Chandigarh

StateCommission

CC/23/2016

Jitender Singh Saraha - Complainant(s)

Versus

M/s DLF Homes Panchkula Private Limited - Opp.Party(s)

Suraj Bhan Hooda, Adv.

10 Jun 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	23 of 2016
Date of Institution	:	18.01.2016
Date of Decision	:	10.06.2016

 

Jitender Singh Saraha, aged 48 years, son of Sh.Dalip Singh, R/o D-903, Happy Home Appt., Sector 7, Dwarka, New Delhi-110075.

…… Complainant

 

V e r s u s

 

M/s DLF Homes Panchkula Private Limited, SCO No.190-191-192, Sector 8-C, Chandigarh, through its Authorized Signatory/Representative.

              .... 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.Suraj Bhan Hooda, Advocate for the  complainant.

                    Ms.Ekta Jhanji, Advocate for the  opposite party

 

                

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT   

              The facts in brief are that allured by various projections made by representative of the opposite party, about salient features of its project namely DLF Valley, Panchkula, the complainant moved an application with it, for purchase of a residential floor, in the same (project). Alongwith the application form, an amount of Rs.4 lacs was paid as earnest money. Thereafter, vide allotment letter dated 21.03.2011, the complainant was allotted Independent Floor No.D-7/22-SF, measuring 1983 square feet @Rs.2976/- per square feet, in the said project. The complainant opted for instalment payment plan. It was further stated that, as per demands raised by the opposite party, the complainant kept on making payment towards the said unit.

2.        On 02.01.2012, Independent Floor Buyer’s Agreement (Annexure C-3) was executed between the parties. Total sale price of the said unit was fixed at Rs.74,93,010/-, which included Basic Sale Price, External Development Charges etc. As per Clause 11 (a) of the Agreement, possession of the unit was contemplated to be delivered within 24 months, from the date of execution of the same i.e. upto 01.01.2014. When this complaint was filed in the year 2016, the complainant had already paid an amount of Rs.61,60,569.58Ps. Details of amount paid, is provided in para no.8 of the complaint. Besides as above, the complainant was given rebate of Rs.7,80,825.65Ps., in lieu of advance payments made by him.
3.        It was stated that the opposite party vide letter dated 11.05.2012 Annexure C-9, informed the complainant that stay on construction on the land, in question,  has been granted by the Hon’ble Supreme Court of India, in the case of Ravinder Singh and Ors. Vs. State of Haryana and Others, SLP 21786-21788 of 2010, vide order dated 19.04.2012. In compliance to the said order, the opposite party has stopped construction activities at the site. However, vide letter dated 28.12.2012, it was informed to the complainant that the said stay has been vacated by the Hon’ble Supreme Court of India, vide order dated 12.12.2012. It was further mentioned in that letter that on account of above stay, completion of project and delivery of possession will be delayed by 12 months, from the stipulated date and as per terms and conditions of the Agreement, the opposite party is entitled for extension of  time, under force majeure clause. Consent of the complainant was sought, for extension of time for delivery of possession of the unit, by 12 months, to which he agreed. It was averred that, in this manner, instead of delivery of possession of the unit, by the stipulated date i.e. 01.01.2014, a new cutoff date was fixed as 01.01.2015, for the said purpose. Even thereafter, possession of the unit was not offered to the complainant. The  opposite party kept on giving dates for delivery of possession of the unit, but it failed to do so. Physical visits of the site by the complainant, revealed that there was no development and construction activities were going on. It was stated that not only this, besides the amount mentioned in the Agreement, towards entire sale consideration, the opposite party, started raising illegal demands from the complainant, which was never due to be paid by him. Left with no alternative, the complainant served notice dated 26.09.2015, upon the opposite party, with a request to deliver possession of the unit, or in the alternative, to refund the amount deposited, alongwith interest, but to no avail. By stating as above, prayer has been made to refund the amount paid alongwith interest and compensation.
4.        Complaint was heard and admitted on 20.01.2016. Notice was ordered to be issued to the opposite party for 12.02.2016. On the said date, Sh.Harsh Nagra, Advocate, put in appearance, on behalf of the opposite party. As such, the matter was adjourned to 04.03.2016, for filing reply on behalf of the opposite party, and also evidence, by both the parties, by way of detailed affidavit(s). In the meantime, on 26.02.2016, Counsel for the opposite party, moved an application under Section 8 of the Arbitration and Conciliation Act, 1996, for referring the matter to an Arbitrator. Vide order of the even date, it was directed that the question qua arbitration, will be considered at the time of final arguments, in the main complaint. That application was accordingly, disposed of.
5.        Ultimately, reply and evidence was filed by the opposite party on 28.03.2016, wherein assertions made by the complainant were controverted. It was stated that on account of delay in handing over possession of the unit, no loss is going to be caused to the complainant, because allotment made to him is cost escalation free. Possession of the constructed unit will be handed over to the complainant at a price, which was fixed in the year 2011. Execution of the Agreement and promise to hand over possession within 24 months, from the date of execution of that Agreement were not controverted. However, it is stated that construction at the site could not be completed, on account of stay granted on construction activities, by the Hon’ble Supreme Court of India, between 19.04.2012 upto 12.12.2012, which caused delay in handing over possession of the constructed unit to the complainant. It is further stated that to get extension of time of one year, to handover possession, consent was sought from the purchasers, including the complainant and in the alternative it was left open to them to get refund of the amount deposited by them, alongwith interest. However, the said option was not exercised by the complainant. It is stated that as on date, when reply was filed, construction of 258 independent floors is complete and another 1517 built-up units are near completion. Occupation certificate has been received for 256 (86 plots) units. Other basic amenities are also available at the site. It is stated that when construction is not complete, on account of force majeure circumstances, the complainant is only entitled to get delayed compensation. It is asserted that the complainant failed to prove that he falls within the definition of a consumer, as defined under Section 2 (1) (d) of 1986 Act. It was also pleaded that time is not the essence of contract. It is pleaded that the project is near completion and the opposite party is willing and committed to deliver possession of the unit, to the complainant.
6.        On merits, it was admitted that the unit was sold to the complainant. Amount so received and further that possession could not be delivered in time, for want of complete construction, was also admitted. It is further stated that not only as above, other reasons for delay in starting construction work, at the site are, delay in sanction/revision of layout plans by the Competent Authorities;  delay in approval of service plans and various other approvals/sanctions etc., by the Competent Authorities. It is further said that the complainant cannot claim refund of the amount paid, in the face of penal provisions to make payment for the period of delay in handing over the possession, by the opposite party, to him, as per Clause 15 of the Agreement. It is a contractual obligation between the parties to be discharged, as such, this Commission has no jurisdiction to entertain the complaint and only the Civil Court has jurisdiction. It is stated that terms and conditions of the Agreement are binding upon the parties. It is further stated that demand made by the opposite party was strictly as per terms and conditions contained in the Agreement and no excess amount has even been received from the complainant. The complainant was defaulter in making payment of installments, as such, various reminders were sent to him, in the matter. It was averred that if still the complainant is interested in seeking refund of the amount deposited, forfeiture clause shall be attracted and he will lose considerable amount. Prayer was made, to dismiss the complaint, filed by the complainant. 
7.        In the rejoinder filed, the complainant reiterated all the averments contained in the complaint, and repudiated those, contained in the written version of the  opposite party.
8.        The parties led evidence, in support of their case by filing their affidavits to support their averments. Large number of documents were also placed on record, to strengthen their respective pleas.
9.        We have heard Counsel for the parties, and, have gone through evidence and record of the case, very minutely. 
10.        Counsel for the complainant, by making reference to the facts mentioned in earlier part of this order, stated that it is a case of failed promise on the part of the  opposite party i.e. after receipt of substantial amount, possession of the unit, in question, has not been even offered to the complainant, within the agreed period or till date. The complainant had agreed even to extension of period of 12 months. During that extended period also, possession of the unit was not delivered. Even as on today, construction of the unit is not complete. By stating as above, it is argued that the said act of the  opposite party amounted to deficiency in providing service and also it indulged into unfair trade practice, by making false promise with a view to extract money from the poor customers. It is stated by him that it is a good case, where the complaint needs to be allowed in toto.
11.        Above contentions were controverted by Counsel for the  opposite party. It is stated that in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in in view of Section 8 of the Arbitration and Conciliation Act, 1996 [as amended vide the Arbitration and Conciliation (Amendment) Act, 2015], to settle disputes between the parties, the matter is required to be referred to an Arbitrator, as such, this Commission has no jurisdiction to entertain the same (complaint). It is stated that reasons, referred to above, for delay in delivery of possession, were intimated to the complainant. Promise was made to hand over possession of the unit, within extended period of 12 months. To the said proposal, the complainant agreed and in furtherance to that, he also had deposited further amount, towards sale consideration of the unit, in question, which obviously means that he has given consent to extend the date of delivery of possession by 12 months. At this stage, it is not open to him, to claim the said relief. It is further stated that construction activities at the site were stopped on account of force majeure circumstances, which were beyond the control of the  opposite party, as referred to above. Parties are bound by terms and conditions of the Agreement and at this stage, when construction is near completion; it is not open to the complainant to seek refund of the amount paid. It is averred that only the Civil Court has jurisdiction to   entertain   the present   complaint.  The   complainant   at   the best can   claim   penal   amount/compensation, as envisaged in   Clause 15 of the Agreement, qua   delay   caused to deliver   possession   of   the unit, as time was not essence of contract. On facts, no serious dispute was raised.
12.        After hearing arguments of Counsel for the parties, and on going through the evidence, on record, we are inclined to grant relief to the complainant, in terms of prayer made by him. The complainant has applied for the constructed unit, with a hope that he alongwith his family members will get shelter, over their head, but his hopes were shattered. It is not in dispute that the unit, in question, was allotted to the complainant on 21.03.2011. It is also not in dispute that as per payment plan, he continued to make payment of installments. As per Clause 11 (a) of the Agreement, possession of the unit was to be delivered within 24 months, from the date of execution of that Agreement i.e. on or before 01.01.2014, subject to force majeure circumstances. In case of failure of the same, as per Clause 15 of the Agreement, the complainant was entitled to get penal compensation @Rs.10/- per square feet, per month, of the saleable area, for the period of delay. It is true that in some litigation, the Hon’ble Supreme Court of India stayed construction at the project site and order passed remained in force from 19.04.2012 upto 12.12.2012 i.e. for about 8 months. Even by that time, limit to provide possession to the complainant had not yet expired. It is also an admitted fact, that by making reference to above, fact of granting stay, which resulted into  delay in construction at the site, consent of the purchasers were sought to complete construction within further 12 months. Option was also given to the complainant, to seek refund of his amount deposited, alongwith simple interest @9% P.A. The complainant exercised former option and continued to make payment thereafter and by the time, the complaint was filed, he had paid an amount of Rs.61,60,569.58Ps. towards basic sale price and other charges. The extended period expired on 01.01.2015, even then, possession of the unit was not offered to the complainant. Construction of the unit, is not complete, even as on today. Reading of written statement makes it very clear, that still no firm date to hand over possession of the unit has been given. At the time of arguments, Counsel for the opposite party very hesitantly disclosed that construction at the project site is not complete and even today, unit is not ready for delivery of possession.

              Above act of the opposite party amounted to deficiency in providing service. It has also indulged into unfair trade practice, by making false promises to the complainant. As per the Agreement, construction of unit was to be completed by 01.01.2014 (24 months from 02.01.2012), or at the most within the extended period of 12 months i.e. by 01.01.2015. Despite receiving huge amount of Rs.61,60,569.58Ps. i.e. about more than 80% of the entire sale consideration, the construction is not complete even after a lapse of more than four years, from the date when Buyers’ Agreement was executed between the parties.

13.        It may be stated here that the force majeure circumstances, which have been claimed by the  opposite party, for not completing development and construction work, at the site are; delay in sanction of layout plans by the Competent Authorities;  delay in approval of service plans and various other approvals/sanctions/clearances etc. by the Competent Authorities; and also stay on construction on the land, in question, granted by the Hon’ble Supreme Court of India, in the case of Ravinder Singh and Ors. Vs. State of Haryana and Others, SLP 21786-21788 of 2010, vide order dated 19.04.2012, which was finally vacated on 12.12.2012. However, the question arises, as to whether, the aforesaid circumstances, encountered by the  opposite party, can be termed as force majeure circumstances, for non-development & construction work at the site and non-delivery of possession of the unit(s), by the stipulated date; within the extended period of 12 months, or even as on today, or not.

              First coming to the plea taken by the  opposite party regarding delay in sanction of final lay-out plans by the Authorities, it may be stated here that the said plea does not merit acceptance. It was bounden duty of the  opposite party, to get approved the final layout plans, in respect of the project, in question before launching the project, and only, thereafter, accept booking amount from the customers. The complainant including other allottees cannot be penalized for the delay in the aforesaid sanction of layout plans. If the opposite party chose to accept booking, on the basis of provisional sanction of the layout plan, by the Competent Authorities, it is to blame to only itself, for the delay, and not the purchasers of units. The purchaser of a unit, who had nothing to do with the sanction of the layout plans, by the Competent Authorities, cannot be penalized, by postponing the possession or registration of the unit. Similar view was taken by the National Commission in a case titled as M/s. Narne Constructions Pvt. Ltd. Vs. Dr. Devendra Sharma & 4 Ors., Revision Petition No. 4620 of 2013, decided on 17^th Dec 2015. As such, the plea raised by the  opposite party, in this regard, stands rejected.

              In our considered opinion, it is the duty of the builder, to obtain the requisite permissions or sanctions, in the first instance, and, thereafter, recover/accept the consideration money from the purchaser of the flats/plots. It is a known fact that delay occurs in obtaining various permissions from different Governmental Authorities, and this fact is well-known to the builder(s). The time normally taken in getting such permissions could have been contemplated by the builder, before issuing the brochure. It is an unfair trade practice, if the builder, without any planning and without obtaining effective permissions/ sanctions/licence to allot plot or to construct building/ apartments, invites offers and collects money from the buyers. If the possession of unit, as also the construction of the building/apartment is delayed, because of such reasons, and the possession thereof is not delivered within the stipulated time, the builder itself is responsible for that, and it cannot take shelter under force majeure circumstances. It was also so said by the National Commission, in a case titled as Kamal Sood Vs. DLF Universal Ltd., III (2007) CPJ 7 (NC). In that case also, a similar plea regarding non-grant of various sanctions, approvals and certificates in respect of the DLF project, by the Government concerned, resulting into delay in delivery of possession of the unit, was raised by the Builder. However, the National Commission in that case, while brushing aside the said plea of the builder, observed and held as under:-

“The main questions which require consideration in the appeal are—

(i)  Can a builder give alluring advertisement promising delivery of possession of the constructed building/flat to the purchaser/ consumer within the stipulated time, and, subsequently, on his failure, turn around and contend that as governmental permissions, such as, approval of zoning plan, layout plan and schematic building plan, were not given, the delay in construction should not be the ground for grant of compensation to the consumer? And,

(ii)   Secondly, whether the consumer should suffer by paying escalation cost due to such delay?

2. In our view, it is unfair trade practice on the part of the builder to collect money from the prospective buyers without obtaining the required permissions such as zoning plan, layout plan and schematic building plan. It is the duty of the builder to obtain the requisite permissions or sanctions such as sanction for construction, etc., in the first instance, and, thereafter, recover the consideration money from the purchaser of the flat/buildings.

3. Secondly, in such a case, if there is any express promise that the premises would be delivered within the stipulated time, and, if not done so, escalation cost is required to be borne by the builder.”

             The principle of law, laid down in the aforesaid case, is fully applicable to the present case. In this view of the matter, plea of the  opposite party, to this effect, also stands rejected.

14.        So far as the plea that the delay was caused on account of stay by the Hon’ble Supreme Court of India, in a case of Ravinder Singh and Ors. Vs. State of Haryana and Others, SLP 21786-21788 of 2010, is concerned, it may be stated here that the said stay was granted on 19.04.2012 and was vacated on 12.12.2012. The said stay order was not specific to the opposite party; directions were issued to the Government only, not to undertake construction on the land in question. At the maximum taking a stay order, as an order to the opposite party/builder also, benefit of only about 08 months (stay granted on 19.04.2012 and vacated on 12.12.2012) can be given and not beyond that. It was not clarified by the opposite party, as to what stopped it to start construction and development work before 19.04.2012 and, thereafter, from 12.12.2012, the date when stay aforesaid was vacated, and complete the same. Even in extended period, the  opposite party failed to fulfill its promise of delivery of possession of the unit, after complete construction. At the same time, as has been held above, if the  opposite party did not take requisite approvals/sanctions, from the Competent Authorities, before launching the project, in question, it cannot take shelter under the force majeure clause, to defeat the claim of the complainant.

              A similar stereotype plea, with regard to force majeure circumstances, was taken by the opposite party, in number of cases, filed against them, by similar located allottees in the same project, which has been brushed aside by this Commission, after giving detailed findings therein. In view of the above, no help, therefore can be drawn, by the  opposite party, from the pleas raised by it, for non-delivery of possession of the constructed unit, to the complainant.      

15.        To defeat claim of the  complainant, another objection was raised by Counsel for the  opposite party, that the complainant failed to prove that he falls within the definition of consumer, as defined by Section 2 (1) (d) of the Act. In other words, an attempt has been made to say that he is a spectator.

              It may be stated here that the complainant in para no.2 of his complaint has clearly mentioned that he had purchased the said unit, for the purpose of his residence i.e. spending seasonal vacations, week ends with his family and also to settle down there in old age. To the contrary, there is nothing, on the record to show, that the complainant is property dealer, and is indulged in sale and purchase of property, on regular basis. In the absence of any cogent evidence, in support of the objection raised by the  opposite party, 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. Consumer Complaint No.137 of 2010, decided on 12.02.2015, 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,  Revision Petition No. 3861 of 2014, decided on 26.08.2015. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the unit, in question, was purchased by the complainant, by way of investment, with a view to earn profit, in future. The complainant, thus, falls within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by Counsel for the  opposite party, therefore, being devoid of merit, is rejected.  

16.        The next question, that falls for consideration, is, as to whether, the instant consumer complaint is not maintainable, and only a Civil Court can decide the case. It may be stated here, that the complainant 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 liable to deliver physical possession of the unit, within a period of 24 months months, from the date of execution of the same (Agreement), with complete basic amenities, as provided in the brochure and necessary for living a smooth and comfortable life. 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 Section 2(1)(o) of the Act, it is evident that housing/construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. Vs.  Union Of India and  Ors. Etc., II (2012) CPJ 4 (SC),  it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of the Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, Section 3 of the 1986 Act, provides an alternative remedy. Even if, it is assumed that the complainant has a remedy to file a suit, in the Civil Court, the alternative remedy provided under Section 3 of the Act, can also be availed of by him, as he falls 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.

17.        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. It may be stated here that the objection raised by the  opposite party, in this regard, deserves rejection, in view of the judgments passed by this Commission in Abha Arora Vs. Puma Realtors Pvt. Ltd. and another, consumer complaint No.170 of 2015, decided on 01.04.2016 and Praveen Kumar Arora and another Vs. Emaar MGF Land Limited, Consumer Complaint no.198 of 2015, decided on 04.04.2016, wherein this issue was dealt, in detail, by making reference to various judgments of the Hon’ble Supreme Court of India; the National Commission, New Delhi, and also Section 3 of the Consumer Protection Act, 1986, it was held by this Commission that even in the face of existence of an 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 jurisdiction to entertain the consumer complaint. It was also so said by the National Commission, recently, 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, and also in the face of ratio of judgments, referred to above, the arguments raised by Counsel for the  opposite party, stands rejected.

18.        The  opposite party are also guilty of adoption of unfair trade practice. It is on record that the complainant booked the unit, in question, in the project aforesaid, on 18.03.2011. He was allotted unit, vide letter dated  21.03.2011, on which date, he had paid an amount of Rs.4 lacs. Buyer’s Agreement was not put for signing in a reasonable time, say two to three months. He continued to make payment and when Buyer’s Agreement was got signed, on 02.01.2012, he had already paid substantial amount of Rs.34,00,000/-. By not offering Buyer’s Agreement, for signing in a reasonable time, the  opposite party also committed unfair trade practice.
19.        The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount Rs.61,60,569.58Ps. deposited by him. It is an admitted fact that the  opposite party is unable to deliver  possession of the unit, in question, for want of complete construction work and basic amenities. Even as on today, firm date of delivery of possession of the unit, in question, could not be given to the complainant. The complainant, cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit. As stated above, the complainant had expectations to settle in the unit, after lapse of 24 months, from the date of execution of the Buyer’s Agreement i.e. from 02.01.2012. However, his hopes were not fulfilled, when possession of the unit, in question, was not even offered to him, by the stipulated date. Compelled under the circumstances, he even agreed to extend the period, to get possession, by 12 months. As per information supplied by Counsel for the opposite party, even today construction of the unit is not complete and firm date to hand over possession is not in sight. The  opposite party had failed to perform its part of the Agreement. The act in not handing over possession in time, as per the Agreement, and also in extended period, is a material deficiency, in providing service on the part of the  opposite party. The  opposite party, therefore, had no right, to retain the hard-earned money of the complainant, deposited towards price of the unit, in question. The  complainant is, thus, entitled to get refund of amount deposited by him.

              In view of above facts of the case, the  opposite party is also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to him, as also escalation in prices.

20.        Whether the complainant is entitled to interest on the amount deposited alongwith interest, if so, at what rate?

              There is no dispute that for making delayed payments, as per Clause 39 (a) of the Buyer’s Agreement, the  opposite party were charging interest @15% P.A., for a delay of first 90 days, and, thereafter, penal interest @18% P.A. In view of above facts, the complainant is certainly entitled to get refund of the amount deposited by him, to the tune of Rs.61,60,569.58Ps.. alongwith interest @15% P.A., from the respective dates of deposits, till realization. (Above rate of interest is less than the rate of interest charged by the opposite party for delayed payment i.e. 18% P.A.)

21.        No doubt, a plea was also taken by the opposite party, that the complainant is only entitled to compensation, for the period of delay in delivery of possession of the unit, and as such, it is not open to him, to seek refund of the deposited amount. It may be stated here that since it has been held above that the complainant cannot be made to wait for an indefinite period, for delivery of possession of the unit, at the whims and fancies of the  opposite party, as such, he has been held entitled to the refund of amount deposited alongwith interest and compensation. Had the complainant sought possession of the unit, in question, the matter would have been different. In those circumstances, it would have been held that the complainant is held entitled to only compensation, for the period of delay, besides delivery of possession; compensation for mental agony and physical harassment, as also litigation expenses. In this view of the matter, the plea taken by the opposite party, in this regard, is rejected. 
22.       As far as the plea taken by the opposite party, regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not the case of the opposite party, that it was ready with possession to be delivered to the complainant, by the stipulated date but it was he (complainant) who wanted to rescind the contract and is seeking refund of the amount deposited. Had this been the case of the opposite party, only in those circumstances, it would have been held that since the complainant himself is rescinding the contract, as such, he was entitled to the amount deposited, after deducting the earnest money, as per the terms and conditions of the Agreement. In this view of the matter, the plea taken by the opposite party, in this regard, has no legs to stand and is accordingly rejected. 
23.        No other point, was urged, by Counsel for the parties.  
24.        For the reasons recorded above, this complaint is accepted, with costs. The  opposite party is directed as under:-
    1.   To refund an amount Rs.61,60,569.58Ps. to the complainant, alongwith interest @ 15% P.A., from the respective dates of deposits onwards.
    2.   To pay compensation, in the sum of Rs.1 lac (as prayed), for causing mental agony and physical harassment, to the complainant, as also escalation in prices of the real estate.
    3.   To pay cost of litigation, to the tune of Rs.50,000/- to the complainant.
    4.   The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made by the  opposite party, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, it shall be liable to pay the amount mentioned at sr.no.(i), alongwith penal interest @18% p.a. instead of interest @15% p.a. 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.
25.        However, it is made clear that, in case, the complainant has availed loan facility from any financial institution(s), it shall have the first charge of the amount payable, to the extent, the same is due to be paid by him (complainant).
26.        Certified Copies of this order be sent to the parties, free of charge.
27.        The file be consigned to Record Room, after completion.

Pronounced.

10.06.2016

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Sd/-

(PADMA PANDEY)

        MEMBER

 

 

Rg.