Chandigarh

StateCommission

CC/181/2018

Anupama Gandhi - Complainant(s)

Versus

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

Jagdish Manchanda, Adv.

05 Mar 2019

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	181 of 2018
Date of Institution	:	24.04.2018
Date of Decision	:	05.03.2019

 

Anupama Gandhi w/o Sh.Devdutt Gandhi R/o #5724, Modern Housing Complex, Phase III, Manimajra, Chandigarh.

……Complainant

V e r s u s

Omaxe Chandigarh Extension Developers Limited, SCO No.139-140, Sector 8-C, Madhya Marg, Chandigarh, through its Managing Director.

2^nd Address: - Corporate Office: 10, Local Shopping Complex, Kalkaji, New Delhi-110019.

….Opposite party

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

 

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

                   MRS. PADMA PANDEY, MEMBER.

                   MR. RAJESH K. ARYA, MEMBER.

 

Argued by:Sh. D.D. Gandhi, husband of Smt.Anupama Gandhi,  complainant.

Sh.Munish Gupta, Advocate for the opposite party.

 

JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                The complainant has filed this complaint, seeking refund of amount of Rs.50,75,982.78ps. (infact Rs.50,75,972.78ps.), paid by her, from time to time, to the opposite party, towards price of plot bearing No.OCE/II/166, measuring 301.39 square yards, purchased in the project launched by it (opposite party), under the name and style, ‘Omaxe New Chandigarh’, Mullanpur, Mohali, Punjab. Total price of the said plot was fixed at Rs.48,65,350.40ps., inclusive of all charges. It is specific case of the complainant that despite making payment of Rs.50,75,972.78ps., against total sale consideration of Rs.48,65,350.40ps., the opposite party failed to offer and deliver possession of the plot, in question, on or before 30.03.2014, i.e. within a period of 18 months with extended period of 6 months totaling 24 months from the date of execution of Agreement dated 31.03.2012, as envisaged under Clause 24 (a) thereof, for want of development and basic amenities, at the project site. Except issuance of letter dated 13.12.2016 Annexure C-8, asking the complainant to make payment of Rs.5,03,738.28ps., no positive steps were taken to deliver actual physical possession of the plot, in question. On receipt of the said letter, the complainant visited the project site and saw that still basic amenities such as roads etc. are not ready. The complainant was asked to make payment of Rs.4,89,890.78ps. (after waiving of Rs.11,950/- out of Rs.5,03,738.28ps.) under the threat of levying penal interest, which amount was paid by her, under protest. Letter dated 29.12.2016 was written by the complainant, requesting the opposite party to provide complete basic amenities at the project site and deliver possession of the plot, in question, but to of no avail. To substantiate her stand, the complainant has placed on record photographs Annexure C-12 colly., of the incomplete project, clicked by her on 29.12.2016. It was stated that for making part payment towards price of the said plot, the complainant has availed housing loan from State Bank of Patiala, for which she is making payment of EMIs. Under above circumstances, legal notice was served upon the opposite party on 23.01.2017, Annexure C-1, to refund the amount paid alongwith interest but to of no avail. Hence the present complaint has been filed by the complainant, seeking refund of amount paid alongwith interest, compensation etc.

2.         In the reply filed by the opposite party, many preliminary objections were raised, to defeat genuine claim of the complainant. It was averred that the complainant did not fall within the definition of “consumer” as defined under Section 2(1)(d) of the Act, as such, she being investor had purchased the plot, in question, for commercial purpose i.e. for selling the same, as and when there was escalation in the prices of real estate, to gain huge profits. Territorial and pecuniary jurisdiction of this Commission was challenged. It was said that only the Courts at Punjab and Delhi, has jurisdiction to entertain and decide the instant complaint. It was pleaded that as per Clause 44 (c) 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. It was averred that the complainant has concealed material facts, as such, is not entitled to get any relief. It was further pleaded that the complaint is bad for non-joinder of State Bank of Patiala, from which she obtained loan for making payment towards price of the said plot, as a necessary party to this complaint, as such, it is liable to be dismissed on this ground alone.
3.         On merits, purchase of plot in question; payments made by the complainant as mentioned in the complaint; execution of buyer’s agreement dated 31.03.2012 between the parties; mentioning of period of delivery of possession of the plot within a period of 18 months with extended period of 6 months totaling 24 months, as envisaged under Clause 24 (a) of the Agreement, is not seriously disputed. It was submitted that as per Clause 24 (a) of the said Allotment Letter/Agreement, it was made clear that the Company shall put its best efforts to complete the development of the plot within 24 months (18 months (+) 06 months extended period) from the date of signing thereof. In other words, it was tried to say that time was not the essence of contract. Possession of the plot was offered to the complainant vide letter dated 13.12.2016, subject to making payment of remaining amount reflected in the statement  of account Annexure-A attached therewith, yet, she failed to come forward for taking possession of the plot, in question. Representation made by the complainant, vide letter dated 29.12.2016, was duly addressed by the opposite party. The area where the plot, in question, is located, was fully developed; completion certificate had been obtained from the Competent Authorities; the plot was ready for delivery of possession but the complainant did not come forward for the same, when offer was made to her, in respect of the same. It was pleaded that the complainant was defaulter in making payment towards price of the said plot. Copy of agreement has not been placed by her on record, deliberately, which has now been placed by the opposite party. Prayer was made to dismiss the complaint.
4.         The parties led evidence in support of their case.
5.         The contesting parties raised arguments, in tune of the facts narrated above.
6.         We have heard the contesting parties and have gone through the evidence and record of the case, very carefully.
7.         First, we will deal with the 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.

                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.

8.         Now we will like to decide an objection raised by the opposite party that for want of pecuniary jurisdiction, it is not open to this Commission to entertain and adjudicate this complaint. 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.  It is significant to mention here that, on 22.05.2018, when this case was fixed for preliminary hearing, Counsel for the complainant, Ms.Monika, Advocate, gave statement before this Commission that the complainant restricts her claim for grant of interest @12% p.a. (simple) on the deposited amount and further that the amount claimed towards damages/compensation be also kept at Rs.2 lacs, so that the relief claimed remains within the pecuniary jurisdiction of this Commission. Request made to this effect was considered and notice, thereafter, was ordered to be issued to the opposite party in complaint case. As such, under these circumstances, if total value of the plot, in question, i.e. Rs.48,65,350.40ps, plus compensation claimed by way of interest @12% p.a. on the deposited amount of Rs.50,75,972.78ps. and also Rs.2 lacs, claimed as damages/compensation, is 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 by the opposite party, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.
9.         The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide this 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 her. In the instant case, it is evident from payment receipt dated 12.01.2011 (Annexure C-1); Permission to mortgage letter dated 31.03.2012 in respect of plot, in question (Annexure C-4); Allotment Letter dated 31.03.2012 (Annexure C-5); Letter dated 13.12.2016 (Annexure C-8), were issued by the opposite party, from its Chandigarh Office, as the said documents bear round stamp of Chandigarh Office of the opposite party i.e. Regional Office at SCO No.139-140, Sector 8-C, Chandigarh-160008. Furthermore, Tripartite Agreement dated 31.03.2012 (Annexure C-7) was executed between the parties at Chandigarh. Even letter dated 29.12.2016 (at pages 45 to 46) written by the complainant was also addressed to Chandigarh Office of the opposite party, which had been received by it on the very same day (29.12.2016). 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. 

                The opposite party took an objection that since as per Clause 44 (c) of the Agreement, it was mutually agreed to between the parties that the Courts at Punjab and Delhi, shall have Jurisdiction, to entertain and adjudicate the dispute(s) in respect of the plot, in question,  and, as such, the jurisdiction of this Commission was barred. It may be stated here that all the provisions of the Code of Civil Procedure are not applicable, except those, mentioned in Section 13 (4) of the Act, to the proceedings, in a Consumer Complaint, filed under the Act. For determining the territorial jurisdiction, to entertain and decide the complaint, this Commission is bound by the provisions of Section 17 of the Act. In Associated Road Carriers Ltd., Vs. Kamlender Kashyap & Ors., I (2008) CPJ 404 (NC), the principle of law, laid down, by the National Commission, was to the effect, that a clause of Jurisdiction, by way of an agreement, between the parties, could not be made applicable, to the Consumer Complaints, filed before the Consumer Foras. It was further held, in the said case, that there is a difference between Sections 11/17 of the Act, and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. In the instant case, as held above, a part of cause of action arose to the complainant, within the territorial Jurisdiction of this Commission, at Chandigarh. In Ethiopian Airlines Vs Ganesh Narain Saboo, IV (2011) CPJ 43 (SC)= VII (2011) SLT 371, the principle of law, laid down, was that the restriction of Jurisdiction to a particular Court, need not be given any importance in the circumstances of the case. In Cosmos Infra Engineering India Ltd. Vs Sameer Saksena & another I (2013) CPJ 31 (NC) and Radiant Infosystem Pvt. Ltd. & Others Vs D.Adhilakshmi & Anr I (2013) CPJ 169 (NC) the agreements were executed, between the parties, incorporating therein, a condition, excluding the Jurisdiction of any other Court/Forum, in case of dispute, arising under the same, and limiting the Jurisdiction to the Courts/Forums at Delhi and Hyderabad. The National Commission, in the aforesaid cases, held that such a condition, incorporated in the agreements, executed between the parties, excluding the Jurisdiction of a particular Court/Forum, and limiting the Jurisdiction to a particular Court/Forum, could not be given any importance, and the complaint could be filed, at a place, where a part of cause of action arose, according to Sections 11/17 of the Act. The principle of law, laid down, in the aforesaid cases, is fully applicable to facts of the instant case. It may also be stated here, that even if it is assumed for the sake of arguments, that the complainant had agreed to the terms and conditions of the agreement, limiting the Jurisdiction to the Courts, referred to above, the same could not exclude the Jurisdiction of this Commission, at Chandigarh, where a part of cause of action accrued to her, to file the complaint. In view of above, objection taken by the opposite party, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

10.         The next question, that falls for consideration, is, as to whether, the complainant falls within the definition of a consumer, as defined by Section 2 (1) (d) of the Act, or not. It may be stated here that mere bald objection of the opposite party that the complainant had purchased the plot, by way of investment, to gain huge profits, by selling the same, as and when there was escalation in prices, does not carry any weight and is liable to be rejected. There is nothing, on the record, that the complainant is a property dealer and deals in the sale and purchase of property, on regular basis. In the absence of any evidence against the complainant, mere bald assertion in this regard, 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, 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. Similar view was reiterated by the 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.

                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 had purchased the plot in question, in the said project, for Rs.48,65,350.40ps., inclusive of all charges, against which, she had already paid an amount of Rs.50,75,972.78ps., as per demands raised by the opposite party, from time to time.  It is also not seriously disputed that possession of the fully developed plot was to be offered and delivered on or before 31.03.2014, i.e. within a period of 18 months with extended period of 6 months totaling 24 months, as envisaged under Clause 24 (a) of the Agreement dated 31.03.2012, but it was not so done by the opposite party, for want of development and basic amenities, at the project site. In the written reply, nothing has been mentioned, as to why possession of the plot, in question, was not offered and delivered by the stipulated date (30.03.2014). Under these circumstances, it is held that the opposite party was deficient in providing service and negligent, in this regard.

                Now the question, which arises for consideration, is, as to whether, it could be considered in favour of the opposite party that possession of the plot, in question, was offered to the complainant, vide letter dated 13.12.2016 Annexure C-8, or it was just a paper possession. It is very significant to mention here that it is well settled law that before offering and delivering possession of residential plot(s)/unit(s) to the allottees, builder is required to obtain completion certificate. An allottee is not obliged to take possession of a residential plot/flat, unless it is complete in every respect, including the completion certificate. It was so said by the Hon’ble National Commission, in Inderjit Singh Bakshi Versus S.M.V. Agencies Private Limited, FA No. 729 of 2013, decided on 30.11.2015. In the present case, such certificate is not on record, meaning thereby that the same has not been obtained by the opposite party, from the Competent Authorities.

                At the same time, burden to prove that the project had been completed and the area/site, in question, is fully developed is on the builder/opposite party. It was so said by the National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. It is very strange that in the present case, not even an iota of evidence has been placed on record, by the opposite party, to prove that when offer was made to the complainant, in respect of the plot, in question, development work was complete and that all the basic amenities were in existence. In case, all the development/ construction activities, had been undertaken, and completed at the site, by the said date, then it was for the opposite party, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development/construction activities, had been undertaken and completed at the site or not, but it failed to do so. As such, it is held that the possession, so allegedly offered vide letter dated 13.12.2016, Annexure C-8 was nothing, but a paper possession and is not sustainable in the eyes of law.

                Be that as it may, since it is an admitted case that the possession, though a paper one, was offered on 13.12.2016 i.e. after a long delay of about more than two years from the promised date (30.03.2014), as such, there is a material breach of terms and conditions, on the part of the opposite party. Under above circumstances, material violation of terms and conditions of the Agreement, by the opposite party, cannot be ignored. It is well settled law that non-delivery of possession of plot(s)/unit(s) 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 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, 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”.

                As such, under above circumstances, the complainant cannot be forced to accept possession of the plot, offered at a belated stage, in the absence of any force majeure circumstances, especially, when it has been held above that the possession so offered, is nothing but a paper one, as the same has been issued in the absence of development, basic amenities and completion certificate. As such, since there was a material violation on the part of the opposite party, as explained above, the complainant is at liberty to seek refund of the amount deposited, alongwith interest.

12.         Furthermore, in the present case, there is nothing on record to show that the opposite party suffered any force majeure circumstances, on account of which, development could not be completed, at the project site. In the absence of any force majeure circumstances having been actually faced by the opposite party, it was bound to deliver possession of the plot, in question, by 30.03.2014, i.e. within a period of 18 months with extended period of 6 months totaling 24 months, as envisaged under Clause 24 (a) of the Agreement dated 31.03.2012, as such, time was, unequivocally made the essence of contract.

                The opposite party also cannot evade its liability, merely by saying that since the words “Company shall put its best efforts” was mentioned in the Agreement, 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 unit 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”;

Furthermore, non-mentioning of exact date of delivery of possession of the unit(s) in the Buyer’s Agreement/allotment letter, 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 plots/unit(s) to the allottees/purchasers thereof.  It was so said by the 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.

13.         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.50,75,972.78ps. was paid by the complainant towards price of the said plot. The said amount has been used by the opposite party, for its own benefit.  Once it has been held above that the complainant is not bound to accept paper offer of the plot, in question, as such, she is entitled to get the amount paid by her, alongwith interest. She has been caused a huge financial loss. 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. In view of above, the complainant is entitled to get refund of the amount deposited by her, to the tune Rs.50,75,972.78ps. alongwith interest @12% p.a., from the actual dates of deposits till realization
14.         At the same time, it is also held that since the opposite party itself was deficient in providing service and negligent, in not developing the project and offering possession of the plot, by the stipulated date and also at the same time, adopted unfair trade practice, by offering paper possession, after huge delay, the complainant was right in stopping making payment and that too for a short time, in view of principle of law laid down by the Supreme Court of India in Haryana Urban Development Authority Vs. Mrs. Raj Mehta, Appeal (Civil) 5882 of 2002, decided on 24.09.2004, wherein it was held that if the builder is at fault in not delivering possession of the unit by the stipulated date, it cannot expect the allottee(s) to go on paying instalments to it. Similar view was also taken by the National Commission, in Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), wherein it was held that when development work was not carried out at the site, the payment of further installments was rightly stopped by the purchaser. Under these circumstances, in no way, the complainant can be termed as defaulter. Objection taken in this regard, stands rejected.  
15.         As far as objection taken to the effect that the complaint is bad for non-joinder  of necessary parties i.e. State Bank of Patiala, from which, the complainant had raised loan for making payment towards price of the said plot, it may be stated here that, under similar circumstances, in the cases, where this Commission orders refund of the amount deposited, it is always ordered that banking or financial institution, if any, from which the allottee/purchaser has availed loan facility for making payment of installments towards the plot(s)/unit(s), it will have the first charge of the amount payable, to the extent, the same is due to be paid. In this case also, this Commission is going to pass such directions. As such, no prejudice will cause to the opposite party, in the matter. Objection taken in this regard, stands rejected.  
16.         No other point, was urged, by the contesting parties.
17.         For the reasons recorded above, this complaint is partly accepted with costs, with following directions to the opposite party, as under:-

1. To refund the amount Rs.50,75,972.78ps. to the complainant, alongwith interest @12% p.a., from the respective dates of deposit onwards.
2. To pay compensation, in the sum of Rs.1.50 lacs, for causing mental agony and physical harassment, to the complainant, and also deficiency in providing service and adoption of unfair trade practice.
3. To pay cost of litigation, to the tune of Rs.44,000/- to the complainant.

18.         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) thereafter shall carry penal interest @15% p.a., from the date of default, and interest @12% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing this complaint, till realization.
19.         However, it is made clear that the State Bank of Patiala, from which the complainant has availed loan facility or from any other banking or financial institution, for making payment of installments towards the said plot, it will have the first charge of the amount payable, to the extent, the same is due to be paid by her (complainant).
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.

05.03.2019

Sd/-

 [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

(PADMA PANDEY)

        MEMBER

 

 

Sd/-

(RAJESH K. ARYA)

MEMBER

 Rg