Chandigarh

StateCommission

CC/129/2020

Megrisoft Ltd. - Complainant(s)

Versus

Godrej Estate Developers Pvt. Ltd. - Opp.Party(s)

Ashok Paul Jagga Adv.

18 Apr 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

 

Complaint case No.	:	129 of 2020
Date of Institution	:	31.07.2020
Date of Decision	:	18.04.2022

 

Megrisoft Ltd., a company incorporated under the provisions of the Companies Act, 1956 with its Registered Office at SCO 80, Sector 47 D, Chandigarh through its authorized signatory Sh Vikram Joshi son of Sh S S Joshi, General Manager in company.

…… Complainant

V e r s u s

 

 

1. Godrej Estate Developers Pvt. Ltd., a company incorporated under the provisions of the Companies Act, 1956 having its Registered Office at Godrej Bhavan, 4th Floor, 4A Home Street, Fort, Mumbai 400001 India and one of its Office at Plot No.70, Industrial Area, Phase 1, Chandigarh 160002 through its Managing Director and/or Principal Officer.
2. Sh.Vivek Mohan Mittal,  Resident of House No. 3158, Sector -21-D, Chandigarh
3. Smt.Amita Vivek, Mittal Resident of House No. 3158, Sector -21-D, Chandigarh.
4. Sh.Arvind Mittal, Resident of House No.  123, Sector -21-A, Chandigarh
5. Smt.Vasundhara Arvind Mittal, wife of Sh.Arvind Mittal, Resident of House No.  123, Sector -21-A, Chandigarh.
6. Sh.Narinder Mohan Mittal, resident of House No.389, Sector -30, Chandigarh
7. Sh.Surinder Mohan Mittal, Resident of House No.  389, Sector -30, Chandigarh.
8. Sh.Jatinder Mohan Mittal, Resident of House No.  389, Sector -30, Chandigarh.
9. Sh.Rajesh Gupta, Resident of House No. 15, Timber market, Chandigarh.
10. Smt.Neelam Rajesh Gupta w/o Rajesh Gupta Resident of House No. 15, Timber market, Chandigarh.
11. Sh.Yogesh Gupta s/o Rajesh Gupta Resident of House No. 15, Timber market, Chandigarh
12. Smt.Venu Yogesh Gupta w/o Yogesh Gupta Resident of House No. 15, Timber market, Chandigarh
13. M/s Valco Industries Ltd. Plot no. 184, Industrial Areas, Phase -1, Chandigarh.

…..Opposite parties

 

BEFORE:              JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                             MRS.PADMA PANDEY, MEMBER

                             MR. RAJESH K. ARYA, MEMBER.

 

Present:-              Sh.Ashok Paul Jagga, Advocate for the complainant.

       Sh.Kunal Dawar, Advocate for opposite party no.1.

       Opposite parties no.2, 3, 9 to 12 exparte vide order      dated 29.06.2021.

       Opposite party no.13 already exparte vide order dated 11.01.2021.

       Complaint qua opposite parties no.4 to 8 dismissed      vide order dated 20.08.2021.

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

         

                   Whether a buyer can be compelled to accept the unit with a decreased area other than agreed upon? is the moot question to be answered in this complaint.

2.           The facts necessary for disposal of this complaint are that the Letter of Intent (LOI) dated 24.06.2011, Annexure C-2 was issued  by opposite party no.1-Godrej Estate Developers Pvt. Ltd. (in short the developer), in favour of the complainant for allotment of office space at “Godrej Eternia” situated at plot no.70, Industrial Area, Phase-1, Chandigarh (in short the project). Vide the said LOI, it was informed to the complainant that the developer is going to sell unit no.W-3D, having super built-up area of 1280 square feet, third floor of Tower No.West in the said project for a sum of Rs.1,29,92,000/- plus Rs.4 lacs towards car parking charges.
3.           Thereafter, Unit Buyer’s Agreement Annexure C-3 was executed between the parties on 27.12.2011 in respect of unit no.W-3D, third floor, having super built-up area of 1482 square feet and carpet area 956 square feet in commercial complex known at “Godrej Eternia, West Wing, third floor of Tower No.West alongwith 2 car parkings. It was agreed to between the parties vide Clause 4.2 that possession of the said unit will be delivered within a period of 36 months from the date of approval of the said project by the Chandigarh Administration, plus grace period of 6 months i.e. total 42 months. It was further agreed to between the parties vide clause 4.3 that in case of failure to deliver possession by the committed period, the developer shall pay penalty/compensation @Rs.5/- per square feet, per month of the super built-up area of the unit in question. Relevant clauses 4.2 and 4.3 of the agreement are reproduced hereunder:-

 

“4.2   The possession of the unit shall be handed over within 36 months of "Project Approval by Chandigarh administration with a grace period of 6 months (Tentative Completion Date"). Upon the Unit being ready for possession and occupation the Developer shall issue the Possession Notice to the Buyer of the Unit.

 

          Notwithstanding the above, the Developer shall be entitled to an extension of time from the Tentative Completion Date for issue of the Possession Notice, if the Completion of Construction of the said Unit or the part / portion of the Commercial Complex where the said Unit is situated is delayed on account of any of the following reasons -

 

1. Non-availability of steel, cement, other building materials, water or electric supply or labour, or
2. Any change in the Applicable Law or existence of any injunction, stay order, prohibitory order or directions passed by any Court, Tribunal, Body or Competent Authority; or
3. Delay in securing any permission, Approvals, NOC, sanction building plan, building completion and/or occupation certificate, water, electricity, drainage or sewerage connection from the Competent Authority for reasons beyond the control of the Developer; or
4. Force Majeure Event or any other reason (not limited to the reasons mentioned above) beyond the control of or unforeseen by the Developer, which may prevent, restrict, interrupt or interfere with or delay the construction of Commercial Complex; or

 

4.3     Subject to the provisions of Clause 4.2 herein above, in the event the Developer-fails or neglects to issue the Possession Notice on or before the Tentative Completion Date and/or on such date as may be extended by mutual consent of the Parties, then the Developer shall be liable to pay to the Buyer a compensation for the entire period of such delay computed at the rate of INR. 5/- (Rupees Five only) per month per square feet of the Super Built Up Area of the Unit…….”

 

4.           It is an undisputed fact that approval was granted by the Chandigarh Administration on 31.08.2009. Thus, the period of 42 months from 31.08.2009 are counted, it ends on 30.02.2013 but till date neither possession of the unit in question has been delivered to the complainant nor the money paid by it towards sale consideration has been refunded to it. However, it has been averred by the complainant that during the period intervening, it was discovered that area of the unit in question was decreased from 956 square feet to 880 square feet i.e. 76 square feet less and this deficiency/decrease in area was a substantial one. Apart from it, the original height of the unit from floor finish to RCC ceiling was 1240 feet, which was reduced to 11.40 feet i.e. less than one feet. It has been further averred that the said unilateral deduction in the area and height of the unit in question amounts to serious discrepancy in service by the developer. Through this complaint, the complainant is seeking refund of the amount of Rs.1,38,42,183/- alongwith with interest @18% p.a. from the respective dates of deposits;  Rs.15 lacs as compensation for mental agony and harassment; as also cost of litigation to the tune of Rs.2 lacs.
5.           The complaint has been contested by the developer on the grounds inter alia:-
   1. that the complaint is bad for misjoinder of parties;
   2.  that the complainant is not a consumer, as the unit is a commercial one;
   3. that in the face of existence of arbitration clause in the agreement, the complainant needs to be relegated to an arbitrator;
   4. that the complaint filed is time barred, as possession of the unit had been offered to the complainant, as far as back vide letter dated 28.07.2015, Annexure R-3;
   5. that this  Commission did not vest with territorial jurisdiction to entertain this complaint;
   6. that as per payment plan Annexure III attached with the agreement total sale consideration of the unit was fixed at Rs.1,45,03,060/-, yet, a discount of Rs.22,25,637/-  was given to the complainant;
   7. that compensation to the tune of Rs.6,69,600/- stood paid to the complainant towards delay in offering possession of the unit in question;
   8. that the unit in question is complete in all respects but the complainant is not coming forward to take over possession of the same;
6.           On merits, it has been admitted that LOI, Annexure C-2, was issued  on 24.06.2011 and buyer’s agreement was executed between the parties on 27.12.2011. However, it has been stated that in view of clause 6.2 of the agreement, it was agreed to between the parties that there may be variation/changes at any stage during the construction period and buyers have to accept the same. Further reliance has been placed on clause 5.4 of the agreement, on the basis of which, holding charges have been claimed. It is further the case of the developer that possession letter dated 28.07.2015, Annexure R-3 alongwith demand notice as per payment plan opted by the complainant was issued to it but it failed to deposit the requisite amount and also did not come forward to take over possession of the said unit, as such, it is not entitled to refund of the amount, as prayed for by it.
7.           As none put in appearance on behalf of proforma opposite parties no.2, 3, 9 to 13, they were proceeded against exparte by this Commission. However, complaint against proforma opposite parties no.4 to 8 was dismissed vide order dated 20.08.2021, on the statement given by Counsel for the complainant.
8.           During pendency of this complaint, the developer moved application bearing no.89 of 2022 for placing on record occupation certificate dated 09.06.2015, Annexure R-6 and photographs of the project, Annexure R-7. We have perused the said documents. The said application is allowed and the documents, Annexures R-6 and R-7 are taken on record. This application stands disposed of, accordingly.
9.           In the rejoinder filed, the complainant reiterated all the averments contained in the complaint and controverted those of written version filed by the developer.
10.           The contesting parties led evidence in support of their cases.
11.           We have heard the contesting parties and have gone through the evidence and record of the case, including the written arguments, very carefully.
12.           First, we will deal with the objection taken by the developer to the effect that the complainant did not fall within the definition of ‘consumer’, as the unit purchased is a commercial one. It may be stated here that the complainant in the rejoinder filed has clarified that the unit in question was purchased with a view to shift its business from Sector 47 in the said unit, for its personal use only. The definition of a consumer has been defined under Section (2) (7) of the Act, 2019 as under:-

 

‘....(7) "consumer" means any person who—

 

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

 

(ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.…’

 

The explanation to section 2 (7) stipulates that “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment. In Tosoh India Pvt. Ltd. (Formerly Lilac Medicare Pvt. Ltd.) Vs. Ram Kumar & 3 Ors., Revision Petition No. 2833 of 2018, decided on  06 Jan 2020, the Larger Bench of the Hon’ble National Commission has laid down following preposition of law, under which, consumer complaints are admissible in respect of commercial units:-

“…….(a)     Only a person engaged in large scale commercial activities for the purpose of making profit is not a consumer;

(b)     There should be a direct nexus between the large scale commercial activities in which a person is engaged and the goods purchased or the services hired or availed by him, before he can be excluded from the purview of the term ‘consumer’.  Therefore any goods purchased or the services hired or availed even by a person carrying on business activities on a large scale for the purpose of making profit will not take him out of the definition of the term ‘consumer’, if the transaction of purchases of goods or hiring or availing of services is not intended to generate profit through the large scale commercial activity undertaken by him and does not contribute to or form an essential part of his large scale commercial activities.

(c)     What is crucial for the purpose of determining whether a person is a ‘consumer’ or not is the purpose for which the goods were purchased or the services were hired or availed and not the scale of his commercial activities.

 (d)    The explanation below Section 2(1)(d) of the Consumer Protection Act is clarificatory in nature

(e)     A person purchasing goods or hiring or availing services for a consideration, for the purpose of earning his livelihood by way of self-employment is a ‘consumer’ within the meaning of Section 2(1)(d) of the Consumer Protection Act.

 (f)     It is not necessary that a person should be working alone in the commercial activity undertaken by him for earning his livelihood and his family members and / or a few employees can assist him in his commercial venture.  Such assistance by his family members or by a few employees engaged by him does not convert his business or profession into a commercial activity on a large scale, for the purpose of making profit and therefore, does not exclude him from the purview of the term ‘consumer’.”

Further, under similar circumstances, in Sunil Kohli and anr. Vs. M/s Purearth Infrastructure Ltd., Civil Appeal nos.9004-9005/2018, decided on 01.10.2019, the Hon’ble Supreme Court while interpreting the legal term of consumer, has categorically observed as under:-

 “As laid down by this Court in Laxmi Engineering Works, the explanation to Section 2(1)(d) of the Act clarifies that “in certain situations, purchase of goods for “commercial purpose” would not yet take the purchaser out of the definition of expression ‘consumer’. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self-employment, such purchaser of goods is yet a ‘consumer’”. This Court went on to observe that what is “Commercial Purpose” is a question of fact to be decided in the facts of each case.

To similar effect are the observations of this Court in Cheema Engineering Services wherein it was observed in para 6 thus:

“6. In other words, the Explanation excludes from the ambit of commercial purpose in sub-clause (i) of Section 2(1)(d), any goods purchased by a consumer and used by him exclusively for the purpose of earning his livelihood by means of self-employment. Such purchase of goods is not a commercial purpose. The question, therefore, is whether the respondent has been using the aforesaid machine for self-employment? The word “self-employment” is not defined. Therefore, it is a matter of evidence. Unless there is evidence and on consideration thereof it is concluded that the machine was used only for self- employment to earn his livelihood without a sense of commercial purpose by employing on regular basis the employee or workmen for trade in the manufacture and sale of bricks, it would be for self-employment. Manufacture and sale of bricks in a commercial way may also be to earn livelihood, but “merely earning livelihood in commercial business”, does not mean that it is not for commercial purpose. Self-employment connotes altogether a different concept, namely, he alone uses the machinery purchased for the purpose of manufacture by employing himself in working out or producing the goods for earning his livelihood.

‘He’ includes the members of his family. Whether the respondent is using the machine exclusively by himself and the members of his family for preparation, manufacture and sale of bricks or whether he employed any workmen and if so, how many, are matters of evidence. The burden is on the respondent to prove them. Therefore, the Tribunals were not right in concluding that the respondent is using the machine only for self-employment and that, therefore, it is not a commercial purpose. The orders of all the Tribunals stand set aside. The matter is remitted to the District Forum. The District Forum is directed to record the evidence of the parties and dispose of it in accordance with law within a period of six months from the date of the receipt of this order.” The issue therefore is whether the evidence on record is suggestive or indicative of the fact that the premises in question were booked by the complainants with the intention of self-employment or self-use.

The affidavit of evidence as quoted above clearly points that the complainants wanted to dispose of the property in DENMARK and wanted to come down to Delhi to start a business. It is for this purpose that the premises in question were booked. The evidence also discloses that the Complainant no.1 was not employed any more in DENMARK and as a matter of fact, he was serving RED CROSS, a charitable organization. In the circumstances, it cannot be ruled that the case of the Complainants would not come within the definition of “consumer” as defined under the provisions of the Act.”

Thus, if in the present case, the complainant has purchased the unit in question in order to shift its business therein, as such, in no way it can be said that the complainant is not a consumer. In this view of the matter, objection taken by the developer in this regard stands rejected. 

13.           Now coming to the objection raised with regard to territorial jurisdiction of this Commission, it may be stated here that it is settled law that even an infinitesimal fraction of a cause of action will be part of the cause of action and confer jurisdiction on the Court/Tribunal/Fora within the territorial limits of which that occurs. In the present case, it is evident that Letter of Intent dated 24.06.2011, Annexure C-2 was issued by the developer from its office at plot no.70, Industrial Area, Phase-1, U.T., Chandigarh. Even the Unit Buyer’s agreement date 27.12.2011, Annexure C-3 was also executed between the parties at Chandigarh. Furthermore,  Letter dated 10.01.2014, Annexure C-4 was also issued by the developer from its another Chandigarh office located at SCO 153-155, FF, Madhya Marg, Sector 9-C, Chandigarh.  Thus, from the documents, referred to above, it can easily be said that the developer was actually and voluntarily residing and carrying on its business, from its branch offices at Chandigarh and personally work for gain thereat. As such, objection taken in this regard stands rejected. 
14.           The next question that falls for consideration is, as to whether, in the face of existence of Arbitration clause in the agreement aforesaid, jurisdiction of this Commission is barred, as has been contended by the developer?  It may be stated here that this issue has already been set at rest by the larger Bench of the Hon’ble National Commission in a case titled as  Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, wherein, vide order dated 13.07.2017, it has been held that an Arbitration Clause in the Agreements between the buyer and the Builder cannot circumscribe the jurisdiction of a Consumer Fora notwithstanding the amendments made to Section 8 of the Arbitration Act. Civil appeal bearing No.23512-23513 of 2017 and  Review Petition (C) Nos.2629-2630 of 2018 filed by the builder, before the Hon’ble Supreme Court of India, also stood dismissed vide orders dated 13.02.2018 and 10.12.2018 respectively. As such, objection taken in this regard stands rejected.
15.           As far as objection taken by the developer to the effect that this complaint is bad for misjoinder of parties, it may be stated here that we have gone through the record of the case and found that almost all the documents mentioned below have been issued by the developer-Godrej Estate Developers Private Limited/opposite party no.1 from its Chandigarh Office:-
    1. Letter of Intent dated 24.06.2011, Annexure C-2,
    2. Unit Buyer agreement date 27.12.2011, Annexure C-3 and
    3. Letter dated 10.01.2014, Annexure C-4

 Thus, in our considered opinion, once it is proved on  record that the aforesaid documents were issued/executed by Godrej Estate Developers Private Limited/opposite party no.1 in  favour of the complainant, then in no way it can be said that the complaint is bad for misjoinder of opposite party no.1 as necessary party to this complaint. Plea taken by the developer in this regard stands rejected.

16.           There is no dispute with regard to the fact that initially, Letter of Intent (LOI) dated 24.06.2011, Annexure C-2 was issued by the developer, in favour of the complainant for allotment of office space at “Godrej Eternia” situated at plot no.70, Industrial Area, Phase-1, Chandigarh (in short the project), vide which it was informed that the developer is going to sell unit no.W-3D, having super built-up area of 1280 square feet, third floor of Tower No.West in the said project for a sum of Rs.1,29,92,000/- plus Rs.4 lacs towards car parking charges.  It is also an admitted  fact that thereafter, Unit Buyer’s Agreement Annexure C-3 was executed between the parties on 27.12.2011 in respect of unit no.W-3D, third floor, having super built-up area of 1482 square feet and carpet area 956 square feet in commercial complex known at “Godrej Eternia, West Wing, third floor of Tower No.West alongwith 2 car parking.  Perusal of these documents clearly reveal that super built-up area of the area allocated to the complainant was 1482 square feet and carpet area was 956 square feet. This fact is also duly mentioned in schedule L of the said agreement. Even the same has also been described in the buyer’s agreement in different clauses.
17.           Now coming to the offer of possession letter dated 28.07.2015, Annexure R-3, which infact has been disputed by the complainant, on the ground that the same has never been received by it. In this letter, no area of the unit in question has been mentioned. Relevant contents of the said letter Annexure R-3 is reproduced hereunder:-

 

“…… Subject: Letter of Intimation for Registration and Possession of your unit No.(W-3D) in Godrej Eternia, Chandigarh

 

Dear Mr. Mohnesh Kohli,

 

Greetings from Godrej Properties Limited!

 

It gives us immense pleasure to inform you that the unit booked by you at Godrej Eternia Chandigarh is now ready for registration and possession.

 

Please find attached the demand notes for the balance amount payable. We request you release this payment within 45 days from the date of this letter.

 

ATTACHED DEMAND NOTES;

 

Components	Amount Payable
Basic Sale Price balance inclusive of applicable taxes (Rs)	23,21,183.00
Extra Charges inclusive of applicable taxes (Rs)	9,29,214.00
Total Due (Rs)	32,50,397.00

 

Details of above dues enclosed on pages 3 & 4 below.

 

Please send us the TDS certificate (if pending) immediately, as it will be important to account for it before registration.

 

Further Process:

 

1. Please find attached the final payment details payable towards your unit as outlined above. The possession and registration can be done once all the dues are cleared, including all TDS certificates.

 

2.  In case of bank loan, you are also requested to obtain an NOC from your bank and send it to us along with the final payment to enable us handover premises and register the Sale Deed in your favor.

 

3. Post completion of your outstanding dues, we will commence the handover process. You will find below the contact details of our handover team and are requested to call them to take a prior appointment for possession inspection, on completion of other formalities.

 

Senior Executive-Handover Aditya Bharati

Mobile E-mail 9592666627

aditya.bharati@godrejproperties.com

 

You are required to clear dues and take possession of your premises within 45 days from the date of this letter. If for any reason, you are unable to complete the handover process within 45 days from the date of this letter, a holding charge of Rs.50,000/- (Rupees fifty thousand only) per month will be applicable to your account, as well as applicable interest rate on the outstanding amount.

 

4.    Simultaneous to realization of your final payment, we will intimate you on your registration date and timings. Kindly note that it is important that you register the property on the intimated date, failing which Godrej Properties Ltd will not be responsible for any increase in stamp duty, increase in registration charges, delay in the registration process or other implications if any.

 

          Thank you.

          For Godrej Properties Ltd.………..”

 

A bare perusal of Annexure R-3 transpired that neither there is any reference with regard to obtaining of occupation certificate from the competent authority nor any area of the unit is mentioned therein. Counsel for the complainant submitted that infact this letter has never been received by the complainant. We have considered this contention and are of the considered view that the onus to prove the delivery of the said letter upon the complainant is on the developer/opposite party no.1 but it failed to do so, as there is no evidence in the shape of any postal receipt etc. on record. Even this much has not been proved, as to by which mode, the said letter stood posted to the complainant. In this view of the matter, no reliance can be placed upon letter dated 28.07.2015, Annexure R-3, as its authenticity is doubtful. It is therefore held that the said letter was never served upon the complainant. Thus, in the face of non-proving of the fact that the said possession letter was ever served/delivered to the complainant, mere placing on record occupation certificate dated 09.06.2015, Annexure R-6 and photographs of the project, Annexure R-7, are of no help to the developer. 

18.           There is a statement of account Annexure C-5 pertaining to the period from 01.01.2008 to 30.08.2019, in respect of the unit in question, which was delivered by the developer to the complainant. Counsel for the complainant submitted that it was from this statement of account that the complainant came to know that demand was raised by the developer in respect of the unit in question. It was only thereafter, that the complainant appointed architect namely Arun Mittal and Associates  to visit the site and measure the area of the unit. The said architect gave his report dated 16.01.2021, Annexure C-9, which showed that the area of the unit in question has been reduced drastically to 860.15 square feet from 956 square feet and also its height from floor finish to RCC ceiling has also been reduced by 1 feet. Relevant part of the said report is reproduced hereunder:-

 

“…..TO WHOM IT MAY CONCERN

 

CARPET AREA SITE REPORT

 

This is certify that 'The Existing Carpet Areas' at Unit No. W – 3D , Tower A, Third Floor of at Godrej Eternia, Plot No. 70, Industrial Area, Phase 1, Chandigarh of Commercial Usage Floor' as per my personal Visit and measurements are as follows:

 

Main Internal Area for Carpeting/Usage (After Plastering and Finishing of Walls).	=29’-8 x 29 -3” =867.85 Sq.Ft .
Deductions.	=(1.60+0.60+1.44+0.40+2.0+1.66) =(7.70 Sq. Ft.)
Effective Carpet Area Excluding RCC Columns extending on Floor Areas	= 860.15 Sq. Ft.
Clear Height from Floor Finish to RCC Ceiling	=11’ -2” (After Fixing of Floor Tiles).

 

For Arun Mittal And Associates

 

(ARUN MITTAL)

ARCHITECT & VALUER

Dated 16 January, 2021…”

 

Thus, the complainant has proved its case that the area of the unit in question has unilaterally been decreased, in the manner referred to above, which was not suitable to it, for the purpose it had purchased the unit.  The developer was thus deficient in providing service and also adopted unfair trade practice by doing so, which act needs to be deprecated.

19.           Now the question arises, as to whether, the complainant is entitled to refund of the amount paid or not? It is significant to mention here that the unit in question was booked as far as back on 24.06.2011 and now it is April 2022. Already a period of more than 10 years have elapsed and still the complainant is empty handed despite the fact that it has already paid an amount of Rs.1,38,42,183/-. It is well settled law that non-delivery of possession of plots/units in a developed project by the promised date or within a reasonable period from the date of booking is a material violation on the part of a builder and in those circumstances, the purchaser is well within his/her right to seek refund of the amount paid. It was also so said by the Hon’ble National Commission in Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No.1814 of 2017 decided on 05.07.2018. The above view taken is further supported by the principle of law laid down by the Hon’ble Supreme Court of India in the case titled as Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, Civil Appeal No.12238 of 2018, decided on 02.04.2019 and also  in M/s Fortune Infrastructure Versus Trevor D’ Lima & Ors. (2018) 5 SCC 442. In the present case also, there has been an inordinate delay in the matter. Thus, under these circumstances, if we order refund of the amount paid alongwith interest from the respective dates of deposits to the complainant, that will meet the ends of justice.
20.            Now, we will deal with the question, as to what rate of interest should be awarded to the complainant, while ordering refund of amounts paid, against the unit in question. It may be stated here that compensation cannot be uniform and can best be illustrated by considering cases where possession is being directed to be delivered and cases where only monies are directed to be returned. A similar question, as to what rate of interest should be granted while ordering refund of the deposited amount, in case, the builder fails to deliver actual physical possession of units/plots, by the stipulated date or within reasonable period, fell for determination before the Hon`ble Supreme Court of India in H.U.D.A. Vs. Neelam Sharma, Civil Appeal no.3417 of 2003 decided on 18.08.2004. In the said case, the Hon`ble Supreme Court held that in case of refund of amount, the Interest Act would apply and 12% interest is to be granted from the date of amounts deposited till repayment. The Hon’ble National Commission also, in Alok Kumar Vs. M/s. Golden Peacock Residency Private Limited & Anr., Consumer Case No. 1315 of 2018, decided on 06 Sep 2019; Anil Kumar Jain & Anr  Vs. M/s. Nexgen Infracon Private Limited (A Mahagun Group Company), Consumer Case No. 1605 of 2018, decided on 23^rd Dec 2019;  and recently in Dr. Manish Prakash Vs. M/s. Chd Developers Ltd., Consumer Case No. 1527 of 2018, decided on 14.09.2021, awarded interest @12% p.a. to the complainants, on the amounts to be refunded to them from the respective dates of deposits. It is therefore held that if interest @12% p.a. is awarded on the amounts to be refunded to the complainant that will meet the ends of justice.
21.           Now we will deal with the objection taken to the effect that the complaint filed is beyond limitation, it may be stated here that since it has been held above that possession of the unit in question has not been actually delivered to the complainant by the committed date and at the same time, the delivery of letter dated 28.07.2015, Annexure R-3 (vide which the developer has claimed that possession has been offered), has not been proved to be served upon the complainant, as such, we are of the considered view that the objection taken with regard to limitation is not sustainable 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),  wherein it was held that when possession of the units/plots is not offered, there is a continuing cause of action, in favour of the allottee/buyer.

                   Even otherwise, if we take period of 2 years from the date of issuance of statement of account dated 30.08.2019, Annexure C-5, even then this complaint having been filed on 31.07.2020 is within limitation. As such, objection taken by the developer in this regard is rejected. Consequently, application-bearing no.766 of 2020 filed by the developer for dismissal of the complaint on this ground, being devoid of merit stands dismissed and the said application is disposed of accordingly

22.           For the reasons recorded above, this complaint is partly accepted, with costs. Opposite party no.1-Godrej Estate Developers Pvt. Ltd., is directed as under:-

1. To refund the entire amount of Rs.1,38,42,183/- paid by the complainant alongwith interest @12% p.a. from the respective dates of deposits onwards within a period of 30 days from the date of receipt of a certified copy of this order, failing which, the said amount shall further carry penal interest @15% p.a. from the date of default, till realization.

                   It is made clear that any amount stood refunded/paid to the complainant in the shape of delay compensation or otherwise, shall be deducted accordingly, by the developer.

2. To pay cost of litigation to the tune of Rs.50,000/- to the complainant within a period of 30 days from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.50,000/- shall carry interest @9% p.a. from the date of passing of this order, till realization.

23.           However, it is made clear that in case the complainant has availed loan from any bank/financial institution for making payment towards the unit in question, it shall  have the first charge of the amount  due to be paid by the complainant, out of the awarded amount.
24.           Complaint against proforma opposite parties no.2 to 13 is dismissed with no  order as to cost.
25.           Certified copy of this order be sent to the parties, free of cost and the file be consigned to Record Room, after completion.

Pronounced

18.04.2022

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

(PADMA PANDEY)

          MEMBER

 

 

Sd/-

 (RAJESH K. ARYA)

MEMBER

Rg.