Heard learned counsel for the appellants in both the appeals.

Since a common judgment was delivered on 09.07.2019 by the State Consumer Disputes Redressal Commission, UT at Chandigarh, these two appeals are being disposed of by a common order.

In Consumer Complaint No. 119 of 2018 (Mayank Tyagi and Mamta Tyagi Vs. M/s Omaxe Chandigarh Extension Developers Pvt. Ltd.), giving rise to First Appeal No.1931 of 2019, the complaint has been allowed awarding the following reliefs:

“17.    For the reasons recorded above, the complaint is partly allowed and the Opposite Party is directed as under:-

1. To hand over physical possession of the unit, in question, to the complainants, within a period of two (02) months, from the date of receipt of certified copy of this order, complete in all respects, after obtaining necessary occupation certificate and partial/completion certificates, from the competent authorities, on receipt of legally due amount from them (complainants), towards remaining sale consideration.

2. To execute and get registered the sale deed, in respect of the unit, in question, in favour of the complainants, within two months, from the date of handing over possession of the unit as mentioned in clause (i) above, on payment of registration and stamp duty charges, by them to the Registering Authorities.

3. To pay compensation, by way of interest @12% p.a., on the entire deposited amount, to the complainants, from 23.11.2016 (promised date) till 30.06.2019, within two months, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount shall carry penal interest @15% p.a. instead of 12% p.a. from the date of default, till realization.

4. To pay compensation by way of interest @12% p.a. on the entire deposited amount, w.e.f. 01.07.2019, onwards (per month), till actual delivery of actual physical possession of the unit, by the 10th of the following month, failing which, the same shall also carry penal interest @15% p.a., instead of 12% p.a., from the date of default, till payment is made.

5. To pay compensation, in the sum of Rs.1,50,000/-, on account of mental agony, physical harassment, caused to the complainants, deficiency in providing service and adopting unfair trade practice, within two months from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing this complaint till realization.

6. To pay cost of litigation, to the tune of Rs.50,000/- to the complainants, within two months from the date of receipt of a certified copy of this order, failing which, the same shall also carry interest @12% p.a., from the date of filing this complaint till realization.”

In Consumer Complaint No. 325 of 2018 (Sameer Grover and Isha Grover Vs. Omaxe Chandigarh Extension Development Pvt. Ltd. & Anr.), giving rise to First Appeal No. 1932 of 2019, the appellants have been called upon to make the payments as per relief granted by the State Commission in paragraph-29 which is extracted hereunder:

“29.    For the reasons recorded above, this complaint is partly accepted, with costs. The Opposite Parties are jointly and severally are directed as under:-

1. To hand over physical possession of the unit, in question, to the complainant (if not given), within a period of two (02) months, from the date of receipt of certified copy of this order, complete in all respects, after obtaining necessary occupation certificate and partial/completion certificates, from the competent authorities, on receipt of legally due amount from him (complainant), towards remaining sale consideration. The Opposite Parties are directed to charge for the increased area of flat as per Clause 16 of the allotment letter issued.

2. To execute and get registered the sale deed, in respect of the unit, in question, in favour of the complainants within two months, from the date of handing over possession of the unit as mentioned in clause (i) above, on payment of registration and stamp duty charges, by them to the Registering Authorities.

3. To pay compensation, by way of interest @12% p.a., on the entire deposited amount, to the complainants, from 19.01.2017 (promised date) till 30.06.2019, within two months, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount shall carry penal interest @15% p.a. instead of 12% p.a. from the date of default, till realization.

4. To pay compensation by way of interest @12% p.a. on the entire deposited amount, w.e.f. 01.07.2019, onwards (per month), till actual delivery of actual physical possession of the unit, by the 10th of the following month, failing which, the same shall also carry penal interest @15% p.a., instead of 12% p.a., from the date of default, till payment is made.

5. To pay compensation, in the sum of Rs.1,50,000/-, on account of mental agony, physical harassment, caused to the complainant, deficiency in providing service and adopting unfair trade practice, within two months from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing this complaint till realization.

6. To pay cost of litigation, to the tune of Rs.50,000/- to the complainant, within two months from the date of receipt of a certified copy of this order, failing which, the same shall also carry interest @12% p.a., from the date of filing this complaint till realization.”

The only difference on facts in the two cases for the purposes of present controversy is the date from which the delay compensation has to be awarded and the rate of interest which is the short point raised in these two appeals.

In Consumer Complaint No. 119 of 2018 (Mayank Tyagi and Mamta Tyagi Vs. M/s Omaxe Chandigarh Extension Developers Pvt. Ltd.) the agreed date of possession was after 14 months of the entering of the agreement, which undisputedly comes to 22.11.2016.  The offer of possession is dated 27.09.2019.  These two dates being undisputed, the only issue is with regard to the rate of interest as learned counsel for the appellants submits that the rate of interest should be 6%, and the award of Rs.1.50 Lakhs by the State Commission cannot be granted as compensation on multiple heads in a case of refund as held to be impermissible in view of the judgment of the Apex Court in the case of DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda, Etc. Etc. and DLF Homes Panchkula Pvt. Ltd. & Anr. Vs. Sudesh Goyal, Etc., II (2019) CPJ 117 (SC).

In Consumer Complaint No. 325 of 2018 (Sameer Grover and Isha Grover Vs. Omaxe Chandigarh Extension Development Pvt. Ltd. & Anr.), the expected date of possession, according to the complainants, is 19.01.2017 but learned counsel for the appellants submits that the offer of possession had been made vide letter dated 07.02.2018, where-after the occupancy certificate was received on 21.02.2018.  These two documents are on record.  Learned counsel for the complainants/respondents submits that the possession was taken only on 30.06.2019 during the pendency of the case before the State Commission itself.  He therefore submits that it is the said date and not the date of offer of possession which should be taken into account.  He also submits that the offer of possession on 07.02.2018 was without the occupancy certificate which was obtained later on and consequently the date should be construed as 30.06.2019.

Having heard learned counsel for the parties, in the case of Mayank Tyagi and Mamta Tyagi the date from which the delay compensation is to be paid is not disputed.  The only issue is of the rate of interest and the compensation awarded.

In the case of Sameer Grover and Isha Grover, it is the date of offer of possession which is in dispute.  It is evident that the letter of offer of possession is dated 07.02.2018 but the fact remains that there was no occupancy certificate on that date and which came-forth only on 21.02.2018.  Consequently, the offer of possession will therefore have to be construed only after receipt of the occupancy certificate which will be 21.02.2018.  In the wake of the aforesaid facts, the date of offer of possession for this case shall be construed to be 21.02.2018. Consequently, the promised date and the expected date of possession was 19.01.2017 and therefore the delay compensation will have to be calculated from 19.01.2017 till 21.02.2018.

Having resolved the aforesaid dispute with regard to the period for which the delay compensation is payable in both the cases, the issue now is with regard to the rate of interest which has been awarded at the rate of 12% by the State Commission.  Keeping in view the trends of the Apex Court in a large number of cases and also the facts of the present case where the complainants had to wait for long, in the opinion of the Commission interest at the rate of 9% would be reasonable and accordingly the order passed by the State Commission insofar as rate of interest is concerned stands modified to that extent and the appeals are partly allowed modifying the rate of interest to 9% as against 12% awarded by the State Commission. 

The third component is with regard to the award of compensation of Rs.1.50 Lakhs in both the cases.  In view of the law laid down by the Apex Court in the case of DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda, Etc. Etc. and DLF Homes Panchkula Pvt. Ltd. & Anr. Vs. Sudesh Goyal, Etc. (Supra), this additional liability of compensation cannot be imposed once refund has been allowed with compensatory interest being calculated at the rate of 9% per annum as indicated above. 

Litigation cost of Rs.50,000/- is upheld which shall also be paid by the appellants. 

The appeals are partly allowed to the extent indicated above and the order of the State Commission is accordingly confirmed.

It is stated at the bar that after the entertaining of these appeals, the amounts awarded by the State Commission have been deposited before this Commission.  The said amount shall be accordingly adjusted for paying the balance of the amount as directed hereinabove which shall be made within a period of two months from today.  Balance of the amount shall be credited to either of the parties as payable in terms above.

The statutory amount deposited shall also be adjusted accordingly.  In case there is any excess of amount available after satisfying the payments due to the complainants, the same shall be refunded to the appellants.