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Dara Estates Pvt. Ltd. & Others v/s Himanshu Sharma

    First Appeal No. 678 of 2018

    Decided On, 17 October 2019

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MS. JUSTICE DEEPA SHARMA
    By, PRESIDING MEMBER & THE HONOURABLE MR. C. VISWANATH
    By, MEMBER

    For the Appellants: Karan Dewan, Advocate. For the Respondent: Peeush Gagneja, Advocate.



Judgment Text

1. The present appeal has been filed against the order dated 13.7.2017 of the State Commission in CC/965/2016.

2. At the time of argument on the appeal, learned counsel for the appellant confined his challenged to the impugned order on the rate of interest which is 15% p.a. on the amount to be refunded. These submissions are recorded by this Commission in its order dated 16.5.2018. It is reproduced as under: -

“Learned counsel for the appellants has submitted that the appellants have no grievance against the impugned order on merits and its grievance is only in relation to the grant of compensation @ 15% p.a. on the principal amount. In view of the above, the appeal is admitted only on the issue of quantum of compensation, subject to the appellants depositing the entire principal amount with 10% interest thereon till the date of deposit with this Commission within four weeks. The amount, so deposited, shall be released immediately to the respondent.

Issue notice to the respondent, returnable on 17-09-2018.”

3. After issuing the notice, we have heard the arguments of the learned counsel for the parties only on this limited challenge.

4. The brief facts of the case are that the respondent had booked 2 BHK residential flat No.150A measuring 1000 sq. ft. on the first floor in the Revenue Estate of Village Chappar Chiri for a price of Rs.26,31,843/- including basic sale price, PLC, EDC etc. Parties entered into a flat buyer agreement. As per the flat buyer agreement the appellant was to give the physical possession of the subject flat within 24 months from the date of booking. Admittedly, the appellant failed to hand over the possession of the subject flat within 24 months from the date of booking which is 15.10.2013. The flat was to be delivered by 14.10.2015. When it was not so delivered, a complaint was filed by the respondent in the year 2016. Till that time, there was no offer of possession of the flat to the respondent. There was no contention on the part of the appellant that they had duly obtained the occupancy certificate relating to the subject flat. On these facts, which were duly proved on record by way of evidences led by the parties, the State Commission issued the following directions: -

1. To refund the amount Rs.22,51,945/- to the complainant alongwith interest @ 15% p.a. from the respective dates of deposits onwards, within 45 days, from the date of receipt of a certified copy of this order.

ii. To pay compensation, in the sum of Rs.1,00,000/- for causing mental agony and harassment, to the complainant, within 45 days, from the d ate of receipt of a certified copy of this order.

iii. To pay cost of litigation to the tune of Rs.11,000/- (as prayed for) to the complainant.

iv. In case the payment of amount mentioned in Clauses (i) and (ii) is not made within the stipulated period, then the opposite parties shall be liable to pay the amount mentioned in clause (i) with interest @ 18% instead of @ 15% from the date of default and interest @ 15% p.a on the amounts mentioned at clause (ii) & (iii) from the date of filling the complaint till realization.

5. Vide impugned order the State Commission had directed the refund of the deposited amount with interest @ 15% p.a. from the date of respective dates of deposits. It is argued that besides that, compensation for mental agony and harassment has also been granted. It is argued that the interest granted is on the higher side and the appellant is ready to pay any reasonable amount of interest fixed by this Commission. Learned counsel for the appellant has relied on the judgment of Hon’ble Supreme Court in the case of DLF Homes Panchkula P. Ltd. vs. D.S. Dhanda Etc. IV (2019) SLT 675 wherein Hon’ble Supreme Court has held as under: -

“16. The appellant has agreed to deliver constructed flats. For delay in handing over possession, the consumer is entitled to the consequences agreed at the time of executing buyer’s agreement.

There cannot be multiple heads to grant of damages and interest when the parties have agreed for payment of damages at the rate of Rs.10/- per sq. ft. per month. Once the parties agreed for a particular consequence of delay in handing over of possession then, there has to be exceptional and strong reasons for the SCDRC/NCDRC to award compensation at more than agreed rate.”

6. Learned counsel for the appellant has also relied on the judgment of Hon’ble Supreme Court in the case of Kolkata West International City Pvt. Ltd. vs. Devasis Rudra II (2019) 31 (SC) wherein Hon’ble Supreme Court has held as under:

“8. While considering the rival submissions, we must at the outset advert to the following clause which was contained in the Buyer’s Agreement:

“Unless prevented by circumstances beyond the control of the company and subject to Force Majeure, KWIC shall ensure to complete the said unit in all respect within 31st December 2008 only for the Cluster D. Further there will be a grace period of 6 months (up to 30th June, 2009) from the date of completion. In case the possession is not transferred after expiry of the said grace period, KWIC will be liable to pay prevailing saving Bank interest of the State Bank of India for each month of delay on the money given by the allottee as compensation but no compensation will be paid on account of force majeure reasons.”

9. It is the above clause which is pressed in aid by the developer. Under the aforesaid clause, any delay beyond 30 June 2009 would result in the developer being required to pay interest at the prevailing savings bank interest of the State Bank of India. Interestingly, where the buyer is in default, the agreement stipulates that interest at the rate of 18 per cent from the date of default until the date of payment would be charged for a period of two months, failing which the allotment would be cancelled by deducting 5% of the entire value of the property. The agreement was evidently one sided. For a default on the part of the buyer, interest at the rate of 18% was liable to be charged. However, a default on the part of the developer in handing over possession would make him liable to pay interest only at the savings bank rate prescribed by the SBI. There is merit in the submission which has been urged by the buyer that the agreement was one sided. The clause which has been extracted in the earlier part of this order will not preclude the right and remedy available to the buyer to claim reasonable interest or, as the case may be, compensation.

10. …

11 …

12. Having regard to all the facts and circumstances of the case, we modify the order of the NCDRC by directing that the appellant shall pay interest at the rate of 9% per annum to the respondent instead and in place of 12% as directed by the NCDRC. Save and except for the above modification, we affirm the directions of the NCDRC.”

7. We have heard the arguments, perused the relevant records and the case law. In catena of judgments, Hon’ble Supreme Court has clearly held that the grant of higher interest is not in the interest of justice especially when the compensation has also been granted alongwith refund. In view of this, we are satisfied that the impugned order needs modification to this effect. While allowing the appeal on this limited count, following directions are issued: -

1. To refund the amount Rs.22,51,945/- to the complainant alongwith interest @ 10% p.a. from the respective dates of deposits onwards, within

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45 days, from the date of receipt of a certified copy of this order. ii. To pay compensation, in the sum of Rs.1,00,000/- for causing mental agony and harassment, to the complainant, within 45 days, from the d ate of receipt of a certified copy of this order. iii. To pay cost of litigation to the tune of Rs.11,000/- (as prayed for) to the complainant. iv. In case the payment of amount mentioned in Clauses (i) and (ii) is not made within the stipulated period, then the opposite parties shall be liable to pay the amount mentioned in clause (i) with interest @ 18% instead of @ 10% from the date of default and interest @ 10% p.a on the amounts mentioned at clause (ii) & (iii) from the date of filling the complaint till realization. 8. The appeal stands disposed of in view of the above directions.
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