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Judgment
Heard counsel for the parties.
Above appeal has been filed from the order of State Consumer Disputes Redressal Commission, Delhi, dated 04.08.2021 passed in CC No.925 of 2016. The operative portion of which is quoted below:-
“I. We direct the Opposite Party to pay an amount of Rs.27,84,230/- along with interest as per the following arrangement:
A. An interest @ 12.25% (Since the Complainant had taken a loan @ 10.25%) calculated from the date of each instalment/payment received by the Opposite Party till 30.07.2021 (being the date of the present judgment);
B. 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 31.08.2021;
C. In case the Opposite Party fails to refund the amount as per the aforesaid clause (A) on or before 31.08.2021, the entire amount is to be refunded with an interest @14.25% p.a. calculated from the date of each instalment/payment received by the Opposite Party till the actual realization of the amount.
II. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Party is also directed to pay to the Complainants:
A. A sum of Rs.2,00,000/- as cost for mental agony and harassment.
B. And the litigation cost to the extent of Rs.50,000/-.”
While granting interim order dated 31.01.2022, the appellant was directed to deposit the entire decretal amount along with interest @8.3% per annum. The counsel for the appellant states that this amount along with the litigation cost of Rs.50000/- has been paid to the respondent, which is not disputed. Now she confines her arguments in respect of interest part of the order only.
The counsel for the respondent however, argued that the respondent had taken loan of Rs.2071965/- from India Bulls Housing Finance Ltd. on the interest @10.25% per annum. Therefore, the State Commission has granted interest @12.25% per annum. He pointed out clause 1.10 of the agreement in which, the builder was charging interest @18% per annum on the defaulted amount on instalment. On the query being made as to whether the respondent had ever paid interest @18% per annum to the appellant, the counsel for the respondent stated that in this case, the respondent had never paid interest @18% per annum. He relied upon the judgment of Supreme Court in Ashoka Investment Co. Vs. United Towers India (Pvt.) Ltd. 2022 SCC OnLine SC 1378, in which it has been held that as the builder was charging interest @ 18% per annum, therefore, the builder was liable to pay interest @18% per annum on the deposit of the buyer. He further relied upon the judgment of this Commission in FA/23/2019 M/s Country Colonizers Pvt. Ltd. Vs. Satish Sharma & Anr. and connected matters (decided on 15.09.2022), in which, in case of refund, interest @12% has been awarded.
Counsel for the appellant however, relied upon the judgment of three-Members Bench of Supreme Court in Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, 2022 Live Law (SC) 352 in which interest @9% per annum in case of refund has been held as just and fair compensation which amounts to restitutory and compensatory both. She further submits that in DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda (2020) 16 SCC 318, Supreme Court held that compensation cannot be granted in multiple heads.
We have considered the arguments of the counsel for the parties and examined the record. In the light of judgments of Supreme Court and as in the facts and circumstances of this case, the order of State Commission is liable to be modified and award of interest @12.25% is liable to be modified to 9% per annum and award of Rs.200000/- as compensation for mental agony and harassment is liable to be set aside.
The counsel for the respondent however, submits that in the present case, without there being flat coming into existence, on the insistence of the builder, insurance policy has been obtained paying a premium of Rs.41439/- to ICICI Lombard General Insurance Company on which interest has been paid by the respondent and total amount of Rs.72500/- has been paid. We think it proper that the builder shall refund this amount to the respondent inasmuch as at the time of taking insurance policy, the flat was not in existence but on the insistence of the builder, the insurance policy has been obtained.
ORDER
In the result, the appeal is partly allowed. The order of the State Commission dated 04.08.2010 is modified and the appellant is directed to refund the entire amount deposited by the complainant with interest @ 9% per annum from the date of respective deposit till the date of refund. In addition to it, the appellant shall also pay Rs.72500/- to the respondent. Since the major portion of the decretal amount and the cost as imposed by the State Commission has already been paid, the balance amount be paid within six weeks from today.