Chandigarh

StateCommission

CC/252/2015

Mrs. Raj Rani - Complainant(s)

Versus

DLF Homes Panchkula Private Limited - Opp.Party(s)

Tarun Gupta & Dr. Neetu Gupta, Adv.

22 Mar 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH
 

Consumer Complaint	:	252 of 2015
Date of Institution	:	28.10.2015
Date of Decision	:	22.03.2016

 

1. Mrs. Raj Rani w/o Sh. Harbhagwan Chawla r/o House No.164, Sector 21, Panchkula.
2. Himanshu Chawla s/o Sh. Harbhagwan Chawla r/o House No.164, Sector 21, Panchkula.

……Complainants.

Versus

1. DLF Homes Panchkula Pvt. Ltd., SCO No.190-191-192, Sector 8-C, Chandigarh through its authorized representative.
2. DLF Homes Panchkula Pvt. Ltd., Regd. Office at 12^th Floor, DLF City, Phase-III, National Highway-8, Gurgaon through its authorized representative.

              ....  Opposite Parties.

 

Consumer Complaint under Section 17 of the Consumer Protection Act 1986.

 

BEFORE:   JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                 SH. DEV RAJ, MEMBER.

                 MRS. PADMA PANDEY, MEMBER.

               

 

Argued by:

Sh. Tarun Gupta, Advocate for the complainants.

Ms. Ekta Jhanji, Advocate for the Opposite Party.

 

PER DEV RAJ, MEMBER

            The facts, in brief, are that the complainants were willing to own a residential house for family and personal use and, as such, they booked an independent floor in the project of the Opposite Parties in the name and style of ‘DLF Valley, Panchkula’ by depositing Rs.4,00,000/- as booking amount. They were allotted Floor No.B1/33-GF having area of 1730 sq. ft. vide allotment letter dated 05.10.2010 (Annexure C-1). The complainants made further payment of Rs.4,00,000/- on 07.01.2011. It was further stated that an Independent Floor Buyer’s Agreement was executed between the parties on 10.02.2011 at Chandigarh (Annexure C-2). It was further stated that the price payable for the floor, in question, was Rs.64,92,689.84Ps plus service tax, club charges, etc. It was further stated that as per Clause 11(a) of the Agreement, possession of the flat was to be delivered within 24 months, from the date of its execution. It was further stated that independent floor, in question, was to be handed over after completing the interior work like flooring, CP fittings, white wash, kitchen fittings etc. It was further stated that payments were construction linked (Annexure C-3) and the complainants made payments as and when demanded by the Opposite Parties. It was further stated that the complainants also took home loan of Rs.43,00,000/- from Axis Bank, which was sanctioned vide letter dated 07.10.2013 (Annexure C-4).

2.         It was further stated that the complainants received letter dated 11.05.2012 (Annexure C-5) from Opposite Party No.1 that due to direction issued by the Hon’ble Supreme Court vide its order dated 19.04.2012, the construction activity had been stopped. It was further stated that Opposite Party No.1 vide letter dated 05.06.2013 (Annexure C-6) further informed that the orders passed by the Hon’ble Supreme Court were vacated on 12.12.2012. It was further stated that though the stay was operative for only eight months, however, Opposite Party No.1 sought 12 months more time to complete the project in addition to 24 months. It was further stated that even after expiry of three years from the date of execution of the Agreement, the Opposite Parties failed to deliver possession of the floor, in question, which they were bound to deliver on or before 10.02.2014. It was further stated that the complainants have been paying heavy monthly EMI’s @Rs.41,370/- per month to the Bank. It was further stated that the complainants have been visiting the office of Opposite Party No.1 to know the exact date of offer of possession but it has failed to give any satisfactory answer. It was further stated that the complainants sought refund of the deposited amount alongwith interest @18% per annum but the Opposite Parties flatly refused to refund the same.

3.            It was further stated that the aforesaid acts, on the part of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainants, were not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to refund the entire amount of Rs.51,91,736/- alongwith interest @18% P.A. from the respective dates of deposits till realization; pay Rs.2,00,000/- as compensation on account of mental harassment and Rs.50,000/- as cost of litigation expenses.     

4.         The Opposite Parties were served, and put in appearance on 23.11.2015. They filed their written statement on 11.01.2016. The Opposite Parties took up an objection that this Commission was having no jurisdiction to entertain the complaint due to the existence of Arbitration clause No.55 in the Independent Floor Buyer’s Agreement. It was further stated tha the parties were bound by the terms and conditions mentioned in the Independent Floor Buyer’s Agreement and the dispute being of contractual nature, could not be considered under the C. P. Act. It was further stated that the issue raised in the complaint related to interpretation and implementation of the terms of the Agreement, which can only be decided in Civil Court. It was further stated that there was neither any unfair trade practice nor deficiency in service. On merits, it was admitted that the complainants were allotted an independent floor No.B-1/33-GF vide application for allotment dated 05.10.2010 and booking amount for the same was Rs.4 Lacs. It was admitted that the complainants paid an amount of Rs.51,91,836/- (Infact Rs.51,91,736/-) to the Opposite Parties. It was stated that the confirmation of allotment with the original receipt and payment plan was sent to the customer on 05.10.2010. It was further stated that subsequently, the Hon’ble Supreme Court vide order dated 19.04.2012 passed in SLP No.21786-88 of 2010 had stayed the construction of the said project at DLF Valley Panchkula from 19.04.2012 up-to 12.12.2012. It was further stated that accordingly, the complainants were informed vide letter dated 05.06.2012 regarding the stay on construction. It was admitted that Independent Floor Buyer’s Agreement was executed on 10.02.2011. It was further stated that the complainant No.1 was also informed that the stay stood vacated vide order dated 12.12.2012. It was further stated that after the vacation of stay, the construction work again resumed and, therefore, delay in handing over possession was due to force majeure conditions. It was admitted that complainant No.1 was requested to give her confirmation regarding addition time of 12 months to be taken by the Opposite Parties for completing construction. It was also admitted that timely payments were to be made by the complainants as per the construction linked payment plan opted. It was further stated that the complainants had been making timely payments as per the said payment plan. It was further stated that the Opposite Parties had sent multiple reminders for the payments of the remaining amount as per payment schedule but the complainants failed to deposit the same. It was further stated that later on, the Opposite Parties cancelled the flat vide letter dated 10.02.2011. It was further stated that subsequently, the complainants made payment. It was further stated that the complainants again defaulted in making payment and letter dated 21.01.2014 was finally sent to them for cancellation of the said flat. It was admitted that the Company asked for payment with 18% interest as the complainants were in default in making payment on scheduled time. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.

5.         The complainants filed replication, wherein, they reiterated all the averments, contained in the complaint, and repudiated the same, contained in the written version of the Opposite Parties.

6.         The complainants, in support of their case, submitted affidavit of Sh. Himanshu Chawla (Complainant No.2), by way of evidence, alongwith which, a number of documents were attached.

7.         The Opposite Parties, in support of its case, submitted the affidavit of Sh. Shiv Kumar, its Authorized Signatory, by way of evidence, alongwith which, a number of documents were attached. 

8.         We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 

9.         It is evident that the complainants were allotted Residential Floor (measuring 1730 sq. ft) No.DVF-B1/33-GF#217 in DLF Valley, Panchkula vide allotment letter dated 05.10.2010 (Annexure C-1). Independent  Floor Buyer’s Agreement was executed on 10.02.2011 at Chandigarh (Annexure C-2 Colly.). The total price for the said independent floor, as depicted in the Agreement, was Rs.64,92,689.84Ps and the complainants paid an amount of Rs.51,91,736/- as admitted by the Opposite Parties in Para 7 of the preliminary objections of their reply. It is also evident that the complainants secured loan from AXIS Bank for payment of installments of unit, in question, (Annexure C-4). The Opposite Parties vide their letter dated 20.9.2013 noted the lien of AXIS Bank Ltd. on the Unit, in question, (Page 107 of written statement of Opposite Parties). Further as per Clause 11(a), the Opposite Parties were to complete the construction of the said independent floor within a period of 24 months from the date of execution of the said Agreement. It is also not disputed that vide letter dated 05.06.2013 (Annexure R-3), the Opposite Parties sought further time of 12 months, in addition to 24 months, to complete the construction work.

10.       The Opposite Parties have raised an objection that as per Clause 55 of the Independent Floor Buyer’s Agreement (Annexure C-2), all disputes arising out of the Agreement are to be settled amicably, failing which, they shall be referred to Arbitration and hence, in view of the aforesaid clause, the matter is required to be referred to Arbitration in accordance with provisions of Arbiration and Conciliation Act, 1996 and judgment of Hon’ble National Consumer Disputes Redressal Commission in Branch Manager, Magma Leasing and Finance Ltd. & Anr. Vs. Potluri Madhavilata & Anr., AIR 2010 SC 488. With a view to appreciate the controversy, in its proper perspective, reference to Section 3 of the Act is made, which reads as under;

“3. Act not in derogation of any other law.—

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.”

 

Section 3 of the Act, is worded in widest terms, and leaves no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law, for the time being, in force. The mere existence of an arbitration clause, in the document, aforesaid, would not oust the jurisdiction of the Consumer Fora, in view of the provisions of Section 3 of the Act.  The above question was again dealt with, by the Hon’ble Supreme Court of India, in National Seeds Corporation Ltd. Vs. M. Madhusudhan Reddy & Anr., I (2012) CPJ 1 (SC), and in Paras 27 to 31, it was held as under:-

“27. The next question which needs consideration is whether the growers of seeds were not entitled to file complaint under the Consumer Act and the only remedy available to them for the alleged breach of the terms of agreement was to apply for arbitration. According to the learned counsel for the appellant, if the growers had applied for arbitration then in terms of Section 8 of the Arbitration and Conciliation Act the dispute arising out of the arbitration clause had to be referred to an appropriate arbitrator and the District Consumer Forums were not entitled to entertain their complaint. This contention represents an extension of the main objection of the appellant that the only remedy available to the farmers and growers who claim to have suffered loss on account of use of defective seeds sold/supplied by the appellant was to file complaints with the concerned Seed Inspectors for taking action under Sections 19 and/or 21 of the Seeds Act.

28.  The consideration of this issue needs to be prefaced with an observation that the grievance of a farmer/grower who has suffered financially due to loss or failure of crop on account of use of defective seeds sold/supplied by the appellant or by an authorised person is not remedied by prosecuting the seller/supplier of the seeds. Even if such person is found guilty and sentenced to imprisonment, the aggrieved farmer/grower does not get anything. Therefore, the so-called remedy available to an aggrieved farmer/grower to lodge a complaint with the concerned Seed Inspector for prosecution of the seller/supplier of the seed cannot but be treated as illusory and he cannot be denied relief under the Consumer Act on the ground of availability of an alternative remedy.

29. The remedy of arbitration is not the only remedy available to a grower. Rather, it is an optional remedy. He can either seek reference to an arbitrator or file a complaint under the Consumer Act. If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, file complaint under the Consumer Act. However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking Section 8 of the Arbitration and Conciliation Act, 1996. Moreover, the plain language of Section 3 of the Consumer Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force. In Fair Air Engineers (P) Ltd. v. N.K. Modi (supra), the 2-Judge Bench interpreted that section and held as under:

“the provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It is seen that Section 3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force. It is true, as rightly contended by Mr. Suri, that the words ‘in derogation of the provisions of any other law for the time being in force’ would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the provisions of the Arbitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the provisions of the Act we think that the contention is not well founded. Parliament is aware of the provisions of the Arbitration Act and the Contract Act, 1872 and the consequential remedy available under Section 9 of the Code of Civil Procedure, i.e., to avail of right of civil action in a competent Court of civil jurisdiction. Nonetheless, the Act provides the additional remedy.

30. In Skypak Couriers Limited v. Tata Chemicals Limited (supra), this Court observed:

“Even if there exists an arbitration clause in an agreement and a complaint is made by the consumer, in relation to a certain deficiency of service, then the existence of an arbitration clause will not be a bar to the entertainment of the complaint by the Redressal Agency, constituted under the Consumer Protection Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force.”

31. In Trans Mediterranean Airways v. Universal Exports (supra), it was observed:

“In our view, the protection provided under the CP Act to consumers is in addition to the remedies available under any other statute. It does not extinguish the remedies under another statute but provides an additional or alternative remedy”.

11.       The National Commission, in a case titled as DLF Limited Vs Mridul Estate (Pvt.) Ltd., Revision Petition No.412 of 2011 (alongwith other 11 connected cases), decided on 13.05.2013 after taking ratio of judgment in the case of as M/s S.B.P. and Co. Vs. M/s Patel Engineering Limited and another, AIR 2006 SC 450 came to a specific conclusion that remedy provided under Section 3 of the 1986 Act is in addition to and not in derogation of the provisions of any other law, for the time being in force. It was specifically stated that ratio of judgment passed in M/s S.B.P. and Co.’s case (supra), will not debar a Consumer Fora from entertaining the complaint, even in cases where an alternative remedy of Arbitration is provided. Vide that judgment many Revision-Petitions were decided. Feeling aggrieved against the order dated 13.05.2013, passed by the National Commission, Rosedale Developers Private Limited/Opposite Party challenged above order in the Hon’ble Supreme Court.  In the case of Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013), the Hon’ble Supreme Court of India, while dealing with various judgments including M/s S.B.P. and Co.’s case (supra) and Branch Manager, Magma Leasing and Finance Limited and another Vs. Potluri Madhavilata and another (supra) (the one reliance on which has been placed by the opposite parties in present case also)  observed that the same (judgments) have no bearing on the issue, as to whether in the face of an Arbitration Clause, Jurisdiction  can be exercised by a Consumer Fora or not. It was further observed that the observation made in that judgment that Section 8 of the 1996 Act, is mandatory, cannot lead to an inference that the Consumer Fora is bound to refer to the Arbitral Tribunal. In that judgment, the Supreme Court had not interpreted the provisions of 1996 Act in the light of the provisions contained in 1986 Act. It was further observed that the observation made in that judgment that Section 8 of the 1996 Act is mandatory, cannot lead to an inference that the Consumer  Fora is bound to make a reference to the Arbitral Tribunal. The Hon’ble Apex Court, also observed as under:-

“Before concluding, we record our strong disapproval of the mechanism employed by persons like the appellant to frustrate one of the main objectives of the Consumer Protection Act, 1986, namely, expeditious disposal of the consumer disputes. The record of the case shows that disposal of the objection raised   by the appellant has consumed almost three years' time. If the appellant had not raised frivolous and vexatious objection, the main petition may have been finally disposed of by now. Therefore, the appellant is saddled with cost of rupees one lakh which shall be deposited with the Supreme Court Legal Services Committee within a period of one month from today.”

12.       The position has further been clarified by the National Commission, in the latest Judgment titled as Shri Satish Kumar Pandey and another Vs. M/s Unitech Limited, Consumer Complaint No.427 of 2014 (alongwith other 23 connected cases), decided on 08.06.2015. It was observed as under:-

“It was also contended by the learned counsel for the opposite party that since the agreement between the parties contains arbitration clause, arbitration and not a complaint before this Commission is the appropriate remedy. I, however, find no merit in this contention. As provided in Section 3 of the Consumer Protection Act, the provision of this Act are in addition to the other remedies available to a consumer. Therefore, the availability of arbitration as a remedy does not debar the complainant from approaching a consumer forum in a case of deficiency in the services rendered to him by the service provider or adoption of unfair trade practices by him. This issue came up for consideration of the Hon’ble Supreme Court in National Seeds Corporation Vs. M. Madhusudhan Reddy & Anr. (2012)2 SCC 506 and after taking into consideration the provisions of the Section 8 of the Arbitration Act of 1996 and the Section 3 of the C.P. Act it was held that the plain language of Section 3 of the C.P. Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force.  The Hon’ble Supreme Court has also held that the complaint filed by a consumer before the consumer fora would be maintainable despite their being an arbitration clause in the agreement to refer the dispute to the Arbitrator. In view of the above referred authoritative pronouncement of the Hon’ble Supreme Court which was later followed by a Three Members Bench of this Commission in DLF Ltd. Vs. Mridul Estate Pvt. Ltd., R.P. No.412 of 2011 decided on 13-05-2013, the aforesaid contention advanced by the learned counsel for the opposite party is liable to be rejected.”

 

13.       Reading of ratio of the judgments referred to above, make it clear that in case of  M/s S.B.P. and Co.’s case (supra), the issue before the Supreme Court of India was altogether different. The provisions of 1986 Act were not under consideration viz. a viz. the provisions of 1996 Act.   

14.       In view of the above, it is held that the submission of Counsel for the Opposite Parties, that  the complaint filed under Section 17 of the Act, was not maintainable, before this Commission, on account of existence of an arbitration Clause in the Agreement, being devoid of merit, stands rejected.

15.         The next question, that falls for consideration, is, as to whether, since the complainants sought enforcement of the Agreement, in respect of the unit, in question, i.e. immoveable property, only a suit, in the Civil Court was maintainable. It may be stated here that the complainants hired the services of the Opposite Parties, for purchasing the unit, in question, and they were allotted the same for consideration. According to Clause 11(a) of the Agreement, the Opposite Parties were to hand over possession of independent floor within a period of 24 months from the date of execution of the same (Agreement). It was not that the complainants purchased the unit, in an open auction, on “as is where is basis”. Section 2(1)(o) of the Act, defines “service” as under:-

“Service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information but does not include the rendering of any service free of charge or under a contract of personal service.”

 

From the afore-extracted Section 2 (1) (o) of the Act, it is evident that housing construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. Vs.  Union Of India and  Ors. Etc., II (2012) CPJ 4 (SC),  it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2 (1) (o) of the Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C.1766). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, Section 3 of the Act, provides an alternative remedy. Even if, it is assumed that the complainants had a remedy to file a suit, in the Civil Court, the alternative remedy provided under Section 3 of the Act, could be availed of by them, as they fall within the definition of consumers. In this view of the matter, the submission of the Counsel for the Opposite Parties, being devoid of merit, must fail, and the same stands rejected.

16.          The next question, which falls for consideration, is, as to whether the complainants are entitled to refund of the amount deposited by them with interest or not. Clauses 11(a) and 11(b) of Independent Floor Buyer’s Agreement dated 10.02.2011 (Annexure C-2), are extracted hereunder:-

“11(a) Schedule for possession of the said Independent Floor:-

The Company based on its present plans and estimates and subject to all just exceptions, endeavors to complete construction of the said Independent Floor within a period of twenty four (24) months from the date of execution of the Agreement unless there shall be delay or failure due to Force majeure conditions and due to reasons mentioned in Clause 11(b) and 11(c) or due to failure of Allottee to pay in time the Total Price and other charges, taxes, deposits, securities etc and dues/payments or any failure on the part of the allottee to abide by all or any of the terms and conditions of this Agreement.

11(b) Delay due to reasons beyond the control of the company:-

If the possession of the said Independent Floor is delayed due to Force Majeure conditions, then the company shall be entitled to extension of time for delivery of possession of the said Independent Floor. The company during the continuance of the Force Majeure reserves the right to alter or vary the terms and conditions of the agreement or if the circumstances so warrant, the company may also suspend the development for such period as is considered expedient and the allottee shall have no right to raise any claim compensation of any nature whatsoever for or with regard to such suspension.”

No doubt, as per the afore-extracted clauses, the Opposite Parties were to complete the construction of the floor, in question, within a period of 24 months from the date of execution of the Agreement dated 10.02.2011 i.e. by 09.02.2013. However, as admitted by the Opposite Parties, they failed to offer possession within the aforesaid stipulated period of 24 months and vide letter dated 05.06.2013 (Annexure R-3) informed the complainants that they (Opposite Parties) would endeavor to complete the project subject to the delay of 12 months, which occurred due to stoppage of the work because of stay on construction activities. In this letter, the Opposite Parties also informed the complainants that Hon’ble Supreme Court dismissed the SLP No.21786-88/2010 vide its order dated 12.12.2012 and the earlier order dated 19.04.2012 passed by it (Supreme Court) not to undertake further construction  at the project land stood vacated. The Opposite Parties also informed the complainants that if they did not agree to delay of 12 months, they (Opposite Parties) will cancel the allotment and refund the amount deposited with 9% interest. Admittedly, there was no stay as on 12.12.2012 on construction activity. As per own averment of the complainants, in Para 5 of the complaint, they agreed to extension of the period for further 12 months for offering possession of the independent floor, in question. In fact, stay on construction activities was in force for a period of 8 months only. However, the Opposite Parties failed to deliver possession of the floor, in question, complete in all respects, to the complainants within the extended period of 12 months, which expired on 10.02.2014. Till date, or till the date of filing the complaint, which was filed on 28.10.2015, possession has not been offered by the Opposite Parties to the complainants, what to talk of compensation, as envisaged under Clause 13 of the Independent Floor Buyer’s Agreement dated 10.02.2011. Nothing has been placed, on record, by the Opposite Parties, by way of documentary evidence, to the effect that they (Opposite Parties) ever offered possession of the floor, in question, to the complainants during the extended period of 12 months or thereafter or till the filing of the complaint. As conceded during arguments, the Opposite Parties will take another period of three months to offer possession. There is clear cut admission by the Opposite Parties that there was delay in offering possession and they even failed to deliver possession after seeking one year extension, which expired on 10.02.2014, and are not in a position to do so even today. While seeking extension, the Opposite Parties had offered the complainants either to extend the period or seek refund alongwith 9% interest. In the face of such apparent and clear deficiency and delay of more than two years in offering possession, even after the extended period of one year, which elapsed on 10.02.2014, objection taken by the Opposite Parties that the complainants did not make payment of installments in time, being afterthought and unsustainable, stands rejected. There is no specific averment in the written statement that as on date, as to what amount, is payable by the complainants as per Construction Linked Payment Plan. Though the Opposite Parties vide Annexure R-4 (Colly.) have placed copies of letters/reminders sent to the complainants regarding outstanding payment(s) but perusal of these annexures clearly reveal that the complainants made payment thereof, as is evident from the receipts placed on record, vide Annexure R-4 (Colly.). The complainants had made payments in the sum of Rs.51,91,736/- to the Opposite Parties, which was undoubtedly their hard earned money. Clearly they needed a residential unit and instead of seeking refund, as offered by the Opposite Parties, they agreed to extension of one year, which too expired on 10.02.2014. When the Opposite Parties themselves failed to deliver possession to the complainants even by the extended period and till date, they are liable to refund the entire amount paid by the complainants with interest. Further, when the Opposite Parties were ready to refund the deposited amount in June, 2013 (Annexure R-3) alongwith 9% interest, their objection to refund the deposited amount is not tenable. As regards reliance on Clause 14 of the Independent Floor Buyer’s Agreement dated 10.02.2011 by the Opposite Parties, it may be stated here that the instant complaint was filed on 28.10.2015 seeking refund of the deposited amount, itself amounts to giving notice for terminating the Agreement. As already stated above, possession was to be delivered by  09.02.2013 and the complainants very fairly, on the asking of the Opposite Parties, extended the same for one year i.e. up to 10.02.2014. Even the extended period expired on 10.02.2014 and still the Opposite Parties are not in a position to offer possession. The complainants are, thus, entitled to refund of Rs.51,91,736/- with simple interest @15% per annum. By not refunding the deposited amount, the Opposite Parties were deficient in rendering service.

17.         The next question, which falls for consideration, is, as to whether, the complainants are entitled to any compensation or not. The complainants deposited their hard earned money, in the hope that they will have a house to live in. As admitted by the Opposite Parties, the construction at the site which was stayed by the Hon’ble Supreme Court of India vide order dated 19.04.2012, was vacated on 12.12.2012. The stay, thus, operated only for eight months but the Opposite Parties failed to deliver possession to the complainants even after the lapse of extended period of 12 months, on 10.02.2014. Admittedly, possession has not been delivered by the Opposite Parties till date meaning thereby that there has been further delay of more than two years. On account of non-delivery of possession of the floor, in question, by the Opposite Parties, to the complainants, complete in all respects, within the stipulated period or the extended period, or even till the filing of the complaint, the fact that possession is not  ready even as on date, and by not refunding the amount to them (complainants), the complainants had certainly suffered physical harassment and mental agony on account of the acts of omission and commission of the Opposite Parties, and escalation in prices, for which, they need to be suitably compensated. In our considered opinion, compensation in the sum of Rs.2,00,000/-, if granted,  would be just and adequate, to meet the ends of justice.           

18.         No other point, was urged, by the Counsel for the parties.

19.          For the reasons, recorded above, the complaint is partly accepted, with costs, and the Opposite Parties, are jointly and severally, held liable and directed in the following manner:-

(i)    To refund the amount of Rs.51,91,736/- alongwith simple interest @15% per annum, to the complainants, from the respective dates of deposits, till realization, within three months, from the date of receipt of a certified copy of this order, failing which, the Opposite Parties shall pay the aforesaid amount alongwith simple interest @18% per annum, instead of 15% per annum, from the date of default till actual payment;

(ii)   AXIS Bank Ltd., shall have the first charge, on the amount to be refunded, to the complainants, by the Opposite Parties, to the extent, the amount is due to it, against the complainants as it (AXIS Bank Ltd.) advanced loan in their (complainants) favour for part payment of the price of unit, in question.

(iii)  To pay an amount of Rs.2,00,000/-  (Rupees Two Lacs only), to the complainants, as compensation for mental agony and physical harassment, within a period of three months from the date of receipt of a certified copy of the order, failing which, the Opposite Parties shall pay the aforesaid amount alongwith simple interest @15% per annum from the date of default till actual payment;

(iv)  To pay cost of litigation, to the tune of Rs.50,000/-, to the complainants within a period of three months from the date of receipt of a certified copy of the order, failing which, the Opposite Parties shall pay the aforesaid amount alongwith simple interest @15% per annum from the date of default till actual payment.

19.         Certified Copies of this order be sent to the parties, free of charge.

20.         The file be consigned to Record Room, after completion.

Pronounced

March  22, 2016.

 [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

 

[DEV RAJ]

MEMBER

 

 

 

[PADMA PANDEY]

 MEMBER