Delhi

North

CC/139/2021

ROHIT LAL - Complainant(s)

Versus

COSMOS INFRA ENGINEERING INDIA PRIVATE LIMITED - Opp.Party(s)

MANOJ DHAWAN & SHIVAM MOUDGIL

22 Nov 2024

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

Phone: 011-23969372; 011-23912675 Email: confo-nt-dl@nic.in

Consumer Complaint No. 139/2021

In the matter of

Sh. Rohit Lal.           

S/o Mr.Yograj lal

R/O Flat No.44/2, Harmony Homes

Sushant Lok-III, Sector-57

Gurgaon-122011, Haryana, India                                                              ... Complainant- 1

 

Ms.Rachita Lal (Co-applicant)

W/o Sh. Rohit Lal.   

S/o Mr.Yograj lal

R/O Flat No.44/2, Harmony Homes

Sushant Lok-III, Sector-57

Gurgaon-122011, Haryana, India                                                              ... Complainant- 2

Versus

Cosmos Infra Engineering (India) Pvt.Ltd.

(Formerly known as M/s. Cosmos Infra Engineering (India) Ltd        

Office at

1/6, Grd. Floor, Rishi Apartments

4, Battery lane, Rajpur Road, Civil Lines, Delhi

Central Delhi-110054, India                                                                       …Opposite Party                                                   

ORDER
22/11/2024

Ms.Harpreet Kaur Charya, Member

Jurisdiction of this Commission has been invoked by Sh. Rohit Lal and Smt. Rachna Lal, Complainant no.1 and Complainant no.2 respectively, against M/s. Cosmos Infra engineering (India) Pvt. Ltd. (formerly known as M/s. Cosmos Infra engineering (India) Ltd.) as OP under Section 35 of the Consumer Protection Act, 2019.

  1. Briefly stated, facts as per the complaint are, the complainant no.1 relying upon the advertisements and representation made by the OP claiming their project “Cosmos Express 99” to be of a high standard, handing over of the timely possession and services etc. visited the project site of OP.  Upon his visit to the site, OP lured the complainant by showing unit No.06, 1st floor, Tower D, admeasuring 1310 sq.ft. (2BHK+2T) in “Cosmos Express 99”, Village Dhankot, Sector-99, Tehsil and district, Gurugram, Haryana-122505. 
  2. It has been alleged that the complainant was informed that as a standard practice OP takes money against the unit/property at the initial stage so that the specific unit no. can be reserved/booked on the said floor/site and that said unit will not be booked for any other interested buyer. Therefore, the complainant No.-1 paid Rs.50,000/- vide receipt reference No.CIEIL/15771 via cheque No.000001 dated 19/07/2015. 
  3.  An application form consisting of necessary details of the unit including the total price was handed over to the complainant No.-1.  Another instalment of Rs.50,000/- was paid vide receipt reference No.CIEIL/15772 vide cheque/DD/OP No.000016 on  10/12/2015.
  4.  An allotment letter dated 01/03/2016 was issued for flat No.D-106, Floor first, Tower D, Super area:-1310 Sq.ft. Accommodation: 2BHK. 
  5. The complainant no.1 has alleged that he was in utter shock when within few months of booking OP allotted a unit without giving the buyers/complainant more time to research. 3rd instalment of Rs.6,50,000/- was paid vide receipt reference No.CIEIL/15773 via Cheque No.000020 on 09/03/2016. 
  6. A flat buyer agreement dated 12/04/2016 was entered between the complainant no.1 and OP.  Thereafter the complainants initiated the process of housing loan from Punjab National Bank housing Finance Ltd. (hereinafter referred as PNBHFL) and a loan of Rs.54,50,000/- was disbursed. A Tripartite agreement was executed between the complainants, OP and PNBHFL on 08/04/2016 under the “PRE-EMI Subvention Plan under which the builder had to pay PRE- EMI on disbursed loan amount in his account (75% of TSP/amount:54,50,000/- PRE-EMI;Rs.43,000/- per month reducing balance date of interest) till possession .
  7. OP received 4th instalment and Home loan amount inclusive of service tax from PNBHFL against the unit allotted to the complainant no.1. A receipt bearing reference No.CIEI-16018 was issued for cheque No.255783 for an amount of Rs.54,50,000/- on 20/04/2016. The complainant no.1 has alleged that the entire sanctioned amount was disbursed to OP within two weeks.  On 24/06/2016, the complainant no.1 paid service tax +GST of Rs.48,809/- by cheque No.000032 for which receipt reference no. CIEIL/16306 was issued.
  8. 6th instalment of Rs.50,000/- was paid by the complainant no.1 for which receipt reference No. CIEIL/16866 for online transfer was issued on 16/12/2016 and Rs.7,00,000/- being the 7th instalment was paid for which receipt reference No. CIEIL/17537 for cheque No.000041 dated 28/06/2017 was issued.
  9. The complainant No.-1 paid the 8th instalment of Rs.4,20,159/- vide receipt reference No. CIEIL/17539 via cheque no.000043 dated 28/06/2017.  On 09/04/2018 the name of Ms.Rachita Lal w/o Sh. Rohit Lal was added as co-applicant.  It has been stated by the complainant that though OP has received a sum of total Rs.74,18,968/- despite that OP has failed to handover the possession as per the builder buyer agreement,  which was to be handed over by 12/04/2020. 
  10. The complainant has alleged that they visited the site where they observed that only few parts of construction were complete despite lapse of considerable time period.  There is not only delay in starting of construction but also a delay of 16 months in handing over the possession of the said unit alongwith the payment of PRE-EMI to PNBHFL as per    clause -5 of the tripartite agreement.
  11. The complainant had visited the office of the OP, where they were assured about the quality of services and were promised the timely possession before signing the builder buyer agreement.
  12. It has been submitted by the complainants that they need to be fairly compensated with the amount of Rs.23,74,069/- (in lieu of the delay in possession on principal amount+ bank loan paid to builder /developer= Rs.74,18,968/- @24% p.a. for 16 months of delay in possession from the date of builder Buyer Agreement expired for possession +outstanding  Pre-EMI of Rs.16,61,094/- from the period May, 2018 to Aug.2021 alongwith future default +5.00,000/- for mental agony and Rs.5,00,000/- for litigation expenses)   
  13. The complainant  have alleged further, that the delay in handing over the possession has caused grave mental agony and injury to the complainants which amount to gross deficiency thus, OP is liable to pay compensation/damages.      
  14. Feeling aggrieved by the act/omission on the part of OP, the complainants have prayed for following directions
  1. Direct the OP to refund the paid amount of Rs.74,18,968/-+Pre-EMI outstanding interest till date amount –Rs.16,61,094/-
  2. Direct the OP to compensate the complainant with the delay in compensation amount of Rs.23,74,069/-
  3. Direct the OP to pay interest @24%p.a.
  4. Direct the OP to pay Rs.5,00,000/- towards the mental agony/damages/compensation
  5. Grant the cost of proceedings and litigation expenses i.e. Rs.5,00,000/-.

 

  1. The copy of Aadhar Card of the complainant as Annexure-A, copy of payment receipt no. CIEIL/15771 as Annexure-B, Application form as Annexure-C, copy of payment receipt no. CIEIL/1577 as Annexure-D, copy of allotment letter dated 01/03/2016 as Annexure-E, copy of payment receipt no. CIEIL/15773 as Annexure-F, copy of flat buyer agreement as Annexure-G, copy of tripartite agreement dated 08/04/2016 as Annexure-H, copy of payment receipt no. CIEIL/16306 as Annexure-I, copy of payment receipt No. CIEIL/16866as Annexure-J, copy of payment receipt no. CIEIL/17537 as Annexure-K, copy of payment receipt no. CIEIL/15539 as Annexure-L, copy of letter adding the name of co-applicant dated 09/04/2018, Statement of account of complainant, copy of flat buyer agreement, copy of tripartite agreement & copy o pre-EMI calculation sheet as Annexure-M has been annexed with the complaint.
  2. Notice of the present complaint was served upon the OP. Thereafter, written statement was filed on their behalf through Authorised Representative, Sh.Vinod Mittal.
  3. OP has taken several preliminary objections such as: the allegations made in the complaint are baseless and there is suppression of material facts; the complainant has failed to make out a case of deficiency in services; complainants are not consumer as they have invested in the property to make profit by selling the same at higher price; complainants have misinterpreted the flat buyer agreement. As per clause 3.1, the developer shall under normal condition subject to force majeure, complete the constructions of the tower.  The construction work has been completed till 70 % and possession will be given in short span of time.  Clause 3.1 is reproduced below:-

“That the developer shall under normal condition, subject to force majeure, complete construction of tower /building in which the said flat is to be located, in 04 years from the start of construction or execution of this Agreement whichever is later, as per the said plans and specifications seen and accepted by the Flat Allottee(s) (with additional floors for residential units if permissible) with such additions, deletions, alterations, modifications in the layout, tower plans, change in number, dimensions, height, size, area or change of entire scheme the Developer may consider necessary or may be required by any competent authority to be made in them or any of them.  To implement all or any of these changes, supplementary sale deed(s) /agreement(s) if necessary will be got executed and registered by the Developers which the Flat Allottee(s) under takes to execute.  If as a result of the above alteration etc, there is either reduction or increase in the super area of the said flat or its location, no claim, monetary or otherwise will be raised or accepted except that the original agreed rate per sq.mtr/sq.ft. and other booked or as the Developer may decide and as a consequence of such reduction or increase in the super area, the developer shall be liable to refund without interest only the extra basic price and other pro-charges recorded or shall been titled to recover the additional basic price and other proportionate charges without interest as case may be.  If for any reason, the Developer is not in a position to allottee said flat applied for, the developer at its sole discretion shall consider for any alternative property or refund the amount deposited with simple interest @10% per annum.

  1. It has been further submitted that the present complaint involves demand of return of amount and compensation deposited for real estate asset, therefore, is covered under special enactment enacted by the parliament as RERA, 2016.  The delay in completion of the said project has been due to circumstances beyond the control of OP due to COVID.  The real estate sector has been hit the hardest due to non-availability of resources such as labour and raw material. COVID-19 has been declared as pandemic and a force majeure event by the Government and extension has been allowed to the builder to complete the project.  The delay can be further attributed to rise in pollution in Delhi NCR which has resulted in multiple blanket bans on constructions leading to delay in completion.
  2. OP has also submitted that the construction work is at an advance stage and all structure work and finishing work is going on.  OP has only received Rs. 90.46 crores from the flat buyer and spent over more than Rs.160 crores in the project; considering the conduct of the complainant, OP reserves the right to file appropriate application under Section 340 of the Cr.P.C, 1973. 
  3. It has been denied that the OP lured the complainant or general public into investing in its project, rather the complainant approached the OP looking for investment option. It has also been denied that the construction work of the project is not up to the mark and only few parts of construction are complete, as, the construction is at advance stage.  Allegations of deficiency in services have been denied.  Rest of the contents of the complaint have been denied with the prayer for dismissing the complaint.
  4. OP has annexed the Board Resolution date 08/12/2021, authorising Sh.Vinod Mittal with their written statement.
  5. Rejoinder to the written statement of OP was filed by the complainants reiterating the contents of their complaint.  Contents of the written statement have been denied. It has been submitted that nationwide lockdown was first announced on 25/03/2020 (as per report) exactly 18 days before the timeline when OP was suppose to deliver the unit.
  6.  OP has not annexed any circular/notices from any government bodies to support their claim of force majeure clause. It has been further submitted by the complainants that OP has not clearly mentioned the clause in their BBA or any other agreement that in case any other buyer(s) fails to pay the money to the builder then the builder has a right to stop construction and sit idle for even those who have made 99% of the payment as and when demanded by OP. 
  7. Evidence by way of affidavit has been filed by the complainant Mr.Rohit Lal as CW-1. He has reiterated the contents of his complaint and has also got the annexure exhibited.
  8.  OP has got examined Sh.Pranav Mittal, Director on their behalf.  He has relied upon written statement and got the same exhibited as Ex.DW1/1.
  9. We have heard the arguments on behalf of the Ld. Counsel for the complainant and Ld. Counsel for the OP and have also perused the material placed on record. Firstly, deciding upon the preliminary objections raised by the OP; Complainant is not a consumer and commission lacks territorial jurisdiction.
  10. OP has disputed that the complainant is not a consumer; the unit in question was booked for commercial purpose. The complainants have denied this in their rejoinder, and stated that the said flat was booked by them for personal use. It is settled proposition that burden is upon the OP to prove that the Complainants are indulging in commercial activities of sale and purchase of the flats and that they had booked the subject flat with the intention to sell it to earn profit as part of their commercial activities. Hon’ble National Commission in Kavita Ahuja v. Shipra Estate Ltd. and Jai Krishna Estate Developers Pvt. Ltd., I (2016) CPJ 31 (NC) has clearly held as under:

6. …xxx…..

“ In the case of the purchase of houses which the service provider undertakes to construct for the purchaser, the purchase can be said to be for a commercial purpose only where it is shown that the purchaser is engaged in the business of purchasing and selling houses and / or plots on a regular basis, solely with a view to make profit by sale of such houses. If however, a house to be constructed by the service provider is purchased by him purely as an investment and he is not undertaking the trading of houses on a regular basis and in the normal course of the business profession or services in which he is engaged, it would be difficult to say that he had purchased houses for a commercial purpose. A person having surplus funds available with him would not like to keep such funds idle and would seek to invest them in such a manner that he gets maximum returns on his investment. He may invest such funds in a Bank Deposits, Shares, Mutual Funds and Bonds or Debentures etc. Likewise, he may also invest his surplus funds in purchase of one or more houses, which is/are proposed to be constructed by the service provider, in the hope that he would get better return on his investment by selling the said house(s) on a future date when the market value of such house (s) is higher than the price paid or agreed to be paid by him. That by itself would not mean that he was engaged in the commerce or business of purchasing and selling the house (s).

                         xxxx...

9. In any case, it is not appropriate to classify such acquisition as a commercial activity merely on the basis of the number of houses purchased by a person, unless it is shown that he was engaged in the business of selling and purchasing of houses on a regular basis. xxxxx….”

  1. Hon’ble Supreme Court in “Shriram Chits (India) Private Limited vs. Raghachand Associates” in Civil Appeal no.15290 of 2021 has also held :-
“20.As we have shown above, the definition of consumer has three parts. The significance of deconstructing the definition into three parts was for the purpose of explaining on whom lies the onus to prove each of the different parts. There can hardly be any dispute that the onus of proving the first part i.e. that the person had bought goods/availed services for a consideration, rests on the complainant himself. The carve out clause, in the second part, is invoked by the service providers to exclude the complainants from availing benefits under the Act. The onus of proving that the person falls within the carve out must necessarily rest on the service provider and not the complainant. This is in sync with the general principle embodied in Section 101 and 102 of the Evidence Act that 'one who pleads must prove'. Since it is always the service provider who pleads that the service was obtained for a commercial purpose, the onus of proving the same would have to be borne by it. Further, it cannot be forgotten that the Consumer Protection Act is a consumer-friendly and beneficial legislation intended to address grievances of consumers.6 Moreover, a negative burden cannot be placed on the complainant to show that the service available was not for a commercial purpose.
21. Having held that the onus to prove that the service was obtained for a commercial purpose is on the service provider, we may clarify the standard of proof that has to be met in order to discharge the onus. The standard of proof has to be measured against a 'preponderance of probabilities'. The test to determine whether service obtained qualified as a commercial purpose is no longer res integra in view of this Court's decision in Lilavathi v. Kiritlal (supra). Para 19 sets out the principles on which it must be determined whether the onus of proving 'commercial purpose' has been properly discharged by the service provider.”
29. Hon’ble NCDRC in the judgment of Naresh Garg & Sons v/s CHD Developers Ltd.-II (2023) CPJ 449 (NC) has held as follows:
 7. The contention of OP that this Commission lacks pecuniary jurisdiction is not valid. Under Section 21 of the Act, Commission has the jurisdiction where value of goods and services and compensation, if any, claimed exceeds Rs. one crore. The contention that complainant(s) is/are not a consumer as he/they has/have purchased the unit for commercial purposes is also rejected as no such evidence has been adduced by the OP in this regard. It has been observed by this Commission in various cases Kavita Ahuja v. Shipra Estates Ltd., I (2016) CPJ 31 (NC)=CC 137 of 2010, decided on 12.2.2015, Santosh Johri v.M/ s Unitech Ltd., CC 429 of 2014 and connected Cases, decided on 8.6.2015, Aloke Anand v. M/s Ireo Grace Pvt Ltd. & Others, CC No 1277 of 2017 decided on 1.11.2021) that purchase of a house can only be for a commercial purpose if the purchaser is engaged in the business of purchasing and selling houses or plots on a regular basis, solely with a view to make profit by way of sale of such houses, if the house is purchased purely as an investment and the purchaser is not undertaking the trading of houses on regular basis, then it would be difficult to say that he had purchased it for commercial purpose.
30. Unless there is evidence on record to show that the Complainants had booked the  flat for the purpose of trading in the same, a bald assertion by the OP that  flat had been booked for the purpose of making profits is not sufficient to hold that it is for “commercial purpose.” OP has placed nothing on record to show that Complainants are engaged in activity of sale/purchase of apartments/flats. Hence, this objection does not hold ground and we hold that the Complainants are consumer as defined under Consumer Protection Act, 2019.
31. Hon’ble Supreme Court in the matter of “Imperia Structures Ltd. Vs.Anil Patni & Anr I (2021) SLT 85 observed in relevant paras which have been reproduced as under
21.It has consistently been held by this Court that the remedies available under the provisions of the CP Act are additional remedies over and 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.
31. At this stage, we may profitably refer to the decision in Pioneer Urban Land and Infrastructure Limited and Another v. Union of India and Another, VII (2019) SLT 345 IV(2019) BC 183 (SC)=(2019) 8 SCC 416, where a bench of three Judges of this Court was called upon to consider the provisions of Insolvency and Bankruptcy Code, 2016, RERA Act and other legislations including the provisions of the CP Act. One of the conclusions arrived at by this Court was:
“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.”
34. Lastly, it may be noted that the Consumer Protection Act, 2019 [Most of the provisions in Chapters I, II, IV, V, VI, VII and VIII including Sections 100 and 107 were brought into force w.e.f. 27.07.2020 vide Notification dated 15.07.2020] (hereinafter referred as, “2019 Act”) was enacted by the Parliament “to provide for protection of the interests of consumers and for the said purpose, to establish authorities for timely and effectively administration and settlement of the consumers’ dispute and for matters connected therewith or incidental thereto”. Sections 2(7), 2(33), 2(37), and 2(42) define expressions “Consumer”, “Product”, “Product Seller” and “Service” respectively. Sections 85 and 86 deal with liability of “Product Service Provider” and “Product Seller”. Sections 100 and 107 of 2019 Act are to the following effect:
“100. The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
107. (1) The Consumer Protection Act, 1986 is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken or purported to have been done or taken under the Act hereby repealed shall, in so far as it Is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act.
(3) The mention of particular matters in Sub-section (2) shall not be held to prejudice or affect the general application of Section 6 of the General Clauses Act, 1897 with regard to the effect of repeal.”
Section 100 of 2019 Act is akin to Section 3 of the CP Act and Section 107 saves all actions taken or purported to have been taken under the CP Act. It is significant that Section 100 is enacted with intent to secure the remedies under 2019 Act dealing with protection of the interests of Consumers, even after the RERA Act was brought into force.
Thus, the proceedings initiated by the complainants in the present cases and the resultant actions including the orders passed by the Commission are fully saved.”
Therefore, in the light of above judgment the complainant as an additional remedy under Section 100 of the CPA, 2019 can file the present complaint. Since, the registered office of OP is “4, Battery Lane, Rajpur Road, Civil Lines, Delhi-110054”, falling within the territorial jurisdiction of this commission. Hence, this commission has competent jurisdiction to adjudicate this complaint.
32. Another defence taken by OP for delay in handing over the possession is  with respect to force majeure, as per the Clause 3.1 BBA dated 19/04/2016, it stipulates that the developer shall under the normal conditions, subject to force majeure, complete the  construction of the Tower/Building in which the flat is to be located , in 04 years from the start of the construction or execution of this agreement, whichever is later, as per the said plans and specifications seen and accepted by the Flat Allottee(s). The OP neither in their written statement nor in their evidence have disclosed the date when the construction was started so that a period of 4 years can be reckoned from.
33. OP in “Para D” of the preliminary objections in their written statement dated 12/12/2021has stated that construction work has been completed till 70% and possession will be given in short span of time.  It is observed that OP has deliberately not disclosed the date of commencement of construction.  In absence of that, taking 4 years from the date of BBA i.e. 19/04/2016 the possession should have been handed over by 18/04/2020.  
34. OP has taken ongoing pandemic COVID as ‘force majeure’ as defense for delay in completion of project. It is pertinent to note that the nationwide lockdown was imposed on 25/03/2020, which only 25 days before the deadline of handing over the possession. It is OP’s own assertion that only 70% of the construction has been completed. Despite the lapse of considerable period, OP has not completed the construction. Even during the pendency of this complaint no offer for possession was made to the complainant.
35. Guided by the judgment of Naresh Garg & Sons v/s CHD Developers Ltd. (supra), it is seen that OP has not placed on record updated dates of constructions as well as likely date of completion, obtaining of OC and handing over possession. Hon’ble NCDRC has observed as follows:-
“6. The OP has not placed on record the updated status of construction as well as likely date of its completion, obtaining of OC and handing over the possession. Even now OP is not in a position to give any firm date for handing over of the possession of unit in question to complainant with OC. It was held by Hon’ble Supreme Court in Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. v. DLF Southern Homes Pvt. Ltd. & Ors., VI (2020) SLT 50=IV (2020) CPJ 10 (SC)=(2020) 16 SCC 512, “failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within the contractually stipulated period, amount to deficiency”. In Kolkata West International City Pvt. Ltd. v. Devasis Rudra, III (2019) SLT 631=II (2019) CPJ 29 (SC)=(2020) 18 SCC 613, Hon’ble Supreme Court observed that “A buyer can be expected to wait for possession for a reasonable period.” 
7....................................................The plea of OP that delay was due to force majeure circumstances is not valid as even after a gap of more than five years from the committed date given in the ABA, possession of flat has not been given. There is no documentary evidence to support the contention of the Opposite Parties that the reasons pleaded by them, can be construed as ‘Force Majeure’......................................... 
8. In the instant case, there is an inordinate delay in handing over the possession of flat by the OP. The complainant(s) cannot be made to wait for an indefinite time and suffer financially. Hence, the complainant(s) in the present circumstances have a legitimate right to claim refund along with fair delay compensation/interest from the OP. The plea of OP for entitlement of compensation to the complainant in accordance with provisions of the ABA is not valid
36. In para 10 of the complaint, the complainant has alleged that a tripartite agreement was entered into on 08/04/2016 under the Pre-EMI subvention Plan in which builder had to pay Pre-EMI on disbursed loan amount in his account (75% of TSP; Rs.54,50,000/- Pre-EMI ; Rs.43,000/- per month on reducing balance rate of interest till possession.  The complainant in para 11 of the complaint has averred that the entire amount of Rs.54,50,000/- was paid by PNBHFL. Receipt of the amount from PNBHFL has not been denied by OP, thus it is an admitted fact.  We have also gone through Clause E, Clause-5 and Clause-6 of the tripartite agreement. As per these clauses the OP/builder offered interest subvention for the loan extended by PNBHFL to the borrower to purchase the property which the borrower accepts. The pre-EMI interest (PEMII) payable under the loan document shall be serviced and borne by the builder/developer during the subvention period as primary obligor as per MoU entered between builder and PNBHFL. The said Pre-EMI shall be paid by the developers of the loan amount disbursed as per the MoU. 
37. The complainant has also placed on record the statement of reimbursement of EMIs (Ex.CW-16/1). As per which, the OP has reimbursed the six (06) EMI of Rs.43,373/- each amounting to Rs.2,60,238/-  for period Nov, 2017 to April, 2018 out of total due of Rs.19,21,332  till 21/08/2021.  Thus there are arrears of Rs.16,61,094/-.  Since, the complainant has not filed the statement for reimbursement of EMIs from 21/08/2021 till date, we are unable to ascertain the amount which the complainant is entitled to be reimbursed. The statement with respect to  default in payment/reimbursement of EMIs pertains only from April,2018 to  21/08/2021, we feel appropriate to direct OP to reimburse the complainant with Rs.16,61,094/-. In absence of statement from 21/08/2021 onwards, we also  direct OP to reimburse the complainants from 21/08/2021 till the date of realization as enumerated in clause (6) of the tripartite agreement (Ex.CW-15/1).
38. Further as per clause 11 of Tripartite Agreement in the event of cancellation of allotment by the builder and/or surrender/withdrawal by the borrower from the scheme for any reason whatsoever, the borrower shall continue to make payment of EMI and/or pre-EMI as agreed in the disbursement letter entered into with the PNBHFL till the amount referred above is refunded by the builder failing which PNBHFL shall have full right to initiate legal action against the borrower and/or the builder.  The complainants have not made PNBHFL as a party in the present complaint and the complainants have also not filed any document to show that there is no default in payment to PNBHFL. At the same time OP has also not placed anything on record to show that it has been complying with the tripartite agreement, which casted a duty on OP to pay Pre-EMI .
39. From the above discussion, it can be adduced that even after lapse of more than four (04) years the unit allotted to the Complainant is not in a deliverable condition.  It is settled principle of law that the Complainant cannot be expected to wait indefinitely for the possession as observed by Hon’ble Supreme Court in “Fortune Infrastructure and Anr. Vs. Trevor D’lima and Ors. [II (2018) CPJ I (SC)] that a person cannot be made to wait indefinitely for possession of flats allotted to him. They are entitled to seek refund of amount paid by them alongwith compensation.
40. Hon'ble Supreme Court in Alok Shanker Pandey Vs. Union of India &Ors., II (2007) CPJ 3 (SC), has held that:- 
"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."
Therefore, in the light of the above judgment, the complainant is also entitled to interest on the amount deposited with OP.  Hence, in the facts and circumstances of the present complaint, we hold OP deficient in services and liable to refund of the amount deposited, with interest on the deposited amount as well as compensation. Hence, we direct the OP:-
a) To refund Rs.74,18,968/- received by OP on account of the sale price of the unit.
b) To pay interest @9% per annum on Rs. 74,18,968/- from date of respective deposits  till realization.
c) To pay Rs.16,61,094/- on account of reimbursement of EMI from May, 2018 till 21/08/2021 and subsequent EMIs as per tripartite agreement.  
d) To pay compensation of Rs.2,50,000/- on account of mental agony and harassment, inclusive of litigation expenses.
The complainants have not filed any documents on record to show that they have been  paying EMI to PNBHFL   In order to avoid multiplicity of litigation we feel appropriate to direct OP to pay the amount awarded in clause (a) above to PNBHFL.  Since PNBFHL is not a party in the present case they are directed to adjust the amount as directed in clause (a) against the loan account of the complainant and thereafter, pay the excess if any, to the complainants within four weeks from the receipt of the amount from OP. 
The order be complied within 30 days from the receipt of the order. In case of non-compliance, amount awarded in clauses (a), (c) and (d)  shall carry simple interest @9 % per annum from the date of order till realisation.
Office is directed to supply the copy of this order to the parties as per rules  and  a copy of this order also be sent  to PNB Housing Finance Limited, 9th floor, Antriksh Bhawan, Kasturba Gandhi Marg, New Delhi-110001.  Order be also uploaded on the website.  Thereafter, file be consigned to the record room.

 

(Harpreet Kaur Charya)

Member

           (Ashwani Kumar Mehta)

                               Member

 

 

(Divya Jyoti Jaipuriar)

President

 

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