Chandigarh

StateCommission

CC/675/2016

Manoj Kumar - Complainant(s)

Versus

DLF Universal Ltd. - Opp.Party(s)

Sandeep Malik

25 Jan 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                     UNION TERRITORY, CHANDIGARH

 

 

Consumer Complaint  No.	675 of 2016
Date of Institution	05.10.2016
Date of Decision	25.01.2017

 

 

Manoj Kumar son of Sh. Dayanand resident of House No.2122, Urban Estate, Jind (Haryana).

                                                       .…Complainant

                           Versus

 

1. DLF Universal Ltd., SCO 190-191-192, Sector 8-C, Chandigarh, UT, Pin-160009, through its Manager/Authorized Signatory/Officer-in-Charge/Director Sales and Marketing.
2. DLF Universal Ltd., Registered Office Shopping Mall, 3^rd floor, Arjun Marg, DLF City, Phase I, Gurgaon – 122002, Haryana, India through its Manager/Authorized Signatory/Officer-in-Charge/Director Sales and Marketing.  

                                                …. Opposite Parties.

 

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

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER.

             

Present:  Sh. Sandeep Malik, Advocate for the complainant.

              Ms. Ekta Jhanji and Sh. Parveen Jain, Advocates              for the Opposite Parties.

               

PER PADMA PANDEY, MEMBER

              In brief, the facts of the case, are that the complainant was approached by agents of the Opposite Parties with a lucrative offer of investing into the project of the Company namely “The DLF Hyde Park” situated in Mullanpur, New Chandigarh and, as such, decided to buy an independent floor for his personal use. The Opposite Parties issued allotment letter (Annexure C-1) in respect of the unit in question. The basic sale price of unit No.R2F-505-SF was fixed at Rs.70,53,750/- excluding EDC, IDC, MSE etc. and Agreement was executed between the parties on 12.03.2013 (Annexure C-2). It was further stated that as per account statement (Annexure C-15), out of the total amount of Rs.81,77,032.49, the complainant paid the total amount of Rs.71,71,876/- i.e. approximately 90% of the total amount vide receipts (Annexures C-3 to C-14). As per Clause 11(A) of the Agreement, possession of the said unit was to be delivered within a period of 30 months from the date of application (23.08.2012) i.e. latest by 23.02.2015. It was further stated that possession of the said floor has not been handed over to the complainant. It was further stated that the complainant was assured by way of various communications that the development is going on in full swing and the same would be given soon. The complainant made various visits to the office of the Opposite Parties to verify the time frame for possession but to no avail. It was further stated that there is no development over the project, despite receipt of the huge amount from the complainant, without any delay. Ultimately, the complainant served a legal notice dated 29.06.2016 (Annexure C-16) to the Opposite Parties to refund the amount but they did not bother to send any reply.  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 (in short the Act only), was filed.

2.           The Opposite Parties also took up certain preliminary objections to the effect that the complainant filed purported complaint to evade holding and other charges; that in the face of arbitration clause contained in the Agreement, dispute, if any, was required to be referred to an Arbitrator and, as such, the consumer complaint was not maintainable; that the parties are bound by the terms and conditions mentioned in the Agreement and that since the proceedings before the Consumer Fora are summary, in nature, this Commission is not competent to adjudicate this complaint. A separate miscellaneous application bearing No.505 of 2016, under Section 8 of Arbitration and Conciliation Act, 1996 for referring the matter to the sole arbitration, was also filed by the Opposite Parties, which was disposed off, vide order dated 18.11.2016 observing that the question qua arbitration would be considered at the time of final arguments in the main case.  

              On merits, it was admitted regarding the allotment of unit, in question to the complainant. It was stated that total sale price, as per the schedule of payment and exclusive of service tax is Rs.74,07,685.02. It was further stated that the complainant has paid the total amount of Rs.67,82,990/- till 29.09.2016. It was further stated that the balance payable by the complainant in favour of the Opposite Parties is Rs.18,63,047.05 and to the Hyde Park Resident Welfare Society is Rs.1,03,778/-.  It was further admitted regarding execution of Independent Floor Buyer’s Agreement on 12.03.2013 and as per the Agreement, the Opposite Parties had endeavored to give possession of the plot within a period of 30 months from the date of execution of the application. It was further stated that the Opposite Parties always kept informed the complainant about the work at the site and after which, he kept on paying the installments. It was further stated that the Opposite Parties have already completed construction of 897 plots and 255 built up units on 85 plots. It was further stated that out of 326 built up units, Occupation Certificate have been received for 255 units (85 plots) units and as on date conveyance deed for 351 plots have been executed in the name of 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 the complainant did not fall within the definition of “Consumer”. It was further stated the project in dispute is situated in Mullanpur, which comes within the jurisdiction of Mohali, so this Commission has no jurisdiction to try and entertain the complaint. 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.

3.           The parties led evidence in support of their case.  

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

5.           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 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint. This question has already been elaborately dealt with by this Commission in Consumer Complaint No.339 of 2016 titled ‘Sandeep Goyal Vs. M/s Puma Realtors Private Limited’ decided on 07.10.2016. Paras 13 to 20 of the said order, inter-alia, being relevant, are extracted hereunder:-

“13.        The next 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  1996 Act, this Commission has no jurisdiction to entertain the consumer complaint.

                To decide above said question, it is necessary to reproduce the provisions of  Section 3 of the Consumer Protection Act 1986 (in short the Act), 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.”

                It is also desirable to reproduce unamended provisions of Section 8 of 1996 Act, which reads thus:- 

“8. Power to refer parties to arbitration where there is an  arbitration agreement.—

(1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.

(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.

(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.”

14.        Many a times, by making reference to the provisions of Section 8 of 1996 Act, in the past also, such objections were raised and the Hon'ble Supreme Court of India, when interpreting the provisions of Section 3 of 1986 Act, in the cases of Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6  SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013) etc., came to a conclusion that the remedy provided under Section 3 of 1986 Act, is an independent and additional remedy and existence of an arbitration clause in the agreement, to settle disputes, will not debar the Consumer Foras, to entertain the complaints, filed by the consumers.

15.        In the year 2015, many amendments were effected in the provisions of 1996 Act. After amendment, Section 8 of 1996 Act, reads as under:-

“8. Power to refer parties to arbitration where there is an arbitration agreement.—

(1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.”

16.        Now it is to be seen, whether, after amendment in Section 8 of the principal Act, any additional right has accrued to the service provider(s), to say that on account of existence of arbitration agreement, for settling the disputes through an Arbitrator, the Consumer Foras have no jurisdiction to entertain a consumer complaint. As has been held by Hon'ble Supreme Court of India, in various cases, and also of the National Commission, in large number of judgments, Section 3 of the 1986 Act, provides additional remedy, notwithstanding any other remedy available to a consumer. The said remedy is also not in derogation to any other Act/Law.

17.        We will have to see what difference has been made by the amendment, in the provisions of Section 8 of 1996 Act. After amendment, it reads that a Judicial Authority is supposed to refer the matter to an Arbitrator, if there exists an arbitration clause in the agreement, notwithstanding any judgment, decree, order of the Hon'ble Supreme Court of India, or any other Court, unless it finds that prima facie, no valid arbitration agreement exists. The legislation was alive to the ratio of the judgments, as referred to above, in earlier part of this order. Vide those judgments, it is specifically mandated that under Section 3 of 1986 Act, an additional remedy is available to the consumer(s), which is not in derogation to any other Act. As and when any argument was raised, the Hon'ble Supreme Court of India and the National Commission in the judgments, referred to above, have made it very clear that in the face of Section 8 of 1996 Act and existence of arbitration agreement, it is still opened to the Consumer Foras to entertain the consumer complaints. None of the judgments ever conferred any jurisdiction upon the Consumer Foras to entertain such like complaints. Only the legal issues, as existed in the Statute Book, were explained vide different judgments. If we look into amended provisions of Section 8 of the principal Act, it explains  that judicial Authority needs to refer dispute, in which arbitration agreement exist to settle the disputes notwithstanding any judgment/decree or order of any Court. That may be true where in a case,  some order has been passed by any Court, making arbitration Agreement non-applicable to a dispute/parties. However, in the present case, the above said argument is not available. The jurisdiction of Consumer Foras to entertain consumer complaints, in the face of arbitration clause in the Agreement, is in-built in 1986 Act. It was not given to these Foras, by any judgment ever. The provisions of Section 3 of 1986 Act interpreted vide judgments vis a vis Section 8 of un-amended 1996 Act, were known to the legislature, when the amended Act 2015 was passed. If there was any intention on the part of the legislature, then it would have been very conveniently provided that notwithstanding any remedy available in 1986 Act, it would be binding upon the judicial Authority to refer the matter to an Arbitrator, in case of existence of arbitration agreement, however, it was not so said.

18.       We can deal with this issue, from another angle also. If this contention raised is accepted, it will go against the basic spirit of 1986 Act. The said Act (1986) was enacted to protect poor consumers against might of the service providers/multinational companies/traders. Litigation in the Consumer Fora is cost effective. It does not involve huge expenses and further it is very quick. A complaint in the State Commission can be filed, by making payment between Rs.2000/- to Rs.4000/- (in the present case Rs.4000/-). As per the mandate of 1986 Act,  a complaint is supposed to be decided within three months, from the date of service to the opposite party. In cases involving ticklish issues (like the present one, maximum not more than six months to seven months time can be consumed), whereas, to the contrary, as per the principal Act (1996 Act),  the consumer will be forced to incur huge expenses towards his/her share of Arbitrator’s fees. Not only as above, it is admissible to an Arbitrator, to decide a dispute within one year. Thereafter, the Court wherever it is challenged may also take upto one year and then there is likelihood that the matter will go to the High Court or the Hon'ble Supreme Court of India. Such an effort will be a time consuming and costly one. Taking note of fee component and time consumed in arbitration, it can safely be said that if the matter is referred to an Arbitrator, as prayed, in the present case, it will defeat the very purpose of the provisions of 1986 Act.

19.      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 complainant has spent his entire  life earnings to purchase the unit, in the said project, launched by the opposite party, in the manner explained above. He is now running behind the opposite party to get his amount, legally due to be paid to him, as it failed to deliver possession of the unit, even till date. As per ratio of the judgments in the case of Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and 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), the consumers are always in a weak position, and in cases where two interpretations are possible, the one beneficial to the consumer needs to 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.

20.       Not only this, recently, it was also so said by the National Commission, 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 and National 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.”

                In view of the above, the plea taken by 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.”

                    In view of the above, the objection raised by Counsel for the Opposite Parties 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. Accordingly, the miscellaneous application under Section 8 of the Arbitration and Conciliation Act 1996 filed by the Opposite Parties also stand dismissed.

6.           The objection taken by the Opposite Parties, to the effect that the complainant did not fall within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, also deserves rejection. It may be stated here that there is nothing, on the record, that the complainant is the property dealer, and deals in the sale and purchase of property, on regular basis, and as such, the unit, in question, was purchased by him, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. Thus, in the absence of any cogent evidence, in support of the objection raised by  the  Opposite Parties, mere bald assertion i.e. simply saying that the  complainant did not fall within the definition of a consumer, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, 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. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  2016 (2) CPJ 316. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The  complainant, thus, falls within the definition of a ‘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. 

7.           Another objection raised by Counsel for the Opposite Parties was that the parties are bound by the terms and conditions of the Agreement and since the proceedings before the Consumer Fora are summary in nature, this Commission is not competent to adjudicate the complaint and 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, they were to  hand over possession of the unit, in question, within a period of thirty months, from the date of Application. 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, 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 in the Civil Court, the alternative remedy provided under Section 3 of the Act, can be availed of by him, as he falls within the definition of 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.

8.           The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not.

              According to Section 17 of the Act, a consumer complaint can be filed, by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to him. In the instant case, it is evident from the record, that the Agreement was executed between the parties at Chandigarh. Not only this, even the receipts (Annexures C-3 to C-14) issued by the Opposite Parties from their Chandigarh Office, as the same bore the Chandigarh address of the Company. Since, as per the documents, referred to above, a part of cause of action arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by the Opposite Parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

9.             The next question, that falls for consideration, is, as to within which period, possession of the unit, in question, was to be delivered to the complainant. As stated above, according to Clause 11 (a) of the Agreement, the Opposite Parties  were required  to deliver possession of the unit, in question, to the   complainant, within a period of 30 months, from the application dated  23.08.2012 i.e. on or before 23.02.2015.  According to the complainant, possession of the unit has not been offered to the complainant, despite repeated requests and visits. On the other hand, the Opposite Parties stated that they offered possession of the unit, in question, to the complainant vide letter dated 28.09.2016 and demanded the balance amount of Rs.8,23,875/- (Annexure R/4). To prove the said fact, the Opposite Parties also annexed proof of delivery  on the possession letter dated 28.09.2016 (Annexure R/4). In the instant case, 30 months period from the date of application expired on 23.02.2015. The possession of the unit, in question, was offered vide letter dated 28.09.2016 (Annexure R/4), meaning thereby that there was clear delay of complete one and a half year in offering possession. No reason or circumstances, which were beyond the control of the Opposite Parties for such delay, have been explained.

10.          The next question, that falls for consideration, is, as the complainant is bound to accept the possession, as offered by the Opposite Parties vide letter dated 28.09.2016 (Annexure R/4) i.e. after a delay of 1 ½ years. As already submitted above, there has been delay of around 1 ½ years in offering possession. This Commission in the case of Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, in the light of law settled by Hon’ble National Commission in such cases, held that the complainants are entitled to refund of the amount deposited by them with the Opposite Parties. Relevant Paras of the aforesaid judgment read thus:-

“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the  complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the  complainants to accept the same. It was so held by the National Commission in Emaar MGF   Land   Limited   and   another   Vs. Dilshad Gill, III (2015) CPJ 329 (NC). Recently also, under similar circumstances, in the case of M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, held as under:-

“I am of the prima facie view that even if the said offer was genuine, yet, the  complainants was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.

The principle of law laid down in the aforesaid cases is fully applicable to the present case. It is therefore held that the  complainants could not be held guilty, of filing the present complaint, seeking refund of the deposited amount, alongwith interest and compensation, as possession of the unit was not offered to them by the stipulated date.

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. The Counsel for the Opposite Parties, argued that seeking refund would amount to rescinding the contract and earnest money was forfeitable. Had the Opposite Parties offered possession to the complainants before the stipulated period in the Agreement, we would have accepted the contention of the Opposite Parties but the same is not the situation in the instant case.

11.         The next question, that falls for consideration, is, as to what amount was deposited by the complainant in respect of the unit, in question. According to the complainant, as per the account statement (Annexure C-15), he paid the total amount of Rs.71,71,876/- and he also annexed receipts (Annexures C-3 to C-14). On the other hand, the Opposite Parties stated that the complainant paid the total amount of Rs.67,82,990/- till 29.09.2016. It is, no doubt, true that the complainant paid the amount of Rs.6 lacs at the time of booking. After calculation the amount of receipts annexed by the complainant, it is clearly proved that the complainant paid the total amount of Rs.67,82,990/-, as alleged by the Opposite Parties, in respect of the unit, in question.

12.         The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.67,82,990/-, deposited by him. It is an admitted fact that the Opposite Parties failed to deliver possession of the unit to the complainant within the stipulated period, as mentioned in the Agreement. The complainant cannot be made to wait for an indefinite period, for delivery of actual physical possession of the plot purchased by him. The  Opposite Parties, therefore, had no right, to retain the hard-earned money of the complainant, deposited towards price of the unit, in question. The complainant is thus, entitled to get refund of amount deposited by him. In view of above facts of the case, the Opposite Parties are also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to him, as also escalation in prices.

13.         It is to be further seen, as to whether, interest, on the amount refunded can be granted, in favour of the complainant. It is clearly proved that the complainant deposited the total amount of Rs.67,82,990/-, 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 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. Though in cases of similar nature, where there has been inordinate delay in offering possession, this Commission has been granting interest @12%/15% per annum but in the facts and circumstances of the instant case, when delay in offering possession was about 1 ½ years, refund of the deposited amount at the rate of 10% per annum would meet the ends of justice.

14.         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 stated above, possession has been offered by the Opposite Parties letter dated 28.09.2016 i.e. after a period of around 1 ½ years from the date stipulated in the Agreement. On account of non-delivery of possession of the unit, in question, by the Opposite Parties, to the complainant, complete in all respects, within the stipulated period, the complainant has certainly suffered physical harassment and mental agony on account of the acts of omission and commission of the Opposite Parties, for which, he needs to be suitably compensated. In our considered opinion, compensation in the sum of Rs.1,50,000/-, if granted, would be just and adequate, to meet the ends of justice.

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

16.        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.67,82,990/- or amount actually paid alongwith simple interest @10% per annum, to the complainant, from the respective dates of deposits, till realization, within 45 days, 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 @12% per annum, instead of 10% per annum, from the date of filing the complaint till actual payment;

 (ii) To pay an amount of Rs.1,50,000/-, to the complainant, as compensation for mental agony and physical harassment, within a period of 45 days 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 @12% per annum from the date of filing the complaint till actual payment;

(iii) To pay cost of litigation, to the tune of Rs.50,000/-, to the complainant within a period of 45 days 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 @12% per annum from the date of filing the complaint till actual payment.

17.           However, it is made clear that, if the complainant has availed loan facility from any banking or financial institution, for making payment of installments towards the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by him (complainant).
18.        Certified Copies of this order be sent to the parties, free of charge.
19.        The file be consigned to Record Room, after completion.

Pronounced.

25.01.2017                                Sd/-      

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Sd/-

(PADMA PANDEY)

        MEMBER