by the Constitution Bench in “Gurpreet Singh vs Union of India (2006) 8 SCC 457” that if the amount deposited by the judgment-debtor falls short of the decretal amount, the decree-holder is entitled to apply the rule of appropriation by appropriating the amount first towards interest, then towards costs and subsequently towards principal amount due under the decree by observing as under:-

“26. In view of above and more particularly keeping in view the ratio of the Constitution Bench judgment in Gurpreet Singh [(2006) 8 SCC 457], where considering an identical question in respect of Order 21 Rule 1 CPC, it was held that if the amount deposited by the judgment-debtor falls short of the decretal amount, the decree-holder is entitled to apply the rule of appropriation by appropriating the amount first towards interest, then towards costs and subsequently towards principal amount due under the decree; we are of the opinion that the appellants herein are entitled to the amount awarded by the executing court, as the amounts deposited by the judgment-debtor fell short of the decretal amount. After such appropriation, the decree-holder is entitled to interest only to the extent of unpaid principal amount. Hence, interest be calculated on the unpaid principal amount.”

13.          After applying the rule of appropriation by appropriating the amount first towards interest, then towards costs and subsequently towards principal amount due as laid down by the Hon’ble Supreme Court in “V. Kala Bharati (supra)”  the calculation of the awarded amount can be tabulated below:-

Amount               Interest @18% p.a.         Per day interest                Period of Interest            Interest @18%

₹5,75,000             ₹1,03,500/-         103500 / 365 = 284           15.02.2005 to 19.01.2006 =

338 days

                ₹95,992/-

₹11,50,000          ₹2,07,000/-         207000 / 365 = 567           20.01.2006 to 25.03.2016 = 3717 days

                ₹21,07,539/-

TOTAL AMOUNT OF INTEREST (From 15.02.2005 to 25.03.2016)   ₹22,03,531

                Total Amount of Interest

(From 15.02.2005 to 25.03.2016)                ₹22,03,531/-

Less       Amount Paid on 25.03.2016         (-) ₹11,50,000/-

                Amount Payable as on 25.03.2016            ₹10,53,531/-

Add        Interest from 26.03.2016 to 12.05.2016   ₹26,649/-

                Amount Payable as on 12.05.2016            ₹10,80,180/-

Less       Amount Paid on 12.05.2016         (-) ₹10,00,000/-

                Amount Payable as on 12.05.2016            ₹80,180/-

Add        Interest from 13.05.2016 to 09.08.2016   ₹49,896/-

                Amount Payable as on 09.08.2016            ₹1,30,076/-

Less       Amount Paid on 09.08.2016         (-) ₹10,00,000/-

                Principal Amount component paid after deducting total interest component upto 09.08.2016      ₹8,69,924/-

                Balance Principal Amount payable as on 09.08.2016

(₹11,50,000/- - ₹8,69,924/-)         ₹2,80,076/-

Add        Interest from 09.08.2016 to 01.09.2016   ₹3,038/-

                Amount Payable as on 01.09.2016            ₹2,83,114/-

Add        Compensation ₹2,00,000/-

Add        Litigation Cost    ₹1,00,000/-

                Total Amount Payable as on 01.09.2016 ₹5,83,114/-

Less       Amount paid on 01.09.2016         ₹5,82,180/-

                Amount payable              ₹934/-

14.          From the above tabulation, it is evident that the Respondents/Complainants have received the decreetal amount satisfactorily except ₹934/-.  However, keeping in view peculiar facts and circumstances of the case, the payable amount of ₹934/-, being a paltry sum, is ordered to be written off.  The Appeal stands disposed off accordingly.  The pending Application, if any, also stands disposed off.