Chandigarh

StateCommission

CC/102/2018

Rajesh Jindal - Complainant(s)

Versus

Emaar MGF Land Ltd - Opp.Party(s)

30 Aug 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	102 of 2018
Date of Institution	:	05.03.2018
Date of Decision	:	30.08.2018

 

Rajesh Jindal son of Sh.Dev Raj Jindal, earlier residing at House No.159, Krishna Square-I, Amritsar Punjab. Presently residing at Flat No.267, Great India Society, Plot No.15, Sector 6, Dwarka-110075, New Delhi.

……Complainant

V e r s u s

 

1. M/s Emaar MGF Land Ltd., having its Office at SCO 120-122, Ist Floor, Sector 17-C, Chandigarh-160017, through its Managing Director.
2. M/s Emaar MGF Land Ltd., having its Registered Office at ECE House, 28, Kasturba Gandhi Marg, New Delhi-110001, through its Managing Director.

              .... Opposite Parties

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

 

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

                        MRS. PADMA PANDEY, MEMBER.

 

Argued by:       Sh.Manish Joshi, Advocate for the complainant.

                        Sh.Ashim Aggarwal, Advocate for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

                The complainant has filed this complaint, seeking refund of amount of Rs.14,95,145/- paid by him, to the opposite parties, towards flat bearing no.520/FF, measuring 1524 square feet, in the project named “The Terraces”, Sector 108, Mohali Hills, Mohali, Punjab. It was stated that despite the fact that the complainant had paid an amount of Rs.14,95,145/-, as per demands raised by the opposite parties, from time to time, against total cost of Rs.39,89,631/-, they (opposite parties) failed to deliver possession thereof, by the stipulated date i.e. within a period of 36 months from the date of execution of the agreement dated 17.06.2009, as provided in Clause 20 thereof, for want of construction and basic amenities. The end date to hand over possession of the unit, in question, expired on 16.06.2012. It was stated that deficiency in providing service on the part of the opposite parties was writ large, as despite the fact that the complainant had opted for time linked payment plan, yet, during the period intervening, the same was changed to construction linked. Requests made by the complainant for redressal of his grievance with regard to delivery of possession of the unit, after completing the construction and obtaining necessary permissions/certificates, were not acceded to, by the opposite parties. It was further stated that not only as above, at the time of booking of the said unit on 09.06.2008, by way of application form, it was promised that possession of the unit, will be delivered within a period of 30 months, from the date of allotment, whereas, on execution of the agreement, it became 36 months and that too from the date of signing of the said agreement. It was pleaded that, despite the fact that the unit, in question, had been booked as far as back in June 2008; substantial amount, referred to above, has been paid by the complainant towards price thereof, he is empty handed, as possession has not been offered to him, by the opposite parties, for want of construction and basic amenities. Even delayed payment charges of Rs.4,001/- had been illegally levied by the opposite parties, which was objected by the complainant. Hence by way of filing this complaint, the complainant has sought directions to the opposite parties, to refund the entire amount paid, alongwith interest, compensation etc. 

2.         Upon notice, joint written reply was filed by the opposite parties, wherein, many objections were raised like that in the face of existence of arbitration Clause in the Agreement, to settle disputes between the parties through Arbitrator, this Commission has no jurisdiction to entertain the consumer complaint; the complainant is an investor, as such, he did not fall within the definition of “Consumer” as defined under Section 2 (1) (d) of the Act; this Commission did not vest with territorial and pecuniary jurisdiction; and that the complaint filed is time barred.
3.         It was averred that, as per Clause 20.1 of the Agreement, it was agreed to between the parties, that the Company only ‘proposes’ to make endeavor to deliver possession of the unit, within a period of 36 months, from the date of execution of the agreement. Period of 30 months to hand over possession, as mentioned in the application form was provisional. Terms and conditions contained in the application form stood superseded after execution of the agreement. Since, no definite period was committed to hand over possession of the unit, and also the unit, in question, falls under the category of immovable property, as such, time was not to be considered as essence of the contract. It was stated that it was well within the knowledge of the complainant that for any delays, stipulated penalty has been provided in the Agreement, which safeguarded his rights. Without saying anything, about the stage of construction of the tower, in which the unit, in question, is located, it was stated that the complainant was offered relocation to a unit which was habitable, in another project of the opposite parties but he refused to accept it. It was averred that the opposite parties are still ready to relocate the complainant, to a nearby habitable unit. Payment plan was changed with a view to facilitate the complainant only. The complainant had availed loan amount of Rs.26,50,000/- from HDFC. It was stated that since the complainant had earlier filed similar complaint, in respect of the unit, in question, before the District Forum, U.T., Chandigarh and also this Commission, a number of times, as such, the present complaint filed, is barred by the principles of res judicata. It was pleaded that neither there was any deficiency, in rendering service, on the part of the opposite parties, nor they had indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4.         The parties led evidence in support of their case.
5.         We have heard Counsel for the parties and have gone through the evidence and record of the case, very carefully.
6.         First, we will deal with an objection, raised by the opposite parties, that in the face of existence of provision 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.

                It may be stated here that this issue has already been dealt with, by this Commission, in a case titled as ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126, while relying upon ratio of judgments of the Hon’ble Supreme Court, titled as 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), 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), and held that even in the face of existence of arbitration clause in an Agreement/Allotment Letter, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint. Recently, the larger Bench of the National Commission in a case titled as Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017, has held that an Arbitration Clause in the Agreements between the complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon’ble Supreme Court of India, which was dismissed vide order dated 13.02.2018.

                In view of above, the objection raised by the opposite parties, in this regard, being devoid of merit is rejected.

7.         It is not in dispute that, vide letter dated 13.04.2009, the complainant was provisionally allotted the unit, in question, for total sale consideration of Rs.39,89,631/-, in the said project. Buyers Agreement in respect of the said unit was executed between the parties on 17.06.2009. As per Clause 20.1 of the said Agreement, the opposite parties were liable to deliver physical possession of the said unit, within a maximum period of 36 months, from the date of signing of the said agreement i.e. latest by 16.06.2012.  Admittedly, it was not done, despite the fact that substantial amount of Rs.14,95,145/-, had been received by the opposite parties. It is also an admitted fact that, no further demands were raised by the opposite parties.  Furthermore, it is also not disputed that possession of unit, in question, was not offered to the complainant, even by the date when this complaint was filed or thereafter, during pendency of this complaint. In the entire reply filed, the opposite parties have not stated even a single word about delivery of possession of the unit, in question. It was only said that the opposite parties are ready to relocate the complainant, to some other habitable unit, in the same area. The unit, in question, was booked in June 2008 and now it is August 2018, still the opposite parties are not ready for delivery of possession thereof. No firm date has been assigned, by which, possession of the unit, in question, can be delivered to the complainant. Already, a period of more than 10 years has elapsed, still the complainant is empty handed. At the time of arguments also, when it was asked to Counsel for the opposite parties, to apprise this Commission, about the stage of construction of the unit, in question, he was having no answer. He only stated that the opposite parties are willing to relocate the complainant, to a habitable unit, in some other nearby project. This admission itself speaks about the status of the project, in which, the unit, in question was purchased by the complainant. The complainant cannot be made to wait for an indefinite period, for delivery of physical possession of the unit purchased by him, at the whims and fancies of the opposite parties. Under these circumstances, it can be said that there is a material violation on the part of the opposite parties. It is settled law that when there is a material violation on the part of the builder, in not handing over possession by the stipulated date, the purchaser is not bound to accept the offer, if the same is made at a belated stage and on the other hand, can seek refund of amount paid. It was so said by the Hon’ble National Commission, in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, wherein, under similar circumstances, while negating the plea taken by the builder, it was held  as under:-

“I am in agreement with the learned senior counsel for the complainants that considering the default on the part of opposite parties no.1 and 2 in performing its contractual obligation, the complainants cannot be compelled to accept the offer of possession at this belated stage and therefore, is entitled to refund the entire amount paid by him along with reasonable compensation, in the form of interest.”

 

Not only as above, in a case titled as Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, wherein possession was offered after a long delay, this Commission, while relying upon the judgments rendered by the Hon`ble National Commission, ordered refund to the complainants, while holding 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.

 

Furthermore, in another case titled as M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the Hon’ble National Commission, under similar circumstances, 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”.

 

                As far as plea taken by the opposite parties that the complainant refused to accept the offer of relocation made to him, and, as such, now he cannot file this complaint seeking refund of the amount paid, it may be stated here that the said plea deserves rejection, in view of principle of law, laid down by the National Commission in Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No. 1814 of 2017 decided on 05.07.2018. Relevant part of the said order reads thus:-

“This Commission in Emaar MGF Land Ltd. & Anr. V. Amit Puri (First Appeal No.250 of 2014), decided on 30.03.2015, has held that if the Developer fails to deliver possession of the allotted plot/flat within the stipulated time, the allottee is under no obligation to accept an alternative plot. At the cost of repetition, we may reiterate that in the event of Developer failing to deliver possession of the property within the stipulated period, for any reason, save and except a force majeure condition, agreed to between the contracting parties, an allottee cannot be compelled to accept an alternate site/plot and he would be within his rights to seek refund of the amount deposited with the Developer against allotment”.

The opposite parties, therefore, have 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.

8.         The next question, that falls for consideration, is, as to whether, the complainant is a speculator, and that he has purchased the unit, in question, for earning profits i.e. for resale, as and when there is escalation in the prices of real estate, therefore, he would not fall within the definition of consumer, as defined under Section 2 (1) (d) (ii) of the Act., as alleged by the opposite parties. It may be stated here that there is nothing, on record to show that the complainant is a property dealer and is indulged in sale and purchase of property, on regular basis. In para no.1 of the complaint, supported by the affidavit of complainant, it has been specifically stated by him that the unit, in question was purchased by him for his personal use. Thus, in the absence of any cogent evidence, in support of the objection raised by opposite parties, mere bald assertion to that effect, 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.  

                In view of above, plea raised by the opposite parties stands rejected.

9.         The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide this 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 application form, in respect of sale of the said unit was addressed to Chandigarh Office of the opposite parties i.e. 1^st Floor, SCO No.120-122, Sector 17-C, Chandigarh. Furthermore, it is further evident that most of the letters placed on record, were also issued from the said office at Chandigarh, as it is found mentioned as first address thereon. As such, a part of cause of action arose to the complainant, at Chandigarh, to file this complaint before this Commission. This Commission, thus, has got territorial Jurisdiction to entertain and decide the complaint.  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. 

10.         Another objection taken by the opposite parties, with regard to pecuniary jurisdiction, also deserves rejection. It may be stated here that as per Section 17 (1) (a) of the Act, the State Consumer Disputes Redressal Commission shall have pecuniary jurisdiction to entertain any complaint, complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore. It was also so elucidated elaborately by a Large Bench of the National Commission in the case titled as Ambrish Kumar Shukla and 21 ors. Vs. Ferrous Infrastructure Pvt. Ltd., Consumer Case No.97 of 2016, decided on 07.10.2016.  Relevant part of the said order reads thus:-

“It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it’s the value of the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum.  The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing the deficiencies in the goods purchased or the services to be rendered to the consumer.  Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction.  If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds Rs. 1.00 crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint.  For instance if a person purchases a machine for more than Rs.1.00 crore, a manufacturing defect is found in the machine and the cost of removing the said defect is Rs.10.00 lacs, it is the aggregate of the sale consideration paid by the consumer for the machine and compensation, if any, claimed in the complaint which would determine the pecuniary jurisdiction of the Consumer Forum.  Similarly, if  for instance, a house is sold for more than Rs.1.00 crore, certain defects are found in the house, and the cost of removing those defects is Rs.5.00 lacs, the complaint would have to be filed before this Commission, the value of the services itself being more than Rs.1.00 crore. ”

In the present case, if total value of unit, in question i.e. Rs.39,89,631/-, plus compensation claimed by way of interest @15% p.a. on the amount deposited to the tune of Rs.14,95,145/-; compensation to the tune of Rs.6 lacs claimed for mental agony and physical harassment, till the date of filing this complaint, is taken into consideration, it exceeds Rs.20 lacs  and fell below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide this complaint. The objection taken by the opposite parties that this Commission lacks pecuniary jurisdiction, being devoid of merit, must fail and the same stands rejected.

11.         The next question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was within limitation or not.  It may be stated here that since it is an admitted case that offer of possession of the unit, in question, was never made  by the stipulated date or even by the date, when arguments  were heard in this complaint, for want of complete construction and also for want of occupation certificate etc. and on the other hand, amount deposited was also not refunded to the complainant alongwith interest, as such, there is continuing cause of action, in his favour, in view of principle of law laid down, in  Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal  Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC). Under these circumstances, it is held that the complaint is not at all barred by time. The plea taken by the opposite parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

                At the same time, once a plea has been taken by the opposite parties that the complaint filed is beyond limitation, as such, in the same breath, taking another plea to say that time is not to be considered as essence of the contract, in case of immovable property, and that they be given more time to complete construction, has no legs to stand and, is accordingly rejected.  Even otherwise, the plea raised to this effect also needs rejection in view of principle of law laid down by the National Commission in Consumer Complaint No. 315 of 2015 Pradeep Narula Vs. M/s. Granite Gate Properties Pvt. Ltd. & Anr. decided on 23.8.2016. Similar plea was rejected by the National Commission, in the said case, while holding as under:

          “10…….………Moreover, the decision in Chand Rani (supra) was rendered in the context of a suit for specific performance of an agreement to sell the first floor of an existing house, whereas the decision in the Hind Construction (supra) was rendered in the context of a Government contract. In neither of these cases, the Hon’ble Supreme Court was called upon to decide as to whether an unjustified and explained delay on the part of the builder/service provider in construction of a residential flat booked by a person seeking to have a shelter over his head amount to a deficiency in the service rendered by him to the consumer, or not. The primary purpose of a consumer in booking a residential flat which the builder is to construct for him, is to start living in that house on or about the date committed to him by the builder for delivering possession of the flat booked by him. If the builder does not deliver upon his contractual obligation and at the same time, is unable to show that the delay in completion of the flat and offering its possession to the consumer was on account on circumstances beyond his control, this would constitute deficiency on the part of the builder/service provider in rendering services to the consumer. If I accept the contention that the builder can indefinitely postpone and delay the construction of the flat and the flat buyer has no option but to wait till the builder decides to complete the construction and offer possession to the buyer, that would be nothing but a travesty of justice and result in a situation where the flat buyer is left at the mercy of the builder, without recourse to an appropriate legal remedy. Such an interpretation, if taken, is bound to defeat the very objective behind the enactment of the Consumer Protection Act, as far as housing construction is concerned. Therefore, I am unable to accept the contention advanced by the learned counsel for the opposite party. In my view, wherever the builder commits a particular date or time frame for completion of the construction and offering possession to the buyer, he must necessarily honour the commitment made by him, though a minor delay may not constitute deficiency in the service rendered by him to the buyer. Of course, if the builder is able to how that the delay in completion of the construction and offering possession to the buyer is attributable wholly to the circumstances beyond his control, that may not be a case of deficiency in the services rendered to the consumer”.

 

12.         Another objection raised by Counsel for the opposite parties that since it was mentioned in the Agreement that the Company only proposes to deliver possession of the unit within maximum period of 36 months, from the date of signing of the said agreement thereof, as such, no definite assurance was given, therefore, time was not to be considered as the essence of contract, is also devoid of merit. It may be stated here that it was clearly mentioned in Clause 20.1 of the Agreement that possession of the unit will be delivered by the opposite parties, within a period of maximum 36 months, from the date of execution of the agreement, subject to force majeure circumstances or reason beyond the control of the opposite parties. In the instant case, the opposite parties did not raise any force majeure circumstances, if any, encountered by them. In the absence of any force majeure circumstances having been faced by the opposite parties or any other valid and legal reason beyond their control, the stand taken by them, in this regard, for condonation of delay in delivery of possession of the unit, to the complainant, cannot be taken into consideration. Thus, under these circumstances, since as per Clause 20.1 of the Agreement, the opposite parties were bound to deliver possession of the unit, within a maximum period of 36 months, from the date of signing of the said agreement, as such, time was, unequivocally made the essence of contract.

                At the same time, the opposite parties, also cannot evade their liability, merely by saying that since the word “shall endeavor/try/propose etc.” was mentioned in the Agreement, for delivery of possession of the unit, as such, time is not to be considered as essence of the contract. The act of non-mentioning of exact date in the Agreement is violation of CHAPTER II Regulation of Promotion of Construction, Sale, Transfer and Management of Apartments, Plots and Properties, Condition no. 3(2) (g) of the Punjab Apartment and Property Regulation Act, 1995 (PAPRA), which says that the project proponent is duty bound to specify, in writing, the date by which possession of the unit is to be handed over and it shall hand over such possession accordingly. Relevant contents of condition no.3(2) (g) of PAPRA are reproduced below:-

“(g) specify, in writing, the date by which possession of the plot or apartment is to be handed over and he shall hand over such possession accordingly”;

Furthermore, non-mentioning of exact date of delivery of possession of the unit(s) in the Buyer’s Agreement/allotment letter, is an unfair trade practice on the part of the Builder. The builder is bound to mention the exact/specific date of delivery of possession of the plots/unit(s) to the allottees/purchasers thereof.  It was so said by the Hon`ble National Commission, in Rajeev Nohwar & Anr. V/S Sahajanand Hi Tech Construction Pvt Ltd, 2016 (2) CPR 769. Relevant portion of the said case reads thus:-

“Merely making possession by a particular date will also not meet the requirement of law and the promotor is under a legal mandate to stipulate a specific date for delivery of possession of the flat in the agreement which he executes with the flat buyer”.

In view of above, the plea of the opposite parties in this regard also stands rejected.

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 not in dispute that an amount of Rs.14,95,145/-, 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, since long. There is no dispute that for making delayed payments, the opposite parties were charging heavy rate of interest (compounded quarterly @24%) as per Clause 4.1 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 (2014) 6 SCC 335). In view of above, the complainant is certainly entitled to get refund of the amount deposited by him, to the tune of Rs.14,95,145/- alongwith interest, from the respective dates of deposits till realization. 
14.          Since, it has already been held that the complainant is entitled to refund of the amount deposited, alongwith interest and compensation, as such, plea taken by the opposite parties, to the effect that they are ready to pay penalty amount for the period of delay, in delivery of possession cannot be considered, at this stage. If the opposite parties are allowed to invoke this Clause of the Agreement, regarding payment of penalty, that would amount to enriching them, at the cost of the complainant. Had the complainant sought possession of the unit, in question, the matter would have been different and in those circumstances, necessary directions in that regard, would have been passed, as per law. The defence taken is accordingly rejected.
15.         Now coming to objection taken by the opposite parties, that since, the complainant had earlier filed consumer complaints, in respect of the unit, in question, firstly before the Forum aforesaid and thereafter, before this Commission, as such, the present complaint is not maintainable, as per the principles of res judicata, it may be stated here that we have gone through the record of the earlier complaints filed and found that the complaint filed before the Forum aforesaid, was got dismissed as withdrawn, by the complainant, for want of pecuniary jurisdiction. Liberty therein, was granted by the Forum to file the complaint before the appropriate Commission, having pecuniary jurisdiction to entertain the present dispute. However, thereafter, the complaint which was earlier filed before this Commission, was got dismissed as withdrawn, with liberty to file a fresh one, with better particulars. Had the Forum or this Commission, dismissed the complaint, referred to above, on merits and had no liberty been granted to the complainant, to file fresh complaint on the same cause of action, the matter would have been different. A consumer has liberty to withdraw the complaint, if it is found that the same has not been filed before the appropriate fora or that he needs to file it again, with better particulars. In this view of the matter, objection taken by the opposite parties, being devoid of merit, must fail and the same stands rejected.
16.         No other point, was urged, by Counsel for the parties.
17.         For the reasons recorded above, this complaint is partly accepted, with costs. The opposite parties, jointly and severally, are directed as under:-

1. To refund the amount Rs.14,95,145/-, to  the  complainant, alongwith interest @13% p.a.,  from the respective  dates  of  deposits onward.
2. To pay compensation, in the sum of Rs.75,000/-, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.25,000/- to the complainant.
4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) thereafter shall carry penal interest @15% p.a., instead of 13% p.a. from the date of default, and interest @13% p.a, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

18.         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).
19.         Certified Copies of this order be sent to the parties, free of charge.
20.         The file be consigned to Record Room, after completion.

Pronounced.

30.08.2018

Sd/-

 [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

 [PADMA PANDEY]

 MEMBER

 

Rg