PER MR SUBHASH CHANDRA

1.      This appeal under section 19 of the Consumer Protection Act, 1986 (in short, ‘the Act’) impugns the order dated 10.12.2019 of the Haryana State Consumer Disputes Redressal Commission, Panchkula (in short, ‘the State Commission’) in Consumer Complaint no.29 of 2019 allowing the complaint and directing the opposite party to hand over the possession of the flat booked by the complainant after obtaining the occupation certificate and to execute the conveyance deed on payment of charges due along with interest @ 12% per annum on the amount paid from 26.08.2013 till handing over the possession along with compensation Rs.25,000/- for mental agony and Rs.11,000/- towards litigation expenses within sixty days of the order failing which it would attract a penal interest of 18% per annum till realisation and if not complied with imprisonment under section 27 of the Act for a period not less than one month both extendable upto three years.

2.     The facts, in brief, are that the respondent had booked a flat in the appellant’s project ‘Emerald Estate’, Sector 65, Urban Estate, Gurugram on 11.03.2010 and was allotted flat no. EEA G F01-02. A Buyer’s Agreement was executed between the parties on 05.04.2010. On 30.07.2010 the flat was transferred in favour of M/s Rosemary Hospitality Pvt. Ltd. On 18.01.2012 the respondent purchased the flat and the appellant issued an endorsement to this effect with the confirmation letter dated 24.01.2012. The respondent obtained a housing loan from the HDFC Bank on 27.11.2012. As per clause 11 (a) of the buyer’s agreement the possession was to be delivered within 36 months from the date of commencement of the construction which was 26.08.2010. The sale consideration of the flat including the basic price of EDC, IDC, Car Parking, Club Membership was Rs.49,67,640/ against which the respondent had paid Rs.46,15,423/- by 20.02.2018. The balance of Rs.3,78,546/- was paid on 24.02.2018 against a valid receipt.

3.     The appellant is before this Commission with the prayer to set aside the impugned order of the State Commission which was passed ex parte and stay the proceedings in the Execution Petition no. EA 35 of 2020 before the State Commission pursuant to the orders in CC no. 29 of 2019.

4.     We have pursued the evidence on record and heard the learned counsel for both the parties. Parties submitted that possession had been handed over on 25.02.2021 based upon the offer of possession dated 20.11.2020 on the basis of the occupancy certificate received by the appellant from the appropriate competent authority on 11.11.2020. Both the parties submit that the only surviving issue in this case was that compensation for the delay and the rate of interest applicable by way of compensation.

5.     As per the settled proposition of law, as laid down by the Hon’ble Supreme Court in Wg Cdr Arifur Rahman Khan and Aleya Sultana and Ors. Vs DLF Southern Homes (P) Ltd., (in Civil Appeal no.6239 and 6303 of 2019, wherein it has been held that:

(i) Save and except for eleven appellants who entered into specific settlements with the developer and three appellants who have sold their right, title and interest under the ABA, the first and second respondents shall, as a measure of compensation, pay an amount calculated at the rate of 6 per cent simple interest per annum to each of the appellants. The amount shall be computed on the total amounts paid towards the purchase of the respective flats with effect from the date of expiry of thirty-six months from the execution of the respective ABAs until the 25 (2010) 9 SCC 536 26 (2014) 12 SCC 231 53 date of the offer of possession after the receipt of the occupation certificate;

(ii) The above amount shall be in addition to the amounts which have been paid over or credited by the developer at the rate of Rs 5 per square foot per month at the time of the drawing of final accounts; and

(iii) The amounts due and payable in terms of directions (i) and (ii) above shall be paid over within a period of one month from the date of this judgment failing which they shall carry interest at the rate of 9 per cent per annum until payment.

6.     The Hon’ble Supreme Court in DLF Homes Panchkula Pvt. Ltd., vs D S Dhanda in CA nos. 4910-4941 of 2019 decided on 10.05.2019 laid down that award of multiple compensations for a singular default of deficiency in service is not desirable. Compensation for the delay in the instant case where the possession has been handed over on the basis of occupancy certificate @ 6% per annum from the promised date of possession i.e., 26.08.2013 till 25.02.2021 is considered to be just and equitable.

7.     In view of the foregoing, the appeal is allowed in part with the following directions:

1. Appellant shall compensate the respondent for the delay in handing over the possession @ 6% per annum from 26.08.2013, i.e., promised date of possession till 25.02.2021 within eight weeks of this order failing which the applicable rate of interest shall be 9% till realisation;
2. The appellant shall also pay the respondent the litigation cost of Rs.35,000/- along with compensation as directed above.

8.     All pending IAs, if any, shall stand disposed of with this order.