w w w . L a w y e r S e r v i c e s . i n



Neelam Bhardwaj v/s Manohar Infrastructure & Constructions Pvt. Ltd.

    Complaint Case No. 68 of 2020

    Decided On, 11 January 2021

    At, Union Territory Consumer Disputes Redressal Commission UT Chandigarh

    By, THE HONOURABLE MR. JUSTICE RAJ SHEKHAR ATTRI
    By, PRESIDENT
    By, THE HONOURABLE MRS. PADMA PANDEY & THE HONOURABLE MR. RAJESH K. ARYA
    By, MEMBERS

    For the Complainant: Rajesh Verma, Advocate. For the Opposite Parties: I.P. Singh, Advocate.



Judgment Text

Raj Shekhar Attri, President

1. It is the case of the complainant that, in the first instance, vide application dated 18.01.2012, she had booked a plot measuring 200 square yards @Rs.18500/- per square yard, with the opposite party, in its project named €˜The Palm Garden€™, Village Mullanpur Garibdas, Dhanauran and Mastgarh, Sub Tehsil Mazri, Tehsil Kharar, District SAS Nagar, Mohali, Punjab, against which she had paid substantial amount of Rs.31,75,000/- starting from 18.01.2012 to 22.10.2015, yet, even plot no. was not allotted in her favour, what to speak of execution of agreement and delivery of possession thereof. Later on, because of non existence of the plot booked by her, she was relocated to plot no.787, measuring 200 square yards, in the same locality but in different project, named €œThe Palm Spring€, for which plot buyers agreement Annexure C-7 was executed between the parties on 04.07.2016. As per clause 35 of the said agreement, possession of the said relocated plot was to be delivered by the opposite party within a period of 36 months from the date of allotment but it failed to do so, for dearth of development activities. Even grace period of 6 months also stood lapsed, yet, possession of the relocated plot was not delivered by the opposite party and, on the other hand, even in the absence of development activities, the complainant was asked to make remaining payment of Rs.18,80,000/- which she did not make and requested the opposite party to complete the development works, so that she can make the said payment but to no avail.

2. By stating that the aforesaid act and conduct of the opposite party, amount to deficiency in providing service, negligence and adoption of unfair trade practice, the complainant has filed this complaint seeking directions to the opposite party to deliver actual physical possession of relocated plot no.787, complete in all respects; waive of EDC and IDC charges; to pay compensation for mental agony, harassment; or any other relief which this Commission deems fit, in the facts and circumstances of this case.

3. Her claim has been contested by the opposite party on numerous grounds, inter alia, that the complainant has purchased the plot for commercial purpose, as such, she did not fall under the definition of consumer; that this complaint is not maintainable before this Commission; that the complainant defaulted in making payment towards price of the said plot as she was not having sufficient funds; that she is liable to make remaining payment and is not entitled to seek any relief; that number of letters/reminders sent to the complainant starting from 04.01.2017 till 30.05.2018 for making payment did not yield any result, which hampered the development works at the project site; even the earlier payments were also made by her on obtaining housing loan from the HDFC Bank, for which tripartite agreement dated 03.11.2015 was executed ; that because the HDFC Bank has not been made party to this complaint as such it is liable to be dismissed on this ground alone; that relocation to plot no.787 was done on the request having been made by the complainant only vide letter dated 07.10.2015; that the earlier plot purchased by the complainant was cancelled as she failed to make payment in respect of the same and also the fact that she was interested in the project-€˜The Palm Springs€™; that the complainant had paid only Rs.28,05,000/- and not Rs.31,75,000/- as claimed by her because the cheque in the sum of Rs.3,70,000/- handed over by her was never encashed by the opposite party; that the complainant has not placed on record the complete copy of agreement Annexure C-8 in which it was agreed that she is liable to pay EDC and IDC also.

4. It has been stated that that exemption from the applicability of provisions of the Punjab Apartment and Property Regulation Act, 1995, (PAPR Act) stood granted by the Government on 25.01.2017 which will have retrospective effect; that vide supplementary agreement dated 16.06.2016, completion period of the project was granted upto 13.06.2018 by the State Government; that the project has been got registered under RERA on 25.09.2017; that in order to facilitate the completion of project, the State Government has further extended period upto 31.12.2022; and that the opposite party has obtained all permissions/approvals in respect of the project in question.

5. However, ironically, it has been claimed in the reply that the opposite party is trying to complete the project, as early as possible i.e. within the extended period, as the development work is going on in full swing and work with regard to provision of basic amenities such as sewerage, water, electricity etc. is near completion and that possession of two wings of flats have already been delivered to the customers. It has been stated that final coating of roads is going to follow shortly. While applying the theory of force majeure circumstances (which means irresistible circumstances beyond ones control such like act of God), it has been alleged that delay in delivery of possession of plots occurred on account of shortage of building material and ban on mining by the Government concerned; that there was pending litigation between sand mafia and the government which also resulted into shortage of sand etc.; that delay also occurred because there was delay in granting approvals with regard to sewerage and drainage connections; that COVID-19 was also one of the reasons for delay in development works; that due to recession in the real estate market, the government is also trying to help the builders; that for any delay in delivery of possession, the company is liable to pay delayed compensation @Rs.40/- per square meter per month of area of the said plot, strictly as per terms and conditions of the agreement and as such, the said period of 42 months from the date of execution of agreement dated 04.07.2016 for delivery of possession of the plot was extendable.

6. It has been stated that possession of relocated plot no.787 was offered to the complainant vide letter dated 16.06.2020, Annexure O-2 and she was asked to take over the same, on making remaining payment but she failed to do so. It has been further stated that the complainant may come forward to take over possession of relocated plot no.787 on making payment of remaining amount. Remaining averments of the complaint have been denied. Prayer has been made to dismiss the complaint with costs.

7. The parties led evidence in support of their case.

8. We have heard the contesting parties and have gone through the record of the case, very carefully.

9. First we will deal with the objection taken by the opposite party to the effect that the complainant did not fall within the definition of €˜consumer€™, it may be stated here that the objection raised is not supported by any documentary evidence and as such the onus shifts to the opposite party to establish that the complainant has purchased the plot in question to indulge in €˜purchase and sale of plots€™ as was held by the Hon€™ble National Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since it failed to discharge its onus, hence we hold that the complainant is a consumer as defined under the Act. In this view of the matter, objection taken in this regard stands rejected.

10. There is no dispute with regard to the fact that, in the first instance, vide application dated 18.01.2012, the complainant had booked a plot measuring 200 square yards @Rs.18500/- totaling Rs.37 lacs, in €˜The Palm Garden€™, for which she had paid Rs.28,05,000/- till 06.10.2015. Receipt of this amount which is equal to more than 75% of the total sale consideration has not been disputed by the opposite party. However, there is nothing on record that by 06.10.2015, when the opposite party had already received aforesaid amount, any plot no. was allotted in her favour or agreement was executed between the parties. Even this much has not been proved by the opposite party, as to whether, it was in possession of necessary permissions/approvals for launching the said project-The Palm Garden and that development at the project site was under progress and completed by October 2015. It is also coming out from the record, that later on, the complainant was relocated to plot no.787, measuring 200 square yards, in the same locality but in different project, named €œThe Palm Springs€, for which plot buyers agreement Annexure C-7 was executed between the parties on 04.07.2016, yet possession thereof has also not been delivered to the complainant, within the committed period i.e. within a period of 36 months from the date of allotment, as per clause 35 of the same.

11. In its written reply, in order to defeat the claim of the complainant it has been stated by the opposite party that it was in possession of all the approvals/sanctions; development at the project site was about to complete in the project, yet, since the complainant failed to make remaining payment in respect of the plot which was booked by her, in the first instance, vide application dated 18.01.2012, as such, the said booking was cancelled and thereafter on the request having been made by her, she was relocated to plot no.787 in the Palm Spring. We do not agree with the said stand taken by the opposite party, especially, in the face of compliance report dated 25.02.2020 (Annexure C-11) submitted by the Chief Administrator, GMADA, in respect of the same project i.e. €˜The Palm€, in the case of Devendra Kumar Vs. Manohar Infrastructure and Construction Pvt. Ltd., CC No.76 of 2019, before this Commission, in compliance of our order dated 30.01.2020, relevant part whereof is reproduced hereunder:-

€œ€..Compliance report by Chief Administrator

Respectfully Showeth:

1. That vide order dated 30.01.2020, this Hon€™ble Commission was pleased to direct the Chief Administrator, GMADA to visit the spot alongwith team of technical officers within seven days from the receipt of copy of the order and submit a report with regard to installation of sewerage and storm water system in plt no. 783 in the project "The Palm", New Chandigarh alongwith photographs and submit a report within 10 days therefrom. Further, direction has been issued to submit the approved site plan as on 22.12.2014 when plot was booked by the complainant and to report as to whether the said plot is complete in all respects and ready for possession and to place on record the photographs of the plot/ site.

2. That this order dated 12.02.2020 was received in GMADA office on 14.02.2020 and accordingly, site visit was scheduled on 19.02.2020 at 9.30 AM.

3. That as per site visit and after checking the site of Plot no.783 on the basis of Lay Out Plan of this project namely "The Palm" of M/s Manohar Infrastructure & Constructions Pvt. Ltd. in New Chandigarh, which was approved by Chief Town Planner, Punjab on 06.10.2015, it was found that the land where this plot has been planned, is still under agriculture use and no development works of roads, water supply, sewerage and electricity supply have been undertaken by this Promoter in this pocket. Therefore, this plot is not ready for possession. Photographs showing the situation of land, where the plot in question is planned to be developed are appended herewith as Annexure-A and further Layout Plan of this project of M/s Manohar Infrastructure & Constructions Pvt. Ltd. at New Chandigarh, which was approved by Chief Town Planner, Punjab on 06.10.2015 is also appended herewith as Annexure-B.

4. That during this inspection, Mr. Surinder Talwar, Manager of Promoter Company M/s Manohar Infrastructure & Constructions Pvt. Ltd. as well as the complainant Mr. Devendra Kumar were also present. Mr. Surinder Talwar, Manager of Promoter Company offered that they are willing to offer immediate possession of alternative Plot no. 732 for which all services have been laid, however, the complainant refused to take the alternative plot and instead wanted immediate possession of Plot no. 783, which is not still ready for possession at this stage and the Promoter would be able to give its possession only after all the requisite development works are completed at the site.

Submitted by

Chief Administrator,

GMADA

Place: S.A.S. Nagar

Dated: 25.02.2020€

12. From the contents of the said compliance report aforesaid, it is evident that it has been in a very candid manner, reported by the Chief Administrator GMADA, that the project site at "The Palm" of M/s Manohar Infrastructure & Constructions Pvt. Ltd. in New Chandigarh, lay out plan whereof was approved for the first time only on 06.10.2015 by the Chief Town Planner, is still under agriculture use and no development works of roads, water supply, sewerage and electricity supply have been undertaken by the company. Thus, the said report leaves no doubt to say that the opposite party had sold the plots in the said project without necessary approvals/sanctions, as the layout plan was got approved only on 06.10.2015, whereas, plot in the said project had been sold as far as back on 18.01.2012 and also it has received Rs.28,05,000/- from the complainant by the said date (06.10.2015). Thus, under above circumstances, if the complainant, being under disadvantageous position, was made to sign letter Annexure C-7 dated 07.10.2015 with regard to relocation to plot no.787 i.e. after more than 4 years of booking of earlier plot vide application dated 18.01.2012, no benefit can be culled out therefrom by the opposite party, especially, in the face of contents of the report of the Chief Administrator, GMADA, extracted above. At the same time, the opposite party failed to convince this Commission, as to why it failed to allot plot no. and execute agreement in respect of the plot booked by the complainant on 18.01.2012 and made her to wait till 07.10.2015 and ultimately relocated her to plot no.787. Under these circumstances, it is held that it was only under compelling circumstances that the complainant was made to fill and sign the pre-printed applications Annexure C-6 and C-7 seeking relocation to plot no.787 and as such no benefit can be taken therefrom by the opposite party.

13. Now coming to the possession, so allegedly offered by the opposite party, in respect of plot no.787 to the complainant, it may be stated here that it is well settled law that onus to prove the stage and status of infrastructure and development work at the project site and that all the permissions/ certificates/approvals have been obtained in respect of the project in question, is on the builder/developer. It was so said by the National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014.

However, in the present case, there is a strong reason with this Commission to believe that opposite party was not ready with the possession of even relocated plot no.787 and offer of possession allegedly made by it vide letter dated 16.06.2020 even, was nothing but a tool to usurp the remaining amount from the complainant and the reason for that is the candid admission of the opposite party in its written reply in para no.17, that the landscaping, electricity lines, internal roads, street lighting, open green spaces, sewerages and other development works are near completion. This reply has been filed by the opposite party on 15.10.2020 and in this reply itself, the opposite party is still saying that landscaping, electricity lines, internal roads, street lighting, open green spaces, sewerages and other development works at the project site are near completion. This candid admission of the opposite party itself leaves no scope for it to say that it was ready for delivery of possession of the plot in 2017, 2018 or even by 16.06.2020 and as such, it can safely be said that the letters aforesaid reliance whereupon has been placed by the opposite party to say that the complainant was asked number of times to make remaining payment and take over possession of the plot, were sent just with a view to cause further financial loss to the complainant by usurping the remaining amount. The case of the complainant is proved from the admission made by the opposite party itself. Even otherwise, in case, the development/ construction activities were completed, when possession of the said plot was allegedly offered to the complainant, then it was for the opposite party, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development/construction activities, had been undertaken and completed at the site or not, but it failed to do so. Mere placing on record some photographs (most of which pertain to the flats), perusal of which too reveal that still a lot of work is pending to be done at the project site, no other cogent and convincing evidence has been placed on record, to prove that the development is at the advance stage and that basic amenities such as roads, electricity, sewerage etc. are near completion, as alleged in the reply. Infact contrary stands have been taken by the opposite party in its written reply. In para no.17 referred to above, it has been stated that the development work is near completion, whereas in para no.13 it has been stated that as per notification dated 30.01.2020 issued by the Govt. of Punjab, the period of completion of the project has been extended upto 31.12.2022. Again in para no.16 it has been stated that initially the State Government has granted completion of project ill 13.06.2018, which has been extended till 13.06.2020.

Under these circumstances, it is held that the complainant was not obliged to make the remaining payment as demanded vide letter dated 16.06.2020, Annexure O-2, as the opposite party was not actually ready for delivery of physical possession of the relocated plot no.787 for dearth of development activities mentioned above. The opposite party was thus deficient in providing service and guilty of adoption of unfair trade practice on this count too.

It is pertinent to mention here that since it has been candidly admitted by the opposite party that even by the date when reply has been filed in this case, that the basic amenities aforesaid i.e. landscaping, electricity lines, internal roads, street lighting, open green spaces, sewerages and other development works are near completion; as such, we are of the considered opinion that we need not to enter into the question of obtaining completion certificate in respect of the project in question by the opposite party or the legality of exemption certificate dated 25.01.2017 aforesaid, from the provisions of PAPR Act.

14. In this view of the matter, the opposite party also cannot wriggle out of its liability, by saying that delay took place on account of the reason that the complainant defaulted in making remaining payment, in view of principle of law laid down by the Hon€™ble Supreme Court of India in Haryana Urban Development Authority Vs. Mrs. Raj Mehta, Appeal (Civil) 5882 of 2002, decided on 24.09.2004, wherein it was held that if the builder is at fault in not delivering possession of the units/plots by the stipulated date or within a reasonable period where no agreement is executed, it cannot expect the allottee(s) to go on paying installments to it. Similar view had also been taken by the Hon€™ble National Commission, in Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), wherein it was held that when development work was not carried out at the site, the payment of further installments was rightly stopped by the purchaser. Thus, if the complainant did not make remaining payment or it withheld some part of payment for a short duration, when she came to know that the project has been launched without obtaining necessary approvals/sanctions from the competent Authorities; there was no development at the project site and also there was gross violation on the part of the opposite party of the provisions of Section 6 of PAPR Act, in not getting the agreement executed within a reasonable period of receiving amount equal to 25% of the total sale consideration, she was right in doing so, in view of principle of law laid down by the Hon€™ble Supreme Court in Haryana Urban Development Authority (supra).

15. To wriggle out of the allegation leveled by the complainant, the opposite party has stated that delay in offering possession of the plot in dispute occurred on account of force majeure circumstances having been faced by the company i.e. due to COVID-19 the project was hampered; litigation between sand mafia and govt. resulting into shortage of building material; delay in approvals with regard to connection of sewerage and drainage and recession in the real estate market.

First coming to delay in approvals on the part of the Govt. Departments, regarding connection of sewerage and drainage, it may be stated here that not even a single letter has been placed on record by the opposite party showing that it ever reported the Govt. Authorities concerned that there is a delay on their part in granting such sanctions/approvals in respect of the project in question or that any such letter, by which it has given notice to the said Authorities that in case the needful is not done in a prescribed time, the Company shall move to the appropriate platform of law, in the matter.

Now coming to the plea regarding shortage of construction material like sand etc. on account of litigation between the sand mafia and govt., it may be stated here that nothing has been placed on record by the opposite party to prove that it was unable to procure the said construction material, in adequate quantity, on account of the alleged litigation. There is no evidence of the opposite party having invited tenders for supply of construction material and there being no response to such tenders. A similar plea with regard to shortage of building material as a cause for delay in delivery of possession of the plots/units was taken by a builder before the Hon`ble National Consumer in Consumer Case No.347 of 2014, titled as Swaran Talwar & 2 others v. M/s Unitech Limited (along three connected complaints), decided on 14 Aug 2015, which was rejected and the complaint was allowed in favour of the complainant.

As far as plea taken with regard to COVID-19 is concerned, it may be stated here that the said pandemic took place in India in March 2020, when lockdown was executed. However, lockdown which took place in March 2020 due to COVID-19, has no relation whatsoever, with the inordinate delay in the matter, as the plot in question had been purchased by the complainant as far as back in 2012 and relocated plot in October 2015. Even as per Clause 35 of the agreement dated 04.07.2016, possession of the relocated plot was to be delivered to the complainant within a period of 36 months i.e. latest by 03.07.2019 i.e. the date when there was no COVID-19. Even grace period of 6 months already stood lapsed on 03.01.2020 when still there was no COVID-19, possession of the plot in question was not delivered by the opposite party. In this view of the matter, no help therefore can be drawn by the opposite party, in this regard. Thus, in the present case, the opposite party failed to convince this Commission, that it actually encountered force majeure circumstances (which means irresistible circumstances beyond ones control such like act of God etc.) as a result whereof, delay in handing over possession of the plot occurred. Plea taken by the opposite party, in this regard, therefore stands rejected.

16. Now we will deal with the objection taken by the opposite party to the effect that this complaint needs to be dismissed on the ground that HDFC Bank from which the complainant has availed housing loan has not been impleaded as a necessary party. It may be stated here that the complainant in this complaint has sought directions to the opposite party for delivery of actual physical possession of the relocated plot, complete in all respect. In our considered opinion, HDFC Bank was not required to be impleaded as party to this complaint, as there is no allegation levelled against it by the complainant and also at the same time, it is not a case of refund. Even otherwise, in refund cases also, this Commission always pass directions to the effect that the first charge of the amount due shall be released to the financial institution/bank concerned, from which any housing loan has been obtained, irrespective of the fact that the said organization has been made a party to the complaint or not. In this case, since it is a possession case, as such, order passed therein will not cause any prejudice to the opposite party and in case there is any dispute between the complainant and HDFC Limited, it (HDFC) is always free to take legal recourse in that regard, under the platform of law available to it. In this view of the matter, objection taken stands rejected.

17. As far as payment of EDC and IDC is concerned, it may be stated here that since the complainant vide payment plan attached with agreement dated 04.07.2016, Annexure C-8, has agreed to pay the said charges and there is nothing on record that she even challenged the said charges at the time of signatures of the said agreement, as such, now she cannot wriggle out of the same and is liable to pay the same to the opposite party.

18. Now we will deal with the question, as to how much amount stood deposited by the complainant with the opposite party towards price of the plot in question. The dispute, if any, raised by the opposite party, is only with regard to payment of Rs.3,70,000/-. The complainant is relying upon copy of cheque dated 22.10.2015, Annexure C-5, in the sum of Rs.3,70,000/- to say that the said amount was also paid to the opposite party as the same bears the receipt of the said cheque by it, whereas, on the other hand, the opposite party though admitted receipt of the said cheque, but pleaded that the said cheque has not been got encashed by it. Under these circumstances, it was required of the complainant to place on record copy of the statement of account of the bank concerned, to prove that the said amount has actually been credited to the account of the opposite party but she failed to do so. As such, we feel it appropriate to pass directions that the complainant is at liberty to provide a copy of the said statement of account to the opposite party to prove that the said amount has been credited to its account and if she does so, the opposite party shall be liable to adjust the said amount, accounting it from the said date only.

19. Now the question arises, as to what compensation shall be granted to the complainant, for delay in delivery of possession of the plot to her, by the opposite party. No doubt, the complainant has sought consolidated compensation to the tune of Rs.10 lacs, for the period of delay with other reliefs, yet, we are of the considered opinion that she is liable to get compensation, similar to what is being granted to the similar located consumers. The Consumer Protection Act has been made to safeguard consumer rights. This Act is regarded as the 'Magna carta' (everyone is subject to the law, even the king, and guarantees the rights of individuals, the right to justice and the right to a fair trial) in the field of consumer protection for checking unfair trade practices, €˜defects in goods€™ and €˜deficiencies in services€™ and it works and protects consumers even in situations where they do not know their rights. At the same time, it is relevant to mention here that, in the absence of a specific prayer, it is still open to the Courts/Foras/ Tribunals to grant a relief which is appropriate, justified and warranted in the facts and circumstances of the case. Our this view is supported by the findings given by the Hon€™ble National Commission in BPTP Ltd. Vs. Pradeep Sharma, First Appeal No. 1516 of 2019 decided on 23 Dec 2019. Relevant part of the said order is reproduced hereunder:-

€œ€€With regard to the objection of the Developer that the Complainants are not entitled for the relief other than prayed for in the Complaint, the Hon€™ble Supreme Court as well as this Commission in catena of judgments has laid down the principal that in the absence of a specific prayer, it is still open to the Courts to grant a relief which is appropriate, justified and warranted in the facts and circumstances of the case€...€

20. As discussed above, as per Clause 35 of the agreement, Annexure C-8, possession of the unit was to be delivered within a maximum period of 42 months from the date of allotment, failing which, the opposite party was liable to pay compensation @Rs.40/- per square meter per month of area of the said plot, for delay in delivery of possession. However, on the other hand, it is evident from demand notices placed on record i.e. 16.06.2020, Annexure O-2 and 16.01.2018, Annexure O-6, that if there was any default on the part of the complainant, in making payment towards price of the said plot, the opposite party made itself entitled to interest @12% p.a. for the first month and thereafter @ 18% per annum till the payment is made. This shows that the terms and conditions of the agreement, which has been drafted by the opposite party are one-sided and favoured it. It is matter of common knowledge that the buyers have no option but to sign on the dotted lines or pre-drafted agreements prepared by the developer/builder. Failure of the opposite party to provide complete/effective possession of the plot within the stipulated period amounts to deficiency in service. It is also matter of common parlance that for purchasing the plot, the purchasers take loans from their family members, relatives and friends or financial institutions. In some cases, the purchasers live on rent in the absence of timely delivery of possession. On account of delay in delivery of possession within the stipulated period, they suffer mental agony, hardship and financial loss at the hands of the developers/builders. Sometimes, the purchasers take possession of the property in anticipation of fulfillment of remaining obligations of the builder/developer, only to secure the hard-earned money paid by them. In case Lucknow Development Authority v. M K Gupta (1994) 1 SCC 243, the Hon€™ble Supreme Court discussed about the extent of the jurisdiction of the Consumer Fora to award just and reasonable compensation for the harassment and agony suffered by a consumer. Recently in Civil Appeal No.6239 of 2019 (Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. v. DLF Southern Homes Pvt. Ltd. (now Known as BEGUR OMR Homes Pvt. Ltd. and Ors.) decided on 24.08.2020, while discussing the above authorities and discarding the one-sided terms of the Buyer€™s Agreements, the Hon€™ble Supreme Court awarded simple interest @ 6% per annum on the amount deposited by the complainant therein, in addition to the penalty amount, as prescribed in the agreement for delay in delivery of possession till delivery of actual and physical possession of the unit. Relevant part of the said order is reproduced hereunder:-

€œ€..Allowing the appeals in part, we set aside the impugned judgment and order of the NCDRC dated 2 July 2019 dismissing the consumer complaint. While doing so, we issue the following directions:

(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 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€€.€

In view of the observations of the Hon€™ble Supreme Court in the above noted case, we are of the view that the provision of penalty @Rs.40/- per square meter per month of area of the said plot as per Clause 35 of the agreement, which comes around between 2% to 2.5% p.a. only, is not sufficient to compensate the complainant for the delay in delivery of possession and the mental agony, harassment and financial loss suffered by her on account of this reason.

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Therefore, in addition to aforesaid penalty @Rs.40/- per square meter per month of area of the said plot, after the expiry of stipulated date of delivery of possession i.e. 03.01.2020 till the date of actual, physical and legal delivery of possession, the complainant is also entitled to simple interest on the entire amount deposited by her @ 6% per annum from 03.01.2020 till delivery of possession of the plot in the manner, as discussed above. 21. At the same time, it is also held that since the amount paid by the complainant for the plot initially booked by her was also utilized by the opposite party starting from 18.01.2012 till 04.07.2016 (the date of agreement of relocated plot no.787), without providing her anything, she is entitled to interest on the said amount, for the financial loss as also mental agony & harassment suffered by her on that count, during the period aforesaid. 22. For the reasons recorded above, this complaint is partly accepted with costs and the opposite party is directed as under:- 1.To deliver possession of relocated plot no.787 aforesaid, complete in all respects, to the complainant, within a period of 3 months from the date of receipt of a certified copy of this order. 1. To pay compensation @Rs.40/- per square meter per month of area of the said plot, as per clause 35 of the agreement and also interest @6% p.a. on the entire deposited amount, for delay in delivery of possession of the plot in question, starting from the promised date of delivery of possession i.e. 03.01.2020 till 31.01.2021, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire amount shall carry penal interest @12% p.a. from the date of default till this payment is made. 1. To pay compensation @Rs.40/- per square meter per month of area of the said plot aforesaid and also interest @6% p.a. on the entire deposited amount w.e.f. 01.02.2021, onwards (per month), by the 10th of the following month to the complainant till actual delivery of physical possession of the plot, complete in all respects. Thereafter, the complainant shall be at liberty to get the sale deed executed directly from the Registering Authority or through the opposite party, on making payment of stamp duty charges/other charges as applicable under law. At the same time she shall be liable to make the remaining payment towards price of the said plot, as per demands raised by the opposite party and, in future, shall not be left with any immunity of payment of delayed interest, in case there is delay in making payments on her part, except/save, if the demand is raised in the absence of development activities at the project site. 1. To pay interest @12% p.a. on the entire amount paid by the complainant for the period from 18.01.2012 till 04.07.2016 (the date of agreement of relocated plot no.787) towards the financial loss caused to her, as the amount deposited by her towards booking of initial plot starting from 18.01.2012 till 04.07.2016, was utilized by it (opposite party) for its own purposes and the plot booked in the Palm Garden was not provided to her and she was relocated after a long delay of about 4 years of initial booking, which further caused her mental agony and harassment; and cost of litigation to the tune of Rs.35,000/- within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amounts shall carry penal interest @15% p.a. from the date of default till realization. 23. Certified Copies of this order be sent to the parties, free of charge. 24. The file be consigned to Record Room, after completion.
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