Chandigarh

StateCommission

CC/282/2018

Mrs. Sandhya Dutt Sharma - Complainant(s)

Versus

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

Anamika Mehra, Adv.

10 Jun 2019

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	282 of 2018
Date of Institution	:	06.07.2018
Date of Decision	:	10.06.2019

 

Mr.Sandhya Dutt Sharma s/o N.R. Sharma, G/C-439, Chandigarh City, Sector 45 G.T. Road Karnal, 43, Haryana, presently resident of HNO, G-606, G-Block, Vikram Vihar, Sector 27, Panchkula.

 

…..Complainant

V e r s u s

1^st Add:- M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., Office address SCO 143-144, Sector 8, Madhya Marg, Chandigarh.

2^nd Add. M/s Omaxe Clockton Street, New Mullanpur, Sector 18D, Sector 18, Chandigarh.

3^rd Add. M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., Office address 10 LSC, Kalkaji, New Delhi.

Through its Directors Sh.Rohtash Goel and Jai Bhagwan Goel.

…..Opposite Party

 

Complaint under Section 17 of the Consumer Protection Act, 1986.

 

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MRS.PADMA PANDEY, MEMBER

                        SH.RAJESH K. ARYA, MEMBER

 

Argued by:       Ms.Anamika Mehra, Advocate for the        complainant.

      Sh.Ashim Aggarwal, Advocate for the opposite party.

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

 

                The complainant has filed this complaint seeking directions to the  opposite party  to deliver possession of plot bearing no.OCE/II/1074E, measuring 301.14 square yards, purchased by him, in resale, from Sh.Ajay Jain and Sanjeev Jain, in ‘Omaxe Chandigarh Extension”, Mullanpur, SAS Nagar, Punjab, price whereof was fixed at Rs.47,59,287.98ps. plus other miscellaneous charges. It is definite case of the complainant that despite the fact that as per demands raised by the  opposite party, from time to time, he has paid substantial amount of Rs.45,25,322.65ps. towards price of the said plot, yet, it (opposite party) failed to deliver possession thereof by 21.08.2015, i.e. within a period of 18 months plus 6 months totaling 24 months, as committed vide Clause 24 (a) of the Agreement dated 22.08.2013, which too was executed after huge delay, just with a view to drag the date of possession. However, possession of the plot was not offered to the complainant, by the stipulated date, for want of development work and basic amenities at the project site. Number of times, the complainant raised issues with the  opposite party, orally as well as in writing, but to no avail. Ultimately, legal notice dated 25.05.2018 was served upon the  opposite party  requesting it to deliver possession of the plot and also to pay compensation for the period of delay; compensation for mental agony and physical harassment; litigation expenses etc. but to of no avail. Hence this complaint.

2.         In the written reply filed by the  opposite party, it was stated that since, earlier the complainant was residing in Karnal and has now shifted to his house at Panchkula, as such, the present plot has been purchased by him, for commercial purpose. He being an investor, did not fall within the definition of “consumer” as defined under Section 2(1)(d) of the Act. Pecuniary and territorial jurisdiction of this Commission was challenged. As per Clause 44 (c) of the allotment letter/agreement, this Commission has no jurisdiction, to entertain and decide dispute between the parties, and the matter needs to be referred to an arbitrator for adjudication.
3.         It was stated that the plot, in question, is ready for possession. It was pleaded that that since period to offer possession of the plot was to be computed excluding Saturdays, Sundays and Bank Holidays; no definite period was committed to hand over possession of the plot; and also the plot, in question, falls under the category of immovable property, as such, time was not to be considered as essence of the contract. However, in the same breath, it was pleaded that the complaint filed is time barred. It was averred that after purchase of the plot, in question, in resale, an indemnity bond dated 16.07.2013, by way of affidavit, had been executed by the complainant, wherein, it was agreed by him that the period of development/construction of the said plot, as stated in the Allotment Letter/Agreement would be reckoned from the date of endorsement thereof, in his favour and as such, he shall not claim for compensation for any delay in offer of possession. Remaining averments were denied being wrong. Prayer was made to dismiss the complaint with cost.
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 contesting parties and have gone through the evidence and record of the case, very carefully.
7.         First, we will like to deal with an objection raised by the  opposite party with regard to pecuniary jurisdiction. It may be stated here that in the present case, total value of the plot, in question i.e. Rs.47,59,287.98ps.; plus compensation claimed by way of interest @12% p.a. for the period of delay, on the deposited amount of Rs.45,25,322.65ps.; and also Rs.2 lacs, claimed as compensation for mental harassment etc., if taken into consideration, it exceeds Rs.20 lacs and fell below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide this complaint. Objection taken, thus, stands 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 that Allotment Letter/Agreement dated 22.08.2013 was executed between the parties at Chandigarh, as the same bear the round stamp of Chandigarh Office of the  opposite party. Not only as above, even the request form, vide which the complainant made request to transfer the said plot, in his favour and endorsement form dated 06.08.2013, were signed at Chandigarh, which has been addressed to Chandigarh Office of the  opposite party. Furthermore, it is significant to mention here that this Commission has decided number of cases, wherein, it has been proved that the  opposite party  was having its Office at Chandigarh, wherefrom, the project in Mullanpur, Punjab, was marketed and sold. As such, this Commission has got territorial Jurisdiction to entertain and decide this complaint.  Objection taken in this regard, therefore stands rejected. 

9.         As far as objection raised by the  opposite party, 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, is concerned, it may be stated here that this issue 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 complainant 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. Even the Review Petition (C) Nos. 2629-2630 of 2018 filed by the builder in Civil Appeal Nos.23512-23513 of 2017 against order dated 13.02.2018, was dismissed by the Hon’ble Supreme Court of India, vide order dated 10.12.2018.

                In this view of the matter, objection raised by the  opposite party, in this regard, stands rejected.

10.         The next question that falls for consideration, is, as to whether, the complainant is an investor, as such, he would not fall within definition of consumer, as defined under Section 2 (1) (d) of the Act, 1986.

                It may be stated here that the complainant, in his complaint, supported by the affidavit, by placing reliance on Section 2 (1) (d) of the Act, has made his intentions clear that that the plot, in question, was purchased by him for his personal use. Still he is seeking actual physical possession of the plot, in question, alongwith compensation for the period of delay in offering it and other reliefs.  At the same time, there is nothing on record to prove that the complainant, is a property dealer, and deals in the sale and purchase of property, on regular basis, and as such, the plot, 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.  Mere fact that the complainant was earlier residing in Karnal and thereafter, he shifted to Panchkula, is no ground to eliminate him out of the purview of consumer. Thus, in the absence of any cogent evidence, in support of the objection raised by the  opposite party, mere bald assertion to that effect, cannot be taken into consideration. Since the  opposite party has levelled allegations against the complainant, the onus lay upon it, to place on record, documentary evidence in that regard, which it failed to do so. Otherwise also, in a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, decided 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, Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, and recently in Shashi Kala Gupta Vs. M/s. Omaxe Chandigarh Extension Developers Pvt. Ltd. & Anr., First Appeal No. 1281 of 2017, decided on 15 Mar 2019. Relevant part of the said order (FA 1281 of 2017) reads thus:-

“……..This Commission in Kavit Ahuja Vs. Shipra Estate Ltd. & Jai Krishna Estate Developers Pvt. Ltd.  (I) (2016) CPJ 31 (NC)  held that when there is a specific pleading stating that the additional plots/flats purchased are for the personal use of the family members, the onus is on the Opposite Parties to establish that the purchaser is dealing in real estate i.e. purchase and sale of plots/flats and are indulging in commercial activity.  In the instant case there is no documentary evidence filed by the Developer to establish that the Complainant was indulging in any commercial activity in real estate, involved in the purchase and sale of plots…….. ”

 

                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 party, therefore, being devoid of merit, is rejected. 

11.         It is not in dispute that the complainant purchased the plot, in question, in resale, from the original buyers i.e. Sh. Ajay Jain and Sanjeev Jain, on making request for the same, with the  opposite party. It is also evident from the record that endorsement in respect of the said plot, was made in favour of the complainant, by the opposite party, on 06.08.2013. Thereafter, allotment letter/agreement was executed between the complainant and the  opposite party, for the first time, on 22.08.2013, and as per Clause 24 (a) thereof, it (opposite party), committed to complete development of the plot, by putting its best efforts, within 18 months with extended period of 6 months from the date of execution thereof i.e. on or before 21.08.2015. In the entire written statement, we did not find even a single reason, assigned by the  opposite party, as to why, possession of the plot in question, was not offered and delivered to the complainant, by the committed date. During the pendency of this complaint, on 18.03.2019,  Counsel for the  opposite party  stated that it is not possible  for the Company, to hand over possession, as the area, in which the plot in question, was allotted to the complainant, is not developed. Under those circumstances, the complainant was given option to select some other plot, in the vicinity, of his choice, so that the same could be allotted to him and possession could be handed over. Thereafter, the matter was adjourned to few dates, for the said purpose and also for settlement between the parties but on 24.05.2019, it was stated by Counsel for the complainant that the alternate plot shown to the complainant was bigger in size, for which higher amount was demanded and he is not in a position to pay the said amount. As such, following order was passed by this Commission on 24.05.2019: -

 

“At the time of arguments, Counsel for the opposite party states that as on today, it is not possible to handover possession, as the area, in which the plot, in question, was allotted to the complainant, is not developed.

 

It is apparent from order dated 18.03.2019 that it was so recorded in the order and on account of above fact, the opposite party offered alternate plot to the complainant. The complainant selected a plot. However today, her Counsel states that the alternate plot was bigger in area, for which, higher amount was charged and the complainant is not in a position to pay the said amount. 

Arguments heard.

Reserved for orders”  

 

Since it has been admitted by Counsel for the  opposite party  that the Company is not in a position to deliver possession of the plot, in question, yet, without assigning any convincing reasons for the same, and at the same time, it is also not it’s case, that delay took place on account of any force majeure circumstances, under these circumstances, it can safely be said that by receiving substantial amount of Rs.45,25,322.65ps. against total sale consideration of Rs.47,59,287.98ps.. from the complainant and on the other hand, not offering and delivering possession of the plot to  him, despite the fact that more than 3 ½ years have elapsed from the committed date, it indulged into unfair trade practice and was also deficient in providing service.

                As it has been held above that the  opposite party  was at fault, in not offering possession of the plot, in question, by the stipulated date, or even thereafter, as such, now the question, which falls for consideration, is, as to what relief can be granted to the complainant, for delay, in offering possession thereof. A similar question, came up for consideration before this Commission in Ankur Gupta Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. and another, Consumer Case No.309 of 2016 decided on 22.11.2016, wherein dealing with similar issue, it was observed as under:-

“What relief can be granted to a consumer, in case of delay, in offering possession, came up for consideration before the Hon’ble National Commission, in a case titled as Parsvnath Exotica Ghaziabad Resident's Association Vs. Parsvnath Buildwell Pvt. Ltd. & Anr., consumer complaint no.45/2015, decided by the Hon’ble National Commission, on 06.05.2016, wherein, it was argued by the project proponent that at the maximum, as provided in the Agreement, the consumer will be entitled to claim penalty for delayed compensation @Rs.5/- per square feet, per month. Noting that in case of delay in making payment, the project proponent was charging heavy penal interest, instead of penal amount, the interest on the deposited amount, for the period of delay was granted, by holding as under:-

“Though, the Agreement between the developer and the flat buyers provides for payment of compensation in case of delay @ Rs.5/- per square feet of the super area per month, such clauses have been found to be unfair trade practice and have been consistently rejected by this Commission in several decision, including  Consumer Complaint No. 427 of 2014 Satish Kumar Pandey & Ors. Vs. Unitech Ltd. and connected matters decided on 08.6.2015.  Therefore, the aforesaid clauses cannot be taken into consideration, while determining the compensation payable to the members of the complainant association for the aforesaid delay in completion of construction.”

Not only this, in another case, titled as Capt. Gurtaj Singh Sahni & anr. Vs Manager, Unitech Limited & anr., consumer complaint bearing no.603/2014, decided on 02.05.2016, the Hon'ble National Commission, directed the opposite party/builder to pay interest  on the deposited amount, for the period of delay, till delivery of possession of the unit. Relevant contents of the said order reads thus:-

“8.   If the compensation for the delay in construction is restricted to what is stipulated in the Buyers Agreement, there will be no pressure upon the builder to complete the construction since he will be more than happy to keep on paying paltry compensation of about 3% per annum of the capital investment, instead of arranging funds at much higher cost, to complete the construction.

9.      xxxxxxxxxxxxx

10.    For the reasons stated hereinabove, the complaints are disposed of with the following directions:

(1)     xxxxxxxxxxxxxx

(2)     The opposite party shall pay compensation in the form of simple interest @ 12% per annum from the expected date of possession till the date on which the possession is actually offered to the complainants after completing the construction in all respects and obtaining the requisite completion certificate.”

Thus, keeping in view the principle of law laid down by the Hon'ble National Commission, in the cases, referred to above, if interest @12% on the deposited amount for the period of delay, till delivery of possession of the unit, is awarded, that would meet the ends of justice.”

Not only as above, in H.P. Housing Board Vs. Janak Gupta [2009] INSC 627 (26 March 2009) (Civil Appeal No. 6346 of 2002), it was clearly held by the Hon’ble Supreme Court of India that in the cases of delay, in delivery of possession, award of interest @ 12% per annum, on the deposited amount, for the period of delay, would meet the ends of justice.

                As such, it is held that the complainant is entitled to interest @12% p.a. on the entire deposited amount, towards price of the said plot, for the period of delay in offering possession thereof till realization. Besides as above, the  opposite party  is also liable to pay compensation to the complainant, for providing deficient service and guilty of adoption of unfair trade practice.

12.         Counsel for the  opposite party  contended that since it was mentioned in the Allotment Letter/Agreement that the Company shall make its best efforts to deliver possession of the plot within a period of 18 months, with further grace period of six months, as such, time was not the essence of contract. The contention raised is devoid of merit. It may be stated here that once a specific period of 18 months, with extended period of 6 months was mentioned in Clause 24 (a) of the Allotment Letter/Agreement with commitment of best efforts, to complete the development/construction work, now at this stage, the  opposite party  cannot wriggle out of the same. Other than this Clause contained in the allotment letter, there is no Clause, which speaks about the period/date for delivery of possession of the plot, to the complainant. A clear-cut promise was made to deliver possession of the plot, within a maximum period of 24 months. As stated above, 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 plots to the allottees, including the complainant.

                It was also argued by Counsel for the  opposite party  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. As stated above, in Clause 24(a) of the allotment letter, it is stated that possession will be delivered within 18 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.”

 

                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 and many other cases, thereafter. 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, in the present case also, since as per Clause 24 (a) of the Allotment Letter/Agreement, the  opposite party  was bound to deliver possession of the developed plot, within a maximum period of 24 months from the date of execution of the same, as such, time was unequivocally made the essence of contract. In view of above, plea of the  opposite party  in this regard stands rejected.

                At the same time, it is also submitted that the  opposite party cannot evade its liability, merely by saying that since the words ‘best efforts’ were mentioned in the allotment letter, for delivery of possession of the plot, as such, time is not to be considered as essence of the contract. The act of non-mentioning of exact date in the allotment letter/Agreement is violation of CHAPTER II Regulation of Promotion of Construction, Sale, Transfer and Management of Apartments, Plots and Properties, Condition no. 3(2) (g) of the Punjab Apartment and Property Regulation Act, 1995 (PAPRA), which says that the project proponent is duty bound to specify, in writing, the date by which possession of the plot or apartment is to be handed over and it shall hand over such possession accordingly. Relevant contents of condition no.3(2) (g) of PAPRA are reproduced below:-

“(g) specify, in writing, the date by which possession of the plot or apartment is to be handed over and he shall hand over such possession accordingly”;

As such, plea raised in this regard, being devoid of merit, is rejected.

13.          Another objection taken by the  opposite party  that since the plot, in question, falls under the category of immovable property, as such, in that event also, time is not to be considered as essence of the contract, is also bereft of merit, in view of ratio of judgment titled as Saradamani Kandappan Vs S. Rajalakshmi & Ors., Civil Appeal Nos. 7254-7256  of 2002 &                                      and   Contempt Petition (C) No. 28-29 of 2009, decided on 4^th  July, 2011, wherein the Hon`ble Supreme Court held as under:-

“A correct perspective relating to the question whether time is not of the essence of the contract in contracts relating to immovable property, is given by this court in K.S. Vidyanadam and Others vs. Vairavan - (1997) 3 SCC 1 (by Jeevan Reddy J. who incidentally was a member of the Constitution Bench in Chand Rani). This Court observed:

"It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect.

In the case of urban properties in India, it is well-known that their prices have been going up sharply over the last few decades - particularly after 1973. .........We cannot be oblivious to the reality and the reality is constant and continuous rise in the values of urban properties - fuelled by large scale migration of people from rural areas to urban centres and by inflation.

Indeed, we are inclined to think that the rigor of the rule evolved by courts that time is not of the essence of the contract in the case of immovable properties - evolved in times when prices and values were stable and inflation was unknown - requires to be relaxed, if not modified, particularly in the case of urban immovable properties. It is high time, we do so."

(emphasis supplied) Therefore there is an urgent need to revisit the principle that time is not of the essence in contracts relating to immovable properties and also explain the current position of law with regard to contracts relating to immovable property made after 1975, in view of the changed circumstances arising from inflation and steep increase in prices. We do not propose to undertake that exercise in this case, nor referring the matter to larger bench as we have held on facts in this case that time is the essence of the contract, even with reference to the principles in Chand Rani and other cases. Be that as it may.”

 

14.         As far as objection raised by the  opposite party  that since the complainant has executed an affidavit cum indemnity dated 16.07.2013 to the effect that the period of development/construction of the said plot as stated in the Allotment Letter/Agreement would be reckoned from the date of endorsement in his favour and that he will not claim any compensation for any delay in offer of possession, is concerned, it may be stated here that in the present case, the Allotment Letter/Agreement had not been got executed by the said date i.e. 16.07.2013 but on the other hand, it was done so only on 22.08.2013, as such, if the said objection taken by the  opposite party, is considered in its favour, that will go against its interest only, because then the period of committed date of possession of 24 months, will be taken from 16.07.2013 and not from 22.08.2013. Furthermore, even in the request form dated 06.08.2013, for transfer of plot, in favour of the complainant, which has been placed on record as Annexure OP/2 by the  opposite party  only, it has been clearly mentioned therein that the predecessors of the complainant have endorsed/assigned their 100% rights and interests, whatsoever pertaining to the plot, in question, including payments made. Once the  opposite party has accepted the said request form, which is later in time i.e. 06.08.2013, the contents contained in the said undertaking/ indemnity dated 16.07.2013 shall not hold the field.
15.         Now coming to the objection raised by the  opposite party, to the effect that this complaint  is time barred, it may be stated here that since it is an admitted fact, that possession of the plot, in question, has not been offered to the complainant, even by the date when arguments were heard in this complaint,  as such, there was a continuing cause of action in favour of the complainant, in view of principle of law down, in  Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal   Shah  and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC),  wherein it was held that when possession of the residential units is not offered, there is a continuing cause of action, in favour of the allottee/buyer. Objection raised in this regard, as such, is rejected.
16.         No other point, was urged, by the contesting parties.
17.         For the reasons recorded above, this complaint is partly accepted, with costs. The opposite party, through its Directors namely Sh.Rohtash Goel and Jai Bhagwan Goel (jointly and severally), is directed as under:-
    1. To hand over actual physical possession of the plot, in question, to the complainant, within a period of 04 months, from the date of receipt of certified copy of this order, complete in all respects, after obtaining necessary completion certificate, from the competent authorities, on receipt of legally due amount from him (complainant).
    2. To execute and get registered the sale deed, in respect of the plot, in question, in favour of the complainant, within two months, from the date of handing over possession, as indicated in Clause (i) above, on payment of registration and stamp duty charges, by him to the Registering Authorities.
    3. To pay compensation, by way of interest @12% p.a., on the entire deposited amount, to the complainant, from 21.08.2015 (promised date) to 31.05.2019, within two months, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% p.a. instead of 12% p.a., till realization.
    4. To pay compensation by way of interest @12% p.a. on the entire deposited amount, w.e.f. 01.06.2019, onwards (per month), till actual delivery of actual physical possession of the plot, by the 10^th of the following month, failing which, the same shall also carry penal interest @15% p.a., instead of 12% p.a., from the date of default, till payment is made.
    5. To pay compensation, in the sum of Rs.1.50 lacs, on account of mental agony, physical harassment, caused to the complainant, deficiency in providing service and adopting unfair trade practice, within two months from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing this complaint till realization.
    6. To pay cost of litigation, to the tune of Rs.35,000/-  to the complainant, within two months from the date of receipt of a certified copy of this order, failing which, the same shall also carry interest @12% p.a., from the date of filing this complaint till realization.
18.         Certified Copies of this order be sent to the parties, free of charge.
19.         The file be consigned to Record Room, after completion.

Pronounced.

10.06.2019

Sd/-

 

 (JUSTICE JASBIR SINGH (RETD.)

PRESIDENT

 

 

Sd/-

 (PADMA PANDEY)

        MEMBER

 

 

Sd/-

 (RAJESH K. ARYA)

MEMBER

 

 Rg.