Chandigarh

StateCommission

CC/607/2016

Ashok Kumar Khurana - Complainant(s)

Versus

M/s Omaxe Chandigarh Developers Pvt. Ltd. - Opp.Party(s)

In Person

25 Jan 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	607 of 2016
Date of Institution	:	21.09.2016
Date of Decision	:	25.01.2017

 

Ashok Kumar Khurana son of Late Sh.Brij Lal Khurana, resident of House No.145, Sector 46-A, Chandigarh.

……Complainant

V e r s u s

M/s Omaxe Chandigarh Developers Private Limited, SCO No.139-140, Sector 8-C, Madhya Marg, Chandigarh.

              .... 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:       Complainant in person.

      Sh.Ashim Aggarwal, Advocate for the opposite party.

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                The facts in brief are that the opposite party floated a scheme by publishing brochure Annexure C-I, on 07.02.2011, launching its project known as ‘Omaxe Cassia, New Chandigarh Extension’ at Mullanpur, Punjab, for a floor area of 300 square yards, with super area of 1725 square feet. Price of the unit was fixed at Rs.45 lacs. Construction linked payment plan was opted by the complainant. Completion time of the project was 24 months, from the date of issuance of allotment letter. After negotiations, benefit of 3% towards total cost was given and price of the unit was fixed at Rs.43,65,000/-. The complainant deposited Rs.8 lacs, on 28.02.2011 against receipt Annexure C-III. Thereafter, as per payment plan, he continued to make the payment and by 19.07.2016, he had paid an amount of Rs.42,17,242/- i.e. about 90% of the total price of the unit purchased. The fact of payment of Rs.42,17,242/- has been admitted by the parties, at the time of arguments also. The amount paid includes club membership charges, power backup charges, service charges etc. It is his case that as per promise made, possession of the unit should have been offered by 15.04.2013  i.e. within two years from the date of allotment i.e. from 28.02.2011. It is his further grievance that construction of the units is going on at a very slow pace. Even after lapse of about more than four years of booking, possession of the unit is not in sight. The civic amenities like roads, street lights etc. were not in existence in the complex, where flat is situated. On account of delay caused by the opposite party, the complainant had unnecessarily been burdened with increase in service tax. It was further stated in the complaint that by issuing messages on telephone, the opposite party is inviting Fixed Deposit Schemes, which shows that there was paucity of funds with the opposite party and further by organizing high profile functions, the opposite party is wasting crores of rupees paid by the allottees like the complainant. Feeling that construction is not going to be complete in near future, the complainant sent letter dated 12.08.2016, to the opposite party, seeking refund of amount paid with interest and compensation. When he failed to get any response, the instant complaint was filed seeking refund of amount paid alongwith interest thereupon; compensation for mental agony and physical harassment etc. and litigation expenses.

2.         Upon notice, reply was filed by the opposite party wherein it was pleaded that as per Clause 41 of the Allotment Letter/Agreement, this Commission has no jurisdiction, to entertain and decide disputes between the parties, because as per above said provision, the matter needs to be referred to an arbitrator for adjudication. It was stated that filing of the reply is without prejudice to the rights of the opposite party to claim settlement of dispute through arbitration. In this regard, a separate application was also moved by the opposite party, which was disposed of vide order dated 29.11.2016, with the direction that question qua arbitration will be considered, at the time of final arguments in the main case.
3.         An attempt has been made by the opposite party, to defeat prayer made by the complainant, on frivolous grounds, like this Commission has got no territorial; pecuniary jurisdiction etc. Factual matrix of the case was not controverted. It is admitted that on 28.02.2011, the complainant booked constructed unit, as stated in the complaint. Vide Allotment Letter/Agreement dated 29.12.2012, price of the unit was fixed at Rs.43,65,009/-. Payment of amount towards price of the unit to the tune of Rs.42,17,242/-  and service tax was also admitted. It was stated that as per Clause 23 (b) of the Allotment Letter/Agreement, it was agreed that the opposite party shall only make best efforts to complete construction and development within a period of 24 months from the date of signing thereof (allotment letter) and deliver possession thereafter. It was denied that possession of the unit was to be delivered on or before 15.04.2013. It was further stated that since the disputed unit falls under the category of immoveable property, as such, time was not the essence of contract. It was further stated that it was well within the knowledge of the complainant that for any delays, stipulated penalty has been provided in the Allotment Letter/Agreement, which safeguarded his interest. It was stated that construction work of the unit is going on in full swing and possession thereof, would be offered to the complainant, very soon. It was further stated that the complainant was defaulter in making payment, which resulted into delay in raising construction. It was averred that to cover the delay in offering possession of the unit, the opposite party is liable to make payment of delayed compensation @Rs.10/- per square feet, per month, of the super area of the unit, for the period of delay. It was further stated that, in case, the complainant still wanted refund of the amount deposited; the same would amount to surrender of the unit, and would attract forfeiture charges.  Prayer was made to dismiss the complaint.
4.         In the rejoinder filed, the complainant reiterated all the averments, contained in the complaint and controverted those, contained in written version of the opposite party.
5.         The parties led evidence in support of their case.
6.         We have heard the complainant in person, Counsel for the opposite party and have gone through the evidence and record of the case, very carefully.
7.         Before making any reference to the merits of the case, we will like to decide the objection raised by the opposite party 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. Such an issue came up for consideration before this Commission in a case titled as Ankur Gupta Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. and another, consumer case no.309 of 2016, decided on 22.11.2016. This Commission while rejecting the said argument raised, observed as under:-

“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.”

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.

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.”

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.

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.

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 complainant has spent his life savings to get a unit, for his residential purpose. His 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/-. 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.

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 complainant has spent his entire  life earnings to purchase the unit, in question, in the said project, launched by the opposite parties. However, his hopes were shattered, when despite making substantial payment of the sale consideration, he failed to get possession of the constructed 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.

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, objection raised 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”

                In view of above, objection raised by the opposite party, in this regard, being devoid of merit, is rejected.

8.         The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not.

                According to Section 17 of the Act, a consumer complaint can be filed, by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to him. In the instant case, it is evident from the Allotment Letter/Agreement, containing detailed terms and conditions, placed on record by the opposite party itself, is executed between the parties at Chandigarh. Besides as above, various letters placed on record, clearly goes to reveal that the same have been issued by Chandigarh Office of the Company, as its first address therein is mentioned as “SCO 143-144, First Floor, Sector 8C, Madhya Marg, Chandigarh-160008”. Since, as per the documents, referred to above, a part of cause of action arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by the opposite party, in its written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

9.         Another objection taken by the opposite party, with regard to pecuniary jurisdiction of the Commission, also deserves rejection. It may be stated here, that the complainant has sought refund of amount of Rs.42,17,242/- alongwith interest @15.07%, from respective dates of deposits; compensation to the tune of Rs.6,90,000/- towards delayed compensation; Rs.1,35,000/- towards negotiated discount; compensation for mental agony and physical harassment; and cost of litigation alongwith legal fee paid to the tune of Rs.4,000/-, aggregate value whereof fell above Rs.20 lacs and below Rs.1 crore. In no way, the aggregate value of the relief claimed, exceeds Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint. The objection taken by the opposite party, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.
10.         Another objection raised by Counsel for the opposite party that it was mentioned in the Allotment Letter/Agreement that the Company shall make its best efforts to deliver possession of the unit within maximum period of 24 months, with further grace period of six months, as such, time was not the essence of contract, is also devoid of merit. It may be stated here that it was clearly mentioned in Clause 23 (b) of the Allotment Letter/Agreement that possession of the unit will be delivered by the opposite party, within a period of 24 months, with extended period of 6 months, by making best efforts, to the complete the development and construction of the unit, subject to force majeure circumstances or reason beyond the control of the opposite party. It is not the case of the opposite party that it encountered any force majeure circumstances, as a result whereof, it was legally entitled for extension of time for delivering possession of the units to the allottees, including the complainant.

                No doubt, at the time of arguments, it was also argued that, as per terms and conditions of the said Allotment Letter/Agreement, when computing the above said period, Sundays, Saturdays, Bank Holidays, etc. are to be ignored.

                We feel that the contention raised is liable to be rejected. In Clause 23(b) of the Agreement, it is stated that possession will be delivered within 24 months, from the date of allotment letter, with six months’ extension. It is further stated that when computing the said period all Saturdays, Sundays and Bank Holidays will be excluded. A similar issue came up for consideration before this Commission qua another project of the opposite party, in the case of Dr.Divya Dahiya Vs. M/s Omaxe Chandigarh Extension Developers Private Limited and another, Consumer Complaint No.57 of 2016, decided on 15.07.2016, wherein, it was observed as under:-

“The first question, which falls for consideration, is, as to whether there was delay in offering possession of the plot, in question, and if so, to what extent. The allotment letter for independent floor in Row-Housing Project “Silver Birch” in the project of the Opposite Parties (Annexure C-4) was issued to the complainant on 30.08.2011. As per Clause 31(a) of the allotment letter, the Opposite Parties were to complete the development of the unit within 24 months or within an extended period of six months from the date of start of construction, subject to force majeure conditions. Since allotment letter is dated 30.08.2011, by computing 24 months plus 6 months period, the Opposite Parties were bound to deliver possession of the plot, in question, by 01.03.2014. The Opposite Parties have stated that period was to be computed by excluding Sundays, Bank Holidays, enforced Govt. holidays and the days of cessation of work at site in compliance of order of any Judicial/concerned State Legislative Body. Apparently, for seeking six months extension beyond 24 months or beyond six months extended period, the Opposite Parties owe an explanation, if the delay was on account of force majure conditions but nothing by way of cogent evidence to this effect has been placed on record. Thus, when no explanation for extension of six months period has been furnished, the Opposite Parties at the most could be allowed one out of the two benefits i.e. either six months extension beyond 24 months or period on account of Sundays/Holidays etc. This Commission in Consumer Complaint No.153 of 2015 titled ‘Mr. Madan Lal Taneja and another Vs. M/s Omaxe Chandigarh Extension Developers P. Ltd.’ decided on 03.11.2015, facts of which were almost identical, held that Opposite Parties were to hand over possession within 30 months from the date of start of construction. Thus, the possession of the unit, in question, was to be delivered by 01.03.2014.”

11.         Similar view was reiterated by this Commission, in a case titled as Sudesh Rani Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. and another, Consumer Case No.178 of 2016, decided on 16.08.2016. It was specifically held that when there is no explanation of getting extension of 6 months period to deliver possession beyond the stipulated date, the benefit of exclusion of Saturdays, Sundays, Bank Holidays etc. cannot be given. Thus, under these circumstances, since as per Clause 23 (b) of the Allotment Letter/Agreement, the opposite party was bound to deliver possession of the unit, within a maximum period of 30 months from the date of execution of the same i.e. on or before 28.06.2015, as such, time was unequivocally made the essence of contract.

                At the same time, the opposite party also cannot evade its liability, merely by saying that since it was mentioned in the Allotment Letter/Agreement, that it shall put its best efforts for delivery of possession of the unit, as such, time is not to be considered as essence of the contract. Non-mentioning of exact date of delivery of possession of the unit(s) in the Allotment Letter/Agreement, is an unfair trade practice, on the part of the Builder. The builder is bound to mention the exact/specific date of delivery of possession of the unit(s) to the allottees/purchasers thereof.  It was so said by the Hon`ble National Commission, in Rajeev Nohwar & Anr. V/S Sahajanand Hi Tech Construction Pvt Ltd, 2016 (2) CPR 769. Relevant portion of the said case reads thus:-

“Merely making possession by a particular date will also not meet the requirement of law and the promotor is under a legal mandate to stipulate a specific date for delivery of possession of the flat in the agreement which he executes with the flat buyer”.

 

In view of above, the plea of the opposite party in this regard also stands rejected.

12.         As far as the plea taken by the opposite party to the effect that delay in delivery of possession also took place, as the complainant did not make timely payments, in respect of the unit, in question, it may be stated here that no cogent and convincing evidence, in the shape of accounts statement/ledger or any other document, depicting the said delay in making payment, has been brought on record, to convince this Commission. Such a bald plea of the opposite party, has no legs to stand and is accordingly rejected. 
13.         The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.42,17,242/-, 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 construction; basic amenities etc.  and firm date of delivery of possession of the unit, could not be given to him (complainant). Promised date to deliver possession of the unit was 28.06.2015 and now it is January 2017. Even at the time of arguments, no commitment was made by the opposite party, as to on which date, possession of the unit, can be delivered to the complainant. Even this much has not been proved, as to at what stage, the construction of units has reached. The complainant cannot be made to wait for an indefinite period, for delivery of possession of the unit purchased by him. Under above circumstances, prayer of the complainant to claim refund of the amount, actually paid, cannot be negated. Non-delivery of possession of the unit, in question, by the stipulated date, is a material violation of the terms and conditions of the Agreement, on the part of the opposite party. Recently in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No.70 of 2015, decided on 14 Sep 2016, under similar circumstances, the National Commission negated the plea taken by the builder, while holding as under:-

“I am in agreement with the learned senior counsel for the complainants that considering the default on the part of opposite parties no.1 and 2 in performing its contractual obligation, the complainants cannot be compelled to accept the offer of possession at this belated stage and therefore, is entitled to refund the entire amount paid by him along with reasonable compensation, in the form of interest.”

14.         Not only this, in a case titled as Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, wherein possession was offered after a long delay, this Commission, while relying upon the judgments rendered by the Hon`ble National Commission, ordered refund to the complainants, while holding as under:-

“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same. It was so held by the National Commission in Emaar   MGF   Land   Limited   and   another   Vs. Dilshad Gill, III (2015) CPJ 329 (NC). Recently also, under similar circumstances, in the case of M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, held as under:-

“I am of the prima facie view that even if the said offer was genuine, yet, the complainants was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.

                However, in the present case, the situation is worst, as possession has not been even offered to the complainant, what to speak of delay in offer thereof. In view of above, it is held that since there was a material violation on the part of the opposite party, in not offering and handing over possession of the unit by the stipulated date or even till date, the complainant was at liberty to seek refund of the amount actually deposited, alongwith interest and compensation, by way of filing the instant complaint.

                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.

15.         It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the  complainant. It is not in dispute that an amount of Rs.42,17,242/-, was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by the opposite party for its own benefit. There is no dispute that for making delayed payments, the  opposite party was charging heavy rate of interest 18% p.a. for the first month and thereafter @24% p.a.,  as per Clause 16 (d) of the Allotment Letter/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 (2014) 6 SCC 335). In view of above, the  complainant is certainly entitled to get refund of the amount deposited by him, to the tune of Rs.42,17,242/- alongwith interest, from the respective dates of deposits till realization.  
16.         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 of the unit, to be delivered to the complainant, by the stipulated date but it was he (complainant) who wanted to rescind the contract, on account of some unavoidable circumstances/ financial constraints or for any personal reason, 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 is entitled to the amount deposited, after deduction of 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.
17.          Since, it has already been held that the complainant is entitled to refund of the amount deposited, alongwith interest and compensation, as such, the plea taken by the opposite party to the effect that it is ready to pay penalty amount for the period of delay, in delivery of possession of the unit, cannot be considered, at this stage. If the opposite party is allowed to invoke the penalty Clause, in the instant case, regarding payment of penalty, that would amount to enriching it, at the cost of the complainant. The defence taken is accordingly rejected.  
18.         Similarly, since this Commission is ordering refund of the amount paid, alongwith interest and compensation, as such, the complainant is also not entitled to get compensation for the period of delay, as prayed for by him.
19.         No other point, was urged, by the contesting parties.
20.         For the reasons recorded above, the complaint is partly accepted, with costs. The opposite party is directed as under:-

1. To refund the amount Rs.42,17,242/-, to the complainant, alongwith interest @12% p.a.,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.2.50 lacs, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
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, within a period of 02 (two) months 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 @15% p.a., instead of @12%, 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.

21.         However, it is made clear that, if the complainant has availed loan facility from any banking or financial institution, for making payment of installments towards the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by him (complainant).
22.         Certified Copies of this order be sent to the parties, free of charge.
23.         The file be consigned to Record Room, after completion.

Pronounced.

25.01.2017

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Sd/-

(PADMA PANDEY)

        MEMBER

 Rg