Chandigarh

StateCommission

CC/285/2016

Ankur Mujral - Complainant(s)

Versus

M/s DLF Universal Limited - Opp.Party(s)

Sandeep Bhardwaj, Adv.

30 Aug 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	285 of 2016
Date of Institution	:	23.06.2016
Date of Decision	:	30.08.2016

 

1. Ankur Mujral son of Kewal Krishan Mujral
2. Kewal Krishan Mujral son of Sh.Des Raj

Correspondence Address:- House No.1013 (FF), Phase-IV, S.A.S. Nagar, Mohali.

…… Complainants

V e r s u s

 

1. M/s DLF Universal Limited (earlier Known as DLF India Limited), having its Registered Office at Shopping Mall, 3^rd Floor, Arjun Marg, DLF City, Phase-I, Gurgaon-122002, Haryana, through its Chairman/Managing Director/ Director/Authorized Signatory.
2. M/s DLF Universal Limited (earlier known as DLF India Limited), SCO No.190-191-192, Sector 8-C, Chandigarh, 160009, through its Chairman/Managing Director/ Director/ Authorized Signatory.

              ....Opposite Parties

                 

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.Sandeep Bhardwaj, Advocate for the complainants.

                         Ms.Ekta Jhanji, Advocate for opposite parties.

 

JUSTICE JASBIR SINGH (RETD.), PRESIDENT           

                The facts in brief are that allured by rosy pictures and assurance of lavish facilities, shown in the brochure Annexure C-1 and also various salient features projected by representatives  of the opposite parties, the complainants moved an application with them, for purchase of a flat, in their project, under the name and style of ‘Hyde Park Estate IF’, New Chandigarh, Mullanpur, Punjab. Alongwith the application form, an amount of Rs.6 lacs was paid as earnest money. The complainants were allotted Independent Floor No.IF-R2-F810-GF, measuring 1881 square feet @Rs.3900/- per square feet, in the said project. Total sale price of the said unit was fixed at Rs.80,19,010.04Ps., which included External Development Charges, Preferential Location Charges, Maintenance Security etc. The complainants opted for construction linked payment plan. It was stated that, in order to make payment towards the said unit, the complainants raised housing loan, to the tune of Rs.64 lacs, from Housing Development Finance Corporation Limited (HDFC).

2.         It was further stated that vide letter 14.12.2012 Annexure C-9, the opposite parties sent copy of Independent Floor Buyer’s Agreement Annexure C-10 for signatures of the complainants, terms and conditions whereof were heavily loaded in favour of the opposite parties. When the said Agreement was sent back by the complainants, the opposite parties filled the date of execution therein as 12.03.2013 instead of 14.12.2012.  As per Clause 11 (a) of the Agreement, the opposite parties  were liable to deliver possession of the unit, in question, to the   complainants, within a period of 30 months, from the application dated 17.08.2012 i.e. on or before 16.02.2015, subject to force majeure circumstances. It was further stated that, as per demand raised by the opposite parties, the complainants had paid an amount of Rs.74,75,824.55Ps., i.e. about 95% of the sale consideration, but possession of the unit was not even offered by the stipulated date. It was further stated that the HDFC had already released an amount of Rs.49,57,613/- in favour of the opposite parties, towards the said unit, out of the deposited amount.
3.         It was further stated that the complainants visited the site a number of times but were shocked to see that there was no development. Even basic amenities were not in existence. Various telephone calls and also visits made to the office of the opposite parties, to know about status of the project, yielded no result. When possession of the unit, in question, was not offered to the complainants, by the stipulated date, and various correspondence exchanged between the parties, by way of emails etc., failed to give any positive result, they sought refund of the amount deposited, alongwith interest and compensation, but  the opposite parties  flatly refused to do so. On the other hand, vide letter dated 07.06.2016 (Annexure C-15), an illegal demand of Rs.4,13,479.95Ps. was raised by  the opposite parties.
4.         It was further stated that, on receipt of letter dated  07.06.2016, the complainants again visited the site, but were shocked to see that still there was no development there and basic amenities were also not made available. It was further stated that even as on today, major part of the project is as good as jungle. Even access to the unit was not made available. Necessary permissions/certificates were also not obtained by the opposite parties, from the competent authorities. 
5.         It was stated that the aforesaid acts of  the opposite parties  amounted to deficiency in providing service and adoption of unfair trade practice. Hence, this consumer complaint was filed by the complainants, seeking refund of the amount deposited alongwith interest, compensation and litigation expenses.
6.          The opposite parties in their joint written reply pleaded that in the face of arbitration clause no.55 contained in the Agreement, dispute if any, was required to be referred to an Arbitrator, as such, the consumer complaint was not maintainable. It was further pleaded that the complainants being investors, have purchased the unit, in question, for resale, and as such, did not fall within the definition of a consumer, as defined under Section 2 (1) (d) of the Act. It was further pleaded that since the proceedings before the Consumer Foras are summary, in nature, this Commission is not competent to adjudicate this complaint. In other words, it is said that only a Civil Court could adjudicate the dispute, in question.

                It was admitted that the complainants had purchased the unit, in question, from  the opposite parties. It was not denied that this Commission vested with the pecuniary and territorial jurisdiction. Execution of Agreement was also admitted. It was stated that 30 months period was to be counted from the date of execution of the Agreement and not from the date of application. It was admitted that possession of the unit was not even offered by the stipulated date or even till date. It was further stated that the complainants have paid an amount of Rs.73,32,873.22Ps. and not Rs.74,75,824.55Ps., as mentioned in the complaint. It was further stated that the complainants defaulted in making payment of installments. It was further stated that, except club house, all other basic amenities are all upto the mark. It was further stated that occupation certificate in respect of the unit has already been obtained on 17.02.2016 and as such, possession of the unit will be offered shortly, to the complainants. Even partial completion certificate, in respect of the project, in question, has been obtained by the opposite parties, from the Competent Authorities. It was further stated that it was well within the knowledge of the complainants that for any delays, stipulated penalty has been provided in the Agreement, which safeguarded their rights. The remaining averments were denied, being wrong. It is prayed that the complaint having no substance, be dismissed.

7.         In the rejoinder filed, the complainants reiterated all the averments contained in the complaint, and repudiated those, contained in written version of the opposite parties.
8.         The parties led evidence in support of their case.
9.         We have heard Counsel for the parties, and, have gone through evidence and record of the case, very carefully. 
10.         The first question, that falls for consideration, is, as to whether, in the face of existence of arbitration Clause no.55 in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of  1996 Act, this Commission has no jurisdiction to entertain the consumer complaint.

                To decide above said question, it is necessary to reproduce the provisions of  Section 3 of the Consumer Protection Act 1986 (in short the Act), which reads as under;

“3. Act not in derogation of any other law.—

The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

                It is also desirable to reproduce unamended provisions of Section 8 of 1996 Act, which reads thus:- 

“8. Power to refer parties to arbitration where there is an  arbitration agreement.—

(1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.

(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.

(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.”

11.         Many a times, by making reference to the provisions of Section 8 of 1996 Act, in the past also, such objections were raised and the Hon'ble Supreme Court of India, when interpreting the provisions of Section 3 of 1986 Act, in the cases of Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6  SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013) etc., came to a conclusion that the remedy provided under Section 3 of 1986 Act, is an independent and additional remedy and existence of an arbitration clause in the agreement, to settle disputes, will not debar the Consumer Foras, to entertain the complaints, filed by the consumers.
12.         In the year 2015, many amendments were effected in the provisions of 1996 Act. After amendment, Section 8 of 1996 Act, reads as under:-

 “8. Power to refer parties to arbitration where there is an arbitration agreement.—

(1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.”

13.         Now it is to be seen, whether, after amendment in Section 8 of the principal Act, any additional right has accrued to the service provider(s), to say that on account of existence of arbitration agreement, for settling the disputes through an Arbitrator, the Consumer Foras have no jurisdiction to entertain a consumer complaint. As has been held by Hon'ble Supreme Court of India, in various cases, and also of the National Commission, in large number of judgments, Section 3 of the 1986 Act, provides additional remedy, notwithstanding any other remedy available to a consumer. The said remedy is also not in derogation to any other Act/Law.
14.         Now, we will have to see what difference has been made by the amendment, in the provisions of Section 8 of 1996 Act. After amendment, it reads that a Judicial Authority is supposed to refer the matter to an Arbitrator, if there exists an arbitration clause in the agreement, notwithstanding any judgment, decree, order of the Hon'ble Supreme Court of India, or any other Court, unless it finds that prima facie, no valid arbitration agreement exists. The legislation was alive to the ratio of the judgments, as referred to above, in earlier part of this order. Vide those judgments, it is specifically mandated that under Section 3 of 1986 Act, an additional remedy is available to the consumer(s), which is not in derogation to any other Act. As and when any argument was raised, the Hon'ble Supreme Court of India and the National Commission in the judgments, referred to above, have made it very clear that in the face of Section 8 of 1996 Act and existence of arbitration agreement, it is still opened to the Consumer Foras to entertain the consumer complaints. None of the judgments ever conferred any jurisdiction upon the Consumer Foras to entertain such like complaints. Only the legal issues, as existed in the Statute Book, were explained vide different judgments. If we look into amended provisions of Section 8 of the principal Act, it explains  that judicial Authority needs to refer dispute, in which arbitration agreement exist to settle the disputes notwithstanding any judgment/decree or order of any Court. That may be true where in a case,  some order has been passed by any Court, making arbitration Agreement non-applicable to a dispute/parties. However, in the present case, the above said argument is not available. The jurisdiction of Consumer Foras to entertain consumer complaints, in the face of arbitration clause in the Agreement, is in-built in 1986 Act. It was not given to these Foras, by any judgment ever. The provisions of Section 3 of 1986 Act interpreted vide judgments vis a vis Section 8 of un-amended 1996 Act, were known to the legislature, when the amended Act 2015 was passed. If there was any intention on the part of the legislature, then it would have been very conveniently provided that notwithstanding any remedy available in 1986 Act, it would be binding upon the judicial Authority to refer the matter to an Arbitrator, in case of existence of arbitration agreement, however, it was not so said.
15.         We can deal with this issue, from another angle also. If this contention raised is accepted, it will go against the basic spirit of 1986 Act. The said Act (1986) was enacted to protect poor consumers against might of the service providers/ multinational companies/traders. As in the present case, the complainants have spent their life savings to get a unit, for their residential purpose. Their hopes were shattered. Litigation in the Consumer Fora is cost effective. It does not involve huge expenses and further it is very quick. A complaint in the State Commission can be filed, by making payment between Rs.2000/- to Rs.4000/- (in the present case Rs.4000/-). As per the mandate of 1986 Act,  a complaint is supposed to be decided within three months, from the date of service to the opposite parties. In cases involving ticklish issues (like the present one, maximum not more than six months to seven months time can be consumed), whereas, to the contrary, as per the principal Act (1996 Act),  the consumer will be forced to incur huge expenses towards his/her share of Arbitrator’s fees. Not only as above, it is admissible to an Arbitrator, to decide a dispute within one year. Thereafter, the Court wherever it is challenged may also take upto one year and then there is likelihood that the matter will go to the High Court or the Hon'ble Supreme Court of India. Such an effort will be a time consuming and costly one. Taking note of fee component and time consumed in arbitration, it can safely be said that if the matter is referred to an Arbitrator, as prayed, in the present case, it will defeat the very purpose of the provisions of 1986 Act.
16.         The 1986 Act provides for better protection of interests and rights of the consumers. For the said purpose, the Consumer Foras were created under the Act. In Section 3 of 1986 Act, it is clearly provided that the said provision is in addition to and not in derogation of any provisions of any other law, for the time being in force. The 1986 Act is special legislation qua the consumers. The poor consumers are not expected to fight the might of multinational companies/traders, as those entities have lot of resources at their command. As stated above, in the present case, the complainants have spent their entire  life earnings to purchase the unit, in the said project, launched by the opposite parties. However, their hopes were shattered, when despite making about 95% of the entire sale consideration, they failed to get possession of the unit, in question, in a developed project. As per ratio of the judgments in the case of Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),  and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), the consumers are always in a weak position, and in cases where two interpretations are possible, the one beneficial to the consumer needs to be accepted. The opinion expressed above, qua applicability of Section 8 (amended) of 1996 Act, has been given keeping in mind the above said principle.
17.         Not only this, recently, it was also so said by the National Commission, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No.346 of 2013, decided on 02.05.2016. Relevant portion of the said case, reads thus:-

“In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra.  In a catena of decisions of the Hon’ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in  Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha  (Dead) Through LRs. & Others  - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986.  [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986.”

                In view of the above, the plea taken by the opposite parties, that in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint, being devoid of merit, is rejected.

18.         The next question, that falls for consideration, is, as to whether, the complainants fall within the definition of consumer, as defined by Section 2 (1) (d) (ii) of the Act, or not. It may be stated here that there is nothing, on the record, that the complainants are the property dealers, and deal in the sale and purchase of property, on regular basis, and as such, the unit, in question, was purchased by them, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. On the other hand, it has been clearly mentioned by the complainants in para nos.4 and 5 of their complaint, supported by their respective affidavits, that the unit, in question, was purchased by them, exclusively for their residential purpose. Thus, in the absence of any cogent evidence, in support of the objection raised by  the  opposite parties, mere bald assertion i.e. simply saying that the  complainants being investors, did not fall within the definition of a consumer, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  2016 (2) CPJ 316. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The  complainants, thus, fall within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by  the opposite parties, in their written reply, therefore, being devoid of merit, is rejected.  
19.         The next question, that falls for consideration, is, as to whether, the present consumer complaint was not maintainable, and only a Civil Court can decide the case. It may be stated here, that the  complainants hired the services of  the opposite parties, for purchasing the unit, in the manner, referred to above. According to Clause 11 (a) of the Agreement,  the opposite parties  were required  to deliver possession of the unit, in question, to the  complainants, within a period of 30 months, from the date of application dated  17.08.2012 i.e. on or before 16.02.2015, alongwith all basic amenities as mentioned in Brochure and 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 1986 Act, provides an alternative remedy. Even if, it is assumed that the complainants have a remedy to file a suit, in the Civil Court, the alternative remedy provided under Section 3 of 1986 Act, can also be availed of by them, as they fall within the definition of consumer. In this view of the matter, the objection of  the opposite parties  in this regard, being devoid of merit, must fail, and the same stands rejected.

20.         The next question, that falls for consideration, is, as to within which period, possession of the unit, in question, was to be delivered to the complainants. As stated above, according to Clause 11 (a) of the Agreement, the opposite parties  were required  to deliver possession of the unit, in question, to the   complainants, within a period of 30 months, from the application dated  17.08.2012 i.e. on or before 16.02.2015.  Admittedly, in the present case, possession of the unit, in question, was not offered and delivered to the complainants, by the stipulated date or even till date. It has been candidly admitted by the opposite parties in para no.11 of their para-wise reply that due to some reasons, delivery of possession has been delayed. Further, in para no.19, it has been stated that possession of the unit, will be offered shortly to the complainants.

                In the first instance, it may be stated here that no specific reason has been assigned by the opposite parties, as to what stopped them to deliver possession of the unit, by the stipulated date or even till date. Secondly, in the written reply or even as on the date of arguments, no firm date of delivery of possession of the unit, has been given by the opposite parties. At the same time, there is no averment in the written reply supported by any cogent and convincing evidence, to convince this Commission, that delay occurred on account of force majeure circumstances. The Hon’ble Supreme Court of India, in Lucknow Development Authority vs M.K. Gupta, 1994 SCC (1) 243, held that if a builder fails to deliver possession of the property by the stipulated period, the delay so caused is denial of service. Thus, it could very well be said that the act of non-delivery of possession of the unit, by the stipulated date, in the absence of any force majeure circumstances, is a material deficiency on the part of  the opposite parties.

21.         The complainants cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit purchased by them. The  opposite parties, therefore, had no right, to retain the hard-earned money of the complainants, deposited towards price of the unit, in question. The complainants are thus, entitled to get refund of amount deposited by them. In view of above facts of the case, the  opposite parties are also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them, as also escalation in prices.       
22.         No doubt, reliance was placed by  the opposite parties on the partial completion certificate dated 10.09.2014 Annexure R-5 (colly.), to contend that basic amenities are complete at the site. First of all, it may be stated here that, it was only a partial completion certificate and not a final completion certificate in respect of the said project. Further, perusal of partial completion certificate reveals that it was issued on 10.09.2014, but, at the same time, it is also not clarified by  the opposite parties, as to what stopped them, thereafter, to offer possession of the unit to the complainants, by the stipulated date i.e. by 16.02.2015, once they had obtained the said certificate on 10.09.2014, in case, they were ready, to do so. Besides this, it is clearly mentioned in the said certificate that final completion certificate is yet to be issued by the Competent Authority. No document has been brought on record, to prove that the conditions imposed upon  the opposite parties, in the partial completion certificate has been complied with, as a result whereof, they have been issued final completion certificate. In the absence of final completion certificate, having been issued to the opposite parties, it is open to the complainants, to say no to the possession, even if it is offered to them (in the present case not offered till date). Similar view was taken by the Hon’ble National Commission, in Inderjit Singh Bakshi Versus S.M.V. Agencies Private Limited, FA No. 729 of 2013, decided on 30.11.2015, observing as under:-

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

23.         The principle of law laid down in the aforesaid case, is fully applicable to the present case. The opposite parties  have failed to produce on record, anything including any judgment of the Appellate Fora, which says that a builder can offer or deliver possession of a unit, even on obtaining partial completion certificate also. Thus, no shelter can be taken by  the opposite parties, under the partial completion certificate dated 10.09.2014, in any manner.
24.         As far as obtaining of occupation certificate dated 17.02.2016, in respect of the unit, in question, is concerned, it may be stated here that it has been obtained after more than a year of the stipulated date of delivery i.e. after  16.02.2015 (promised date). Again, even this much has not been clarified by  the opposite parties, as to what stopped them, to offer possession of the unit, in question, after February 2016, when occupation certificate had already been obtained by them or even till date. Thus, it could very well be said that even by that time and even till date, the basic amenities are not in existence at site. Had basic amenities been available at the site, by the date partial occupation certificate was obtained by  the opposite parties or even till date, they would have definitely offered possession of the unit, but they failed to do so. Once there was a material violation on the part of the builder, in not handing over possession, in time, it is not obligatory for the purchaser to accept possession after that date, even, in case, it is offered. No help, therefore, can be drawn by  the opposite parties, from the certificate, referred to above, having been obtained after the stipulated date.
25.         It is to be further seen, as to whether, interest, on the amount refunded can be granted, in favour of the complainants. An amount of Rs.74,75,824.55Ps. was paid by the complainants, without getting anything, in lieu thereof. The fact of making payment of Rs.74,75,824.55Ps., by the complainants, is evident from page 94 of the customer ledger Annexure C-16, issued by  the opposite parties, on 20.05.2016. Credit amount in the account of the complainants on the said page is shown as Rs.74,75,824.55Ps. On the other hand, nothing has been brought on record, in the shape of any other statement of accounts, to prove to the contrary. To prove that lesser amount has been deposited by the complainants, than the one, claimed by them, some document in that regard was required to be produced on record by the opposite parties, which is not so in the present case. The said amount has been used by the opposite parties, for their own benefit. There is no dispute that for making delayed payments, the opposite parties were charging heavy rate of interest (@18% p.a.) as per Clause 39 (a) of the Agreement, for the period of delay in making payment of instalments.  It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon'ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014. In view of above, the  complainants are certainly entitled to get refund of the amount deposited by them, to the tune of Rs.74,75,824.55Ps., alongwith interest @15% p.a., from the respective dates of deposits (less than the rate of interest charged by  the opposite parties, in case of delayed payment i.e. 18% p.a., as per Clause  39 (a) of the Agreement), till realization.
26.         Since, it has already been held that the complainants are entitled to refund of the amount deposited, alongwith interest and compensation, as such, the 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 Clause 14 of the Agreement, in the instant case, regarding payment of penalty, that would amount to enriching them, at the cost of the complainants. The defence taken is accordingly rejected.
27.         No other point, was urged, by Counsel for the parties.
28.         For the reasons recorded above, this complaint is partly accepted, with costs. The opposite parties, are jointly and severally, directed as under:-

1. To refund the amount of   Rs.74,75,824.55Ps., to  the   complainants, alongwith interest @15% p.a.  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.3 lacs, for causing mental agony and physical harassment, to the  complainants, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.50,000/-, to the   complainants.
4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 45 days from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @18% p.a. instead of @15%, from the respective dates of deposits onwards, and interest @15% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

29.         However, it is made clear that the Bank/Financial Institution, from which the complainants have availed loan, for making payment of installments towards the said unit, will have the first charge of the amount payable, to the extent, the same is due to be paid by them (complainants).
30.         Certified Copies of this order be sent to the parties, free of charge.
31.         The file be consigned to Record Room, after completion.

Pronounced.

30.08.2016

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Sd/-

(PADMA PANDEY)

        MEMBER

 

 

Rg.