RESERVED

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                              UTTAR PRADESH, LUCKNOW

                               COMPLAINT NO. 45 OF 2022

Sri Mohit Bhalla

R/o Flat No. 702 A4

MI Rustle Court, Sector 6

Gomti Nagar Extension

Lucknow (U.P.)

                                                                                          ...Complainant

                                                     Vs.

1. Anand Life Space Development

LLP Office At 711/92

Deepali Nehru Place

New Delhi-110019

2. Getamber Anand

S/o Late Kamal Kishore Anand

R/o C-226, Sector 44, Circle, Noida

Uttar Pradesh

3. Udaivir Anand

S/o Getamber Anand

R/o C-226, Sector 44, Circle, Noida

Uttar Pradesh

                                                                                       ...Opposite Parties

BEFORE:

HON'BLE MR. JUSTICE ASHOK KUMAR, PRESIDENT

HON’BLE MR. SUSHIL KUMAR, MEMBER

For the Complainant           :   Ms. Riya Tandon Bhalla, Advocate and

                                                Complainant in person

For the Opposite Party        :  Sri Digvijay Nath Dubey, Advocate and

                                                Sri Akhand Pratap Singh, Advocate.

Dated : 06-09-2022

                                            JUDGMENT

           MR. JUSTICE ASHOK KUMAR, PRESIDENT

Heard Ms. Riya Tandon Bhalla, learned Counsel for the complainant and Sri Digvijay Nath Dubey, learned Counsel for the opposite party alongwith his assisting Counsel Sri Akhand Pratap Singh.

The instant complaint has been filed under Section 47(i)(a)(ii), (2) Read with Sub-Section 4 of Section 47 of the Consumer Protection Act, 2019 by Sri Mohit Bhalla against Anand Life Space Development and

:2:

two others with the following prayers:-

“In the light of facts and circumstances of the case mentioned herein above, it is most humbly prayed that this Hon’ble Forum may kindly be pleased:

1. To pass an order in favour of complainant and against the Opposite Parties to pay to the Complainant a total amount of Rs.56,18,942/- which includes Rs.27,81,324/- as the principal amount paid to the builder, Rs.10,73,666/- as the interest incurred due to delay @ 10% as per ATS Terms and Conditions, Rs.4,80,000/- towards rednt, Rs.4,83,952/- incurred as interest paid to bank for the property in question, Rs.5,00,000/- for mental agony and Rs.3,00,000/- for legal Fees.
2. To pass an order that Other Expenses including litigation expenses shall be paid by the opposite parties to the complainant.
3. Pass any other order/orders which this Hon’ble Forum may deem fit in the facts and circumstances of the case.” 

Facts of the case stated in brief are that the opposite party is engaged in construction of houses, villas, building and other infrastructure facilities in different part of India. The complainant being attracted towards its reputation alongwith the urgent need of home contacted the opposite party No.1 at its head office at New Delhi and corporate office at Noida from where the business of opposite party is controlled and managed by the partners. The opposite party had come up with public offer to sell Row Houses under the project name “Jeevan Sukh” to be constructed at Bareilly with a construction target to be completed in June, 2020 as per the terms and conditions of the Agreement to Sell as the said project is registered and covered under the terms anbd conditions of RERA Act and the Bareilly Development Authority. 

It has been alleged by the complainant in the complaint that the complainant after entering into an Agreement to Sale on 18-04-2018 booked a Row House bearing Unit No. 17 in Block Kaveri in the project Jeevan Sukh, Bareilly and had paid a total principal amount of Rs.27,81,324/- till date. The complainant for purchasing the above

:3:

mentioned row house has taken a loan from ICICI Bank at an interest rate of 7.90% in 2018 and ever since ithen the complainant has been paying heavy interest amount on the said purchased properpty while 95% of the total payment has been made to the builder but the builder stopped the construction of the project in the year 2019 and ever since then they have failed to resume construction of the project. The complainant requested the opposite party to complete the construction but the opposite party paid no heed towards any such request.

It has been further stated in the complaint that the complainant continued to wait for more than two years for completion of the project and to take possession of the row house but nothing happend positively. The complainant approached the opposite party personally to know the status of construction of the project but still they had no accurate details about the date when the construction of the project will resume. The opposite party expressed its inability to give timely possession. The opposite party did not comply with terms and conditions of the Agreement to Sale.    

It is alleged by the complainants in the complaint that the promoter not only failed to comply with the date of possession but also their actions caused the complainant to suffer mental agony alongwith huge financial loss. The opposite party has failed to upkeep its words and the terms and conditions as mentioned in the Agreement to Sale. The builder is also forcing the complainant illegally to keep the propeprty as he will not allow the complainant to cancel the property booked and he also clearly refused to refund the amount paid alongwith interest as well as compensation.  

It has been further alleged by the complainant in his complaint that the opposite party, who adopted unfair means and unfair trade practice, is solely responsible for delay in services and refused to refund the amount alongwith interest amounts (Rs.27,81,324/- + Rs.10,73,666/-) = Rs.38,54,990/- for last more than two years, due to which complainant has not only gone through monetary loss of Rs.4,80,000/- towards rent but also has incurred bank interest amounting to Rs.4,83,952/- and seeking Rs.5,00,000/- as remedy for mental agony alongwith legal fee of

:4:

Rs.3,00,000/- total amounting to Rs.56,18,942/- but also mental harassment and trauma which cannot be termed into accurate amount.

It is stated in the complaint that the cause of action arose on the very day of the execution of the agreement but it finally arose on 23-03-2022 when the opposite parties declined to handover the house booked and breached the terms and conditions of the agreement in pursuance of which the complainant approached to RERA but the opposite parties are rigid to their ill will with intent to fraudulently digest the huge hard earned money of the complainant.

It is also stated by the complainant in his complaint that the value of the property is Rs.56,18,942/- and the District Forum’s pecuniary jurisdiction is upto Rs.50,00,000/- so this State Consumer Redressal Forum is vested with jurisdiction to look into and adjudicate the matter. 

The complainant has also filed the affidavit in support of the complaint alongwith the following Annexures.

1. Annexure A-1 – Photocopy of the Agreement to Sale.
2. Annexure A-II – Copy of payment receipts.
3. Annexure A-III – Print outs of mails sent to builder.
4. Annexure A-IV – Copy of the RERA Conciliation Order.
5. Annexure A-V – Photographs of the property as on March, 2022.
6. Annexure A-VI – Photocopy of rent agreement.

The opposite party, the builder has filed the reply/counter affidavit against the complaint filed by the complainant and denied the allegations made by the complainant.

It is submitted by the learned Counsel for the opposite party, the builder that the complainant is not a consumer since he is already having a house in Bareilly and Lucknow. The complainant has already filed a complaint before the Consultant Counsel Forum, UPRERA.

It is further submitted by the learned Counsel for the opposite party that the opposite party, the builder is the lawful owner of the land admeasuring 5.99 Acres approx. Situated at Bareilly. The promoter is developing a residential row house project on the said land under the

:5:

name of Jeevan Sukh. The complainant had inspected the site where the project is to be constructed alongwith the ownership record and other related documents and acknowledged that the builder had readily provided all information and clarification as required. Thereafter the complainant applied for allotment of the row house vide his application dated 17-04-2018.

It is submitted by the learned Counsel for the opposite party, the builder that if the completion of the project is delayed due to the Force Majeure condition than the complainant agrees that the opposite party be entitled to the extension of time for delivery of possession of the unit. The total cost with tax of the unit is Rs.29,07,982/- and the complainant has paid Rs.27,66,122/- till date. It is stated by the opposite party in the reply/counter affidavit that the completion of the project is delayed but the opposite party has completed 95% of the construction. The project is delayed due to force majeure conditions, hence it is not the case of deficiency in service.

It has further been stated in the reply that as per terms of the clause 33 of the agreement in case of any disputes the same shall be settled through the adjudicating officer appointed under the RERA Act.  

The complainant has also filed the rejoinder affidavit against the counter affidavit/reply filed by the opposite party and denied the version of the opposite party.

In this case after hearing the learned Counsel for the respective parties the bench appointed Smt. Suchita Singh and Miss. Meena Rawat as Advocate Commissioner to know the exact status of the project. Both the Advocate Commissioners have submitted their report and we have thoroughly examined and perused the report.   

We have heard learned Counsel for the complainant Ms. Riya Tandon Bhalla and learned Counsel for the opposite party Sri Digvijay Nath Dubey and perused the entire records carefully.

It has been argued by the learned Counsel for the complainant that the opposite parties are liable to pay to the complainant a total amount of Rs.56,18,942/- which includes Rs.27,81,324/- as the principal amount paid to the builder, Rs.10,73,666/- as the interest incurred due to delay

:6:

@ 10% as per ATS Terms and Conditions, Rs.4,80,000/- towards rednt, Rs.4,83,952/- incurred as interest paid to bank for the property in question, Rs.5,00,000/- for mental agony and Rs.3,00,000/- for legal Fees.

It is argued by the learned Counsel for the complainant that a row house bearing Unit No.17 in Kaveri was allotted to the complainant after entering into an Agreement to Sale on 18-04-2018 and the possession of the unit was to be handed over to the complainant on or before 21-06-2020.

Learned Counsel for the complainant has placed reliance of Para 7 sub-para 7.1 of the Agreement to Sale under the head Schedule for possession of the unit which reads as under:-

“The promoter agrees and understands that timely delivery of possession of the unit to the Allottee and the common areas to the association of the Allottees, or the competent authority, as the case may be, is the essence of the Agreement. The promoter assures to hand over possession of the Unit on or before 21^st ay of June, 2020. After refund of the money paid by the Allottee, the Allottee agree that he/she shall not have any rights, claims etc. against the Promoter and that the Promoter shall be released and discharged from all its obligations and liabilities iunder this Agreement.”

It has further been argued by the learned Counsel for the complainant that the opposite party has failed to upkeep his words and the terms and conditions as mentioned in the Agreement to Sale. The opposite party is also forcing the complainant illegally to keep the property as he will not allow the complainant to cancel the property booked and the opposite party also clearly refused to refund the amount paid alongwith interest as well as compensation.

Learned Counsel for the complainant has also placed reliance of Para 7 clause 7.6 of the Agreement to Sale which reads as under:-

“The promoter shall compensate the Allottee in case of any loss caused to him........................, if the promoter fails to complete or is unable to give possession of the unit (i) in accordance with the terms of this Agreement, duly completed by the date specified in para

:7:

7.1;...................; the Promoter shall be liable, ondemand to the Allottees, in case the Allottee wishes to withdraw from the project, without prejudce to any other remedy available, to return the total amount received by him in respect of the Unit, with interest at the rate prescribed in Rules including compensation in the manner as provided under the Act within forty-five days of it becoming due......................”

Learned Counsel for the complainant has argued that the opposite party has not only miserably failed to complete the project timely but has also straight away refused the complainant of exercising his basic right of cancelling the unit and taking the refund of the amount paid alongwith compensation and interest incurred due to huge and deliberate delay and breach of the terms and conditions written in the Agreement to Sale. Para 9.2 sub clause (iii) of the Agreement to Sale reads as under:-

“The Allottee shall have the option of terminating the Agreement in which case the Promoter shall be liable to refund the entire money paid by the Allottee under any head whatsoever towards the purchase of the Unit, alongwith interest at the rate of 10% (Ten Prcent) per annum, for every month of delay till the handing over of the possession of the Unit, which shall be paid by the promoter to the Allottee within forty-five days of it becoming due.”

Learned Counsel for the complainant has further argued that the opposite parties are not only guilty of deficiency in services by not fulfilling the agreement conditions in due course of time towards innocent complainant but also for mental torture and harassment to the complainant by unnecessarily misguiding and delaying the refund of advance amount of Rs.27,81,324/- alongwith interest @ 10% per annum as per clause of Agreement for Sale dated 18-04-2018.

Learned Counsel for the complainant has argued that the opposite party in blatant disregard to the process of law, and has provided frivolous facts before this Commission with intent to mislead the Commission/Court. The delay in possession mentioned above is not only the contravention of the terms and conditions of the Agreement for Sale signed between the parties but it is direct breach of Section 73 of the Indian Contract Act, 1872 and Section 18(1) of The Real Estate

:8:

(Regulation and Development) Act 2016 which explicitly vests the right to receive penalty for the delay at the prescribed rate of intersest from the opposite party.`

Learned Counsel for the opposite parties has argued that the project is delayed due to force majeure conditions and other reasons beyond control of the developer. No claim by way of damages/compensation shall lie against the developer in case of delay in handing over the possession on account of said reasons and developer shall be entitled to a reasonable extension of time for the delivery of possession of the unit to the allottee.

It is argued by the learned Counsel for the opposite party builder that the project in question where the unit of the complainant is allotted is huge project consisting of hundres of units situate therein. The opposite party builder inspite of facing real estate recession in the market and coupled with other difficulties, the developer still trying to complet the project.

Learned Counsel for the opposite party has argued that the complainant do not fall within the purview of Section 2(1)(d)(ii) of the Consumer Protection Act, 1986 since a bare perusal of the complaint clearly reflects that the complainant is a permanent resident of Bareilly and Lucknow.

It has been argued by the learned Counsel for the opposite party that the complaint filed by the complainant is not maintainable in view of the settled law in a plethora of decision of the Hon’ble Supre Court of India whereby it has categorically been laid down that the agreed clauses of the contract are bindng on the parties and the court shall not interfere with the terms and conditions agreed to between the parties.

Learned Counsel for the opposite party has further argued that the complainant has raised several issues alleging dishonest intention to cheat, misguide and defraud against the opposite parties and these issues cannot be decided by way of the present complaint in summary proceedings and required extensive evidence be led by both the parties, examination and cross examination of witness for proper adjudication. The disputes raised in the present complaint are beyond the purview of the Consumer Protection Act and can only be adjudicated by a Civil Court, hence the

:9:

present complaint deserves to be dismissed on this ground alone.

We have heard learned Counsel for the parties and the submission of Counsel for the respective parties and perused the material evidence available on record.

The facts of the case are already mentioned hereinabove in detail hence need no repetition. From the perusal of the facts narrated hereinabove it is clear that so far as the Row House Unit allotted to the complainant by the opposite party, the builder in its project, the developer has not completed the construction of the unit allotted to the complainant which situates in Block Kaveri in the project Jeevan Sukh in stipulated time as agreed.

So far as the submission of learned Counsel for the opposite party is concerned that the consumer/complainant, having elected to proceed under the Act, the provisions of the RERA Act will have not application. We find no force in the submission of learned Counsel for the opposite party as the issue with regard to jurisdiction of the Consumer Forum vis-a-vis the specific remedies created under the RERA Act has been recently considered by the Hon’ble Supreme Court in the case of Experion Developers Pvt. Ltd. V/s Sushma Ashok Shiroor, Civil Appeal No. 6004 of 2019 and Civil Appeal No. 7149 of 2019 dated 07-04-2022. For ready reference paragraphs 12 and 13 of the said judgment are reproduced hereinbelow:-

“12. This question is no more res integra. In Imperia Structures Ltd v. Anil Patni11, this Court speaking through Justice Uday Umesh Lalit, examined the jurisdiction of Consumer Forums vis-a-vis the specific remedies created under the RERA Act. This judgment comprehensively deals with all aspects of parallel remedies available to the consumers under the Consumer Protection Act, 1986, and the RERA Act, 2016. In Imperia Structures, also, like in the present case, the proceedings arose out of the decision of the Commission under the Consumer Protection Act, 1986. After a comparative analysis of both the statutes, this Court held as under: (Imperia Structures Ltd v. Anil Patni & Anr. (2020) 10 SCC 783)  

“23. It has consistently been held by this Court that the remedies available under the provisions of the CP Act are additional remedies over and

:10:

above the other remedies including those made available under any special statutes; and that the availability of an alternate remedy is no bar in entertaining a complaint under the CP Act.

24. Before we consider whether the provisions of the RERA Act have made any change in the legal position stated in the preceding paragraph, we may note that an allottee placed in circumstances similar to that of the Complainants, could have initiated the following proceedings before the RERA Act came into force:

A) If he satisfied the requirements of being a “consumer” under the CP Act, he could have initiated proceedings under the CP Act in addition to normal civil remedies.

B) However, if he did not fulfil the requirements of being a “consumer”, he could initiate and avail only normal civil remedies.

C) If the agreement with the Developer or the builder provided for arbitration:-

i) in cases covered under Clause (B) hereinabove, he could initiate or could be called upon to invoke the remedies in arbitration.

ii) in cases covered under Clause (A) hereinabove, in accordance with law laid down in Emaar MGF Land Ltd. Vs. Aftab Singh, he could still choose to proceed under the CP Act.

 25. In terms of Section 18 of the RERA Act, if a promoter fails to complete or is unable to give possession of an apartment duly completed by the date specified in the agreement, the promoter would be liable, on demand, to return the amount received by him in respect of that apartment if the allottee wishes to withdraw from the Project. Such right of an allottee is specifically made “without prejudice to any other remedy available to him”. The right so given to the allottee is unqualified and if availed, the money deposited by the allottee has to be refunded with interest at such rate as may be prescribed. The proviso to Section 18(1) contemplates a situation where the allottee does not intend to withdraw from the Project. In that case he is entitled to and must be paid interest for every month of delay till the handing over of the possession. It is up to the allottee to proceed either under Section 18(1) or under proviso to Section 18(1). The case of Himanshu Giri came under the latter category. The RERA Act thus definitely provides a remedy to an allottee who wishes to withdraw from the Project or claim return on his investment.

26. It is, therefore, required to be considered whether the remedy so

:11:

provided under the RERA Act to an allottee is the only and exclusive modality to raise a grievance and whether the provisions of the RERA Act bar consideration of the grievance of an allottee by other fora.

30. On the strength of the law so declared, Section 79 of the RERA Act does not in any way bar the Commission or Forum under the provisions of the CP Act to entertain any complaint.

34. It is true that some special authorities are created under the RERA Act for the regulation and promotion of the real estate sector and the issues concerning a registered project are specifically entrusted to functionaries under the RERA Act. But for the present Page 14 of 24 purposes, we must go by the purport of Section 18 of the RERA Act. Since it gives a right “without prejudice to any other remedy available”, in effect, such other remedy is acknowledged and saved subject always to the applicability of Section 79.

37. We may now consider the effect of the registration of the Project under the RERA Act. In the present case the apartments were booked by the Complainants in 2011- 2012 and the Builder Buyer Agreements were entered into in November, 2013. As promised, the construction should have been completed in 42 months. The period had expired well before the Project was registered under the provisions of the RERA Act. Merely because the registration under the RERA Act is valid till 31.12.2020 does not mean that the entitlement of the allottees concerned to maintain an action stands deferred. It is relevant to note that even for the purposes of Section 18, the period has to be reckoned in terms of the agreement and not the registration. Condition (x) of the letter dated 17.11.2017 also entitles an allottee in same fashion. Therefore, the entitlement of the Complainants must be considered in the light of the terms of the builder buyer agreements and was rightly dealt with by the Commission.”

13.1 In view of the clear and categorical principles laid down in Imperia, the submissions made on behalf of the Developer have to be rejected. This position has also been affirmed in IREO Grace (supra). In IREO Grace (supra) this Court had an occasion to consider the question as to whether, the provisions of the RERA Act, must be given primacy over the Consumer Protection Act, 1986. After re-examining the provisions of Consumer Protection Act, 1986 and the RERA Act, and following the principles laid down in Imperia the Court held as under :-

“37. We will now consider the provisions of the RERA Act, which was brought into force on 01.05.2016. The Page 15 of 24 Statement of Objects and

:12:

Reasons of the RERA Act, 2016 read as follows:- “The Statement of Objects and Reasons – The real estate sector plays a catalytic role in fulfilling the need and demand for housing and infrastructure in the country. While this sector has grown significantly in recent years, it has been largely unregulated, with absence of professionalism and standardization and lack of adequate consumer protection. Though the Consumer Protection Act, 1986 is available as a forum to the buyers in the real estate market, the recourse is only curative and is not adequate to address all the concerns of buyers and promoters in that sector. The lack of standardization has been a constrained to the healthy and orderly growth of industry. Therefore, the need for regulating the sector has been emphasized in various forums. In view of the above, it becomes necessary to have a Central legislation, namely, the Real Estate (Regulation and Development) Bill, 2013 in the interests of effective consumer protection, uniformity and standardization of business practices and the transactions in the real estate sector. The proposed Bill provides for the establishment of the Real Estate Regulatory Authority (the Authority) for regulation and promotion of real estate sector and to ensure sale of plot, apartment or building, as the case may be, in an efficient and transparent manner and to protect the interest of consumers in real estate sector and establish the Real Estate Appellate Tribunal to hear appeals from the decisions, directions or orders of the Authority. 37.1. Section 18 of the RERA Act, 2016 provides the remedy of refund with interest and compensation to allottees, when a developer fails to complete the construction or give possession as per the agreement of sale. The remedies under Section 18 are “without prejudice to any other remedy available.”

In the aforesaid judgment (Experion Developers Pvt. Ltd.) supra the Hon’ble Apex Court has held that, it is crystal  clear that the Consumer Protection Act and the RERA Act neither exclude nor contradict each other.

Further the Hon’ble Apex Court has held that they are concurrent remedies operating independently and without primacy. When Statutes provisioning judicial remedies fall for construction, the choice of the interpretative outcomes should also depend on the constitutional duty to create effective judicial remedies in furtherance of access to justice. A meaningful interpretation that effectuates access to justice is a constitutional imperative and it is this duty that must inform the

:13:

interpretative criterion. 

Para 14.2 of the said judgment reads as follows:-

14.2 When Statutes provide more than one judicial fora for effectuating a right or to enforce a duty-obligation, it is a feature of remedial choices offered by the State for an effective access to justice. Therefore, while interpreting statutes provisioning plurality of remedies, it is necessary for Courts to harmonise the provisions in a constructive manner. It is beneficial to juxtapose the preambular objects of the Consumer Protection Act and the RERA Act to appreciate the commonality of the objects that both these statutes are to sub-serve:

14.3 In this context, the observation of this Court in Pioneer Urban Land Infrastructure Ltd v. Union of India12 where the Court was called upon to consider the provisions of Insolvency and Bankruptcy Code, 2016, the RERA Act, 2016 and the Consumer Protection Act, 1986 is noteworthy: 12 Pioneer Urban Land Infrastructure Ltd. & Anr. v. Union of India & Ors.

:14:

(2019) 8 SCC 416 Page 18 of 24 “100. RERA is to be read harmoniously with the Code, as amended by the Amendment Act. It is only in the event of conflict that the code will prevail over RERA. Remedies that are given to allottees of flats/apartments are therefore concurrent remedies, such allottees of flats/apartments being in a position to avail of remedies under the Consumer Protection Act, 1986, RERA as well as the triggering of the Code.”

In para 15 of the aforesaid judgment Experion Developers Pvt. Ltd. (supra) the Hon’ble Apex Court has held as follows:-

“15. We may hasten to clarify that the power to direct refund of the amount and to compensate a consumer for the deficiency in not delivering the apartment as per the terms of Agreement is within the jurisdiction of the Consumer Courts. Under Section 14 of the Consumer Protection Act, if the Commission is satisfied …that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to, return to the complainant the price or as the case may be, the charges paid by the complainant. ‘Deficiency’ is defined under Section 2(g) to include any shortcoming or inadequacy in performance which has been undertaken by a person in pursuance of a contract or otherwise relating to any service. These two provisions are reproduced hereinbelow for ready reference.13 It is clear from the statutory

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­__________________

13    “14. Finding of the District Forum. – (1) If, after the proceedings conducted under section 13, the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to [do] one or more of the following things namely:-

(a)……

(b)….

(c) to return to the complainant the price, or, as the case may be, the charges paid by the complainant;

position that the Commission is empowered to direct refund of the price or the charges paid by the consumer.

            Para 16 of the said judgment reads as follows:-

1. A consumer invoking the jurisdiction of the Commission can seek such reliefs as he/she considers appropriate. A consumer can pray for refund of
2.  

the money with interest and compensation. The consumer could also ask for possession of the apartment with compensation. The consumer can also make a prayer for both in the alternative. If a consumer prays for refund of the amount, without an alternative prayer, the Commission will recognize such a right and grant it, of course subject to the merits of the case. If a consumer seeks alternative reliefs, the Commission will consider the matter in the facts and circumstances of the case and will pass appropriate orders as justice demands. This position is similar to the mandate under Section 18 of the RERA Act14 with respect to which

(hb) to pay such sum as may be determined by it, if it is of the opinion that loss or injury has been suffered by a large number of consumers who are not identifiable conveniently:

Provided that the minimum amount of sum so payable shall not be less than five per cent of the value of such defective goods sold or services provided, as the case may be, to such consumers:

Provided further that the amount so obtained shall be credited in favour of such person and utilized in such manner as may be prescribed. ……

(i) to provide for adequate costs to parties.

 2. Definitions. – (1) In this Act, unless the context otherwise requires,- …………

(g) “deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;”

14 18. Return of amount and compensation. - (1) If the promoter fails to complete or is unable to give possession of an apartment, plot or building,—

the Court clarified the position in Para 25 of Imperia case referred to herein above. .

In view of the aforesaid the submission of learned Counsel for the

:16:

opposite party has no force, therefore, is rejected.

Learned Counsel for the complainant has also relied upon the judgment of Hon’ble Supreme Court in the case of Experion Developers Pvt. Ltd. V/s Sushma Ashok Shiroor, Civil Appeal No. 6004 of 2019 and Civil Appeal No. 7149 of 2019 dated 07-04-2022

We have perused the aforesaid judgment placed before this Court and find that the submission of learned Counsel for the complainant has force.

We have also perused the report submitted by the Advocate Commissioner appointed by this Court.  

Perusal of the report shows that basic amenities are missing in the said project and lots of discrepencies were pointed out by the Advocate Commissioner which are not disputed by the learned Counsel for the opposite party, therefore, the contention of learned Counsel for the opposite party is nothing but clearly non acceptable nor is supported by any material or evidence.

It is further clarified here that as against the total price of the Unit i.e. Rs.29,07,984/- the complainant had already paid an amount Rs.27,66,122/-. This fact is also not disputed by the opposite party.

From the perusal of the details as mentioned hereinabove the complaint is therefore allowed with the following directions:-

1. The opposite party is directed to refund the amount deposited by the complainant Rs.27,81,324/- with simple interest at the rate of 10% per annum from the date of deposits of the aforesaid amount till the date of payment.
2. The opposite party is further directed to pay towards rent and monetory loss to the complainant of Rs.2,50,000/-
3. The opposite party is further directed to pay sum of Rs.2,00,000/- towards the rent paid by the complainant for hiring the rental accommodation.
4. Apart from that under the head of mental agony and legal fee expenses this Court direct the opposite party to pay sum of Rs.1,00,000/- for mental agony and Rs.25,000/- for legal expenses.

:17:

The entire decretal amount including the interest is directed to be paid by the opposite party to the complainant within a period of 30 days from the date of delivery of the judgment.

With the aforesaid direction the present complaint is allowed.

The parties will bear the costs of the case.

Let copy of this order be made available to the parties as per rules.

The Stenographer is requested to upload this order on the website of this Commission today itsel

 ( JUSTICE ASHOK KUMAR )                         ( SUSHIL KUMAR )     

             PRESIDENT                                                  MEMBER

          Pnt.