Chandigarh

StateCommission

CC/104/2016

Dr Rakesh Raman - Complainant(s)

Versus

DLF Homes Panchkula Pvt. Ltd. - Opp.Party(s)

Sanjeev Sharma, Adv.

05 Jul 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                     UNION TERRITORY, CHANDIGARH

 

 

Consumer Complaint  No.	104 of 2016
Date of Institution	17.03.2016
Date of Decision	05.07.2016

 

 

Dr. Rakesh Raman through his GPA holder Dr. Ranjit Sharma, resident of House No.3127, Sector 22-D, Chandigarh.

                                                       .…Complainant

                           Versus

 

1. DLF Homes Panchkula Pvt. Ltd., having office at SCO No.190-191-192, Sector 8-C, Chandigarh, through its Managing Director.
2. DLF Homes Panchkula Pvt. Ltd., having Regd. Office DLF Gateway Tower, Twelveth (12) Floor, DLF City, Phase III, Gurgaon 122002, Haryana India through its Vice Chairman.

                                                …. Opposite Parties.

 

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

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER.

             

Present:  Sh. Sanjeev Sharma, Advocate for the complainant.

              Ms. Ekta Jhanji, Advocate for the Opposite                       Parties.

               

PER PADMA PANDEY, MEMBER

              In brief, the facts of the case, are that the complainant purchased an Independent Floor in DLF Valley, Panchkula, by depositing a booking amount of Rs.6 Lacs on 26.03.2010, with the Opposite Parties. The total price of the said unit was Rs.58,90,059.76. The complainant was allotted independent floor No.A1/52-GF vide allotment letter dated 05.04.2010 (Annexure C-1). Independent Floor Buyer’s Agreement was executed between the parties on 18.11.2010 (Annexure C-2). The allotted floor was having saleable area of 2255 sq. feet @2185.5 per sq. ft. totaling Rs.4928302.47, EDC of Rs.549453.21 and Rs.412304.08 towards the interest on above components. The complainant also availed home loan of Rs.46,50,000/-  @11.75% from ICICI Bank, out of which, Rs.34,00,000/- was also disbursed by the Bank to the Opposite Parties. After execution of the Agreement, the complainant continued paying the amount as and when demanded by the Opposite Parties. It was further stated that the complainant paid a total sum of Rs.46,80,871/- till date to the Opposite Parties.

2.           It was further stated that as per Clause 11(a) of the Agreement, possession of the unit, in question, was supposed to be delivered within 24 months from the date of execution of the Agreement but the Opposite Parties kept on delaying handing over of possession. According to the complainant, the possession of the unit has not yet been handed over, which was to be delivered by 17.11.2012, as such, the complainant visited the site and found that there was no development in the area, where the unit is situated. It was further stated that the Opposite Parties also did not pay compensation, as envisaged under Clause 15 of the Agreement. It was further stated that the construction is far from completion and it would take another one to two years to complete the construction and hand over possession of the apartment. It was further stated that the complainant had bought the unit as one of his brother was residing at Panchkula and second brother residing at Chandigarh and the complainant agreed to buy a house at Panchkula near to his family members. It was further stated that the Opposite Parties are delaying the handing over of possession. It was further stated that as per Clause 4 of the Agreement, 15% of the total price of the said floor was to constitute earnest money. It was further stated that the Opposite Parties put onus of delay due to stay for the period from 19.04.2012 to 12.12.2012 on construction activities by the Hon’ble Supreme Court of India.

3.           It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was 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, seeking directions to the Opposite Parties, to refund Rs.46,80,871/- paid by the complainant alongwith interest @18% per annum; pay Rs.3,00,000/- as compensation for physical harassment and mental agony and cost of litigation to the tune of Rs.19,000/-.

4.           The Opposite Parties, in their joint written statement, took up certain preliminary objections, to the effect, that the complainant, being investor, had purchased the flat, in question, for earning profits, as and when there is escalation in the prices of real estate, as such, it would not fall within the definition of a consumer, as defined by Section 2(1)(d)(ii) of 1986 Act; that 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. Apart from above objections, Counsel for the Opposite Parties, during the course of arguments, also took an objection as regards existence of arbitration clause No.55 in the Independent Floor Buyer’s Agreement dated 18.11.2010.  

5.           On merits, it was stated that unit bearing No.A-1/52-GF was allotted to the complainant vide allotment letter dated  05.04.2010 (Annexure C-1) measuring 2255 sq. ft. for a total consideration of Rs.60,02,809/- and the complainant opted for two years installment payment plan. It was further stated that the complainant was told on signing of the application form that possession of independent floor would be handed over to him in 24 months from the signing of the Agreement, which was executed on 18.11.2010. It was further stated that the Opposite Parties asked the payment only in accordance with the schedule of payment. It was further admitted that as per clause 11(a) of the Agreement, the possession of the allotted unit, was to be handed over to the complainant within 24 months from the signing of the Agreement. It was further stated that the complainant was informed as regards the stay granted by the Hon’ble Supreme Court on the construction activity at the project site. It was further stated that an exit offer vide letter dated 20.05.2013 (Annexure R-6) was given to the complainant, which clearly portrait the exit plan, to carry on with the project and gave Opposite Party another year to complete the project or to get the refund of the amount deposited till date with 9% interest. However, the complainant showed interest in the project. It was further stated that the construction of the project is almost complete and the basic amenities are almost ready and occupation certificate has also been received from the concerned authorities and the Opposite Party is going to deliver possession of the unit, in question, to the complainant very soon. It was further stated that the Opposite Party has already completed construction of 258 independent floors on 86 plots and another 1517 built up units are near completion. It was further stated that out of 1775 built up units, occupation certificate for 256 (86 plots) units have been received and as on date, possession of 86 units have been offered to the owners. It was further stated that proper water connection and electricity supply is in place and full housekeeping and maintenance services are being provided through leading multinational company namely Jones Lang Lasalle (JLL). It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.

6.           The complainant, in support of his case, submitted affidavit of Dr. Ranjit Sharma his GPA Holder, 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, their 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 complainant was allotted Independent Floor No.DVF-A1/52-GF#217 in DLF Valley, Panchkula by the Opposite Parties vide allotment letter dated 05.04.2010 (Annexure C-1). Independent Floor Buyer’s Agreement was executed between the parties at Chandigarh on 18.11.2010 (Annexure C-2). The total price for the said independent floor, as depicted in the Agreement, was Rs.58,90,059.76Ps and the complainant paid an amount of Rs.46,80,871/- to the Opposite Parties, as is evident from Customer Ledger (Annexure C-4). Receipt of the aforesaid amount by the Opposite Parties has nowhere been specifically denied in their written statement. Further as per Clause 11(a) of the Agreement, 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 the admitted fact that vide letter dated 20.05.2013 (Annexure R-6), the Opposite Parties sought further time of 12 months, in addition to 24 months, to complete the construction work. The complainant was also given the option to seek refund alongwith 9% interest vide letter dated 20.05.2013 (Annexure R-6). However, the complainant agreed to a further period of 12 months in handing over of possession.

10.       The first question, that falls for consideration, is, as to whether, in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of Arbitration and Conciliation Act 1996 Act (in short 1996 Act), this Commission has jurisdiction to entertain the consumer complaint or not. It may be stated here that under similar circumstances, in a case titled as Abha Arora Vs. Puma Realtors Pvt. Ltd. and another, consumer complaint No.170 of 2015, decided on 01.04.2016, this Commission elaborately dealt with this objection noting down the background in which 1986 Act was enacted; the United Nations Draft Guidelines to protect the interest of consumers by passing Resolution No.39/248, to which our country is signatory; objectives of those guidelines; the fact that qua consumers, 1986 Act is a special legislation; the judgment of Hon’ble Supreme Court of India in Fair Air Engineers (P) Ltd. v. N.K. Modi (1996) 6 SCC 385, Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305. In Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha’s case (supra), it was specifically observed that where two different redressal agencies/Acts have jurisdiction to entertain the dispute, with regard to the same subject, the jurisdiction of the Consumer Fora would not be barred. In Abha Arora Vs. Puma Realtors Pvt. Ltd. and another’s case (supra), this Commission in Para 19 held as under:-

“19. It was specifically observed that even in those cases, where two different redressal Agencies/Acts, have jurisdiction to entertain the dispute, with regard to the same subject, the jurisdiction of the Consumer Fora would not be barred. Taking note of a weak position, in which a consumer is set against multinational companies and other big producers, it was said by the Hon’ble Supreme Court of India in a case titled as United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),that, where there is any ambiguity in understanding the meaning of provision of law, or where two interpretations are possible, one beneficial to the consumer should be accepted. The same view was reiterated in LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC).”

This Commission after dealing with the unamended/amended provisions of Section 8 of 1996 Act and Section 3 of 1986 Act, and in view of law laid down in judgments of Hon’ble Supreme Court of India in case titled National Seeds Corporation Ltd. Vs. M. Madhusudhan Reddy  &  anr., I (2012) CPJ 1 (SC) and Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, Civil Appeal No.20923 of 2013 and judgments of National Commission in DLF Limited Vs Mridul Estate (Pvt.) Ltd., Revision Petition No.412 of 2011 (alongwith other 11 connected cases), decided on 13.05.2013; Shri Satish Kumar Pandey and another Vs. M/s Unitech Limited’s & Ors., Consumer Complaint No.427 of 2014 decided on 8.6.2015 and Mahindra Holidays & Resorts India Ltd. Vs. Adnan Samoon Rassiawala & 6 Ors., First Appeal No. 127 of 2016, decided on 18.03.2016, came to the conclusion that as held by the Hon’ble Supreme Court of India and also by the National Commission in a large number of cases, Section 3 of 1986 Act provides for an additional remedy available to a consumer and the said remedy is also not in derogation to any other Act. Further the remedy under the 1986 Act is cost effective and much speedier than the proceedings before the Arbitrator. Referring the matter to the Arbitrator would defeat the very purpose of General Assembly Resolution No.39/248 and the provisions of 1986 Act and in view of above, the plea raised by Counsel for Opposite Party No.1 (in that case), was rejected. The ratio of the aforesaid judgments is squarely applicable to the facts of the instant case. Similar view was reiterated by this Commission in Praveen Kumar Arora and another Vs. Emaar MGF Land Limited, consumer complaint No.198 of 2015, decided on 04.04.2016, by further holding as under:-

“20. The 1986 Act provides for better protection of interests and rights of the consumers. For the said purpose, the Consumer Foras were created under the Act. In Section 3 of 1986 Act, it is clearly provided that the said provision is in addition to and not in derogation of any provisions of any other law, for the time being in force. The 1986 Act is special legislation qua the consumers. The poor consumers are not expected to fight the might of multinational companies/traders, as those entities have lot of resources at their command. In the present case, the complainants have spent their entire life earnings to purchase a unit, in a housing project, launched by the opposite party. It was their hope that they will live therein. However, their hopes were shattered, when despite making payment of entire amount towards price, they failed to get possession of a unit, in a developed project. As per established ratio of the judgment in Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and also in the judgment of United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),  and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), it was said that the consumers are always in a weak position, and in cases where two interpretations are possible, the one beneficial to the consumer be accepted. The opinion expressed above, qua applicability of Section 8 (amended) of 1996 Act, has been given keeping in mind the above said principle.

21. In view of the above, the argument raised by Counsel for the opposite party that in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint, being devoid of merit, is rejected”.

Further this Commission in case titled ‘Sukhjinder Singh Vs. M/s IREO Fiveriver Pvt. Ltd.’, Complaint Case No.278 of 2015 decided on 18.04.2016, held as under:-

“Not only as above, execution of judgment/decree passed by the Consumer Foras is very easy and less time consuming. Invariably, in all the judgments passed, between one to three months’ time, is granted to the judgment debtors(s) to discharge liability. If it is not so done, and the order is not stayed in the meantime by the Higher Fora, two options are available with the complainant/decree holder. Section 25 of 1986 Act provides the procedure to enforce orders by the Consumer Foras. In Sector 25 (3), it is provided that where any amount is due from any person, under an order passed by any Consumer Fora, the concerned Consumer Fora, on an application moved by the decree holder, may issue a certificate to the Collector of the District, to recover the said amount, by way of land revenue, in terms of Section 72 of the Punjab Land Revenue Act, 1887. The said provision is also very stringent. The Collector is supposed to attach the holding of the judgment debtors to take the said property under his own management and control. The Collector is further supposed to manage the said property and raise all rents and profits accruing therefrom to the exclusion of the defaulter, until the decree is satisfied. The above procedure will consume at the maximum four to six months, for realization of the amount awarded. Further option is also available to a complainant/decree holder, to move an application under Section 27 of 1986 Act, which provides that where a trader or a person against whom, a complaint was made, fails or omits to comply with the order passed by the Consumer Fora, such party would entail award of punishment of imprisonment for a term, which shall not be less than one month, but may extend to three years, or with fine, which shall not be less than Rs.2,000/-, and may be extended upto Rs.10,000/-, or both. This provision is very effective, as and when application is moved under Section 27 of 1986 Act, for fear of imprisonment, it is seen that immediately the judgment debtor(s) make an attempt to comply with the order passed by the Consumer Foras. Whereas, to the contrary Section 36 of 1996 Act, provides that award shall be enforced, in accordance with the provisions of the Code of Civil Procedure 1908, in the same manner, as if it was a decree of a Court. Such a procedure is very costly and time consuming. Executing a decree would virtually mean fighting one more litigation, in a Court, to get enforcement of the award. If such a procedure is adopted, it will defeat the very purpose and spirit of 1986 Act. Accordingly, in this view of the matter and also in the face of ratio of judgments, referred to above, the arguments raised by Counsel for the opposite party, stands rejected.”   

11.         It was also so said by the National Commission, recently, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No. 346 of 2013, decided on 02.05.2016. Relevant portion of the said case, reads thus:-

“In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra.  In a catena of decisions of the Hon’ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Others  - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986.  [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 andNational Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986.”

12.         In view of the above, and also in the face of ratio of judgments, referred to above, passed by the National Commission and this Commission, the arguments raised by Counsel for the Opposite Parties, stands rejected.

13.         To defeat claim of the complainant, the next objection raised by the Opposite Parties was that the complainant, being investor, had purchased the flat, in question, for earning profits, as and when there is escalation in the prices of real estate, as such, it would not fall within the definition of a consumer, as defined by Section 2(1)(d)(ii) of 1986 Act. It may be stated here that there is nothing, on the record to show, that the complainant is a property   dealer, and is indulged in sale and purchase of property, on regular basis. In the absence of any cogent evidence, in support of the objection raised by the Opposite Parties, mere bald assertion to that effect, cannot be taken into consideration. Otherwise also, in a case titled as  Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. Consumer Complaint No.137 of 2010, decided on 12.02.2015, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the  residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. The principle of law, laid down, in Kavita Ahuja’s case (supra) is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the flat, in question, was purchased by the complainant, by way of investment, with a view to earn profit, in future. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs  Nirmala Devi Gupta,  Revision Petition No. 3861 of 2014, decided on 26.08.2015. The complainant, thus, falls within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the Opposite Parties, in their written reply, therefore, being devoid of merit, is rejected.  

14.         Another objection was raised by Counsel for the Opposite Parties that since the complainant sought enforcement of the Agreement, in respect of the immoveable property, only a Civil Court can decide the complaint, and as such, consumer complaint was not maintainable. It may be stated here, that the complainant hired the services of the Opposite Parties, for purchasing the unit, in question, in the manner, referred to above. According to Clause 11(a) of the Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, it was to  complete construction of the said Independent Floor within a period of twenty four months, from the date of execution of the same (Agreement). 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”

15.         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, as stated above, Section 3 of the Act, provides an alternative remedy. Even if, it is assumed that the complainant has a remedy to file a suit, for specific performance, in the Civil Court, the alternative remedy provided under Section 3 of the Act, can be availed of by it, as it falls within the definition of a consumer, as stated above. In this view of the matter, the objection of the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

16.          The next question, which falls for consideration, is, as to whether there was delay in offering possession, on account of which, the complainant is entitled to refund of the amount deposited by him with interest or not. Clauses 11(a) and 11(b) of Independent Floor Buyer’s Agreement dated 18.11.2010, being relevant, 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 18.11.2010 i.e. by 17.11.2012. However, as admitted by the Opposite Parties, they failed to offer possession within the aforesaid stipulated period of 24 months and vide letter dated 20.05.2013 (Annexure R-6) informed the complainant 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 complainant 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 complainant that if he did not agree to delay of 12 months, they (Opposite Parties) would cancel the allotment and refund the amount deposited with 9% interest. Admittedly, there was no stay as on 12.12.2012 on construction activity. 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 complainant even within the extended period of 12 months, which expired on 18.11.2013. Even during the course of arguments, Counsel for the Opposite Parties conceded that till date, possession of the unit, in question, has not been delivered to the complainant and the same will be delivered shortly. 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 complainant during the extended period of 12 months or thereafter or till the filing of the complaint, what to talk of compensation, as envisaged under Clause 13 of the Independent Floor Buyer’s Agreement dated 18.11.2010. Further, the fact of obtaining occupation certificate, if any, by the Opposite Parties, does not, in any way, dilute the deficiencies of the Opposite Parties, when possession has not been offered till date. 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 18.11.2013. The total price for the said independent floor, as depicted in the Agreement, was Rs.58,90,059.76Ps and the complainant paid an amount of Rs.46,80,871/- to the Opposite Parties as is evident from Customer Ledger (Annexure C-4), which was undoubtedly his hard earned money. Clearly the complainant needed a residential unit and instead of seeking refund, as offered by the Opposite Parties vide letter dated 20.05.2013 (Annexure R-6), he agreed to extension of one year, which too expired on 18.11.2013. When the Opposite Parties themselves failed to deliver possession to the complainant even by the extended period and till date, the argument put forth by them that complainant waived off his right by not opting for exit policy, is not tenable. The complainant had agreed to one year extension and when there is delay of more than 2 years and 7 months, even beyond the extended period, the Opposite Parties are liable to refund the entire amount paid by the complainant with interest. Further, when the Opposite Parties were ready to refund the deposited amount in May, 2013 (Annexure R-6) alongwith 9% interest, their objection to refund the deposited amount is not tenable. As already stated above, possession was to be delivered by 18.11.2012 and the complainant very fairly, on the asking of the Opposite Parties, extended the same for one year i.e. up to 18.11.2013. Even the extended period expired on 18.11.2013 and still the Opposite Parties are not in a position to offer possession. It was clearly stated by the National Commission, in Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC), that when the promoter has violated material condition, in not handing over possession of the unit, in time, it is not obligatory for a purchaser to accept possession after that date. In Shri Satish Kumar Pandey and another Vs. M/s Unitech Limited’s & Ors., Consumer Complaint No.427 of 2014 decided on 8.6.2015 , the agreement between the flat buyers and the developers, M/s. Unitech ltd. for payment of compensation on account of delay in completion of the construction of the apartment was fixed at the rate of Rs.5 per sq. ft. per month of the Super Area. In the aforesaid case, it was contended on behalf of the developers that the complainants were entitled only to the agreed quantum of compensation for the period the project was delayed. Rejecting the said contention, the National Commission in Para 12, inte-ralia, held as under:-

“12……..The interest being charged by the Banks and Financial Institutions for financing projects of the builders is many times more than the nominal compensation, which the builder would pay to the flat buyers in the form of flat compensation. In fact, the opposite party has not even claimed that the entire amount recovered by it from the flat buyers was spent on this very project. This gives credence to the allegation of the complainants that their money has been used elsewhere. Such a practice, in my view, constitutes unfair trade practice within the meaning of Section 2(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practice for the purpose of selling the product of the builder. Though, such a practice does not specifically fall under any of the Clauses of Section 2(r)(1) of the Act that would be immaterial considering that the unfair trades, methods and practices enumerated in Section 2(r)(1) of the Act are inclusive and not exhaustive, as would be evident from the use of word “including” before the words “any of the following practices”

 

Thus, in view of law laid down in Emaar MGF Land Limited and another Vs. Dilshad Gill’s case (supra), the complainant is entitled to refund of Rs.46,80,871/-.

17.         It is to be further seen, as to whether, interest, on the amount refunded can be granted, in favour of the complainant. It is not in dispute that an amount of Rs.46,80,871/- was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by the Opposite Parties, for their own benefit. There is no dispute that for making delayed payments, the Opposite Parties were charging heavy rate of interest, for the period of delay in making payment of installments.  It is well settled law that whenever money has been received by a party which ex ae quo et bono ought to be refunded, the right to interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the right to interest. It was also so said by the Hon’ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20^th, 2014. In view of above, the complainant is certainly entitled to get refund of the amount deposited by him, to the tune of Rs.46,80,871/- alongwith interest @15% simple interest from the respective dates of deposits till realization. (As per clause 39(a) of the Buyer’s Agreement, the Opposite Parties were charging interest @15% P.A., for a delay of 90 days and, thereafter, penal interest @18% P.A.).

18.         The next question, which falls for consideration, is, as to whether, the complainant is entitled to any compensation or not. The complainant deposited his hard earned money, in the hope that he 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 complainant even after the lapse of extended period of 12 months, on 18.11.2013. 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 complainant, 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 him (complainant), the complainant 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, he 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.           

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

20.          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.46,80,871/-alongwith simple interest @15% per annum, to the complainant, from the respective dates of deposits, till realization, within two 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 filing the complaint till actual payment;

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

(iii)  To pay cost of litigation, to the tune of Rs.19,000/-, to the complainant within a period of two 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 filing the complaint, till actual payment.

(iv)  ICICI Bank shall have the first charge, on the amount to be refunded, to the complainant, by the Opposite Parties, to the extent, the amount is due to it, against the complainant as it had advanced loan in his favour for part payment of the price of unit, in question.

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

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

Pronounced.

05.07.2016                                            Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Sd/-

(PADMA PANDEY)

        MEMBER