This order shall dispose of the Appeal filed against the order of the State Commission dated 09.05.2017 in CC No. 91/2017. Vide the -2- impugned order, the State Commission had decided two Consumer Complaints being CC no. 30 of 2017 and CC No. 91 of 2017 and discussed common position of law since the question in dispute in both the consumer complaints were identical. 2. The brief admitted facts are that respondent / complainant had booked a residential flat with the Appellant under the name and style of ‘The Views, Mohali” and a provisional letter of allotment was issued to him dated 02.09.2011. He paid sum of Rs.6,12,542/- at that time. The Builder Buyer Agreement was executed on 13.03.2012. Amount of Rs.36,82,989/- had been paid by the complainant against the total consideration amount of Rs.41,17,500/- excluding of EDC and IDC charges. As per clause 21 agreement, the due date of possession was 36 months + 3 months i.e. 39 months. The possession ought to have been offered on 02.12.2014. When the possession was not offered by the opposite party, the complaint was filed by the complainant in the year 2017 alleging deficiency in service on the part of the Appellant. 3. The appellant in their written version had taken number of objections including that time was not the essence of the agreement and that complainant was a defaulter and did not make the payment as per the schedule. -3- 4. The State Commission vide the impugned order found the appellant deficient in providing the service to the respondent / complainant and directed them to refund the deposited amount along with compound interest @ 15% p.a. from the respective dates of deposit and also to pay compensation of Rs.2.00 lacs towards mental agony and physical harassment and to pay cost of litigation to the tune of Rs.35,000/-. 5. Aggrieved by this direction, the present appeal has been filed. The main argument of the counsel for the appellant is that since they had offered possession on 21.01.2020 during the pendency of this appeal, the complainant should have taken the possession of the subject flat. It is also submitted that prices of the flats in that area are now on the rise and respondent if wants to earn profit can sell it for good price in the market. Counsel argued that grant of compound interest is an illegality and infirmity committed by the State Commission. He has relied on the findings of the Hon’ble Supreme Court in DLF Homes Panchkula Pvt Limited Vs. D.S.Dhanda Etc. Etc. (2020) 16 SCC 318, wherein it has been held that where compensation in the form of interest has been granted, no compensation under any other head can be granted and also submits that interest granted is on higher side. -4- 6. It is argued on behalf of the complainant that complainant had not received any offer of possession from the Appellant and that there is long delay and that allottee cannot be made to wait indefinitely for their house. It is also argued that time was essence of the agreement as it was clearly mentioned in the agreement that possession shall be offered within 36 months + 3 months i.e. within 39 months. It is argued that even thereafter complainant had waited for about 3 years for the offer of possession but no offer of possession had come forward. It is further submitted that grant of interest @ 15% is perfectly right in the interest of justice and in the facts and circumstances of the case. 7. No other argument is addressed by either of parties. 8. I have heard the arguments and perused the relevant record. The admitted facts are that complainant had booked a flat with the appellant and he was allotted flat no. TVM-H2_F03-301 in the project of the Appellant. As per the agreement dated 13.03.2012, possession of the flat was to be offered within 39 months i.e. by 02.12.2014 but according to the argument of counsel for the appellant, the offer was allegedly made for the first time on 21.01.2020. Therefore, there is delay of more than 6 years in offer of possession. When in the agreement, the period is specifically provided for giving possession, it is unfair to say that time -5- was not the essence of the contract. In the case of Pioneer Urban Land and Infrastructure Ltd. Vs. Govindan Raghavan ( 2019) 5 SCC 725, the Hon’ble Supreme Court has clearly held that an allottee cannot be made to wait indefinitely and also cannot be forced to take possession after a considerable delay. I, therefore, found no infirmity or illegality in the impugned order whereby the appellant was found to be guilty of unfair trade practice and deficient in providing the services. 9. The contention of the counsel for the Appellant that complainant is a defaulter in making the payment also does not have any merit because against the total consideration of Rs. 41,17,500/-, he has already paid Rs.36,82,989/-. 10. Direction of the State Commission to the appellant to refund the deposited amount with compound interest @ 15% p.a. is uncalled for and, therefore, this direction needs to be modified. Therefore, rate of interest on the deposited amount shall be 10% p.a. in view of the various pronouncement of the Hon’ble Supreme Court. After the findings of the Hon’ble Supreme Court in D.S.Dhanda (supra), grant of compensation in circumstance where compensation in the form of interest has been granted, this direction is uncalled for and, therefore, this direction needs to be quashed. -6- 11. The Appeal is partly allowed and the impugned order is modified. The following directions are issued: 1. The Appellant is directed to refund the amount of Rs.36,82,989/- along with simple interest @ 10 % p.a. from the date of deposits till date of payment. 2. To pay cost of Rs.35,000/- awarded by the State Commission 3. While disposing of this appeal, I also impose cost of Rs.1.00 lac as cost of litigation. 4. The entire payment shall be made within 2 months and failure will attract penal interest @ 15% p.a. on the payable amount. 12. It is submitted on behalf of the respondent that appellant had deposited the decretal amount along with interest @ 10% p.a. with this Commission as per the direction of this Commission dated 22.08.2017. It is requested that the said sum shall be released to the complainant towards the satisfaction of the decree. The money along with interest accrued shall be released to the complainant on his application after expiry of period of appeal i.e. 90 days. -7- 13. With these directions, the Appeal stands disposed of. | 
