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Judgment
Heard Counsel for the Parties.
The Complainant has challenged the order of the State Consumer Disputes Redressal Commission by which the complaint has been allowed and following orders has been passed:-
“Keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite Party to refund the entire amount paid by the Complainant i.e. Rs.35,05,865/- along with interest as per the following arrangement:
An interest @ 6% p.a. calculated from the date on which each installment/payment was received by the Opposite Party till 18.05.2023 (being the date of the present judgment);
The rate of interest payable as per the aforesaid clause (A) is subject to the condition that the Opposite Party pays the entire amount on or before 18.07.2023;
Being guided by the principles as discussed above, in case the Opposite Party fails to refund the amount as per the aforesaid clause (A) on or before 18.07.2023, the entire amount is to be refunded along with an interest @ 9% p.a. calculated from the date on which each installment/payment was received by the Opposite Party till the actual realization of the amount.
In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Party is directed to pay a sum of:
A. Rs. 2,00,000/- as cost for mental agony and harassment to the Complainant; and
B. The litigation cost to the extent of Rs.50,000/-”
The builder has challenged the above order in FA/756/2023, which has been dismissed on 03.08.2023.
Only contention of the Appellant is that the State Commission has awarded interest @ 6% per annum. Although, in similar circumstances Hon’ble Supreme Court in Civil Appeal No.4913 of 2015, M/s Ashoka Investment Co. Vs. United Towers India (Pvt.) Ltd. decided on 11.10.2022 held that as the builder was charging higher rate of interest, therefore, in case of refund, the buyer is also entitled for higher rate of interest and the Supreme Court has awarded interest @ 18% per annum on the amount of to be refunded.
We have considered the arguments of the Counsel for the parties, a Larger Bench of the Supreme Court in Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor reported in (2022) 15 SCC 286 held that in case of refund @ 9% interest from the date of respective deposit till the date of refund is appropriate and just compensation, which amounts to restitutory and compensatory both. Since the judgment of Sushma Ashok Shiroor (Supra) has been passed by a larger number of judges of Hon’ble Supreme Court as such it has overriding effect upon the Ashoka Investment Case (Supra). It may be mentioned that the judgment of Experion Developer Pvt. Ltd. (Supra) was prior in time even then it was escape from notice in Ashoka Investment case (Supra). In such circumstances, the ratio of Ashoka Investment case (Supra) cannot be relied upon.
Order
In the result, the appeal is partly allowed the order of State Commission is modified to the extent that the Appellant is entitled for interest @ 9% per annum from the date of respective deposit till the date of refund. The Order will be complied with within two months.