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Judgment
The Appeals have been filed assailing the orders of the State Consumer Disputes Redressal Commission, New Delhi dated 05.05.2020 whereby refund of the amount to which the Complainants/Respondents are entitled, have been directed with interest at the rate of 12% from the date of deposit till realization coupled with Rs.30,000/- cost in each of the cases. The penultimate order passed in paragraph 21 is extracted hereinunder:-
“21. Having regard to the discussion done and the legal position explained, I am of the considered view that the ends of justice would be met if a direction is issued to the Ops to refund to the complainant in each of the five cases the amount deposited by each complainant with interest relying on the judgement of the Hon’ble NCDRC in the matter of Anil Kumar Jain (Supra) at the rate of 12% from the date of deposit till realisation and litigation cost of Rs. 30,000/- in each case is ordered leaving the parties to bear the cost.”
The State Commission for applying the rate of interest referred to the judgments and observed in paragraphs 17 to 20 thereof and then ultimately applied the law laid down in the case of Anil Kumar Jain & Anr Vs. Nexgen Infracon Private Limited I (2020) CPJ 368 (NC).
Aggrieved, the present appeals were filed raising several grounds for setting aside the order impugned dated 05.05.2020. The Appeal was entertained and an interim order was passed on 04.02.2021 staying the execution proceedings subject to the Appellant depositing the entire decretal amount along with upto date interest in all the Appeals with the State Commission within a period of six weeks. It was recorded in the order dated 23.03.2021 that the said deposit was not made. Thereafter some writ petitions were filed before the Delhi High Court which were withdrawn with liberty to approach the National Consumer Disputes Redressal Commission some of them were withdrawn on 08.04.2021 with liberty to approach the Apex Court by filing a statutory appeal.
Accordingly, the Appellants approached the Apex Court by filing Civil Appeal no.7099 of 2021 along with other connected Appeals. Vide judgment dated 07.12.2021, the Apex Court set aside the interim order of this Commission on the ground that there were no reasons contained therein, but at the same time explained the law that the deposit over and above the statutory deposit under the provisions of the Act can also be directed by the Commission exercising discretion but reasons have to be recorded for the same. After the said direction of the Apex Court, a reasoned order was passed by the Commission on 05.01.2022 directing the Appellants to deposit the entire decretal amount subject to which the execution of the decree passed by the State Commission shall remain stayed. Further directions were issued to list these Appeals for final hearing.
It appears that the Appellants did not make any deposit and directions were issued to list these Appeals for final hearing.
The case was listed on 11.08.2023 and 26.09.2023 when indications were given with regard to an offer of settlement for which additional time was sought. Accordingly the matter was directed to come up on 11.01.2024 when the following order was passed after hearing the learned Counsel for the parties.
“DATED.11.01.2024
ORDER
Heard learned counsel for the appellant and the learned counsel for the respondents/complainants.
While considering the applications, what is also to be borne in mind is the real contest between the parties regarding the rate of interest payable on the amount awarded by the State Commission as to whether it should be 9% as claimed by the appellant or 12% as awarded by the State Commission.
Learned counsel for the respondents/complainants prays for time to assist the Bench along with the judgments that he proposes to rely on with regard to the calculation of rate of interest on such amount awarded by the State Commission. He prays for four weeks’ time to come up with those judgments.
Let a compilation be prepared and handed over to the learned counsel for the appellant.
List on 02.05.2024.”
The dispute therefore stood confined only to the rate of interest which is being contested by Mr. Agnihotri on behalf of the Appellants urging that the 12% interest awarded is not in conformity with the law laid down either by the Apex Court or this Commission and he therefore prays that rate of interest should only be 6%. He has relied on the following orders passed by this Commission to support his submissions.
S.NO.
CASE TITLE
CASE NO.
RATE OF INTEREST
Bimal Sharma & Anr. V. TDI Infrastructure Ltd;
CC/856/2017
6% P.A.
(Para 11 @ Pg 7)
S.P. Bhatia V. TDI Infrastructure Ltd;
CC/326/2017
6% thereafter 9% P.A.
(Para 21 @ Pg 18)
Om Prakash Kataria V. TDI Infrastructure Ltd & Anr.;
CC/1390/2017
6% thereafter 9% P.A.
(Para 20 @ Pg 28)
Dr. Punyatoya Patra V. TDI Infrastructure Ltd & Anr.;
CC/253/2017
6% thereafter 9% P.A.
(Para 23 @ Pg 40)
Vikas Bhutani V. TDI Infrastructure Ltd;
CC/944/2017
6% thereafter 9% P.A.
(Para 39 @ Pg 56)
He has then cited the case details of orders passed by the Apex Court pertaining to rate of interest in cases of refund which are to the following effect:
S.NO
CASE DETAILS AND CASE NO. ALONG WITH CITATION
RELEVANT PARA(S)
DLF Homes Panchkula Pvt Ltd v. DS Dhanda [(2020) 16 SCC 318]
23
Expression Developers Private Limited V. Sushma Ashok Shiroor [(2022) 15 SCC 286]
33
Jaypee Greens v. Yogesh Kumar Garg [FA/1620/2016]
13
M/s Jaypee Sports INTERNATIONAL Ltd. V. Rajan Luthra [FA/1786/2018
6&7
Ram Vila Sharma & Ors. V. M/s Gold Souk Infrastructure Ltd. & Ors. [FA/421/2018]
16&17
Shradha Anand & Ors. V. Anshal Hi-Tech Township Ltd. [2021 SCC OnLine NCDRC 576]
10
On the other hand, learned Counsel for the Respondent has placed reliance on the following judgments to substantiate his contentions.
S.NO.
PARTICULARS
Ghaziabad Development Authority Vs. Balbir Singh- Appeal (civil) no.7173 of 2002: (2004) 5 SCC 65, decided on 17.03.2004.
TDI Infrastructure Ltd. versus Rajendra Singh- Civil Appeals Nos.5915-5916 of 2019 decided by the Supreme Court vide Judgment dated 29.07.2019.
TDI Infrastructure Ltd. versus Ashok Goyal - Civil Appeal No.5607 of 2019 decided by the Supreme Court Judgment vide dated 12.07.2019
Puneet Malhotra vs Parsvnath Developers Ltd.-
2015 SCC Online NCDRC 1409 Consumer Complaint No.232 of 2014 decided by the National Consumer Redressal Commission New Delhi on 29.01.2015
Swarn Talwar & Ors. Vs Unitech Ltd. & Ors.-
2015 SCC Online NCDRC 3567 Consumer Complaint No.347 of 2014 decided by the National Consumer Redressal Commission New Delhi on 14.08.2015
Anil Kumar Jain and Ors. Versus Nexgen Infracon Private Limited 2019 SCC Online 716, Decided by the Hon'ble National Commission on 23rd December, 2019
Naresh Gaur VS Taneja Development Infrastructure Ltd. & Ors, 2019 SCC Online NCDRC 653 First Appeal No.265 of 2013 Decided by the Hon'ble National Consumer Disputes Redressal Commission on 13.02.2019
Dharamvir Singh versus Infrastructure Limited Revision Petition No.350 of 2015- Decided by the Hon'ble National Consumer Disputes Redressal Commission on 13th July, 2020.
M/s. ORS Infrastructure Pvt Ltd versus Sanjeev Kumar Decided by the Hon'ble National Commission on 24th February, 2020.
M/s. ORS Infrastructure Pvt. Ltd. versus Abhishek Khanna, Civil Appeal No.5785 of 2019, Decided by the Hon'ble Supreme Court on 11.01.2021.
Apart from the aforesaid judgments the learned Counsel has also filed another compilation with the following judgments.
S.NO
PARTICULARS
Bangalore Development Authority Vs. Syndicate Bank,
Civil Appeal No.5462 of 2002, decided on 17th May, 2007; (2007) 6 SCC 711; 2007 SCC OnLine SC 748
Fortune Infrastructure and Ors. Vs. Trevor D’Lima and Ors.
Civil Appeal nos.3533-3534 of 2017, decided on 12th March, 2018
Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan,
Civil Appeal No. 12238 of 2018 with No.1677 of 2019, decided on 2nd April, 2019; (2019) 5 SCC 725
Shri Anil Shantilal Gandhi Vs. M/S. Sahara Prime City Ltd.
Consumer Case No.355 of 2013 decided by the Hon’ble National Consumer Disputes Redressal Commission on 13th March, 2019
5.
Wg. Cdr. Arifur Rahman Khan & Aleya Sultana & Ors. Vs DLF Southern Homes Pvt. Ltd.,
Civil Appeal Nos. 6239 of 2019 and 6303 of 2019 decided on 24th August, 2020
Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna & Anr.,
Civil Appeal No.5785 of 2019 decided on 11th January, 2021; (2021) 3 SCC 241
Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor,
Civil Appeal Nos. 6044 of 2019 and 7149 of 2019 decided on 07th April, 2022
Vandana Mathur Vs. M/s TDI Infrastructure ltd. Decided by Haryana Real Estate Regulatory Authority Panchkula on 29.07.2022
Mr. Agnihotri has filed his submissions in the shape of notes along with the compilation trying to draw a distinction on the rate of interest awarded in other different projects and not connected to the same project or are in respect of other builders where facts are different.
Having considered the submissions raised and having perused the judgments that have been relied upon by the learned Counsel for the parties, it is correct that the rates of interest in the projects of the Appellants have been levied between 6% to 9% in the cases that have been cited decided by the State Consumer Disputes Redressal Commission, New Delhi.
The other judgments cited of the Apex Court indicate interest being awarded broadly at the rate of 9% for which reference may be had to the three Judges decision dated 07.04.2022 in the case of Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor(Supra).
Learned Counsel for the Appellant has sought to draw distinctions and he has also cited a three Member decision in the case of Jaypee Greens v. Yogesh Kumar Garg [FA/1620/2016] where also the rate of interest awarded is 9%. In another case the interest has been awarded at the rate of 8% in the case of Shradha Anand & Ors. V. Anshal Hi-Tech Township Ltd decided on 22.11.2021 by a Bench of this Commission reported in 2021 SCC OnLine NCDRC 576.
On the other hand, the judgments relied on by the learned Counsel for the Respondent are also worth noting. The reason is that they are decisions regarding refund vis-à-vis the projects of the Appellant even though not in the same project as the Complainants. One of the judgments of the Apex Court is in the case of TDI Infrastructure Ltd. vs Rajendra Singh (Supra) where 12% interested has been awarded by the Apex Court. The next judgment that arose out of an order in a First Appeal decided by this Commission. The Apex Court vide order dated 29.07.2019 reduced the interest of 18% awarded by this Commission to 12% in the case of TDI Infrastructure Ltd. versus Ashok Goyal (Supra). The other decisions relied on by the learned Counsel for the Respondent have been referred to hereinabove including the decisions which has been relied on by the State Commission Anil Kumar Jain & Anr Vs. Nexgen Infracon Private Limited 2019 SCC OnLine NCDRC 716. Another decision regarding 12% interest is that in the case of Naresh Gaur VS Taneja Development Infrastructure Ltd. & Ors, 2019 SCC Online NCDRC 653 followed by the order passed on 13.07.2020 in the case of Dharamvir Singh VS Infrastructure Limited Revision Petition No.350 of 2015. The order in the case M/s. ORS Infrastructure Pvt Ltd versus Sanjeev Kumar FA/2200/2017 also follows the rate of interest at 12% to be reasonable and just.
A larger Bench of the Apex court consisting of three Judges Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna & Anr. 2021 SCC OnLine SC 14 has awarded 9% interest and in the event of default has enhanced into 12%.
The contest therefore remains on the basis of these judgments as to whether it should be 6% or 9% or 12%.
Even though there are judgments of the Apex Court in this regard it may be mentioned that in the case of Appellant itself namely TDI Infrastructure Ltd. vs Rajendra Singh (Supra) and TDI Infrastructure Ltd. versus Ashok Goyal (Supra), the Apex Court has consistently awarded 12% interest on refund. The distinction sought to be drawn on facts by the learned Counsel for the Appellant does not make out any plausible reason to distinguish the applicability of the rate of interest either in decisions before Covid or after it, but at the same time it is evident that the aforesaid judgments were rendered in the pre-covid period and thereafter the Apex Court in a decision by three Members in the case of Ireo Grace Realtech Pvt. Ltd. (Supra) has directed to refund the amount together with interest at the rate of 9% p.a with effect from the date of deposit. However, the rate of interest was fixed in the peculiar facts where an affidavit had been filed before the NCLT. It was further observed that in the event of default, the rate of interest shall stand enhanced to 12% p.a. Consequently the rate of interest awarded in Ireo Grace Realtech Pvt. Ltd. (Supra) was fixed keeping in view the proceedings int the said case.
Coming to the present case there is no dispute that the bookings and allotments by the flat buyers were made in this case in March 2010 and the builder-buyer agreement was entered into in August 2012 with a clause of 30 months of period of delivery. The Appleants contended that they applied for occupation certificate and made the offer of possession without the occupancy certificate on 12.11.2014. The Complaints giving rise to these Appeals were filed in the year 2016. It is admitted to the Respondent that Execution Petitions have been filed and during the pendency of the Execution Petitions, the State Commission had to issue warrants of attachment whereupon payments have been received in part satisfaction of the impugned order and decree dated 05.05.2020. Thus, it is after a battle of almost 8 years before the Consumer Forum and after 14 years of the booking that the Complainants have been able to face this long drawn litigation and wait for their refund. This procrastinated litigation still continues at the execution level. The dates are being fixed and coercive steps have to be adopted to persuade the Judgment Debtors/Appellants herein to make the payments. To reduce the rate of interest to either 6% or 9% would be unreasonable towards the allottees who have been waiting in the queue to receive the fruits of the decree in their favour. In the given circumstances of the present case and in view of the decisions that have been cited, I find that the State Commission has awarded a reasonable and just rate of interest which is in conformity with several decisions of this Commission as well as the Apex Court as discussed above. The rate of 12% therefore on the facts of the present case does not require any modification and accordingly the impugned order of the State Commission 05.05.2020 is confirmed. No other arguments were raised or were required to be dealt with. Accordingly the Appeals fail and are hereby dismissed.