Chandigarh

StateCommission

CC/149/2016

Col. Navjot Kang - Complainant(s)

Versus

DLF - Opp.Party(s)

Sh. Vaibhav Narang, Adv.

25 Jul 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	149 of 2016
Date of Institution	:	18.04.2016
Date of Decision	:	25.07.2016

 

1. Col.Navjot Kang son of Late Sh.Major A.S. Kang, resident of B-208 GH2 Shikhar Apartments MDC Panchkula.
2. Mrs.Ajita Kang wife of Col. Navjot Kang, resident of B-208 GH2 Shikhar Apartments MDC Panchkula.

……Complainants

V e r s u s

 

DLF, SCO 190-191-192, Sector  8-C, Chandigarh, through their Managing Director.

              ......Opposite party

                 

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

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

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER.

 

Argued by:-         Sh.Vaibhav Narang, Advocate for the complainants.

                         Ms.Ekta Jhanji, Advocate for the opposite party

                  

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT   

                The complainants are husband and wife. Complainant no.1 is serving as Colonel in Indian Army. He is posted at Assam. Complainant no.2 alongwith family members is living in a rented accommodation, owned by one Mr.V.P. Malik. Rent deed dated 01.03.2016 has been placed on record, as Annexure C-1. The family of the complainants, dreamt of owning a house. To fulfil their desire, the complainants booked a flat, in a project launched by the opposite party, under the name and style ‘Hyde Park Terraces, New Chandigarh, Mullanpur, Punjab. Before purchase, the complainants had looked into various promises made and rosy pictures shown of the project, by the opposite party, through brochures and advertisements in the newspapers. The  complainants were allotted independent floor no.R2-F512, Ground Floor, measuring saleable area 1881 square feet, specific area 1598 square feet, in the said project, for an amount of Rs.76,89,835.02Ps., which included basic sale price of Rs.73,35,900/-, plus External Development Charges (EDC), Parking BSP, Maintenance Security etc. Besides as above, service tax of Rs.2,29,775/- was also payable by the complainants to the opposite party.

2.         On 23.08.2013, Buyer’s Agreement (Annexure C-3) was executed between the parties. As per Clause 11 (a) of the Agreement, the opposite party was required to deliver possession of the constructed unit, in question, to the complainants, within a period of 30 months, from the date of application (17.08.2012) i.e. on or before 16.02.2015, subject to force majeure circumstances. From time to time, the complainants had paid an amount of Rs.74,85,503.25Ps. against sale consideration of Rs.76,89,835.02Ps. The complainants received a letter dated 15.02.2016 Annexure C-4, making an offer of possession of the unit, in question. It was stated therein that area of the flat has increased by 19 square meters. The complainants were asked to pay an amount of Rs.74,100/-. Perusal of said letter further reveals that an additional amount of Rs.20,54,010/- was also demanded by the opposite party, under various heads like registration charges, maintenance security, club security/charges, power backup charges etc. It is specifically stated that above charges for an amount of more than Rs.20 lacs, were never disclosed, when the unit was sold to the complainants.  
3.         It is stated that by doing as above, the opposite party has indulged into unfair trade practice. It was further stated that complainant no.1 being in service, it is not possible for him to arrange above said exorbitant amount of more than Rs.20 lacs. Earlier, payment towards price of the said unit was also made by raising loan from various sources. It is averred that on receipt of letter, referred to above, the complainants went to the site and were shocked to see that construction of the unit was not complete and the project was not developed as promised. Many basic facilities were not available. Building was not secured. Access to the main road was not available. Most of the roads were lying unfinished. The construction activities were still going on at the spot. The complainants sent email dated 07.03.2016 by indicating above said deficiencies. Vide email dated 08.03.2016, many deficiencies were admitted qua development of the project by the opposite party. It is further stated that pressed under circumstances, again a letter Annexure C-7 was written to the opposite party, for making exact calculation qua amount payable and providing amenities at the spot. When nothing was done, present complaint was filed on 18.04.2016.   
4.         Upon notice, reply was filed by the opposite party, wherein it was stated that part of the project, in question, is complete. Occupation certificate has been received qua 255 constructed  units and 85 plots. It was stated that electricity and water connections are available at the spot.

                 Booking of the unit, in question, and fact of making payment aforesaid by the complainants, is admitted. Execution of Buyer’s Agreement on 23.08.2013 is also not denied. It is also admitted that as per Clause 11 (a) of the Agreement, possession was to be delivered within 30 months, from the date of making application dated 17.08.2012, subject to force majeure circumstances. It is stated that the complainants being investors, would not fall within the definition of consumer, as defined under Section 2 (1) (d) of the Act. They had purchased the said unit to earn profits in future. They have also purchased one more property in another project of the opposite party. It was further stated that possession of the unit was offered to the complainants, on 15.02.2016. They have started raising frivolous complaint, only to save payment of holding charges. It was further stated that in view of disputed question of facts, this complaint cannot be decided by this Commission, proceedings before which are summary in nature. Parties are bound by terms and conditions of the Agreement. It was averred that at the maximum, the complainants can opt to get dispute, if any, decided through arbitration proceedings. It was stated that construction of the unit is complete. For extraneous reasons, objections are being raised by the complainants. It is further stated that partial completion certificate qua project, in question, has been issued by the Competent Authority. The complainants even defaulted in making payment towards the said unit, as  a result whereof, various reminders were sent to them, in the matter. The remaining averments were denied, being wrong. It is prayed that the complaint having no substance, be dismissed.

5.         In the rejoinder filed, the  complainants reiterated all the averments contained in the complaint, and repudiated those, made in the written version of the opposite party.
6.         The parties led evidence in support of their case, by way of filing their respective affidavits, alongwith which, number of documents were attached. 
7.         In the complaint filed, a prayer has been made to issue directions to the opposite party to refund amount paid alongwith interest and compensation or in the alternative prayer has been made to handover possession of the unit, without making any further demand of payment, alongwith other reliefs.

                At the time of arguments, Counsel for the complainants confined the claim of the complainants only qua refund of amount paid alongwith interest and compensation. The alternative prayer of possession of the unit was not pressed.

8.         The facts are not in dispute. It is proved on record that the complainants moved an application to get a constructed unit allotted on 17.08.2012. Buyer’s Agreement was executed between the parties on 23.08.2013. As per Clause 11 (a) of the Agreement, possession of the unit was to be delivered within 30 months, from the date of moving application i.e. on or before 16.02.2015 (in the complaint wrongly stated on or before 22.02.2016. Increase is area  of the originally allotted unit, when constructed is also not disputed.

                It is grievance of the complainants that against total sale consideration of Rs.76,89,835.02Ps. plus (+) service tax, they (complainants) had paid an amount of Rs.74,85,503.25Ps. The unit/project is not complete. Completion certificate qua the project has not been obtained till date. Further, there is nothing on record to show that partial completion certificate has been issued, in the area, where the unit in question, was purchased by the complainants. 

9.         To the contrary, it is stated by the opposite party that construction is complete at the spot, and vide letter dated 15.02.2016 Annexure C-4, possession was offered to the complainants, however, they failed to get it and this complaint has been filed to avoid payment of additional charges, rightly claimed by the opposite party.
10.         In the first instance, it is to be seen, as to whether, the project in question, is fully developed and the construction at the spot is complete or not. It is even admitted by the opposite party that qua project, only partial completion certificate has been granted by the Competent Authority. It is clearly mentioned in the said partial completion certificate that still final completion certificate is to be issued by the Competent Authority. No document has been brought on record, to prove that the conditions imposed upon the opposite party, in the partial completion certificate has been complied with, as a result whereof, final completion certificate has been issued by the Competent Authority. Such a certificate (partial) is not acceptable under law. To prove that the project is complete and ready for possession, it is mandatory for the builder, to obtain final completion certificate from the Competent Authority.  Therefore, in the absence of final completion certificate, having been issued to the opposite party, it is open to the complainants, to say no to the possession, so offered to him and that too after a long delay of about one year. Similar view was taken by the Hon’ble National Commission, in Inderjit Singh Bakshi Versus S.M.V. Agencies Private Limited, FA No. 729 of 2013, decided on 30.11.2015, observing as under:-

“An allottee is not obliged to take possession of a flat unless it is complete in every respect, including the completion certificate”.

11.         Not only as above, to show the project is not complete, the complainants have placed on record various photographs, which were clicked by them, after issuance of possession letter dated 15.02.2016. Perusal of photographs indicate that the project is incomplete. The basic amenities are not available. Approach road is in raw condition. Other areas have also not been developed. Construction activities are going on at the spot and temporary quarters of labourers/masons can be seen, near to the allotted incomplete units. The building is not secured. Not only as above, after receipt of above offer letter, the complainants went to the spot and noticed many deficiencies and wrote a letter Annexure C-5 to the opposite party, indicating those defects in construction. The said letter was replied vide document Annexure C-6 and virtually deficiencies were admitted. The averments made and documents on record make it very clear that the construction at the spot is not complete and living in the unit may not be convenient, as expected by the complainants.  As such, it could very well be said that  offer of possession made by the opposite party, to the  complainants, vide letter dated 15.02.2016, in respect of the unit, in question, is not a genuine offer, but is mere a paper possession.
12.         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.”

13.         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.
14.         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.”

15.         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.
16.         Now, 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.
17.         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. As in the present case, the complainants have spent their life savings to get a unit, for their residential purpose. Their hopes were shattered. 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 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.
18.         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. As stated above, in the present case, the complainants have spent their entire  life earnings to purchase the unit, in the said project, launched by the opposite party. However, their hopes were shattered, when despite making substantial payment of the sale consideration, they failed to get possession of the constructed unit, in question, in a developed project. 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.
19.         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.

20.         The objection taken by the opposite party, to the effect that the complainants being investors, 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, it has been clearly mentioned by the complainants, in para no.1 of their complaint that the said unit has been purchased by them, so that they are able to live in their own house, as presently they were staying at rent. On the other hand, nothing contrary to this, has been proved by the opposite party, by placing on record, any document. There is nothing, on the record, that the  complainants are the property dealers, and deals in the sale and purchase of property, on regular basis, and as such, the unit, in question, was purchased by them, 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 party, mere bald assertion i.e. simply saying that the  complainants being investors, 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  complainants, thus, fall within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by  the opposite party, in its written reply, therefore, being devoid of merit, is rejected.  
21.         The next question, that falls for consideration, is, as to whether, the present consumer complaint was maintainable before this Commission or not. No doubt, the opposite party, in its written statement has tried to say that the present complaint cannot be adjudicated by this Commission, as the proceedings before it are summary in nature, and as such,  only a Civil Court can decide the case. It may be stated here, that the  complainants hired the services of  the opposite party, for purchasing the unit, in the manner, referred to above. According to Clause 11 (a) of the Agreement, the opposite party was required to deliver possession of the unit, in question, to the  complainants, within a period of 30 months, from the date of making the application dated 17.08.2012 i.e. on or before 16.02.2015, subject to force majeure circumstances, alongwith all basic amenities as mentioned in Brochure and the 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”

From the afore-extracted provision 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 1986 Act, provides an alternative remedy. Even if, it is assumed that the  complainants have a remedy to file a suit, in the Civil Court, the alternative remedy provided under Section 3 of 1986 Act, can also be availed of by them, as they fall within the definition of consumer. In this view of the matter, the objection of the opposite party in this regard, being devoid of merit, must fail, and the same stands rejected.

22.         Admittedly, in the present case, possession of the unit, in question, was not delivered to the  complainants, by the stipulated date i.e. on or before 16.02.2015. The Hon’ble Supreme Court of India, in Lucknow Development Authority vs M.K. Gupta, 1994 SCC (1) 243, held that if a builder fails to deliver possession of the property by the stipulated period, the delay so caused is denial of service and such deficiencies or omissions tantamount to unfair trade practice. Thus, it could very well be said that the act of non-delivery of possession of the unit, by the stipulated date, in the absence of any force majeure circumstances, is a material deficiency on the part of  the opposite party.

                The alleged offer of possession in respect of the unit, in question, was made on 15.02.2016, which has been held to be a paper possession by this Commission, in earlier part of this order.  Under above circumstances, the  complainants were not bound to accept offer of possession, in respect of the unit, in question, when the same was offered to them, vide letter dated 15.02.2016, i.e. after a delay of about one year, and that too, in the absence of any force majeure circumstances and also without availability of the basic amenities & development. It is well settled law that non-delivery of possession of the property sold by a builder, by the stipulated date, is a material violation of the terms and conditions of the Agreement. It is not case of the opposite party that the said delay occurred, on account of force majeure circumstances, met by it, on account of some stay or any other valid reason. No plausible reason has been assigned by the opposite party, as to why it failed to deliver possession of the unit, by the stipulated date. Delay could only be condoned, under the terms and conditions of the Agreement, if there exists any plausible reason. Under similar circumstances, 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, while relying upon the judgments rendered by the Hon'ble National Commission, held as under:-

“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.

                In view of the above, it is held that since there was a material violation on the part of  the  opposite party, in not handing over possession of the unit, in question, by the stipulated date, as mentioned in the Agreement, and that too when the offer was made, there was no development at the site, as also basic amenities were not in existence, the  complainants were at liberty, not to accept the offer made and on the other hand, were right in pressing the relief of refund of the amount deposited, alongwith interest and compensation, by way of filing the instant complaint, instead of pressing relief regarding delivery of possession.

23.         The next question, that falls for consideration, is, as to whether, the  complainants are entitled to refund of the amount deposited by them. Once it has been held that it was not obligatory upon the complainants to accept offer of possession, after the stipulated date and also the offer already made by the opposite party, has also been held to be a mere paper offer, as it failed to prove that the construction and development was complete and also that all the basic amenities as promised by it, vide brochure and the Agreement, were not in existence at the site, we are of the considered view, that refund of the amount deposited, should be ordered. The  complainants cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit. The opposite party, therefore, had no right, to retain the hard-earned money of the  complainants, deposited towards price of the unit, in question. The  complainants are, thus, entitled to get refund of amount deposited by them. In view of above facts of the case,  the opposite party, is also under an obligation to compensate the  complainants, for inflicting mental agony and causing physical harassment to them, as also escalation in prices, which in our considered view, if granted to the tune of Rs.2 lacs (as prayed), will be fair, adequate and reasonable.
24.         It is to be further seen, as to whether, interest, on the amount refunded can be granted, in favour of the  complainants. Admittedly, an amount of Rs.74,85,503.25Ps. was paid by the  complainants, without getting anything, in lieu thereof. The said amount has been used by  the opposite party, for its own benefit. There is no dispute that for making delayed payments,  the opposite party was charging heavy rate of interest @18% p.a. as per Clause 39 (a) of the Agreement, for the period of delay in making payment of instalments.  It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. 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 20th, 2014. In view of above, the  complainants are certainly entitled to get refund of the amount deposited by them, to the tune of Rs.74,85,503.25Ps.  alongwith interest @15% p.a., from the respective dates of deposits, till realization.
25.         No other point, was urged, by Counsel for the parties.
26.         For the reasons recorded above, this complaint is partly accepted, with costs. The opposite party is directed as under:-

1. To refund the amount of   Rs.74,85,503.25Ps.  to  the    complainants, alongwith interest @15% p.a.,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.2 lacs (as prayed)  for causing mental agony and physical harassment, to the  complainants, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.25,000/-, to the  complainants.
4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 45 days from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @18% p.a. instead of @15%, from the respective dates of deposits onwards, and interest @15% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

27.         However, it is made clear that, in case, the complainants have obtained loan from any banking/financial Institution, for making payment 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 them ( complainants).
28.         Certified Copies of this order be sent to the parties, free of charge.
29.         The file be consigned to Record Room, after completion.

Pronounced.

25.07.2016

Sd/-

 [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

 (DEV RAJ)

MEMBER

 

 

Sd/-

 (PADMA PANDEY)

        MEMBER

 

 

Rg.