Chandigarh

StateCommission

CC/788/2017

Dr. Sunil Sethi - Complainant(s)

Versus

M/s Omaxe Chandigarh Extension Developers Private Limited - Opp.Party(s)

Savinder Singh Gill, Adv.

10 Aug 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	788 of 2017
Date of Institution	:	09.11.2017
Date of Decision	:	10.08.2018

 

Dr.Sunil Sethi S/o Sh.H.C., Sethi, R/o H.No.542, Sector 11-B, Chandigarh.

…… Complainant

V e r s u s

1. M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., SCO 143-144, Sector 8-C, Chandigarh, through its CEO-cum-Director, Sh.Kamal Kishore Gupta and Director Sh.Krishan Kumar Agarwal.
2. Kamal Kishore Gupta, CEO-cum-Director of M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., R/o D-88, Gali No.10 Madhu Vihar, Delhi-110092.
3. Krishan Kumar Agarwal, Director of M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., R/o 13B, Sector 8, Main Bazar, Mandi Adampur, Hisar 125052.

…. Opposite parties

 

Complaint under Section 17 of the Consumer Protection Act, 1986

 

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                        MRS. PADMA PANDEY, MEMBER.

 

Argued by:-      Sh.Savinder Singh Gill, Advocate for the   complainant.

Sh.Sanjeev Sharma, Advocate for the opposite parties.

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                The complainant, on 07.12.2011, moved an application for allotment of a flat, measuring 1425 square feet, with the opposite parties, in their project, known as ‘Omaxe Ambrosia’, New Chandigarh, Mullanpur, District SAS Nagar Mohali, Punjab. He was allotted flat bearing no.AIFC/FF/466K, in the said project, against total sale consideration of Rs.43,47,396.85ps. He paid booking amount of Rs.6 lacs, on the said date. Thereafter, he made further payments, from time to time, as per demands raised by the opposite parties and by 13.12.2016, an amount of Rs.43,23,747.27ps. vide receipts Annexure C-3 colly. and C-4 respectively, stood paid, in the following manner: -

 

S.No.	Date of payment	Amount in Rs.
	08.12.2011	600000.00
	08.06.2012	579000.00
	22.12.2014	455771.00
	06.04.2015	464295.47
	02.02.2016	552346.00
	11.03.2016	552348.00
	05.05.2016	930855.00
	13.12.2016	189131.80
	Total	4323747.27

 

 Allotment letter/Agreement dated 31.10.2014 Annexure C-2, was executed between the parties, in respect of the said unit. As per Clause 7 (a), it was promised by the opposite parties that possession of the constructed unit will be handed over within a period of 15 months, from the date of signing of that Agreement, with grace period of six months i.e. total 21 months. Possession was subject to force majeure conditions. It was further provided that while calculating the time period, referred to above, the opposite parties shall be entitled to exclude Sundays, Bank Holiday, enforced Govt. holidays and the days of cessation of work at the site, in compliance of order of any Judicial/concerned State Legislative Body. In a way, date to hand over possession of the unit was fixed as 30.07.2016.

2.         It is grievance of the complainant that by accepting more than 25% of sale consideration of the unit, in question, yet not sending Agreement for signatures of the complainant, the opposite parties have committed violation of the provisions of (PAPRA). It is further grievance of the complainant that Agreement/ Allotment Letter was sent for signatures after about three years from the date of making first payment. By getting further 21 months to hand over possession, by way of Clause 7 (a) of the Allotment Letter/Agreement, unfair trade practice was adopted by the opposite parties and that act also amounted to providing deficient services. It was further stated that when booking amount was received in December 2011, necessary permission to launch the project and sale of residential units therein, was not available with the opposite parties. The Guidelines Annexure C-7 issued qua Mega Housing Project, were not complied with, by the opposite parties. Relevant clause of the said Guidelines, is reproduced hereunder:-

“Guidelines of Mega Projects

A) GENERAL PROCEDURE (MEGA PROJECTS)

1.     Application for approval of mega project will be received in the office of the concerned nodal agency i.e. the Punjab Urban Development Authority for Housing projects, Punjab Agro Industries Corporation for Agro Processing projects and Udyog Sahayak in the Department of Industries for Industries for Industrial Parks, Manufacturing, Multiplexes, Hotels and other residual category projects.

2.     Application to be submitted in the prescribed format (Annexure-IX ) should be accompanied by project synopsis alongwith details of the promoters, location, proposed fixed capital investment, employment potential, implementation schedule and the details of concessions sought.

3.     Proposal will be circulated within 7 days of receipt in the office of the nodal agency concerned to the concerned departments for their comments to be given in 15 days.

4.     The proposal along with comments if any received from the concerned department will be placed before screening committee to be constituted under the Chairmanship of the Chief Secretary and comprising of Administrative Secretaries of the Department of Finance, Industries, Agriculture, Housing, Science Technology & Environment, Power and Excise & Taxation and other concerned departments as may be required, in its next meeting for making recommendations to the Empowered Committee.

5.     All Projects, if found eligible will be recommended for the grant of standard concessions by the Screening Committee to the Empowered Committee. The Screening Committee may further identify the special concessions/ relaxations in conditions sought by the Promoter for taking decision by the Empowered Committee keeping in view the nature and size of the Project.

 6.    The Screening Committee will meet every fortnight and consider all the cases received.

7.     Recommendations of the Screening Committee will be placed before the Empowered Committee headed by the Chief Minister, in its next meeting which may be held as and when required keeping in view the number of cases recommended by the Screening Committee.

8.     After approval by the Empowered Committee and issue of proceedings of the meeting, Letter of Intent (LOI) will be issued within 15 days by the nodal agency concerned to the applicants alongwith Draft Agreement.

9.     Status of the application will be indicated on the Web Site, of the concerned nodal agency.

10.   On fulfilment of conditions of LOI, Agreement will be signed by the Government in concerned Department with the applicant. Period of 6 months will be provided in the LOI for fulfilment of conditions of LOI and signing of Agreement, failing which, the LOI/ Approval will lapse unless extended for further period of not more than 6 months, on the application of the Promoter explaining the circumstances and reasons for seeking extension.

11.   Copy of signed Agreement will be circulated to all concerned departments for issue of orders/ notifications in respect of concessions pertaining to their department. Screening Committee, headed by the Chief Secretary will also review the status of grant of concessions/ clearances. The Department concerned will ensure the grant of concessions and all clearances within one month after receipt of agreement and on fulfilment of the condition precedent, failing which the matter will be brought to the notice of the Chief Secretary by the Nodal Department for issue of clearance/ grant of concessions by the concerned department. The Administrative Secretary of the concerned Department will issue the notification/ order for the grant of concessions/ incentives/ relaxations as directed by the Chief Secretary forthwith”

 

3.         Possession of the unit was offered on 09.03.2017, which was a paper one. Offer of possession was made beyond the date given. It is grievance of the complainant that even at that time, project was not complete. Completion certificate was not available with the opposite parties. Stating that there was material violation of terms and conditions of the Allotment Letter/Agreement and also the PAPRA, it was not incumbent upon the complainant to accept possession at that stage. Furthermore, the complainant purchased the unit on first floor, whereas, he was offered possession of a unit, on second floor i.e. on a building raised on stilts. It was stated that flats on the second floor were cheaper than the flats on first floor. By not making refund of differential amount, the opposite parties have further committed unfair trade practice. By writing emails, the complainant brought the above said fact to the notice of the opposite parties, however, to the contrary, vide letter dated 02.11.2017, Annexure C-11, a threat of cancellation of the unit was given by the opposite parties. Hence, this complaint was filed seeking refund of the amount paid, alongwith interest, compensation and litigation expenses.
4.         Upon notice, joint written reply was filed by the opposite parties, wherein, it was pleaded that as per Clause 62 of the Allotment Letter/Agreement, this Commission has no jurisdiction, to entertain and decide dispute between the parties, because as per above said provision, for settlement of dispute, the matter needs to be referred to an arbitrator for adjudication. Territorial and pecuniary jurisdiction of this Commission was also challenged. It was pleaded that the complainant being investor, would not fall within definition of consumer, as defined under Section 2 (1) (d) of Act. It was averred that the complainant has concealed material facts, as such, is not entitled to get any relief.           
5.         On merits, purchase of the unit, in question, was admitted. Payments made were also admitted. It was stated that on completion of construction work occupation certificate had been obtained by the opposite parties, from the Competent Authorities, on 13.02.2017 and thereafter, possession of the unit was also offered to the complainant, vide letter dated 09.03.2017, in time. However, despite sending reminder, vide letter dated 02.11.2017, the complainant failed to come forward to take possession, on making payment of the amount due, as reflected in the said letter and on the other hand, has filed this complaint seeking refund of amount paid, alongwith interest etc. It was averred that the complainant was defaulter in making payment towards price of the said unit, yet, the opposite parties offered possession thereof, to him. It was pleaded that as per Rules of the Government, in such like projects, construction of flats is allowed on stilts and the ground floor area is to be kept for parking of the cars. The complainant was offered possession of a unit, which is located on first floor only i.e. on the ground floor which is built on stilts. It was further pleaded that opposite parties no.2 and 3 i.e. CEO/Directors of the Company, have been wrongly impleaded as parties to the complaint, in their personal capacity. The remaining averments are denied being wrong. It is prayed that the complaint having no substance, be dismissed.
6.         A separate application under Section 8 of the Arbitration and Conciliation Act, 1996, was also filed by the opposite parties, stating that this Commission has no jurisdiction to entertain the consumer complaint and let the matter be referred to an arbitrator for adjudication. The said application was disposed of vide order dated 25.01.2018, with the direction that question qua arbitration will be considered, at the time of final arguments in the main case.
7.         In the rejoinder filed, the complainant reiterated all the averments contained in the complaint, and repudiated those, contained in written version of the opposite parties.
8.         The contesting parties, led evidence in support of their case and also raised arguments in terms of pleadings noted in earlier part of this order, which were heard, in detail.
9.         First, we will deal with the objection, raised by the opposite parties, that in the face of existence of provision 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 issue, as to whether, in the face of existence of provision 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, has already been dealt with, by this Commission, in a case titled as ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126, while relying upon ratio of judgments of the Hon’ble Supreme Court, titled as 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), 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), and held that even in the face of existence of arbitration clause in an Agreement/Allotment Letter, 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. Recently, the larger Bench of the National Commission in a case titled as Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017, has held that an Arbitration Clause in the Agreements between the complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon’ble Supreme Court of India, which was dismissed vide order dated 13.02.2018.

                In this view of the matter, objection raised by the opposite parties stands rejected.

10.         Now, we would like to decide the objection taken by the opposite parties, that the complainant being investor, has purchased the unit in question, for selling the same, to earn profits and not for personal use, as such, he would not fall within the definition of consumer, as defined under the Act.

                Perusal of the facts on record, clearly indicate that the complainant has purchased the unit, in question, for his own use. At the same time, there is nothing on record, that the complainant is a property dealer, and deals in the sale and purchase of property, on regular basis, in the open market and, as such, the unit, in question, was purchased by him, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. Since, the opposite parties have levelled allegations against the complainant, as such, the onus lays upon them, to prove it, which they failed to do so. The mere fact that the complainant is seeking refund of the amount paid, on account of delay in offering possession of the unit, does not constitute a reason for the opposite parties to say that he is an investor. Thus, in the absence of any cogent evidence, in support of the objections raised by the opposite parties, mere bald assertion i.e. simply saying that the complainant  being investor, 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. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The  complainant, thus, falls 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. 

11.         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, perusal of Invitation for allotment letter dated 09.05.2012 Annexure C-1; Allotment Letter/Agreement dated 31.10.2014 Annexure C-2, containing detailed terms and conditions in respect of the sale of the unit, in question; and also offer of possession letter dated 09.03.2017 Annexure C-9, reveal that the same were issued from Chandigarh Office of the opposite parties, as the same bears stamp of the said office (Chandigarh Office of the opposite parties). 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 parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

12.         Another objection taken by the opposite parties, with regard to pecuniary jurisdiction of the Commission, also deserves rejection.           

                It may be stated here that as per Section 17 (1) (a) of the Act, the State Consumer Disputes Redressal Commission shall have pecuniary jurisdiction to entertain any complaint, complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore. It was also so elucidated elaborately by a Large Bench of the National Commission in the case titled as Ambrish Kumar Shukla and 21 ors. Vs. Ferrous Infrastructure Pvt. Ltd., Consumer Case No.97 of 2016, decided on 07.10.2016.  Relevant part of the said order reads thus:-

“It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it’s the value of the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum.  The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing the deficiencies in the goods purchased or the services to be rendered to the consumer.  Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction.  If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds Rs. 1.00 crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint.  For instance if a person purchases a machine for more than Rs.1.00 crore, a manufacturing defect is found in the machine and the cost of removing the said defect is Rs.10.00 lacs, it is the aggregate of the sale consideration paid by the consumer for the machine and compensation, if any, claimed in the complaint which would determine the pecuniary jurisdiction of the Consumer Forum.  Similarly, if  for instance, a house is sold for more than Rs.1.00 crore, certain defects are found in the house, and the cost of removing those defects is Rs.5.00 lacs, the complaint would have to be filed before this Commission, the value of the services itself being more than Rs.1.00 crore. ”

In the present case, total value of the unit, in question, i.e. Rs.43,47,396.85ps. plus compensation claimed by way of interest @18% p.a. on the deposited amount of Rs.43,23,747.27ps. and also Rs.3 lacs, for mental agony and physical harassment, if taken into consideration, in no way, exceeds Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint.  The objection taken by the opposite parties, that this Commission lacks pecuniary jurisdiction, being devoid of merit, must fail and the same stands rejected.

13.         Now it is to be seen, as to whether, the complainant is entitled to refund of the amount paid or not. It is not in dispute that the complainant booked the unit, in question, in the project of the opposite parties. He opted for a first-floor unit, to be constructed on a plot measuring 250 square yards. Built-up area of the unit was 1425 square feet. Total price of the said unit was fixed at Rs.43,47,396.85ps. By the time, this complaint was filed, he had already paid an amount of Rs.43,23,747.27ps. The complainant has contended that though he booked the said unit, on first floor, yet, the opposite parties, in a very arbitrary manner, shifted his unit, to second floor and also the ground floor has been shifted to first floor i.e. the entire building/tower has been elevated on stilts, whereas,  it was never so agreed to between the parties, at the time of booking of the said unit.

                To the contrary, it is contention of Counsel for the opposite parties that as per Rules of the Government, in such like projects, construction of flats is allowed on stilts and the ground floor area is to be kept for parking of the cars. The building plan was also approved accordingly, to raise construction of the units on stilts. Be that as it may, it may be a requirement of the Rules aforesaid,  but there is nothing on record to show that at any point of time, any intimation of the said change was sent to the complainant or his consent was ever obtained. Had the said fact of raising construction of the unit, in question, on stilts been brought to the notice of the complainant, in advance, he might have changed his plan and would have got opportunity, to negotiate the price of the said unit with the opposite parties or seek refund of the amount paid. Without disclosing the material fact, the opposite parties continued to get the amount deposited, from the complainant. Under above circumstances, plea taken by Counsel for the complainant, at the time of arguments, that the complainant is not interested in purchasing the constructed unit on stilts, appears to be correct.  

14.         Furthermore, it is not in dispute that possession of the constructed unit on first floor, was to delivered by the opposite parties to the complainant, within 21 months i.e. (15 months plus 6 months) from the date of signing of that Agreement, as per Clause 7 (a), which read thus:-

“The Company shall try to complete the development/construction of the Unit/Project within 15 (Fifteen) months from the date of signing of this Allotment Letter by the Allottee(s) or approval of the building plans, whichever is later and within such further extended grace period of 6 (six) months. Completion of development of the Unit within such 21 (Twenty One) months is subject to force majeure conditions (as mentioned in Clause (b) hereunder) and subject to timely payment by the Unit Allottee(s) or subject to any other reasons beyond the control of the Company. No claim by way of damages/compensation shall lie against the Company in case of delay in handing over the possession on account of any of the aforesaid reasons and the Company shall be entitled to a reasonable extension of time for the delivery of possession of the said Unit to the Allottee(s). The aforesaid period of development shall 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.”

       

                At the time of arguments, it was virtually admitted by both the parties that end date to hand over possession of the unit was fixed on 30.07.2016. It is on record that construction by that time was not complete. Occupation certificate in respect of the said unit was issued by the Competent Authorities only on 13.02.2017 and thereafter possession was offered on 09.03.2017.

                Sh.Sanjeev Sharma, Advocate, Counsel for the opposite parties, argued with vehemence that, in the instant case, possession of the unit, in question, was handed over with a delay of about 7 months, for which the opposite parties are ready to offer delayed compensation. He prayed that, as such, this complaint be dismissed, with such directions. We are not going to accept the argument raised. It is on record that by accepting amount of more than 25% as far as back by 08.06.2012, from the complainant, the opposite parties maintained silence for more than one and a half years, without providing anything to him, thereby taking benefit of the said period, in handing over possession of the unit, as they were able to drag the period of possession, which was to be inked after execution of Allotment Letter/Agreement. It was the bounden duty of the opposite parties, to send allotment letter/agreement to the complainant for his signatures, within a period of two to three months, after receiving about 25% of the sale consideration, but they failed to do so. It was also earlier so said by this Commission, in a case titled as Usha Kiran Ghangas Vs DLF Homes Panchkula Private Limited, Complaint Case No.93 of 2016, decided on 02.06.2016. Relevant portion of the said case, reads thus:-

“The opposite parties 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 16.02.2011. She was allotted unit, vide letter dated  23.02.2011, on which date, she 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. She continued to make payment and when Buyer’s Agreement was got signed, on 18.08.2011, she had already paid an amount of Rs.21,68,524/-. By not offering Buyer’s Agreement, for signing in a reasonable time, the opposite parties also committed unfair trade practice. The complainant is a widow. Her interest needs to be protected”.

 

 Had the opposite parties sent the Allotment Letter/Agreement, say within two to three months, after receipt of amount equal to 25% of the sale consideration from the complainant, then the possession date would have definitely fell earlier, but on account of sending the same after a delay of more than one and a half years, they utilized the hard earned money of the complainant and also on the other hand, were successful in dragging the date of delivery of possession of the unit, in question, because it was to come into force only after execution of the same (Allotment Letter/ Agreement). At the same time, this act of the opposite parties also amounts to violation of the provisions of Section 6 (1) of the PAPRA, which reads thus:-

“6.(1) Notwithstanding anything contained in any other law for the time being in force, a promoter who intends to construct or constructs a building of apartments, all or some of which are to be taken or are taken on ownership basis, or who intends to offer for sale plots in a colony, shall, before he accepts any sum of money as advance payment or deposit, which shall not be more than twenty five per cent of the sale price, enter into a written agreement for sale with each of such persons who are to take or have taken such apartments, or plots, as the case may be, and the agreement shall be in the prescribed for together with prescribed documents and shall be registered under the Registration Act, 1908 (Central Act no. 16 of 1908);”

 

        Secondly, even if delay in handing over possession of the unit, in question, is about 7 months, it is open to the complainant, to accept or not to accept the same. In the instant case, not even a single averment was made by the opposite parties that delay of seven months took place, on account of some force majeure circumstances faced by them. In these circumstances, even if it is assumed, that offer of possession, made to the complainant, after a delay of about seven months, from the stipulated date, is genuine, then also, it is not obligatory upon the complainant to accept the same and it is open to him, to seek refund of the amount paid with interest etc., as it constituted material violation on the part of the opposite parties. It is well settled law that non-delivery of possession of constructed unit in a developed project, by the stipulated date, is a material violation of the terms and conditions of the Allotment Letter/Agreement, on the part of a builder. It was so said by the Hon’ble National Commission, in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, wherein, under similar circumstances, while negating the plea taken by the builder, it was held  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.”

 

Not only as above, 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.

 

Furthermore, in another case titled as M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the Hon’ble National Commission, under similar circumstances, 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”.

 

The above view taken by the National Commission, has been reiterated by it, recently in the case titled as Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No. 1814 of 2017 decided on 05.07.2018. Relevant part of the said order reads thus:-

“This Commission in Emaar MGF Land Ltd. & Anr. V. Amit Puri (First Appeal No.250 of 2014), decided on 30.03.2015, has held that if the Developer fails to deliver possession of the allotted plot/flat within the stipulated time, the allottee is under no obligation to accept an alternative plot. At the cost of repetition, we may reiterate that in the event of Developer failing to deliver possession of the property within the stipulated period, for any reason, save and except a force majeure condition, agreed to between the contracting parties, an allottee cannot be compelled to accept an alternate site/plot and he would be within his rights to seek refund of the amount deposited with the Developer against allotment”.

                Thus, in view of principle of law laid down in the aforesaid cases, it is held that even if the said offer made was genuine, yet, the complainant was not obliged to accept the same, as the same was made after a delay of about 7 months, and especially, when his unit was arbitrarily shifted on stilts, without obtaining his consent. 

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

15.         As far as objection regarding impleading of opposite parties no.2 and 3, in their personal capacity, in this consumer complaint, is concerned, we do not agree with the objection raised. It is not the case of the Company that the above-named persons are not its CEO/Directors. As such, these two persons are holding such important positions in the Company, where they are directly involved with the decision-making process in the Company. A similar controversy arose for determination before the Hon’ble National Commission, in a case titled as M/s. India Bulls Real Estate & Wholesale Services Ltd. & Ors, Vs. Vemparala Srikant & Anr., First Appeal No. 797 of 2017, decided on 16 Aug 2017, wherein, it was held as under:-

“From the material on record, it is evident that the OP-2 is the Chairman of the Company whereas the OP-3 is the Chief Executive Officer-cum-M.D. of the said company.  Evidently, these two persons are holding such important positions in the Company, where they are directly involved with the decision-making process in the company.  By virtue of their office, they can directly influence any decision regarding relief to be granted to the complainant, as asked for in the consumer complaint.  It is held, therefore, that the State Commission has rightly dismissed the interim application, rejecting the plea of the appellants to delete the name of OP-2 & OP-3 from the array of parties.  The impugned order passed by the State Commission is, therefore, upheld and the appeal is ordered to be dismissed with no order as to costs.”

 

                In view of above, objection raised by the opposite parties, in this regard, stands rejected.

16.         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.43,23,747.27ps. was paid by the complainant towards the said unit. This Commission has held that, on account of act and conduct of the opposite parties, referred to above, the complainant is entitled to refund of the said amount. 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). However, in the instant case, keeping in view the fact that there is delay of about seven months, in offering possession of the unit, in question, less rate of interest i.e. 9% p.a., can be granted on the amount to be refunded to the complainant, which will meet the ends of justice.
17.         No other point, was urged, by Counsel for the parties.
18.         For the reasons recorded above, this complaints is partly accepted, with costs. The opposite parties, jointly and severally, are directed as under:-

1. To refund the amount of Rs.43,23,747.27ps. to  the  complainant, alongwith interest @9% p.a.,  from the respective  dates  of  deposits onwards. (In this case, lesser rate of interest is granted, as there was delay of about 7 months, in offer of possession of the unit, in question)
2. To pay compensation, in the sum of Rs.1,00,000/-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.33,000/- to the  complainant.
4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii),  shall be made, within a period of two (2) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) thereafter shall carry penal interest @11% p.a. instead of @9%, from the date of default and interest @11% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

 

19.         However, it is made clear that, if the complainant has availed loan facility from any banking or financial institution, for making payment 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.
20.         Certified copies of this order be sent to the parties, free of charge.
21.         The file be consigned to Record Room, after completion.

Pronounced.

10.08.2018_

Sd/-

 [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

 (PADMA PANDEY)

MEMBER

 Rg.