MRS. NEENA SANDHU, MEMBER

1.         Briefly stated, the facts of the case are that on 16.11.2006, the complainant applied for allotment of a residential apartment in the Group Housing Project of the OP named as ‘The Views’ at Mohali Hills in Sector 105, SAS Nagar, District Mohali, Punjab and initially paid a sum of Rs.7,00,000/- on 16.11.2006. The price of the flat was Rs.51,50,250/-. On 2.1.2007, the OP issued a provisional allotment letter to the complainant, allotting apartment No.B-1-F-05-0504, and, thereafter, on 19.2.2007, he made further payment of Rs.40,68,863/-. The total amount of Rs.47,68,863/- was paid by the complainant, to the OP, which constituted 95% of the price of the apartment. Vide letter dated 27.2.2008 the OP sent the Unit Buyer’s Agreement, which was duly signed by both the parties. It was further stated that as per Clause 21 of the agreement, the OP was to hand over the possession of the flat, within a period of 36 months from the date of allotment, which expired in January, 2010. The complainant informed the OP through e-mail dated 9.4.2009 that not even a single brick had been laid at the project, apart from some digging, and that it was unlikely that this project would be ready by January, 2010. The complainant further mentioned that he had lost confidence in the OP and, therefore, sought refund of his money alongwith 18% interest. It was further stated that the complainant enquired from the OP vide e-mail dated 12.4.2009, regarding the current construction of his apartment. The complainant once again on 20.4.2009 sent an e-mail to the OP that their staff was giving contradictory statements in respose to various queries and also sought to ascertain, as to when he would obtain delivery of his flat but there was no response from the side of OP. The complainant again sent e-mails dated 23.4.2009, 14.12.2009, 20.12.2009, 1.1.2010 and 17.1.2010 with regard to the status of the project but no response was received from the OP. It was further stated that vide e-mail dated 4.3.2010, the OP sought to offer an alternative property to the complainant, which was refused by him.  The complainant sent a legal notice dated 7.3.2010, through his Counsel Sh.Kishore Sareen, to the OP immediately demanding refund of the amount deposited, but to no avail.  Terming these acts of the OP as deficiency in service and indulgent into unfair trade practice, the complainant filed the present complaint seeking directions to the OP to refund the amount of Rs.47,68,863/- being principal amount, alongwith interest calculated @ 18% p.a. from the date of deposit of the amount, till filing the complaint alongwith further interest @ 18% p.a. till date of payment by the OP, Rs.3 lacs as compensation towards mental agony, loss of work, harassment and hardship, Rs. 3 lacs towards costs and expenses for trips undertaken to India by him to ascertain the progress of construction and Rs.55,000/- as costs of litigation.

2.         The complaint was opposed by the OP, which filed written statement, in which it took preliminary objections that the OP had not violated any terms and conditions of the application form, allotment letter, payment plan and the buyer’s agreement. It was stated that as per Clause No.43 of Unit Buyer’s Agreement dated 27.2.2008 (Annexure P-5), this Commission has got no jurisdiction to entertain, try and decide the present complaint, as any dispute touching the terms and conditions of the same (agreement) are to be referred to the arbitrator. It was stated that the OP offered to accommodate the complainant in the apartment already available, to which, he was refused. It was further stated that the complainant, due to recession, could not get profit on booking of the said apartment and, thus, he filed the present complaint, against the OP only to hamper the construction work of the project. The complainant signed the Apartment Buyer’s Agreement and he was well aware of the fact that any cancellation of allotment, on his behalf, should attract cancellation charges and forfeiture of money. It was denied that the OP was running behind the schedule. In fact, the construction work in developing the apartments was delayed due to recession. However, presently, construction of the apartments is in full swing and as of today close to 450 apartments stood fully constructed and fitting and finishing works in the same were ongoing.  It was further stated that the delay, in time schedule attributable to the OP directly, is squarely covered by the terms of the agreement. It was denied that the OP received any legal notice from the complainant. Pleading no deficiency in service or any unfair trade practice on its part, the OP prayed for the dismissal of complaint. 

3.         The parties led evidence, in support of their case.

4.         We have heard the learned Counsel for the parties, and have perused the record and the written arguments filed by the complainant, carefully.

5.            Undisputedly, on 16.11.2006, the complainant applied for the allotment of a residential apartment in the Group Housing Project of the OP named as ‘The Views’ at Mohali Hills in Sector 105, SAS Nagar, District Mohali, Punjab and initially paid a sum of Rs.7,00,000/- on 16.11.2006. The total price payable for the flat was fixed at Rs.51,50,250/-. The complainant was allotted flat No. B-1-F-05-0504 vide provisional allotment letter dated 2.1.2007 annexure P-3. The complainant opted for the down payment plan and, accordingly, on 19.2.2007, admittedly, he made a down payment of Rs.40,68,863/-. Thus, the total payment made by the complainant to the OP till date was Rs. 47,68,863/-, which constituted 95% of the price of the apartment. The balance 5% was payable at the time of intimation of possession from the OP. The Unit Buyers Agreement was entered into between the parties on 27.2.2008 and as per Clause 21 of the agreement,  possession of the flat was to be handed over by the OP, to the complainant, within a period of 3 years from the date of allotment, which period expired on 1.1.2010. During the year 2008-2009, the complainant noticed that absolutely no construction was going on, at the project site, and so he addressed numerous e-mails/communications to the OP. Therefore, the complainant sought refund of his money alongwith interest. Vide e-mail dated 4.3.2010, the OP acknowledged that the project had been delayed and that it was attempting to adjust the complainant in another tower or a Villa but the said option was not acceptable to the complainant. On 7.3.2010, the complainant sent a legal notice through his Counsel, to the OP, immediately demanding refund of his entire amount alongwith interest, but no reply was received from the OP. The OP admitted that due to recession the construction work could not take place. Once the OP received almost the entire price of the flat, from the complainant, in advance, it was required of it, to adhere to the time schedule, mentioned in the agreement, for handing over the possession. It, however, did not do so. Even after the expiry of more than 1 ½ years of the scheduled date of possession, no construction has been raised at the spot. By not handing over the possession within 36 months from 2.1.2007 to the complainant and by making a false promise, in that regard, the OP was not only deficient in rendering service, but also indulged into unfair trade practice. The complainant is entitled to the refund of amount deposited by him.

6.         The next question, that arises for consideration, is, as to whether the complainant is entitled to interest on the amount deposited by him, and, if so, at what rate. The amount deposited by the complainant was withheld by the OP illegally and improperly for a period of more than 4 ½ years. Had the amount been deposited by the complainant, in some bank, or had he invested the same in some business, he would have certainly got returns therefrom. The complainant is a senior citizen. Interest on the fixed term deposits for a long time, paid by the banks, to the senior citizens is @10.25% p.a. The complainant is, thus, held entitled to interest @10.25% p.a. on Rs.47,68,683/- from the respective dates of deposits, till realization.

7.         The next question, that arises for consideration, is, as to whether, the complainant is entitled to compensation, for non-delivery of possession/non-refund of amount, immediately after the expiry of the time schedule. The answer to this question, is in the affirmative. According to Clause 23.1 of the agreement dated 24.2.2008, the OP was liable to pay compensation @Rs.5/- per square feet of the super area for delay in giving possession, by the schedule date. Since the flat has not been constructed, the question of giving possession thereof, to the complainant does not at all arise. No evidence was produced by the OP, that the construction could not take place, due to the circumstances, beyond its control. The OP is, thus, liable to pay compensation @ Rs.8750/- p.m.(1750 sq. feet super area x  5) as per Clause 23.1, aforesaid, from 2.1.2010, till the realization of the amount.

8.         The next question, that arises, for consideration, is, as to whether, the complainant is entitled to compensation, for mental agony, physical harassment and setting up a false plea, by the OP, that it did not receive the legal notice P-12. Certainly physical harassment and mental agony was caused to the complainant, an NRI on account of usurpation of his hard earned money, by the OP, for a long time. He travelled to India 2-3 times, to know about the status of construction, but was dismayed, in finding that there was no progress, in the same. From P-12, copy of the legal notice, it is evident that there is an endorsement thereon, as to which, officer of the OP received the same. Thus, the OP set up a false plea, in the written statement, that legal notice was not received by it. This amounts to unfair trade practice. For all this, the complainant is entitled to compensation to the tune of Rs.1,00,000/-, which can be said to be reasonable, just and fair.

9.          Whether the instant complainant is maintainable in view of existence, of Clause 43 regarding arbitration in the agreement dated 24.2.2008. It is settled principle of law that Section 3 of the Act, provides an additional remedy. In this view of the matter, the complaint is maintainable. Similar principle of law was laid down in National Seeds Corporation Limited Vs. P.V.Krishna Reddy (2009) CPJ 99 (NC).

10.     In view of the above discussion, we partly allow the complaint, and direct the OPs, as under.

i)        To refund an amount of Rs.47,68,863/- alongwith interest @10.25% p.a. from the dates of respective deposits, till the payment, is actually made to the complainant.

ii)       To pay Rs.8750/- per month as compensation, as per Clause 23.1 of the agreement, referred to above, to the complainant w.e.f. 2.1.2010, till the amount is actually refunded.

iii)      To pay Rs.1 lac (one lac), as compensation, for mental agony and physical harassment caused to the complainant, for his visits to India, in connection with this case, and for setting up a false plea of non-receipt of legal notice, copy annexure P-12.

iv)      To pay costs of litigation to the tune of Rs.10,000/-.

v)       The directions, referred to above, be complied with within 30 days from the date of receipt of a copy of the order, failing which, the OP shall pay penal interest @ 15% p.a. on the aforesaid payable amount(s), besides costs of litigation.

11.            Copies of this order be sent to the parties, free of cost. 

Pronounced.                                                                        

14^th September, 2011.