Per Mrs. M. Shreesha, Presiding Member

          Aggrieved by the orders, all dated 23.04.2018, in CC No. 930, 931, 932 and 933 of 2017   passed by the State Consumer Disputes Redressal Commission, Punjab (for short the “State Commission”), M/s Emaar MGF Land Private Ltd. (hereinafter referred to as “the Developer”)  preferred these First Appeals under Section 19 of the Consumer Protection Act, 1986 (in short “the Act”) bearing No. 2164, 2161, 2165 and 2175 of 2018 respectively.  FA/2164/2018 is being taken up as the lead case since the subject matter is similar and pertains to the same Project floated by the same Developer.

2.         The facts material to the case are that the Complainant Ms. Anita Jindal and her husband Mr. Narinder Kumar Jindal and her brother-in-law namely Pawan Kumar Jindal and his wife were living in House No. 90, Sector, 28-A, Chandigarh.  It is averred that the Complainant’s family consists of two sons and since they were all living as a joint family the accommodation available in the ancestral home was not sufficient and hence they decided to book two plots one in her name and the other in the husband’s name in the scheme floated by the Opposite Parties under the name and style of Mohali Hills.  Accordingly, the Complainant booked one residential unit admeasuring 300 sq. yards by depositing a cheque of ₹10,35,000/- on 05.09.2006 with the Second Opposite Party at their Chandigarh Office and a receipt was also issued to that effect.  Flat No. 418 was allotted in Augusta Park, Sector-109, Mohali Hills @ 11,500/- per sq. yd., the total basic consideration being ₹34,00,500/-.  It is averred that the Complainant was required to pay an additional ₹1,16,104/- towards external developmental charges.  A Plot Buyer’s Agreement was executed on 20.06.2007 and the Complainant deposited a total amount of ₹36,19,104/- on different dates, detailed as hereunder:-

3.       As per Clause 8 of the Plot Buyer’s Agreement, the date of delivery of possession, was within two years from the date of execution of the agreement but not later than three years, meaning thereby that the possession was to be handed over by the Developer to the Complainant before 20.06.2010, which also includes the further period of one year.

4.       It is pleaded that there was no progress in the development and even basic amenities such as roads, electricity, STP, parks, rain harvesting eyestem etc. were not in existence and the requisite approvals and sanctions from the competent parties had not been obtained.  It is averred that the Complainants made a number of visits to the site and personally met the officials of Second Opposite Party requesting for delivery of possession or refund of her deposited amount with 18% interest.  Each time she was assured that basic amenities would be completed but even till September, 2015, after a lapse of more than 4 years from the promised date of delivery i.e. 20.06.2010, the possession of the plot was not delivered and instead the Developer sent a demand notice dated 19.07.2017 raising an illegal demand of ₹9,37,048/- i.e. ₹3,42,558/- towards delayed payment charges, ₹13,338/- on account of monthly payment charges, ₹1710/- on account of water charges and ₹3,24,000/- on account of stamp duty and registration charges. The Complainant again visited the site to see the progress, but pleads that even the basic amenities were not provided and that the offer of possession was only on paper and an was eye-wash and that the stamp duty charges of ₹3,24,000/- was to be paid only at a subsequent stage and that the demand notice dated 19i.097.2017 was unwarranted and a representation dated 07.08.2017 was sent by the Complainant through registered post seeking delayed period compensation @ 18% p.a. interest on the deposited amount till the date of physical possession but, there was no response.

5.       It is averred that as the growing requirements of the family cannot be postponed forever and keeping in view the age of the children and the grand-children, the Complainant decided not to continue with the scheme and sought for the refund of the amount together with interest @ 18% p.a. from the date of deposit till the date of realization.  The reliefs sought for are detailed as hereunder:-

“i) to refund the deposited amount of ₹36,19,104/- along with interest @ 18% per annum from the respective dates of deposits till actual realization;

ii) to produce requisite approvals/sanctions from the concerned quarters such as:-

a) sanction accorded to the opposite parties so as to facilitate grant of permanent electricity connection to the allottees of Sector-109 by Punjab State Power Corporation Limited.

b) sanction granted by Greater Mohali Area Development Authority to connect storm water/sewerage facility with the main storm water/sewerage;

c) completion certificate issued by the competent authorities certifying completion of all development works in the area of the allotted plot;

d) environment clearance certificate granted by the Ministry of Environment in respect of Sector-109, Mohali Hills, Mohali;

e) permission granted by the Punjab Pollution Control Board in respect of Sector-109, Mohali Hills, Mohali;

iii) to produce the completion certificate issued by the competent authorities i.e. Greater Mohali Area Development Authority/Punjab Urban Development Authority certifying completion of all development works in the area of the allotted plot;

iv) to pay appropriate compensation for deficiency in service, unfair trade practice and mental harassment suffered by the complainant;

v) to impose appropriate punitive damages upon the opposite parties; and

vi) to pay a sum of ₹55,000/-, as litigation expenses.”

6.       The Developer filed their Written Version stating that the Complainant and her family have purchased four plots for the purpose of investment and, therefore, do not fall within the definition of ‘Consumer’ as defined in the Act; that the price of the plot has not increased as per their desired expectations and, therefore, instead of taking possession they are now seeking refund with heavy interest; that the Complainants have invested their money only for commercial purposes; that as per Section 8 of Arbitration, the matter should be relegated to an Arbitrator; HDFC Bank which has extended the loan has not been arrayed as a party; that the State Commission does not have pecuniary jurisdiction as the value of the plot together with the compensation prayed for exceeds ₹10,000,000/-; that the Complaint has been filed beyond the period of limitation as envisaged under Section 24A of the Act; that the earnest money ought to be forfeited and that the Complaint ought to be dismissed at the threshold.  The Developer also filed MA No. 2750 of 2017, seeking dismissal of the Complaint on the ground of pecuniary jurisdiction.  MA No. 2744 of 2017 has also been filed referring to Clause 39 of the Plot Buyer’s Agreement, which stipulates that the matter be referred to an Arbitrator. 

7.       The State Commission based on the evidence adduced, has allowed the Complaint in part directing the Opposite Parties to refund the amount of ₹36,19,104/- with interest @ 12% p.a. from the date of respective deposits till the date of realization together with ₹1,00,000/- towards compensation. Since refund has already been awarded, no orders were passed on the other reliefs. 

8.       At the outset I address to the question of objections raised by the Learned Counsel with respect to Arbitration and Pecuniary Jurisdiction. With respect to Arbitration it is a settled law that Section 8 of Arbitration does not bar the Consumer Fora from entertaining the Complaint as laid by the Hon’ble Supreme Court in Aftab Singh Vs. Emaar MGF Land Ltd. & Anr.– III (2017) CPJ 270 (NC) and, therefore, the State Commission has rightly placed reliance on the afore-noted judgement and dismissed MA No. 2744 of 2017.

9.       Learned  Counsel appearing for the Developer vehemently contended that the State Commission has dealt with the matter without having pecuniary jurisdiction to entertain the same as the value of goods and services and the compensation prayed for is more than ₹10,000,000/- as laid down by a Three-Member Bench of this Commission in Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd. I (2017) CPJ 1.   

10.     Learned Counsel appearing for the Complainant contended that the relief claimed by the Complainant is more than ₹20,00,000/- and less than ₹10,000,000/- and, therefore, the State Commission has jurisdiction to entertain the same.  The prayer sought for is for refund of the deposited amount of ₹36,19,104/- which is the total value  of the plot and the interest sought for was 18% p.a. from the date of respective deposits together with appropriate compensation and, therefore, it cannot be said that the State Commission lacks pecuniary jurisdiction.  The Complainant also filed an affidavit before the State Commission showing the amounts paid and that they are seeking refund with interest @ 18% p.a.  The State Commission has dealt with the aspect of pecuniary jurisdiction stating that future interest cannot be calculated as it cannot be pre-ascertains for which period the same would be awarded and moreover Section 17 of the Act does not state that future interest component included for determining the pecuniary jurisdiction.  Be that as it may, as the total value of goods and services i.e. the amount deposited by the Complainant for which refund is sought is only ₹36,19,104/- and the interest @ 18% per annum claimed from the date of deposit till the date of filing the Complaint i.e. for a period of 9 years comes to ₹58,52,948/-, total being ₹94,72,052/- hence does not exceed ₹10,000,000/-, we do not find any illegality in the observations made by the State Commission.  Even otherwise, to set the clock back at this stage, keeping in view the facts and circumstances of the case, would only defeat the very objective and spirit of the Act.

11.     Learned Counsel appearing for the Appellant/Developer vehemently contended that two brothers and their wives have purchased the said property only for the purpose of investment and, therefore, are not Consumers.  There is a specific averment in the Complainant that the Complainant’s family consists of her husband and also her brother-in-law’s family living in House No. 90, Sector 28-A, Chandigarh which is an ancestral home.  There is also a specific pleading that the Complainant’s family has two sons namely Shekhar Jindal and Rahul Jindal and that Shekhar Jindal has a wife, daughter and a son doing their under-graduation and Rahul Jindal also has two children who are students.  It was stated that their ancestral home was not sufficient to meet the growing needs and that the plots were purchased in her name and in the name of her husband only for the purpose of building a residential home sufficient enough for the entire family. This Commission in Kavita Ahuja vs. Shipra Estates I (2016) CPJ 31 has stated that mere purchase of more one plot does not necessarily be construed that it is for commercial purpose and that the Complainant is not a ‘Consumer.’ The finding depends on the facts and circumstances of each case and further the onus is on the Developer to establish that it was purchased for the purpose for investment and that the Complainants are in the business of real estate which necessitates purchase and sale of plots. The material on record does not evidence that the Developer has brought any such evidence to discharge their onus.

12.     Keeping in view the pleadings in the main Complaint and also the fact that there is no evidence on record to substantiate the plea of the Developer that the Complainants have purchased these plots purely for investment purposes, it is held that the Complainants are ‘Consumers’ as defined under Section 2(1)(d) of the Act.

13.     Learned Counsel appearing for the Developer vehemently contended that the possession was first offered on 06.07.2015 and a reminder letter was also issued on 19.08.2015, 27.08.2015 and also on 19.07.2017.  On a query from the Bench, Learned Counsel submitted that there was no reply to the possession letter dated 06.07.2015.  He submitted that since cause of action first arose when the plot was offered on 06.07.2015 it cannot be stated to be a continuing one and that the Consumer Complaint was filed on 26.10.2017 and, therefore, is barred by limitation.  Learned Counsel appearing for the Complainants placed reliance on the letter dated 07.08.2017 in which the Complainant had sought for delayed period compensation as the maximum date of offer of possession was only upto 01.10.2015. It is seen from the said letter that the Complainant has raised the issue that the offer of possession which was made to them was only an eye-wash as the allotted plot does not have even the basic amenities and, therefore, even the demand letter dated 19.07.2007 seeking additional charges including stamp duty and registration charges was uncalled for.  Keeping in view the letter dated 07.08.2017 and the averments made in that letter, the receipt of which has not been denied by the Developer, it cannot be stated that there was complete silence on behalf of the Complainant.  The State Commission has observed that the cause of action is a continuing one as the terms of the agreement were not complied with and the possession was not actually delivered as per the terms or the amount refunded.  It is the contention of the counsel for the Developer that the State Commission has erred in observing that the terms were not adhered to as the first offer of possession was on 06.07.2015 itself.  On a pointed query from the Bench as to when the Completion Certificate was obtained, Learned Counsel submitted that Emmar MGF Land Ltd. is covered under Mega Housing Policy and the partial completion certificate was applied for on 02.09.2014 and that the partial completion certificate was obtained on 16.10.2015.  Learned Counsel for the Complainant argued that only the letter dated 19.07.2017 was received by them demanding additional payments for which the Complainant had replied vide letter dated 07.08.2017.  It was denied that the letter dated  09.07.2015 was ever received by the Complainant. 

14.     It is pertinent to mention that apart from the fact that there is no evidence that the Complainant had indeed received this letter as the material on record does not evidence the mode of dispatch of the said letter, and there is complete silence on behalf of the Developer from 06.07.2015 and/or from 27.08.2015 till 19.07.2017.  Even if we take into consideration that the letter dated 06.07.2015 was indeed received by the Complainant, admittedly, the next communication was on 19.07.2017 seeking additional amounts to be paid, which is two years later.  Hence it is observed that silence, if any, is only on behalf of the Developer.  Keeping in view all the afore-noted reasons that there is no evidence on record to establish that the letter dated 06.07.2015 was indeed received by the Complainant, that the Developer had only raised a demand notice on 06.07.2015 and/or 16.07.2017 which was two years subsequent to the letter dated 27.08.2015 and also that there is no evidence on record that all the basic amenities were indeed provided, it is held that the said Complaint is not barred by limitation as the cause of action is a continuing one.  At this juncture it is also relevant to mention that the promised date of delivery was 19.06.2010 and this letter offering possession was only in the year 2015 after a delay of almost five years. 

15.     It is pertinent to mention that the Complainant had paid the entire amount of ₹36,19,104/- by 31.12.2009.  Perusal of the demand letter dated 27.08.2015 shows that the Developer was seeking stamp duty and registration charges of ₹3,24,000/-, EDC/IDC of ₹72,996/- and also delayed payment charges of ₹2,74,743/-.  It is not understood as to why the stamp duty and registration charges were demanded on 27.08.2015 when the partial completion certificate was issued only on 16.10.2015.  The demand pertaining to the stamp duty and registration charges on 27.08.2015 is pre-mature and illegal.  When the record shows that the Complainant paid the entire sale consideration by 31.12.2019, there are absolutely no grounds for the Developer to have again raised the demand of delayed payment charges of ₹2,72,748/-.  Further, a perusal of the letter dated 06.07.2015, on which the Learned Counsel appearing for the Developer places reliance on, shows that the Developer has also raised a demand for club membership charges of ₹1,14,000/- apart from the delayed payment charges of ₹2,74,748/-.  There is no evidence on record that the basis amenities were even completed and the stand of the Development in raising the demand for club membership charges pre-maturely is unjustified.

16.     Keeping in view the receipts and the material on record and the admitted fact that the Complainant has paid a sum of ₹36,19,104/- by 31.12.2009 it is held that the contention of the Learned Counsel for the Developer that the Complainants still had to pay the delayed payment charges, is unsustainable. 

17.     Learned Counsel for the Developer also submitted that the State Commission ought not to have awarded compensation of ₹1,00,000/- when there is no documentary evidence filed by the Complainant with respect to any escalation in the price of construction or that had the Complainant invested the money somewhere else she would have got better returns.  He argued that the State Commission has again on assumptions and presumptions awarded the compensation of ₹1,00,000/- and that interest @ 12% p.a. awarded by the State Commission is excessive as the Hon’ble Supreme Court vide its order dated 10.05.2019 in Civil Appeals No. 4910-4941 of 2019  DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda & Ors. has awarded interest only @ 9% p.a.  Learned Counsel appearing for the Complainant drew my attention to Rule 17 of the Punjab Apartment and Property Regulation Rules, 1995, framed under Section 45 of PAPRA wherein it has been stated as follows:-

“17.    Rate of interest on refund of advance money upon cancellation of agreement:- The promoter shall refund full amount collected from the prospective buyers under sub-section (1) of section 6 together with interest thereon at the rate of twelve per cent per annum payable from the date of receipt of amount so collected till the date of re-payment.”

18.     At this juncture I find it a fit case to place reliance on the Judgement of the Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra Civil Appeal No. 3182/2019  wherein it has observed that Complainant cannot be made to wait indefinitely for seeking possession.  In the instant case, though the entire amount was paid in the year 2009 and the promised date of delivery was 2010, it is a matter of record that the partial completion certificate was only obtained on 16.10.2015 and there appears to be a silence of two years on the part of the Developer.  Be that as it may, the ratio of Kolkata West (Supra) squarely applies to the facts of this case as the Complainant cannot be made to wait for more than five years for seeking possession of a residential plot.  I also find it a fit case to place reliance on the Judgement of the Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan (CIVIL APPEAL NO. 12238 OF 2018) wherein the Hon’ble Supreme Court has laid down that the terms of agreement cannot be one-sided and unilateral.  It is an admitted fact  that as per Clause 3 of the Plot Buyers Agreement, the Company has a right to charge interest @ 15% p.a. compounded from the Complainant when there is any delay in the payment of the instalments by the Complainant and Clause 8 stipulates that if the delay is more than three years from the date of execution of the agreement the Company shall pay a penalty of ₹50 per sq. yd p.m. for the delay beyond three years.  Learned Counsel appearing for the Complainant also submitted that a bank loan had been taken from HDFC Bank where the floating interest rate @ 11.65% was charged and, therefore, the interest awarded by the State Commission @ 12% p.a. cannot be construed to be of any undue enrichment.  Keeping in view Rule 17 of PAPRA wherein 12% interest was laid down to be equitable; the submission that floating interest @ 11.65% p.a. was paid to HDFC Bank and also interest @ 15% p.a. was being charged by the Developer in case of delayed payments together with the fact that the Complainants had paid for these residential plots way back in the year 2009 and for building homes for themselves and their joint family, I do not find any substantial grounds to interfere with the well-considered order of the State Commission in awarding interest @ 12% p.a.  The Hon’ble Apex Court in V. Krishnakumar vs. State of Tamil Nadu & Ors. (2015) 9 SCC 388, while quantifying the compensation has sagely relied on restitutio in integrum.  Indisputably, grant of compensation is based on the Principle of restitutio in integrum.  The said principle provides that a person entitled to damages should, as nearly as possible, get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong.  An application of this Principle is that the aggrieved person should get the sum of money, which would put him in the same position if he had not sustained the wrong.  It must necessarily result in compensating the aggrieved person for the financial loss suffered due to the event, the pain and suffering undergone and the liability that he/she would have to incur due to the loss and harassment caused by the event.  The Complainants have not only lost the opportunity of owning a home almost a decade ago but have also suffered mental agony on account of the deficiency of service on behalf of the Developer. Hence, this interest awarded @ 12% p.a. is being retained as no further compensation is being awarded. 

19.     However, I find force in the contention of the Learned Counsel for the Developer that when interest is being awarded by way of damages further compensation cannot be awarded.  The Hon’ble Supreme Court in DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda & Ors. (Supra) has observed that compensation cannot be awarded under multiple heads. As interest @ 12% p.a. is being awarded by way of damages, the compensation of ₹1,00,000/- has been set aside.  It is observed from the record that vide order dated 31.05.2019, the operation of the impugned order was stayed directing the Appellant Developer to deposit the entire amount awarded by the State Commission within four weeks.  In compliance of the said order the entire amount has been deposited.  It is directed that this amount, with interest accrued, stands released to the Complainants.  Needless to add, the amount of ₹1,00,000/-, awarded towards compensation, shall stand released to the Developer herein. 

20.     These Appeals are allowed in part to the extent of only deleting the compensation of ₹1,00,000/- while confirming the rest of the order of the State Commission.  The statutory deposits made in these Appeals shall stand transferred to the First Complainant in each case.