JUSTICE SUDIP AHLUWALIA, MEMBER

         These Appeals have been filed by the Appellant(s)/Opposite Party(ies) against Respondents/ Complainants challenging the common impugned Order dated 26.03.2018 passed by the State Consumer Disputes Redressal Commission, U.T. Chandigarh, in Complaint Cases bearing Nos. 649 of 2017 and 499 of 2017. Vide such Order, the State Commission had partly allowed both the Complaints.

2.      These Appeals are being decided by this common order as both the Complaints were originally decided by a common impugned order of the Ld. State Commission. Therefore, for the sake of brevity, FA 941 of 2018 is being treated as the lead case and the facts have been taken therefrom.

3.      The brief facts are that the Complainants had purchased a residential plot admeasuring 250 sq. yards @ Rs.18,000/- per sq. yard in 2011 in the Project of the Opposite Party namely ‘Palm Springs’ situated at Mullanpur District, SAS Nagar, from the original Allottee, Sh. Shiv Charan Gupta, for their personal use. It was submitted that the plot was duly transferred in the name of the Complainants on payment of Rs.13,50,000/- vide letter dated 27.04.2011. The total cost of the plot was Rs.45,00,000/-. It was averred that despite requests, neither the Letter of Allotment was given nor the Builder Buyer Agreement was signed till the filing of the Complaint. Thereafter, on expiry of a period of 5 years and six months, on 06.12.2016, the Opposite Party had asked the Complainants to complete the payment of 75% of the sale price by paying Rs.20,25,000/- and further pay an additional amount of Rs.7,50,000/- towards 75% of development charges,  and the possession was also contemplated to be handed over in the coming months. It was the case of the Complainants that the Opposite party was not in a position to handover the possession complete in all respects due to its failure in completing the development work at site,  and having  no permissions or clearances for the Project.

4.      Therefore being aggrieved by the acts of the Opposite Party in failing to complete the construction and development of the plot, the Complaint was filed before the Ld. State Commission seeking refund of Rs.13,50,000/- along with interest @ 18% from 27.04.2011, Rs.13,39,000/- as per the EOI dated 27.04.2011, future interest @ 18% p.a.,  Rs.5,00,000/- for harassment and litigation costs of Rs. 55,000/-.

5.      The Opposite Party appeared before the Ld. State Commission and resisted the Complaint and had denied all the allegations thereby denying deficiency in service on its part. It was contended that the Complainants had failed to deposit any further payments after payment of Rs.13,50,000/- as per the Payment Plan; that the Complainants had concealed the fact that they were requested vide notice dated 13.02.2014 (sent through registered post-dated 15.02.2014) to deposit an amount of Rs.9,00,000/- before 28.02.2014 and the Complainants had failed to comply with the said notice as they were not interested in the allotment and the latest notice was sent on 06.12.2016; that the plot was booked only for speculative purposes; that the Complainants were duly informed that the allotment process had already been started and that the possession was being delivered to the allottees; that the Complainants instead of approaching the Opposite Party with objections or request for refund, filed a complaint before the Ld. State Commission and hence, relinquished their right to raise any objections; that the Complaint suffers from delay; that the Complainants are not ‘Consumers’ and also the Ld. State Commission lacked territorial jurisdiction; that the Opposite Party had obtained all the requisite sanctions; that the project being a mega project was exempt from applicability of the provisions of PAPRA vide notification dated 25.01.2017; that the Complainants were duly informed about the status of project at the time of Expression of Interest and thereafter, about the necessary approvals, sanctions, etc.; that Competent Authority had granted Completion period till 13.06.2018 and it was for the Complainants to come forward for signing of the Plot Buyer’s Agreement; that the case involved complicated questions of law and needed to be adjudicated by a civil court; that RERA, 2016 being a special statute would take precedence over the Consumer Protection Act, 1986; that the Opposite Party had submitted all the requisite documents and lay-out plans but the authorities delayed the approvals by 2 years; that the Project was approved on 22.03.2013 and formal Agreement was signed with the Government on 14.06.2013 and the latest Supplementary Agreement was signed on 16.06.2016; that the judgments the Ld. State Commission in similar cases were stayed by this Commission vide Order dated 26.05.2017; that the delay was due to Force Majeure conditions like red-tapism and ban on mines and minerals for a couple of years since 2012 leading to shortage of building material; that the multi-storied flats were in ‘ready-to-move’ category. Therefore, the Opposite Party had prayed for dismissal of the Complaint with costs.                  

6.      The Ld. State Commission vide its impugned Order dated 26.03.2018 had partly allowed both the Complaints while rejecting all the objections raised by the Opposite Party. It was observed that the project in question was sold without any permission/ sanction from the Competent Authorities violating the provisions of PAPRA; the amount accepted at the time of booking was more than 25%; no Agreement was signed; the exemption from applicability of PAPRA was granted only in 2017 which cannot be said to have retrospective effect; the Opposite Party had committed deficiency in service by not offering the Buyer’s Agreement for signing in a reasonable time; that the purchaser is not bound to accept the possession when offered at a belated stage and in the present case, such possession was never offered by the Opposite Party. Therefore, the Complainants were entitled for refund along with interest without forfeiture of the Ernest money. The Ld. State Commission therefore directed refund of Rs.13,50,000/- along with interest @13%p.a. from the respective dates of deposits, Compensation of Rs.50,000/- and Litigation Costs of Rs.22,000/- in CC 649/2017,  and refund of Rs.30,06,250/- along with interest @13%p.a. from respective dates of deposits, Compensation of Rs.1.50 Lacs and Rs.33,000/- as litigation costs in CC 499/2017.  

7.      Aggrieved by the above Order, present Appeals have been filed before this Commission which are being decided by this common order.

8.      Heard the Ld. Counsel for Appellant(s) and Respondents. Perused the material available on record.

9.      Both the Appeals in question before us are squarely covered by the judgement dated 19.12.2022 of this Commission passed in FA/1144/2018 which was based on the judgement dated 17.05.2022 of this Commission passed in FA/185/2020. It has been observed by this Commission in its judgement dated 19.12.2022 inter alia:

“7.       While impugning this order, learned counsel for the Appellant has contended that State Commission while ordering refund has granted interest @ 13% p.a which is on the higher side.  It has also contended that besides granting compensation in the form of interest has also awarded compensation under the head of mental agony and physical harassment, which is contrary to the findings of the Hon’ble Supreme Court in the case of DLF Homes Panchkula Pvt Limited  Vs. D.S.Dhanda Etc. Etc. (2020) 16 SCC 318.

8.       Learned counsel for the complainant has relied on the findings in the case M/s Manohar Infrastructure and Constructions Pvt. Ltd. & Anr. Vs. Ankit Jain, First Appeal No. 185 of 2020 decided on 17.05.2022 and submitted that it is covered matter.  It is submitted that project Palm Garden and Palm Springs are part of one project called “Palm Spaces” and there is no difference in the project Palm Garden and Palm Springs.

9.       I  have  heard the arguments of learned counsels for the parties and have perused the record.  The appellant has raised a similar arguments which has already been considered and rejected by the State Commission.  I found no infirmity in the findings of the State Commission regarding deficiency in service on the part of the Appellant.    From the facts, it stands duly proved on record that at the time when the project was promulgated and applications were invited for booking the residential plots by the Appellant, it did not have the requisite permission from the concerned authorities and, therefore, they had acted in violation of the expressed provisions of the rules and regulations governing them.  The fact that Appellant  did not have the requisite permission was never brought to the notice of the complainant who believed that project was having a requisite sanction and applied for booking of the residential plot.  It certainly amounts to unfair trade practices and also amounts to deficiency in service. The complainant had been left in limbo for many years without being sure whether he would get the residential plot or not.  After waiting for considerable time, the complainant had opted for refund of his money and, therefore, findings of the State Commission on this count cannot be said to be suffering with any illegality or infirmity.    It is a settled proposition of law as held by Hon’ble Supreme Court in Dhanda’s case ( supra ) that where compensation in terms of interest is awarded, no compensation under any other head should be granted. Compensation awarded towards mental agony etc. is, therefore, quashed.

10.     It is apparent that it is a covered case, covered by the case of Ankit Jain ( supra).  This Commission in that case while ordering the refund of the deposited amount had granted interest @ 9% p.a. and penal interest @ 12% p.a.. 

11.     I, therefore, partly allow the present Appeal and issue the following directions:

1.       The Appellant is directed to refund deposited amount of Rs.41,10,000/- to the respondent / complainant along with interest @ 9% p.a. from the respective dates of deposit till the date of payment.

2.       To pay cost of litigation to the tune of Rs.33,000/- as awarded by the State Commission.

3.       While disposing of the present Appeal, I also award a litigation cost of Rs.50,000/- to the complainant.

4.       The entire payment shall be made within four months from the date of this order, failing which it will attract penal interest at the rate of 12% per annum.

12.     The Appeal is partly allowed.”

10.    Therefore, these Appeals are disposed off in terms of the same directions as passed in the earlier matter i.e.

i)    The Appellant is directed to refund a sum of Rs. 13,50,000/-  to the Complainant(s) in FA No. 941 of 2018 and Rs. 30,06,250/-in FA No. 1230 of 2018, deposited by each Respondent/ Complainant along with interest @9% p.a. from the respective dates of deposits till the date of final payment;

ii) The Appellant is directed to pay litigation costs as awarded by the Ld. State Commission;

iii)The Appellant is also directed to pay litigation costs of Rs. 50,000/- each towards the present Appeals and;

iv) The entire payment shall be made within 02 months from the date of this Order, failing which it will attract a penal interest @ 12% p.a.    

11.    Pending application(s), if any, also stand disposed off as having been rendered infructuous.