1. The present Appeal has been filed against the Order dated 09.02.2018 passed by the State Consumer Disputes Redressal Commission Punjab, Chandigarh (hereinafter to be referred to as “State Commission”), whereby the Complaint filed by Mrs. Harjit Kuar Sidhu (hereinafter referred to as the Complainant) was allowed and Krishan Kumar Aggarwal and Kamal Kishore Gupta, Directors of M/s. Omaxe Chandigarh Extension Developers Pvt. Ltd., were directed to refund the amount of ₹46,05,907.42P, alongwith interest @12% per annum from the respective various dates of payment till realization to the Complainant.  They were also directed to pay ₹50,000/- towards compensation for mental agony and harassment to the Complainant.

 

2. Brief facts of the case are that vide allotment letter dated 19.04.2010, the Complainant was allotted a Plot No. 643 measuring 297.04 sq. yard in the Residential Housing Project known as ‘Omaxe Chandigarh Extension’ to be developed by M/s. Omaxe Chandigarh Extension Developers Pvt. Ltd. (earlier known as M/s. Golden Peak Township Private Limited), (hereinafter referred to as the Appellant Builder) for a total sale consideration of ₹46,24,717.42Ps.  As per terms of the Allotment letter, the Appellant Builder was to complete the development of the plot/project within 18 months or within an extended period of six months from the date of signing the allotment letter, meaning thereby that the possession of the developed plot was to be delivered by 19.04.2012.  Despite depositing a sum of ₹46,06,845/-, i.e., 95% of the sale consideration by the Complainant, the Appellant Builder failed to deliver the possession of the Plot within stipulated period.  The Complainant sent e-mail on 20.09.2013 regarding delay in delivery of possession, followed by reminder dated 26.09.2013, but no satisfactory reply was ever given by the Appellant Builder. However, surprisingly, on 16.12.2015, instead of delivering possession of the Plot, in question, the Appellant Builder unilaterally changed the Plot and re-allotted some other plot (No.562/P-2) of a smaller size measuring 282.45 sq.yds. to the Complainant, without her prior approval or consent. Without entering into any fresh Agreement, the Appellant Builder demanded ₹2,09,073/- from the Complainant, which was duly deposited by her on 06.01.2017.  It was further averred that layout plans submitted by the Appellant Builder were approved by the competent authorities with effect from 09.07.2010 to 10.06.2014 and the zoning plans were approved between 05.08.2011 to 26.03.2015. Environment Clearance to the said project of the Appellant Builder was granted, vide letter dated 25.03.2015, subject to compliance of certain terms and conditions. However, the Appellant Builder has not got any certificate from the Punjab Pollution Control Board with regard to installation of STP before the Project was commissioned for operation. Even as on 24.09.2014, they did not have permanent electricity connection issued by the Punjab State Power Corporation Limited, as only temporary connection was issued to them on 24.09.2014. It was further averred that the total area of the said project was 592.463 acre, whereas GMADA has issued only Partial Completion Certificate dated 10.07.2015 with respect to selected area of 178.78 acre, which forms only 30% of the total area of the said Project.  Consequently, the Complainant served legal notice upon the Opposite Parties on 20.05.2017, seeking refund of the amount deposited by her, along with interest and compensation, but in vain. Feeling aggrieved, the Complainant filed a Consumer Complaint alleging deficiency in service and unfair trade practice on the part of the Appellant Builder, Mr. Krishan Kumar Aggarwal and Mr. Kamal Kishore Gupta, both Directors of the Appellant Builder, before the State Commission.  

 

3. The  Appellants contested the Complaint before the State Commission by submitting that that the plot, in question, was purchased by the complainant for commercial purpose, in order to earn profit by reselling the same. As per Clause 47 of the allotment letter, Ex.C-1, this Commission has no jurisdiction to deal with this complaint, as the courts at Punjab and Delhi are having the jurisdiction to decide this matter. It was further contended that the development of the project, in question, was based on timely payments made by the allottees, including the complainant. However, the complainant failed to pay the instalments regularly. The re-allotment of other plots to the allottees, including the complainant, was with a view to shift them to different locations, which were in advanced developed stage and most of the allottees had accepted the change/re-allocation of plots. The complainant also did not object to such change, which was intimated to her, vide letter dated 16.12.2015. The said plot is ready for possession. All the statutory approvals have been duly applied for and all the conditions and norms of development and constructions are duly adhered to. All the basic facilities, amenities like water, electricity etc. have been provided at the site, upon which the re-allotted plot falls. Thus, no delay in delivery of possession can be attributed to the Opposite Parties. The complainant is not entitled to the refund of the amount or any other relief, as sought in the complaint, and the complaint is liable to be dismissed.  

 

4. After hearing both the parties and perusal of material on record, the State Commission allowed the Complaint in above terms by observing as under:-

“9. Admittedly, plot No.643, measuring 297.04 was earlier allotted to the complainant, as per allotment letter dated 19.04.2010, Ex.C-1. The total cost of the said flat was ₹46,24,717.42. As per Clause 29 of the allotment letter, Ex.C-1, pertaining to earlier allotted plot, the Company was to complete the development of the plot/project within 18 months or within an extended period of six months from the date of signing the allotment letter, subject to force majeure circumstances. The said allotment letter was signed/executed on 19.04.2010 and it means that the development of the plot/project was to be completed by 19.04.2012. However, the opposite parties failed to complete the development work within that period, so as to deliver possession of the plot, in question, to the complainant. The re allotment of another plot, vide letter dated 16.12.2015, Ex.C-5, was due to inability of the opposite parties to deliver possession of earlier allotted plot to the complainant. No prior consent was obtained from the complainant before doing that. Be that as it may, the fact remains that the opposite parties failed to deliver the possession of the said plot to the complainant within the stipulated period. Perusal of letter dated 10.07.2015, Ex.OP-1/2, issued by GMADA shows that only Partial Completion Certificate was issued in favour of the opposite parties. The opposite parties failed to produce any evidence on record that they have obtained all the necessary permissions/approvals from the competent authorities, before launching their above said project. 

 

10. All the above facts and circumstances clearly prove that the opposite parties have not complied with the provisions of the Punjab Apartment and Property Regulation Act, 1995 (in short, “PAPRA”). As per Section 3 (General Liabilities of Promoter) of the PAPRA, the opposite parties were required to make full and true disclosure of the nature of his title to the land, on which such colony is developed or such building is constructed or is to be constructed, make full and true disclosure of all encumbrances on such land, including any right, title, interest or claim of any party in or over such land. They were also required to give inspection on seven days’ notice or demand of the layout of the colony and plan of development works to be executed in a colony as approved by the prescribed authority in the case of a colony. However, the opposite parties failed to comply with Section 3 of the PAPRA. 

 

11. As per section 5 (Development of land into Colony) of PAPRA, the opposite parties were liable to obtain permission from the competent authority for developing the colony, but they failed to produce on record any such permission obtained from the competent authority. So, they also violated Section 5 of PAPRA. 

 

12. As per Section 9 of PAPRA, every builder is required to maintain a separate account in a scheduled Bank, for depositing the amount deposited by the buyers, who intend to purchase the plots/flats, but no evidence has been led on the record by the opposite parties to prove that any account has been maintained by them in this respect. As such, the opposite parties also violated Section 9 of the PAPRA.

 

13. The Consumer Protection Act came into being in the year 1986. It is the benevolent piece of legislation to protect the consumers from exploitation. The spirit of the benevolent legislation cannot be overlooked and its object is not to be frustrated. The complainant made payment of substantial amount to the opposite parties, with the hope to get the possession of the plot in a reasonable period. The circumstances clearly show that the opposite parties made false statement of facts about the goods and services i.e. allotment of plot and development in a stipulated period and ultimate delivery of possession. The act and conduct of the opposite parties is a clear case of misrepresentation and deception, which resulted in the injury and loss of opportunity to the complainant. Had the complainant not invested her money with the opposite parties, she would have invested the same elsewhere. There is escalation in the price of construction also. The builder is under obligation to deliver the possession of the plot/unit/flat within a reasonable period. The complainant cannot be made to wait indefinitely to get possession of the plot booked. From the facts and evidence brought on the record of the complaint, it is clearly made out that the opposite parties i.e. builder knew from the very beginning that they had not complied with the provisions of the PAPRA and Rules and would not be able to deliver the possession within the stipulated period, thus by misrepresenting induced the complainant to book the plot, due to which she suffered mental agony and harassment. The builder is bound to compensate for the loss and injury suffered by the complainant for failure to deliver the possession, so has been held in catena of judgments by the Hon’ble Supreme Court and the Hon’ble National Commission. To get the relief, the complainant has to wage a long drawn and tedious legal battle. As such, the complainant was at loss of opportunities. In these circumstances, the complainant is entitled to the refund of the amount deposited by him, along with interest and compensation.”

 

5. Feeling aggrieved by the Order dated 09.02.2018 passed by the State Commission, the Appellants have filed the present Appeal before this Commission.

 

6. We have heard Mr. Soumyajit Pani, learned Counsel for the Appellant, Mr. Mukund Gupta, learned Counsel appearing for the Respondent, perused the material available on record and have given a thoughtful consideration to the various pleas raised by them.   

 

7. Mr. Soumyajit Pani, learned Counsel appearing on behalf of the Appellants submitted that the State Commission has erred in not considering and deciding that the Complaint is barred by time since the possession of the Plot was to be handed over by 19.04.2012 where as the Complaint was filed only on 15.06.2017; although Re-allotment of plot was done for the benefit of the Complainant yet the Complainant was more interested in refund, which proves that she took the plot for purpose of investment as such she did not fall under the definition of Consumer as defined u/s 2(d) of the Act; the State Commission further erred in awarding the interest @12% on refund amount, which is on the higher side and against the agreed terms and condition no. 29(d) of Allotment Letter, according to which in case of force majeure reason or for reasons beyond the control of the Company, the whole or part of the project is abandoned or abnormally delayed, no other claim will be preferred except that Allottee’s money will be refunded; the State Commission further erred in appreciating the fact that due to Arbitration Clause in Allotment letter the Consumer Fora does not have jurisdiction to entertain and decide the dispute between the Parties; as per clause 7 of the Allotment letter, it was made clear that the Company shall not be held liable for any delay in offer of possession if the delay is caused by any competent authority or due to delay in sanction of layout/zoning plans/grant of completion certificate/occupation certificate.  In view of above submissions, it was prayed that the Appeal be allowed and the impugned Order passed by the State Commission be set aside. 

 

8. Per contra, Mr. Mukund Gupta, learned Counsel for the Respondent, supported the Order passed by the State Commission as according to him the State Commission had passed a well-reasoned and justified order, which is based on a correct and rightful appreciation of evidence and material available on record and does not call for any interference.

 

9. As far as the contention of the Appellants that the Complaint is barred by limitation is concerned, undisputedly, the Plot was booked in the year 2010 and till the date of filing of the Complaint, the Possession of the Plot was not handed over to the Complainant.  Consequently, there was continuing cause of action till the date of filing of the Complaint before the State Commission and the Complaint was filed within time before the State Commission.  

 

10. The Hon’ble Supreme Court in M/s Emaar MGF Land Limited vs. Aftab Singh – I (2019) CPJ 5 (SC), has laid down the law that an Arbitration clause in the Agreement does not bar the jurisdiction of the Consumer Fora to entertain the Complaint. Hence, the objection raised by the Appellants that the clause of Arbitration bars this Commission from entertaining the Complaint is unsustainable.

 

11. The contention of the Appellants that although they had Re-allotted the Plot for the benefit of the Complainant and the Plot is ready for possession, yet the State Commission erred in directing the Appellants to refund the entire amount alongwith compensation, is rejected in view of the ratio of the Judgment passed by this Commission in Emaar MGF Land Ltd. & Ors.  vs. Amit Puri [II (2015) CPJ 568 NC], wherein it has been 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 alternate plot. Clause 8 comes into play only when an allottee is prepared to wait for possession. Nonetheless, the waiting period cannot be endless. At the cost of repetition, we may reiterate that in the event of a 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.”  In the instant case, since the Complainant had sought refund of the amount alongwith compensation due to non-delivery of the possession of the Plot within stipulated period by the Appellants, the State Commission has rightly held that the Complainant / Respondent is entitled for refund of ₹46,05,907.42P alongwith interest and compensation by observing as under:- 

“The complainant alleged that she deposited a total sum of ₹46,06,845/- towards the price of the said plot. It seems that all the receipts have not been produced by the complainant, as receipts Ex.C2 (colly.) show the deposit of only ₹30,34,358/-. However, the opposite parties have produced on record Statement of Account, Ex.OP-1/1, which pertains to re-allotted plot No.562/P2. The basic sale price of the said plot is mentioned therein as ₹43,21,485/- and after adding additional cost of ₹2,84,366.72P, net payable amount was shown as ₹46,05,851.72P. Against that amount, the cleared amount is shown as ₹45,16,740.42P and after adding Credit Note amount of ₹89,112/-, the total cleared amount is shown as ₹46,05,852.42P. A sum of ₹55/- has been shown towards Misc. Receipt. The total of all those amounts comes to ₹46,05,907.42P. Thus, the complainant is entitled to the refund of this amount, along with interest and compensation.”

 

12. However, we find some force in the contention of the Appellants that the rate of interest, i.e., 12% awarded by the State Commission is on the higher side.  The Hon’ble Supreme Court in “Prateek Infra Projects India Pvt. Ltd. vs. Nidhi Mittal and Anr.” [Civil Appeal No. 2504/2020 Order dated 05.06.2020], has scaled down the rate of interest awarded by this Commission to 9% per annum.  Similar view was also taken by the Hon’ble Supreme Court in Order dated 11.01.2021 passed in Civil Appeal No. 62/2021 entitled “M/s. Nexgen Infracon Pvt. Ltd. vs. Manish Kumar Sinha & Anr.” and Order dated 01.10.2021 passed in Civil Appeal No. 5109/2021 entitled “M/s. Nexgen Infracon Pvt. Ltd. vs. Sanjay Dhall”.   In view of above-cited Judgments passed by the Hon’ble Supreme Court, we are of the considered view that the Complainant is entitled for refund of ₹46,05,907.42P alongwith interest @9% p.a. with effect from the respective dates of deposit till the date of realisation.

 

13. Since the compensation in the form of interest @9% p.a. has already been awarded, the Complainant shall not be entitled for any other compensation, in view of the Judgment passed by the Hon’ble Supreme Court in “DLF Homes Panchkula Pvt. Ltd Vs. D.S. Dhanda, II (2019) CPJ 117 (SC)”, wherein it is observed that when interest is awarded by way of damages awarding additional compensation is unjustified.

 

14. For the reasons stated hereinabove, Impugned Order dated 09.02.2018 passed by the State Commission is modified to the extent that the Appellants are directed to refund to the Respondent/Complainant a sum of ₹46,05,907.42P alongwith interest @9% p.a. from the respective dates of deposit till the date of realisation.  

 

15. In compliance of the Order dated 25.07.2018, the Appellants had deposited a sum of ₹76,18,829/- (₹45,16,740.42 being principal amount + ₹31,02,089.34 being interest @9% p.a.) with this Commission on 20.08.2018.  The Appellants had calculated the amount of ₹76,18,829/- by taking ₹45,16,740.42P as the principle amount, whereas the Appellants are obligated to refund ₹46,05,907.42P alongwith interest.  Consequently, the Appellants are directed to pay the balance amount of ₹89,167/- (the difference of ₹46,05,907.42P and ₹45,16,740.42P) alongwith interest @9% p.a. w.e.f. 06.01.2017, i.e., the date of the last payment made to the Appellants, till the date of realisation, to the Respondent/ Complainant within two weeks from today.

 

16. The Registry is directed to release the amount of ₹76,18,829/- alongwith accrued interest, if any, in favour of the Respondent/Complainant within a week from today.

 

17. The Appeal stands disposed off in above terms.  Pending application, if any, also stands disposed off.