The present Appeal has been filed against the order dated 05.11.2015 in CC No. 140 of 2015. 2. The brief facts of the case are that Appellant had launched a project under the name and style of Mohali Hills, Augusta Park, Sector -2- 109, SAS Nagar, Mohali, Punjab. The respondent / complainant had applied for the allotment of residential plot vide his application dated 07.09.2006. He was allotted residential plot after payment of booking amount of Rs.17,25,000/-. The plot No. 255, measuring 400 sq.yds. in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab was allotted to him for total consideration of Rs.51,75,000/-. The complainant / respondent continued to make the payment as and when the demand was raised by the Appellant. In the meanwhile, the Appellant had also increased the consideration amount of the plot to Rs.54,00,472/- on the pretext that area of the plot has been revised to 500 sq. yds from 400 sq.yds. They further increased the consideration price of the plot to Rs.67,50,590/-. A Builder-Buyer Agreement was executed on 04.07.2007 between the parties. Under the agreement, the Appellant had promised to hand over the fully developed residential plot to the complainant within a period of 2 years but not later than 3 years from the date of execution of the said agreement. The date of handing over of the possession was 03.07.2010. Under the agreement, on failure to hand over the possession, the Appellant was liable to pay Rs.50/- per sq.yd per month for such period of delay. The complainant had paid total amount of Rs.64,63,090/- but the opposite party failed to develop the project and also failed to hand over the fully developed -3- residential plot. Several letters were exchanged between the parties. On the pretext that on demarcation, the area of the plot had increased to 501 sq. yds, the respondent was again asked to pay certain amount for the increased area. Aggrieved of this attitude of the Appellant and failure on their part to hand over the possession and also failure to provide basic amenities at site, an email was sent by the complainant dated 20.08.2012 and in response to that vide email dated 23.08.2012, the complainant was informed by the Appellant that process of obtaining completion certificate had started and work with regard to sewerage treatment plant, water, electricity, rain water harvesting system and installation of transformers etc were expected to be completed within 6-8 months. Since nothing was coming forward, the complainant filed the complaint alleging deficiency in service and also indulgence into unfair trade practice on the part of the appellant. 3. Written version had been filed wherein Appellant had raised several objections and also alleged that despite the offer of possession being made to the complainant, he had failed to take the possession. 4. The parties led their evidences before the State Commission and after hearing the counsels for the parties and perusing the record, the State Commission reached to the conclusion that there was deficiency on the part of the Appellant and they had failed to hand over the -4- possession within the stipulated period and ordered refund of the deposited amount Rs.64,63,909/- along with interest compounding quarterly @ 15% from the respective dates of deposits till realization. Compensation of Rs.2.00 lakh was also awarded towards causing mental agony and physical harassment. Cost of litigation of Rs.50,000/- was also awarded to the complainant. 5. Aggrieved by this direction, the present Appeal has been filed by the opposite party. 6. Several objections have been raised in the Appeal. During the course of arguments, ld. counsel for the Appellants submits that since in compliance of the order dated 19.04.2016 of this Commission, the Appellants had refunded the deposited amount of Rs.64,63,090/- along with interest @ 12% p.a., nothing remains in the present Appeal and appeal be disposed of in these terms. 7. I have given my thoughtful consideration to the arguments of the learned counsel for the Appellants as well as arguments of the Attorney of the Respondent. 8. During the course of arguments, findings of the State Commission qua deficiency in service has not been challenged. It is also apparent from the evidence on record, which has been duly relied upon by the State Commission that the Appellant had failed to hand over the subject -5- plot within the stipulated period as per the terms of Builder Buyer Agreement. The findings of the State Commission qua deficiency in service are hereby confirmed. This Commission on 19.04.2016 passed the following order: “IA/976/2016 I have heard learned Counsel for the parties at some length on the question of interim order and perused the documents on record, particularly the Appellants’ letter dated 17.8.2012, purportedly offering possession of the plot to the Complainant, strongly relied upon by their learned counsel, Mr.Aditya Narain, in support of the plea that there was inordinate delay in delivery of possession of the plot to the Complainant. Having regard to the fact that a sum of Rs.64,63,090/-, which includes the amounts, demanded by the Appellants, over and above the original cost of the plot viz. ₹51,75,000/-, had been paid by the Complainant/Respondent to the Appellants as far back as by May 2009 in terms of Flat Buyer’s Agreement, dated 04.07.2007, and admittedly the Appellants having failed to deliver the possession of the plot in question by the extended committed time of three years, from the date of Agreement, i.e., July 2010, I am of the view that the complainant is entitled to the refund of the deposited amount. Although, there is some controversy with regard to the offer of the Appellants to the Complainant to take possession, in terms of its letter, dated 17.08.2012, but apart from the fact that a bare reading of the said letter, would suggest that on Appellants’ own narration in the letter, to the effect that on that date the development activities in respect of the basic -6- infrastructure, like water pipelines, sewer pipelines roads and parks in three Sectors, including Sector 109, in which Sector the Complainant was allotted the plot, were in full swing, I am of the prima facie view that even if the said offer was genuine, yet, the Complainant was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery. In support of his submission that the Complainant is entitled to interest at least @ 15% p.a., learned Counsel appearing for him has relied on two decisions of this Commission, particularly on the order dtd.14.11.2014 in SLP (C) 29392 of 2014 EMAAR MGF land and Anr. Vs. Karnail Singh and Anr., wherein interest awarded on the amounts deposited by the allottees in those cases @ 15 % p.a. has been affirmed by the Hon’ble Supreme Court. Bearing in mind all these factors, I direct the Appellants to refund to the Complainant the amount of Rs.64,63,090/-, deposited by him, along with interest @ 12% p.a. from the date of each deposit till 15.05.2016, by which date the total amount, in terms of this interim order, has to be paid. Subject to the said payment, operation of the impugned order relating to the balance amount of interest, as directed by the State Commission, shall remain stayed. It may be noted that during the course of hearing, an offer was made by learned Counsel appearing for the Appellants to refund the aforesaid amount with simple interest @ 12% p.a., but no consensus ad-idem could be arrived at between the parties on the question of the period of payment of the total amount.” -7- 9. In terms of this order, the Appellant has duly paid amount of Rs.64,63,090/- with interest @ 12% p.a. and learned counsel has argued that nothing remains in this matter. 10. The appeal is partly allowed and impugned order is modified. In DLF Homes Panchkula Pvt Limited Vs. D.S.Dhanda Etc. Etc. (2020) 16 SCC 318, Hon’ble Supreme Court has stated that if the compensation in terms of interest has been awarded, no compensation under any other head should be awarded. Compensation awarded @ Rs.2.00 lacs for mental agony and harassment is hereby quashed. 11. While partly allowing the Appeal, the following directions are passed: - Appellant is directed to refund Rs.64,63,090/- along with interest @ 12% p.a. from the date of each deposit till15.05.2016 and money has already been refunded and paid.
- Litigation cost of Rs.50,000/- as awarded by the State Commission be paid to the complainant.
- While disposing of the present Appeal, further litigation cost of Rs.75,000/- is imposed upon the Appellants.
- Compliance of this order be done within eight weeks.
-8- 12. With these directions, the Appeal stands disposed of. |
