to the appellants with respect to the said unit. On 21.08.2009, the appellants issued the allotment letter confirming the booking of the unit No.C3/605 in Sahara City Homes, Jaipur in favour of the respondent for the total sale consideration of Rs.27,07,000/-. It was stated in the allotment letter that in case of delay of payment of installments by the respondent, the respondent would be charged 15% p.a. interest on the said installment amount from the date on which such payment was due. On 07.09.2009, the respondent requested the appellants regarding the change of his payment plan to that of construction linked plan. The complainant has paid a total amount of Rs.24,80,375/-. As possession was not delivered, the consumer complaint No.86 of 2017 was filed by the respondent contending that possession of the flat was not handed over to the respondent within stipulated time, there is deficiency of service on the part of the appellants and a sum of Rs.24,80,375/- was prayed for refund along with interest at the rate of 18% p.a. along with the compensation for the mental, physical harassment amounting to Rs.20,00,000/-, Rs.2,00,000/- for cost of the proceedings, bank charges amounting to Rs.8,00,000/-, rent expenses amounting to Rs.20,00,000/- and for the delay in possession amounting to Rs.2,61,945/-. The appellant filed their written statement before the State Commission contending that complaint of the respondent is baseless since the contract between the appellants and the respondent was only for the purchase of a unit/flat and not for the construction of the same by the site owner with a contractor. The State Commission had no jurisdiction to entertain the complaint because matter was to be referred to arbitration in case of any dispute. Further, the Hon'ble Supreme Court in the contempt petition bearing No.412 of 2012 in the civil appeal 9813 of 2011 titled as SEBI Vs. Sahara Real Estate Corporation Ltd. imposed ban on the appellants to part with any of the immovable properties. However, the State Commission passed the following order:-

"In view of the above, the complaint is allowed and the complainant is entitled to get Rs.24,80,375/- along with 15% interest from the date of each deposit. The complainant is further entitled to get Rs.2 lakhs as compensation for mental agony and Rs.50,000/- as cost of proceedings which should be paid to the complainant within one month otherwise it will carry 9% interest from the date of the order."

3. Hence the present appeal.

4. Heard the learned counsel for the appellants as well as respondent in person in FA/531/2019 & 532/2019 and the learned counsel for the respondent in 534/2019 and none appeared in FA/533/2019 even after service of notice, hence, hearing from respondent Surendra Singh has been dispensed with as the appeals are on similar grounds and the defence of the respondents is also similar.

5. Learned counsel for the appellants stated that the State Commission has ordered refund of the deposited amount by the respondents/complainants along with 15% p.a. interest from the date of respective deposits till actual payment. Apart from this, the State Commission has also awarded a compensation of Rs.2,00,000/- in each case for mental agony and Rs.50,000/- as cost of litigation in each case. Learned counsel contended that the amount deposited by the complainants has been utilized in the construction and the amount deposited by the complainants did not earn any interest, therefore, the same should not have been ordered to be refunded along with interest. Moreover, the rate of interest awarded by the State Commission is very high. These days, this Commission as well as Hon'ble Supreme Court are ordering refund along with 9% p.a. interest and therefore, there was no justification for the State

2

Commission to have ordered refund along with 15% p.a. interest.

6. The learned counsel for the appellants further argued that the State Commission has also awarded a compensation of Rs.2,00,000/- in each case for mental agony, whereas, the same is not justified when the interest is being awarded on the amount of refund. This is an accepted principle of law that if the interest is being awarded, then separate compensation is not justified as interest is also in the form of compensation. The learned counsel also requested to condone the delay in filing the present appeals as the delay has happened on account of getting orders from the head office, in arranging a counsel at New Delhi and in getting the translation of all the documents as all documents were in Hindi. The delay is not intentional.

7. On the other hand, respondents/complainants in First Appeal No.531 of 2019 & 532 of 2019 stated that the appellant has charged interest @15% p.a. on the amount of instalment if paid with delay. On the principle of parity, they stated that the deposited amount by the complainants with the builder should also be refunded along with 15% p.a. interest. Learned counsel appearing on behalf of respondent/complainant in First Appeal No.534/2019 also agreed with the arguments advanced by the respondents/complainants in First Appeal No.531/2019 & 532/2019. The leaned counsel further stated that the reasons given in the application for condonation of delay in filing the present appeals are only administrative in nature which cannot be considered as sufficient cause for condoning the delay. Hence the appeals deserve to be dismissed only on the ground of limitation.

8. In respect of compensation of Rs.2,00,000/-, the respondents/complainants stated that the compensation of Rs.2,00,000/- has been awarded for mental agony that has been suffered by the complainants. Moreover, this Commission has taken a view that if 18% p.a. interest is awarded then no other compensation is required to be given. In the present case, only 15% p.a. interest has been awarded and therefore, the complainants are entitled to separate compensation for mental agony and harassment.

9. I have carefully considered the arguments advanced by both the sides and have examined the record. First of all, it is seen that there is delay in filing these appeals. The main reasons for delay appear to be time taken in getting all the documents translated from Hindi to English, time taken in arranging a counsel at New Delhi and time taken in getting the approvals from the head office of the company. These reasons seem to be genuine and by delaying the appeals, the appellant is not expected to be benefited. Hon'ble Supreme Court in Manoharan Vs. Sivarajan & Ors, Civil Appeal No.10581 of 2013, decided on 25.11.2013 (SC) has observed the following:-

"9. In the case of State of Bihar & Ors. v. Kameshwar Prasad Singh & Anr., it was held that power to condone the delay in approaching the Court has been conferred upon the Courts to enable them to do substantial justice to parties by disposing the cases on merit. The relevant paragraphs of the case read as under:

"11. Power to condone the delay in approaching the Court has been conferred upon the Courts to enable them to do substantial justice to parties by disposing of matters on merits. This Court in Collector, Land Acquisition, Anantnag v. Mst. Katiji (1987)ILLJ 500 SC held that the expression 'sufficient cause' employed by the legislature in the Limitation Act is adequately elastic to enable the Courts to

3

apply the law in a meaningful manner which subserves the ends of justice-that being the life purpose for the existence of the institution of Courts. It was further observed that a liberal approach is adopted on principle as it is realised that:

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. 'Every day's delay must be explained' does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."

10. Relying on the above judgment of the Hon'ble Supreme Court and on the grounds mentioned in the application for condonation of delay, I deem it appropriate to condone the delay in each appeal at a cost of Rs.50,000/- to be paid to the complainant in each case. The main issue relates to award of interest on the amount of refund by the State Commission against which the present appeals have been filed. The complainants are trying to defend the award of 15% p.a. interest on the ground that the appellant is charging 15% p.a. interest on the amount of instalment, if delayed and on the principle of parity, the complainants should also be allowed interest @15% p.a. On the other hand, the appellants have stated that presently this Commission and Hon'ble Supreme Court are awarding interest @9% p.a. on amount of refund. The provision in respect of levying 15% p.a. interest on the delayed instalments is present in the agreement which has been signed by both the sides, whereas, there is no such agreement between the parties for payment of 15% p.a. interest, if the amount is to be refunded to the complainants in any eventuality. Clearly a builder utilizes the amount paid by the allottees in the project and generally the amount is not available for earning any interest for a long time. However, as the amount remained with the builder and the amount has been ordered to be refunded, the builder is responsible to pay interest as held by the Hon'ble Supreme Court in Alok Shanker Pandey Vs. Union of India &Ors., II (2007) CPJ 3 (SC) as under:-

4

"9. It may be mentioned that there is misconception about interest. Interest is not a penalty or punishment at all, but it is the normal accretion on capital. For example if A had to pay B a certain amount, say 10 years ago, but he offers that amount to him today, then he has pocketed the interest on the principal amount. Had A paid that amount to B 10 years ago, B would have invested that amount somewhere and earned interest thereon, but instead of that A has kept that amount with himself and earned interest on it for this period. Hence equity demands that A should not only pay back the principal amount but also the interest thereon to B."

11. When there is no contract between the parties for paying interest on the amount of refund, it is the discretion of the consumer forum to award reasonable interest in the matter. Clearly, the interest cannot be awarded on the basis of parity in such cases where there is no agreement for providing such an interest on the amount of refund. The Hon'ble Supreme Court in Kolkata West International Pvt. Ltd. Vs. Deva Asis Rudra, II (2019) CPJ 29 (SC)

has reduced the rate of interest on the amount of refund from 12% per annum as awarded by this Commission to 9% per annum. Accordingly, I deem it appropriate to allow refund with 10% interest per annum in the facts and circumstances of the cases.

12. When the interest rate has been ordered to be changed from 15% p.a. to 10% p.a., I do not find justification for setting aside the order of the State Commission in respect of the compensation of Rs.2,00,000/-.

13. Based on the above discussion, these appeals no.531 of 2019, 532 of 2019, 533 of 2019 and 534 of 2019 are partly allowed and the orders of the State Commission passed in four complaints are modified to the extent that the appellants shall refund the amounts mentioned in the orders of the State Commission in each case along with 10% p.a. interest instead of 15% p.a. interest as ordered by the State Commission. With this modification, the orders of the State Commission passed in Complaint cases No.86 of 2017, 119 of 2017, 128 of 2017 and 15 of 2018 are upheld. The appellant shall also pay Rs.50,000/- (fifty thousand only) as cost for condoning the delay to the complainant in each case. The orders be complied with by the appellants within a period of 45 days from the date of receipt of this order.

......................

PREM NARAIN

PRESIDING MEMBER

5