VISHAL ARYA S/O. SHRI MADAN LAL ARYA vs UNITECH LTD., & ANR.

Challenge in this First Appeal under Section 19 of the Consumer Protection Act, 1986 (for short "the Act"), is to the order dated 15.04.2013 passed by the State Consumer Disputes Redressal Commission, Delhi at New Delhi in Complaint No. 322 of 2009. By the impugned order, while allowing the complaint filed by the Appellant, alleging deficiency in service on the part of the Respondent No. 1, viz. Unitech Ltd., Opposite Party No. 1 in the Complaint, in not delivering the possession of the flat bearing No. 901, 9 th Floor, Block-14 in their project, christened as Unitech Fresco, the State Commission has issued the following directions:-

"i) the Opposite Party No. 1 shall refund 73,86,546/- to the Complainant together with interest @ 10% p.a. from the date of deposit to the date of realization.

ii) the Opposite Party No. 1 shall also pay 2.50 lac as compensation for mental agony, harassment and sheer suffering.

iii) the aforesaid amount i.e. 73,86,546/- if not paid within 30 days from the date of the judgment, the Opposite Party No. 1 shall pay interest @ 12% p.a. after expiry of the 30 days from the date of the judgment."

In short, the grievance of the Appellant is that although in his Complaint he had prayed for a direction to the said Respondent to immediately deliver possession of the flat to him along with necessary compensation on account of various losses, incurred by him in arranging the funds, on interest, the State Commission has erred in not issuing the direction for possession and in accepting his alterative prayer for refund of the amount deposited by him, along-with interest and compensation for financial suffering, harassment and mental agony, quantified in the Complaint at 10,00,000/-.

On 14.07.2014 when the case had come up for consideration, while recording the submission of Counsel for the said Respondent to the extent that they are still willing to pay to the Appellant the total amount of compensation as awarded by the State Commission, it was directed that before considering the prayer of the Appellant for delivery of possession of the flat in question, the said Respondent should first deposit in this Commission the entire decretal amount, within four weeks of that order.

On the following date i.e. 10.10.2014 Learned Counsel appearing for the said Respondent had stated that since there was some delay in obtaining the draft for the decretal amount, the same could not be deposited in the Registry. Taking note of the fact that the Appellant was not interested in the refund of the amount deposited by him, order dated 14.07.2014 was recalled and the Appeal was admitted. However, upon hearing Ld. Counsel for the parties on the question of interim relief, the said Respondent was directed to pay to the Appellant, compensation in terms of clause 4.c.ii of the Agreement to Sell w.e.f. 01.04.2009 i.e. the committed date of delivery of possession. Admittedly, the said compensation has since been received by the Appellant.

Ld. Counsel appearing for the said Respondent/Developer submits that since in the interregnum possession of the flat in question has already been delivered to the Appellant and the compensation in terms of order dated 10.10.2014 has also been paid to him by way of adjustment against the balance amount due from him, no further orders are called for in this Appeal, moreso when the Appellant has been a gainer on account of escalation in the price of the flat.

Per contra , Ld. Counsel appearing for the Appellant submits that in so far as the question of escalation in the price of the flat is concerned, that element would have, in any case, accrued to him had the possession of the flat been delivered by the committed date i.e. March, 2009, and therefore, the Appellant is still entitled to adequate compensation for the loss suffered on account of the said delay in the delivery of the possession, for which he had to hire accommodation for residence. He also asserts that the compensation, as awarded by the State Commission, also needs to be enhanced. In support of his submission that in similar matters, while directing delivery of possession of the flats booked in the same project, this Commission has directed payment of interest @ 12% p.a. as compensation for the delay in delivery of possession, from the date of the expiry of the periods stipulated in the Buyer''s Agreement/allotment letter Learned Counsel has placed before us copies of these orders. Finally, Learned Counsel submits that in the present case instead of a lumsum compensation awarded by the State Commission, the Appellant should be awarded interest at least at the rate of 8%, if not at the rate of 12% p.a., on the amounts deposited by him with the Developer.

Having bestowed our anxious consideration to the facts at hand, we are of the opinion that although the Appellant had been deprived of the benefit of the user of the flat for almost 7 years but regard being had to the fact that compensation in terms of clause 4.c.ii was directed to be paid from the committed date of delivery during the pendency of this Appeal, and the same has already been received by the Appellant as also the fact that the offer to the Appellant to take back the amount deposited by him along-with interest @ 10%, had been turned down by him, we are of the view that the orders of this Commission, pressed into service on behalf of the Appellant are clearly distinguishable on facts and therefore, we are not inclined to award any interest to the Appellant over and above the said compensation. Nevertheless keeping in view the fact that there was inordinate delay of almost seven years in delivery of physical possession of the flat, ends of justice would be subserved by enhancing the compensation as awarded by the State Commission from 2.5 lakhs to 3.5 lakhs.

Resultantly, the Appeal is partly allowed to the extent indicated above, with a direction that the balance amount of 3.5 lakhs shall be paid by Respondent No. 1 to the Appellant within four weeks from today, failing which the said amount shall carry interest @ 9% p.a. from the date of the order of the State Commission till actual realization. The Appellant shall also be entitled to costs quantified at 15,000/-.

The Appeal stands of disposed of in the above terms.