Vivacity Mall Pvt. Ltd. (Earlier Known As Lotus Buildestate Private Ltd.) & 2 Ors vs Amitabh Agarwal

R.K. Agrawal, President Member

1.First Appeal No. 887 / 2019 was filed by the M/s. Vivacity Mall Pvt. Ltd. (Appellants) against the Order dated 08.03.2019 passed by the Rajasthan State Consumer Disputes Redressal Commission (hereinafter referred to as the State Commission) whereby the Complaint filed by the Complainant was allowed directing the Appellants to refund a sum of ₹30,51,000/- to the Complainant along with interest @ 15% p.a. from the date of deposit till its payment. They were also directed to pay an amount of ₹2,00,000/- as compensation for mental agony and ₹50,000/- as costs of proceedings to the Complainant.  First Appeal No. 887 / 2019 preferred by the Appellants was partly allowed by this Commission vide Order dated 27.09.2022 by observing as under:-

“In the instant case also the Complainant cannot be made to wait indefinitely for possession of the shop, as a period of more than 9 years has lapsed from the date of purchase of shop in the year 2012.  Consequently, I am of the considered view that there is no infirmity in the well-reasoned impugned Order passed by the State Commission and the Appeal filed by the Appellant Developer is liable to be dismissed.  However, I am of the opinion that the interest awarded by the State Commission @15% alongwith compensation of ₹2,00,000/- for mental agony to the Complainant, is exorbitant and needs modification in view of the Judgment of the Hon’ble Supreme Court in DLF Homes Panchkula Pvt. Ltd. vs. D.S. Dhanda, II (2019) CPJ 117 (SC), wherein it is observed that when interest is awarded by way of damages awarding additional compensation is unjustified.  Accordingly, while partly allowing the Appeal filed by the Developer, I direct the Appellant/Developer to refund the entire amount deposited by the Complainant with interest @8% p.a. from the respective date of deposit till payment within a period of six weeks from the date of this order failing which the amount shall carry interest @10% p.a. for the said period.

The First Appeal is disposed of in above terms.

In compliance with the Order dated 31.10.2019 passed by this Commission, the entire amount awarded by the State Commission has been deposited with this Commission by the Developer.  The Developer shall be at liberty to withdraw the said amount subject to the compliance of the Order to the satisfaction of the Registrar of the Commission.”

2.Now, the Appellants have preferred the Miscellaneous Application No. 448 / 2022 wherein it has been submitted that vide Impugned Order dated 27.09.2022, they were directed to refund entire amount deposited by the Complainant with interest @8% p.a. from the respective date of deposit till realization within six weeks from the passing of the Order failing which the amount shall carry interest @10% p.a. for the said period.  It was submitted that they have deposited ₹33,01,000/- (₹30,51,000/- (principal amount deposited by the Complainant with them) and ₹2,50,000/- towards compensation and cost awarded by the State Commission). They were granted liberty to withdraw the amount deposited with this Commission subject to the compliance of the Order.  However, due to financial constraints they are not in a position to comply with the Impugned Order dated 27.09.2022.  It was submitted that they had received the certified copy of the Impugned Order on 12.11.2022.  It was prayed that the present Application be allowed and the Respondent/Complainant be directed to withdraw the pre-deposit amount of ₹33,01,000/- alongwith the accrued interest directly from the Hon’ble Commission and the date period of payment of the remaining amount of interest @8% p.a. be rescheduled starting from 12.11.2022.

3.I have heard Ms. Pranati Bhatnagar, learned Counsel appearing for the Appellants/Applicants and Mr. Vizzy Agarwal, learned Counsel appearing for the Respondent/Non-Applicant, perused the MA No. 448 / 2022 filed by the Appellants/Applicants and the submissions made by both the Parties.

4.As far as first submission of the Appellants regarding direction to the Respondent/Complainant to withdraw the pre-deposit amount of ₹33,01,000/- alongwith the accrued interest, is concerned, I find some merit in the submissions made by the Appellant that due to financial constraints they could not comply with the Impugned Order and accordingly, the Registry is directed to release the amount of ₹33,01,000/- alongwith accrued interest, if any, in favour of the Respondent/Complainant within two weeks from today.

5.So far as the next submission regarding rescheduling the date period of payment of the remaining amount of interest @8% p.a. to the Respondent starting from 12.11.2022 is concerned, it may be observed that the certified copy of the Impugned Order dated 27.09.2022 was dispatched by this Commission on 13.10.2022 and the copy was received by the Appellants only on 12.11.2022 and the Appellants did not have sufficient time to comply with the Impugned Order.  I find some force in the submissions made by the Appellants and accordingly the Appellants are granted further six weeks’ time to comply with the Impugned Order dated 27.09.2022.  Consequently, the Miscellaneous Application stands disposed off in following terms:-

(i) The Registry is directed to release the amount of ₹33,01,000/- alongwith accrued interest, if any, in favour of the Respondent/Complainant within two weeks from today;

(ii) The Applicants/Appellants shall work out the amount payable to the Respondent/Complainant alongwith interest @8% p.a. from the respective date of deposit till the actual date of payment and after making adjustment of ₹33,01,000/- to be released by the Registry, pay the balance amount to the Respondent/Complainant within six weeks from today, failing which the entire deposited amount by the Respondent/Complainant shall carry interest @10% p.a.