(The matter has been heard through virtual hearing).
1. The brief facts giving rise for the disposal of the present complaint are that complainants had purchased an apartment No. 1203, Tower No. 5A, having super area of 1,850 sq. ft. approx. at a basic sale price of Rs. 2,976 per sq. ft. from the opposite parties. The total sale price of the apartment amounting to Rs. 55,05,600 and Rs. 3,00,000 as car parking etc. On 19.7.2010, the Apartment Buyer Agreement was executed between the parties. In total, the complainants had paid Rs. 53,82,806 to the OPs, except last installment of Rs. 5,12,925, which was paid on 29.11.2016 vide cheque No. 536571. As per Clause 25 of terms and conditions of the Apartment Buyer Agreement, the O.Ps. were bound to deliver the possession of the flat within 36 months from the date of execution of Apartment Buyers Agreement and in case of non completion of the construction in all respects, the OPs were required to pay compensation @ Rs. 10 per sq. ft. per month. The OPs offered the possession of apartment to them vide letter dated 25.1.2016. The possession of the apartment was offered too late i.e. after 2 and half years from the scheduled date of giving possession. After receiving letter dated 25.1.2016, the complainants came to the site for seeking possession and to pay balance dues, but, they were shocked to see that project was still incomplete, only few towers had been completed and the construction work was still going on at the project site. The basic amenities like water, sewerage, electricity, wood work, flooring etc. as shown in the sample flat, which were promised at the time of booking of the apartment had not been completed by the OPs. They visited the site office of OPs and requested to complete the basic amenities and the project, but, the project as well as basic amenities were still incomplete in all respects. The complainants were again shocked to receive letter dated 4.10.2016, Wherein interest @ 24% had been sought by the OPs on outstanding dues. The interest levied was NIL as shown in letter dated 16.5.2012 issued by the OPs, but, as per the interest calculation sheet shared by the OPs, it was calculated since beginning which reflects a complete mismatch/miscalculation and malpractice. As per letter dated 25.1.2016, the previous outstanding amount was reflected as Rs. 2,53,207 and compensation amount on delayed possession as adjusted by the OPs, was reflected as Rs. 4,95,800. Thus reflecting net amount of Rs. 2,42,593 which was payable by the complainants. As per Clause 5 of the agreement dated 19.7.2010, the apartment has been defined as area and pro rate share of the common areas and facilities within the said project , therefore the letter offering the possession issued by the OPs was contrary to the terms of agreement and mala fide act on the part of OPs. The OPs again issued letter dated 9.12.201 6 to them demanding arbitrary interest @ 24% p.a. on delayed payment, which was replied by the complainant vide letter dated 12.12.2016. They made representation to OPs to redress their grievance on 13.12.2016 but all the efforts were in vain. They requested the OPs to provide basic amenities like water, sewerage, electricity, wood work, flooring etc. and other facilities as shown in the sample flat. They requested the OPs to waive of the illegal charges of excessive interest @ 24% p.a. on the delayed payment. They also requested the OPs to handover the possession of the apartment in question complete in all respects and further to pay interest @ 12% p.a. on the total amount paid by the complainants to the OPs from the tentative date of delivery of possession i.e. 19.7.2013. Thus there was deficiency in service on the part of the OPs.
2. Upon notice, opposite party appeared and filed the written statement denying all the allegations made by the complainant. Preliminary objections about pecuniary jurisdiction, complainant is not consumer, concealment of material facts etc. were also raised and requested to dismiss the complaint.
On merits, it was denied that the complainants purchased the apartment in question. It was stated that complainants booked the said apartment with the OPs and were allotted the unit. It was denied that there was any representative of the OPs. The complainants booked the unit after going through the terms and conditions and being satisfied on all counts. It was also denied that complainants deposited the entire amount. As per record of the OPs as on 15.2.2017, the complainants had paid a sum of Rs. 58,95,731 and Rs. 7,49,292 remains outstanding. Clause 25 of the agreement clearly stated that owner contemplates to complete the construction of the said building/apartment within 3 years from the date of execution of this agreement OR approval of all services plans whichever is later. The service plans were approved on 27.12.2013. Occupation certificate was granted for tower in question on 18.1.2016 and possession offered to the complainants on 25.1.2016, i.e. well within the period of three years from approval of service plans set out in the agreement. As per Clause 25 of the Apartment Buyer Agreement, the possession offered to the complainants was within the period of three years from approval of service plans. It was also denied that possession of the apartment was offered after two and a half years from scheduled date. It was alleged that complainants were defaulter and they remain so having failed to make the balance payments despite reminders and cancellation notice. It was denied that project was incomplete. The tower where unit of complainants was located had been completed and occupation certificate granted by the competent authority. The possession had been offered to the complainant only upon completion of all amenities including water, sewerage, electricity and completion of wood work flooring etc. The construction was to be completed as per provisional specifications set out under the agreement. Any executive of the OPs assured complainants that no interest shall be charged. All demands including interest raised on 4.10.2016 were strictly in accordance with clauses 6, 26 and 33 of the apartment buyer’s agreement. The interest on the delayed payments has been demanded in accordance with the terms of the agreement. As a goodwill gesture the OPs vide letter dated 20.4.2016 offered a one time amnesty scheme wherein it was decided to waive 50% of interest accrued on delayed payments subject to payment of outstanding amounts before 20.5.2016, however, the complainants failed to take advantage of such scheme and did not deposit any payments. It was denied that the interest was calculated by arbitrary methods. It was submitted that amounts under every head were explicitly mentioned in the possession offer letter dated 25.1.2016. As on date, complainants were liable to pay (i) Rs. 4,66,270 towards basic price (ii) Rs. 7,20,143 towards interest, (iii) Rs. 3,84,184 towards holding charges, (iv) Rs. 93,337 towards service tax and Rs. 1,07,853 towards maintenance charges. All the payments were made by the complainants to the OP at New Delhi, i.e. the registered office of the OP and all receipt were issued from New Delhi. The Hon’ble Commission does not have territorial jurisdiction to adjudicate the present complaint. Thus there was no deficiency in service or unfair trade practice on the part of the OPs. The OPs respectfully prayed that the present complaint be dismissed with costs.
3. When the complaint was posted for recording evidence of the parties, Mr. Sandeep Goel-CW-1 in his evidence has tendered the affidavit Ex.CA vide which he has reiterated all the averments taken in the complaint and further tendered the documents Ex.C-1 to Ex.C-17 and closed his evidence.
4. On the other hand, in order to rebut the evidence led on behalf of the complainant, O.Ps. had also tendered the affidavit Ex.RA that of Mr. Ashwani Sharma authorized representative of OPs and further tendered the documents Ex.R-1 to R-8 and closed its evidence.
5. The arguments have been advanced by Mr. Abhineet Taneja, the learned Counsel for the complainants as well as Mr. Ashim Aggarwal, the learned Counsel for the opposite parties. With their kind assistance, the entire record including documentary evidence as well as, the evidence which had been led during the proceedings of the complaint has also been properly perused and examined.
6. As per the basic averment taken in the complaint and the reply filed thereto including the contentions raised by the learned Counsel for the parties, the basic and foremost questions which requires adjudication by this Commission is as to whether the present complainants are entitled to get basic amenities like water, sewerage, electricity, wood work, flooring etc. and other facilities as shown in the sample flat? Whether waive of the charges of excessive interest @ 24% p.a. on the delayed payment is legal or illegal? Whether the complainants are entitled to handing over the possession of the apartment in question complete in all respects? Whether the complainant is entitled for service tax? Whether the complainants are entitled to get interest @ 12% p.a. on the total amount paid by the complainants to the OPs from the tentative date of delivery of possession, i.e. 19.7.2013?
7. While unfolding the arguments it has been argued by Mr. Abhineet Taneja, the learned Counsel for the complainants that as far as executing the buyers agreement (Annexure C-3) is concerned it is not in dispute. It is also not in dispute that the basic price of the flat was Rs. 2,976 per sq. feet. It is also not in dispute that a total sum of Rs. 57,67,965 (as per written arguments) had been paid by the complainants to the O.Ps. As per the buyers agreement, the possession complete in all respect was to be delivered to the complainant by the O.Ps within three years from the execution of agreement. The possession was offered to the complainants on 25.1.2016 much later than the date mentioned in agreement or committed by the OPs after 30 months. Vide letter dated 16.5.2012, the OPs submitted that interest amount was NIL, whereas vide letter dated 4.10.2016, the opposite parties illegally demanded outstanding dues alongwith 24% interest. The opposite parties obtained occupation certificate on 18.1.2016 without completing the basic amenities. However, inspite of the fact that amount of Rs. 57,67,965 stood paid. Under these circumstances the complainants had no other option, but, to seek demand, the facility of complete basic amenities from the OPs and thereafter handing over the possession of the apartment in question complete in all respects and to pay interest @ 12% p.a. on the total amount paid by the complainants to the OPs from the tentative date of delivery of possession, i.e. 19.7.2013. The Counsel for the complainant further prayed that illegal demand made by the respondent be quashed. The complainant has placed his reliance upon a celebrated authority of this commission in first Appeal No. 1103 of 2016 titled as M/s. DLF Homes v. Anuradha Gupta, decided on 29.8.2018. It is argued that this case is fully covered under this authority. It is prayed that complaint be allowed alongwith interest.
8. On the other hand, it has been argued by Mr. Ashim Aggarwal, the learned Counsel for the O.Ps. that complainants have not paid the amount as per the repayment schedule. There was a delay in making the payment of the amount. The total cost of flat was Rs. 60,46,180. The complainant had paid total amount of Rs. 58,95,731 against the flat. It is true that the documents were executed between the parties, which includes the buyers agreement, which contains all the terms and conditions for allotment of the flat, for payment of the installments, charging the interest for delayed payment and delivering of possession. As per terms and conditions of the agreement, the O.Ps. were bound to deliver the possession of the flat within 36 months from the date of signing of agreement. The O.Ps. have not committed any breach of agreement. Clause 25 of the agreement clearly stated that owner contemplates to complete the construction of the said building/apartment within 3 years from the date of execution of this agreement OR approval of all services plans whichever is later. The service plans were approved on 27.12.2013. Occupation certificate was granted for tower on 18.1.2016 and possession offered to the complainants on 25.1.2016, i.e. well within the period of three years from approval of service plans set out in the agreement. As per Clause 25 of the Apartment Buyer Agreement, the possession offered to the complainants was within the period of three years from approval of service plans, thus the complainants are not entitled to any benefit. The complainants were defaulter and they did not deposit the balance payments despite reminders and cancellation notice. The tower where unit of complainants was located has been completed and occupation certificate granted by the competent authority on 18.1.2016 . Since the possession offered to the complainant only upon completion of all amenities including water, sewerage, electricity and completion of wood work flooring etc. All demands including interest raised on 4.10.2016 were strictly in accordance with clauses 6, 26 and 33 of the apartment buyer’s agreement. The interest on the delayed payments has been demanded in accordance with the terms of the agreement. The OPs vide letter dated 20.04.2016 offered a one-time amnesty scheme wherein it was decided to waive 50% of interest accrued on delayed payments subject to payment of outstanding amounts before 20.5.2016, however, the complainants failed to take advantage of such scheme and has not remitted any payments. The learned Counsel for the OPs further submitted that complainant be liable to pay Rs. 26,26,097. He placed reliance upon authority of Hon’ble Supreme Court in Supetech Ltd. v. Rajni Goyal, I (2019) CPJ 30 (SC)=I (2019) SLT 210, in Civil Appeal Nos. 6649-50 of 2018, decided on 23.10.2018 and DLF Homes Panchkula Pvt. Ltd. and Ors. v. D.S. Dhanda and Ors., II (2019) CPJ 117 (SC)=IV (2019) SLT 675. In Civil Appeal Nos. 4910-4941/2019 decided on 10.5.2019. It is argued that both case are covered and it is prayed that complaint be dismissed alongwith cost.
9. In view of the above submission and after careful perusal of the entire record, it is not in dispute that upon floating of project by the builders, flat was agreed to be purchased by the complainants for which total amount of Rs. 57,67,965 had been paid. The flat was allotted to the complainants is also not disputed. As per buyer agreement, the possession of the flat was to be delivered within period of 36 months subject to some reservation. Entering or inserting Clause 25 in the agreement having provision (owner contemplates to complete the construction of the said building/apartment within 3 years from the date of execution of this agreement OR approval of all services plans whichever is later) is absolutely wrong, confusing to mislead the innocent consumer to agree and sign such unlawful agreement, where the seller/builder has created a provision favourable to itself and which would give limitless time to OPs to continue till eternity.
10. As submitted by the O.Ps. that the tower was ready with basic amenities and the OPs had got issued occupation certificate as well as completion certificate by the authorities concerned. However surprisingly the OPs has not placed on the file either the copy of completion certificate or copy of occupation certificate granted by the competent authorities. Even if presuming that the authorities had issued occupation certificate, yet it was incumbent upon the OPs to have assured that the flat was fit in every respect in terms of agreement. The flat was to be allotted complete in all respects mere providing basic necessities, such as water supply, electricity, sewerage, drainage, rain harvesting system, LED in the building, street lighting, storm water and environmental clearance, without there being any internal fittings complete, it cannot be considered as fit for residence. This fact further stands corroborated from the fact that in the same tower, where complainant was allotted the flat, possession letters were issued on more than one dated i.e. letters dated 12.6.2017, 28.8.2016, 16.10.2016, 20.11.2016 and 6.4.2017 Ex. OP-5 (Colly). These letters were issued after the issuance of offer of possession to the complainant. This rather proves the case of complainant that flats were actually not fit for residence on the date it was offered to complainant.
11. The OPs are relying upon letter dated 18.1.2016 treating it to be completion certificate and occupation certificate to have been issued by the concerned authority, i.e. DTCP. Perusal of the said letter shows that vide said letter the DTCP has granted permission to occupy subject to payment of Rs. 22,71,012 and with further conditions detailed below:
“1. The building shall be used for the purposes for which the occupation certificate is being granted and in accordance with the uses defined in the approved zoning regulations/zoning plan and terms and conditions of the licence. Any violations of this condition shall render this occupation certificate null and void.
2. That you shall abide by the provisions of Haryana Apartment Ownership Act, 1983 and Rules framed thereunder. All the flats for which occupation certificate is being granted shall have to be compulsorily registered and deed of declaration will have to be filed by you within the time schedule as prescribed under the Haryana Apartment Ownership Act 1983. Failure to do so shall invite legal proceedings under the statute.
3. That you shall obtain the connection for disposal of sewerage and drainage from HUDA after laying the services to the point of external services on payment of prescribed fee and charges including the cost of such connection. You shall also maintain the internal services to the satisfaction of the Director till the colony is handed over after granting final completion.
4. That in case some additional structures are required to be constructed as decided by HUDA at later stage, the same will be binding upon you.
5. That you shall maintain roof top rain water harvesting system properly and keep it operational all the time.
6. The basements and stilt shall be used as per provisions of approved zoning plan and building plans.
7. That you shall comply with all the conditions laid down in the Memo No. DFS/FA2015/195/39518 dated 10.7.2015 of the Director, Haryana Fire Service, Haryana, Panchkula with regard to fire safety measures.
8. That you shall comply with all the stipulations mentioned in the Environment clearance issued by Government of India, Ministry of Environment and Forests vide No. 21-32/2007-IA, III dated 23.7.2007.
9. The day & night marking shall be maintained and operated as per provision of International Civil Aviation Organization (ICAO) standard.
10. That the outer faade of the buildings shall not be used for the purposes of advertisement and placement of hoardings.
11. That you shall neither erect nor allow the erection of any communication and transmission tower on top of the building blocks.
12. That you shall use light-emitting diode lamps (LED) in the building as well as street lighting.
13. That you shall impose a condition in the allotment/possession letter that the allottee shall used light emitting diode lamps (LED) for internal lighting, so as to conserve energy.
14. That you shall apply for connection for water, electricity, sewerage and storm water within 15 days from the date of issuance of occupation certificate and shall submit the proof of submission thereof to this office.
15. That provision of parking shall be made within the area earmarked/designated for parking in the colony and no vehicle shall be allow to part outside the premises.
16. That the service plans/estimates for electrical infrastructure shall be submitted to the concerned authority within sixty days of this approval and submit the approval of the same to the Department before applying the completion certificate of the colony under Rule-16 of the Haryana Development and Regulation of Urban Areas Rules, 1976.”
Without compliance of these conditions it cannot have been treated as occupation certificate for all intents and purposes nor this can be treated and used by the OPs as occupation certificate free from conditions. OPs has not placed on the file any evidence for compliance of these conditions and in specific about connection of water, electricity, sewerage and storm water that appears to be the reason as to why the offer of possession was being issued to different persons at different times. Had the tower been complete in all respects, there was no reason as to why piece meal offer of possession was being issued to different allottees as per Ex. OP-5 (colly). More particularly, whether the conditions imposed by the competent authorities while granting occupation certificate, a conditions included the provisions of electricity, such as water supply, sewerage, drainage, rain harvesting system, LED in the building, street lighting, storm water and environmental clearance, which were certainly basic necessities for residence. This was certainly an unfair trade practice on the part of the OPs by giving offer of possession for incomplete building and charging exorbitant holding charges from the complainants.
12. Further it is settled law by the Hon’ble National Commission, New Delhi in First appeal bearing NO. 557 and 683 of 2003 titled as Komal Sood v. DLF Universal Ltd., decided on 20.4.2007 has observed “ it would be unfair trade practice, if the builder without any planning and without obtaining any effective permission to construct building/apartments invites offers and collects money from the buyers. The Hon’ble National Consumer Disputes Redressal Commission, New Delhi in First Appeal Bearing No. 342 of 2014 titled as Emaar MGF Land Ltd. and Another v. Karnail Singh and Another, decided on 25.7.2014 has observed: “The appellants should have given firm date of handing over the possession the time of taking the booking amount itself. By not indicating true picture with regard to their project to the respondents, the appellants induce them to part with their hard earned money, which also amounts to unfair trade practice. Hence, the acts of OPs to collect money before getting all the necessary approvals for the project and not giving the confirmed date of handing over possession of the flat in question, certainly proves deficiency in service and indulgence in unfair trade practice.
13. In the calculation sheet provided by the OPs in addition to other charges, OPs has also charged service tax from the complainant. In the document Ex. C-6 dated 4.10.2016 vide which the OPs has sent calculation sheet of amount due, OPs under the head of service tax due has mentioned Rs. 1,66,345. In addition OPs have also charged service tax in earlier installments. In such like contracts, the builder cannot charge service tax. Hon’ble High Court of Delhi in the judgement reported as Suresh Kumar Bansal v. Union of India and Others, 231 (2016) DLT 374 (DB)=IV (2009) CLT 360 (SC)=, WPC No. 2235/2011, decided on 3.6.2016 as held that the builder could not have charged service tax as it was not attracted and further holding that if the builder has charged the same the builder shall refund the same with interest. Para No. 56 of the judgement is reproduced below:
“These petitions were admitted by an order dated 21.7.2011 and the applications for stay of recovery filed alongwith the petitions were disposed of by directing that if any amount is collected on the basis of the impugned explanation, the same shall be refunded with the interest in case the petitioners succeed. Accordingly, the concerned officer of Respondent No.1 shall examine whether the builder has collected any amount as service tax from the petitioners for taxable service as defined in Section 65 (105) (zzzh) of the Act and has deposited the same with the respondent authorities. Any such amount deposited shall be refunded to the petitioners with interest @ 6% from the date of deposit till the date of refund.
In view of the above, the complainants is also entitled for refund of service tax amount.
Our own Commission order passed in First Appeal No. 1103 of 2016 titled as M/s DLF Homes v. Anuradha Gupta, decided on 29.8.2018, in similarly situated circumstances wherein also the dispute was regarding delay in possession wherein it was held as under:
“10. In the considered opinion of this Commission, impugned order passed by the learned District Forum does not suffer from any illegality and while maintaining the same in all respect, the appeal filed by the appellant stands dismissed with the directions to the O.P. that the possession of the unit would be delivered to the respondents (hereinafter as a “Complainants”) within a period of two months from the date of passing of this order. It is further clarified that since the terms and conditions have not been honored by the present appellant, on the other hand the appellant has utilized the amount deposited by the complainants for sufficiently for a long period and in the interest of justice, the complainants would further be entitled to get the interest @ 12% from the respective deposits, in case the possession is not delivered within the stipulated period, in that eventuality, the complainants would further be entitled to get interest @ 18% p.a. from the date of default till realization. Remaining order passed by the learned District Forum would remain the same. With this modification, appeal stands disposed of. “
14. OP floated the project in the year 2010, the flats were booked in the year 2010, Apartment Buyers Agreement was executed on 19.7.2010, while the service plans were approved on 27.12.2013, original period agreed in the agreement was three years, certainly while floating the tower, the builder had no such permission nor the service plan had been approved by the authorities. The fact that the service plan was approved on 27.12.2013 clearly indicates that it was an unfair trade practice. The agreement was executed on 19.7.2010, the amount was received and even installments were received between the year 2010 to 2013 without builder having anything in this project and not even service plans and therefore the builder clandestinely introduced the words, after the words ”three years from the date of agreement or after the approval of service plans”, this was an uncertain date. Hon’ble Supreme Court in case titled as Pioneer Urban Land and Infrastructure Ltd. v. Govindan Raghavan and Another, II (2019) CPJ 34 (SC)=III (2019) SLT 435=, similar case has observed as under:
“It is the matter of fact that the opposite parties have already received the sale consideration for the said plot in excess but have not provided the complainants with the definite allotment letter and hence, the possession at the same, Pertinently, the opposite parties were not having all the required sanctions from the competent authorities when they took the initial amount from the complainants. It is evident from Annexure C-1 the sale agreement that hard earned money of the complainants is in the possession of the opposite parties since year 2012. It is settled law by Hon’ble National Commission, New Delhi in First Appeals bearing No. 557 and 683 of 2003 titled as Kamal Sood v. DLF Universal Ltd., decided on 20.4.2007 has observed: It would be unfair trade practice, if the builder, without any planning and without obtaining any effective permission to construct building/apartments, invites offers and collects money from the buyers. The Hon’ble National Consumer Disputes Redressal Commission, New Delhi in First Appeal bearing NO. 342 of 2014 titled as Emaar MGF Land Ltd. & Anr. v. Karnail Singh & Anr. Decided on 25.7.2014 has observed: “The appellants should have given firm date of handing over the possession at the time of taking the booking amount itself. By not indicating the true picture with regard to their project to the respondents, the appellants induced them to part with their hard earned money, which also a
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mounts to unfair trade practice.” Hence, the act of opposite parties to collect the money before getting all the necessary approvals for the project and not giving the confirm date of handing over possession of the plot in question certainly proves deficiency in service and their indulgence in unfair trade practice.” 15. OP has relied upon documents Ex.C-6 dated 4.10.2016 and Ex.C-7 dated 9.12.2016, which were purported to have been sent through courier. The entire correspondence has been sent by OPs through registered post except letters dated Ex.C-6 dated 4.10.2016 and Ex.C-7 dated 9.12.2016, which were purported to have been sent through courier. No proof of delivery has been annexed therewith. Certainly, the courier agency are on the pay rolls and may have issued the receipts or the OPs may have procured the receipts from courier agency, as had that been actually issued to complainant, there must have been proof of delivery also. Thus certainly these documents without there being any proof of delivery cannot be relied upon. 16. Further one time amnesty scheme floated by the opposite party is nothing but a coercive method to arm-twist the complainants to make payment quickly as per the design of the OPs. It is also extremely ridiculous to believe that the complainants were in default of payment as they had already paid an amount of Rs. 57,67,965 against a total cost of Rs. 60,46,180 (The OPs admitted in the written arguments that complainant paid Rs. 59,92,444 to the OPs). As such all the questions are answered in the affirmative. 17. In the light of the above observations, we are of the considered view that the opposite party is found deficient in rendering proper service to the complainants and have indulged in unfair trade practice. Hence, the present complaint of the complainants deserves to succeed against the opposite parties. Accordingly, the complaint stands allowed with directions to the OPs to waive off the holding charges as well as charges of interest @ 24% p.a. on the delayed payment and all other charges levied on the complainants and OPs are also directed to handover the physical possession of the apartment in question complete in all respects and to pay interest @ 12% p.a. on the total amount paid by the complainants from the tentative date for delivery of possession, i.e. 19.7.2013 till realization. The opposite parties are also directed to refund service tax amount, which was deposited by the complainant alongwith interest @ 6% from the date of deposit till the date of refund. The OPs are also directed to pay compensation of Rs. 2,00,000 (Two lacs only) on account of deficiency in service, harassment and mental agony suffered by the complainants by the acts of the OPs alongwith Rs. 50,000 as litigation expenses. In case, there is a breach in making payment within the stipulated period of 45 days, in that eventuality, the complainants would further be entitled to get the interest @ 15% per annum, for the defaulting period. It is also made clear that for non-compliance, the provisions enshrined under Section 72 of the C.P. Act would also be attracted. Complaint allowed.