HON’BLE MR. JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL) The complainants/respondents booked residential flats with the appellants in a building namely ‘Ganga Sampatti’, which the appellant was to construct in Pune. Written agreements were executed between the parties incorporating their respective rights and obligations in respect of the said bookings. The possession of the flats having not been offered to them and the construction having not been completed, they approached the concerned State Commission by way of separate Consumer Complaints seeking possession of the allotted flats with compensation etc. 2. The complaints were resisted by the appellant which admitted the bookings as well as the agreements executed with the complainants. The payment received from them was also not disputed. 3. Since the construction of the flats allotted to the complainants had not been completed, the Consumer Complaints were disposed of by the State Commission with the following directions: 1) Upon accepting the balance consideration as per the registered agreement in respect of the flat, the opposite party shall take necessary steps in accordance with law and shall deliver possession of flats to the respective complainants within three months from the date of the order. 2) In the event it is found that any supervening impossibility occurred due to which flats cannot be conveyed then only in that case at option of complainants, the developer/builder/promoter shall refund the amounts deposited or paid to him together with interest @ Rs.18% per annum from the date of respective payments made till its realization of the amounts paid 3) The opposite party shall also pay damages @ Rs.1,00,000/- (Rupees One Lakh only) to each of the complainant, flat purchasers. 4) Litigation cost of complainants is quantified lumpsum as Rs.25,000/- (Rupees Twenty Five Thousand only) payable by the opposite party to the complainants. 5) If the amount due is not paid within three months it shall carry interest @ 18% p.a. from the date of filing of each complaint till its realization. 4. Being aggrieved from the order passed by the State Commission, the appellant is before this Commission by way of these appeals. 5. When these appeals came up for hearing before this Commission on 17.08.2017, the following interim order was passed: Learned Counsel appearing for the Appellant submits that since the project in question cannot be completed because of the pendency of a Civil Suit, the Appellant is willing to refund to the Complainants the amounts deposited by them, alongwith interest @ 12% p.a. from the date of each deposit. In view of the submission, let notice be issued to the Respondents returnable on 13.11.2017. The Appellant shall remit directly to each of the Complainants a sum of Rs.12,000/- towards travel and allied expenses within two weeks from today. Having heard learned Counsel appearing for the Appellant on the question of ad interim stay, and bearing in mind the fact that the Appellant is willing to refund the amount deposited by each of the Complainants along with the afore-noted rate of interest, I direct that subject to the Appellant’s remitting directly to the Complainants the total amount(s) deposited by them from time to time alongwith interest @ 12% p.a. from the date of each deposit till 31.10.2017, within four weeks from today, operation of the directions for additional interest @ 6% p.a. and the amount of compensation awarded in each of the cases, shall remain stayed. 6. The appellant made payment to the respondents/complainants in terms of the above referred order of this Commission. 7. The only question which survives for consideration in these appeals is as to what interest and compensation if any, the complainants are entitled. Clause 13 of the agreement between the parties reads as under: (13) It is agreed between the parties hereto that if the promoters fail to give possession of the said Unit in accordance with the terms of this Agreement on the date mentioned in Clause 5(b) hereinabove, of if, the promoters and/or their agents for reasons beyond their control, are unable to give possession of the said Unit by the said date and after a period of three months if those reasons still exist, then in such case, the promoters shall, without prejudice to their rights reserved hereunder and at the option of the promoters refund the amounts already received by them in respect of the said Unit from the purchaser/s with simple interest thereon at the rate of 12% per annum from the date they received the same till the date the amounts and interest thereon is refunded to the purchaser/s and the said amount and interest shall be charged on the said land and construction thereon to the extents of the amounts due, but subject to any prior encumbrances. Provided that the promoters shall be entitled to reasonable extension of time for giving delivery of the said Unit on the aforesaid date, if the completion of building in which the Unit is to be housed is delayed on account of: (i) Non-availability of steel, cement, other building material, water or electric supply. (ii) War, Civil Commotion, Act of God or other Force Majeure Causes. (iii) Any notice, order, rule, notification of Government and/or other Public or competent authority. 8. Based upon the aforesaid clause, the learned counsel for the appellant submits that the complainants are entitled to interest only @ 12% and they have already paid that much interest alongwith the principal amount in terms of the order of this Commission dated 17.08.2017. The learned counsel for the complainants have placed on record a letter dated 20.11.2013 sent by the appellant to one of the complainants namely Vidhya C. Patil. The aforesaid letter, to the extent, it is relevant, reads as under: With reference to above, and subsequent discussion we had on 15/11/2013 at our office and as discussed, we are offering you a compensation package against delay of possession. Total refund of your payment received against booking, registration etc. The interest on your payment @ 18% p.a. from December 2010 till date. Refund of service tax paid by you. Refund of stamp duty and registration charges.
This is our full and final offer against your request of compensation. We hope you will appreciate our earliest communication to you in this regards and inform to us within seven days from the date of this letter. This is the best option which we can offer to you. Awaiting your communication. 9. The above referred letter dated 20.11.2013 was filed before the State Commission but does not find mention in the impugned order. It is evident from the said letter that the appellant, on 20.11.2013, offered interest @ 18% per annum to one of the complainants namely Vidhya C. Patil alongwith refund of service tax, stamp duty and registration charges. Though there is no evidence of the said offer having been accepted even by Vidhya C. Patil, the appellant, in all fairness, must pay interest till 20.11.2013 in terms of the offer made by it on that date. Since all the complainants were identically situated, the aforesaid offer must also extend to the other complainants. 10. As far as the period post 20.11.2013 is concerned, no evidence was led by the complainants before the State Commission to prove the actual loss suffered by them on account of the possession of the allotted flats not being given to them. No Sale Deed of a similar flat in the same or a comparable locality was filed to prove the market rate of the flats with similar specifications prevailing on the date of the institution of the Consumer Complaint. Even the Ready Reckoner price in respect of such flats was not made available to the State Commission nor has the same been made available to this Commission. In these circumstances, the complainants, in my opinion, are not entitled to interest at a rate higher than 12% per annum for the period post 20.11.2013. Considering the rate on which interest is being awarded to the complainants, a separate compensation for the mental agony and harassment would not be justified. They must however, get the cost of litigation awarded to them by the State Commission. 11. The appeals are disposed of with the following directions: (i) The complainants shall be entitled to interest @ 18% per annum w.e.f. the date of each payment till 20.11.2013, alongwith refund of the entire principal amount paid by them. The complainants shall also be entitled to refund of the service tax, stamp duty and registration charges if any, paid by them to the appellant though no interest on the said amount would be payable if the amount of service tax, stamp duty and registration charges deposited by the appellant with the concerned authorities. If however, the said service tax, stamp duty and registration charges were not deposited by the appellant with the concerned authorities, interest at the rate of 12% p.a. shall also be payable on the amount received by the appellant from the complainants towards payment of those charges. With effect from 21.11.2013, the complainants have already been paid interest @ 12% per annum in terms of the interim order of this Commission dated 17.08.2017. (ii) The complainants shall also be entitled to the cost of litigation awarded by the State Commission. (iii) The payment in terms of this order, shall be made within two months from today. | 
